Filed 3/13/14




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                           S059912
           v.                        )
                                     )
JOSEPH MONTES,                       )
                                     )                      Riverside County
           Defendant and Appellant.  )                   Super. Ct. No. CR-58553
____________________________________)


      A Riverside County jury found defendant Joseph Montes guilty of first
degree murder (Pen. Code, §§ 187, 189) (count I)),1 kidnapping during the
commission of a carjacking (§ 209.5) (count II), carjacking (§ 215) (count III), and
being a felon in possession of a firearm (former § 12021, subd. (a)(1), now
§ 29800, subd. (a)) (count IV). The jury found true three special circumstance
allegations, namely, that the murder was committed while defendant was engaged
in the commission of a (1) robbery, (2) kidnapping for robbery, and (3)
kidnapping. (§ 190.2, former subd. (a)(17)(i) & (ii), now subd. (a)(17(A) & (B).)
The jury also found true the enhancement allegations that a principal was armed
with a firearm in the commission of the murder, the kidnapping during the
commission of a carjacking, and the carjacking (§ 12022, subd. (a)(1)). After the


1       Statutory references are to the Penal Code unless otherwise noted.
penalty phase, the jury returned a verdict of death. The trial court denied
defendant’s motions for new trial (§ 1181) and modification of the penalty
(§ 190.4, subd. (e)), and sentenced him to death. This appeal is automatic. (Cal.
Const., art. VI, § 11; § 1239, subd. (b).) We reverse count III and stay the
sentence for count II, but affirm the judgment in all other respects, including the
death sentence.
                                  INTRODUCTION
     Responding to a call reporting gunshots in a remote part of Corona, police
discovered the body of 16-year-old Mark Walker in the open trunk of his car.
Walker had been shot five times at close range. The prosecution’s theory was that
Walker had been robbed, carjacked, and kidnapped by defendant, by two of his
codefendants at trial, Ashley Gallegos and Travis Hawkins, and by Miguel Garcia,
who was a juvenile at the time of the murder.2 Apparently, the foursome
carjacked and kidnapped Walker because they needed a ride to a birthday party for
codefendant Salvador Varela. They shoved Walker into his trunk and drove
Walker’s car to the party in Corona, where they stayed briefly. With Walker still
in the trunk, they drove Walker’s car to a nearby isolated location, while Varela
followed in his van. Once there, a member of the group shot Walker as he tried to
get out of the trunk. The group abandoned Walker’s car, and Varela drove them
back to the party. Several prosecution witnesses, including Varela’s brother




2      Garcia was not identified by name until halfway through the trial, and was
not apprehended until the beginning of defendant’s penalty phase. The record
does not disclose whether Garcia was prosecuted for the crimes against Walker.



                                          2
George, his sister Sylvia, and his girlfriend Kimberly Speck, testified that
defendant admitted he shot Walker.3
     Defendant, Gallegos, Hawkins, and Varela were tried together, although a
separate jury sat for Varela because his admissions to police implicated the other
defendants’ confrontation rights under People v. Aranda (1965) 63 Cal.2d 518
(Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton). The
prosecution sought the death penalty only against defendant.
                                      I. FACTS

       A. Guilt Phase

           1. The Prosecution’s Case

               a. The Day of the Murder
     On Saturday, August 27, 1994,4 16-year-old Mark Walker was living in
Banning with his mother and stepfather. At approximately 5:30 p.m., he asked his
mother whether he could go shopping at the mall; she agreed and gave him two
$100 bills, which he put in his dark wallet. Walker said he planned to be out most
of the evening, visiting friends and listening to a band. His mother told him to be
home by 11:00 p.m. or to call if he planned to stay with a friend. At about 6:30
p.m., Walker left in the family car, a gray Buick Regal. Neither his mother nor the
friends he planned to visit ever heard from him again.
     At dusk, Nathan Hanvey went to Jay’s Market in Beaumont. Hanvey
attended high school with Walker and knew him as an acquaintance. He saw
Walker waiting in line to buy a soda, and they briefly discussed a local football

3      Codefendant Salvador Varela and his siblings share the same last name. To
simplify our discussion of the facts and the law, we refer to codefendant Salvador
Varela as Varela, and refer to his siblings by first name.
4      All further calendar dates refer to 1994 unless otherwise noted.



                                          3
game. Hanvey noticed Walker’s dark wallet and saw that it contained a
substantial amount of money. Hanvey also noticed five or six “scary looking”
Hispanic men waiting in line. Hanvey recognized one of them, Travis Hawkins,
and said hello, but he did not know the others. After Walker bought his soda, he
left the store; the Hispanic group bought a six-pack of beer and also left. At trial,
Hanvey identified defendant, Hawkins, and Gallegos as part of the group at the
market.
       Salvador Varela lived in an apartment in Corona with his sister Sylvia, his
brother George, and George’s girlfriend, Marci Blancarte. Between 3:00 and 5:00
a.m. on the day of the murder, defendant, Gallegos, and two or three others
dropped by the Varela apartment and spoke with George. Gallegos showed
George a black handgun, which George offered to buy, but Gallegos declined to
sell. George invited defendant and Gallegos to Varela’s birthday party that
evening.
       During the afternoon, defendant had repeatedly called the Varela apartment
seeking a ride to the party from his Beaumont home for himself and Gallegos.
George declined to pick them up because it was too far away. Sylvia called
Gallegos that afternoon to offer him a ride, but Gallegos indicated he already had
one.
       Defendant arrived at the party before sunset while Sylvia and other guests
were standing on the balcony. The group saw defendant drive up in the Buick.
Defendant was accompanied by Gallegos, Hawkins, and Garcia. From the
balcony, Arthur Arroyo saw Gallegos bend as he stepped from the front passenger
side of the Buick as if he were retrieving something, possibly a gun, which he
tucked in his shirt. Another guest, Kevin Fleming, watched the Buick park and
saw the four male passengers enter the apartment. Hawkins joined a conversation
with Fleming and the Varela brothers, telling them he had been in a convenience

                                           4
store where he could have “smoked” (shot) a clerk who gave him attitude about
his clothing.
     Within 10 minutes after he arrived, defendant asked George to help him drop
off the Buick, which he claimed belonged to a friend. George refused, suspecting
the car was stolen. Defendant then turned to Varela for assistance with the car.
Varela initially refused, claiming he had had too much alcohol, but eventually
agreed. His girlfriend, Kimberly Speck, had hidden his car keys, but relinquished
them when Varela insisted he needed them to do a favor for defendant. Varela
promised to return soon. Fleming and another guest, Christopher Eismann,
offered to drive Varela, but he refused, saying he was “only going around the
corner.” Varela left in his van with Gallegos. Defendant, Hawkins, and Garcia
left in the Buick.5
     Around 8:00 p.m. that night, Alexander Silver was in the backyard of his
Corona house, talking with his sister, Laura Esqueda. The house, which
overlooked Palisades Road, was about three miles from the Varela residence.
Silver and Esqueda heard four gunshots. Looking toward Palisades Road, they
saw a van parked on the shoulder of the road, facing east, and a car next to the
van, facing west. The head and tail lights of the van and the car illuminated the
scene. Silver saw three Hispanic men standing near the open trunk of the Buick,
one of whom may have extended an arm for an instant. Silver ran inside and
called the police, but Esqueda, now joined by her husband, continued to watch.
Esqueda saw three males run around the van to the passenger side. Her husband
saw two people standing behind the Buick; he watched as they were joined by a



5      Fleming testified Hawkins stayed at the party and played dominoes or
cards. Sylvia testified she did not see Hawkins leave in either vehicle.



                                          5
third person who approached from the driver’s side of the van. The vehicle lights
went off, and the couple saw no further movement.
     Fifteen to 30 minutes after the five men had left Varela’s party, they returned
in Varela’s van. The Buick did not return. Most of the group stood together,
talking on the balcony. Witnesses gave varying accounts of the group’s mood
after they returned. Fleming testified their demeanor had not changed. Sylvia
testified Gallegos and Varela seemed very subdued. Speck testified Varela was
pale, worried, and in a panic.
     Defendant offered to buy pizza for the party, and asked George for change
for a $100 bill. Blancarte saw defendant take $20 bills from a dark wallet to pay
for the food.
     Many partygoers saw firearms on display that night. Early in the evening,
defendant showed Arroyo and others a nickel-plated revolver. Blancarte saw a
large black handgun passed around the balcony and later noticed defendant
showing a small handgun to two people in the bathroom. Around midnight,
Varela and George showed Arroyo a nine-millimeter handgun that had been
concealed under the bathroom sink.
       Between 10:00 p.m. and midnight, a group that included defendant, Varela,
George, Fleming, Hawkins, and Gallegos went to a nearby pool hall. While there,
defendant and Hawkins got into an argument. Hawkins removed a small derringer
from his pocket, but George told him to put it away. The group later returned to
the party, which eventually wound down.

                b. The Day After the Party
     On Sunday morning, George left the party after 1:30 a.m. with a female
companion and spent the night in Long Beach. Around 1:30 or 2:00 a.m.,
defendant’s cousin, Eddie Montes, drove Hawkins and Garcia to Beaumont.



                                         6
Defendant and Gallegos stayed at the Varela apartment all night. Sylvia testified
that she, defendant, and Gallegos smoked methamphetamine together and played
video games.
     Later that morning, Varela and Speck went to a donut shop and bought a
newspaper that contained an article about the dead body of a man found in the
trunk of a car off Palisades Drive.6 Back at the apartment, Speck showed the
article to defendant and Gallegos. Defendant reacted by denying he committed the
crime, telling Speck, “Can you believe that they’re trying to pin this on me,” and
“They’re trying to say that was me that killed that kid.”7 Later, however,
defendant showed the article to Sylvia and bragged, “I did this,” and told her not
to tell anyone. Defendant made a number of telephone calls, including one to his
father in which he admitted responsibility for the killing. During the call,
defendant argued with his father; after the call, he said he would have to go a few
“rounds” with his father. Sylvia and Blancarte both testified they heard defendant
say he had earned “his stripes” for the killing; Speck heard defendant say
something about earning a stripe or a medal on his uniform.
     George returned to the Varela apartment that afternoon and agreed to drive
defendant and Gallegos to Beaumont. On the way, defendant removed a


6      The article from the August 28, 1994 edition of the Riverside Press-
Enterprise, read as follows: “The body of a man who had been shot to death was
found inside the trunk of a car parked along a Corona road yesterday, police said.
The man, whose identity was unknown last night, was found about 9 p.m. in the
area of Green River Drive and Palisades Drive. Officers found the man in the
open trunk of a Buick Regal while responding to the report of shots heard in the
area, police Lt. Henry Aja said. The man was shot at least once in the upper torso,
Aja said. Police had not made any arrests in connection with the death last night.”
7      At trial Speck testified defendant used the word “guy” rather than “kid.” In
an earlier out-of-court statement to Varela’s investigator, Speck said defendant
used the word “kid” to describe the victim.



                                          7
newspaper clipping from his pocket and told George an “old man” from Beaumont
had been killed. Defendant said he committed the crime. He described the
shooting. He added that he had pulled his sleeve down to protect his hands from
blood spatter, and he pointed to what he said was a blood spot on his sleeve. He
said that, after firing one or two shots, he had looked away as he continued to fire
because he was “grossed out” by the sight. Defendant also said he had “jacked”
the car, and that the gun was gone. George did not believe the story.
     In Beaumont, George dropped off Gallegos and then drove to defendant’s
house. When he parked, George saw his best friend, Victor Dominguez, standing
in his yard not far from the Montes residence.8 Dominquez came up to the car and
told George “You’re riding around with a 187.”9 George, defendant, and
Dominguez then went into defendant’s house. Defendant’s father was in the
living room and looked angry. Defendant told them, “I had to do it. I ain’t gonna
let four vatos go down for some white boy.” George and Dominguez then left to
go to Dominguez’s house. As they walked alongside the Montes house, they saw
the police arrive to arrest defendant.10




8       Victor Dominguez was a cousin of defendant and codefendant Hawkins.
9       Presumably, this was a reference to section 187, the California murder
statute. As discussed, post at pages 62-65, the trial court admitted this statement
for the nonhearsay purpose of showing George’s state of mind.
10      In his testimony, Dominguez denied seeing defendant or George that day.
Dominguez also denied having regular contact with George in 1994, although his
telephone number appeared on George’s telephone bill many times in July,
August, and September. One of the officers who arrested defendant testified he
recognized Dominguez as being in the street a couple of houses down at the time
of the arrest.



                                           8
                   c. The Criminal Investigation
     By the time officers arrived at Palisades Road in response to the “shots fired”
call, the van was gone, but the Buick was there with its trunk open and its trunk
light on. In the trunk, the officers found Walker’s body on its back with one leg
outside the car.
       About 9:00 p.m. Detective Ronald Anderson joined the officers who had
arrived a half hour earlier. The detective discovered tire tracks in a circular
pattern across the dirt median. An identification technician collected physical
evidence, including tire impressions. The tire impressions matched the type of
tires on Varela’s van. The technician also collected two spent nine-millimeter
cartridge casings from the trunk and two from the ground behind the Buick. He
lifted two latent fingerprints, one from the hood and one from the glass on the
driver’s side window.
       On Sunday morning, the identification technician provided the latent print
cards to the sheriff’s department fingerprint identification section. Around noon,
Detective Anderson was notified the fingerprint from the driver’s side window
matched that of defendant. At approximately 6:00 p.m., the police arrested
defendant. They arrested Salvador Varela, Gallegos, and Hawkins between
August 29 and September 2.
     Dr. Joseph H. Choi determined Walker had been shot at close range five
times, each within a few seconds of the others. Walker was shot on the top of his
head, in the right side of his mouth, and in the left side of his face. The wounds
indicated that all five shots came from the same direction. Walker was alive when
the shots were fired, but died within minutes.
       Several months after the murder, a jogger found a nine-millimeter chrome
Glock pistol about a mile from the murder scene. Subsequent testing determined
the gun was most likely the murder weapon. It was registered to Steven Glomb,


                                           9
whose teenage daughter knew Gallegos and Garcia’s brother Refugio.11 Glomb
identified the Glock as one of two guns stolen from his collection in 1994; the
other was a Walther PPK/S .380. In late August, Gallegos, Refugio, and others
visited Glomb’s daughter. Refugio testified he and Gallegos took the two guns.
Gallegos kept the Glock, and Refugio kept the .380.
     Refugio testified Gallegos later came to his apartment to borrow the .380.
Gallegos told him he was going to a party in Corona and wanted to have the gun in
case he got jumped. Gallegos stuck the gun in his pants and then got into the front
passenger seat of a gray car. A few days later, Gallegos returned the .380 and told
Refugio they had carjacked and killed someone, taken $200 from “the kid,” and
thrown away the nine-millimeter gun. Gallegos told Refugio they had not used the
.380, but advised Refugio to get rid of it.

                    d. Gang Evidence
     Police Sergeant Scott Beard testified as an expert on gangs in Beaumont. He
said two Hispanic gangs were active in the city at the time of the murder, Varrio
Beaumonte Rifa (VBR) and Northside Beaumont. Hawkins and Garcia were VBR
members. Gallegos was a VBR associate. Defendant, Varela, and George were
not known to be VBR members. Defendant had gang tattoos, but none for VBR.12
Sergeant Beard testified a person can get “jumped” into a gang by committing a
crime.

           2. The Defense Case
     Neither defendant nor his codefendants testified. Defendant called three
witnesses. Jason Gogolin testified George and another man were involved in an

11    Because Miguel Garcia and his brother share the same last name, we refer
to Miguel Garcia’s brother as Refugio.
12    Defendant’s gang tattoos are described, post, at page 56.



                                          10
assault at an apartment unrelated to the capital crime.13 Russell Rigsby, a friend
of the victim, testified he saw Walker on the day of the murder around dusk at a
gas station in the town next to Beaumont. It was stipulated that an investigator for
the prosecution had interviewed Rigsby prior to trial, and that Rigsby had stated
that Walker mentioned he either had beer or was going to buy some beer.
Detective Anderson testified that, during his initial interview with Speck, she had
only discussed Varela’s coming and going from the party and had not mentioned
defendant or any of the codefendants.14

       B. Penalty Phase

           1. Prosecution Evidence
     The prosecutor presented evidence that defendant previously had been
convicted of felony burglary and had used his own waist chains to strike
codefendant Gallegos while the two were in a holding cell along with other
inmates. The prosecutor also introduced evidence that defendant possessed deadly
weapons in jail while awaiting trial. Defendant had been discovered in his cell
holding a toothbrush with a razorblade on the end, and a “shank” (a broken piece
of plastic with a handle) was found in another search of his one-man cell.
     Mark Walker’s family members described him as a responsible young man
and a caring son and brother. They described the devastating impact his murder
had on his family and friends.




13     This testimony was offered to impeach George’s testimony as a prior crime
bearing on his character as a witness.
14     Defendant’s theory was that Speck’s testimony about defendant’s
involvement in the crime was the result of her later collaboration with the Varela
brothers and other prosecution witnesses.



                                          11
     The prosecutor showed the jury a 10-minute video tape composed of 115
photographs of Walker; it was accompanied by light instrumental music. The
video concluded with an image of a snow-covered road and a photograph of
Walker’s memorial bench at the cemetery, which his high school football team
had donated. Walker’s mother described her distress at discovering that the bench
and Walker’s gravestone were later vandalized.

           2. Defense Evidence
     Defendant presented the testimony of his mother, various relatives, and
former teachers about his childhood and developmental disabilities. Defendant
was hyperactive as a child and had difficulties in public and parochial school,
where he was considered “slow.” Defendant’s parents divorced when he was in
the sixth grade. His mother developed a drinking problem thereafter, and, in her
brother’s opinion, she neglected her children. Defendant lived with his
grandfather off and on and then went to live with his father.
     Childhood testing indicated defendant had an I.Q. of 68 to 70. A subsequent
test administered while he was awaiting trial showed an I.Q. of 77, with a possible
range of 72 to 82. The clinical psychologist who administered the test testified
this was at the 6th percentile for the general population and fell within the
borderline mentally retarded range.
     To explain his possession of weapons in jail, defendant presented evidence
that he had been the victim of a stabbing in jail.

           3. Prosecution Rebuttal
     In rebuttal, the prosecutor presented evidence that, sometime in 1994, the
police had discovered defendant in possession of an altered Philips-head
screwdriver. Defendant had not been arrested on that occasion.




                                          12
                               II. PRETRIAL ISSUES

       A. Denial of Discovery Motion Based on Discriminatory Prosecution
     Defendant brought a motion to compel discovery of information from the
Riverside County District Attorney Office (the District Attorney) concerning its
charging of death penalty cases. He based his motion on the claim that the District
Attorney had decided to prosecute him because of the race of the victim.
Defendant contended the selective charging constituted a discriminatory
prosecution in violation of equal protection. The trial court denied the motion. On
appeal, defendant contends the trial court erred in denying his discovery motion,
and he raises the underlying constitutional defense that the prosecutor engaged in
discriminatory prosecution. We conclude defendant failed to make a showing
sufficient to entitle him to discovery on the issue of discriminatory prosecution
and has failed to establish a defense of discriminatory prosecution.

           1. Background
     Pursuant to Murgia v. Municipal Court (1975) 15 Cal.3d 286 (Murgia),
defendant filed a series of pretrial motions to obtain discovery of material
concerning the District Attorney’s death-penalty charging practices. He sought
materials regarding each homicide case prosecuted by the office since 1978 in
which special circumstances were alleged and the death penalty sought, along with
homicide cases in which life in prison without parole was sought, and information
about homicide cases in which special circumstances were not alleged. He also
requested discovery of the race and ethnic background of each defendant and
victim in these cases.
     In support of his claim that the decision to seek the death penalty was a
discriminatory prosecution based on the race and status of the victim, defendant
cited instances in taped interviews in which investigating officers referred to the



                                         13
victim as “the white kid” and mentioned that the victim’s stepfather was a former
police officer. Defendant submitted a study indicating that, for the period from
1992 to 1994, 81 percent of capital prosecutions undertaken by the District
Attorney involved White victims, while Whites constituted only 39 percent of
willful homicide victims in the county in that time period. After briefing and a
hearing, the trial court denied the discovery motion, ruling defendant had failed to
produce the requisite threshold showing of discriminatory prosecution.

           2. Analysis

                a. Discriminatory Prosecution and Related Discovery
     “[D]iscriminatory enforcement of the laws may be a valid defense in a case
in which the defense can establish deliberate invidious discrimination by
prosecutorial authorities.” (Griffin v. Municipal Court (1977) 20 Cal.3d 300, 306
(Griffin).) A prosecutor’s discretion to prosecute is constrained by federal
principles of equal protection and may not be based on “ ‘an unjustifiable standard
such as race, religion, or other arbitrary classification.’ ” (United States v.
Armstrong (1996) 517 U.S. 456, 464 (Armstrong), quoting Oyler v. Boles (1962)
368 U.S. 448, 456.) In Murgia, supra, 15 Cal.3d at page 306, we held that when a
defendant seeks to defend a criminal prosecution based on discriminatory
prosecution, “traditional principles of criminal discovery mandate that defendants
be permitted to discover information relevant to such a claim.”
     At the time of the Murgia decision, criminal discovery in California, unlike
civil discovery, was “strictly a judicial creation.” (Griffin, supra, 20 Cal.3d at p.
306.) However, in 1990, Proposition 115 was passed, and it included the Criminal
Discovery Statute, section 1054 et seq. Section 1054, subdivision (e), states that
“no discovery shall occur in criminal cases except as provided by this chapter,
other express statutory provisions, or as mandated by the Constitution of the



                                          14
United States.” Discovery related to a claim of discriminatory prosecution is not
provided for in section 1054.1, which sets forth the prosecutor’s discovery
obligations, or in any other statute.
     Defendant brought his discovery motion related to discriminatory
prosecution in 1996. At least one California Court of Appeal opinion has held a
Murgia discovery motion is constitutionally compelled discovery based on federal
equal protection, and thus survives the passage of Proposition 115. (People v.
Superior Court (Baez) (2000) 79 Cal.App.4th 1177, 1188; see Pipes and Gagen,
Cal. Criminal Discovery (4th ed. 2008) §§ 6:5-6:7, pp. 730-732 [citing California
appellate opinions assuming a federal constitutional basis for Murgia discovery
motions].) In Armstrong, the United States Supreme Court assumed discovery
based on a defense of discriminatory prosecution was available to a criminal
defendant defending against a federal charge in federal district court. (Armstrong,
supra, 517 U.S. at p. 463.) The majority opinion held such discovery was not
based on Federal Rules of Criminal Procedure, rule 16 (18 U.S.C.) and left open
the question of whether this discovery was constitutionally based or was based on
a federal district court’s inherent discovery powers. (Armstrong, at p. 463; see id.
at p. 477 (dis. opn. of Stevens, J.).)
     Here, we shall assume for the sake of argument that defendant’s Murgia
discovery motion was validly made. We therefore turn to the question of whether
defendant made the requisite showing under state or federal standards to obtain the
discovery he sought through the motion.
     Under our state law standard, a Murgia motion must “ ‘describe the requested
information with at least some degree of specificity and must be sustained by
plausible justification.’ ” (Griffin, supra, 20 Cal.3d at p. 306, quoting Ballard v.
Superior Court (1966) 64 Cal.2d 159, 167.) We have held a showing of “plausible
justification” requires a defendant to “show by direct or circumstantial evidence

                                          15
that prosecutorial discretion was exercised with intentional and invidious
discrimination in his case.” (People v. Keenan (1988) 46 Cal.3d 478, 506.)
Similarly, under the federal standard, a defendant must produce “some evidence”
tending to show the existence of both a discriminatory effect and the prosecutor’s
discriminatory intent. (Armstrong, supra, 517 U.S. at p. 468.)

               b. Defendant’s Showing
     Because a state that bases enforcement of its criminal laws on an
unjustifiable standard such as race would violate the equal protection clause, a
defendant has standing to contend he has been discriminated against on the basis
of his purported victim’s race. (McCleskey v. Kemp (1986) 481 U.S. 279, 291-
292, fn. 8 (McCleskey).) Here, defendant contends the prosecutor discriminated in
bringing a capital prosecution against him because the victim was White.
     Defendant additionally contends he was subject to discriminatory prosecution
because the victim was related to members of law enforcement. He points to a
taped interview between codefendant Gallegos, police detectives, and the deputy
district attorney, in which an interviewer mentioned that the victim’s stepfather
was a former police officer and that his brothers were police officers. However,
defendant fails to provide authority that this type of victim status constitutes an
unjustifiable or arbitrary classification under federal equal protection.15 We
therefore reject defendant’s arguments based on this aspect of the victim’s status.


15     Defendant cites the high court’s statement that our system of justice does
not tolerate distinctions based on the perceived worthiness of the victims. (Booth
v. Maryland (1986) 482 U.S. 496, 506, fn. 8., overruled in part in Payne v.
Tennessee (1991) 501 U.S. 808, 830 (Payne).) But this language refers only to the
Maryland state law the Booth court found unconstitutional for allowing a jury at
the sentencing phase to consider the background of the victims and whether they
were “assets to their community.” (Booth, at p. 506, fn. 8.)



                                          16
     With regard to his claim of discriminatory prosecution based on the race of
the victim, defendant points to three items he presented in support of his discovery
motions on the issue: (1) a statistical summary of death penalty prosecutions in
Riverside County; (2) his expert’s declaration on the significance of this and other
statistical reports on capital prosecutions; and (3) the use of racial terms by
investigating officers and the deputy district attorney in interviews with suspects
in the case. We discuss each below.

                    1. The Statistical Report and Expert Declaration
     To support his claim that the District Attorney invidiously discriminated
against murderers of White people in bringing capital prosecutions, defendant
submitted a statistical report indicating that 81 percent of capital prosecutions
undertaken by the District Attorney from 1992 to 1994 involved White victims,
whereas Whites constituted only 39 percent of the “willful” homicide victims in
Riverside County during that period.
     As the prosecutor noted, defendant’s report was a bare statistical comparison
of the race of homicide victims in Riverside County without consideration of
individual case characteristics. Significantly, the study did not indicate what
percentage of the non-White-victim homicides would have been eligible to be
charged as capital homicides. The expert’s accompanying declaration contained a
summary of studies purporting to demonstrate statistical discrepancies in the
charging of the death penalty based on the race of the defendant and the victim
based on data collected mainly from jurisdictions in southern states. The
declaration did not appreciably strengthen defendant’s showing beyond what he
presented through the Riverside statistical study.
     Defendant contends his statistical report was adequate to meet his burden for
obtaining discovery, which was to offer some evidence of both discriminatory



                                          17
effect and discriminatory intent. He cites a Ninth Circuit opinion stating that
“[t]he Supreme Court has not determined whether statistics relating exclusively to
the prosecuting authority are sufficient, standing alone, to establish a prima facie
claim of discriminatory intent in a capital charging case.” (Belmontes v. Brown
(9th Cir 2005) 414 F.3d 1094, 1128.) We need not decide this issue because
defendant’s statistical report was fundamentally flawed and failed to show
discriminatory effect, let alone discriminatory intent. Defendant attempts to
distinguish his statistical study from the one rejected by the United States Supreme
Court in McCleskey. In McCleskey, supra, 481 U.S. at page 292, the high court
rejected the argument that the defendant’s statistical study (the “Baldus study”)
was sufficient to establish the existence of discriminatory intent for the Georgia
capital cases the report analyzed. Defendant contends his study is distinguishable
from the Baldus study because it focused on racial disparity in the charging
authority (the District Attorney) rather than on racial disparity in sentencing
(which extends to every actor in the process, including the jury). However, as
discussed above, defendant’s study failed to take into account the case
characteristics of the homicides, which is a crucial factor for a district attorney’s
capital charging decisions. We conclude that whatever benefit defendant’s study
gained by focusing on the charging authority was negated by the failure to address
the homicide case characteristics.

                    2. Use of Racial Terms
     In support of his claim that the use of racial terms provided evidence of
discriminatory intent, defendant points to the following instances in which the
prosecutor and investigating officers used racial terms in their interviews with the
codefendant and other individuals in the case:




                                          18
     (1) Juan Santana lived below the Varela brothers and was arrested based on
statements made by defendant. In an interview conducted in Spanish through an
interpreter, an investigating officer urged Santana to confirm or deny whether he
was present in the victim’s car the night of the killing because, as the officer
contended, defendant and Varela, being “home boys,” were likely to blame
Santana because he was a “wet back.”
     (2) The interrogating officers used the term “White boy” in questions to the
codefendants, such as “Did you kill the White boy?” and “Were they bragging
about ripping off the White boy?”
     (3) At the hearing on the discovery motion, the prosecutor denied
defendant’s claim that the interrogating officers’ use of racial terms indicated
racial animus, and noted that race may have played a part in the case to the extent
the codefendants may have carjacked the victim because he was young, White,
and vulnerable. In a supplemental motion, defense counsel pointed to this
statement as confirming the importance of the race of the victim to the prosecutor.
     We find persuasive the prosecutor’s responses at the hearing on the discovery
motion. The prosecutor said the use of “wet back” by the interrogating officers
was not derogatory in context because it was used by individuals on the street to
refer to themselves and by defendant himself during his interview with the police.
As to the use of “White boy,” the prosecutor pointed out defendant himself first
described the victim as “the White guy” in an interview with police and that the
interviewers’ use of the term followed from that initial identification. Finally, we
conclude the prosecutor’s observation that Walker’s race may have been one
reason why defendant and his cohorts targeted him for the carjacking was an
unobjectionable comment on his view of the case, rather than an admission that he
engaged in discriminatory prosecution based on the race of the victim.



                                          19
     We conclude defendant has not shown the prosecutor intentionally
discriminated in the exercise of his charging discretion. Defendant has therefore
failed to make the requisite showing of discriminatory prosecution to obtain
discovery. Accordingly, we conclude the trial court did not err by denying the
discovery motion under either the Murgia or Armstrong standard. In turn,
assuming for the sake of argument that defendant is entitled to raise his
constitutional defense for the first time on appeal, we conclude defendant failed to
show he actually was subjected to a discriminatory prosecution.16

       B. Pitchess Motion
     Seeking information about possible police misconduct to support his
discovery motion based on discriminatory prosecution, defendant moved for
discovery of the personnel records of three police officers under Pitchess v.
Superior Court (1974) 11 Cal.3d 531. Judge Ronald L. Taylor performed an in
camera review of the records that was transcribed and sealed. After reviewing the
personnel records, he said there were no citizen complaints regarding two of the
officers. The judge then indicated that, while there were some complaints in the
third officer’s file, the complaints were not discoverable because they did not
concern areas in which defendant was seeking discovery. Defendant has asked us
to review what the judge considered to determine whether any records were
incorrectly withheld.
     We first note that the record in the present case is adequate to permit a
meaningful appellate review. (People v. Prince (2007) 40 Cal.4th 1179, 1285.) It


16      We note that defendant’s claim of discriminatory prosecution based on the
status of the victim as a child of law enforcement personnel would, if cognizable,
fail on its merits for the same reason as his race-based claim; namely, defendant’s
failure to produce evidence of discriminatory effect and intent.



                                         20
includes a full transcript of the in camera hearing in which Judge Taylor stated
what documents he examined. No augmentation of the record is necessary. We
have reviewed the record and independently conclude Judge Taylor did not abuse
his discretion in denying the Pitchess motion. (Prince, at p. 1286.)

       C. Severance Motions
     The trial court denied each of defendant’s severance motions. Defendant
contends the trial court erred in (1) refusing his request to conduct an in camera
review of declarations he submitted under seal in support of his motions; (2)
denying his motion to sever his trial from all other codefendants; and (3) denying
his alternative motion to sever his trial from that of codefendant Hawkins. We
conclude the trial court did not err in its rulings on the severance motions.

           1. Denial of In Camera Review of Sealed Declarations
     Defendant filed under seal several declarations by defense counsel in support
of his severance motions. The first, submitted in support of the motion to sever
his case from all codefendants, discussed defense investigation and strategy
concerning the codefendants, and it stated counsel’s belief that the codefendants
would put forth defenses asserting defendant was the shooter. Defendant also
submitted two declarations in support of his separate request to sever his trial from
codefendant Hawkins. These contended family dynamics were hindering defense
counsel’s ability to conduct the penalty phase investigation. Defendant and
codefendant Hawkins are first cousins; Hawkins’s mother is the sister of
defendant’s father. Defense counsel contended some family members were
supporting Hawkins over defendant, and were reluctant to talk to defendant’s
representatives for fear of harming Hawkins at the joint trial. Defense counsel
contended family members would be more willing to talk with defendant’s
representatives if defendant’s trial were severed from that of Hawkins.



                                          21
     The prosecutor objected to the trial court’s considering any of the sealed
declarations, while defendant argued the court should review them in camera.
After a hearing on the issue, the trial court sustained the prosecutor’s objection. It
reasoned that the People’s due process rights were implicated in the severance
motions, and that, if it were to consider the sealed declarations in camera, the
People would have no effective way of representing their substantial interest in the
determination of the motions.
     Defendant contends the trial court erred in failing to fulfill its obligation to
consider all available evidence relevant to the severance motions. He cites two
cases in which a trial court accepted in camera offers of proof for severance
motions, People v. Hardy (1992) 2 Cal.4th 86, 167, and People v. Odle (1988) 45
Cal.3d 386, 403, but acknowledges he has found no authority stating that a trial
court must do so.
       Defendant points to other areas of the law in which trial courts accept in
camera offers of proof, such as disputes concerning third party discovery and
disputes over claims of privilege. These areas of the law are distinguishable.
Discovery from third parties does not implicate a prosecution’s interests in as
substantial a way as a severance motion. The party invoking a claim of privilege
is entitled to in camera review of the relevant proffered evidence because the party
seeks to prevent another party from using the alleged privileged material at trial.
By contrast, defendant sought to use the material in support of a severance motion
but nonetheless shield it from disclosure to the prosecutor based on the work
product privilege.
     In the absence of any law requiring a trial court to accept an in camera offer
of proof for a severance motion, we conclude the trial court’s decision to permit or
not permit such an offer is within the trial court’s discretion. (See People v.
Guerra (2006) 37 Cal.4th 1067, 1113 [abuse of discretion standard of review

                                          22
applies to any ruling by a trial court on the admissibility of evidence].) We have
found no abuse of discretion in the trial court’s ruling in this case. Defendant’s
claim that the trial court was unable to make an informed ruling on the merits of
his motions without considering the sealed declarations is belied by the record. At
the hearing on the motions, defense counsel discussed the relevant information
raised in the sealed declarations. She mentioned possible antagonistic defenses
between the codefendants, described how some mutual relatives appeared to be
supporting codefendant Hawkins rather than defendant, and noted that some
relatives were unwilling to talk to defendant’s representatives for fear of harming
Hawkins’s position at trial. Despite defendant’s claim to the contrary, the trial
court was not “in the dark” in ruling on the severance motions.

           2. Motion to Sever from the Other Codefendants
     Section 1098 expresses a legislative preference for joint trials. A trial court’s
denial of a motion for severance is judged on the facts as they appeared at the time
of the ruling and is reviewed for abuse of discretion. (People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 40-41.) If the ruling was correct when made, we will
reverse it only if a defendant shows that joinder actually resulted in “gross
unfairness” amounting to a denial of due process. (People v. Johnson (1988) 47
Cal.3d 576, 590.) Defendant contends his joint trial resulted in gross unfairness.
     Defendant’s motion for severance from all codefendants was based on his
concerns regarding (1) Aranda/Bruton issues (Aranda, supra, 63 Cal.2d 518 and
Bruton, supra, 391 U.S. 123), (2) irreconcilable defenses, (3) the likelihood his
codefendants’ attorneys would act as “second prosecutors” and try to shift blame
from their clients to defendant; and (4) the fact defendant was the only defendant
facing the death penalty. None of these bases required severance of defendant’s
case from all of his codefendants.



                                         23
         The trial court empaneled a separate jury for codefendant Varela because his
statements to the police were incriminating to defendant and the other
codefendants and were therefore inadmissible at a joint trial. (Aranda, supra, 63
Cal.2d 518; Bruton, supra, 391 U.S. 123 (Aranda/Bruton).) Because only
Varela’s jury heard his statements incriminating defendant, the Aranda/Bruton
concerns raised in defendant’s severance motion were addressed.
         “[A]ntagonistic defenses do not warrant severance unless the acceptance of
one party’s defense would preclude acquittal of the other party.” (People v. Lewis
(2008) 43 Cal.4th 415, 461.) Here, none of the codefendants testified or presented
evidence at trial attempting to shift the blame to another codefendant, but
defendant claims their antagonistic or irreconcilable defenses were reflected in
testimony of various prosecution witnesses. Defendant contends those witnesses
fabricated or skewed their testimony to incriminate defendant in an attempt to
exonerate or lessen the culpability of the other codefendants. However, matters of
credibility were for the jury to decide. (See People v. Mayberry (1975) 15 Cal.3d
143, 150.) We reject defendant’s attempt to use his assessments of witness
credibility to argue denial of his severance motion led to a gross unfairness in his
trial.
         To support his claim that his codefendants’ attorneys would act as “second
prosecutors,” defendant points out that counsel for Gallegos successfully moved
under Evidence Code section 351 to exclude, as irrelevant, Gallegos’s statement
made during a police interview that he knew the victim. For the reasons discussed
post at pages 70-71, we conclude the trial court did not abuse its discretion in
granting that motion, and that the exclusion of Gallegos’s statement did not render
defendant’s trial grossly unfair.




                                           24
     Finally, “[b]oth this court and the United States Supreme Court have upheld
the practice of conducting joint trials of defendants eligible for the death penalty
with those who are not.” (People v. Tafoya (2007) 42 Cal.4th 147, 163-164.)
     In light of the above, we find no merit to the claim that the trial court abused
its discretion in failing to sever defendant’s case from all of his codefendants.

           3. Motion to Sever from Codefendant Hawkins
     Defendant alternatively moved for severance from Hawkins, claiming denial
of the motion would have an adverse impact on the ability of defendant’s counsel
to investigate and prepare the penalty phase. He contended his relatives on his
father’s side of the family, who were related to Hawkins, appeared to be
supporting Hawkins in their family feud and were unwilling to be interviewed by
defendant’s counsel. In renewing this argument on appeal, defendant contends
being jointly tried with Hawkins affected his ability to present evidence on his
behalf at the guilt and penalty phases.
     Neither defendant’s father nor anyone from that side of defendant’s family
testified on defendant’s behalf at the guilt or penalty phases, and defendant’s
father did not testify at the guilt phase in response to George’s testimony that
defendant admitted he was the killer in front of defendant’s father. Defendant
points out that, during closing argument at the guilt and penalty phases, the
prosecutor mentioned defendant’s father did not testify, and then argued the jury
could infer from the defense’s failure to call him that his testimony would have
been adverse to defendant’s position. Defendant contends it is “reasonably
possible” that if this severance motion had been granted, his father would have
presented testimony disputing George’s account, and that would have precluded
the prosecutor’s damaging argument.




                                          25
     We reject defendant’s claim that denial of a severance motion should be
analyzed under the state law standard for errors at the penalty phase, namely,
whether there is a “reasonable possibility” the error affected the penalty verdict.
(People v. Brown (1988) 46 Cal.3d 432, 447.) Instead, defendant must show
joinder actually resulted in “gross unfairness,” amounting to a denial of due
process. (People v. Johnson, supra, 47 Cal.3d at p. 590.) In any event, defendant
merely speculates that his father would have contradicted George’s account at a
trial had he and Hawkins not been tried together. Equally speculative are
defendant’s arguments that paternal relatives would have presented unspecified
favorable evidence at his penalty phase had his trial been severed from Hawkins’s.
Defendant fails to show the denial of his severance motion resulted in gross
unfairness amounting to a denial of due process. (Ibid.)

       D. Failure to Take a Blood Sample
     Defendant moved under California v. Trombetta (1984) 467 U.S. 479
(Trombetta) to dismiss the case, or, in the alternative, to have the trial court give
an ameliorative instruction, because the police did not take a blood sample when
they arrested him. Here, as he did below, defendant argues a blood sample might
have shown a high level of methamphetamine in his system and that such evidence
could have been used to mount an affirmative defense of intoxication at the guilt
phase or as mitigating evidence at the penalty phase. We conclude that the trial
court did not err by denying the motion to dismiss and the request for an
ameliorative instruction, and that defendant’s due process rights were not violated.
     At a hearing on the motion, the two officers who initially arrested defendant
testified to the following: They arrested defendant about 6:00 p.m. on August 28,
nearly 24 hours from the time the Corona Police Department received the call
about a murder in progress. At the time of his arrest, defendant was speaking so



                                          26
quickly Detective Anderson had to tell him to slow down so he could be
understood. Detective Stewart testified defendant exhibited symptoms of
“hypertension,” but Stewart attributed defendant’s state to the shock of being
caught rather than to drug use. Stewart believed a blood sample could be useful to
a defense of intoxication if a person is arrested soon after a crime, but not when, as
here, the arrest occurred almost 24 hours later. Karla Sandrin, defendant’s trial
counsel, provided a sworn declaration that the prosecutor informed her defendant
had been “flying” when the prosecutor interviewed him after his arrest. The trial
court denied the Trombetta motion, ruling the police were under no obligation to
collect evidence in the case, and that the testimony revealed the officers did not
believe defendant was under the influence of a narcotic at the time of his arrest.
     The federal constitutional guarantee of due process imposes a duty on the
state to preserve “evidence that might be expected to play a significant role in the
suspect’s defense.” (Trombetta, supra, 467 U.S. at p. 488.) In other words, that
evidence “must both possess an exculpatory value that was apparent before the
evidence was destroyed, and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available means.” (Id.,
at p. 489.) Generally, due process does not require the police to collect particular
items of evidence. (People v. Frye (1998) 18 Cal.4th 894, 943.) “The police
cannot be expected to ‘gather up everything which might eventually prove useful
to the defense.’ ” (People v. Hogan (1982) 31 Cal.3d 815, 851.) A trial court’s
ruling on a Trombetta motion is upheld on appeal if a reviewing court finds
substantial evidence supporting the ruling. (People v. Memro (1995) 11 Cal.4th
786, 831.)
     This is not a case where evidence initially gathered was destroyed. The issue
here is the asserted failure of the police to collect relevant exculpatory evidence.
Although we have suggested that cases may arise in which the failure to collect

                                          27
evidence could justify sanctions against the prosecution at trial, the failure to
collect blood sample from defendant at the time of his arrest but almost 24 hours
after the crime is not such a case. (People v. Frye, supra, 18 Cal.4th at p. 943 [no
duty to collect bloody slipper for blood typing].)
     In any event, defendant’s claim would fail even if Trombetta and its progeny
apply to a claim of a failure to collect evidence. “Trombetta speaks of evidence
whose exculpatory value is ‘apparent.’ ” (Arizona v. Youngblood (1988) 488 U.S.
51, 56, fn. *.) Here, the testimony indicated the officers did not believe defendant
was under the influence of drugs when arrested. The testimony also failed to
establish an apparent exculpatory connection between the possible presence of a
narcotic in a defendant’s blood when he was arrested and his level of intoxication,
if any, when the murder was committed nearly 24 hours earlier.
     Defendant’s failure to show the apparent exculpatory value of a blood sample
at the time of his arrest also bears on the issue of whether the police acted in bad
faith. “[U]nless a criminal defendant can show bad faith on the part of the police,
failure to preserve potentially useful evidence does not constitute a denial of due
process of law.” (Arizona v. Youngblood, supra, 488 U.S. at p. 58.) Because
“[t]he presence or absence of bad faith by the police . . . must necessarily turn on
the police’s knowledge of the exculpatory value of the evidence at the time it was
lost or destroyed” (Id. at pp. 56-57, fn. *), defendant has failed to establish bad
faith in this case.
     We conclude substantial evidence supported the trial court’s denial of the
Trombetta motion.




                                          28
       E. Stun Belt during Trial
     Over defendant’s objections, the trial court ordered that he be restrained with
a REACT electronic stun belt for the duration of the trial.17 On appeal, defendant
contends the trial court abused its discretion in ordering the use of the stun belt,
and that his constitutional rights were violated by the ruling. We find these
contentions meritless.

           1. Background
     On August 29, 1996, before jury selection began, the prosecutor first brought
up the issue of defendant’s wearing leg restraints. In support of his request for
shackling, the prosecutor cited defendant’s assault on codefendant Gallegos in a
holding cell on September 8, 1995, and defendant’s possession of a homemade
stabbing device in his cell on July 26, 1996. The prosecutor also mentioned that
Varela had attacked and punched defendant in the face at the jail on March 5,
1995. The prosecutor raised as a courtroom security concern the animosity that
existed between defendant and Varela because defendant’s implication of Varela
led to Varela’s arrest in this case. The trial court declined to order restraints based
on the jail incidents because defendant had done nothing in the courtroom to
suggest an intent to act violently or to escape. It did request that additional
deputies be assigned to the courtroom, and ordered that defendant and the cells in
which he was held be searched before he entered the courtroom. The court said it
would reconsider its ruling if new security concerns arose.



17“REACT” stands for “Remote Electronically Activated Control Technology.”
(People v. Mar (2002) 28 Cal.4th 1201, 1214 (Mar).) A stun belt is worn
underneath a prisoner’s clothing, and, if activated by a remote transmitter, can
deliver a brief high-voltage electric shock. (People v. Lomax (2010) 49 Cal.4th
530, 560, fn. 8.)



                                          29
     Less than a month later, the trial court revisited the issue of restraints based
on concerns expressed by Deputy Sheriff Kathy Fitzpatrick, a courtroom bailiff.
In response, the prosecutor asked the court to order that defendant be restrained by
means not visible to the jury, either with a leg brace or an electric stun belt.
     At a formal hearing on the request, Deputy Fitzpatrick testified she had been
a deputy sheriff for 10 years and had been assigned to court services for about a
month. Based on incident reports from the jail, she provided details of defendant’s
assault on Gallegos and the discovery of the toothbrush with attached razorblades
in defendant’s cell. She testified to an incident a week earlier in which a deputy
discovered a handmade “shank” in defendant’s one-person cell. Fitzpatrick also
expressed security concerns based on her experience with defendant in the
courtroom. Fitzpatrick testified the court reporter told her that defendant
“watches” her move around the courtroom and “studies” her gun as she moves,
and that defendant “looks at” the guns of the other bailiffs when they answer the
telephone or move past him. Fitzpatrick began to watch defendant, and noticed he
was looking at the gun of a bailiff, Deputy Dennis Young.18 Fitzpatrick explained
that defendant was sitting in very close proximity to the desk at which the three
court bailiffs would be sitting or standing by, and that he was also close to the
court clerk and the judge. She was concerned “about a lunge towards someone or
somebody’s weapon.” She believed that “the react belt would be the most
appropriate,” because it was her understanding that “with a leg brace . . . he could
still make a lunge.”

18     During cross-examination, Deputy Fitzpatrick testified defendant would
stare when attractive women came into the courtroom, and it was stipulated
Fitzpatrick was an attractive woman. Defendant implies this was the only reason
he was watching her. However, defendant fails to address the testimony that he
also was observed staring at a male bailiff.



                                          30
     Another court bailiff, Deputy Young, testified he believed defendant should
be restrained because of the type of crime alleged and the incidents at the jail.
Deputy Young had no direct experience with electronic stun belts, but believed a
stun belt would be the most effective form of restraint.
     At the same hearing, Deputy Armando Tapia displayed a REACT electronic
stun belt and described how it worked. He was aware of three defendants who
previously had worn the belt in Riverside County; in one case, the belt
accidentally had been activated.
     Defense counsel objected to the use of the belt, contending the prosecution
had not shown a need for it because defendant always had been cooperative with
court staff. Based on his experience with stun belts, counsel expressed concern
jurors would notice its bulk under defendant’s clothing and would focus even
more attention on defendant, who already stood out as the only defendant facing
the death penalty.
     The court concluded the prosecution had shown a manifest need for the belt
based on defendant’s past and current threats, his acts of violence against his
codefendants, his actions involving weapons, and his other conduct described at
the hearing. It found a real potential that violence would occur, that the restraint
was necessary to minimize the likelihood of violence, and that the belt would be
unobtrusive and not visible to jurors. It ordered that the belt be used at all of
defendant’s future court appearances, but said it would revisit this ruling if
additional evidence were presented during trial concerning the need for additional
restraints or the inappropriateness of the ordered restraint.
     During defendant’s motion for new trial after the jury verdicts, defense
counsel submitted the transcript of an interview with Alternate Juror No. 3, who
eventually sat as a deliberating juror at the penalty phase. One set of questions in
the interview had involved court security. When asked by trial counsel whether

                                          31
anything about security in the courtroom attracted his attention, the alternate juror
said “it looked like [defendant] was wearing some kind of belt” and that “it looked
like” the bailiff seated behind defendant “had a box” “maybe” “with a button.”
Alternate Juror No. 3 stated that “still to this day” he did not know what it was,
and denied making any reference to these observations during jury deliberations.19

           2. Analysis
     “Under California law, ‘a defendant cannot be subjected to physical restraints
of any kind in the courtroom while in the jury’s presence, unless there is a
showing of a manifest need for such restraints.’ [Citation.] Similarly, the federal
‘Constitution forbids the use of visible shackles . . . unless that use is “justified by
an essential state interest” — such as the interest in courtroom security — specific
to the defendant on trial.’ [Citation.] We have held that these principles also
apply to the use of an electronic ‘stun belt,’ even if this device is not visible to the
jury. [Citation.]” (People v. Lomax, supra, 49 Cal.4th at p. 559.)
     “In deciding whether restraints are justified, the trial court may ‘take into
account the factors that courts have traditionally relied on in gauging potential
security problems and the risk of escape at trial.’ [Citation.] These factors include
evidence establishing that a defendant poses a safety risk, a flight risk, or is likely
to disrupt the proceedings or otherwise engage in nonconforming behavior.’
[Citations.] If the record establishes restraints are necessary, a trial court should
select the least obtrusive method that will be effective under the circumstances.


19     As discussed, post at pages 105-107, defendant’s new trial motion was
based on the claim that Alternate Juror No. 3 committed misconduct by consulting
an elder in his church about the church’s views on capital punishment. The
subject of this juror’s possible perception that defendant was wearing a stun belt
was not raised in the briefing on the motion for new trial or discussed during the
related hearing.



                                           32
[Citation.]” (People v. Gamache (2010) 48 Cal.4th 347, 367.) “Although the
court need not hold a formal hearing before imposing restraints, ‘the record must
show the court based its determination on facts, not rumor and innuendo.’ ”
(People v. Lomax, supra, 49 Cal.4th at p. 559.) “The court’s shackling decision
‘cannot be successfully challenged on review except on a showing of a manifest
abuse of discretion.’ ” (People v. Sheldon (1989) 48 Cal.3d 935, 945.)
     We conclude the trial court did not abuse its discretion in ordering the use of
a restraint in this case. It held an extensive hearing at which evidence was
presented that defendant posed a safety risk based on incidents in jail and based on
his studying the guns of the courtroom bailiffs. The court’s finding of a manifest
need for some restraint was adequately supported.
     We next consider defendant’s contention that the trial court did not consider
the “least obtrusive or restrictive restraint that effectively [would] serve the
specified security purposes.” (Mar, supra, 28 Cal.4th at p. 1226.) He claims the
court should have considered leg shackles instead of a stun belt, and that its failure
to do so prejudiced him because fear of being shocked by the belt caused him to
restrain himself and appear affectless. Defendant points out that, at the penalty
phase, the prosecutor mentioned defendant’s lack of affect and argued to the jury
that it showed defendant lacked remorse for his crime.
     In Mar, we recognized the invisibility of a stun belt does not make it
presumptively the best choice of restraint in all situations, and we directed trial
courts to also consider the possible psychological impact of a stun belt on a
defendant’s participation at trial. (Mar, supra, 28 Cal.4th at pp. 1226-1227.) In
that case, the trial court denied the defendant’s request to remove his stun belt
when he testified, even though he asserted the belt made him anxious and unable
to concentrate. (Id. at p. 1224.) We noted that the impact of the stun belt on the
defendant’s demeanor was particularly important because the case largely turned

                                          33
on his credibility. (Ibid.) We concluded the trial court had failed to make a proper
finding of manifest need for the stun belt, and that its use constituted prejudicial
error because of the relative closeness of the evidence, the importance of the
defendant’s demeanor while testifying, and the likelihood the belt had some effect
on that demeanor. (Id. at pp. 1222, 1225.) Defendant contends we likewise
should find prejudicial error in his case.
     Our instructions in Mar to trial courts to consider the psychological impact of
stun belts operate prospectively only. They therefore do not apply to defendant’s
trial, which occurred six years before Mar. (People v. Gamache, supra, 48 Cal.4th
at p. 367, fn. 7.) Furthermore, here, the trial court heard testimony that provided a
basis for a finding of manifest need for a stun belt, namely, Deputy Fitzpatrick’s
testimony regarding her fear that defendant might lunge for a bailiff’s gun and her
belief that leg braces would be less effective in preventing such conduct than a
stun belt.
     Finally, assuming for the sake of argument that the trial court did not
adequately consider the psychological impact of a stun belt on defendant, this case
is distinguishable from Mar because defendant did not testify. Defendant
contends the concerns for the psychological impact on a testifying defendant that
Mar discussed are relevant to him because “a capital defendant’s demeanor is
crucial to the jury’s penalty determination even if the defendant never takes the
stand to testify.” However, his attempt to attribute his purportedly affectless facial
expression to wearing the stun belt fails. It is not self-evident that a defendant’s
fear or concern about being shocked by the stun belt would cause a defendant to
have an affectless expression, and the defense never stated or suggested that the
threat of electric shock affected defendant’s mental state. Even assuming it could
have such an effect, defendant acknowledges that he showed emotion during trial
when his mother testified at the penalty phase. His ability to show emotion on that

                                             34
occasion undercuts his argument that the mere presence of the stun belt prevented
him from showing any emotion during other portions of the trial.
     On the issue of prejudice, defendant next contends his constitutional rights
were violated because at least one juror noticed the stun belt. However, Alternate
Juror No. 3 expressed only suspicions about the presence of a belt, rather than a
firm conviction, and he stated that he never shared his suspicions about the belt
with his fellow jurors. Defendant fails to establish prejudice on this record.
     Finally, defendant claims that, even if evidence supported the use of the stun
belt during the guilt phase, the situation had changed by the penalty phase. He
contends the trial court should have revisited the issue and ordered the belt
removed once his codefendants were no longer present, especially in light of how
crucial defendant’s demeanor was during the penalty phase.
     Defendant presents no authority that the trial court had a sua sponte duty to
revisit the issue of restraints. If defendant believed the circumstances supporting
use of the belt had changed at the penalty phase, he should have so advised the
trial court. Because he did not, he has forfeited this claim. (People v. Duran
(1976) 16 Cal.3d 282, 289.) Defendant contends he should be excused for not
raising the issue at the penalty phase because the court’s ruling on restraints made
reraising the issue futile. However, because the trial court expressly had indicated
its willingness to revisit its ruling on restraints in light of any new developments,
we conclude defense counsel was not excused from having to renew the issue at
the penalty phase in order to preserve it for appeal.
                           III. JURY SELECTION ISSUES

       A. Asserted Witt Error
     Defendant contends the trial court erred in granting the prosecutor’s for-
cause challenges to three prospective jurors. A prospective juror may be excused



                                          35
for cause based on his or her views of capital punishment 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.’ ” (Uttecht v. Brown (2007)
551 U.S. 1, 7, quoting Wainwright v. Witt (1985) 469 U.S. 412, 424.) Applying
Witt, we have stated that “ ‘ “ ‘[a] prospective juror is properly excluded if he or
she is unable to conscientiously consider all of the sentencing alternatives,
including the death penalty where appropriate.’ [Citation.]” [Citation.] In
addition, “ ‘[o]n appeal, we will uphold the trial court’s ruling if it is fairly
supported by the record, accepting as binding the trial court’s determination as to
the prospective juror’s true state of mind when the prospective juror has made
statements that are conflicting or ambiguous.’ [Citations.]” ’ ” (People v. Blair
(2005) 36 Cal.4th 686, 743 (Blair).) For the reasons stated below, we conclude
the trial court did not err in granting the three challenges for cause in question.
     Prospective Juror S.G.
     Defense counsel began voir dire by asking whether S.G. could vote for either
life without parole or the death penalty. He answered “Absolutely.” The
prosecutor then asked about S.G.’s attitude towards the death penalty. S.G. said
he “was for the most part” against it “philosophically and morally,” that it was
against his religion. Given his views, S.G. agreed it would be very difficult for
him to realistically consider the death penalty as an option. He agreed that, if he
got to the penalty stage, it was more than likely he would vote for life without
parole, his decision would be based on his religious and moral beliefs, and it
would not matter what the evidence was.
     Defense counsel then asked whether S.G. would follow instructions to
consider both options. S.G. said he would, but added, “[M]y religious and moral
beliefs state that everyone basically deserves an opportunity for reform. And so
given that situation, I would say that it would be extremely difficult for me to

                                           36
impose the death penalty.” Asked whether he would consider a sentence of death
if evidence was presented that a defendant had had past opportunities to reform
but remained a continuing threat to the community, S.G. answered “perhaps,” but
said the mere fact someone failed to take advantage of a past opportunity to reform
did not foreclose future reform. He said it was against his moral standards to put
someone to death who eventually might reform, even if it took 20 years in prison.
Asked whether he nonetheless was open to the possibility of imposing the death
penalty, S.G. said there was “a small possibility.”
     The prosecutor challenged S.G. for cause on the ground that his religious and
moral views on the death penalty would impair his ability to consider imposing it.
Defense counsel argued S.G. had indicated there was a possibility he would vote
for the death penalty. In granting the challenge, the trial court stated it did not
believe S.G. was honest when he said it was possible he could impose the death
penalty, and concluded S.G.’s religious and moral views would substantially
impair his ability to perform his duties as a juror.
     Defendant contends the trial court erred in dismissing S.G. because, although
S.G. expressed his personal opposition to the death penalty, he consistently said he
nonetheless could consider voting for death. We, however, find S.G.’s statements
concerning his ability to impose the death penalty conflicting and ambiguous. We
therefore accept the trial court’s determination as to S.G.’s state of mind, and,
based on our review of the record, uphold the trial court’s ruling as fairly
supported. (Blair, supra, 36 Cal.4th at p. 743.)




                                          37
     Prospective Juror C.J.
     In his questionnaire, C.J. rated himself as a 2 on a 10-point scale, which
meant he was against the death penalty, although not “strongly” so.20 C.J. said he
opposed the death penalty because he thought it served no purpose, noting that
criminals never were executed and remained on death row for 40 years. In
response to the prosecutor’s questions, C.J. said he would automatically give life
without the possibility of parole and would never impose the death penalty.
     In response to questioning by defense counsel, C.J. stated he could put aside
his personal views and listen to the court’s instructions regarding sentencing
options. Asked whether he could be persuaded by other jurors that a death
sentence would be right under the law, he answered: “It would be kind of hard.
Yes.” Asked whether he could agree with other jurors that death was the
appropriate penalty, he said he would have to think about it, and it would be
against his personal views. Pressed by defense counsel as to whether he could
nonetheless vote for death if it was correct under the law, he answered yes.
     When the prosecutor asked whether C.J. could individually and voluntarily
agree to impose a sentence of death, C.J. stated: “I’d pray on it. If I have to come
to that decision, that’s what I have to live with. I’d try to persuade them to life.”
Asked whether his opposition to the death penalty would impair his ability to be a
good juror, C.J. answered: “I could be a good juror. But come to the death
penalty, I just have to try to live with it. I mean, I don’t like it. It’s against my
morals. But if I have to break one of my morals, I just have to break one of them.”


20      We will refer to the jury questionnaire’s 1 to 10 scale, with 1 indicating
least in favor of the death penalty and 10 indicating most in favor of the death
penalty, throughout our discussion of the juror selection issues by simply reporting
the number the prospective juror marked.



                                           38
     The prosecutor challenged C.J. for cause. Defense counsel countered that
C.J. had said he would set aside his moral principles to return a death verdict if
appropriate. The trial court granted the challenge for cause, stating, “I don’t
believe he was being particularly candid. I noticed he tried to evade certain of the
questions.” It found C.J.’s views on capital punishment, “religious and otherwise,
would substantially impair his performance of his duties as a juror in this case in
accordance with the instructions and his oath.”
     Defendant contends the trial court erred in dismissing C.J. because, while
C.J.’s responses may have lacked eloquence, he understood the difference between
his personal views and his duties as a juror and said he could perform those duties.
C.J. asserted conflicting views given his initial response that he would never
impose the death penalty. Although C.J. eventually said he could vote for death
by “break[ing] one of [his] morals,” the court found this statement insincere. We
accept the trial court’s determination as to C.J.’s state of mind given the
conflicting or ambiguous statements, and we uphold the trial court’s ruling as
fairly supported by the record. (Blair, supra, 36 Cal.4th at p. 743.)
     Prospective Juror O.G.
     O.G. had mixed emotions on the death penalty. While she thought it might
be appropriate in some cases, she “was not sure that she was the one to say that
someone should die.” In response to questions by the prosecutor, she affirmed she
would always vote for life without parole, regardless of the evidence.
     Defense counsel sought to rehabilitate O.G. He reminded her she previously
had indicated she would not automatically vote for life without parole, and had
indicated her willingness to put aside her personal feelings and do her duty as a
juror, including imposing the death penalty in an appropriate case. O.G. said she
had had a change of heart concerning imposition of the death penalty: “I couldn’t
talk about this with my pastor or anybody like that. . . . So I prayed to the Lord

                                          39
myself. And I am convinced that I should not be the one to say someone should
die.”
        Defense counsel told O.G. imposing a death sentence was something any
juror should find difficult, but he wanted to know whether she thought she could
do it. O.G. responded, “[W]hen it comes right to it, I don’t know if I could.”
Defense counsel asked what O.G. would do if the evidence pointed to the death
penalty, the other 11 jurors thought the death penalty would be the appropriate
penalty, and she agreed with them. She answered, “Honestly, . . . I don’t know if I
could do that. But I always pray for answers. That’s where I would be at that
moment.”
        The prosecutor challenged O.G. for cause. Defense counsel argued that,
while O.G. was sensitive and personally reluctant to impose the death penalty, her
views did not prohibit her from doing so. The trial court granted the challenge,
stating: “I watched her very closely, and I think her statement that she would not
impose the death penalty under any circumstances is probably closer to the truth.”
Based on our review of the record, we uphold the trial court’s ruling as fairly
supported, and we accept the trial court’s determination as to O.G.’s state of mind
given her conflicting or ambiguous statements. (Blair, supra, 36 Cal.4th at p.
743.)

         B. Asserted Batson/Wheeler Error
        Trial counsel brought three motions under Batson v. Kentucky (1986) 476
U.S. 79, 84-89 and People v. Wheeler (1978) 22 Cal.3d 258, 276-277
(Batson/Wheeler). Two challenged the prosecutor’s use of peremptory challenges
against six African-American prospective jurors, and the third challenged his use
of peremptory challenges against five Hispanic prospective jurors. The trial court
denied all three. Defendant renews the motions here, and, for some of the



                                         40
challenged prospective jurors, he engages in comparative juror analysis arguments
for the first time on appeal.
     The three-stage procedure of a Batson/Wheeler motion is familiar. “First, the
defendant must make out a prima facie case ‘by showing that the totality of the
relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.]
Second, once the defendant has made out a prima facie case, the ‘burden shifts to
the State to explain adequately the racial exclusion’ by offering permissible race-
neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral
explanation is tendered, the trial court must then decide . . . whether the opponent
of the strike has proved purposeful racial discrimination.’ ” (Johnson v. California
(2005) 545 U.S. 162, 168, fn. omitted.)
     With one exception, Prospective Juror C.P., who is discussed, post, at pages
47 to 50, the trial court found that defendant had stated a prima facie case for the
challenged prospective jurors. For a third stage Batson/Wheeler inquiry, “[r]eview
of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only
whether substantial evidence supports its conclusions.” (People v. Lenix (2008)
44 Cal.4th 602, 613 (Lenix).) The same standard applies to a comparative juror
analysis. (Id. at p. 627.) “We presume that a prosecutor uses peremptory
challenges in a constitutional manner and give great deference to the trial court’s
ability to distinguish bona fide reasons from sham excuses.” (People v. Burgener
(2003) 29 Cal.4th 833, 864.) As long “as the trial court makes a sincere and
reasoned effort to evaluate the nondiscriminatory justifications offered, its
conclusions are entitled to deference on appeal.” (Ibid.)
     For the reasons that follow, we conclude substantial evidence supports the
trial court’s denial of each of defendant’s Batson/Wheeler motions. (Lenix, supra,
44 Cal.4th at pp. 613, 627.)



                                           41
           1. The African-American Prospective Jurors
     Defense counsel made a Batson/Wheeler motion regarding the prosecutor’s
peremptory challenge against Prospective Juror K.P., who was African-American.
The trial court denied the motion, finding no prima facie case had been made. The
next day, defense counsel made a second Batson/Wheeler motion following the
prosecutor’s peremptory challenges against four African-American jurors: D.M.,
W.J., I.T., and L.W. The court found a prima facie case had been established and
extended its finding to include Prospective Juror K.P. After hearing the prosecutor
state his reasons for excluding these jurors, the trial court remarked, “In evaluating
those reasons, it’s completely understandable why he would have asked each of
these jurors to be excused by using his peremptory challenges.” The trial court
found that there were “honest race-neutral reasons for excusing each of these
jurors,” and denied the Batson/Wheeler motion.
     Later that day, defense counsel brought a Batson/Wheeler motion regarding
the prosecutor’s peremptory challenge against Prospective Juror P.K., another
African-American. The trial court assumed a prima facie case existed for P.K. as
well. After hearing the prosecutor’s reasons for excluding P.K., the trial court
found that the prosecutor was “candid and honest” in stating a race-neutral reason,
and denied the motions.
     Before addressing the individual prospective jurors at issue, we observe that
at the time the jury was empanelled, three African-Americans were seated on the
jury. The presence of these jurors on the panel is one indication of the
prosecutor’s good faith in exercising his peremptory challenges to exclude the
African-American prospective jurors in question. (People v. Lewis, supra, 43
Cal.4th p. 480.)




                                         42
     Prospective Juror K.P.
     The prosecutor explained his peremptory challenge of K.P. as follows:
“[B]oth she and her husband had been through the justice system and had been
convicted of crimes. Her husband is involved in narcotics and spousal abuse. I
believe she indicates that he is currently addicted to drugs and alcohol.”
     Defendant does not dispute the prosecutor’s stated reasons are supported by
answers in K.P.’s questionnaire. Instead, he contends a comparative juror analysis
undermines the genuineness of those grounds because K.P. was not the only
member of the venire to report problems with law enforcement. Defendant
describes the following background information for the non-African-American
sitting jurors.21 Three had a husband, father, or brother who had been convicted
of driving under the influence. One had used drugs in her youth, her sister had a
drug problem, and her husband had a drinking problem although he had been
sober for two years. One had a stepson with drug problems that had resulted in
juvenile court intervention and a drug program. One juror had been arrested and
charged with domestic violence, although the charges later were dropped.
     K.P.’s background is distinguishable from the jurors with whom she is
compared because of her conviction for the crime of theft and by the apparent
severity and ongoing nature of her husband’s drug addiction. We conclude
substantial evidence supports the trial court’s denial of the motion as to K.P.


21     Defendant acknowledges the juror questionnaires do not contain
information about the race or ethnicity of prospective jurors. He bases his
inference that various seated jurors were not African-American on defense
counsel’s statement that, at the time the prosecutor accepted the panel, he had
excused five out of seven African American jurors who were in the jury box.
Based on defendant’s identification of the remaining two jurors as African
American, he concludes the remaining seated jurors were not African-American.



                                         43
     Prospective Juror D.M.
     The prosecutor explained he excused D.M. because “he is against the death
penalty,” and had written in his questionnaire that he always had been against the
death penalty “because rich people very seldom are ever put to death. However,
some cases are so heinous, it needs to be imposed.” The prosecutor noted D.M.
had added that he opposed the death penalty because “it is unfairly applied.” The
prosecutor said he was concerned about D.M.’s views because he knew what the
evidence would show about defendant’s background.
     Defendant contends the prosecutor’s explanation was pretextual because
some non-African-American jurors whom he did not challenge voiced less support
for capital punishment than D.M. D.M. rated himself 6 on the 10-point scale.
Defendant notes three non-African-American prospective jurors rated themselves
5 on the 10-point scale, and he contends one could interpret the remarks of at least
one of them as reflecting more ambivalence about the death penalty than D.M. had
voiced.
     Defendant does not dispute that, unlike D.M., none of the jurors to whom he
compares D.M. expressed their ambivalence in the terms of a specific concern that
the death penalty was seldom used against the wealthy. Instead, he contends the
prosecutor had no reason to be concerned about D.M.’s specific views on the
death penalty because there was no evidence of poverty or deprivation in
defendant’s family background. We disagree. However one might characterize
defendant’s background, it was not one of wealth. The prosecutor’s concern about
D.M.’s specific view on the application of the death penalty distinguishes D.M.
from those other jurors. Substantial evidence supports the trial court’s denial of
the motion as to D.M.




                                         44
     Prospective Juror W.J.
     The prosecutor explained he had challenged W.J. primarily because he did
not appear to be adequately educated to comprehend the complicated jury
instructions that would be used in the case. He noted W.J. had misspelled many
words in his questionnaire, including “honest,” “offense,” and “misdemeanor,”
and that W.J. had been convicted of a misdemeanor for possession of stolen
property. The prosecutor expressed concern that W.J. would not fairly and
effectively evaluate the evidence. The trial court concurred in the prosecutor’s
assessment, stating that W.J. had not seemed to comprehend fairly simple
questions during voir dire by Hawkins’s trial counsel.
     Defendant contends W.J.’s educational level was comparable to other jurors
the prosecutor accepted. W.J. had completed high school and taken some college
classes, whereas one prospective juror had no college experience and two others
had taken college classes but received no degrees. Defendant notes the
prospective juror who lacked college experience also made numerous spelling
errors in his questionnaire. But defendant fails to show that these other jurors also
showed difficulty comprehending voir dire questions or had been convicted of a
misdemeanor. Substantial evidence supports the trial court’s denial of the motion
as to W.J.
     Prospective Juror I.T.
     I.T. had a brother incarcerated at San Quentin for murder, but she said his
experience would not influence her decision-making. She rated herself a 2 on the
scale of 1 to 10. She believed her Christian faith did not favor capital punishment,
but stated she would follow the law rather than her personal agenda, and that she
could impose the death penalty for a single special circumstance murder.
     The prosecutor explained he had challenged I.T. because, although she
indicated she would consider the death penalty, he did not believe she could do so.

                                         45
He pointed to her statements in her questionnaire that “God gave life, and only
God should take it away,” and “I am a Christian and study the Bible, and I don’t
remember reading that God gave another human being the authority to make a
decision to kill another.” The reluctance of a juror to impose the death penalty
based on religious belief is a permissible ground for the exercise of a peremptory
challenge. (People v. Catlin (2001) 26 Cal.4th 81, 118-119.) Defendant
acknowledges that “standing alone, the prosecutor’s challenge to I.T. might not be
remarkable.” We conclude substantial evidence supports the trial court’s denial of
the motion as to I.T.
     Prospective Juror L.W.
     The prosecutor explained he had challenged L.W. because his questionnaire
indicated he was widowed and had retired from the military in 1974, but there was
“a complete void as to what he’s been doing since 1974.” The prosecutor was
concerned L.W. wrote he had no opinion on the death penalty, but also wrote that
it served no purpose. The prosecutor questioned whether a juror who thought the
death penalty served no purpose would seriously consider the People’s arguments
in its favor. He was also concerned L.W. believed O.J. Simpson properly was
acquitted because officers in that case “took the Fifth Amendment.”
     Claiming the prosecutor’s stated reasons were pretextual, defendant points to
the fact L.W. rated himself as 5 on the 10-point scale. Defendant incorporates the
same comparative argument he made in regard to D.M., namely, that other
prospective jurors not challenged by the prosecutor gave themselves the same
neutral rating. Defendant presents his comparative juror arguments at a high level
of generality, ignoring the prosecutor’s stated concern that L.M believed that the
death penalty served no purpose. Such a belief could a cause a prosecutor concern
despite L.M.’s self-rating as neutral on the death penalty. The prosecutor’s
additional concern that he did not have a good sense of who L.W. was finds

                                         46
support in the record in light of L.M.’s failure to provide any information after
1974. Defendant’s argument to the contrary, the fact that the prosecutor could
have asked more questions to illuminate L.W.’s background does not cause us to
regard the prosecutor’s stated reasons as pretextual. Substantial evidence supports
the trial court’s denial of the motion as to L.W.
     Prospective Juror P.K.
     The prosecutor explained he had challenged P.K. because of his opposition to
the death penalty, noting that in his questionnaire P.K. had written he was opposed
to the death penalty due to its application and history in the United States, and had
rated himself a 2 on the 10-point scale. Opposition to the death penalty is a
permissible, race-neutral reason for a peremptory challenge. (People v.
McDermott (2002) 28 Cal.4th 946, 970-971.) In asserting the prosecutor’s stated
reason for P.K.’s excusal was pretextual, defendant simply refers to his earlier
argument concerning Prospective Juror I.T, and he again acknowledges the
challenge standing alone would be unremarkable. We conclude substantial
evidence supports the trial court’s denial of the motion as to P.K.

           2. The Hispanic Prospective Jurors
       After the trial court denied defendant’s Batson/Wheeler motions concerning
African-American jurors, defendant made two similar motions concerning a total
of five Hispanic prospective jurors: L.C., D.Q., C.P., D.L., and G.H.22 After
reviewing the questionnaires, the trial court observed that there were several
evident reasons for excusing C.P. and D.Q., but found that a prima facie case had


22    Defense counsel conceded that, in the case of an additional Hispanic
prospective juror, R., there was an apparent race-neutral reason for the
prosecutor’s peremptory challenge, and excluded R. from his motion.




                                         47
been made, at least as to L.C., D.L., and G.H. After hearing the prosecutor state
his reasons for challenging these prospective jurors, the court found they were
race-neutral and “honestly stated,” and denied the Batson/Wheeler motions. We
find substantial evidence supports the trial court’s rulings.
       Prospective Juror C.P.
       The prosecutor was not required to state his reasons for his peremptory
challenge of C.P. because “[j]ustifications for the challenged peremptories need
only be given if the court rules that a prima facie case does exist.” (People v.
Fuentes (1991) 54 Cal.3d 707, 717, fn. 5.) Defendant, however, contends the trial
court erred because, in the course of finding the defense had made no prima facie
case as to C.P., the court remarked on an apparent race-neutral reason for the
challenge and thereby improperly assisted the prosecutor by supplying its own
reason for excusing C.P.
     After defense counsel made his first Batson/Wheeler motion regarding four
Hispanic prospective jurors, the trial court stated that it had reviewed the
questionnaires of C.P and D.Q., and “[t]here very well may be a good reason for
the district attorney to dismiss them.” It then said, “As to [L.C.] and [D.L], I don’t
know what the reasons would be. I do believe there’s a prima facie case shown
sufficient to have the district attorney explain his reasons for the dismissal of these
jurors.” By “these jurors,” the court apparently referred only to L.C. and D.L, and
defendant has adopted this view in his summary of the procedural facts. The court
discussed the apparent race-neutral reasons the prosecutor may have had for
dismissing C.P. and D.Q., observing that C.P. had written that he was “generally
against the death penalty” but “believe[d] in special cases it’s proper.” The court
said this comment “shows somewhat of a reluctance to apply the death penalty, as
he indicated during the examination for cause.” As to D.Q., the trial court
observed she had answered a question about good or bad experiences with law

                                          48
enforcement by writing: “A police report regarding the molestation of my son was
closed by Riverside P.D. because I refused to bring my 4-year-old son down to the
police station for questioning.” The court observed that this comment indicated a
bias against police, which would be a reason for the use of a peremptory
challenge.
     Although the trial court appeared to rule a prima facie case had not been
made as to C.P. or D.Q., the prosecutor nonetheless stated his reasons as to D.Q.
The prosecutor then gave reasons for excusing L.C. and D.L., for whom the court
expressly found that a prima facie case had been made. Finally, the court asked
the prosecutor: “[D]id you speak to [C.P.], I believe you did. Is that correct?” To
which counsel for defendant answered: “Yes.” The trial court’s late question
about C.P. raises a possible ambiguity about whether it had found no prima facie
case as to C.P. However, because the trial court initially had appeared to find no
prima facie case as to C.P., the burden was on defendant to resolve this ambiguity.
Wheeler requires that the moving party make as complete a record as feasible, and
the general rules of appellate review require appellants to demonstrate error.
(People v. Morris (2003) 107 Cal.App.4th 402, 408.) Here, by incorrectly stating
that the prosecutor had addressed C.P., counsel for defendant foreclosed any
elaboration of why the court mentioned C.P. at this point. 23 Defendant therefore
failed to make a record that the trial court had ruled a prima facie case existed as
to C.P. Accordingly, we treat the trial court’s ruling as to C.P. as a first stage
denial.



23     A trial court occasionally will find that no prima facie case has been made
but will ask the prosecutor to state reasons out of an abundance of caution. (See
People v. Howard (2008) 42 Cal.4th 1000, 1018 (Howard).)



                                          49
     Citing our comment that “ordinarily the court should not attempt to bolster a
prosecutor’s legally insufficient reasons with new or additional factors drawn from
the record” (People v. Ervin (2000) 22 Cal.4th 48, 77), defendant contends the
trial court improperly assisted the prosecutor by supplying its own reasons for
excusing C.P. In Ervin, it is not clear whether the trial court stated additional
factors before or after the prosecutor stated his reasons. In any event, there is no
question here of the trial court’s bolstering the prosecutor’s reasons for excusing
C.P. because the prosecutor never stated his reasons for doing so.
     We regard the trial court’s discussion of possible reasons for the peremptory
challenges of C.P and D.Q. as part of its ruling that a prima facie case had not
been made as to them. When reviewing the denial of a first stage Batson/Wheeler
inquiry, we sustain the trial court’s ruling if, upon our independent review of the
record, we conclude the totality of the relevant facts does not give rise to an
inference of discriminatory purpose. (Howard, supra, 42 Cal.4th at p. 1018.)
     The record reveals that C.P. was reluctant to impose the death penalty. He
rated himself a 2 on the 10-point scale. As the trial court observed, when asked to
describe his feelings about the death penalty, C.P. wrote: “I am generally against
the death penalty. But I believe in special cases it is the proper penalty.” When
the prosecutor asked whether C.P. would consider the death penalty appropriate in
a case involving the murder of one person and a defendant who did not have a
significant prior criminal record, C.P. stated it depended on the circumstances of
the case, but “the one I can think of that I’m not against is like the guy who
abducted Polly Klaas.” Because C.P.’s comments suggested he was reluctant to
impose the death penalty for anything other than a case as notorious as the murder
of Polly Klaas, we conclude the totality of relevant facts does not give rise to an
inference of discriminatory purpose in the prosecutor’s peremptory challenge of
C.P. (Howard, supra, 42 Cal.4th at p. 1018.)

                                          50
     Prospective Juror D.Q.
     Although the trial court found no prima facie case as to D.Q., the prosecutor
went on to discuss his reasons for his peremptory challenge of her. “When the
trial court expressly states that it does not believe a prima facie case has been
made, and then invites the prosecutor to justify its challenges for the record on
appeal, the question whether a prima facie case has been made is not mooted, nor
is a finding of a prima facie showing implied.” (Howard, supra, 42 Cal.4th at p.
1018.) However, out of an abundance of caution, and because the prosecutor
proffered race-neutral reasons that the trial court ruled upon, we will analyze D.Q.
as a third stage Batson/Wheeler denial. (See People v. Riccardi (2012) 54 Cal.4th
758, 786-787; People v. Mills (2010) 48 Cal.4th 158, 174.)
     Preliminarily, the prosecutor stated he did not believe D.Q. was Hispanic.
But because the trial court assumed she was, the prosecutor presented reasons for
his challenge. He said he was concerned about D.Q.’s “ditzy” attitude and
demeanor in court, and that, from the way she interacted with other jurors, he felt
she was interested in “having a good time.” He was concerned D.Q.’s state of
mind would not mix well with the predominantly female composition of the jury.
The prosecutor also was concerned about D.Q.’s negative experience with law
enforcement. He was concerned that D.Q. believed a police detective had closed
an investigation of a molestation report D.Q. made concerning her son because he
had been unwilling to do the work to pursue the investigation, and that his
unwillingness had prevented the justice system from doing its job.
     Defendant contends the prosecutor’s stated reasons were pretextual because
D.Q. appeared to be a strong proponent of the death penalty based on her
questionnaire, including her rating herself an 8 on the 10-point scale. Defendant
does not present any comparative juror analysis arguments based on D.Q.’s
support of the death penalty. The prosecutor’s stated reasons were race neutral

                                          51
and were permissible bases for a peremptory challenge. (People v. Reynoso
(2003) 31 Cal.4th 903, 917 [peremptory challenge based on demeanor and body
language]; People v. Turner (1994) 8 Cal.4th 137, 171 [peremptory challenge
based on negative experience with law enforcement ].) Defendant complains the
trial court failed to make an independent finding that D.Q. actually exhibited the
demeanor attributed to her by the prosecution, but a trial court is not required “to
make explicit and detailed findings for the record in every instance in which the
court determines to credit a prosecutor’s demeanor-based reasons for exercising a
peremptory challenge.” (People v. Reynoso, supra, 31 Cal.4th at p. 929.) As in
Reynoso, the trial court here was fully apprised of the demeanor based reason,
which was neither contradicted by the record nor inherently absurd. (Ibid.)
     Defendant additionally contends the prosecutor’s reference to D.Q.’s
negative experience with law enforcement should be discounted because the trial
court had mentioned it, and had improperly bolstered the prosecutor’s statement of
reasons. As discussed above in relation to C.P., we reject defendant’s contention
that the trial court engaged in bolstering. In the case of D.Q.’s negative
experience with law enforcement, the prosecutor previously had raised the issue
with D.Q. during voir dire. This was not an issue the trial court raised for the first
time on its own to bolster the prosecutor’s statement of reasons. Substantial
evidence supports the trial court’s denial of the motion as to D.Q.
     Prospective Juror L.C.
     In explaining why he challenged L.C., the prosecutor acknowledged that, in
some respects, L.C. appeared to be an excellent juror for the prosecution. For
example, L.C. rated himself a 10 on the 10-point scale. The prosecutor then
expressed concern because L.C. was an elder in the Seventh Day Adventist
Church and had written that he considered life without parole in prison to be a
more severe penalty than the death penalty. This caused the prosecutor to question

                                          52
L.C.’s true attitude towards the death penalty. The prosecutor said he did not
question L.C. about his views on the death penalty in chambers because he did not
think it was necessary.
     We have upheld the exercise of peremptory challenges to prospective jurors
who, although not excusable for cause, have expressed reservations about the
death penalty. (People v. Turner, supra, 8 Cal.4th at p. 171.) Defendant contends
the prosecutor’s failure to question L.C. about his attitudes regarding the death
penalty shows the stated reason for the peremptory challenge was pretextual. We
disagree. While the prosecutor’s concern may not have risen to a level that
supported excusing L.C. for cause, it encompassed two race-neutral reasons
supported by the record, namely, that L.C. was an elder in his church and his
doubt that the death penalty was as severe a sentence as life without the possibility
of parole. Excusing prospective jurors who hold religious views that make it
difficult for them to impose the death penalty is a proper, nondiscriminatory
ground for a peremptory challenge. (People v. Cash (2002) 28 Cal.4th 703, 725.)
Substantial evidence supports the trial court’s denial of the motion as to L.C.
     Prospective Juror D.L.
     The prosecutor explained that D.L. appeared to have no opinions about
almost anything, an assessment that the trial court agreed was a “fairly accurate
depiction of his answers.” D.L. ranked himself 5 on the 10-point scale, and wrote
he was neither for nor against the death penalty, a comment that the trial court also
remarked upon. D.L. also wrote he had no feelings about, or did not care about,
several high profile criminal cases, including the O.J. Simpson case. The
prosecutor was concerned D.L. had no opinion on important issues and appeared
to be uninformed about them. The prosecutor also said he had concerns about
D.L.’s apparent lack of education, which was reflected in his misspelling of the
words “juror” and “trial.”

                                         53
     Defendant notes D.L. graduated from high school and his spelling was no
worse than that of many other jurors. He also contends D.L.’s lack of interest in
high-publicity criminal cases does not support the prosecutor’s stated concern that
D.L. lacked concern for important issues. Defendant compares D.L. to seated
jurors who expressed similar neutral self-ratings on the death penalty in their
questionnaire, and refers to his comparative juror arguments in connection with
D.M. However, defendant fails to show that these other jurors expressed the same
lack of opinions across several subject areas as is shown in D.L.’s questionnaire.
Substantial evidence supports the trial court’s denial of the motion as to D.L.
     Prospective Juror G.H.
     The prosecutor explained his main concern with G.H. was his level of
education. He noted that G.H.’s questionnaire had illegible writing and misspelled
words, including a misspelling of the word “manager,” a word that described his
current job. The prosecutor explained he wanted the jurors for this trial to be well-
educated because there would be complicated instructions. He asked that the court
take note that he had exercised many of his peremptory challenges to obtain an
intelligent jury. The trial court additionally observed that the prospective juror’s
name did not appear to be a Hispanic name.
     Defendant contends the record shows the prosecutor’s stated reasons were
pretextual because, other than his race, G.H. appeared to be a juror who would be
favorable to the prosecution. G.H.’s family was involved in law enforcement, and
G.H. rated himself 10 on the 10-point scale. Defendant points to another
prospective juror, D.H.M., who was not challenged by the prosecutor but whose
questionnaire contained some misspellings. While D.H.M.’s questionnaire did
contain some misspellings, G.H.’s questionnaire, by contrast, contained several
illegible and illiterate entries in addition to its many misspellings. We conclude
substantial evidence supports the trial court’s denial of the motion as to G.H.

                                         54
                              IV. GUILT PHASE ISSUES

       A. Gang Evidence Claims
     Defendant contends the trial court erred in admitting the gang evidence
presented at trial. Additionally, assuming certain gang evidence was admissible,
defendant claims the prosecution violated its discovery obligation by untimely
disclosing its gang expert witness, and that the trial court erred in denying the
defense a continuance to prepare for voir dire of the expert. Defendant also
contends the proffered gang testimony should have been excluded because the
gang expert witness was not qualified to testify. For the reasons discussed below,
we find no reversible error based on the admission of the gang expert’s testimony.

           1. Admission of Gang Evidence

               a. Background
     Defendant filed a motion to exclude any gang evidence under Evidence Code
section 352,24 and argued that the introduction of such evidence would violate his
state and federal constitutional rights. The prosecutor argued evidence of the
codefendants’ membership in the VBR gang was relevant to show the social
association between the codefendants before, during, and after the murder, and
that their association was relevant to the issue of aiding and abetting. The
prosecutor also argued gang evidence was necessary to explain the meaning of
defendant’s statement after the murder regarding his “earning a stripe.” Defendant
argued the codefendants’ association was not a contested issue because numerous


24 Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the
jury.”



                                          55
witnesses had identified them as being together on the night of the murder. The
trial court overruled the defense objections, but agreed to give appropriate limiting
instructions about the gang evidence. Later, after the hearing on Sergeant Beard’s
qualification as an expert witness, defendant unsuccessfully renewed his objection
to the admission of gang evidence.
     The prosecution presented its gang evidence through the testimony of
Sergeant Beard, who testified that VBR was a gang operating in 1994 on the south
side of Beaumont. He testified that two address books, one taken from the
residence of Hawkins and one taken from defendant’s residence, contained gang-
style lettering and lists of gang monikers. He described tattoos on defendant,
Hawkins, and Gallegos, including one on defendant reading “SUR XIII,” a tattoo
commonly associated with Hispanic street gangs in Southern California, and
another that read “E.S.C.,” which stood for East Side Colton.25 Over defendant’s
objection, Sergeant Beard testified a person could be “jumped” into a gang by
committing a crime for the group or by being beaten up. He testified Hawkins was
a VBR member and Gallegos was an “associate,” but neither defendant nor Varela
were members.
     At the end of Sergeant Beard’s testimony, the trial court instructed the jury
that “testimony relating to gang membership was admitted for the limited purpose
of showing, if believed, that there existed an association between two or more of
the defendants at the time of the alleged crimes. It cannot be considered for any
other purpose.”



25     Defense counsel argued defendant’s E.S.C. tattoo showed that, if defendant
had any connections to a gang, it was to one from his hometown of Colton, rather
than to a gang from Beaumont such as VBR.



                                         56
               b. Analysis
     While gang membership evidence does create a risk the jury will
impermissibly infer a defendant has a criminal disposition and is therefore guilty
of the offense charged (People v. Williams (1997) 16 Cal.4th 153, 193 (Williams)),
“nothing bars evidence of gang affiliation that is directly relevant to a material
issue.” (People v. Tuilaepa (1992) 4 Cal.4th 569, 588.)
     Here, the gang affiliation evidence was relevant to show the codefendants’
relationship with each other and that defendant and the codefendants were part of
the group that attacked and killed Walker. Defendant argues the evidence of
association was cumulative because other witnesses provided uncontradicted
testimony that the codefendants were together on the evening of the murder.
However, as defendant acknowledges, codefendant Hawkins tried to raise a doubt
about whether he left the party with the group that killed Walker and disposed of
his car. Furthermore, prosecution witness Hanvey was unable to identify
defendant or Gallegos in a photographic lineup as having been part of the group of
Hispanic men at Jay’s Market where the codefendants may have met Walker
before kidnapping him and going to the party. The gang affiliation evidence
therefore was highly relevant, and not cumulative, in proving the codefendants’
relationship with each other and their involvement in the charged crimes.
     Evidence of gang affiliation also served to explain defendant’s motive for
committing the crimes, particularly the murder. After the killing, defendant
bragged about “earning his stripes,” which suggests he intentionally killed Walker
to gain membership in a gang. Defendant contends the gang association evidence
was not particularly probative because only Hawkins was a VBR member and
Gallegos only was identified as an “associate.” However, because the evidence
suggests defendant may have committed the murder in order to gain membership




                                          57
in the gang, his lack of membership in VBR at the time of the murder does not
affect the probative value of the proffered evidence.
     We conclude the probative value of the gang evidence was not substantially
outweighed by the risk of undue prejudice. We have observed that, because gang
evidence may have a highly inflammatory impact on the jury, trial courts should
carefully scrutinize such evidence before admitting it. (Williams, supra, 16
Cal.4th at p. 193.) Here, the trial court weighed the probative value of the
evidence against its prejudicial impact, and reasonably concluded the evidence
should be admitted. “The admission of gang evidence over an Evidence Code
section 352 objection will not be disturbed on appeal unless the trial court’s
decision exceeds the bounds of reason. [Citation.]” ( People v. Olguin (1994) 31
Cal.App.4th 1355, 1369.) Because the gang evidence was highly probative in this
case, and the trial court gave a limiting instruction designed to lessen the risk of
undue prejudice, we cannot say the trial court’s decision to allow the gang
affiliation evidence exceeded the bounds of reason.

           2. Untimely Disclosure of Gang Expert

                a. Background
     On September 5, 1996, at the hearing on defendant’s motion to exclude gang
evidence from his trial, the trial court told the prosecutor he must use an expert
witness to present gang evidence, and it directed him to provide the defense with
information on his gang expert within the next four days. Defendant’s trial began
on September 13, 1996, but the defense did not receive information about the
proposed gang expert until the morning of November 4, 1996, well into the
presentation of the prosecutor’s case-in-chief. That same day, the trial court held
an Evidence Code section 402 hearing on the expert’s qualifications and the
admissibility of his testimony. When defendant’s counsel was offered the



                                          58
opportunity to cross-examine Sergeant Beard, she told the court she was not ready
because she only learned about the proposed expert that morning. The trial court
denied counsel’s request for a continuance, noting this was “a very limited area.”
Defendant’s counsel then cross-examined Sergeant Beard. At the end of the
hearing, the trial court found the sergeant was qualified to testify as a gang expert.

                b. Analysis
     Defendant contends the trial court’s denial of counsel’s request for a
continuance constituted an abuse of discretion and a denial of due process.26 He
argues that had the defense been afforded sufficient time to prepare for the in
limine hearing, it could have established that Sergeant Beard was not qualified to
testify as an expert. Defendant’s claim of prejudice based on the denial of the
continuance therefore rests on his argument that Sergeant Beard was not qualified
to testify as a gang expert. (People v. Beames (2007) 40 Cal.4th 907, 921.) We
need not decide whether the trial court abused its discretion by failing to grant
defense counsel a continuance because, as discussed in the next section, the record
reflects that Sergeant Beard was amply qualified to testify as a gang expert. Even
if the trial court erred in denying the continuance, defendant was not prejudiced,
and therefore the error was harmless.

           3. Gang Expert’s Qualifications to Testify
     At the end of the in limine hearing, defendant contended Sergeant Beard was
unqualified to testify as an expert witness on gangs. The trial court ruled Sergeant
Beard could testify as a gang expert.

26     The People acknowledge that, pursuant to sections 1054.1 and 1054.7, a
prosecutor is required to disclose to the defense at least 30 days prior to the trial
the names and addresses of witnesses the prosecutor intends to call, unless the
prosecutor shows good cause. Under section 1054.5, one remedy for late
disclosure is a continuance of the matter.



                                          59
     At the in limine hearing, Sergeant Beard testified to having the following
qualifications: He was a Beaumont police officer for six years, during which time
he gained familiarity with the active street gangs in the area. He was specifically
familiar with the Hispanic street gang VBR, its members, their monikers
(nicknames), and their tattoos. He had undergone 20-to-30 hours of training on
the identification of gang members and Hispanic youth gangs through the
Department of Justice and the San Bernardino and Riverside County Sheriff’s
Departments.
     “ ‘A person is qualified to testify as an expert if he has special knowledge,
skill, experience, training, or education sufficient to qualify him as an expert on
the subject to which his testimony relates.’ (Evid. Code, § 720, subd. (a).) ‘ “The
trial court is given considerable latitude in determining the qualifications of an
expert and its ruling will not be disturbed on appeal unless a manifest abuse of
discretion is shown.” ’ [Citation.]” (People v. Davenport (1995) 11 Cal.4th 1171,
1207.)
     Defendant notes that, at the time of his testimony in defendant’s case,
Sergeant Beard had never before qualified to testify in court as a gang expert.
Defendant points to Williams, in which the officers who qualified as gang experts
had more years of experience with gangs and more hours of specialized training,
and had qualified as gang experts in prior trials. (Williams, supra, 16 Cal.4th at p.
195.) Although Sergeant Beard’s experience and training was not as extensive as
that of the officers in Williams, we conclude that, given Sergeant Beard’s
experience, training, and specific knowledge of a gang involved in this case, the
trial court did not abuse its discretion in allowing him to testify as a gang expert.




                                          60
       B. Admission of Autopsy Photographs
     Over a defense objection, the trial court admitted into evidence 13 autopsy
photographs of the victim wearing blood-soaked clothing. The photographs
depicted various close-up views of Walker’s gunshot wounds; in several
photographs, Walker’s eyes are open in a “death stare.” Defendant renews his
objection that the trial court abused its discretion by admitting the autopsy
photographs. He argues they were irrelevant or cumulative, and that, if relevant,
they should have been excluded under Evidence Code section 352 because their
probative value was substantially outweighed by the probability their admission
would create a substantial danger of undue prejudice. (People v. Carter (2005) 36
Cal.4th 1114, 1166.)
     “ ‘The admission of photographs of a victim lies within the broad discretion
of the trial court when a claim is made that they are unduly gruesome or
inflammatory. [Citations.] The court’s exercise of that discretion will not be
disturbed on appeal unless the probative value of the photographs clearly is
outweighed by their prejudicial effect. [Citations.]’ ” (People v. Ramirez (2006)
39 Cal.4th 398, 453-454, quoting People v. Crittenden, supra, 9 Cal.4th 83 at pp.
133-134.)
     The admitted autopsy photographs were very probative in this case. They
assisted the jury in understanding the testimony of the pathologist. (See People v.
Lucas (1995) 12 Cal.4th 415, 449-450.) They provided circumstantial evidence of
the defendants’ intent to kill. The nature and placement of the wounds indicated
Walker had been shot as he tried to exit his car trunk, which was relevant to the
prosecution’s theory that defendant and the codefendants drove Walker to a
remote location with the intention of killing him. (See People v. Wilson (1992) 3
Cal.4th 926, 937-938.) The photographs were not made inadmissible by the




                                         61
prosecutor’s ability to prove motive, intent, and cause of death through other
evidence. (People v. Watson (2008) 43 Cal.4th 652, 685.)
     We have examined the admitted photographs, as well as the three
photographs that the trial court excluded under Evidence Code section 352. While
the admitted photographs confirm that “murder is seldom pretty” (People v. Long
(1974) 38 Cal.App.3d 680, 689), they are not of such a nature as to overcome the
jury’s rationality. (People v. Gurule (2002) 28 Cal.4th 557, 625.) We conclude
the trial court did not abuse its discretion in determining the probative value of
each of the admitted photographs was not substantially outweighed by the risk of
undue prejudice.

       C. Objections to the Testimony of George Varela
     Codefendant Salvador Varela’s brother George was a key witness for the
prosecution. Defendant contends the trial court erred in overruling two of his
evidentiary objections relating to George’s testimony.

           1. “Riding Around With a 187”
     George testified that, on the day after the murder, he was driving defendant
home when defendant bragged to George about how he shot Walker. George
initially disbelieved defendant’s story, but changed his mind when his friend,
Victor Dominguez, came up to the car and told George, “You’re riding around
with a 187,” a reference to section 187, our state’s murder statute (“187”). Later,
George, defendant, and Dominguez went inside defendant’s home where George
heard defendant tell his father, “I had to do it. I ain’t gonna let four vatos go down
for some white boy.”




                                          62
     Prior to this portion of George’s testimony, defendant had objected on
hearsay grounds to the admission of Dominguez’s “187” statement. 27 After the
prosecutor explained that the statement was being offered not for its truth, but to
explain George’s subsequent conduct, the trial court overruled the objection and
instructed the jury that “the next statement is entered only for the purpose of
explaining this witness’s further action.”
     Defendant concedes an out-of-court statement can be admitted for the
nonhearsay purpose of showing that it imparted certain information to the hearer,
and that the hearer, believing such information to be true, acted in conformity with
such belief. (People v. Hill (1992) 3 Cal.4th 959, 987.) The nonhearsay purpose
must also be relevant to an issue in dispute. (People v. Armendariz (1984) 37
Cal.3d 573, 585; 1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay § 41, p. 835; 1
Jefferson, Cal. Evidence Benchbook (4th ed. 2012) § 1.34, pp. 25-26 [trial judge
should not sustain a hearsay objection when evidence has a relevant nonhearsay
use, even if its probative value appears to be very slight].) Defendant contends
George’s reaction or state of mind after hearing the “187” statement shed no light
on any issue in the case and that therefore Dominguez’s statement should not have
been admitted.
     We conclude George’s reaction to the statement was relevant to a disputed
issue at trial, namely, how and why George came to be inside defendant’s home
and came to hear defendant make his “four vatos” statement. Trial counsel for all
four defendants treated the “four vatos” statement as one of the most incriminating
pieces of evidence against defendant. That this statement was made in front of

27    Defense counsel previously had made an unsuccessful objection to the
prosecutor’s reference to the “riding around with a 187” comment during the
prosecutor’s opening statement.



                                         63
several witnesses, including defendant’s own father, made it particularly
important.28 The parties engaged in detailed questioning of George’s account of
the sequence of events leading up to his hearing the “four vatos” statement,
beginning with George’s reaction to Dominguez’s “187” comment. Much of the
questioning focused on George’s prior statements.
     Before trial, George had been interviewed by an investigator who worked for
the attorney representing George’s brother. The interview was made available to
all parties before trial and was played to the jury. In the interview, George
recounted that, after Dominguez made the “187” comment, George realized
defendant had committed the murder. Shocked, George ordered defendant out of
his car. George parked at Dominguez’s house, but became curious and walked
back to defendant’s house with Dominguez. Once in defendant’s house, George
and Dominguez heard defendant tell his father, “I ain’t gonna let four vatos go
down for some white boy.”
     Defendant acknowledges Dominguez’s “187” comment might have been
relevant to George’s conduct if, as recounted in the investigator’s interview,
George ordered defendant out of his car after hearing it. Defendant argues the
“187” statement was inadmissible because George’s account during direct
examination by the prosecutor differed from his statements in the earlier interview.
George testified on direct examination that he did not order defendant out of his
car, and that, after he parked, he, defendant, and Dominguez went directly to



28      Defendant’s father, who had not been shown to be unavailable as a witness,
was not called by the defense to refute George’s account of what defendant had
said. As noted previously, the prosecutor argued at both the guilt and penalty
phases that the jury could infer from the defense’s failure to call defendant’s father
that his testimony would have been adverse to defendant’s position.



                                         64
defendant’s house. During cross-examination by counsel for one of the
codefendants, George said his account in the interview was the correct one.
        Whichever version the jury decided to credit (see Evid. Code, § 1235),
George’s reaction to the “187” statement was relevant because it related to the
plausibility of George’s account of the sequence of events resulting in his hearing
defendant make the “four vatos” statement to defendant’s father. We conclude the
trial court did not err by admitting the “187” statement for a relevant nonhearsay
purpose. (See 1 Jefferson, Cal. Evidence Benchbook, supra, § 1.36, p. 27.)

             2. Realization that Defendant was the Shooter
        George twice was permitted to testify over defendant’s objection that, after
hearing Dominguez’s “187” remark, George realized defendant had been telling
the truth about shooting Walker rather than just making up a story. Defendant
contends this testimony was “implicitly a lay opinion about Dominguez’[s]
veracity,” and that “[l]ay opinion about the veracity of particular statements by
another is inadmissible on that issue.” (People v. Melton (1988) 44 Cal.3d 713,
744.)
        As discussed above, Dominguez’s “187” statement was not admitted for its
truth but to explain George’s conduct based on his reaction to the statement. That
reaction, coming to believe defendant had shot Walker, and George’s subsequent
conduct, were relevant to how and why George came to be present when
defendant made his “four vatos” statement to his father, a sequence of events
about which George was closely questioned by all parties. We conclude the “187”
statement was not admitted as lay opinion supporting the truth of Dominguez’s
statement.




                                           65
       D. Objections to Portions of Kimberly Speck’s Testimony
     Kimberly Speck testified for the prosecution regarding defendant’s actions
the night of Varela’s birthday party and the statements defendant made the
following day concerning the murder. Defendant objected to certain testimony by
Speck that he viewed as alluding to statements Varela had made to her that
incriminated defendant. Defendant contends the admission of Speck’s testimony
over objection violated his Aranda/Bruton Sixth Amendment confrontation rights
and state evidentiary principles concerning the admissibility of lay opinion.
Alternatively, he claims the evidence should have been excluded under Evidence
code section 352.

            1. Background
     At the preliminary hearing, a police officer testified Varela had told the
police that defendant was the one who shot Mark Walker. Speck testified at the
same hearing that, during the morning after the shooting, Varela had told her
defendant shot Walker. Before trial, defendant successfully challenged the
admission of codefendant Varela’s out-of-court statements concerning the
shooting, as well as the prosecutor’s proposed redacted version of Varela’s
statements, on the basis that they incriminated defendant and were barred under
Aranda/Bruton. The court initially gave the prosecution the choice between
severing Varela’s trial from his codefendants or proceeding in a joint trial without
using Varela’s statements. The court ultimately approved a third option,
empanelling a separate jury for Varela. Besides hearing the evidence the jury for
defendant and the other codefendants had heard, Varela’s separate jury
additionally heard Varela’s out-of-court statements to the police about the
shooting.
     On direct examination by the prosecutor, Speck testified Varela took his
van’s keys and left his own birthday party with defendant. When Varela returned


                                         66
about 10 minutes later, he looked troubled. Based on something Varela told her,
she and Varela went to a donut shop the morning after the party to buy a
newspaper. They were looking for a report on a particular subject. Speck found
what they were looking for, an article that said police had found a car off of
Palisades Drive with a dead person in the back of it. When they returned to the
apartment, Varela showed defendant the article. Defendant looked at it and then
said to her, in a joking tone of voice, “Can you believe they’re trying to pin this on
me?” On cross-examination, Speck said that, when defendant made that remark,
he also said, “Man I don’t believe it, I didn’t kill that kid.”
     On redirect examination, the prosecutor asked whether Speck had responded
to defendant’s statements. She stated she did not remember making any response.
The trial court overruled a defense objection that the question had been asked and
answered. The prosecutor then asked why Speck had not responded. She
answered, “Because I knew.” Defendant moved to strike that response on
relevance and Evidence Code section 352 grounds. The trial court overruled the
objection.
     Outside the presence of the jury, defendant’s counsel renewed his objection
to the admissibility of the statement that Speck did not respond to defendant
because she “knew.” Counsel argued admission of this statement violated
Aranda/Bruton because, by implication, it referred to a statement Varela had made
to Speck indicating defendant had shot the victim. Defense counsel moved to
have the statement stricken from the record or, alternatively, for a mistrial. The
prosecutor said his questioning sought to explain Speck’s actions in response to
defendant’s statements and were not offered for their truth, and therefore did not
violate Aranda/Bruton. The trial court agreed with the prosecutor, finding defense
counsel’s interpretation of Speck’s “because I knew” statement unreasonable. It
denied defendant’s motion to strike and motion for mistrial.

                                           67
            2. Analysis

                a. Aranda/Bruton
     We are not persuaded by the People’s contention that, because there was one
jury for codefendant Varela and another for defendant and the other codefendants,
there could be no Aranda/Bruton error based on Speck’s statement. The only
difference in the evidence heard by the two juries was with regard to Varela’s out-
of-court statements to police concerning the shooting. Speck’s testimony was
heard by both juries, and defendant contends Speck’s “I knew” statement was
tantamount to her saying, “Varela told me Montes killed Walker.” However,
Speck never testified to such an out-of-court statement, and her “I knew”
statement was not tantamount to saying, “Varela told me Montes killed Walker.”
     “[A] defendant is deprived of his Sixth Amendment right of confrontation
when the facially incriminating confession of a nontestifying codefendant is
introduced at their joint trial, even if the jury is instructed to consider the
confession only against the codefendant.” (Richardson v. Marsh (1987) 481 U.S.
200, 207.) We conclude Speck’s “I knew” statement is not facially incriminating;
it does not name defendant or refer to him directly.
     We similarly find meritless defendant’s argument that the “I knew” statement
is incriminating through inference based on Speck’s other testimony. The class of
inferentially incriminating statements under Bruton is limited to “obvious” ones,
“inferences that a jury ordinarily could make immediately, even were the
confession the very first item introduced at trial.” (Gray v. Maryland (1998) 523
U.S. 185, 196.) Speck’s “I knew” statement does not fall into the class of obvious
inferences defined by Gray. The most that can be inferred from Speck’s entire
testimony is that, before they looked for the newspaper article, Varela told her
something about defendant’s involvement in the shooting. From Speck’s
testimony, the jury could not have inferred the specifics of what Varela told her


                                           68
about defendant’s involvement or whether defendant had been the shooter. We
conclude the trial court did not err by denying defendant’s motion to strike or his
motion for mistrial under Aranda/Bruton.

               b. Inadmissible Lay Opinion
     Defendant next contends the “I knew” statement was inadmissible because it
implied Varela had told Speck defendant shot Walker and suggested she believed
in the truth of Varela’s statement. Defendant contends any testimony to the effect
that Speck believed in the truth of Varela’s statement was improper lay opinion.
(People v. Melton, supra, 44 Cal.3d at p. 744.) The prosecutor’s question did not
ask Speck to assess the truth of any previous statements Varela made to her.
Instead, it sought to determine how Speck perceived and reacted to defendant’s
comments about his lack of involvement in the shooting mentioned in the article.
Her perception of his denial as a joking statement, rather than a credible and
sincere denial, and her lack of a response were relevant to establishing that point.

               c. Relevance and Evidence Code Section 352
     Defendant additionally contends the trial court should have sustained his
objection to the “I knew” statement on relevance and Evidence Code section 352
grounds. As discussed above, the statement was relevant for the purpose of
explaining how Speck perceived and reacted to defendant’s comments about his
lack of involvement in the shooting mentioned in the article. Her brief remark had
little potential harmful effect to defendant. She did not elaborate upon how she
“knew” defendant was involved. As discussed above, the trial court had excluded
from defendant’s jury any evidence regarding Varela’s statement to Speck
implicating defendant. As to an Evidence Code section 352 objection, a trial
court’s discretionary ruling under that statute “ ‘ “must not be disturbed on appeal
except on a showing that the court exercised its discretion in an arbitrary,



                                         69
capricious or patently absurd manner that resulted in a manifest miscarriage of
justice. [Citations.]” ’ ” (People v. Williams (2008) 43 Cal.4th 584, 634-635.)
We discern no abuse of discretion in the trial court’s ruling.

       E. Exclusion of Gallegos’s Statements That He Knew the Victim
     Defendant sought to introduce codefendant Gallegos’s statements to the
police that Gallegos had known the victim and had played football with him for
several years. In response to Gallegos’s objection, the trial court excluded the
statements as irrelevant and, alternatively, as inadmissible under Evidence Code
352. Defendant contends the trial court abused its discretion in excluding
Gallegos’s statements.

           1. Background
     Defendant moved to admit Gallegos’s statements made to Detective
Anderson during an interview as party statements under Evidence Code section
1220. Defendant offered the statements to show Gallegos had a motive to kill
Walker to prevent him from identifying Gallegos as one of the carjackers.
Pursuant to Evidence Code section 352, counsel for Gallegos sought to exclude
the statements, arguing their admission would force him to disprove the
statements. He said he would do so by subpoenaing people from Gallegos’s high
school who would testify Gallegos and Walker went to different high schools to
show Gallegos had not played football at Walker’s high school. Counsel for
Gallegos added that he also would call Walker’s mother and friends to testify they
did not know Gallegos.
     The trial court excluded Gallegos’s statements as irrelevant to motive. It
found they were not admissible under any exception to the hearsay rule. It also
excluded the statements under Evidence Code section 352, finding them
substantially more prejudicial than probative.



                                         70
           2. Analysis
     Assuming Gallegos’s statements claiming acquaintance with Walker were
admissible under Evidence Code section 1220 and were relevant to show Gallegos
had a possible motive to kill Walker, we conclude the trial court did not abuse its
discretion in excluding the statements under Evidence Code 352. Defendant has
not shown that the trial court “ ‘ “exercised its discretion in an arbitrary, capricious
or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ ”
(People v. Williams, supra, 43 Cal.4th at pp. 634-635.) Here, the court had been
advised by counsel for Gallegos that, if Gallegos’s statements were admitted, he
would call witnesses to testify that Gallegos did not go to Walker’s school, that
Gallegos never played football on Walker’s school team, and that Gallegos was
unknown to Walker’s friends and family. It was probable the excluded testimony
would have necessitated an “undue consumption of time” on a collateral issue and
would have created substantial danger of “confusing the issues, or of misleading
the jury.” (Evid. Code, § 352.) As Gallegos counsel’s argued, Gallegos’s
statements to Detective Anderson that he knew Walker and played football with
him for several years appeared to be a misguided attempt to exculpate himself in
the hope he would be released by the police. We find no abuse of discretion in the
trial court’s exclusion of Gallegos’s statements under Evidence Code section 352.

       F. Asserted Prosecutorial Misconduct
     “A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the
conviction a denial of due process. 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 trial court or the jury.” (People v. Morales (2001) 25 Cal.4th
34, 44.) Here, we consider defendant’s claim that the prosecutor committed


                                          71
prejudicial misconduct at the guilt phase by improperly vouching for Kimberly
Speck’s testimony in closing argument.
     Speck testified defendant had made incriminating admissions. During cross-
examination by defense counsel, Speck stated that two years before her testimony,
she had been arrested for being under the influence of drugs and had agreed to
attend a drug diversion program. She said she had failed to attend the program,
and had failed to appear in court for a traffic citation, but that, in the week before
her testimony at defendant’s trial, the prosecutor went to court with her to help her
get reinstated to the drug diversion program and to help her obtain a dismissal of
her traffic citation. In closing argument, defense counsel argued Speck had lied in
her testimony because she received a deal from the prosecutor in these matters.
     In his rebuttal, the prosecutor addressed this defense argument by arguing the
jury could determine Speck was not lying because she had made the same
statements about defendant before she received her deal. The prosecutor also
argued the disposition Speck received for her citation was what she would have
received had she not failed to appear. Defense counsel objected that the
prosecutor had misstated the facts and asked for an admonition. The trial court
sustained the objection and said it would give an appropriate admonition at a later
time. At the conclusion of the prosecutor’s rebuttal, the court gave a general
admonition that arguments of the attorneys were not evidence, that jurors are the
sole judges of what had been proven by the evidence, and that if their recollection
of the evidence differed from what the attorneys said in argument, they should
follow their own recollection.
     Defendant contends he was prejudiced by the prosecutor’s reference to facts
not in the record because the improper argument vouched for Speck’s credibility.
We disagree. The trial court properly sustained defendant’s objection to the
statement, and later admonished the jury to disregard the arguments of counsel if

                                          72
not supported by the evidence. Defendant’s claim that this admonishment was too
general and too removed from his specific objection is unpersuasive. In any event,
the prosecutor’s argument for Speck’s credibility mainly was predicated on the
fact that Speck had made the same statements incriminating defendant before and
after the deal she received in her own case. We conclude there was no prejudice
from the prosecutor’s brief reference to a fact outside the record.

       G. Discharge of Two Jurors
     The trial court discharged Juror No. 7 near the conclusion of the guilt phase.
It discharged that juror’s replacement, Alternate Juror No. 2, after the guilty
verdicts were rendered but before the penalty phase began. Defendant contends
the trial court discharged the jurors without good cause and thereby violated his
right to a trial by jury and to due process of law under the Sixth and Fourteenth
Amendments to the United States Constitution.
     “If at any time, whether before or after the final submission of the case to the
jury, a juror dies or becomes ill, or upon other good cause shown to the court is
found to be unable to perform his or her duty, or if a juror requests a discharge and
good cause appears therefor, the court may order the juror to be discharged . . . .”
(§ 1089.) Removal of a juror under section 1089 is committed to the discretion of
the trial court, and we review such decisions by asking whether the grounds for
such removal appear in the record as a “ ‘demonstrable reality.’ ” (People v.
Cleveland (2001) 25 Cal.4th 466, 474; see People v. Wilson (2008) 44 Cal.4th
758, 821.)

             1. Juror No. 7

                a. Background
     On September 30, 1996, midway through the guilt phase, Juror No. 7
informed the trial court he had been denied unemployment payments he had


                                         73
expected to receive during the time he served as a juror. Outside the presence of
the jury, Juror No. 7 said he wished to remain as a juror, and the trial court agreed
to make scheduling accommodations the juror requested to pursue job interviews.
     On October 30, 1996, the bailiff informed the trial court that some jurors had
reported that Juror No. 7 had been looking at flash cards during witness testimony.
Questioned by the court, Juror No. 7 stated he had flash cards on medical
terminology for a class in which he had an upcoming test. He claimed he had paid
attention to the trial testimony and had looked at the cards only when a witness
used the term “enzyme.” The court admonished him not to consult his flash cards
or any other outside source of information.
     The prosecutor moved to excuse Juror No. 7 based on his inattention during
witness testimony. Another juror, Juror V., told the court Juror No. 7 had been
reviewing flash cards during over two hours of witness testimony. The trial court
denied the prosecutor’s request to excuse Juror No. 7.
     The next day, the prosecutor renewed his concerns about Juror No. 7, stating
that the juror had made loud noises and acted in a disruptive manner during
witness testimony. The bailiff said Juror No. 7 was snorting and constantly
moving around. The court acknowledged Juror No. 7 had exhibited some
idiosyncratic behavior, and agreed to watch him more carefully. On November 4,
1996, the prosecutor again unsuccessfully moved to remove Juror No. 7 based on
the flash card incident and his contention that Juror No. 7 had not taken any notes
in court.
     On November 13, 1996, the day closing arguments began, Juror No. 7 told
the court he had received an offer of employment scheduled to start five days later.
When the trial court said the case could go to a penalty phase that likely would not
conclude until December 6, Juror No. 7 said he had not been aware of that
possibility.

                                         74
     During a recess, the trial court called the employer, who confirmed Juror No.
7 was to start training in five days. Although the employer preferred that start
date, the company was willing to postpone the juror’s start date for an additional
week. Counsel for defendant and the codefendants asked that Juror No. 7 remain
on the jury through the guilt deliberations. The prosecutor argued Juror No. 7
should be excused because the employer’s deadline could affect the juror’s guilt
phase deliberations. The trial court took the matter under submission.
     At a further hearing that afternoon, the prosecutor renewed his motion to
remove Juror No. 7 on the grounds previously stated. The court asked Juror No. 7
whether he would suffer financial hardship from losing a week’s pay by starting
his new job a week later than expected. Juror No. 7 said the delayed start was
manageable, but he could not serve beyond November 25, 1996.
     The trial court found that good cause existed for immediately dismissing
Juror No. 7, and that the November 25 employment start date would create an
“atmosphere of time urgency” that would substantially impair the juror’s ability to
perform his duties. The court alternatively found good cause for the dismissal
based on misconduct when the juror had read the enzyme flash card, and for his
perceived “inattentiveness” and “erratic and questionable behavior.” The jury
subsequently rendered guilt phase verdicts on November 22, 1996.

               b. Analysis
     Defendant contends the trial court abused its discretion by dismissing Juror
No. 7. He argues the record did not support the court’s finding that the impending
employment date would affect Juror No. 7’s ability to deliberate because the court
failed to question the juror further on his ability to remain fair and impartial during
deliberations despite the impending employment date. However, as the trial court
noted, Juror No. 7 already had stated his desire to stay on the jury until his work



                                          75
began. Therefore, it was unnecessary to question him further regarding his
subjective belief as to what effect the employment deadline would have on him.
The trial court properly considered that Juror No. 7 knew the date beyond which
he could no longer serve and the objective effect of that impending deadline. The
court correctly recognized the impending employment date could consciously or
unconsciously pressure Juror No. 7 to try to conclude the guilt phase deliberations
within his time frame, and that the deadline could create an atmosphere of
urgency. (See People v. Gurule, supra, 28 Cal.4th at p. 632 [the trial court
“ ‘should refrain from placing specific time pressure on a deliberating jury’ ”].)
Regardless of Juror No. 7’s subjective intent, we are “confident that the trial
court’s conclusion is manifestly supported by evidence on which the court actually
relied” (People v. Barnwell (2007) 41 Cal.4th 1038, 1053), and that the grounds
for the removal appear in the record as a demonstrable reality. (People v. Wilson,
supra, 44 Cal.4th at p. 821.)
     The fact that the guilt phase deliberations concluded three days before Juror
No. 7 would have had to report to his new job does not call into doubt the
correctness of the trial court’s ruling. At the time of the ruling, the trial court
could not have known with certainty when the jury would complete its guilt phase
deliberations. It properly reached its decision based on the information before it.
Because we find no error in the trial court’s determination of good cause based on
time pressure, we need not review the trial court’s alternative basis for the ruling
based on the juror’s alleged inattentive and disruptive behavior.

           2. Alternate Juror No. 2

                a. Background
     Alternate Juror No. 2 took the place of Juror No. 7, and participated in the
guilt phase deliberations and verdicts. Before the penalty phase, the bailiff



                                           76
informed the trial court the alternate juror wished to discuss being relieved as a
juror. In the presence of defense counsel and the prosecutor, the trial court
discussed the matter with Alternate Juror No. 2. She stated she had been having
nightmares throughout the trial but had thought she would be strong enough to
complete it. She now believed she did not have the mental strength to do so. She
could not get the faces of the victim and the defendants out of her mind. She had
spent the previous week in bed feeling sick and depressed, and she was having
trouble sleeping. Although she believed there was overwhelming evidence of guilt
and she had made the right decisions in her guilt phase deliberations, she stated
that she could not vote for the death penalty.
     The defense objected to excusing Alternate Juror No. 2, arguing it might be
the evidence in the case, not personal incapacity, that led to her expressed inability
to impose the death penalty. The trial court excused Alternate Juror No. 2, finding
her ability to function as a juror was substantially impaired.

               b. Analysis
     Defendant contends the trial court did not question Alternate Juror No. 2
sufficiently to determine the basis of her stated inability to sentence defendant to
death. He argues the record does not establish to a demonstrable reality that her
stated inability to sentence defendant to death was based on an absolute inability
to impose a death sentence, rather than her view, based on the guilt phase
evidence, that death was not the appropriate punishment for defendant. The record
does not support defendant’s argument. Alternate Juror No. 2’s description of her
mental anguish was not focused on lingering doubt from her guilt phase verdict as
to defendant. Rather, she mentioned being haunted by the faces of both the victim
and the defendants. She believed there was overwhelming evidence supporting
her guilt phase verdict, but her anguished mental state prevented her from being



                                         77
able to impose a sentence of death. The grounds for her removal exist in the
record as a demonstrable reality. (People v. Barnwell, supra, 41 Cal.4th at
p. 1053.)

       H. Kidnapping Special Circumstance as a Lesser Included Offense
     The jury found true all three special circumstances alleged against defendant:
murder in the commission of (1) a robbery (§ 190.2, former subd. (a)(17)(i), now
subd. (a)(17)(A)); (2) a kidnapping for robbery (id., former subd. (a)(17)(ii), now
subd. (a)(17)(B)); and (3) a kidnapping (ibid.). The substantive offense of simple
kidnapping is a lesser included offense of kidnapping for robbery. (People v.
Lewis, supra, 43 Cal.4th at p. 518.) Defendant contends the simple kidnapping
special circumstance should be reversed because multiple convictions may not be
based on necessarily included offenses arising out of a single act or course of
conduct. He then argues the death judgment must be reversed because the jury
wrongly considered three, rather than two, special circumstances at the penalty
phase. He claims the inclusion of the third special circumstance allegation made a
death sentence more likely.
     “In California, a single act or course of conduct by a defendant can lead to
convictions ‘of any number of the offenses charged.’ [Citations.] . . . [A]
judicially created exception to this rule prohibits multiple convictions based on
necessarily included offenses. [Citations.]” (People v. Montoya (2004) 33 Cal.4th
1031, 1034.) But defendant cites no case in which a special circumstance finding
has been reversed for being necessarily included within another special
circumstance. He provides no reason for bringing special circumstances under the
necessarily included offense rule beyond the unfounded assumption that special
circumstances should be treated as being identical to criminal offenses in all
contexts. We have stated, however, that “special circumstances are sui generis —



                                         78
neither a crime, an enhancement, nor a sentencing factor.” (People v. Garcia
(1984) 36 Cal.3d 539, 552.) The penalty consequence of a true finding on a
special circumstance allegation is that a defendant becomes eligible for the death
penalty. (See § 190.2; Brown v. Sanders (2006) 546 U.S. 212, 221.) Defendant
became eligible for the death penalty on the basis of the jury’s finding true either
of the two special circumstances not challenged on appeal. He faced no additional
punishment merely as a result of the finding on the simple kidnapping special
circumstance allegation. Therefore, because special circumstances are a unique
class created by statute (§ 190.2), we decline to extend to them a judicially created
rule that has previously been applied only to crimes. Accordingly, we will not
modify the judgment to strike the simple kidnapping special circumstance nor
overturn the penalty judgment on this basis.
     Additionally and independently of his argument that the necessarily included
offense rule applies to special circumstances, defendant contends that the simple
kidnapping special circumstance violated his constitutional rights because it
“artificially inflated” the number of special circumstances for the jury to weigh
against him at the penalty phase. We have addressed similar arguments in the
context of multiple felony-murder special circumstances that “might artificially
inflate the weight to be given the underlying offenses as aggravating factors if
considered more than once for exactly the same purpose . . . .” (People v. Bean
(1988) 46 Cal.3d 919, 955.) We reject defendant’s claim here for the same reason
expressed in People v. Bean: “[N]othing in the record suggests that the jury in this
case might have been led by the court’s instructions to simply count the special
circumstances and weigh them mechanically rather than consider the nature of the
conduct underlying those special circumstances.” (Ibid.) Nor did the prosecutor
urge the jurors to “double count” the simple kidnapping special circumstance
against defendant. (People v. Melton (1988) 44 Cal.3d 713, 769.) We therefore

                                         79
conclude that defendant’s constitutional rights were not violated because of the
simple kidnapping special circumstance.

       I. Asserted Failure to Limit CALJIC No. 2.15 to Theft-related
           Offenses
     Defendant’s jury was instructed with CALJIC No. 2.15, which permits an
inference of guilt of a theft-related offense based on a defendant’s possession of
recently stolen property, but only if the theft-related offense is corroborated by
other evidence. Defendant contends the trial court erred in giving CALJIC No.
2.15 without limiting it to the theft offenses. Although he did not object below to
the giving of the instruction on this precise ground, we assume the claim is
preserved for appeal. (See People v. Moore (2011) 51 Cal.4th 1104, 1130.) We
find the trial court erred, but the error was harmless.
     As relevant here, the trial court instructed with CALJIC No. 2.15, as follows:
“If you find that the defendant was in conscious possession of recently stolen
property, the fact of such possession is not by itself sufficient to permit an
inference that the defendant is guilty of the crimes or the allegations as charged in
the Amended Information. Before guilt may be inferred, there must be
corroborating evidence tending to prove the defendant’s guilt. However, this
corroborating evidence need only be slight and need not by itself be sufficient to
warrant an inference of guilt.” (Italics added.)
     We have held it is error for a court to instruct the jury with CALJIC No. 2.15
for nontheft offenses. (People v. Prieto (2003) 30 Cal.4th 226, 249.) Defendant
contends the jury could have understood the instruction to mean only slight
corroboration was needed to find defendant guilty of all the charged offenses,
including the nontheft offense of murder and the attendant special circumstances.
We previously have rejected defendant’s argument that the instructional error had
the effect of relieving the prosecution of its burden of proving defendant guilty of


                                          80
the charges beyond a reasonable doubt, and thus violating his rights to due process
and to a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution. “[T]he error is one of state law only, subject to the
miscarriage of justice test under People v. Watson (1956) 46 Cal.2d 818, 836, 299
P.2d 243 (Watson ) — whether defendant has established there exists a reasonable
probability he would have obtained a more favorable result if the error had not
occurred.” (People v. Moore, supra, 51 Cal.4th at p. 1130.)
     Here, there was no reasonable probability the jury would have reached a
different result had the court limited the permissive inferences described in
CALJIC No. 2.15 to theft offenses. Although the instruction mentioned “the
crimes or the allegations as charged in the Amended Information,” it is unclear
whether the jury would have applied the instruction to anything but the theft-
related offenses, given that they were the offenses to which the instruction most
clearly related. Defendant’s claim to the contrary, the prosecutor’s references to
CALJIC No. 2.15 did not direct the jury to improperly apply the “slight
corroboration” requirement. Instead, the prosecutor reviewed evidence that
supported the theory that the murder was committed during the commission of
robbery or carjacking, each of which has a theft element to which the “slight
corroboration” requirement of CALJIC No. 2.15 was applicable. Therefore, the
prosecutor properly asked the jury to apply CALJIC No. 2.15 to the circumstances
related to the theft elements of robbery or carjacking, that would, in turn, support a
theory of felony murder.
     In any event, in view of the overwhelming evidence of defendant’s guilt and
the panoply of other instructions that correctly guided the jury’s consideration of
the evidence, we find no reasonable likelihood of a more favorable outcome for
defendant had the instruction not been given. (People v. Coffman and Marlow,
supra, 34 Cal.4th at p. 101.)

                                         81
                            V. PENALTY PHASE ISSUES

       A. Victim Impact Evidence

           1. Challenge to Victim Impact Evidence as Unforeseeable
     Victim impact evidence is admitted under section 190.3, factor (a)
(“circumstances of the crime”). (People v. Harris (2005) 37 Cal.4th 310, 351
(Harris).) Defendant contends that to avoid being unconstitutionally overbroad
and vague, such evidence should be limited to effects known or reasonably
apparent to him at the time he committed the crime or effects that properly were
introduced to prove the charges at the guilt phase. He objects to the victim impact
evidence that presented details of the victim’s entire life, none of which defendant
could have known when the murder was committed. He also objects to family
members’ descriptions of their emotional anguish following the victim’s death,
including painful incidents defendant could not reasonably have anticipated. We
have rejected similar arguments (People v. Boyette (2002) 29 Cal.4th 381, 445, fn.
12), and we reject defendant’s invitation to revisit our prior rulings on this issue.

           2. Failure to Hold an In Limine Hearing with Live Testimony
     Defendant moved to exclude victim impact evidence under Evidence Code
section 352 and claimed its admission violated his state and federal due process
rights. He objected to any testimony by the victim’s family about the
circumstances of the crimes, and asked the trial court to conduct an Evidence Code
section 402 hearing in which the prosecutor would be required to present live
testimony of each proposed prosecution witness. The trial court denied the
Evidence Code section 352 objection and refused to conduct a hearing with live
witnesses, ruling that family members could testify regarding the circumstances of
the murder and how that crime had affected them. It reviewed with defense




                                          82
counsel letters family members had submitted to the prosecutor and an outline of
questions the prosecutor planned to ask them.
     Defendant cites no authority compelling the trial court to hold a hearing
previewing the live testimony of victim impact witnesses, and his discussion of
law in other states that require detailed pretrial disclosure of proposed victim
impact testimony does not convince us to adopt such a requirement. Here, the trial
court considered the proposed testimony by reviewing the written statements of
the proposed victim impact witnesses. Defendant contends this review did not
anticipate all of the testimony presented. He points to the mother’s testimony
regarding the vandalism of her son’s grave, contending that testimony was so
emotionally charged his counsel could not effectively object to it in front of the
jury. Defendant claims he suffered particular prejudice because this testimony
was not previewed.
     The victim’s mother’s testimony on the grave vandalism incident is discussed
immediately below in connection with defendant’s motion for mistrial based on
the victim impact evidence. For the reasons discussed there, we find no error in
the admission of the grave vandalism testimony. Consequently, we conclude that
no prejudice resulted from the denial of defendant’s request to preview the victim
impact testimony.

           3. Testimony Describing the Vandalism of the Victim’s Grave Site

               a. Background
     The victim’s relatives submitted letters to the prosecutor describing
testimony they intended to give at the penalty stage. The defense objected to the
portion of the letter submitted by Judith Walker Koahou, the victim’s mother, in
which she said the defendants had killed her son for no reason and that if they
were allowed back into society they would kill again. Defendant also objected to



                                         83
the following comment in that letter regarding the vandalism of Walker’s grave:
“Their violence towards our family has not stopped. The family members who are
still living in Beaumont vandalized Mark’s grave. They broke the bench that was
at his grave. They spread rumors all over town. It seems that they are hoping to
push us into doing something back to them. They are trying to intimidate us.”
The court told the prosecutor to caution his witnesses against making such
statements during testimony, and the prosecutor indicated he would not go into
this area in his questioning, but the parties and the court did not specifically
discuss the grave vandalism incident mentioned in the mother’s letter.
     When the mother testified, the prosecutor asked how her son’s murder had
affected her and whether she often went to the cemetery to visit his grave. She
responded she had a difficult time doing so because his grave site had been
vandalized, its memorial bench had been broken, and the gravestone had been
spray-painted with graffiti. She said she had removed the broken bench and had
had the gravestone sealed with anti-graffiti sealant, but she still found it difficult to
go to the cemetery because of the shock of the vandalism.
     Defense counsel did not object to this testimony at the time, but raised it as
part of the motion for mistrial made at the conclusion of the victim impact
testimony. Counsel contended the mother’s grave vandalism testimony was
inadmissible because it was inflammatory under Evidence Code section 352. He
argued the testimony raised the element of gang terrorism, and it allowed the jury
to hold defendant responsible for the impact of other people’s actions on the
family while defendant was incarcerated. In response, the prosecutor noted that
the mother had not identified who had vandalized the gravestone, and he indicated
that he was not going to argue defendant was responsible for this act.
     In denying the mistrial motion, the trial court ruled the mother’s grave
vandalism testimony was relevant and admissible, noting that the mother had not

                                           84
blamed any particular person for the vandalism, but simply described its effect on
her. Observing it was common to hear about cemeteries being vandalized, the
court concluded the testimony was not unduly prejudicial under Evidence Code
section 352, and that, had defense counsel objected to it at the time, it would have
ruled the testimony admissible.

               b. Analysis
     Assuming for the sake of argument that defendant’s claim regarding the
admissibility of the grave vandalism testimony has not been forfeited, we reject it
on the merits. “Under California law, victim impact evidence is generally
admissible as a circumstance of the crime pursuant to section 190.3 factor (a).”
(Harris, supra, 37 Cal.4th at p. 351.) In Harris, we characterized as “too remote
from any act by defendant to be relevant to his moral culpability” (id. at p. 352)
challenged testimony that described how, during a victim’s funeral, the casket lid
accidentally opened as it was being placed in the hearse, which caused several
funeral attendees to scream and faint and one to fall on the partially opened casket.
Defendant contends the vandalism of the victim’s grave, like the casket incident in
Harris, was too remote from any act by defendant to have been relevant, and that
the testimony was prejudicial because the reference to graffiti implied gang
involvement, which presented a risk the jurors would blame defendant for the act
of vandalism despite the lack of evidence of his involvement.
     Unlike the unique funeral incident described in Harris, instances of
vandalism at cemeteries are not uncommon. We conclude the mother’s testimony
about the vandalism fell within the traditional sphere of victim impact testimony in
describing the effects of the crime on the relatives of the victim. Furthermore, we
reject defendant’s assertion that the mother’s testimony implied gang involvement.
In her letter, which was not presented to the jury, the mother connected the



                                         85
vandalism to gangs, but she made no such connection during her testimony.
Instead, she described the incident in terms of the impact it had on her life, as one
more instance of suffering among many caused by her son’s murder. The trial
court did not, therefore, abuse its discretion in concluding that the probative value
of the evidence was not outweighed by the danger of undue prejudice. Finally,
even assuming for the sake of argument that the admission of the vandalism
testimony was erroneous, we conclude it was harmless beyond a reasonable doubt
when considered in the context of all of the penalty phase evidence presented.
(Chapman v. California (1967) 386 U.S. 18, 36; Harris, supra, 37 Cal.4th at p.
352.)

             4. Victim Impact Testimony as Improper Opinion Evidence
        Defendant contends the testimony of the victim’s relatives should have been
excluded as improper opinion evidence. Assuming for the sake of argument that
this claim was not forfeited on appeal for failure to object below to the victim
impact testimony on these precise grounds, the contention fails on its merits.
        As the basis of this claim, defendant points to instances where the prosecutor
asked family members some version of the question of how the circumstances of
Walker’s death — having been carjacked, thrown in his car’s trunk, and shot—
caused them grief in a way that was different from grief they would have
experienced had he died from an accident or a disease. Each relative testified the
unexpected and abrupt nature of his death made it especially painful. Defendant
contends this testimony violated Booth v. Maryland, supra, 482 U.S. at pp. 502-
503, 508-509 (overruled in part by Payne, supra, 501 U.S. at p. 829), because it
contained lay opinion about the circumstances of the crime. As additional
authority, defendant cites Justice Moreno’s concurring opinion in People v.
Robinson (2005) 37 Cal.4th 592, which criticized the admission of testimony that



                                           86
“allowed the parent of the victim to invoke an imagined version of the crime, the
version that was the most horrific, and that was in alignment with the prosecutor’s
theory of the murders.” (Id. at p. 657 (conc. opn. of Moreno, J).)
     Here, in contrast to the testimony criticized in the Robinson concurrence, the
circumstances of Walker’s murder as summarized by the prosecutor were
undisputed, and the testimony focused primarily on the impact of the crime on
each family member rather than dwelling on or emphasizing the circumstances of
the crime itself. We find no error in the trial court’s admission of this aspect of the
victim impact testimony.

           5. Testimony on Passage of Time and Frustration with the Delay
     The victim’s brother, Scott, testified about the anguish and anger he had felt
since the murder. Asked whether he thought things would get better, he said he
had not been able to rest for two years because each court date made him relive the
murder. Scott added, “[A]fter this is over, [we] still got everything else down the
road.” As part of the motion for mistrial based on the victim impact evidence,
defense counsel contended this statement appeared to be an improper reference to
the outcome of the present proceeding and to future appellate review. The trial
court rejected this argument, noting that any reasonable juror would have
understood the statement as referring to how the pending nature of the trial had
affected Scott’s grief.
     Although his counsel did not object during the testimony, defendant contends
the issue has been preserved for appeal because defense counsel explained to the
trial court that he hesitated to make objections during the testimony of family
members due to the emotional atmosphere of the courtroom. We have stated that
failure to object “may not be excused on the ground that a timely objection would
be inconvenient or because of concerns about how jurors might perceive the



                                          87
objection.” (People v. Pollock (2004) 32 Cal.4th 1153, 1181.) In any event, even
if the claim were not forfeited, we would reject it on its merits.
     In People v. Ramos (1984) 37 Cal.3d 136, 155-158, we found error when the
trial court instructed a penalty phase jury to consider the possibility the Governor
could commute a life sentence imposed by the jury because the instruction could
lessen the jurors’ sense of personal responsibility for the verdict or induce them to
attempt to preempt an exercise of that authority. Defendant contends the reference
to “everything down the road” was analogous to informing the jury about the
commutation power of the Governor. We disagree. We conclude Scott’s reference
to “everything down the road” was a vague reference to dealing with his grief in
the future. We agree with the trial court that no reasonable juror would have
interpreted the remark as a reference to future appellate proceedings or to the
possible commutation of defendant’s sentence.

           6. Testimony Comparing the Victim’s Life to Others
     The prosecutor’s last question to the victim’s mother invited her to add
anything else she wanted to say about her son or the impact of his murder on the
family. In response, the mother described how, at 16 years old, her son already
had become a productive member of society with a job, car, and bank account.
She concluded, “Mark walked down a road that wasn’t an easy road. He came
from a dysfunctional family. He went to a private school and had to go to a public
school. He went through divorce. He went through poverty for the first several
months after Jack and I broke up. We didn’t have a lot of money. We never did
really have what I would consider a lot of money. We were comfortable. But he
made proper choices. When he came to that fork in the road that goes right or
wrong, he chose right consistently.”




                                          88
     Defense counsel did not object to the testimony at the time, but argued in his
mistrial motion that this closing statement was less a description of her son’s life
than a “pre-planned” closing argument. In denying the mistrial motion, the trial
court characterized the statement as the culmination of the two years the mother
had to think about how to express her grief and articulate how the loss of her son
had affected her family.
     On appeal, defendant contends the mother’s statement improperly anticipated
much of the defense’s penalty phase evidence about defendant’s childhood
problems, including his educational challenges and the disruption caused by his
parent’s divorce. He argues the statement drew improper comparisons between
the lives of the victim and of defendant.
     We reject defendant’s contentions as unsupported by the record. If,
coincidentally, some parallels existed between the lives of the victim and of
defendant, the mother’s testimony did not expressly connect them, and defendant
does not point to any comments by the prosecutor that invited such a comparison.
The testimony was relevant and admissible as evidence showing the victim to be
an individual whose death represented a unique loss to society in general and to
his family in particular. (People v. Prince, supra, 40 Cal.4th at p. 1286.)

           7. The Videotape

               a. Background
     The prosecutor presented a 10 1/2 minute videotape with an instrumental
soundtrack. Approximately 115 still photographs depicted the victim from
infancy until he was killed at age 16. It concluded with an image of a snow
covered road followed by a photograph of his memorial plaque. The version of
the video previewed by the court and the parties outside the presence of the jury
had been 16 to 17 minutes long and had included Walker’s favorite songs,



                                            89
including “Fire and Rain” by James Taylor. Defense counsel objected to the
emotional effect of the songs and the religious references in two of them. The trial
court found the video images admissible but agreed that the music magnified their
emotional impact and caused the videotape to be substantially more prejudicial
than probative. The court suggested the prosecutor should restrict himself to
“Muzak-type” background if he wanted to use music. The prosecutor
subsequently shortened the tape and substituted an instrumental track with no
apparent songs or recognizable themes. While conceding the new music was not
as emotional as the previous songs, defense counsel again objected to the use of
music. After reviewing the edited videotape, the trial court overruled the
objection, finding the simple piano music did not add materially to the emotional
effect of the videotape, and that its probative value outweighed any prejudicial
effect.

               b. Analysis
     In assessing the admissibility of certain victim impact evidence, trial courts
“must not permit irrelevant background music or video techniques that enhance
the emotion of the factual presentation,” and the videotape, “even when presented
factually, must not be unduly emotional.” (People v. Kelly (2007) 42 Cal.4th 763,
798.) Relying on Kelly, defendant contends the challenged videotape violated
these principles because its dramatic effect was enhanced by the accompanying
music. We have reviewed the tape, and we agree with the trial court that the
music used did not add materially to its emotional effect.
     For the first time on appeal, defendant contends the videotape contains an
image that improperly enhanced its emotional impact, namely, the image of a
prone body among photographs of the victim as an infant and young child. Trial
counsel did not object to the photographs in the video, only to the musical



                                         90
component, and the prone figure was not mentioned during the mistrial motion.
Defendant’s claim based on this single image is forfeited for failure to object
below. (People v. Frye, supra, 18 Cal.4th at pp. 969-970.)
     In any event, we also reject this claim on its merits. We have reviewed the
videotape and taken note of the photograph to which defendant refers. It depicts
two people lying on a trampoline, one of whom presumably is the victim, as this
apparently was an athletic activity he enjoyed. The image flashes by quickly and
might have been confusing to a viewer, but we can ascribe no particular
significance to it, especially because we do not know how the image appeared
when the jury viewed it with the courtroom equipment. Defendant does not
contend, nor do we perceive, that the image was part of an effort to manipulate the
jury’s emotions. The fact it was not raised or discussed by the parties during trial
suggests it was not particularly notable. Under these circumstances, we conclude
that the trial court did not err in admitting the image, and that, in any event, the
inclusion of the image in the videotape was not prejudicial.

           8. Excessive Amount of Victim Impact Evidence
     Defense counsel unsuccessfully moved to have the trial court limit the
number of victim impact witnesses to a maximum of two. Defendant contends the
victim impact evidence was excessive because four victim impact witnesses
testified, and the prosecution played a lengthy videotape that depicted the victim
and his family. Defendant contends victim impact evidence should be limited to
testimony from a single witness, citing as an example the testimony of the
grandmother in Payne, supra, 501 U.S. at pages 814-815, the United States
Supreme Court case finding the use of victim impact testimony constitutional.
Defendant asserts that two states, New Jersey and Illinois, have instituted such a
rule by judicial decision and by statute, respectively.



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     “This court previously has rejected arguments ‘that victim impact evidence
must be confined to what is provided by a single witness’ [citation] . . . .” (People
v. McKinnon (2011) 52 Cal.4th 610, 690.) Payne does not impose a constitutional
limitation on the number of impact witnesses. The statutes and case law of other
states are not binding on us. (See People v. Hartsch (2010) 49 Cal.4th 472, 509.)
Under Payne, victim impact testimony is unconstitutional when it is “so unduly
prejudicial that it renders the trial fundamentally unfair . . . .” (Payne, supra, 501
U.S. at p. 825.) We conclude the victim impact evidence in defendant’s case did
not violate this constitutional standard.

           9. Cumulative Error as to the Victim Impact Evidence
     In the event we do not find any one of his claims concerning the victim
impact evidence constitutes reversible error in isolation, defendant contends the
cumulative impact of this evidence was unduly prejudicial and was likely to
provoke irrational, capricious, or purely emotional responses from the jury. We
have found no reversible error in the individual claims, and we do not find
reversible error by considering the claims cumulatively.

           10. The Mistrial Motion
     Defendant contends the trial court abused its discretion by denying his
motion for mistrial based on the victim impact evidence. (People v. Cox (2003) 30
Cal.4th 916, 953 [denial of mistrial motion is reviewed under an abuse of
discretion standard].) He points to the grave vandalism testimony and the
videotape montage as constituting incurably prejudicial evidence that required a
mistrial. Having found no reversible error in the admission of the victim impact
evidence, we find no abuse of discretion in the trial court’s denial of defendant’s
motion for mistrial based on that evidence.




                                            92
           11. Refusal to Give a Defense Instruction on Victim Impact Evidence
     Defense counsel requested the jury be instructed that “[e]vidence has been
introduced for the purpose of showing the specific harm caused by the crime as
part of the circumstances of the offense factor. Such evidence was not received
and may not be considered by you to divert your attention from your proper role of
deciding whether Mr. Montes should live or die. You must face this obligation
soberly and rationally, and you may not impose the ultimate sanction as a result of
an irrational, purely subjective response to emotional evidence and argument.”
The trial court declined to give the proposed instruction, finding it argumentative,
duplicative of other instructions, and potentially misleading.
     We held in People v. Zamudio (2008) 43 Cal.4th 327, that the trial court did
not err by refusing to give a proposed instruction substantially similar to the
proposed instruction rejected here. The proposed instruction in Zamudio
contained this additional sentence at the end: “ ‘On the other hand, evidence and
argument on emotional though relevant subjects may provide legitimate reasons to
sway the jury to show mercy.’ ” (Id. at p. 368.) The absence of that sentence in
defendant’s version makes it no less subject to criticism that it was “misleading to
the extent it indicates that emotions may play no part in a juror’s decision to opt
for the death penalty.” (Ibid.) For the reasons discussed in Zamudio, we conclude
the trial court did not err in refusing to instruct the jury with the quoted proposed
instruction. We decline defendant’s request to reconsider our ruling in Zamudio.

       B. Prosecutorial Misconduct
     Defendant contends the prosecutor committed misconduct during the penalty
phase. As we discuss below, none of the cited instances rises to the level of
prosecutorial misconduct or constitutes reversible error.




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           1. Reference to the Jail’s Maximum Security Area
     Although the trial court had made an in limine ruling that witnesses should
not mention that defendant’s cell was in the maximum security area of the jail, a
deputy correctional officer mentioned that fact in passing during his testimony
about a search of defendant’s cell that uncovered a weapon. Defendant forfeited
any claim of misconduct based on that remark by failing to object below or to seek
a jury admonition. (People v. Frye, supra, 18 Cal.4th at pp. 969-970.)
     In any event, there was no misconduct. The prosecutor’s question to the
correctional officer was proper because it was not inherently likely to elicit a
reference to the disclosed fact and there was no evidence the prosecutor asked it
with the intent to elicit such a reference. (People v. Leonard (2007) 40 Cal.4th
1370, 1405.) In that regard, we noted that the prosecutor did not refer to the
disclosed fact in further questioning of the witness or in closing argument.

           2. Questioning Concerning Additional Mental Tests
     Defendant contends that, despite the prosecutor’s assurance he would not
pursue such a line of inquiry, the prosecutor’s questions to the doctor who
administered defendant’s I.Q. tests improperly implied defendant had been
prepped for the test. The prosecutor’s questions concerned whether the doctor had
given defendant additional tests related to I.Q. or brain damage. We conclude they
did not necessarily imply that defendant had been prepped for the I.Q. test.
Accordingly, we reject defendant’s contention that this line of questioning was
improper. In any event, defendant fails to show prejudice as to those questions
because the trial court sustained some of his objections to them as not relevant and
beyond the permissible scope of cross-examination.

           3. Eliciting Testimony Regarding Gangs
     Defense counsel limited defendant’s penalty phase evidence to his childhood
up to the age of 12, focusing on his educational challenges and his parents’


                                         94
separation. In order to preclude the prosecutor from eliciting evidence outside this
narrow scope, counsel did not present testimony about his good character traits
during that time. Defendant contends the prosecutor nonetheless improperly
questioned several witnesses about defendant’s involvement in gangs during his
childhood up to the age of 18.
     We have reviewed the challenged questioning. The trial court sustained
defense objections to several of the questions, and no objectionable evidence was
presented to the jury. (People v. Doolin (2009) 45 Cal.4th 390, 444.) As to other
questions, defense counsel made no objection and did not request an admonition.
As to those questions, any claim of error has been forfeited on appeal. (People v.
Frye, supra, 18 Cal.4th at pp. 969-970.)
     In any event, we find no misconduct. Defendant’s involvement with gangs
was an established fact in the guilt phase. The prosecutor’s questioning of the
defense witnesses at the penalty phase regarding that subject was properly
designed to show the witnesses lacked knowledge about defendant’s life or were
deliberately refusing to disclose their knowledge.

           4. Questions Based on the Assumption Defendant was the Shooter
     While cross-examining two of defendant’s penalty phase witnesses, the
prosecutor asked questions that assumed defendant was the shooter, such as “The
fact that [defendant] killed Mark Walker is devastating to your family, isn’t it?”
Defendant contends it was improper for the prosecutor to pose this type of
question because the jury had not made a specific finding that defendant was the
shooter. The contention lacks merit. The record, including defendant’s own
admissions to being the shooter, supported the prosecutor’s questions. Nothing
more was required.




                                           95
           5. Questioning Defendant’s Wife Regarding an Undisclosed Letter and
               Motion for Mistrial Based on Failure to Disclose the Letter

                a. Background
     During cross-examination of defendant’s wife, the prosecutor produced and
referred to a letter she ostensibly wrote to defendant after his arrest. The
prosecutor asked, “Do you recall writing a letter to your husband in which you
asked him to get you the names of the people involved in the prosecution so you
could give them to somebody.” Defense counsel’s objection to this question as
beyond the proper scope of cross-examination was overruled, and the wife
answered, “No. I don’t.” Defense counsel asked to be shown the letter before
further questioning. Outside the presence of the jury, the trial court discussed with
the parties the fact that the letter had not been disclosed to the defense.
     Defense counsel argued the failure to provide the letter as discovery violated
the criminal discovery provisions of section 1054 et seq., and had impacted the
defense’s ability to make informed tactical decisions about what witnesses to call
at the penalty phase. The prosecutor contended that, pursuant to section 190.3, he
had no obligation to provide notice regarding the letter because it was penalty
phase rebuttal evidence. Defendant moved for a mistrial and alternatively asked
the court to admonish the jury not to infer anything from the questions asked about
the letter. When the trial court said it would need to excuse the jury early that day
to research the issue, the prosecutor chose to forgo the use of the letter. Defense
counsel renewed his request for a mistrial because of the alleged impact already
created by the mention of the letter, arguing its mention constituted intentional
misconduct. The trial court denied the motion, stating it did not view the
prosecutor’s actions as intentional misconduct but rather as a disagreement as to
the law concerning penalty phase rebuttal evidence. When the jurors returned to




                                          96
the courtroom, the trial court admonished them to disregard the last question asked
of the witness.

                  b. Analysis
     Defendant contends the prosecutor committed misconduct by violating his
discovery obligation to disclose the letter to the defense if he intended to use it as
rebuttal evidence at the penalty phase. After defendant’s 1996 trial, we addressed
this issue in People v. Gonzalez (2006) 38 Cal.4th 932, 955-960 (Gonzalez), and
held that, although penalty phase rebuttal evidence is not subject to section 190.3’s
notice requirement, it is subject to the criminal discovery provisions of section
1054 et seq. Given the lack of guidance before Gonzalez, we agree with the trial
court’s ruling that the prosecutor’s failure to disclose the letter did not represent
intentional misconduct.
     However, assuming for the sake of argument the prosecutor erred by not
disclosing the letter, we find the error harmless beyond a reasonable doubt because
the prosecutor withdrew his use of the letter, the trial court admonished the jury,
and there was “ ‘no suggestion that the defense would have been different had
defendant been aware of [the belated discovery] before trial.’ ” (Gonzalez, supra,
38 Cal.4th at p. 962, quoting People v. Pinholster (1992) 1 Cal.4th 865, 941.)
     Defendant contends the admonishment was insufficient because the court
told the jury only to disregard the last question (“Is this your handwriting?”),
rather than to disregard all mention of the letter. Because defense counsel did not
object when the court proposed the given admonition and later reminded the court
to admonish the jury “to disregard the last question,” defendant forfeited this claim
on appeal. In any event, the admonition was sufficient. Defendant’s wife had
denied writing the letter in the only question she answered concerning it. With the
jury admonished to disregard the last pending question concerning whether the



                                          97
letter was in her handwriting, there remained nothing in evidence about the letter
for the jury to consider. We presume the jury followed the trial court’s
instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 138-139; see Francis v.
Franklin (1985) 471 U.S. 307, 324, fn. 9.)
     For the same reasons, we reject defendant’s claim that the trial court erred by
denying his motion for mistrial based on the prosecutor’s failure to disclose the
letter. A motion for “ ‘mistrial should be granted if the court is apprised of
prejudice that it judges incurable by admonition or instruction.’ ” (People v.
Jenkins (2000) 22 Cal.4th 900, 985-986.) Here, where the jury was properly
admonished, we find no abuse of discretion in the trial court’s denial of the
mistrial motion. (People v. Cox, supra, 30 Cal.4th at p. 953.)

           6. Asserted Misconduct in Closing Argument

               a. Asking Jurors to Put Themselves in the Victim’s Place
     Defendant contends the prosecutor committed misconduct by asking jurors to
put themselves in the victim’s place and imagining his final hour. Defendant
forfeited this claim by failing to object and request an admonition in the trial court.
(People v. Frye, supra, 18 Cal.4th at pp. 969-970.) In any event, “it is proper at
the penalty phase for a prosecutor to invite the jurors to put themselves in the
place of the victims and imagine their suffering.” (People v. Slaughter (2002) 27
Cal.4th 1187, 1212 [listing cases].)

               b. Asking Jurors to Show Defendant the Same Mercy He Showed
                   the Victim
     Defendant contends the prosecutor committed misconduct by asking the
jurors to show defendant the same level of mercy he showed the victim, which
was none. Defendant forfeited this claim below by failing to object and request an
admonition. (People v. Frye, supra, 18 Cal.4th at pp. 969-970.) In any event,
defendant acknowledges our prior holdings that such comments are not

                                          98
misconduct. (People v. Benavides (2005) 35 Cal.4th 69, 109; People v. Ochoa
(1998) 19 Cal.4th, 353, 464-465.) We decline his request to reconsider the issue.

               c. Appealing to Jurors’ Personal Fears and Insinuating the Jurors
                   were Victims in the Case
     Defendant contends the prosecutor committed misconduct by arguing the
jurors were victims because hearing about defendant’s acts would haunt them.
Defendant forfeited this claim below by failing to object and request an
admonition. (People v. Frye, supra, 18 Cal.4th at pp. 969-970.) In any event, the
claim fails. Defendant points to People v. Mendoza (2007) 42 Cal.4th 686, 706,
where we agreed with the trial court’s ruling that a prosecutor committed
misconduct by arguing jurors were victims in the sense they were forced to make a
decision whether the defendant would live or die. However, the prosecutor’s
comments in the present case did not implicate the jury’s duty to render a penalty
phase verdict, but, rather, constituted a proper emotional appeal based on the
evidence. (See People v. Sanders (1995) 11 Cal.4th 475, 551.)

               d. Arguing the Legal System Provided Defendant with More Rights
                   Than the Victim Had
     Defendant contends the prosecutor committed misconduct by implying the
system coddles criminals by providing them more procedural protections than
their victims. Defendant forfeited this claim below by failing to object and request
an admonition. (People v. Frye, supra, 18 Cal.4th at pp. 969-970.) In any event,
we reject defendant’s interpretation of the prosecutor’s comments. The prosecutor
said defendant had “summarily executed” Walker even though Walker had
committed no crime. The prosecutor contrasted this with the fact defendant now
had defense counsel pleading for his life, and a jury considering his sentence. We
find no misconduct in his remarks. The prosecutor properly contrasted the
unlawful and arbitrary manner in which defendant had killed his victim with the


                                        99
lawful and methodical way in which the legal system and the jury would decide
defendant’s fate.

               e. Name-calling and Dehumanizing Defendant
     Defendant contends the prosecutor committed misconduct by referring to
defendant as a “monster,” a “sociopath,” a “reprehensible excuse for a human
being,” and an “urban terrorist.” Defendant forfeited these claims below by failing
to object and request admonition. (People v. Frye, supra, 18 Cal.4th at pp. 969-
970.) In any event, we reject this claim on its merits because “[a]rgument may
include opprobrious epithets warranted by the evidence.” (People v. Zambrano
(2007) 41 Cal.4th 1082, 1172.)

               f. Asserted Transformation of Mitigating Evidence into an
                   Aggravating Factor
     Defendant contends the prosecutor committed misconduct by commenting on
defense mitigating evidence focusing on defendant’s childhood and his alleged
development disabilities. The prosecutor asked the jurors, as they considered
testimony by defendant’s family members, to consider that those family members
“have been victimized by his conduct, by his crime. He has totally . . . spat in
their faces, when he committed the murder. . . . He has rejected his upbringing.
He came from a good American family.”
     Defendant contends the prosecutor’s comments constituted error under
People v. Boyd (1985) 38 Cal.3d 762, because mitigating evidence about his
character and background was wrongly used as aggravating evidence. Defendant
forfeited this claim below by failing to object and request an admonition. (People
v. Frye, supra, 18 Cal.4th at pp. 969-970.) In any event, there was no misconduct.
“Boyd concerns the admission of aggravating and mitigating evidence, not the
scope of permissible argument.” (People v. Avena (1996) 13 Cal.4th 394, 439.)
The focus of the prosecutor’s argument was that testimony by defendant’s family


                                        100
did not support a life sentence based on sympathy for that family when weighed
against defendant’s actions in committing the crimes. “ ‘ “A prosecutor does not
mischaracterize such evidence [offered in mitigation] by arguing it should not
carry any extenuating weight when evaluated in a broader factual context.” ’ ”
(People v. Young (2005) 34 Cal.4th 1149, 1219-1220.)

               g. Appeals to the Conscience of the Community
     Defendant contends the prosecutor committed misconduct by urging the jury
to consider community values and to act as the conscience of the community.
Defense counsel unsuccessfully objected to the prosecutor’s comments during the
trial. Defendant acknowledges we have rejected this type of claim in People v.
Zambrano, supra, 41 Cal.4th at pages 1177-1178. We decline his request to
reconsider the issue.

               h. References to Future Dangerousness
     Based on the evidence of the shank found in defendant’s cell, the prosecutor
argued defendant would pose a danger to guards and other inmates if given a life
sentence. Defense counsel objected three times to this line of argument; one
objection was sustained with an admonition to the jury to disregard the
prosecutor’s comment on future dangerousness. Defendant acknowledges we
repeatedly have held that when supported by the evidence, a prosecutor may argue
in the penalty phase that if the defendant is not executed, he or she will remain a
danger to others. (People v. Zambrano, supra, 41 Cal.4th at p. 1179; People v.
Demetrulias (2006) 39 Cal.4th 1, 32-33.)

               i. Comments on Defendant’s Lack of Remorse
       Defendant contends the prosecutor committed misconduct by arguing
defendant showed no remorse in the way he committed the murder and acted
thereafter, and by observing that none of the defense witnesses testified that


                                        101
defendant had expressed remorse for the crime. Defendant forfeited these claims
below by failing to object and request an admonition. (People v. Frye, supra, 18
Cal.4th at pp. 969-970.) In any event, these claims lack merit.
       The prosecutor properly commented on the cold-blooded manner in which
defendant gunned down the victim and on defendant’s conduct immediately after
he left the murder scene and reappeared at Varela’s party. A prosecutor may urge
the jury to view a defendant’s callousness of acts and lack of remorse at or near
the time of the murder as aggravating circumstances of the capital crime.
(§ 190.3, factor (a); People v. Pollock, supra, 32 Cal.4th at p. 1184; People v.
Crew (2003) 31 Cal.4th 822, 857; People v. Gonzalez (1990) 51 Cal.3d 1179,
1231-1232.) The prosecutor also properly could argue that defendant bragged that
he “earn[ed] his stripes,” by killing Walker. Defendant’s comment about “earning
his stripes” revealed that he had committed the murder to gain membership in a
criminal gang, a motivation that could be considered in aggravation as a
circumstance of the capital crime under section 190.3, factor (a).
       Defendant is correct that the lack of testimony or evidence of postcrime
remorse “ ‘does not fit within any statutory sentencing factor, and thus should not
be urged as aggravating.’ ” (People v. Pollock, supra, 32 Cal.4th at p. 1184.)
Defendant presented no evidence of postcrime remorse, and the prosecutor
commented that, although the defense had called several witnesses, it had not put
on any evidence or testimony “that defendant has expressed remorse, sorrow,
sympathy, or pity.” Here, where the prosecutor did not suggest that lack of
remorse was an aggravating factor, he properly commented on defendant’s lack of
remorse “as relevant to the question of whether remorse is present as a mitigating
circumstance.” (People v. Mendoza (2000) 24 Cal.4th 130, 187; People v. Davis
(1995) 10 Cal.4th 463, 537.)



                                        102
               j. Reference to Defendant’s In-Court Lack of Remorse
     Defendant contends the prosecutor committed misconduct by commenting on
his in-court demeanor as evidencing a “lack of remorse or compassion.” With
regard to defendant’s demeanor at trial, the prosecutor told the jury, “The only
time [defendant] cried [was] when his mother talked about his parents splitting up.
You saw the video of Mark Walker’s family. You saw the testimony, you heard
the testimony of Mark Walker’s family. No tear was shed except when you bring
up something that is a bad memory for him.” Defendant forfeited this claim by
failing to object and request admonition below. (People v. Frye, supra, 18 Cal.4th
at pp. 969-970.)
     We also reject this claim on the merits. At the penalty phase, “ ‘a prosecutor
may comment during closing argument on a defendant’s demeanor.’ ” (People v.
Valencia (2008) 43 Cal.4th 268, 307, quoting People v. Navarette (2003) 30
Cal.4th 458, 516; see People v. Haskett (1990) 52 Cal.3d 210, 247 [“Reference to
courtroom demeanor is not improper during the penalty phase.”].)

           7. Cumulative Effect of Penalty Phase Misconduct
     Defendant contends the cumulative effect of the prosecutor’s asserted
misconduct at the penalty phase requires reversal of his death sentence even if
none of the asserted misconduct is prejudicial individually. We have found no
reversible error or prejudicial misconduct in the individual claims, and find no
reversible error in the claims considered cumulatively, either.

       C. Instructional Issues

           1. Refusal of Defense Instruction on Exclusivity of List of Aggravating
               Factors and Failure of Trial Court to Instruct on Issue on Its Own
               Motion
     Defendant’s claim to the contrary, the trial court did not err by refusing to
give a proposed defense instruction that stated the factors in aggravation referred



                                        103
to in CALJIC No. 8.85 were the only ones the law permitted the jury to consider.
Refusal to give this instruction was not error because what was expressed in the
proposed special instruction was implicit in CALJIC No. 8.85, the instruction
actually given. (People v. Berryman (1993) 6 Cal.4th 1048, 1100.)
     Repeating his previous argument that the prosecutor improperly referred to
lack of remorse as an aggravating factor, defendant contends that, even if the trial
court properly refused the proposed special instruction, it should have given an
ameliorating instruction on its own motion after the prosecutor referred to
defendant’s lack of remorse in argument. Because we have found the prosecutor’s
comments on lack of remorse were proper, we conclude the trial court had no
reason to provide any type of ameliorative instruction on that issue.

           2. Refusal of Defense Instruction Against Double Counting
     The trial court refused to give the defense’s requested special instruction
against “double counting” the crimes and the special circumstances. As defendant
acknowledges, “ ‘[w]e have already concluded that the standard instructions do
not inherently encourage the double counting of aggravating factors. [Citations.]
We have also recognized repeatedly that the absence of an instruction cautioning
against double counting does not warrant reversal in the absence of any misleading
argument by the prosecutor.’ ” (People v. Ayala (2000) 24 Cal.4th 243, 289,
quoting People v. Barnett (1998) 17 Cal.4th 1044, 1180.) Defendant
acknowledges the prosecutor did not urge the jury to double count the
circumstances of the crime and the special circumstances, and did not argue that
each separate special circumstance should be considered a separate aggravating
circumstance. We therefore reject defendant’s claim of error.




                                        104
           3. Refusal to Instruct on Entitlement of Defendant to Individual
               Judgment of the Jurors
     At the guilt phase, the trial court instructed with CALJIC No. 17.40, which
explained that each party was entitled to the individual opinion of each juror and
that a juror should not be influenced to decide a question in a particular way
because a group of jurors favored such a decision. At the penalty phase, the court
refused defendant’s proposed penalty phase instruction that essentially said the
same thing as CALJIC No. 17.40. Although the court, in its penalty phase
instructions, directed the jury to disregard the instructions given at the guilt phase,
we reject defendant’s contention that it erred by refusing his special instruction or
by failing to repeat CALJIC No. 17.40. We have held the instructions that were
given, CALJIC Nos. 8.84.1 and 8.84.2, instruct the penalty phase jury to give the
defendant the benefit of a fully individualized evaluation of the aggravating and
mitigating evidence presented. (People v. Hawthorne (1992) 4 Cal.4th 43, 74-75.)
Nothing more was required.

       D. Juror Misconduct
     After the jury returned its verdict of death, defendant filed a new trial motion
alleging that Alternate Juror No. 3, who had been substituted in as a sitting juror at
the outset of the penalty phase, had committed misconduct during voir dire by
consulting an elder in his church about the church’s views on capital punishment.
The juror also read passages from the Book of Mormon to which the elder had
referred him. The trial court denied the new trial motion, finding the juror had not
committed misconduct, and that no prejudice resulted assuming misconduct had
occurred. Defendant renews this claim of juror misconduct.

           1. Background
     In his motion for new trial, defendant submitted transcripts of two interviews
with Alternate Juror No. 3 that revealed the following: Between the time


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Alternate Juror No. 3 filled out his initial juror questionnaire and when he was
questioned individually in chambers, he had consulted with his work supervisor,
who was a friend and fellow elder of the Church of Jesus Christ of Latter-day
Saints.29 Alternate Juror No. 3 asked about the church’s general position on
capital punishment because he did not know it when he filled out the juror
questionnaire. In that questionnaire, the juror said he had no opinion on the
subject. The friend advised him to read certain passages in the Book of Mormon
that indicated church members should follow the laws of the state even if they did
not believe in them. The passages indicated to Alternate Juror No. 3 that if the
laws of the state turned out to be wrong, this “would be sorted out in the end,” and
the church member “wouldn’t be held accountable for it.” During voir dire, the
prosecutor asked whether Alternate Juror No. 3 had formed an opinion about the
death penalty since his initial juror questionnaire and whether he had the ability to
actually impose the death penalty if he thought it was appropriate. Based on his
review of the scriptures, Alternate Juror No. 3 recalls he answered, that “the way
my religion is . . . we are to obey the laws of the land that we’re governed by, and
that, yes, I would not have a problem if I had to do it.”30


29     Defendant contends that, in the first interview, Alternate Juror No. 3 stated
he had consulted his friend at the beginning of the penalty phase when he was
substituted in as a sitting juror. The passage defendant cites from the first
interview is unclear, and does not support defendant’s contention. In any event,
Alternate Juror No. 3 was clear in his second interview that he consulted his friend
between the time he filled out his initial juror questionnaire and his in-chambers
voir dire, and this was the chronology trial counsel adopted in arguing the new
trial motion.
30     Alternate Juror No. 3’s account accurately tracks his answer in the trial
transcript: “[W]ith my religion that’s one of the things I believe is obey pretty
much the laws of the land . . . . And if that’s what the law states should be
imposed, that’s pretty much what I would try to do, the best I could.”



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            2. Analysis
     “It is misconduct for a juror to consider material [citation] extraneous to the
record. [Citations.] Such conduct creates a presumption of prejudice that may be
rebutted by a showing that no prejudice actually occurred.” (People v. Mincey
(1992) 2 Cal.4th 408, 467.) “[T]he extraneous material to which jurors are
exposed must be inherently likely to prejudice a juror, or there must be facts from
which it can be concluded that there was substantial likelihood of actual bias.”
(People v. Williams (2006) 40 Cal.4th 287, 336.) Defendant contends the passages
from the Book of Mormon that Alternate Juror No. 3 consulted were prejudicial
because they impermissibly lessened his personal sense of responsibility by
suggesting he would not be held accountable by his church for following the laws
of the state.
     Alternate Juror No. 3 tried to clarify his personal attitude towards the death
penalty during the voir dire process by making a general query to his friend about
his church’s position on capital punishment, but he did not discuss any specifics of
the case. Assuming for the sake of argument the juror committed misconduct by
consulting passages from the Book of Mormon, those passages did not lessen the
juror’s personal sense of responsibility by shifting the decision to some other
entity. Defendant’s reliance on Caldwell v. Mississippi (1984) 472 U.S. 320, 325-
326, is misplaced. In that case, the prosecutor argued the jury should not view
itself as the final determiner of defendant’s sentence because it would be reviewed
by the state supreme court. (Id. at pp. 328-329.) Here, the passages from the
Book of Mormon were neutral as to the death penalty. The effect they had, if any,
was simply to take this juror’s religion off the table as a factor in reaching a
verdict at the penalty phase.




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       E. Cumulative Error
     Defendant contends the cumulative effect of the asserted guilt and penalty
phase errors require reversal of his conviction and death sentence even if none of
the errors is prejudicial individually. We conclude any errors or assumed errors
were not prejudicial, whether viewed separately or cumulatively.

       F. Death Sentence Disproportionate to Defendant’s Individual
          Culpability
       Defendant contends imposition of the death penalty is disproportionate to
his individual culpability and violates the Eighth Amendment to the United States
Constitution and article I, section 17 of the California Constitution. Defendant
requests we undertake intracase proportionality review in which we examine “ ‘the
personal characteristics of the defendant, including age, prior criminality, and
mental capabilities,’ ” and “ ‘the circumstances of the offense, including its
motive, the extent of the defendant’s involvement in the crime, the manner in
which the crime was committed, and the consequences of the defendant’s acts.’ ”
(People v. Steele (2002) 27 Cal.4th 1230, 1269.) “ ‘If the court concludes that the
penalty imposed is “grossly disproportionate to the defendant’s individual
culpability” [citation], or, stated another way, that the punishment “ ‘ “shocks the
conscience and offends fundamental notions of human dignity” ’ ” [citation], the
court must invalidate the sentence as unconstitutional.’ ” (Ibid.)
       Defendant argues he was young at the time of the capital offense, he had
limited mental capabilities, and had a minimal criminal background. He also
contends the jury never found he killed anyone or he intended anyone to be killed.
       Defendant acknowledges the trial court did not determine the extent of his
asserted mental impairment and, as a result, those factual questions can be
determined only in a habeas corpus petition. (People v. Leonard, supra, 40
Cal.4th at p. 1428.)


                                         108
       The lack of a specific jury finding that defendant was the shooter or that he
intended to kill does not render his death sentence grossly disproportionate.
Several witnesses testified to defendant’s admissions that he was the shooter and
that he intentionally shot the victim to prevent him from identifying defendant and
his codefendants. Furthermore, in order to find true the special circumstance of
murder in the commission of a robbery or in the commission of a kidnapping for
robbery or in the commission of a kidnapping, the jury had to find either that
“defendant actually killed a human being” or that he “with the intent to kill,” or
“with reckless indifference to human life and as a major participant,” aided and
abetted the felonies that supported the theory of first degree felony murder in this
case. (CALJIC No. 8.80.1 (1996 rev.) (5th ed. 1988).)
       While defendant, who was 20 at the time of the capital offense, arguably
was young and lacked an extensive prior criminal history, the circumstances of the
crime were heinous. Defendant participated in carjacking the 16-year-old victim,
apparently motivated by the desire to obtain transportation to a party. Defendant
kidnapped the teenager by imprisoning him in the trunk of his family’s car, drove
to the party, and eventually drove the victim to an isolated location. The evidence
reasonably suggests defendant shot the defenseless teenager at close range as he
tried to get out of the trunk. Defendant returned to the party and remorselessly
carried on as if nothing had happened. Defendant later bragged to several
witnesses about committing the murder. We conclude defendant’s death sentence
is not grossly disproportionate and is justified by his motive, the extent to which
he was involved in the crime, the manner in which the crime was committed, his
remorseless attitude about the crime, and the consequences of his acts.




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                              VI. SENTENCING ISSUES

       A. Request to Modify Sentence in Lieu of Penalty Retrial
     Defendant requests that, if we vacate his death sentence, we should order a
sentence of life without the possibility of parole pursuant to sections 1181,
paragraph 7, and 1260, rather than remanding his case for a new penalty trial.
Because we find no reversible error and do not vacate the death sentence, we do
not address this request or whether, in the event of reversible error, the cited
statutes permit us to modify a death sentence rather than remand for a new penalty
phase trial. (See People v. Hines (1997) 15 Cal.4th 997, 1081-1084 (conc. opn. of
Mosk, J).)

       B. Reversal of Conviction for Count III, Carjacking, as a Necessarily
          Included Offense of Kidnap for Carjacking
     Defendant was convicted of both count II, kidnap during a carjacking
(§ 209.5) and count III, carjacking (§ 215). For count III, the principal
determinate term, the trial court imposed the upper term of nine years with one
year additional for the section 12022, subdivision (a)(1) firearm enhancement. For
count II, the court sentenced him to a concurrent sentence of life with the
possibility of parole, with one year additional for the section 12022, subdivision
(a)(1) firearm enhancement. The People correctly concede carjacking is a
necessarily lesser included offense of kidnap for carjacking. (People v. Ortiz
(2002) 101 Cal.App.4th 410, 415; People v. Contreras (1997) 55 Cal.App.4th 760,
765.) Defendant’s conviction and sentence for count III and the attendant
enhancement are reversed. (People v. Contreras, supra, 55 Cal.App.4th at p. 765.)

       C. Section 654 Requires Staying of Sentence for Count II
     Section 654 provides that the same act or omission shall not be punished
under more than one provision of law. Although the trial court made a finding that
section 654 applied, it sentenced defendant to concurrent terms on all four counts,

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including count II (kidnap during a carjacking) and count III (carjacking), the
predicate felonies for the finding of first degree murder on a theory of felony
murder. As the People properly concede, felony murder was the sole theory of
murder under which the case was prosecuted, and section 654 precludes
imposition of separate terms for these two felonies because they are the predicate
felonies for the theory of felony murder, for which defendant received his first
degree murder sentence of death. (See People v. Boyd (1990) 222 Cal.App.3d
541, 575-576.) Concurrent terms are precluded by section 654 (People v. Miller
(1977) 18 Cal.3d 873, 887), including the one-year firearm sentence enhancements
attached to each count (People v. Bracamonte (2003) 106 Cal.App.4th 704, 709).
As discussed above, count III is reversed. We order the sentence imposed as to
count II be stayed.

         VII. MISCELLANEOUS CHALLENGES TO THE DEATH PENALTY
     Defendant raises various challenges to California’s death penalty law. We
affirm the decisions that have rejected similar claims and decline to reconsider
them, as follows:
     Section 190.2, which sets out the special circumstances that if found true
render a defendant eligible for the death penalty, adequately narrows the category
of death-eligible defendants in conformity with the requirements of the federal
constitution. (People v. Hoyos (2007) 41 Cal.4th 872, 926.)
     Section 190.3, factor (a), which allows the jury to consider the
“circumstances of the crime” as an aggravating factor, is neither vague nor
overbroad, and does not impermissibly permit arbitrary and capricious imposition
of the death penalty. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 333.)
     The jury need not make written findings, achieve unanimity as to specific
aggravating circumstances, find beyond a reasonable doubt that an aggravating



                                        111
circumstance is proved (except for § 190.3, factors (b) and (c)), find beyond a
reasonable doubt that aggravating circumstances outweigh mitigating
circumstances, or find beyond a reasonable doubt that death is the appropriate
penalty. (People v. Williams (2010) 49 Cal.4th 405, 459; People v. Morrison,
supra, 34 Cal.4th at pp. 730-731.) Moreover, the jury need not be instructed as to
any burden of proof in selecting the penalty to be imposed. (People v. Burgener,
supra, 29 Cal.4th at p. 885.) The United States Supreme Court’s decisions
interpreting the United States Constitution Sixth Amendment’s jury trial guarantee
(Cunningham v. California (2007) 549 U.S. 270; United States v. Booker (2005)
543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296; Ring v. Arizona (2002)
536 U.S. 584; Apprendi v. New Jersey (2000) 530 U.S. 466) have not altered our
conclusions in this regard. (People v. Salcido (2008) 44 Cal.4th 93, 167; People v.
Hoyos, supra, 41 Cal.4th at p. 926.)
     The absence of intercase proportionality review does not violate the Eighth
and Fourteenth Amendments to the United States Constitution. (People v.
Thompson (2010) 49 Cal.4th 79, 143.)
     The jury may properly consider evidence of unadjudicated criminal activity
under section 190.3, factor (b). (People v. Friend (2009) 47 Cal.4th 1, 90.)
     “The use of certain adjectives such as ‘extreme’ and ‘substantial’ in the list of
mitigating factors in section 190.3 does not render the statute unconstitutional.”
(People v. Thompson, supra, 49 Cal.4th at p. 144, citing People v. Prieto, supra,
30 Cal.4th at p. 276.)
     “[T]he jury need not be instructed as to which sentencing factors are
aggravating and which are mitigating.” (People v. Samayoa (1997) 15 Cal.4th
795, 862.)
     “California’s capital sentencing procedures do not violate principles of equal
protection of the law on the ground that they provide safeguards different from

                                        112
those found in noncapital cases.” (People v. Williams, supra, 43 Cal.4th at p.
650.)
        “International law does not prohibit a sentence of death rendered in
accordance with state and federal constitutional and statutory requirements.”
(People v. Friend, supra, 47 Cal.4th at p. 90.)
                        VIII. CONCLUSION AND DISPOSITION
        Count III, carjacking (§ 215), is reversed, and the sentence imposed as to
count II, kidnapping during the commission of a carjacking (§ 209.5), is stayed.
The superior court is directed to amend the abstract of judgment to reflect these
modifications and to forward the amended abstract of judgment to the Department
of Corrections and Rehabilitation. In all other respects, the judgment is affirmed,
including the death sentence.

                                                          CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CORRIGAN, J.
LIU, J.




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

Name of Opinion People v. Montes
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S059912
Date Filed: March 13, 2014
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Robert J. McIntyre

__________________________________________________________________________________

Counsel:

Sharon Fleming, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Annie Featherman Fraser and Bradley A.
Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Sharon Fleming
P.O. Box 157
Ben Lomond, CA 95005
(831) 336-5920

Bradley A. Weinreb
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2290
