Filed 12/3/15




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S120583
           v.                        )
                                     )
MICKY RAY CAGE,                      )
                                     )                       Riverside County
           Defendant and Appellant.  )                   Super. Ct. No. RIF 083394
____________________________________)


        A jury convicted defendant Micky Ray Cage of the 1998 first degree
murders of Brunilda Montanez and David Burgos (Pen. Code, § 187),1 and of
being a felon in possession of a firearm (former § 12021, subd. (a)(1)). The jury
found true the allegation that as to each murder defendant personally and
intentionally discharged a firearm and proximately caused great bodily injury or
death to another person within the meaning of section 12022.53, subdivision (d)
and section 1192.7, subdivision (c)(8). It also found true the alleged special
circumstances of lying in wait (§ 190.2, subd. (a)(15)) and multiple murder
(§ 190.2, subd. (a)(3)). The jury returned a penalty verdict of death for the two
murders.
        The trial court denied defendant‟s motion for a new trial and his automatic
request to reduce the penalty. The court sentenced defendant to death. It imposed

1      All further statutory references are to the Penal Code unless otherwise
indicated.



                                          1
but stayed two 25-years-to-life indeterminate sentences for the enhancements
under sections 12022.53, subdivision (d) and 1192.7, subdivision (c)(8). The court
also imposed but stayed a three-year sentence on defendant‟s conviction of being a
felon in possession of a firearm. This appeal is automatic. (§ 1239, subd. (b).)
We affirm the judgment in its entirety.
                                     I. FACTS

       A. Guilt Phase Evidence

           1. Overview
       Defendant physically and emotionally abused his wife Claribel Burgos
(Clari),2 his daughter Vallerie Cage (Vallerie), and members of his wife‟s family
for years. His abuse included threats to kill his wife and her family. In October
1998, Clari left defendant with the help of her mother Brunilda Montanez (Bruni).
Clari took both of her and defendant‟s children, Vallerie and Micky Cage, Jr.
(Micky Jr.), and secretly traveled to Puerto Rico where they stayed with extended
family. Defendant was upset with Clari, wanted Micky Jr. back, and told friends
that he felt like doing something to Bruni in order to get his son back. Defendant
said he should “bust a cap in [Bruni‟s] ass” and that he “should just put a gun to
[Bruni‟s] head and tell her to call [Clari].” At other times, defendant said he
wanted to “fuck up” Bruni.
       On the night of November 9, 1998, defendant hid a shotgun in a laundry
basket of clothes and went to Bruni‟s house. When Bruni opened the front door,
defendant fatally shot her in the shoulder, chest and face. The shot to Bruni‟s face
was a contact wound that almost completely destroyed her head. Defendant then

2      Because defendant, his wife and his wife‟s family share surnames, we will
use their first names, by which they were commonly referred to at trial, for clarity
and convenience.



                                          2
walked upstairs to the bedroom of Clari‟s 16-year-old brother David Burgos
(David), where he fatally shot David in the chest at close range.

           2. Prior incidents of domestic violence
       Defendant and Clari met when they were both 14 years old. A few months
later, defendant moved in with Clari‟s family, which included Clari‟s mother
Bruni, Clari‟s younger brother David, and Clari‟s older, mildly intellectually
disabled brother, Richard Montanez (Ritchie). Throughout their relationship,
defendant and Clari intermittently lived with Clari‟s family. In December 1985,
defendant and Clari had their first child, Vallerie.
       In 1987, while defendant, Clari and Vallerie were living in the City of
Bellflower with Clari‟s family, defendant asked Clari, who was sleeping, to get
him some water. When Clari told defendant to get the water himself, defendant
pulled Clari out of bed, dragged her down the stairs by her hair, and began
choking her. After he forced Clari to get him a glass of water, defendant choked
her again until she blacked out.
       On another occasion when they were living with Clari‟s family in
Bellflower, David, who was five or six years old at the time, began crying because
Bruni had left to go to the store. Defendant told David he was a “momma‟s boy”
and proceeded to punch and kick him. At one point, defendant stomped on
David‟s head with his steel-toed boots. When Clari tried to intervene, defendant
turned his attention to Vallerie. Defendant pulled Vallerie‟s legs over her head
and compressed them into her body until her face turned blue.
       In January 1991, when defendant, Clari, and Vallerie were living in Signal
Hill, defendant and Clari had an argument. Defendant pushed Clari into the
bathroom, choked her, and yelled at her not to follow him around. She denied that
she had been doing so, but defendant smashed her mouth against the bathtub,



                                           3
cracking her tooth. Defendant told Clari, “If you want to play, then we‟ll play.”
Clari understood this to mean that if she “messed with him,” he would “teach her.”
       In August 1991, during an argument about money, defendant choked Clari,
pulled her hair, and pushed her face down onto the living room couch, trying to
smother her. He then dragged her into the kitchen and grabbed a knife. He
pushed Clari to the floor and put the knife to her throat. Vallerie was present in
the living room and kitchen, witnessing these events. Defendant dragged Clari
into the bedroom, where he beat and choked her on and off for the rest of the
night. Defendant told Clari, “You think I‟m playing with you but I‟m not, I‟ll kill
you.” The next morning, defendant, seeing the injured Clari, told her, “You look
fucked up, I fucked you up didn‟t I?” He threatened Clari that if she called the
police to report him, he would kill Vallerie.
       In December 1994, defendant and Clari had their second child, Micky Jr.
At this time, Clari was living in Perris with Vallerie, her mother, and her brothers.
Defendant did not live with them at this time, but was still in daily contact with
Clari. Clari had a new car that she bought for her commute to work. In January
1995, defendant came over one day and asked to use the car. Clari told him no.
Defendant responded by starting to beat her. Clari ran outside, but slipped and fell
in the grass. Defendant grabbed a brick and quickly jumped on top of her, hitting
her in the face with the brick. Clari blacked out, and when she revived, there was
a lot of blood in her eyes. She heard defendant say that he knew she would call
the police. He told her that he was not going back to jail. Vallerie and David were
outside during the incident. Defendant forced them, along with Clari and Micky
Jr., into Clari‟s car. Dizzy and hurt, Clari begged defendant to take her to the
hospital. Defendant said he would, but instead he drove around for hours. Clari
saw in the visor mirror that her forehead was “flapping” and looked “like ground
beef.” She used a diaper to mop up the blood; when the diaper was saturated, she

                                          4
used her shirt. More than seven hours later, defendant finally drove to a hospital
and let Clari go inside, after coaching her on what to say. He threatened that if she
said anything to get him arrested, he would kill their children. Fearful of
defendant, Clari claimed at the hospital that she had hurt herself by slipping at a
store.
         Clari needed numerous stitches to close the wound to her forehead, the scar
of which was visible at defendant‟s trial in 2003. Clari also lost her front teeth and
had to visit an oral surgeon to attempt to realign her jaw. At the time of trial,
Clari‟s mouth still did not close properly. It took six months to receive dentures to
replace her teeth. On numerous occasions thereafter, defendant would throw her
dentures away or hide them so that she would have to go to work humiliated.
Twice, Vallerie had to go to the dumpster to retrieve Clari‟s dentures for her.
         After Bruni purchased a house in Moreno Valley, Clari and her children
moved back in with defendant at an apartment a few miles from Bruni‟s house.
One day, when Vallerie was 10 or 11 years old, she returned from school early and
saw another woman sitting on their couch. Defendant “dared” Vallerie to tell
Clari about the woman. When defendant found out that Vallerie had done so,
defendant dragged Vallerie into the bathroom. Using clippers, he cut off all of her
long hair, and made her go to school bald. When Clari bought a wig for Vallerie
to wear, defendant took it from Vallerie and would not let her wear it again.
         Clari decided to leave defendant for good after he beat her with the brick.
She began to secretly give money to her Aunt Lydia to hold for her, and she
started to look for a new job and new apartment. Because her job hours were
flexible, she was able to go to interviews either before work or during her lunch
break. At first, she would change clothes at home, but defendant became
suspicious that she was seeing somebody else. She started hiding the clothes she
needed for her interviews. Defendant remained suspicious. He insisted on driving

                                           5
to work with her. He became more and more aggressive. He would do things
such as put sugar in her gas tank, shift the car into park while Clari was driving on
the freeway, and tear up her paycheck and flush it down the toilet. He would not
leave her alone with their children. He would not let her sleep, but would keep her
up all night arguing. He told her that if she ever left him, he would first take
Micky Jr. and then kill her, Vallerie, and her other family members, including her
mother, Bruni.
       On the morning of October 15, 1998, a day Clari had a job interview
scheduled, defendant again insisted upon driving to work with her. During the
drive, Clari told defendant that there was not enough gas in the car for him to drop
her off and pick her back up. Defendant grabbed Clari‟s purse to look for money;
finding none, he threw her purse out of the car window and onto the freeway.
Clari drove back and retrieved her purse. As soon as she had the purse, however,
defendant again threw it out the window. When defendant asked if she was going
to get it, she responded “no” and continued to drive to work. Clari decided at that
point that she would take her children and leave defendant that day.
       Clari called Bruni, telling her she could not take it anymore, and was
leaving defendant. She asked Bruni to pick up Vallerie and Micky Jr. and bring
them to work. Clari then called Vallerie, told her they were leaving, and asked her
to put clothes for the three of them in a trash bag. Clari told her boss she was
leaving her job. Bruni picked Clari up from work with the children. Bruni
arranged for her and the children to stay with a friend of hers until they could fly
to Puerto Rico, where they could stay with relatives. Clari and the children left for
Puerto Rico a few days later.
       Clari subsequently called her mother and her brother David from Puerto
Rico. Both reported that defendant had been calling them. Defendant, who had
obtained Bruni‟s work information, called Bruni at work several times. He also

                                          6
drove through Bruni‟s neighborhood at least once a week during the weeks Clari
and the children were gone.

           3. The prosecution’s evidence of the homicides
       In October and November 1998, Kevin Neal and Jason Tipton lived in an
apartment below defendant‟s unit. The three men often spent weekends together
having barbeques, drinking, smoking, and playing dominoes. After Clari left with
the children, defendant told Tipton how upset and angry he was that Clari had
taken his son and that he did not know where they were.3 Defendant told Tipton
that he wanted to go to his mother-in-law and put a gun to her head to find out
where Clari had taken his son. Tipton heard defendant say that he should “bust a
cap in [Bruni‟s] ass” and that he “should just put a gun to her head and tell her to
call my wife.” He said that he felt like “doing something to Clari‟s mom to get
[his] son back.” At other times, he said he wanted to “fuck up” Clari‟s mother.
Defendant showed Tipton the shotgun that he owned and the ammunition inside it.
       Defendant also told Neal how upset he was that his wife had taken his son
away. Defendant called Bruni a “bitch” and was angry because she would not tell
him where his wife and children were. Neal heard defendant say he wanted to
confront Bruni to find out where his family was. Like Tipton, Neal had seen
defendant‟s shotgun at defendant‟s apartment.
       On the evening of November 9, 1998, defendant, Tipton and Neal were
playing dominoes and watching football. They were all drinking and smoking
marijuana. Defendant seemed a little high, but not very drunk. After the football
game ended, defendant, wearing a long dark Raider‟s jacket, left Tipton‟s
apartment with a friend. The friend drove defendant to Bruni‟s house.

3      Tipton died in an accident before defendant‟s trial began. The trial court
permitted his preliminary hearing testimony to be read to the jury.



                                          7
       Sarah Phipps, who lived with her parents and brother Steve next door to
Bruni, recalled hearing Bruni‟s dog barking around 10:30 or 10:45 p.m. on
November 9, 1998. The dog barked only a couple of times, stopping relatively
quickly, as it usually did if it knew the person who came to the door. She
estimated that it was between two and five minutes from when the dog stopped
barking to when she heard three loud bangs in quick succession, followed by
another loud bang.
       Another neighbor of Bruni‟s, Adrian Valdez, also heard two sets of loud
banging noises around the same time that night. He went outside to investigate
and saw a man wearing a long coat standing across the street at Bruni‟s house.
The man started walking toward Valdez‟s house, noticed Valdez, waved and then
mumbled something to him. The man continued to cross the street, went up onto
the sidewalk and walked away from Valdez. When an alarm sounded from the
direction of Bruni‟s house, the man started to run. The coat he was wearing flared
and Valdez noticed that the man was carrying an object that looked like a rifle.
       Bruni‟s son Ritchie had gone out with Steve Phipps that night to watch the
televised football game at a bar. After the game, Ritchie called Bruni to ask her to
come pick him up. Bruni agreed to do so, but never arrived. Ritchie called home
several times; one time defendant answered the phone. Ritchie and Steve ended
up taking a taxi to Ritchie‟s home.
       When they arrived at the house around 11:00 p.m., the front door to Bruni‟s
home was open about an inch and there were some clothes in the driveway. While
Steve went to get some money at his house to pay the cab driver, Ritchie opened
the door to his home and saw his mother lying on the floor “with her face blown
off.” He hugged her. Then he ran upstairs where he saw his brother David lying
dead. Ritchie screamed, hugged his brother, and managed to call 911.



                                         8
       The police arrived soon after Ritchie‟s call to 911. The first officer to
arrive saw that Ritchie was hysterical and covered in blood and fleshy matter.
Several officers tried to calm Ritchie down. Inside Bruni‟s house, the police
encountered a “gruesome” homicide scene; blood, brain matter, and tissue were on
the floor, ceiling, and walls. Bruni and David were shot dead. Several shell
casings were found by Bruni‟s feet. Two shotgun slugs were found upstairs in
David‟s room, which was also bloody. The door to David‟s bedroom showed
damage consistent with it having been kicked. A pair of burgundy pants found in
the driveway matched a burgundy top found in a laundry basket located inside the
entryway. Clari later recognized the clothes in the laundry basket as belonging to
her and defendant. She recognized the basket as one that defendant had previously
used to conceal two guns that he brought into their apartment.
       Dr. Daniel Garber, the forensic pathologist who performed the autopsies of
Bruni and David, testified that Bruni suffered three gunshot wounds; one to her
right shoulder, one to her chest, and one to her head. The shot to her head was
consistent with the shotgun being placed in or close to her mouth. The shots were
fired in rapid succession, but the head wound was probably the final shot as it
resulted in the massive destruction of Bruni‟s head, leaving only her chin and jaw.
One of Bruni‟s thumbs was severed and her other thumb was almost severed.
These wounds were consistent with Bruni putting up her hands to protect herself.
The cause of Bruni‟s death was multiple gunshot wounds.
       Dr. Garber testified that David suffered two different shotgun wounds, one
to the chest and one to his left arm. The shotgun barrel would have been within a
foot of David when it was fired and the wounds were consistent with David raising
his arm to defend himself. The gunshot wound to David‟s chest was the cause of
his death.



                                          9
       Police located a shotgun with a live round in the magazine and some shell
casings in a bush along a trail that defendant was known to use as a shortcut
between his apartment and Bruni‟s house. The expended shotgun shells recovered
from inside the house came from the shotgun that was found and the recovered
slugs probably came from that gun. In the same area, police found cigarette butts
and packs consistent with the brand defendant smoked. Police also found several
boot prints. According to a criminalist, the left boot recovered from defendant‟s
apartment “probably” made one of the impressions and the right boot recovered
“could have” made one of the other impressions.
       After defendant was arrested, police collected the clothing he had been
wearing the night Bruni and David were killed. A tracking dog was allowed to
sniff the shorts that defendant had been wearing. The dog traced defendant‟s scent
up to the front door of Bruni‟s house, then along a route matching that of the man
Valdez had seen that night, and onto the trail that defendant used as a shortcut.
The dog stopped several times in locations where evidence had been found,
including the bush under which the shotgun had been found.
       Defendant‟s pants, shorts, and swabs taken from his leg and the recovered
shotgun tested positive for human blood. A prosecution DNA expert testified that
Bruni‟s DNA profile was an included source for the bloodstains found on
defendant‟s pants, with defendant and David excluded as possible sources.
Another criminalist, using a more current DNA testing method, testified that the
stains on defendant‟s pants matched Bruni‟s DNA.

           4. The defense case
       Defendant did not present any evidence at the guilt phase of trial. In
closing argument, defendant‟s counsel argued that the DNA evidence was not
certain and the circumstantial evidence linking defendant to the killings was not



                                         10
sufficient proof for the jury to find him guilty of first degree murder beyond a
reasonable doubt.

       B. Penalty Phase Evidence

                1. The prosecution’s case
       The prosecution introduced evidence of defendant‟s prior criminal activities
involving the use or attempted use of force or violence or the express or implied
threat to use force or violence (§ 190.3, factor (b)), as follows:
       In July 1986, defendant and another man were arrested for possession of
deadly or dangerous weapons. Defendant told the arresting officer that his
companion planned to beat up a person who owed him money and defendant was
along to help if necessary.
       In January 1987, defendant stole from Nancy Icenogle, a friend of Clari, the
German Luger nine-millimeter handgun that her grandfather had brought home as
a memento from World War II. When confronted, defendant refused to return the
gun and told Icenogle that it was her word against his.
       In April 1987, defendant viciously beat 16-year-old William Hinton, who
he believed had taken some money from him. As defendant was hitting Hinton
with a piece of wood with a screw or nail sticking out of it, he yelled that Hinton
needed to die. When Icenogle screamed for defendant to stop, defendant hit her
too. Bruni intervened and made defendant stop. Icenogle spoke with the police
when they arrived. A few days later, defendant accused Icenogle of “ratting him
out,” and threatened to kill her.
       In connection with the 1988 incident in which defendant beat and kicked
then five- or six-year-old David, evidence was presented that David suffered
permanent injury, including repeated severe headaches every couple of weeks.




                                          11
       In April 1990, defendant hit, kicked, choked, and slammed into a wall Mary
Roosevelt, the mother of his other daughter, Felisha Cage.
       In connection with the August 1991 incident in which defendant beat Clari
and held a knife to her throat, evidence was presented that defendant subsequently
resisted arrest. It required three officers to subdue him.
       In December 1992, defendant held Vallerie up by one arm with her feet
dangling off the ground and hit her with a belt. When Clari tried to intervene,
defendant pushed her out of the way. He told Clari that Vallerie was his child and
he would “hit her any way [he] want[ed],” with as much force as he wanted.
Vallerie testified that defendant had been beating her that day with a belt buckle
and that she called the police. She regretted doing so because she got in worse
trouble and was sent to the closet for long periods of time. Vallerie sometimes
spent entire days in the closet, including once on her birthday.
       Vallerie also testified regarding an incident sometime in 1994 when
defendant picked a fight with Ritchie and beat him badly. Ritchie suffered severe
bruising and had to seek treatment at a hospital.
       In June 1994, 15-year-old David Olson went to Bruni‟s house for tutoring
despite his fear of defendant, who was angry with him for refusing to loan
defendant a set of free weights. When defendant arrived at Bruni‟s home, he
confronted Olson, picked him up and threw him into some bushes outside.
Defendant told Olson‟s mother that if she called the police he would kill her and
her son and burn their house down. Defendant then exposed himself to Olson‟s
mother. Police were called and arrested defendant after a violent struggle.
Defendant broke out the rear window of the patrol car and had to be subdued with
pepper spray. Defendant threatened to kill Olson and Olson‟s father. Defendant
said that if he didn‟t kill Olson, he would “get 18th Street after him,” which Olson
understood as a reference to a Los Angeles street gang.

                                          12
       Defendant‟s sister-in-law, Traci Thompson, testified regarding an incident
involving Vallerie refusing to eat her vegetables. In response, defendant took her
into her room where he hit her and slammed her into the wall. When Vallerie
came out of her room, she was crying and shaking, and her nose was bleeding.
       The parties stipulated that defendant had previously been convicted of two
felonies. Specifically, he was convicted in 1988 of selling cocaine, for which he
was sentenced to three years in prison, and he was convicted in 1991 of spousal
abuse of Clari, for which he was sentenced to two years in prison. (§ 190.3,
factor (c).)
       As additional evidence of the circumstances of the crime (§ 190.3,
factor (a)), the prosecution presented the testimony of Dr. Alan Waxman, a
physician with Cedars-Sinai Imaging Center and director of the nuclear medicine
and imaging program there, regarding defendant‟s October 2002 positron emission
tomography (PET) scan. In Dr. Waxman‟s opinion, defendant‟s scan reflected a
normal brain. He questioned the methodology used by defense expert Dr. Wu to
conclude otherwise and suggested Dr. Wu‟s methods would produce
“abnormalities” in almost every PET scan.4 Dr. Waxman also testified that there
are inherent weaknesses in the use of a PET scan as a diagnostic measure for brain
injury or abnormality.
       Evidence was also presented that defendant pretended to be physically ill
and to have mental difficulties when police were trying to interview him after his
arrest for the killing of Bruni and David.




4     Dr. Waxman testified after defendant‟s expert, Dr. Joseph Wu, who was
allowed to testify out of order during the prosecution‟s case in aggravation to
accommodate his schedule.



                                         13
       The prosecution presented victim impact testimony from Clari, Vallerie,
Bruni‟s mother Celena Rodriguez, and Bruni‟s sister Lupe Quiles.

           2. The defense case
       Dr. Joseph Chong-Sang Wu, an associate professor at the University of
California, Irvine School of Medicine, and clinical director for the university‟s
brain imaging center, testified regarding the PET scan he performed on defendant
in October 2002. According to Dr. Wu, defendant‟s scan was consistent with his
having suffered a brain injury and with a diagnosis of schizophrenia. The
possibility of schizophrenia was confirmed, in Dr. Wu‟s opinion, by medical
records indicating defendant was taking large doses of antipsychotic medications
and a Social Security disability benefits report indicating defendant had classic
symptoms of schizophrenia. According to Dr. Wu, antipsychotic medication taken
by a person with schizophrenia would result in a reduction of hallucinations and
other symptoms, but a person without schizophrenia would be “knocked flat” by
the dosage of medication prescribed for defendant: that defendant could take and
tolerate the medication would validate a diagnosis of schizophrenia. Dr. Wu also
reviewed records indicating defendant had suffered head trauma.
       Dr. Boniface Dy, a psychiatrist with Riverside County detention mental
health services, testified that he had seen defendant since June 2000 every 25 to 30
days to review his medications, which included several antipsychotic medications.
       Defendant‟s daughter Felisha testified that she saw defendant about once a
month before he was incarcerated and that he had never been violent toward her.
       Defendant‟s mother, Emily Farmer, testified that defendant‟s behavior
changed as a child once he was diagnosed with diabetes. Defendant‟s grades had
always been poor, but after his diabetes diagnosis he became an even slower
learner. According to Farmer, when defendant was about 15 years old, he ran into



                                         14
a light pole while playing football and had to have his jaw wired for about eight
months. Farmer told the jury that the last time she saw defendant before the
murders was in late October 1998. At that time he seemed dirty, unkempt and
distant. A week after the murders, she saw him in jail. He was trembling and
shaking. He did not seem to recognize her.

           3. The prosecution’s rebuttal case
       The prosecution re-called Vallerie and Clari to testify as rebuttal witnesses.
       Vallerie described accompanying defendant to the medical evaluation
necessary to qualify him for Social Security benefits. According to Vallerie,
defendant enlisted her participation to help him appear “crazy.” At the Social
Security office, defendant talked about being abducted by aliens, made strange
faces, and laughed out of context. Vallerie testified that defendant was in fact
fully rational and understood what was happening around him. She said that he
also “faked out” the jail doctors.
       Clari testified that defendant faked his mental illness and lied on his Social
Security application in order to receive monthly disability benefits. According to
Clari, defendant would often brag about cheating the Social Security agency and
fooling doctors. He took the prescribed medications only when his case was up
for reevaluation because he knew the doctors would check his blood. When he
took the antipsychotic medication, he would sleep most of the day.

                                     II. DISCUSSION

       A. Guilt Phase Issues

           1. Admission of the evidence of defendant’s past crimes and bad acts
               against his family
       Prior to trial, the prosecutor sought a ruling allowing the admission of
defendant‟s 13 separate prior acts of abuse of Clari, one prior act of abuse of
David, three acts of abuse of Vallerie, and general evidence of the repeated abuse

                                          15
of Ritchie. The prosecutor argued defendant‟s past crimes and bad acts against his
wife and family were relevant and admissible pursuant to Evidence Code section
1101, subdivision (b) (hereafter Evidence Code section 1101(b)), principally as
evidence of motive, but also to establish identity and intent. Defendant objected
and sought to exclude the evidence, arguing it was irrelevant because there was no
evidence of defendant‟s ever previously behaving in a violent or aggressive
manner toward Bruni, who was the family matriarch. Defendant also claimed the
evidence was too remote and was simply propensity evidence that would unfairly
appeal to the jury‟s emotions. He contended that admission of the evidence would
violate his federal due process rights.
       Expressly finding that the probative value of the evidence outweighed the
prejudicial effect for purposes of Evidence Code section 352, the trial court ruled
that eight of the prosecutor‟s identified incidents of defendant‟s past abuse of
Clari, plus the incidents of defendant‟s abuse of David and Vallerie, were
admissible under Evidence Code section 1101(b). The trial court determined that
the evidence of defendant “constantly beat[ing] up” Ritchie would be excessive
under section 352 and ruled such evidence inadmissible.
       Defendant contends on appeal that the trial court erred in allowing
introduction of his past incidents of abuse of Clari, David and Vallerie, claiming
that the evidence was irrelevant, cumulative, and inflammatory and was used for
the impermissible purpose of showing his propensity for violence.
       The rules governing the admissibility of evidence under Evidence Code
section 1101(b) are well settled. Evidence of defendant‟s commission of other
crimes, civil wrongs or bad acts is not admissible to show bad character or
predisposition to criminality, but may be admitted to prove some material fact at
issue such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident. (Evid. Code, § 1101; People v. Jones (2013) 57

                                          16
Cal.4th 899, 930; People v. Hovarter (2008) 44 Cal.4th 983, 1002.) Because
evidence of a defendant‟s commission of other crimes, wrongs, or bad acts “ „may
be highly inflammatory, its admissibility should be scrutinized with great care.‟ ”
(People v. Medina (1995) 11 Cal.4th 694, 748.)
       “ „In cases in which the prosecution seeks to prove the defendant‟s identity
as the perpetrator of the charged offense by evidence he had committed uncharged
offenses, admissibility “depends upon proof that the charged and uncharged
offenses share distinctive common marks sufficient to raise an inference of
identity.” ‟ [Citation.] A somewhat lesser degree of similarity is required to show
a common plan or scheme and still less similarity is required to show intent.
(People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.)” (People v. Roldan (2005) 35
Cal.4th 646, 705.) Where other crimes or bad conduct evidence is admitted to
show motive, “ „an intermediate fact which may be probative of such ultimate
issues as intent [citation], identity [citation], or commission of the criminal act
itself ‟ ” (People v. Lewis (2001) 26 Cal.4th 334, 370), the other crimes or conduct
evidence may be dissimilar to the charged offenses provided there is a direct
relationship or nexus between it and the current alleged crimes. (People v.
Demetrulias (2006) 39 Cal.4th 1, 15; People v. Daniels (1991) 52 Cal.3d 815, 857;
People v. Thompson (1980) 27 Cal.3d 303, 319, fn. 23.)
       We review the trial court‟s ruling for abuse of discretion. (People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405; People v. Jones, supra, 57
Cal.4th at p. 930.)
       Here the prosecutor argued, and the trial court found, that the prior
incidents of abuse were important evidence of defendant‟s motive. We agree.
Motive, though it was not an ultimate fact put at issue by the charges or the
defense in this case, was probative of the material issues of identity and intent, as
well as premeditation and deliberation. (See People v. Demetrulias, supra, 39

                                          17
Cal.4th 1, 14-15; People v. Roldan, supra, 35 Cal.4th at p. 707; People v. Pertsoni
(1985) 172 Cal.App.3d 369, 374-375.) The proffered evidence, if believed by the
jury, reflected that defendant demanded Clari comply with his requests and reacted
with anger, hostility, and punishment when she did not promptly meet his
demands. Indeed, the evidence showed that over the course of many years,
defendant sought to exert power and control over Clari, Vallerie, and David by
both threatening and committing violent, demeaning, and abusive acts against
them. His threats included expressions of his intent to harm other family members
in order to enforce his will. Defendant specifically sought to prevent Clari from
leaving him by aggressively interfering with her normal activities and threatening
to kill her and her family, including Bruni. The evidence reflected that defendant
retaliated when thwarted. A logical inference from the evidence of the prior
assaultive incidents would be that defendant carried out his threats by committing
the charged crimes, intending them as retribution for Clari‟s leaving him and
taking his son. A direct relationship or nexus, thus, existed between the prior
incidents and the charged crimes. (People v. Daniels, supra, 52 Cal.3d at p. 857.)
       Under the circumstances, there was no abuse of discretion by the trial court
under Evidence Code section 352 in allowing the introduction of the prior abuse
evidence. The probative value of the evidence to explain defendant‟s motive to
commit the charged crimes was significant and not merely cumulative and
unnecessary, as defendant claims. Contrary to defendant‟s argument, the evidence
of motive was specific and not so general as to be meaningless. The evidence of
motive, found in the evidence of his prior behavior, also corroborated the
testimony of defendant‟s apartment neighbors Tipton and Neal that defendant
threatened to harm Bruni after Clari took his son away from him. It further
supported the evidence of defendant‟s identity as the killer, provided a fuller
explanation for the killings, and supplied important indirect evidence of

                                         18
defendant‟s intent, which the jury also reasonably could have considered on the
issue of premeditation and deliberation. Moreover, the evidence was not unduly
prejudicial. (Evid. Code, § 352, subd. (b).) As we have repeatedly explained:
“ „In applying section 352, “prejudicial” is not synonymous with “damaging.” ‟ ”
(People v. Bolin (1998) 18 Cal.4th 297, 320.) “ „ “[A]ll evidence which tends to
prove guilt is prejudicial or damaging to the defendant‟s case.” ‟ ” (People v.
Gionis (1995) 9 Cal.4th 1196, 1214.) The “prejudice” which section 352 seeks to
avoid is that which “ „ “uniquely tends to evoke an emotional bias against the
defendant as an individual and which has very little effect on the issues.” ‟ ”
(People v. Gionis, supra, at p. 1214.) Finally, we note that the jury was given a
limiting instruction regarding its consideration of the evidence (CALJIC No.
2.50), which was emphasized by the prosecutor during her closing argument. We
presume the jury followed the instruction.

           2. Sufficiency of the evidence of premeditation and deliberation
       Defendant contends the evidence of premeditation and deliberation was
insufficient to support his convictions of first degree murder of Bruni and David.
He argues that the first degree murder verdicts must, therefore, be reversed to
preserve his constitutional rights to due process, to present a defense, and to a fair
and reliable guilt and penalty determination. (U.S. Const., 5th, 6th, 8th & 14th
Amends.; Cal. Const., art. I, §§ 7, 15, 16 & 17.)
       Reviewing the entire record in the light most favorable to the judgment, we
conclude that substantial evidence, that is, evidence which is reasonable, credible,
and of solid value from which a rational trier of fact could find defendant guilty
beyond a reasonable doubt, supports defendant‟s conviction of first degree murder
of Bruni and David based on a theory of premeditation and deliberation. (People
v. Mendoza (2011) 52 Cal.4th 1056, 1068-1069.)



                                          19
       “A verdict of deliberate and premeditated first degree murder requires more
than a showing of intent to kill. (§ 189 [„willful, deliberate and premeditated
killing‟ as first degree murder].) „Deliberation‟ refers to careful weighing of
considerations in forming a course of action; „premeditation‟ means thought over
in advance. [Citations.] „The process of premeditation and deliberation does not
require any extended period of time. “The true test is not the duration of time as
much as it is the extent of the reflection. Thoughts may follow each other with
great rapidity and cold, calculated judgment may be arrived at quickly. . . .” ‟ ”
(People v. Koontz (2002) 27 Cal.4th 1041, 1080.) In People v. Anderson (1968)
70 Cal.2d 15, 26-27 (Anderson), “we „identified three categories of evidence
relevant to resolving the issue of premeditation and deliberation: planning
activity, motive, and manner of killing.‟ [Citation.] „However, these factors are
not exclusive, nor are they invariably determinative.‟ [Citation.] „ “Anderson was
simply intended to guide an appellate court‟s assessment whether the evidence
supports an inference that the killing occurred as the result of preexisting
reflection rather than unconsidered or rash impulse.” ‟ ” (People v. Streeter
(2012) 54 Cal.4th 205, 242.)
       Addressing the Anderson factors, defendant contends that the evidence
reflects he only planned a nonlethal confrontation with Bruni in an effort to
discover where Clari had taken his son. He complains that if bringing a gun along
were to demonstrate the required planning activity, every gun killing in California
would qualify as premeditated and deliberate first degree murder. In defendant‟s
view, his actions when he arrived at Bruni‟s house were consistent with a sudden
and random “explosion” of violence rather than calm, calculated thought. He
emphasizes that on the evening of the murders, he was drinking heavily and using
drugs. Repeating some of his previous argument regarding the allegedly improper
introduction of the prior abuse evidence, defendant contends that there was, in any

                                         20
event, no evidence in his prior abuse of his wife and daughter that he had a motive
to kill Bruni.
       Defendant‟s view of the record is not the only possible, or even most likely,
view of the evidence. To the contrary, the prosecution‟s evidence showed
significant evidence of considered planning on the part of defendant, who
repeatedly told his downstairs neighbors about his desire not only to confront
Bruni after he could not locate Clari and his son, but to “fuck [her] up.” On the
night of the killings, he put on a dark jacket, hid a loaded shotgun in a laundry
basket containing his and Clari‟s clothes, and got a ride over to Bruni‟s house. He
took the laundry basket with the concealed gun up to the front door with him.
Combined with his earlier statements, defendant‟s conduct reflects more than
incidental possession of the gun. And, although defendant had been drinking and
smoking marijuana earlier that night, defendant‟s apartment neighbor Neal
testified that defendant seemed a little high, but not very drunk.
       We also note our previous conclusion that the evidence of prior abuse was
properly admitted by the trial court to show, in part, defendant‟s motive in killing
Bruni and David. Such evidence revealed a pattern of hostile, abusive conduct by
defendant against Clari, Vallerie, and David. Defendant‟s threats of retaliation if
his will was crossed included expressions of intent to harm and kill other family
members, specifically including Bruni. Thus, a rational jury could find defendant
went to Bruni‟s house with the intent to exact retribution or revenge after Clari
defied him by leaving with the children. (People v. Streeter, supra, 54 Cal.4th at
pp. 242-243.)
       The jury reasonably could have inferred premeditation and deliberation
from the manner of killing. The evidence showed that defendant entered Bruni‟s
house and shot her three times in rapid succession. The shot to her head was
consistent with defendant placing the shotgun in or close to her mouth. “[A]

                                         21
close-range gunshot to the face is arguably sufficiently „particular and exacting‟ to
permit an inference that defendant was acting according to a preconceived
design.” (People v. Caro (1988) 46 Cal.3d 1035, 1050; accord, People v.
Thompson (2010) 49 Cal.4th 79, 114-115 [a close-range shooting without any
provocation or evidence of struggle reasonably supports an inference of
premeditation and deliberation].) And, instead of then leaving the home,
defendant stepped over or around Bruni‟s bloody body and proceeded up the stairs
to David‟s room. Defendant, thus, had time to reflect on his brutal killing of Bruni
before he kicked in David‟s bedroom door and fatally shot David. Defendant fired
twice again at close range, one of the shots being to David‟s chest.
       Finally, a jury could have inferred from the evidence of defendant‟s actions
in and outside the house after the shootings that he was not possessed by a sudden
rage, but was acting in the course of premeditated killings. Specifically, there was
evidence from Ritchie that defendant answered one of his phone calls to the house
at a time when the evidence suggested that the killings had just occurred. And
there was evidence from Bruni‟s neighbor, Valdez, that when he went outside to
investigate the source of loud banging noises, he saw a man (defendant) wearing a
long coat standing outside Bruni‟s house. Defendant then walked toward Valdez‟s
house, noticed Valdez, waved, mumbled something, and continued walking.
Defendant began to run only when an alarm sounded. These actions hardly seem
to reflect a person who had been overcome by sudden anger and acted as the result
of rash impulse.
       The evidence is more than sufficient to support a conclusion that defendant
premeditated and deliberated the murders of Bruni and David.




                                         22
           3. Sufficiency of the evidence of lying in wait
       Defendant contends insufficient evidence was presented to support his
convictions of first degree murder on a lying-in-wait theory and the jury‟s true
finding on the special circumstance of lying in wait. He argues that as a result he
was denied his constitutional rights to due process and a fair trial. (U.S. Const.,
5th, 6th, 14th Amends.; Cal. Const., art. I, §§ 5, 15 & 16.) We reject the claim.
       At the time of the murder of Bruni and David, “ „the requirements of the
lying-in-wait special circumstance were slightly different from, and more stringent
than, the requirements for lying-in-wait first degree murder. [Citation.] Whereas
lying-in-wait first degree murder required only that the murder be perpetrated “by
means of” lying in wait (§ 189), the lying-in-wait special circumstance applied to
murder committed “while lying in wait” (§ 190.2, former subd. (a)(15), italics
added).‟ [Citation.] Further, the lying-in-wait special circumstance requires intent
to kill, while lying-in-wait murder requires only a wanton and reckless intent to
inflict injury likely to cause death.” (People v. Streeter, supra, 54 Cal.4th at
p. 246; see id., fn. 7.) Where the evidence supports the special circumstance, it
necessarily supports the theory of first degree murder. (People v. Moon (2005) 37
Cal.4th 1, 22.)
       “The lying-in-wait special circumstance requires „an intentional murder,
committed under circumstances which include (1) a concealment of purpose, (2) a
substantial period of watching and waiting for an opportune time to act, and
(3) immediately thereafter, a surprise attack on an unsuspecting victim from a
position of advantage . . . .‟ ” (People v. Carpenter (1997) 15 Cal.4th 312, 388;
accord, People v. Mendoza, supra, 52 Cal.4th at p. 1073.)
       “We have explained the elements of the lying-in-wait special circumstance
as follows. „ “ „The element of concealment is satisfied by a showing “ „that a
defendant‟s true intent and purpose were concealed by his actions or conduct. It is


                                          23
not required that he be literally concealed from view before he attacks the
victim.‟ ” ‟ [Citation.]” ‟ [Citation.] As for the watching and waiting element, the
purpose of this requirement „is to distinguish those cases in which a defendant acts
insidiously from those in which he acts out of rash impulse. [Citation.] This
period need not continue for any particular length “ „of time provided that its
duration is such as to show a state of mind equivalent to premeditation or
deliberation.‟ ” [Citation.]‟ [Citation.] „The factors of concealing murderous
intent, and striking from a position of advantage and surprise, “are the hallmark of
a murder by lying in wait.” ‟ ” (People v. Mendoza, supra, 52 Cal.4th at p. 1073,
fn. omitted.)
       Here, there was evidence that defendant concealed his true intent and
purpose even though he did not conceal his presence at Bruni‟s door. Defendant
hid his shotgun in a laundry basket containing his and Clari‟s clothes and took the
laundry basket with him up to Bruni‟s door. A jury could rationally deduce from
these facts that defendant planned and undertook a deliberate subterfuge aimed at
making his presence appear to be an innocuous offer to return Clari‟s clothes or
request to do laundry so that Bruni would open the door and admit him. The ruse
disguised his intent to kill.
       Defendant claims, however, that even if his use of the laundry basket could
be considered a planned concealment, there is insufficient evidence of the second
requirement — a substantial period of watching and waiting for an opportune time
to act. However, “we have never placed a fixed time limit on this requirement.
Indeed, the opposite is true, for we have previously explained that „[t]he precise
period of time is also not critical.‟ ” (People v. Moon, supra, 37 Cal.4th at p. 23.)
The lying in wait need not continue for any particular period of time provided that
its duration is substantial in the sense that it shows a state of mind equivalent to
premeditation or deliberation. (People v. Mendoza, supra, 52 Cal.4th at p. 1073 &

                                          24
fn. 6.) In this case, the evidence did not establish the specific length of time that
defendant waited for Bruni to open the front door, but nothing in the trial record
suggests it happened instantaneously upon defendant‟s arrival at the house.5 A
rational jury could infer that there was some period of watching and waiting at the
door. Similarly, although the record does not establish the precise amount of time
after Bruni opened the door that defendant spent interacting with her before he
pulled out the shotgun and shot her, Sarah Phipps, one of Bruni‟s neighbors,
testified Bruni‟s dog barked briefly around 10:30 or 10:45 p.m. and that shots
were fired several minutes later. Such testimony could support an inference that
defendant conversed with Bruni for a few minutes before removing the gun from
the basket and shooting her. During such time defendant could have reflected on
his intentions, such that his subsequent actions in taking the shotgun out of its
hiding place and shooting Bruni and then proceeding upstairs to David‟s room
were not the product of a rash impulse. (People v. Russell (2010) 50 Cal.4th 1228,
1245 [“Even a short period of time is sufficient to overcome an inference that a
defendant acted rashly.”].)
       It is also apparent from the record that defendant‟s surprise attack on Bruni
and David followed in a continuous flow of events upon defendant‟s successful
use of his ruse to persuade Bruni to open her front door. The jury could
reasonably determine that defendant‟s actions met the requirement of an


5      In his opening brief, defendant discusses purported evidence regarding his
actions when he arrived at Bruni‟s house, having received a ride from his friend
J.D. Sovel. The citations given for this evidence are to the transcript of the
testimony of Investigator Gutierrez at defendant‟s preliminary hearing.
Investigator Gutierrez was not called as a witness at defendant‟s trial, nor was
defendant‟s friend J.D. Sovel. Thus, this “evidence” was not before the jury and is
not considered by the court.




                                          25
immediate surprise attack on unsuspecting victims from a position of advantage.
(People v. Carpenter, supra, 15 Cal.4th at p. 388.)
       Contrary to defendant‟s argument, this case is not similar to People v.
Lewis (2008) 43 Cal.4th 415, 507-509, in which we vacated a lying-in-wait special
circumstance for insufficient evidence of watching and waiting. We did so there
because we concluded that the statements of a codefendant should not have been
admitted against the defendant and that such statements “supplied the only
evidence of a plan and agreement to find someone driving a nice car, bump the car
so the driver would stop, steal the car and any valuables therein, and shoot the
driver if he or she did not cooperate. It also supplied the only evidence that [the
victim] was purposefully trailed for any period of time before [another
codefendant‟s] car collided with his truck.” (Id., at p. 509.) No such deficiencies
in the evidence are present here.
       Although the evidence of watching and waiting in this case is not
overwhelming, it is sufficient to support the jury‟s first degree murder verdict and
true finding on the special circumstance allegation.

           4. Defendant’s challenges to the lying-in-wait murder and lying-in-
               wait special circumstance instructions
       Defendant‟s jury was instructed with CALJIC No. 8.25 regarding the
elements of lying-in-wait first degree murder and with CALJIC No. 8.81.15
concerning the requirements of the lying-in-wait special circumstance. Although
defendant did not object to the instructions at the time of trial, he now claims on
appeal that CALJIC No. 8.81.15 was lengthy, confusing, and internally
inconsistent. He asserts that the instruction also conflicted with other instructions
defining premeditation and deliberation. And, according to defendant, the use of
identical language in CALJIC No. 8.81.15 and CALJIC No. 8.25 regarding the
temporal elements of lying in wait left the jury with no meaningful way to separate


                                         26
lying-in-wait murder from the lying-in-wait special circumstance. Defendant
argues that giving these two instructions violated his constitutional rights to due
process, to a fundamentally fair trial, and to a reliable verdict and penalty
determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7
& 15.) Defendant‟s claims are reviewable to the extent they affect his substantial
rights (§ 1259), but we have rejected such claims on the merits before and do so
again.
         CALJIC No. 8.81.15 is not by its length or terms “ „impossible to
understand and apply.‟ ” (People v. Cruz (2008) 44 Cal.4th 636, 678.) It is not
internally inconsistent in its treatment of the temporal element of lying in wait,
which properly references the concepts of premeditation and deliberation. (People
v. Bonilla (2007) 41 Cal.4th 313, 332-333.) Therefore, there was no conflict with
other instructions. And, the use of the same language in both CALJIC No. 8.81.15
and CALJIC No. 8.25 concerning the period of time necessary for lying in wait is
appropriate. The difference between lying-in-wait murder and the lying-in-wait
special circumstance does “not touch on th[is] durational element of lying in
wait.” (People v. Stevens (2007) 41 Cal.4th 182, 202, fn. 11; accord, People v.
Carpenter, supra, 15 Cal.4th 312, 390-391.) The difference lies in the required
mental states (People v. Stevens, supra, at pp. 202-203) and, at the time of
defendant‟s crimes, in the requirement of the special circumstance that the
defendant intentionally killed the victim “while” lying in wait. (§ 190.2, former
subd. (a)(15), as amended by Stats. 1995, ch. 478, § 2, p. 3564; People v. Ceja
(1993) 4 Cal.4th 1134, 1140, fn. 2.) As we have held before, the special
circumstance of lying in wait instruction is constitutional. (People v. Stevens,
supra, at pp. 203-204.)




                                          27
           5. Constitutionality of the lying-in-wait special circumstance
       Defendant argues that section 190.2, subdivision (a)(15), the lying-in-wait
special circumstance, unconstitutionally fails to perform the narrowing function
required by the Eighth Amendment to the federal Constitution. This issue has
been raised before and our cases have said that the lying-in-wait special
circumstance, as we have interpreted it, has clear and specific requirements that
sufficiently distinguish a murder committed while the perpetrator is lying in wait
from other murders, so as to justify the classification of that type of case as one
warranting imposition of the death penalty. (People v. Carasi (2008) 44 Cal.4th
1263, 1310; People v. Cruz, supra, 44 Cal.4th at p. 678, and cases cited.)
Defendant fails to persuade us to reconsider our prior precedent.

           6. The admission of purported victim impact testimony at the guilt
               phase
       During the guilt phase, Clari testified concerning her receipt in Puerto Rico
of the news of the deaths of her mother and brother. She also described her shock
after she returned to their home and observed the bloody crime scene, including
the laundry basket of her clothes. Ritchie testified regarding his return to his
house on the night of the killings and his observations of the bodies of his mother
and brother. The testimony of neighbors Sarah and Steve Phipps, cab driver
Wilhousen, Officer Heim, and Investigator Amicone touched on Ritchie‟s very
emotional reaction to the crime scene.
       Defendant does not challenge the admission of the testimony of Ritchie as a
percipient witness, but he argues that the admission of the other testimony was
improper victim impact testimony, irrelevant to the guilt phase of trial. He
contends that any marginal relevance was vastly outweighed by its inflammatory
effect, making its admission an abuse of the trial court‟s discretion. According to
defendant, its introduction deprived him of his constitutional rights to due process,



                                          28
a fundamentally fair trial, and a reliable determination of the penalty. (U.S.
Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15 & 17.)
       Defendant forfeited his claims by failing to object to any of the testimony
on the grounds he now raises. (Evid. Code, § 353, subd. (a); People v. Fuiava
(2012) 53 Cal.4th 622, 687; People v. Zamudio (2008) 43 Cal.4th 327, 354.) He
does not persuade us that an objection would have been futile. The record does
not reflect, as defendant claims, that the trial court disregarded his objections
throughout trial. We see nothing improper about the trial court‟s occasional
suggestion that counsel for both sides first try to work out their evidentiary
disputes before it would rule on them. And, contrary to defendant‟s argument,
nothing suggests that a timely admonition, if one had been requested and given,
would not have cured any potential harm.
       Moreover, even were we to consider defendant‟s contention, we would find
no prejudicial error. The testimony of witnesses describing Ritchie‟s screams
upon finding the bodies, as well as his subsequent crying and hysteria, was
relevant to explain the inconsistencies between Ritchie‟s trial testimony and his
initial interview with investigating officers at the scene. The testimony of Clari
regarding her family‟s receipt of the telephone call regarding the deaths of Bruni
and David and their breaking the news to Clari helped provide context and was
part of the timeline of events from Clari‟s leaving defendant to her return to her
mother‟s home after the murders. (People v. Tully (2012) 54 Cal.4th 952, 1013.)
The evidence overwhelmingly established defendant was the individual who shot
Bruni and David. The facts of the shootings were largely undisputed. And the
jurors reasonably would expect that immediate family members would experience
horror and distress in seeing and hearing about the killings.




                                          29
           7. Admission of crime scene and autopsy photographs
       Defendant contends the trial court abused its discretion by admitting, over
his objection, a number of gruesome crime scene and autopsy photographs. He
claims that the photographs were irrelevant and substantially more prejudicial than
probative. (Evid. Code, §§ 210, 350, 352.) Their admission, he argues, violated
his state and federal constitutional rights to due process, a fair trial, and reliable
adjudications at both phases of his capital trial. (U.S. Const., 5th, 8th & 14th
Amends.; Cal. Const., art. I, §§ 7, 15 & 17.) We have rejected such arguments in
the past, and do so again here.
       As we have previously observed, “ „ “[t]he 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.]”
[Citation.] “[A] court may admit even „gruesome‟ photographs if the evidence is
highly relevant to the issues raised by the facts, or if the photographs would clarify
the testimony of a medical examiner.” [Citation.] “We have consistently upheld
the introduction of autopsy photographs disclosing the manner in which a victim
was wounded as relevant not only to the question of deliberation and
premeditation but also aggravation of the crime and the appropriate penalty, all of
which were at issue here. [Citations.]” ‟ ” (People v. Gonzales (2012) 54 Cal.4th
1234, 1272.) “Finally, prosecutors, it must be remembered, are not obliged to
prove their case with evidence solely from live witnesses” (People v. Gurule
(2002) 28 Cal.4th 557, 624) and do not have to forgo use of photographic evidence
“merely because the defendant agrees with a witness or stipulates to a fact. . . .
[T]he jury [is] entitled to see the physical details of the crime scene and the




                                           30
injuries defendant inflicted on his victims.” (People v. Weaver (2001) 26 Cal.4th
876, 933.)
       Here, the parties sought at the start of the trial to resolve the issue of which
photographs of the death scenes of Bruni and David, as well as which autopsy
photographs, would be admitted into evidence. Counsel were able to stipulate to
the use of some photographs over others, but there remained a number of
photographs that the prosecution sought to introduce and to which defendant
objected. The trial court carefully considered the possible relevance of each such
photograph and whether a different, less disturbing photograph could suffice. The
court noted that each of the proffered photographs showed something different
that had probative value to the testimony of the pathologist, the cause of death and
the extent of injuries. In ruling the photographs admissible, the court expressly
found that their probative value outweighed their prejudicial effect. (Evid. Code,
§ 352.)
       We have reviewed the photographs and agree with the trial court that they
were highly relevant to the circumstances of the crime and the prosecution‟s
theories of lying in wait and premeditated and deliberate murder. (People v.
Sattiewhite (2014) 59 Cal.4th 446, 471 [crime scene photographs are relevant to
establish the killer‟s mental state]; People v. Hajek and Vo, supra, 58 Cal.4th at
pp. 1215-1216 [crime scene and autopsy photographs were relevant to
prosecution‟s theory of murder and special circumstance].) They were relevant to
assist the jury in understanding the testimony of the pathologist. (People v.
Gonzales, supra, 54 Cal.4th at p. 1272.) They also helped explain the stress
Ritchie was under after he encountered the scene and why he may have provided
inconsistent statements to investigating officers. (People v. Scheid (1997) 16
Cal.4th 1, 15.) “The photographs were disturbing, but they were not unnecessarily
so. They „simply showed what had been done to the victim[s]; the revulsion they

                                          31
induce is attributable to the acts done, not to the photographs.‟ ” (People v. Hajek
and Vo, supra, at pp. 1215-1216.)
       We conclude the admission of the photographs fell well within the trial
court‟s broad discretion. And because the trial court did not abuse its discretion in
admitting them, there was no violation of defendant‟s constitutional rights.
(People v. Sattiewhite, supra, 59 Cal.4th at p. 472.)

           8. Instructing the jury on motive with CALJIC No. 2.51
       Without objection, defendant‟s jury was instructed with CALJIC No. 2.51,
on motive, as follows: “Motive is not an element of any of the crimes charged and
need not be shown. However, you may consider motive or lack of motive as a
circumstance in this case. Presence of motive may tend to establish the defendant
is guilty. Absence of motive may tend to show the defendant is not guilty.”
Defendant now contends that the jury was erroneously instructed, thereby
violating his constitutional rights to a fundamentally fair trial, due process and a
reliable verdict and penalty determination. (U.S. Const., 5th, 6th, 8th & 14th
Amends.; Cal. Const., art. I, §§ 7 & 15.) Defendant‟s claims are reviewable to the
extent they affect his substantial rights (§ 1259), but as he recognizes, we have
rejected similar claims on the merits before. We do so again here.
       CALJIC No. 2.51 did not improperly allow the jury to determine guilt
based on motive alone. (People v. Livingston (2012) 53 Cal.4th 1145, 1168;
People v. Snow (2003) 30 Cal.4th 43, 97-98.) The instruction did not improperly
shift the burden of proof to defendant to show absence of motive to establish his
innocence. (People v. Sattiewhite, supra, 59 Cal.4th at p. 474.) The juxtaposition
of CALJIC No. 2.51 and CALJIC No. 2.52, the latter of which expressly
instructed the jury that evidence of flight is not by itself sufficient to establish
guilt, would not have caused the jury to believe motive by itself was sufficient.



                                           32
(People v. Livingston, supra, at pp. 1168-1169.) The instruction did not
impermissibly reduce the prosecution‟s burden of proof and violate defendant‟s
constitutional rights. (People v. McKinzie (2012) 54 Cal.4th 1302, 1357; People v.
Mendoza, supra, 52 Cal.4th at pp. 1094-1095.)

             9. Instructing the jury on flight with CALJIC No. 2.52
       Without objection, defendant‟s jury was instructed with CALJIC No. 2.52,
regarding flight as reflective of consciousness of guilt, as follows: “The flight of a
person immediately after the commission of a crime is not sufficient in itself to
establish his guilt but is a fact which, if proved, may be considered by you in light
of all other proved facts in deciding whether a defendant is guilty or not guilty.
The weight to which this circumstance is entitled is a matter for you to decide.”
Defendant now contends on appeal that CALJIC No. 2.52 was erroneously given
and violated his constitutional rights. (U.S. Const. 5th, 6th, 8th & 14th Amends.;
Cal. Const., art. I, §§ 7, 15, 16 & 17.) Again, defendant‟s claims are reviewable to
the extent they affect his substantial rights (§ 1259), but we conclude they are
meritless.
       “In general, a flight instruction „is proper where the evidence shows that the
defendant departed the crime scene under circumstances suggesting that his
movement was motivated by a consciousness of guilt.‟ [Citations.] „ “[F]light
requires neither the physical act of running nor the reaching of a far-away haven.
[Citation.] Flight manifestly does require, however, a purpose to avoid being
observed or arrested.” ‟ [Citation.] „Mere return to familiar environs from the
scene of an alleged crime does not warrant an inference of consciousness of guilt
[citations], but the circumstances of departure from the crime scene may
sometimes do so.‟ ” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Even
though defendant returned to his apartment after the killings, where he was



                                          33
arrested the next morning, he was observed by a neighbor to start running from the
scene of the crimes only when an alarm sounded. Contrary to defendant‟s
argument, the “circumstances” of his departure from the scene provided sufficient
evidence of flight to warrant the flight instruction.
       With respect to defendant‟s remaining claims concerning the instruction,
we have recently explained: “Contrary to defendant‟s assertion, the flight
instruction is not duplicative of general instructions as to the definition and
sufficiency of circumstantial evidence. (See CALJIC Nos. 2.00, 2.01, and 2.02.)
Indeed, instruction in language substantially similar to that given here is statutorily
required when the prosecution relies upon evidence of flight „as tending to show
guilt.‟ (§ 1127c.) The flight instruction properly allows „ “the jury to determine to
which offenses, if any, the inference [of consciousness of guilt] should apply” ‟
[citation] and „does not address the defendant‟s specific mental state at the time of
the offenses‟ [citation]. Nor is the flight instruction unfairly partisan and
argumentative, or similar to the proposed defense instruction disapproved of in
People v. Mincey (1992) 2 Cal.4th 408, 437, which „invited the jury to “infer the
existence of [the defendant‟s] version of the facts, rather than his theory of
defense.” ‟ [Citation.] Finally, the instruction does not „create an unconstitutional
permissive inference or lessen the prosecutor‟s burden of proof.‟ ” (People v.
Carrasco (2014) 59 Cal.4th 924, 967-968.)

           10. Instructions assertedly undermining the burden of proof
       Defendant contends the trial court gave several standard jury instructions
that individually and collectively undermined and impermissibly lessened the
requirement of proof beyond a reasonable doubt: CALJIC Nos. 1.00 (Respective
Duties of Judge and Jury), 2.01 (Sufficiency of Circumstantial Evidence —
Generally), 2.21.1 (Discrepancies in Testimony), 2.21.2 (Witness Willfully False),



                                          34
2.22 (Weighing Conflicting Testimony), 2.27 (Sufficiency of Testimony of One
Witness), 2.51 (Motive), 2.52 (Flight After Crime), and 8.83 (Special
Circumstances — Sufficiency of Circumstantial Evidence — Generally). We
have repeatedly rejected the contention that these instructions compel or allow the
jury to find a defendant guilty using a standard lower than proof beyond a
reasonable doubt. (People v. Hajek and Vo, supra, 58 Cal.4th at p. 1226, and
cases cited; People v. Livingston, supra, 53 Cal.4th at p. 1153, and cases cited.)
We continue to do so.
       In his heading for this claim, defendant also references CALJIC No. 8.83.2
(Special Circumstances — Jury Must Not Consider Penalty), but makes no
argument specific to that instruction. Although the Attorney General speculates
that defendant‟s reference to CALJIC No. 8.83.2 was meant to be a reference to
CALJIC No. 8.83.1 (Special Circumstances — Sufficiency of Circumstantial
Evidence to Prove Required Mental State), defendant does not concede such to be
the case in his reply brief. Therefore, we assume defendant meant what he wrote.
We see no reason to reach a different conclusion with respect to CALJIC
No. 8.83.2.
       We have also repeatedly rejected the contention that CALJIC Nos. 2.01 and
8.83 created an impermissible mandatory presumption that required the jury to
accept any reasonable inculpatory interpretation of the circumstantial evidence
unless defendant rebutted the presumption by producing a reasonably exculpatory
interpretation. (People v. Parson (2008) 44 Cal.4th 332, 358 and cases cited.) We
decline defendant‟s invitation to reconsider our prior conclusion in this regard.




                                         35
       B. Penalty Phase Issues

            1. Admission of victim impact evidence
       As part of the prosecution‟s penalty phase case, Bruni‟s mother Celena
Rodriguez, Bruni‟s sister Lupe Quiles, Clari and Vallerie provided testimony
regarding the impact that the deaths of Bruni and David had on them and their
families.
       Rodriguez briefly described her large family, Bruni‟s childhood in Puerto
Rico, the circumstances under which she learned of Bruni‟s death, and its impact
on her. Quiles testified about her close relationship with Bruni and Bruni‟s
children. She described her emotional reaction to the news of Bruni‟s death, her
travel to California from Florida the day after the murders, and her visit to the
scene of the murders. Quiles also described cleaning the blood, brain matter, and
remnants of bone from Bruni‟s home. She disclosed that she secretly kept one
piece of bone, which she believed to be Bruni‟s nose, as a memorial. Quiles
described the continuing impact of the loss of Bruni and David on her, her family,
and particularly on Ritchie, who was at the time of trial being cared for in a mental
hospital. Clari testified about her closeness to David, who was like a son to her.
She also testified regarding the guilt and emotional struggles that she suffered as a
result of the deaths of her mother and brother. She noted that Ritchie had become
aggressive toward her when she tried to care for him after the crimes and that he
blamed her for the murders. Vallerie described David as being like a brother to
her because of their closeness in age. They essentially grew up together, sharing
experiences, thoughts and feelings. She also testified regarding her emotions after
the death of Bruni and David and the effect of the loss on her and her family.
       Conceding that the quantity of victim impact evidence here was not
unusually large, defendant contends that the testimony was nevertheless highly
prejudicial and rendered his trial fundamentally unfair. Defendant argues that the


                                         36
admission of the testimony was erroneous under state statutes (Evid. Code,
§§ 350, 352) and violated his state and federal constitutional rights. (U.S. Const.,
5th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 17 & 24.) Defendant
forfeited his claims by his failure to object to the admission of the testimony on
the grounds he now asserts. (Evid. Code, § 353; People v. Weaver (2012) 53
Cal.4th 1056, 1082; People v. Kelly (2007) 42 Cal.4th 763, 793.) And, in any
event, were we to reach defendant‟s claims of prejudicial error, we would find
they lack merit.
       Victim impact evidence is permissible at the penalty phase of a capital trial
under the Eighth Amendment to the United States Constitution (Payne v.
Tennessee (1991) 501 U.S. 808) and we have repeatedly held such evidence
admissible as a circumstance of the offense under section 190.3, factor (a) so long
as it does not invite a purely irrational response from the jury. (People v. Kopatz
(2015) 61 Cal.4th 62, 90; People v. Brady (2010) 50 Cal.4th 547, 574; People v.
Lewis and Oliver (2006) 39 Cal.4th 970, 1056-1057.) “Victim impact evidence is
„designed to show . . . each victim‟s “uniqueness as an individual human
being.” ‟ ” (People v. Vines (2011) 51 Cal.4th 830, 887.) Defendant does not
persuade us to revisit our position.
       We would also reject defendant‟s contention that the testimony in this case
exceeded statutory and constitutionally permissible bounds.
       Defendant first points to Clari‟s testimony when she responded, “How
would you feel if you brought the devil to your mom‟s house and he did it to her?”
Defendant contends that Clari‟s description of him as “the devil” constituted
improper victim impact testimony because it fell within the prohibition of victim
opinion testimony concerning the crime, the defendant, or the appropriate
sentence. (See Payne v. Tennessee, supra, 501 U.S. at p. 830, fn. 2; see also Booth
v. Maryland (1987) 482 U.S. 496, 502-503, 508-509.) We reaffirm the principle

                                         37
that it is improper for family members to characterize, or offer their opinion about,
the crime, the defendant, or the proper verdict (Payne v. Tennessee, supra, at
p. 830, fn. 2; People v. Collins (2010) 49 Cal.4th 175, 229), but conclude Clari‟s
statement did not violate such principle when it is placed in its proper context.
Clari‟s rhetorical question was her response to the prosecutor‟s query regarding
whether the deaths of her mother and brother would have affected her differently
if they had died in a different manner. The prosecutor immediately followed up
by asking Clari whether she was telling the jury that she felt responsible for their
deaths. Clari agreed, stating that she was “old enough to know I‟m not
responsible, . . . but I still feel some guilt because I brought him to the house. I
introduced him to the family.” Thus, in context and as clarified by the prosecutor,
Clari‟s single reference to defendant as “the devil” was little more than a way of
expressing her feelings of guilt. Her testimony was simply a colorful means of
explaining the impact of the crimes on her, and nothing in the record suggests that
the jury would have understood Clari‟s statement literally. But even were we to
view Clari‟s description as crossing the line between proper victim impact
testimony and improper opinion, we also believe that there is no reasonable
possibility that the jury would have returned a different sentence but for Clari‟s
brief reference given the evidence of the callousness of the murders, defendant‟s
prior convictions, his numerous prior incidents of violent domestic abuse and other
criminal conduct, and the prosecutor‟s rebuttal of defendant‟s evidence of his
impaired mental condition. (People v. Johnson (1992) 3 Cal.4th 1183, 1246 [any
error in admitting victim‟s family member‟s opinion could have had no
appreciable effect on jury‟s determination]; see People v. Jones (2003) 29 Cal.4th
1229, 1264, fn. 11 [state law error occurring during the penalty phase is prejudicial
when there is a reasonable possibility such error affected the verdict; the



                                          38
reasonable possibility standard is the same, in substance and effect, as the
harmless beyond a reasonable doubt standard for constitutional error].)
       We also reject defendant‟s related claim that it was error for the prosecutor
to ask Clari, Rodriguez, and Quiles how the deaths of Bruni and David impacted
them differently than if the victims had died under different circumstances because
the questions allegedly called for irrelevant speculation. The testimony of
Rodriquez and Quiles was not speculative. Both compared their feelings
regarding the death of Bruni to the actual feelings they felt when another
immediate family member died of natural causes. Their testimony was relevant to
the impact of the crimes on them. Moreover, we have previously found no error in
the admission of such testimony, even when not tied to the specific death of
another person. (People v. Montes (2014) 58 Cal.4th 809, 884.)
       Nor was it improper for Rodriguez to testify concerning Bruni as a baby
and as a young girl growing up in Puerto Rico, referencing some of Bruni‟s family
photographs, or for Clari and Vallerie to provide similar evidence of David‟s
family life. (People v. Kopatz, supra, 61 Cal.4th at p. 91.)
       The testimony of Clari and Vallerie regarding the continuing adverse effect
on Ritchie of his finding the bodies of his mother and brother, and the residual
effect on him of the murders in general, was permissible even though Ritchie did
not testify at the penalty phase. (People v. Chism (2014) 58 Cal.4th 1266, 1327.)
“There is no requirement that family members confine their testimony about the
impact of the victim‟s death to themselves, omitting mention of other family
members.” (People v. Panah (2005) 35 Cal.4th 395, 495.) Clari and Vallerie did
not need to be experts to testify concerning their observations of Ritchie‟s words,
conduct, living circumstances or the general impact of the crimes on him. (See
People v. DeHoyos (2013) 57 Cal.4th 79, 130-131.) Nor are we are persuaded that
admission of such testimony was unduly prejudicial, as defendant argues, because

                                         39
the court failed to sua sponte instruct the jury that it could consider only such harm
as was directly caused by defendant‟s act. Here, the evidence given by close
family members who were intimately familiar with the particular impact of the
crimes on Ritchie, who was intellectually disabled, supplied probative information
regarding the gravity of defendant‟s offenses, which the jury was entitled to
consider under the standard instruction given. (CALJIC No. 8.85.)
       Last, we reject defendant‟s argument that Quiles‟s emotional testimony,
including her description of cleaning up the bloody scene at Bruni‟s house and
retaining of a piece of bone as a memorial, was cumulative, inflammatory and
unduly prejudicial. Quiles‟s testimony provided a fuller description of the
aftermath of defendant‟s crimes. It was not necessarily inflammatory just because
it was emotional. (People v. Verdugo (2010) 50 Cal.4th 263, 299; People v.
Jurado (2006) 38 Cal.4th 72, 133.) Nor was the testimony gratuitously graphic.
Rather, it described part of the impact of the crimes on the witness. That she kept
a piece of bone, which she believed to be Bruni‟s nose, might be viewed as
somewhat macabre, but in light of the fact that many people retain the ashes of
deceased loved ones, we do not view such testimony as inescapably inviting a
purely irrational response from the jury in their penalty deliberations. Moreover,
to the extent any of Quiles‟s testimony exceeded the scope of permissible victim
impact testimony, we would find it harmless for the same reasons stated earlier.

           2. The trial court’s denial of defendant’s requests to modify CALJIC
               No. 8.88
       At trial, defendant requested three modifications to CALJIC No. 8.88, the
standard penalty phase concluding instruction regarding the weighing of
aggravation and mitigation and selection of the appropriate penalty. First,
defendant asked that the following language be added: “In weighing the




                                         40
aggravating and mitigating factors, you are not merely to count numbers on either
side. You are instructed, rather, to weigh and consider the factors. You may
return a verdict of life imprisonment without possibility of parole even though you
should find the presence of one or more aggravating factors.” Second, he
requested that the term “totality” be removed from the part of the standard
instruction telling the jury that “[i]n weighing the various circumstances you
determine under the relevant evidence which penalty is justified and appropriate
by considering the totality of the aggravating circumstances with the totality of the
mitigating circumstances.” And finally, he asked that the jury also be informed
that “[o]ne mitigating circumstance may be sufficient for you to return a verdict of
life imprisonment without possibility of parole.”
       The trial court denied defendant‟s first request on the ground that it was
already covered by CALJIC No. 8.88 and the standard instruction was much
clearer than the language proposed by defendant. The court denied defendant‟s
second request because CALJIC No. 8.88‟s use of the word “totality” is not
inappropriate when considered in the context of other language in CALJIC
No. 8.88, which informed the jury that “[t]he weighing of aggravating and
mitigating circumstances does not mean a mere mechanical counting of factors on
each side of an imaginary scale, or the arbitrary assignment of weights to any of
them. You are free to assign whatever moral or sympathetic value you deem
appropriate to each and all of the various factors you are permitted to consider.”
The court denied defendant‟s third request, finding that the language of CALJIC.
No. 8.88 adequately conveyed the point.
       Defendant contends the trial court‟s refusal of his requested modifications
resulted in a violation of due process and failure to provide the specific and
detailed guidance necessary to meet Eighth Amendment standards. We disagree.



                                         41
       “[T]he standard version of CALJIC No. 8.88, read as a whole, accurately
describes the individualized, normative nature of the sentencing determination,
and properly guides the jury‟s discretion in this regard.” (People v. Contreras
(2013) 58 Cal.4th 123, 170.) Indeed, we have held repeatedly that it is adequate to
instruct the jury regarding its weighing of aggravation and mitigation and selection
of the appropriate penalty using the standard version of CALJIC No. 8.88. (E.g.,
People v. Lopez (2013) 56 Cal.4th 1028, 1083; People v. Howard (2010) 51
Cal.4th 15, 39; People v. Burney (2009) 47 Cal.4th 203, 263-264, and cases cited.)
A trial court may properly refuse to give requested instructions that are duplicative
(People v. Gurule, supra, 28 Cal.4th at p. 659; People v. Turner (1994) 8 Cal.4th
137, 203) as was defendant‟s first requested modification.
       The trial court also correctly refused defendant‟s second modification of
CALJIC No. 8.88. The inclusion of the word “totality” in CALJIC No. 8.88 did
not improperly suggest a quantitative judgment. “The instruction explained that
„[t]he weighing of aggravating and mitigating circumstances does not mean a mere
mechanical counting of factors on each side of an imaginary scale, or the arbitrary
assignment of weights to any of them. You are free to assign whatever moral or
sympathetic value you deem appropriate to each and all of the various factors you
are permitted to consider.‟ Thus, „CALJIC No. 8.88 properly describes the
weighing process as “ „merely a metaphor for the juror‟s personal determination
that death is the appropriate penalty under all of the circumstances.‟ ” [Citation.]‟
[Citation.]” (People v. Lewis (2009) 46 Cal.4th 1255, 1316.)
       Finally, as our cases have previously concluded, the trial court did not err in
denying defendant‟s request to instruct the jury that one mitigating circumstance
may be sufficient for a verdict of life imprisonment without possibility of parole.
(People v. Jones (2012) 54 Cal.4th 1, 79-80; People v. Salcido (2008) 44 Cal.4th
93, 162-163.) “In addition, we have held such an instruction „was misleading,

                                         42
because it wrongly implied that at least one mitigating factor was needed to justify
a sentence of life imprisonment without parole.‟ ” (Salcido, supra, at p. 163,
quoting People v. Cook (2007) 40 Cal.4th 1334, 1364.)

            3. The constitutional adequacy of CALJIC No. 8.88
       Defendant also raises a number of challenges to CALJIC No. 8.88 itself,
claiming its use violated his federal constitutional rights under the Fifth, Sixth,
Eighth and Fourteenth Amendment and corresponding sections of the California
Constitution. As defendant concedes, we have previously considered and rejected
these arguments. We do so again because defendant fails to persuade us that our
prior decisions were erroneous.
       We repeat that CALJIC No. 8.88 is not inconsistent with section 190.3 nor
is it unconstitutional for failing to inform the jury that if mitigating circumstances
outweigh those in aggravation, it “shall” return a sentence of life without the
possibility of parole. (People v. Jones, supra, 54 Cal.4th at p. 78; People v. Lomas
(2010) 49 Cal.4th 530, 595.) “We once again reject the argument that our decision
in People v. Duncan (1991) 53 Cal.3d 955, 978, erroneously concluded such an
instruction was unnecessary.” (People v. Linton (2013) 56 Cal.4th 1146, 1211.)
“CALJIC No. 8.88: (1) is not unconstitutionally vague and does not
impermissibly reduce the burden of proof necessary to impose the death penalty
by using the „so substantial‟ standard for comparing mitigating and aggravating
circumstances [citations]; (2) properly explains the weighing process that a jury is
required to perform [citation]; (3) properly cautions against a „ “ „mere mechanical
counting of factors‟ ” ‟ [citation]; (4) is not defectively „death-oriented‟ because it
fails to define or describe the penalty of life without the possibility of parole
[citation]; (5) is not unconstitutional because it fails to instruct the jury that a
single mitigating factor could outweigh multiple aggravating factors and by itself



                                            43
could justify a verdict of life imprisonment without the possibility of parole
[citation]; and (6) adequately defines mitigation [citation].” (People v. D’Arcy
(2010) 48 Cal.4th 257, 303-304.) Finally, as we explained earlier, the use of the
word “totality” in the instruction does not make the instruction constitutionally
defective. (People v. Lewis, supra, 46 Cal.4th at p. 1316.)

           4. Symmetry in penalty phase instructions concerning jury unanimity
       Defendant contends his right to a fair and reliable penalty determination
under the Eighth Amendment was violated by the lack of symmetry between
CALJIC No. 8.85 and CALJIC No. 8.87. Specifically, he complains that the
jurors were instructed with a modified form of CALJIC No. 8.87, which informed
them that they were not required to unanimously find the section 190.3, factor (b),
other crimes evidence proved beyond a reasonable doubt, but they were not
instructed in CALJIC No. 8.85 that they need not be unanimous in finding proof of
any mitigating factors. Conceding that the instructions given conformed to
existing law, defendant nevertheless argues that the trial court should either have
sua sponte deleted the language that “it is not necessary for all jurors to agree”
from CALJIC No. 8.87 or inserted the same language in CALJIC No. 8.85.
       First, defendant forfeited this claim by failing to raise it at trial. (People v.
Moore (2011) 51 Cal.4th 1104, 1139-1140.) Second, the claim is meritless, as we
explained in Moore: “There is no right to parity of jury instructions . . . ; both
parties simply have the right to instructions that properly explain the law. The
nonunanimity instruction the trial court gave helped to avoid possible confusion
regarding the sentencing factor that had a burden of proof, by telling the jury that,
unlike at the guilt phase and despite the same beyond a reasonable doubt standard,
unanimity was not required. (See also People v. Jennings (1988) 46 Cal.3d 963,
988 [trial court did not err by instructing the jury that unanimity was not required



                                           44
for factor (b) evidence].) That we concluded the trial court‟s refusal to give a
similar instruction regarding mitigating evidence was not error in People v. Breaux
(1991) 1 Cal.4th 281, 314-315, does not mean the prosecution has
unconstitutionally received preferential treatment.” (People v. Moore, supra, at
p. 1140.) Moreover, as in Moore, “there is no reasonable likelihood the jury in
this case misunderstood the court‟s instruction to mean that the jury was required
to be unanimous regarding mitigating factors. Therefore, the absence of a
nonunanimity instruction regarding mitigating evidence did not undermine
defendant‟s constitutional rights.” (Ibid.)

           5. Failure to instruct the jury that there is a presumption of life
       We have repeatedly held that “ „[t]he trial court‟s failure to [instruct] the
jury that there is a presumption of life does not violate a defendant‟s constitutional
rights to due process, to be free from cruel and unusual punishment, to a reliable
determination of his sentence, and to equal protection of the law under the Fifth,
Eighth and Fourteenth Amendments to the federal Constitution.‟ ” (People v.
Adams (2014) 60 Cal.4th 541, 581; accord, People v. Suff (2014) 58 Cal.4th 1013,
1078; People v. McKinnon (2011) 52 Cal.4th 610, 698.) Defendant fails to
persuade us there is reason to reconsider our settled view.

           6. Asserted cumulative error
       Defendant contends that the cumulative effect of the guilt and penalty phase
errors requires reversal of the judgment. We have concluded that defendant
forfeited many of his claims of error. In any event, we have either rejected the
merits of defendant‟s claims or found that any error, assumed solely for purposes
of argument, was harmless. We now conclude there is no cumulative effect of
error requiring reversal of the judgment. (People v. Panah, supra, 35 Cal.4th at
pp. 479-480.)



                                          45
           7. Intracase proportionality
       Intercase proportionality review is not required by the due process, equal
protection, fair trial, or cruel and unusual punishment clauses of the federal
Constitution, but a defendant is entitled to intracase proportionality review under
the California Constitution upon request. (People v. Whalen (2013) 56 Cal.4th 1,
91; People v. Lenart (2004) 32 Cal.4th 1107, 1130 [art. I, § 17 of the Cal. Const.
entitles a requesting defendant to intracase proportionality review].) “ „ “ „To
determine whether a sentence is cruel or unusual as applied to a particular
defendant, a reviewing court must examine 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. The court must also consider the personal characteristics of the
defendant, including age, prior criminality, and mental capabilities. [Citation.] 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.‟
[Citation.]” ‟ ” (People v. Jackson (2014) 58 Cal.4th 724, 771.)
       Defendant contends that his death sentence is disproportionate punishment
for his crimes because he was not a calculating killer, but merely reacted on the
night of the crimes in an impulsive rage after he had been drinking and using
drugs. He emphasizes (1) that he had little education, left home before he was 15
years old, and was poorly prepared to function as a husband and father as a
teenager, (2) that he had severe neuropsychological impairments, and (3) that he is
also still a member of the family, who will have to live with the consequences of
his actions for the remainder of his life. We are unconvinced.




                                          46
       The record reflects that defendant lived with Bruni and her family on and
off since he was a young teenager. To say he consistently abused Bruni‟s
hospitality is an understatement. The record is replete with evidence that over the
course of many years, he subjected his wife Clari, her brothers, and his daughter to
violent assault and various kinds of mistreatment at Bruni‟s home, as well as
elsewhere. He threatened and followed through with retaliation when he did not
get his way. When Clari finally left him and took their children with her, the
record reflects that defendant was angry and vengeful. He sought to harm Clari‟s
family, including Bruni. On the night of the crimes, the record indicates defendant
was not very drunk and only a little high. It also reflects that defendant planned
and committed the murders through the use of a deliberate subterfuge. Defendant
was solely responsible for the brutal killings of his mother-in-law and brother-in-
law. He was 30 years old at the time and had a prior criminal record. The jury
could have reasonably rejected defendant‟s evidence of mental impairments based
on the rebuttal evidence that defendant had deliberately feigned his mental illness.
These circumstances do not demonstrate that defendant‟s death sentence is grossly
disproportionate to his personal culpability; it does not shock the conscience nor
offend fundamental notions of human dignity.

           8. Defendant’s challenges to California’s death penalty scheme
       Defendant raises a number of challenges to the constitutionality of
California‟s death penalty scheme in order to urge reconsideration by this court of
our previous rejection of them and to preserve the claims for federal review.
Defendant fails to persuade us that reconsideration is required and we continue to
reject the claims as follows. (People v. Schmeck (2005) 37 Cal.4th 240, 303-304.)
       “Section 190.2 is not impermissibly overbroad in violation of the Fifth,
Sixth, Eighth, and Fourteenth Amendments of the United States Constitution.



                                         47
Specifically, the various special circumstances are not so numerous as to fail to
perform the constitutionally required narrowing function, and the special
circumstances are not unduly expansive, either on their face or as interpreted by
this court.” (People v. Jennings (2010) 50 Cal.4th 616, 688; accord, People v.
Linton, supra, 56 Cal.4th at p. 1214.)
       “Section 190.3, factor (a), which allows the jury to consider the
circumstances of the capital crime in aggravation, is not impermissibly overbroad
and does not lead to arbitrary or capricious imposition of the death penalty.”
(People v. Mai (2013) 57 Cal.4th 986, 1057; accord, People v. DeHoyos, supra,
57 Cal.4th 79, 149.)
       “The use of the words „ “extreme” ‟ in section 190.3, factors (d) and (g),
and „ “substantial” ‟ in factor (g), does not act as a barrier to the consideration of
mitigating evidence in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments.” (People v. Linton, supra, 56 Cal.4th at p. 1216.)
       “ „[T]he statutory instruction to the jury to consider “whether or not”
certain mitigating factors were present did not impermissibly invite the jury to
aggravate the sentence upon the basis of nonexistent or irrational aggravating
factors.‟ ” ‟ ” (People v. Edwards (2013) 57 Cal.4th 658, 766; accord, People v.
Linton, supra, 56 Cal.4th at p. 1216.) “There is no constitutional requirement that
the jury be instructed regarding which of the statutory factors in section 190.3 are
aggravating, which are mitigating, and which could be either aggravating or
mitigating.” (People v. Merriman (2014) 60 Cal.4th 1, 106-107.)
       California‟s death penalty law is not unconstitutional for failing to require
proof beyond a reasonable doubt that aggravating factors exist, outweigh the
mitigating factors, and render death the appropriate punishment. (People v. Boyce
(2014) 59 Cal.4th 672, 723-724; People v. DeHoyos, supra, 57 Cal.4th at pp. 149-
150.) The high court‟s decisions in Apprendi v. New Jersey (2000) 530 U.S. 466,

                                           48
Ring v. Arizona (2002) 536 U.S. 584, and Cunningham v. California (2007) 549
U.S. 270 do not change this result. (People v. Boyce, supra, at p. 724; People v.
Loker (2008) 44 Cal.4th 691, 755.)
       The absence of written or other specific findings by the jury regarding
aggravating factors did not violate defendant‟s rights under the Sixth, Eighth, and
Fourteenth Amendment to meaningful appellate review, equal protection of the
laws or right to jury trial. (People v. DeHoyos, supra, 57 Cal.4th at p. 150; People
v. Linton, supra, 56 Cal.4th at p. 1216.)
       “The federal Constitution is not violated by the failure to require a penalty
phase jury to reach unanimity on the presence of aggravating factors.” (People v.
DeHoyos, supra, 57 Cal.4th at p. 150.)
       The court was not required to instruct that the prosecution bears the burden
of persuasion to establish that aggravating factors exist, that they outweigh
mitigating factors, and that the death penalty is appropriate. (People v. Boyce,
supra, 59 Cal.4th at p. 724; People v. Clark (2011) 52 Cal.4th 856, 1007-1008.)
“Nor was the court required to articulate the converse, that there is no burden of
proof at the penalty phase.” (People v. Boyce, supra, at p. 724.) Defendant was
not entitled to an instruction informing the jury that there is a presumption in favor
of a sentence of life without parole. (Ibid.; People v. Streeter, supra, 54 Cal.4th at
p. 268.)
       California‟s death penalty law does not violate international law and norms
or evolving standards of decency. (People v. Kopatz, supra, 61 Cal.4th at p. 96;
People v. Suff, supra, 58 Cal.4th at p. 1079.)




                                            49
                            III. CONCLUSION
    The judgment is affirmed.
                                              CANTIL-SAKAUYE, C. J.



WE CONCUR:

WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




                                  50
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Cage
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S120583
Date Filed: December 3, 2015
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Dennis A. McConaghy

__________________________________________________________________________________

Counsel:

Susan K. Massey, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Holly D. Wilkens and Theodore M. Cropley, Deputy Attorneys General, for
Plaintiff and Respondent.




                                                   1
Counsel who argued in Supreme Court (not intended for publication with opinion):

Susan K. Massey
9462 Winston Drive
Brentwood, TN 37027
(615) 661-0661

Theodore M. Cropley
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2286




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