        IN THE SUPREME COURT OF
               CALIFORNIA

                       THE PEOPLE,
                  Plaintiff and Respondent,
                              v.
                   ALFRED FLORES III,
                  Defendant and Appellant.

                           S116307

            San Bernardino County Superior Court
                        FVA-015023



                         May 4, 2020

Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, and
Groban concurred.

Justice Liu filed a concurring and dissenting opinion, in which
Justice Cuéllar concurred.
                      PEOPLE v. FLORES
                            S116307


               Opinion of the Court by Kruger, J.


      A jury found defendant Alfred Flores III guilty of the first
degree murders of Ricardo Torres, Jason Van Kleef, and
Alexander Ayala. (Pen. Code, § 187, subd. (a).) It found true the
special circumstance allegation of multiple murder (id., 190.2,
subd. (a)(3)), as well as the sentence enhancement allegations
that defendant had personally discharged a firearm to commit
each murder (id., § 12022.53, subd. (d)). Following the penalty
phase, the jury returned a death verdict, and the trial court
entered a judgment of death. This appeal is automatic. (Cal.
Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).) We
affirm.
                        I. BACKGROUND
      A. Guilt Phase
     Over the course of three consecutive days in March 2001,
the bodies of three teenage boys were discovered at three
separate locations in San Bernardino County. The victims were
subsequently identified as Torres, Van Kleef, and Ayala.
         1. Evidence
             a. Discovery of Torres’s Body
      After dark on March 19, 2001, Anita Rita Saldana and her
teenage daughter, Sheila Leyerly, were passengers in a car
driving uphill on Lytle Creek Road toward Lytle Creek.
Saldana, sitting in the front passenger seat, noticed a Chevrolet
Astro van parked facing downhill in a dirt pull-off area on the
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


opposite side of the two-lane road. According to Saldana, three
or four Latino men stood outside, by the side of the van facing
Lytle Creek Road. One appeared to her to be about 40 years old.
It looked like they were drinking. One of the men was wearing
an oversized white T-shirt.
      Approximately 15 minutes later, Saldana and Leyerly
traveled in their car back toward where they had seen the van.
When they passed the area where the van had been parked,
Leyerly spotted a white tennis shoe. Saldana’s husband, who
was driving, pulled over and shined the car’s headlights, which
illuminated a dead body. Saldana and Leyerly both recognized
the victim as one of the people they had seen standing by the
van in that same area 15 minutes earlier. Saldana told police
she thought the victim had been standing next to the man
wearing the white T-shirt.
      The victim was 15-year-old Ricardo Torres. Torres had
been shot seven times, including twice in the back of the head.
Crime scene personnel found a pair of eyeglasses, a plastic Pepsi
bottle, a cigarette butt, multiple nine-millimeter shell casings,
and one live round near Torres’s body. No fingerprints were
found on any of these items. Crime scene personnel also noted
and photographed tire tracks and shoe prints near the body.
The presence of shell casings and blood pooling underneath the
body suggested Torres had been shot at the scene.
            b. Discovery of Van Kleef’s Body
      Shortly after midnight on March 20, 2001, Tamara
Phoenix was returning a tractor trailer to the trucking yard
where she worked on Willow Avenue in Rialto. As she drove up
the yard’s dark driveway, her headlights revealed a dead body.
Phoenix called the police.

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                  Opinion of the Court by Kruger, J.


       The body belonged to 18-year-old Jason Van Kleef. Van
Kleef had been shot once in the back of the head at close range.
The size of the wound suggested a larger caliber weapon, such
as a .38-caliber, .357-caliber, or nine-millimeter handgun. Van
Kleef was wearing Etnies tennis shoes. Etnies-pattern shoe
prints had been found at the Torres murder scene. Van Kleef’s
body was on top of a size XXL Stafford-brand white T-shirt and
under a thin blue sheet. There were no bullet casings or signs
of struggle at the scene, which suggested to investigators that
Van Kleef had been killed elsewhere and then moved to where
he was found. Crime scene personnel noted and photographed
tire tracks arcing toward Van Kleef’s body.
             c. Discovery of Ayala’s Body
      At approximately 6:40 a.m. on March 21, 2001, Brenda
Horton was driving her children to school when she noticed a
body on the side of Lytle Creek Road.        The body was
approximately two-tenths of a mile from the location where
Saldana and Leyerly had found Torres’s body. Horton’s son
called 911.
      The body belonged to 17-year-old Alexander Ayala.
Despite cold weather, Ayala was found wearing only a white
tank top and blue denim jeans. He had been shot five times,
including twice in the head. Crime scene personnel found nine-
millimeter cartridge casings and a fired bullet in a pool of blood.
They also noted and photographed tire tracks curving toward
the location where they believed Ayala had been shot.
             d. Connection Between Victims and Defendant
      Police investigation revealed all three victims were friends
of 17-year-old Andrew Mosqueda, a member of the El Monte
Trece gang. Mosqueda and his friends regularly spent time at

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                 Opinion of the Court by Kruger, J.


an apartment on Linden Avenue in Rialto. The apartment was
rented by Mosqueda’s aunt, Carmen Alvarez, and her husband,
Abraham Pasillas. Alvarez and Pasillas were also members of
the El Monte Trece gang. They claimed they were not active in
the gang at the time of the murders but admitted to associating
with El Monte Trece gang members and attending gang
gatherings.
     Defendant was also a member of the El Monte Trece gang.
He had been “jumped into” the gang at a young age and was
known as either “Casper” or “Wizard.” He was friends with
Alvarez and Pasillas. Starting in early 2001, he frequently
stayed the night at their apartment. He kept some personal
belongings in the master bedroom closet.
     According to Alvarez, Pasillas, and Mosqueda, defendant
sought to recruit new members to El Monte Trece, including
Mosqueda and his friends. Pasillas told defendant he wanted
no part in any recruitment effort, and Alvarez told defendant
that Mosqueda and his friends were not “gang member types.”
Defendant nonetheless successfully recruited Mosqueda.
Mosqueda was given a gang name (“Apache”) and started taking
orders from defendant.
      Torres, Van Kleef, and Ayala were not members of El
Monte Trece. Van Kleef and Ayala had no interest in gang
membership. Torres had agreed to join the gang but then did
not attend his jumping-in ceremony. According to Mosqueda,
this “disappointed” defendant. Mosqueda claimed to have
attended the jumping-in ceremony in Torres’s stead.




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                  Opinion of the Court by Kruger, J.


             e. Torres’s Murder
      Mosqueda and Alvarez both claimed to have been present
when defendant killed Torres. They testified under grants of
use immunity.
      On the evening of March 19, 2001, defendant, Mosqueda,
Van Kleef, Torres, Ayala, and another friend, Erick Tinoco, were
at Alvarez’s apartment. At some point, defendant suggested
they take a ride to Lytle Creek in Alvarez’s Astro van. Privately,
defendant told Mosqueda to put a gun in the van; he did not say
why. Defendant handed Mosqueda a rifle wrapped in a towel
and Mosqueda put it in the back of the van.
     With Alvarez as their driver, defendant, Mosqueda,
Torres, and Van Kleef entered the van. Tinoco and Ayala left
separately. With the four boys in the van, Alvarez drove to an
ampm convenience store where she purchased beer.
      Alvarez then drove up Lytle Creek Road before pulling
over into a dirt pull-off area. Everyone except Alvarez got out
and began drinking beer by the back of the van. Mosqueda and
Van Kleef chatted, while Torres and defendant had a separate
conversation. Mosqueda heard defendant say to Torres, “Hey,
don’t you trust me?” Torres put his arm around defendant.
Defendant suddenly shot Torres in the stomach and continued
to shoot Torres after he fell to the ground.
      Defendant, Mosqueda, and Van Kleef returned to the van,
and Alvarez started driving. Alvarez testified that defendant
was holding what looked like a pistol when he returned to the
van. Alvarez dropped defendant and Van Kleef off near her
apartment, then drove Mosqueda to his home. Defendant and
Van Kleef were at Alvarez’s apartment when she returned. Van
Kleef then left the apartment; defendant followed within a few

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                  Opinion of the Court by Kruger, J.


minutes, holding Alvarez’s car keys. Defendant returned after
about an hour. He told her that “he had gotten into an argument
or something and . . . somebody broke the window” of her van on
the front passenger’s side; she and Mosqueda both saw that the
window was damaged. Mosqueda described the damage as a
“bullet hole.”
      Defendant followed Alvarez around throughout the next
day and threatened to harm her family. She testified she
thought defendant would hurt her or her family if she called the
police. Around 11:00 p.m. that night, defendant again borrowed
Alvarez’s van and left for about an hour. Ayala was found early
the next morning, shot on the side of the road about two-tenths
of a mile from where Torres was found. Ayala was last seen by
his sister at their house around 11:00 p.m.; he was dressed for
bed and said he was in for the night.
      After the police started investigating the murders,
defendant left the United States for Mexico. He reportedly was
staying at the home of one of Alvarez’s relatives. Detectives
traveled to Mexico to find defendant, the van, and the murder
weapon. They did not locate defendant but saw the van, which
was later burned.
      On a second trip to Mexico, detectives traveled with
Alvarez’s mother, Maria Jackson, who was helping with the
investigation. The detectives and Jackson there met with
Jackson’s nephew, who said he had the murder weapon—a nine-
millimeter handgun. Jackson paid her nephew $100 for the
handgun, and the detectives reimbursed her. The gun was in a
plastic bag, but two of the detectives removed it briefly to check
if it was loaded. One of these detectives was a Mexican
detective, Trini Cambreros, who was assisting in the

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investigation. Jackson said she told him his fingerprints would
now be all over the gun. Then, according to Jackson, Cambreros
“got a blanket, a sheet that was on the bed, and wipe [sic] it off
and put it back in the plastic bag and put it on my purse.”
Criminalist Kerri Heward later testified for the prosecution that
the nine-millimeter handgun recovered from Mexico matched
bullets found at the Ayala and Torres crime scenes.
      Defendant was later arrested trying to cross the border
from Mexico into the United States. He used a false name, but
agents discovered his identity by running his fingerprints. A
border patrol agent asked defendant if he was “the Wizard.” He
replied, “You guys got me. You found me out . . . .”
         2. Arguments
      The prosecution’s theory was that defendant killed Torres
for refusing to join the gang. Then defendant killed Van Kleef
because he witnessed the Torres murder. Defendant likewise
killed Ayala to prevent him from implicating defendant in the
Torres murder; the prosecution theorized that defendant was
concerned Ayala had learned about the murder from his good
friend Mosqueda, who had also witnessed the murder but was a
member of the gang.
      The defense argued defendant was a scapegoat and did not
shoot the three boys. Pasillas, Alvarez, and Mosqueda—all of
whom had testified against defendant—were instead to blame.
The defense argued Alvarez and Pasillas were the gang
members in control and that Pasillas or Mosqueda shot the boys.
     The jury convicted on all three counts.




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                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


      B. Penalty Phase
         1. Aggravating Evidence
      At the penalty phase, the prosecution presented evidence
that defendant had committed multiple crimes unrelated to the
three murders: that he had brandished a gun while driving by
a birthday party; assaulted a correctional counselor while a
ward at a youth correctional facility; participated in the nonfatal
shooting of his former girlfriend; stabbed his sister’s boyfriend
with an ice pick; and committed two armed robberies with other
El Monte Trece gang members, during which innocent people
were shot. Also, while he was in custody awaiting trial in this
case, deputies found defendant with a “slashing type weapon”—
a toothbrush with a razor attached.
     The aggravation case also included evidence that
defendant had committed another murder, that of Mark Jaimes.
Jaimes’s body was found in the trunk of a car belonging to Rick
Milam. Milam had hired defendant’s mother as a prostitute and
was with her at a motel when his car disappeared from the
parking lot. Jaimes’s body was discovered when the car was
recovered.
      Lieutenant Roderick Kusch of the Los Angeles Police
Department, who investigated the Jaimes murder, conducted an
interview with defendant. A videotape of that interview was
played for the jury.
     During the interview, defendant said he went to the motel
room where his mother lived and found Jaimes there, seemingly
taking drugs. Defendant asked him to leave but he would not
leave and was “disrespecting” and “coming at my mom.”
Defendant told Kusch: “I murdered him ey. I did it. All right?
And I enjoyed doing it ay. I’m gonna tell you why, because it

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                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


was defending my mother.” Defendant later said, “I pulled out
my gun and I blew his fucking head off ay.”
       The prosecution also introduced evidence of the impact of
the victims’ deaths on the Torres, Van Kleef, and Ayala families.
Torres’s sister testified that her brother was “very smart” and a
“[v]ery happy boy,” who “loved taking pictures,” and their father
testified about how his son’s death had “destroyed the family.”
Van Kleef’s sister testified about how hard it was not having him
around for holidays; their father spoke about Van Kleef’s dream
to serve in the military and as a firefighter; and their mother
testified about how her son “thought a lot about people” and
“wanted to help people” and about how difficult it has been for
her and her family since his death. Ayala’s sister said Ayala
“always had a smile on his face,” “was really smart” and
“caring,” and “loved playing with his nieces and nephews”; he
“wanted to go to school to become a computer technician.”
Ayala’s mother testified Ayala “was [her] life.”
         2. Mitigating Evidence
      The defense presented evidence concerning prison
conditions for prisoners sentenced to life without the possibility
of parole. Retired San Quentin State Prison Associate Warden
Anthony Casas testified that such prisoners are held at top
security level 4, have little access to educational and work
opportunities, and do not have conjugal visits. He also testified
there had never been an escape from one of the new level 4
institutions, where defendant would have been housed.
     Retired Police Officer Steven Strong testified as an expert
on Hispanic street gangs in Los Angeles. He explained that
many gang members come from families where the parents may
be drug dealers, prostitutes, or incarcerated and that the gang

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                  Opinion of the Court by Kruger, J.


provides food and other things for the members that they cannot
get from their families. He testified that defendant had an
unstable childhood and that the only time defendant had
stability was when he joined the gang and started living with
Pasillas at age 11 or 12. Defendant’s mother and father were
both incarcerated, leaving defendant with “no other . . .
examples to learn from or see.” Strong testified that, for
defendant, the gang is “all he knows.”
                  II. JURY SELECTION ISSUES
      A. Stipulated Prescreening of Jurors Based on
         Questionnaire
      Before jury selection began, the parties stipulated to a
juror prescreening procedure that defendant now challenges on
appeal. According to the agreed-upon procedure, prospective
jurors first filled out a hardship questionnaire. The parties then
stipulated that certain jurors could be excused for hardship
based on their answers. Remaining jurors completed a different,
case-specific questionnaire. The parties reviewed the case-
specific questionnaires and stipulated that certain jurors should
be removed for cause or hardship before voir dire. The court
excused these jurors before the parties continued with jury
selection.
      Defendant argues this prescreening procedure violated
Code of Civil Procedure sections 222 and 223. Section 222,
subdivision (a) requires courts to “randomly select the names of
the jurors for voir dire, until the jury is selected or the panel is
exhausted.” Section 223, subdivision (a) says, “[T]he trial judge
shall conduct an initial examination of prospective jurors.”
Finally, defendant invokes Civil Code section 3513, which
provides: “Any one may waive the advantage of a law intended


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                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


solely for his benefit. But a law established for a public reason
cannot be contravened by a private agreement.” Defendant
argues that sections 222 and 223 were enacted for a public
reason, and his agreement to the prescreening procedure
therefore should not have been given effect.
      Our cases have consistently rejected similar challenges to
the excusal of jurors under similar mutually agreed-upon
prescreening procedures. “A court may allow counsel to screen
juror questionnaires and stipulate to juror dismissals.” (People
v. Duff (2014) 58 Cal.4th 527, 540 (Duff); accord, e.g., People v.
Booker (2011) 51 Cal.4th 141, 159.) Further, “a stipulation to
the excusal of jurors forfeits any subsequent objection to their
omission from the jury pool.” (Duff, at p. 540.)
      Here, by agreeing to the prescreening procedure he now
challenges, defendant has forfeited the claim. (E.g., People v.
Ervin (2000) 22 Cal.4th 48, 73.) In any event, the claim lacks
merit. Contrary to defendant’s argument, neither Code of Civil
Procedure section 222 nor section 223, subdivision (a) forbids
the prescreening procedure employed in this case. Section 222
requires random selection of prospective jurors for voir dire but
says nothing about prescreening through a questionnaire.
Section 223, subdivision (a), which requires the trial court to
conduct an initial examination of prospective jurors, does not
bar the court from exercising its discretion to allow counsel to
prescreen jurors and stipulate to dismissals.         (People v.
Benavides (2005) 35 Cal.4th 69, 88–89.)
     Defendant makes a number of related additional
arguments, which we also reject. He argues the prescreening
procedure allowed the parties “to trade discriminatory
removal[s] of potential jurors,” as well as to create a jury not

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                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


selected from a fair cross-section of the community. But
defendant has not alleged that any of the stipulated removals
were discriminatory, nor does he adequately explain how
permitting him to stipulate to the dismissal of certain jurors
could have undermined his right to trial by a jury selected from
a fair cross-section of the community. Defendant also claims the
prescreening procedure “frustrates the public policy requiring
that voir dire be open to the public.” (See, e.g., Press-Enterprise
Co. v. Superior Court of Cal. (1984) 464 U.S. 501, 508–509.) But
voir dire in this case was open to the public; the trial court
simply permitted the parties to stipulate to the removal of
certain jurors based on their written questionnaire responses.
Having agreed to this procedure, defendant may not now
complain that it violated his right to a public trial. (See People
v. Edwards (1991) 54 Cal.3d 787, 813.)
      B. Dismissal of Prospective Juror for Cause
      Defendant contends the trial court erred by excusing
Prospective Juror S.M. for cause during the death-qualification
portion of jury selection. Defendant contends the excusal of S.M.
violated his state and federal constitutional rights to due
process of law, to a fair and impartial jury, and to a reliable
penalty verdict. (U.S. Const., 6th, 8th & 14th Amends.; Cal.
Const., art. I, §§ 7, 15, 16, 17.) We discern no error.
      “ ‘A prospective juror in a capital case may be excluded for
cause if his or her views on capital punishment “would ‘prevent
or substantially impair the performance of his duties as a juror
in accordance with his instructions and his oath.’ ” (Wainwright
v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct.
844].)’ ” (People v. Rices (2017) 4 Cal.5th 49, 78.) “Both this
court and the United States Supreme Court have cautioned that


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                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


mere personal opposition to capital punishment is an
insufficient basis on which to justify dismissal of a juror during
jury selection.” (People v. Thompson (2016) 1 Cal.5th 1043, 1064
(Thompson).) “ ‘[N]ot all who oppose the death penalty are
subject to removal for cause in capital cases; those who firmly
believe that the death penalty is unjust may nevertheless serve
as jurors in capital cases so long as they state clearly that they
are willing to temporarily set aside their own beliefs in
deference to the rule of law.’ ” (People v. Jones (2017) 3 Cal.5th
583, 614 (Jones), quoting Lockhart v. McCree (1986) 476 U.S.
162, 176.)
      “That prospective jurors are not always clear in
articulating their beliefs (or accurately assessing their ability to
set aside those beliefs) is a difficulty trial and appellate courts
frequently encounter in capital cases.” (Thompson, supra, 1
Cal.5th at p. 1065.) “ ‘ “ ‘[I]n many cases, a prospective juror’s
responses to questions on voir dire will be halting, equivocal, or
even conflicting. Given the juror’s probable unfamiliarity with
the complexity of the law, coupled with the stress and anxiety of
being a prospective juror in a capital case, such equivocation
should be expected.’ ” ’ ” (Ibid.) For this reason, a prospective
juror’s bias against the death penalty need not be demonstrated
with “ ‘unmistakable clarity.’ ” (Jones, supra, 3 Cal.5th at
p. 615; see People v. Bramit (2009) 46 Cal.4th 1221, 1235
(Bramit) [“ ‘ “many veniremen simply cannot be asked enough
questions to reach the point where their bias has been made
‘unmistakably clear’; these veniremen may not know how they
will react when faced with imposing the death sentence, or may
be unable to articulate, or may wish to hide their true
feelings” ’ ”].) “ ‘Instead, after examining the available evidence,
which typically includes the juror’s written responses in a jury

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                   Opinion of the Court by Kruger, J.


questionnaire and answers during voir dire, the trial court need
only be left with a definite impression that the prospective juror
is unable or unwilling to faithfully and impartially follow the
law.’ ” (Jones, at p. 615, quoting Thompson, at p. 1066.)
         On appellate review, we recognize that “ ‘in assessing a
prospective juror’s true state of mind, the trial court occupies a
superior position vis-à-vis an appellate court, for the former
court is able to consider and evaluate a juror’s demeanor during
voir dire.’ ” (Jones, supra, 3 Cal.5th at p. 615; see also ibid.
[“ ‘ “ ‘ “[A]ppellate courts recognize that a trial judge who
observes and speaks with a prospective juror and hears that
person’s responses (noting, among other things, the person’s
tone of voice, apparent level of confidence, and demeanor) . . .
gleans valuable information that simply does not appear on the
record” ’ ” ’ ”].) “ ‘Accordingly, the trial court’s ruling regarding
the juror’s true state of mind is entitled to deference on appeal
if supported by substantial evidence.’ ” (Ibid.; see Bramit,
supra, 46 Cal.4th at p. 1235.)1 Applying these principles, we
conclude that substantial evidence supports the trial court’s
decision to dismiss S.M. for cause.
     In his responses to the juror questionnaire, S.M.
acknowledged he had reservations about imposing the death


1
      Defendant argues that this approach is outdated and
inconsistent with the United States Supreme Court’s holdings
in Adams v. Texas (1980) 448 U.S. 38 and Gray v. Mississippi
(1987) 481 U.S. 648. The argument lacks merit. The Supreme
Court has long emphasized deference to a trial court’s
“determinations of demeanor and credibility” (Wainwright v.
Witt, supra, 469 U.S. at p. 428; see Darden v. Wainwright (1986)
477 U.S. 168, 178) and has continued to do so following Adams
and Gray (see Uttecht v. Brown (2007) 551 U.S. 1, 9).

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penalty. When asked to select from among five responses the
one that most clearly aligned with his view on the death penalty,
S.M. chose, “I have doubts about the death penalty, but I would
not vote against it in every case.” Elsewhere, S.M. indicated he
had “moral[,] philosophical, or religious” objections to capital
punishment and that his decisionmaking was “greatly”
influenced by his moral preferences. He further wrote that the
death penalty should be used “sparingly,” only “where an
individual is beyond compunction,” and “for the most heinous of
crimes.” And when asked to “list any biases you may have that
could interfere with your ability to be an impartial juror if
selected to sit on this case,” S.M. wrote: “Imposition of the death
penalty.”
      Though S.M. indicated in response to one question that he
believed the death penalty law in California is fair, in response
to another he said he had “reservations about [the death
penalty’s] effectiveness to deter crime, [and its] fairness.” And,
despite having checked “[n]o” when asked whether he would be
reluctant to state a death verdict in open court, he checked
“[y]es” when asked whether he would be reluctant to vote for a
sentence of death or personally sign the verdict form.
      Along with these reservations, however, S.M. expressed
the view that he could faithfully follow the law. Indeed, he
stated both that he would not automatically vote for life without
the possibility of parole and that he could “weigh the evidence
and the circumstances” to select a sentence. He further stated
he could consider both the death penalty and life without parole
as a “realistic and practical possibility” (underscoring omitted)
for an individual found guilty of three separate killings, with the
handwritten elaboration that the ultimate sentence rendered
would “[d]epend[] on the degree of severity of the crime.”
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                   Opinion of the Court by Kruger, J.


       When asked to elaborate on his views of the death penalty
at voir dire, however, S.M. grew more equivocal about his ability
to fairly apply the law. When questioned by the prosecutor, S.M.
maintained he could be fair and impartial but said he would be
“reluctant to impose the death penalty[,]” raised concerns
regarding recent exonerations based on DNA evidence, and
agreed that sitting on the jury would put him in a “moral
dilemma.” When asked if his concerns might “carry over in the
guilt portion of the trial,” he said it was “possible,” but “it would
be hard to say,” since this was the first time he had been in such
a situation.
      When questioned by the defense, S.M. continued to
vacillate on his ability to follow the law as given and impose the
death penalty. Although S.M. said he could “consider those
different factors” per the court’s sentencing instructions and
impose the death penalty in an “appropriate case,” he also stated
he did not “know if [he] could in good conscience vote [for] the
death penalty.” He expressed a belief that the death penalty is
appropriate “for the most heinous of crimes” but acknowledged
that he was “still in the process of soul searching” to determine
“what that is.” When asked if he could impose the death penalty
in a case involving a multiple murder special circumstance, he
said: “I’m trying to decide whether I agree with if something is
indeed a special circumstance, you know. I understand the law
defines it one way, but I have to look within and decide whether
I can use that factor in determining whether I can take
someone’s life or vote that someone’s life be taken.”
      At the conclusion of defense counsel’s questioning, the
prosecution challenged S.M. for cause. The trial court granted
the challenge over defense objection “based on what [it] heard”
during voir dire.
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       The record reveals no error in the trial court’s
determination that S.M.’s views on capital punishment would
have substantially impaired his performance as a juror. When
asked about his ability to set aside his personal views and follow
the law, S.M. gave equivocal and inconsistent answers. At times
he professed he could do so, but he also stated in his written
questionnaire that “[i]mposition of the death penalty” was one
of his “biases” that “could interfere” with his “ability to be an
impartial juror.” When questioned further at voir dire, S.M.
acknowledged he was not sure he could “in good conscience” vote
for death and agreed that serving as a juror in a capital case
would put him in “a moral dilemma.” Defendant argues that
these responses demonstrate only that S.M. had reservations
about the death penalty, not that he would face substantial
difficulties in considering death as a potential option. This is
one possible conclusion to be drawn from S.M.’s statements, but
it is not the only possible conclusion. Another possible
conclusion was that S.M. did “ ‘ “not know how [he would] react
when faced with imposing the death sentence” ’ ” (Bramit,
supra, 46 Cal.4th at p. 1235), but in the end he would not, “in
good conscience,” realistically be able to consider voting in favor
of death. (Compare, e.g., People v. Spencer (2018) 5 Cal.5th 642,
659 [affirming dismissal of juror who “mentioned his ‘reluctance
about the death penalty’ as something which may affect his
ability to be a juror or his participation as a juror in this trial”];
People v. Wash (1993) 6 Cal.4th 215, 255 [affirming dismissal of
juror who “initially denied she had any feelings about the death
penalty that would affect her decision” but then “consistently
responded, ‘I don’t know’ in answer to the question whether she
was capable of voting for death”].)



                                  17
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


      Where, as here, a juror gives ambiguous responses, it is
for the trial court to resolve that ambiguity in the first instance.
In such cases we “ ‘defer to the trial court’s evaluation of a
prospective juror’s state of mind, and such evaluation is binding
on appellate courts.’ ” (People v. Roldan (2005) 35 Cal.4th 646,
696.) The trial court was in the best position to observe S.M.’s
demeanor, vocal inflection, and other cues not readily apparent
on the record, and we reasonably infer that the trial court based
its decision not only on what S.M. said, but also on how he said
it. (See People v. Clark (2011) 52 Cal.4th 856, 897 (Clark)
[“Although at the end of the voir dire questioning L.C. expressed
greater certainty concerning his ability to vote for the death
penalty in an appropriate case, the court was entitled to find
those assurances were severely undercut by his demeanor and
his hesitant, inconsistent, and equivocal responses”]; People v.
Watkins (2012) 55 Cal.4th 999, 1016 [inferring that trial court
reached its conclusion based on juror’s demeanor and
responses]; accord, e.g., Thompson, supra, 1 Cal.5th at p. 1070.)
Given the trial court’s careful conduct of jury selection, we have
no basis to doubt the trial court applied the appropriate
standard in determining that S.M. was subject to excusal for
cause. Even though S.M. also made other statements that,
viewed in isolation, “ ‘might have warranted keeping [him] as [a
juror],’ ” the record as a whole includes substantial evidence to
support the trial court’s definite impression that S.M. would not
be able to faithfully and impartially apply the law. (People v.
Martinez (2009) 47 Cal.4th 399, 431 (Martinez); see People v.
Thornton (2007) 41 Cal.4th 391, 414 (Thornton).) The record
thus supports the court’s exercise of discretion in dismissing
S.M. for cause.



                                 18
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


     C. Alleged Unfairness in Applying Witt Standard
       Defendant contends the trial court failed to apply the Witt
standard impartially and evenhandedly to both “pro-death” and
“pro-life” prospective jurors and that the court thereby violated
of his state and federal constitutional rights. (U.S. Const., 6th,
8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, 17.) In
particular, defendant alleges the court treated S.M., who had
doubts about the death penalty, differently than it treated
Prospective Jurors L.T., D.S., and S.T., who favored the death
penalty. He maintains that the court selectively and leadingly
questioned these “pro-death” jurors to rehabilitate them and did
not accord the same treatment to S.M. Defendant argues the
trial court’s conduct resulted in a jury “ ‘uncommonly willing to
condemn a man to die.’ ” (Quoting Witherspoon v. Illinois (1968)
391 U.S. 510, 521.) The argument lacks merit.2



2
      The Attorney General asks us to reject defendant’s claim
on the ground that it has been forfeited because defendant failed
to make the same objection in the trial court. We have, however,
previously exercised our discretion to address the merits of
similar claims despite the defendant’s failure to object below.
(See, e.g., Clark, supra, 52 Cal.4th at p. 902, fn. 10; Martinez,
supra, 47 Cal.4th at p. 439, fn. 8.) We will do so again here.
      To the extent defendant intends to separately challenge
the trial court’s decision not to dismiss Prospective Jurors L.T.,
D.S., and S.T. for cause, that claim has not been preserved.
Generally speaking, to complain on appeal of a denial of a
challenge for cause, a litigant must “exercise a peremptory
challenge and remove the prospective juror in question,”
“exhaust all of the peremptory challenges allotted by statute and
hold none in reserve,” and “express to the trial court
dissatisfaction with the jury as presently constituted.” (People
v. Mills (2010) 48 Cal.4th 158, 186 (Mills); cf. People v. Black


                                 19
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


      We agree with defendant that “trial courts should be
evenhanded in their questions to prospective jurors during the
‘death-qualification’ portion of the voir dire, and should inquire
into the jurors’ attitudes both for and against the death penalty
to determine whether these views will impair their ability to
serve as jurors.” (People v. Champion (1995) 9 Cal.4th 879, 908–
909.) But trial courts have “ ‘broad discretion over the number
and nature of questions about the death penalty.’ ” (Mills,
supra, 48 Cal.4th at p. 189.) We presume “the trial court
formulated its questions based on the individual characteristics
of each juror, including the juror’s questionnaire answers and
in-court demeanor.” (Id. at p. 190.) “To second-guess these
choices would encourage the trial court to engage in
substantially the same questioning of all prospective jurors
irrespective of their individual circumstance, something we
have declined to do.” (Ibid., citing Thornton, supra, 41 Cal.4th
at p. 425.) Accordingly, an argument “based solely on a
numerical counting of questions” asked to “pro-death” and “pro-
life” jurors “is not sufficient to establish a constitutional
violation.” (People v. Navarette (2003) 30 Cal.4th 458, 487; see
Mills, at p. 190, citing Thornton, at p. 425.)



(2014) 58 Cal.4th 912, 920 (Black) [“When a defendant uses
peremptory challenges to excuse prospective jurors who should
have been removed for cause, a defendant’s right to an impartial
jury is affected only when he exhausts his peremptory
challenges and an incompetent juror, meaning a juror who
should have been removed for cause, sits on the jury that decides
the case”].) Here, defendant exercised peremptory challenges to
remove each of the three jurors, but never asked for more
challenges nor otherwise expressed dissatisfaction with the jury
as constituted. Defendant therefore did not preserve this
challenge to the trial court’s rulings for appellate review.

                                 20
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


      In his effort to establish judicial bias, defendant points to
the trial court’s questioning of three prospective jurors.
Defendant claims the questioning of these three individuals
demonstrates the court’s bias toward the death penalty. But
three prospective jurors “constitutes an extremely limited
sample of the trial court’s overall performance, thereby
diminishing the probative value of the examples proffered by
defendant to support the inference” that the court made a
greater effort to rehabilitate pro-death penalty jurors.
(Martinez, supra, 47 Cal.4th at p. 447.) Review of the record as
a whole shows the trial court rehabilitated both “pro-death” and
“pro-life” jurors and sometimes elected not to intervene because
counsel’s     questioning     rendered      further    questioning
unnecessary. The trial court on multiple occasions questioned
prospective jurors who expressed reluctance about or opposition
to the death penalty and determined they were fit to serve. On
other occasions, the court declined to question prospective jurors
who expressed leanings in favor of the prosecution and later
dismissed them for cause at defendant’s request.3

3
      For example, the trial court questioned the following
prospective jurors, with the results indicated: D.J., denying the
prosecution’s challenge for cause despite juror’s initial
statement that she did not believe she could impose the death
penalty; V.B., denying prosecution’s challenge for cause despite
V.B.’s skepticism of the death penalty; T.P., excusing pro-law
enforcement juror for cause; V.D., denying prosecution’s
challenge for cause despite the appearance of an intent to hold
the prosecution to a higher standard than beyond a reasonable
doubt; S.C., dismissing prospective juror for cause after she said
she believed the only appropriate penalty for three murders is
death, despite her claim that she could follow the law; R.H.,
denying the prosecution’s challenge for cause despite her


                                 21
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


       But even if we focus exclusively on the three prospective
jurors on whom defendant trains his attention, the record does
not support defendant’s allegations of judicial bias. Having
carefully reviewed the record of voir dire, we see no lack of
evenhandedness or impartiality in the court’s questioning of
L.T. and S.T. to clarify their ability to follow the law. The trial
court did not question D.S., but we see nothing untoward in that
decision either. In his written responses to the questionnaire,
D.S. indicated a belief that the death penalty is appropriate
when imposed on criminals who would kill again. When
questioned further by both the defense and prosecution, D.S.
stated he could consider both death and life without parole and
that he would be as fair and impartial as possible. Given the
general consistency of his answers to both attorneys during voir
dire, the trial court evidently concluded there was no need to ask
further questions to clarify D.S.’s views. In denying defendant’s
challenge for cause, the trial court explained that “after both
attorneys had an opportunity to ask [D.S.] in person about his
feelings, he made it very clear he can remain open minded and
fair and base his decision on what the evidence and the laws are
and what he is instructed on.”
      Defendant argues that the trial court’s decision to excuse
S.M., despite S.M.’s similar responses about impartiality, and



statement that she would “need to be 100 percent” before
imposing the death penalty or convicting defendant; R.B.,
denying the prosecution’s challenge for cause, despite her
statement that she could vote for death but could not announce
it to defendant in open court; and J.D., denying the prosecution’s
challenge for cause after J.D., who previously indicated he could
not impose the death penalty based on the beyond a reasonable
doubt standard, stated he could follow the law.

                                 22
                         PEOPLE v. FLORES
                   Opinion of the Court by Kruger, J.


without questioning S.M. further, demonstrates a lack of
evenhandedness. But as discussed above, S.M.’s answers were
equivocal and inconsistent. In response to the attorneys’
questioning, S.M. at times indicated he was willing to consider
both penalty options but also expressed substantial qualms
about the possibility of imposing a sentence of death and
questioned his own ability to accept the law’s determination
about the crimes warranting a potential death sentence. The
trial court, having observed both these responses and S.M.’s
demeanor, acted within its discretion in concluding that “further
questioning was not likely to render [S.M.] qualified to sit in a
capital case.” (Mills, supra, 48 Cal.4th at p. 190; see Thornton,
supra, 41 Cal.4th at p. 423 [finding “nothing improper in the
court’s explaining the law to the prospective juror, nor in its
failing to engage in a similar dialogue with other prospective
jurors whose voir dire did not give rise to the same concerns”].)
       In sum, we see no basis for defendant’s claim that the trial
court disproportionately attempted to rehabilitate and retain
jurors with pro-death penalty views. The record instead shows
that the trial court carefully evaluated jurors on an individual
basis.
      Although that conclusion suffices to dispose of defendant’s
argument, we also note that defendant fails to support his claim
that the trial court’s purported lack of evenhandedness in voir
dire affected the fairness of the jury that sat on his case. None
of the three “pro-death” jurors at issue served on the jury;
defendant was able to remove all three by peremptory strike or
stipulation. “If no biased or legally incompetent juror served on
defendant’s jury, the judgment against him does not suffer from
a federal constitutional infirmity . . . .” (Black, supra, 58 Cal.4th
at p. 917.) Here, defendant fails to show that any empaneled
                                  23
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


jurors were biased in favor of death. He likewise fails to show
that the trial court’s handling of Prospective Jurors L.T., D.S.,
and S.T. undermined his constitutional right to an impartial
jury.
                  III. GUILT PHASE ISSUES
     A. Denial of Motion To Exclude Firearm Evidence
        or To Instruct Jury on State’s Bad Faith
        Destruction of Evidence
      During their investigation, San Bernardino detectives
twice traveled to Mexico in search of defendant and evidence
related to the homicides. On their second trip, Detectives Chris
Elvert and Robert Acevedo were accompanied by Maria Jackson,
Alvarez’s mother and Mosqueda’s grandmother. Jackson had
told the detectives that her nephew, who lived in Mexico, could
purchase from a third party the nine-millimeter handgun
allegedly used in the homicides and deliver it to her. The
detectives picked up Jackson in Southern California and drove
across the border to Tijuana, where they met Cambreros, a
Mexico-based detective. Jackson recalled that, before they all
drove to meet her nephew, the three men discussed whether
Cambreros should return the handgun to Mexican authorities
and “go through some kind of paperwork for permission from the
governments,” but they decided to retrieve it informally instead.
      The testimony at trial was uncontroverted that Elvert
offered Jackson’s nephew $100 in cash for the handgun, but
Jackson’s nephew refused to accept the money for fear that it
was marked. Jackson’s nephew instead agreed to accept $100
from Jackson, and Elvert later reimbursed her. Jackson, Elvert,
and Acevedo all testified that Jackson’s nephew retrieved the
handgun, which was in a plastic bag, and placed it in Jackson’s
purse. At that point, however, their testimony diverged.
                                 24
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


       Jackson, who was called as a witness for the prosecution,
testified that Acevedo pulled the handgun out of Jackson’s purse
to see if it was loaded and then handed it to Cambreros, who
“was handling it too and trying to see if it work[ed].” Jackson
recalled telling Cambreros that “now the gun is going to have all
kinds of fingerprints” on it, at which point Cambreros “got a
blanket . . . and wipe[d] [the gun] off and put it back in the
plastic bag and put it [in] my purse.” According to Jackson, the
handgun then remained in her purse until she reached the
border with Elvert and Acevedo.
       The detectives provided different accounts.     Elvert
testified that the handgun remained in Jackson’s purse until
“we came back to [the] United States and then myself and
Acevedo took possession of that weapon.” He further testified
that the handgun was never wiped down by Cambreros; but on
redirect examination, he acknowledged that Cambreros “could
have” touched the handgun even though he “did not see that.”
      Acevedo testified Jackson gave him the nine-millimeter
handgun immediately before they crossed the border into the
United States. He recalled that Cambreros “inspected” the
handgun before it was placed in Jackson’s purse, but he said he
never saw Cambreros wipe it down. On cross-examination,
Acevedo reiterated that “[i]f [Cambreros] wiped the gun off, I
didn’t see it.”
      At one point, Acevedo instructed Jackson not to mention
Cambreros’s name to anyone, because Cambreros “did not want
to be subpoenaed” in the United States. Acevedo testified he
“could understand that” because “[i]t’s very difficult for officers
to come across” the border. Acevedo also testified that, before



                                 25
                       PEOPLE v. FLORES
                 Opinion of the Court by Kruger, J.


returning to the United States, Elvert placed $100 in
Cambreros’s pocket and said, “This is for your expenses.”
      The nine-millimeter handgun was later tested for DNA. A
criminologist testified she identified DNA material from
multiple people on the inner slide of the handgun. She
compared the recovered material to DNA samples that had been
collected from defendant, Pasillas, Alvarez, Mosqueda, Torres,
Van Kleef, and Ayala. All of the tested individuals, including
defendant, were excluded as possible contributors, except for
Pasillas and Van Kleef. No useable fingerprints were found on
the gun.
      Criminalist Kerri Heward also test-fired the handgun and
compared the bullets and cartridge casings from the test-fire to
those found at the crime scenes. She ultimately determined that
the cartridge cases from the Torres and Ayala crime scenes came
from the nine-millimeter handgun retrieved in Mexico.
      Defendant filed a motion to dismiss. He also moved to
suppress the handgun, any testimony as to its use and recovery,
and the ballistics evidence comparing the handgun and
recovered casings. In the alternative, defendant asked that the
jury be instructed on the government’s bad faith destruction of
evidence. He claimed the police manipulated and destroyed
evidence, as well as violated the Mutual Legal Assistance Treaty
with Mexico. And he argued the destroyed evidence would have
been exculpatory because fingerprints on the handgun could
have excluded him and instead inculpated Pasillas, Alvarez, or
Mosqueda. Had the detectives recovered the handgun through
formal channels, defendant argued, Cambreros would have had
no reason to wipe down the handgun, and more prints would



                                26
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


have been found tying the alleged murder weapon to other
suspects.
      On appeal, defendant challenges the court’s denial of this
motion. We view the evidence in the light most favorable to the
trial court’s ruling and review its decision for substantial
evidence. (People v. Montes (2014) 58 Cal.4th 809, 837; People
v. Roybal (1998) 19 Cal.4th 481, 510 (Roybal).)
      The principles that guide our analysis are well
established. Law enforcement agents have a constitutional duty
to preserve evidence, but that duty is limited to “evidence that
might be expected to play a significant role in the suspect’s
defense.” (California v. Trombetta (1984) 467 U.S. 479, 488.) To
reach this standard of “constitutional materiality,” the “evidence
must both possess an exculpatory value that was apparent
before [it] was destroyed, and be of such a nature that the
defendant would be unable to obtain comparable evidence by
other reasonably available means.” (Id. at p. 489; accord, People
v. Carter (2005) 36 Cal.4th 1215, 1246.)
      The defendant bears a higher burden to establish a
constitutional violation when “no more can be said” of the
evidence “than that it could have been subjected to tests, the
results of which might have exonerated the defendant.”
(Arizona v. Youngblood (1988) 488 U.S. 51, 57 (Youngblood).) In
such cases, “unless a criminal defendant can show bad faith on
the part of the police, failure to preserve potentially useful
evidence does not constitute a denial of due process of law.” (Id.
at p. 58; accord, Duff, supra, 58 Cal.4th at p. 549.) The
assessment of bad faith “must necessarily turn on the police’s
knowledge of the exculpatory value of the evidence at the time
it was lost or destroyed.” (Youngblood, at p. 57, fn. *.)

                                 27
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


        We have had several occasions to consider the
constitutional materiality of fingerprint evidence that law
enforcement fails to preserve. (E.g., Roybal, supra, 19 Cal.4th
481; People v. DePriest (2007) 42 Cal.4th 1; People v. Medina
(1990) 51 Cal.3d 870.) In Roybal, the defendant claimed the
prosecution destroyed exculpatory evidence when it lost a
doorjamb that was photographed and removed from the crime
scene after an “ ‘orangish-red’ ” print was found on it. (Roybal,
at p. 498.) Witnesses for both sides testified that the print, as
captured in the photograph, did not match the defendant’s
fingerprints. On appeal, the defendant argued he was deprived
of the opportunity to inspect the doorjamb and enhance the
print, which he claimed “ ‘was believed to have been made by
the person who committed the homicide or by a person
involved.’ ” (Id. at p. 508.) But we held there was no discernable
exculpatory potential in the print at the time the doorjamb
disappeared. Simply put: “[T]he print may or may not have
been defendant’s and may or may not have been the
perpetrator’s.” (Id. at p. 510; see also DePriest, at p. 41
[exculpatory value of fingerprints not apparent when the
prosecution failed to retain the victim’s car, which contained
“three unidentified fingerprints that could have been made by
. . . the person who supposedly killed [the victim] and stole her
car”]; Medina, at p. 893 [fingerprint on water bottle at crime
scene was not constitutionally material because the investigator
“could not know at the time the prints were taken whether, or
to what extent” they matched the defendant’s].)
     Similarly here, any potentially exculpatory value in prints
(or DNA) on the nine-millimeter handgun would not have been
apparent at the time Cambreros was said to have wiped it


                                 28
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


down.4 Like the fingerprint evidence destroyed or lost in
Roybal, DePriest, and Medina, any prints removed from the
handgun “may or may not have been defendant’s and may or
may not have been the perpetrator’s.” (Roybal, supra, 19
Cal.4th at p. 510.) This is thus a case in which “no more can be
said” than that the handgun “could have been subjected to tests,
the results of which might have exonerated the defendant.”
(Youngblood, supra, 488 U.S. at p. 57.)
      To establish a due process violation, defendant therefore
must prove that the police acted in bad faith. (Youngblood,
supra, 488 U.S. at p. 57; Duff, supra, 58 Cal.4th at p. 549.)
Defendant’s primary argument is that bad faith is shown by the
detectives’ failure to follow the procedures set forth in the
Mutual Legal Assistance Treaty Between the United States and
Mexico (Dec. 9, 1987, T.I.A.S. No. 91-503 (eff. May 3, 1991)
(MLAT)).
      The MLAT generally provides for mutual legal assistance
between the United States and Mexico in criminal matters,
including “the prevention, investigation and prosecution of
crimes.” (MLAT, supra, art. 1, par. 1.) It sets forth procedures
by which either country can request assistance from the other,
including requests to take testimony, provide “documents,


4
      Like the trial court, we assume without deciding that
Cambreros wiped down the handgun, as Jackson testified. We
also accept defendant’s argument that Cambreros was acting as
an agent of the San Bernardino Police Department when he
wiped down the gun—a point the Attorney General has not
contested. (See Dyas v. Superior Court (1974) 11 Cal.3d 628,
633, fn. 2 [exclusionary rule applies to a person acting “as an
agent of the police or participat[ing] in a joint operation with law
enforcement authorities”].)

                                 29
                          PEOPLE v. FLORES
                    Opinion of the Court by Kruger, J.


records and evidence,” execute searches and seizures, and
“locat[e] or identify[] persons.” (Id., art. 1, par. 4, subds. (b), (g).)
Although the MLAT provides formal mechanisms for requesting
such assistance, it does not preempt nor otherwise impair other
avenues for providing mutual assistance. (Id., art. 15 [“The
Parties may also provide assistance pursuant to any bilateral or
multilateral arrangement, agreement, or practice which may be
applicable”].) And it states expressly that it “is intended solely
for mutual legal assistance between the [sovereign] Parties”—
not for the vindication of private rights. (Id., art. 1, par. 5; see
also U.S. v. Rommy (2d Cir. 2007) 506 F.3d 108, 129 (Rommy)
[“As the Supreme Court has long observed, absent explicit treaty
language conferring individual enforcement rights, treaty
violations are generally addressed by the signatory sovereigns
through diplomatic channels”].)
      Although defendant does not argue that failure to follow
the MLAT is in itself a basis for reversal, he does argue that the
failure to follow the formal protocols of the MLAT is evidence of
the detectives’ bad faith. He points to case law outside our
jurisdiction to argue violating formal procedures governing the
preservation of evidence constitutes bad faith. (See U.S. v.
Montgomery (D.Kan. 2009) 676 F.Supp.2d 1218; State v.
Durnwald (Ohio Ct.App. 2005) 837 N.E.2d 1234; U.S. v. Elliott
(E.D.Va. 1999) 83 F.Supp.2d 637 (Elliott).) In Elliott, the
defendant argued the Drug Enforcement Administration (DEA)
destroyed fingerprint evidence in bad faith when it failed to
preserve glassware implicated in a drug crime after
photographing the evidence and dusting it for prints. (Id. at
p. 640.) The court agreed this destruction rose to the level of bad
faith primarily because the DEA’s actions violated the agency’s
procedures and regulations respecting the disposal of drugs. (Id.

                                   30
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


at p. 647.) The court noted that, although the failure to follow
standard procedures does not “ipso facto establish bad faith,” it
“is probative evidence of bad faith, particularly when the
procedures are clear and unambiguous.” (Ibid.) In Montgomery,
DEA agents were again found to have acted in bad faith, this
time for destroying marijuana plants without photographing
them, in violation of clear DEA policies. (Montgomery, at
pp. 1244–1245.) Lastly, in Durnwald, a state trooper was found
to have acted in bad faith when he erased dashboard video
footage of a field sobriety test in violation of Ohio State Highway
Patrol regulations. (Durnwald, at p. 1242.)
      Defendant compares the procedural violations in Elliott,
Montgomery, and Durnwald to the San Bernardino detectives’
failure to retrieve the firearm through the formal channels of
the MLAT. But while it is true the detectives could have filed
an official request for assistance through the treaty (MLAT,
supra, art. 1, pars. 1, 4; id., art. 4), compliance with its
procedures was not mandatory, as it was in the cases on which
defendant relies; the treaty does not establish the exclusive
means for recovering evidence located in the other country (id.,
art. 15). (See Rommy, supra, 506 F.3d at p. 129 [interpreting
similar provisions in Treaty on Mutual Assistance in Criminal
Matters between the United States and the Netherlands and
noting that “the treaty has no application to evidence obtained
outside the MLAT process”].) Thus, in contrast to Elliott,
Montgomery, and Durnwald, defendant cannot identify any
violation of “clear and unambiguous” procedures based on the
detectives’ failure to request assistance through the treaty.
(Elliott, supra, 83 F.Supp.2d at p. 647.)
      Defendant also contends Cambreros demonstrated the
requisite bad faith by intentionally wiping down the handgun.
                                 31
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


But by defendant’s own account, Cambreros wiped down the
handgun only to avoid the possibility of being subpoenaed in the
United States. Cambreros had no apparent reason to believe
that by doing so, he was destroying any potentially exculpatory
evidence, and defendant does not claim otherwise. (See People
v. Webb (1993) 6 Cal.4th 494, 519 [due process rule is “intended
to deter the police from purposefully denying an accused the
benefit of evidence that is . . . known to be exculpatory”].)
Cambreros’s action may have been negligent, but negligence
does not establish constitutional bad faith. (U.S. v. Flyer (9th
Cir. 2011) 633 F.3d 911, 916 [“Bad faith requires more than
mere negligence or recklessness”]; e.g., Youngblood, supra, 488
U.S. at p. 58 [failure to preserve clothing with semen samples
was “at worst . . . negligent” and did not evince bad faith]; Webb,
at p. 520 [no bad faith where law enforcement negligently left
possible murder weapon in apartment after finding it during a
search].) While Cambreros should not have wiped down the
gun, defendant has not shown that Cambreros’s action
amounted to a violation of due process. Because defendant has
not carried this burden, we uphold the trial court’s denial of his
motion to dismiss or suppress.
      Finally, defendant argues in passing that the trial court
should have at least given an adverse inference jury instruction
regarding the government’s destruction of evidence. We have
held that such an instruction “need not be given where . . . no
bad faith failure to preserve the evidence was shown.” (People
v. Cook (2007) 40 Cal.4th 1334, 1351.) We therefore reject this
argument as well.
      B. Admission of Gang Expert Testimony
      At trial, the prosecution offered testimony by Detective


                                 32
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


Marty Penney, an expert in the culture, structure, and practices
of criminal gangs in the El Monte area. He testified about the
importance of gang recruitment, the significance of disrespect in
gang culture, and the concept of “good murders.” In addition to
this general testimony, Penney offered opinions about potential
gang-related motives for hypothetical killings that closely
tracked the facts of this case. Defendant contends Penney’s
expert testimony was irrelevant (Evid. Code, § 1101), and
unduly prejudicial (id., § 352).     He further argues that
admission of the evidence violated his constitutional rights to
due process and to reliable guilt and penalty verdicts. (U.S.
Const., 8th & 14th Amends.; Cal. Const., art. I, § 15.) We review
the trial court’s admission of expert testimony for abuse of
discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1222
(Prince).)
      The Attorney General contends defendant forfeited his
argument by failing to object to the expert testimony on
precisely the same grounds as he does now. We disagree. “In a
criminal case, the objection will be deemed preserved if, despite
inadequate phrasing, the record shows that the court
understood the issue presented.” (People v. Scott (1978) 21
Cal.3d 284, 290.) Here, before Penney testified, defendant filed
a motion to exclude or limit gang-related testimony, arguing it
was irrelevant, unduly prejudicial, and speculative.            In
expressing its intention to deny the motion, the trial court
acknowledged the defense’s objection “to the entire information
about the defendant’s involvement with the gang and the theory
that goes to the prosecution in terms of motive and intent . . . .”
Later, when Penney took the stand, defense counsel again
objected to answers that called for speculation or were beyond
the subject matter of Penney’s expertise, including answers

                                 33
                         PEOPLE v. FLORES
                   Opinion of the Court by Kruger, J.


related to the perpetrator’s possible motives. This was adequate
to preserve defendant’s challenge to Penney’s testimony. We
will therefore address the challenge on the merits.
       California law authorizes qualified experts to offer opinion
testimony if the subject matter is “sufficiently beyond common
experience” such that the expert’s opinion “would assist the trier
of fact.” (Evid. Code, § 801, subd. (a).) In general, “ ‘[t]he subject
matter of the culture and habits of criminal street gangs . . .
meets this criterion.’ ” (People v. Vang (2011) 52 Cal.4th 1038,
1044 (Vang).) When relevant to prove motive or identity, gang
evidence is admissible “so long as its probative value is not
outweighed by its prejudicial effect.” (People v. Williams (1997)
16 Cal.4th 153, 193; see, e.g., People v. Ward (2005) 36 Cal.4th
186, 210 [allowing expert opinion explaining why the defendant
may have entered rival gang territory and the defendant’s
“likely reaction to language or actions he perceived as gang
challenges”]; People v. Martinez (2003) 113 Cal.App.4th 400, 413
[allowing expert testimony about “the concept of payback within
gang culture,” where the defendant had previously been
assaulted by rival gang members and several witnesses testified
that the defendant made a gang-related comment before he shot
the victim].)
      An expert opinion may be rendered in the form of
responses to hypothetical questions that ask the expert to
assume the truth of certain facts rooted in the evidence. (People
v. Richardson (2008) 43 Cal.4th 959, 1008; accord, People v.
Moore (2011) 51 Cal.4th 386, 405 (Moore); Vang, supra, 52
Cal.4th at p. 1046.) But “the expert’s opinion may not be based
‘on assumptions of fact without evidentiary support [citation], or
on speculative or conjectural factors.’ ” (Richardson, at p. 1008;
accord, Moore, at p. 405; Vang, at p. 1046.)
                                  34
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


      Defendant argues the trial court erred by admitting
Penney’s testimony on possible gang-related motives for the
three homicides because the testimony was not grounded in the
evidence and did not rest on the witness’s expert knowledge of
gang culture, but rather on the witness’s personal view of the
evidence. We discern no prejudicial error in the admission of
the challenged testimony.
       In response to hypothetical questions, Penney opined it
was possible Torres was killed because he had “some
information” on defendant and because Torres showed
disrespect by failing to “jump into the gang after giving his word
that he would.” Penney acknowledged, however, that he had
never heard of anyone being killed for refusing to join a gang.
Penney also surmised that Van Kleef was killed because he
witnessed the Torres homicide and posed a threat to the
perpetrator, especially since Van Kleef was not committed to the
gang lifestyle and rules. As for the Ayala killing, Penney
testified Ayala would have shown disrespect to defendant by
declining to join the gang despite defendant’s recruitment
efforts, and that the manner of Ayala’s death reflected an
“assassinat[ion]” similar to the Van Kleef killing. Drawing on
his knowledge of gang culture, Penney concluded the three
hypothetical killings would have been considered so-called “good
murders.”
      As an initial matter, the parties agree there was no
evidentiary support for part of Penney’s first opinion—that
Torres could have been killed because he had “some
information” on defendant. Defendant asserts, and the Attorney
General does not dispute, that the reference to “some
information” likely related to the prosecution’s theory that
defendant believed Torres knew about the killing of Mark
                                 35
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


Jaimes and shot Torres to prevent him from disclosing what he
knew about the connection between defendant and Jaimes. But
the trial court had excluded evidence of the uncharged Jaimes
killing from the guilt phase of trial. The Attorney General
therefore concedes that Penney’s reference to this possible
motive was admitted in error.
      We accept the Attorney General’s concession but agree
with the Attorney General that the error was harmless.
Penney’s reference to “some information” was ambiguous.
Before the reference, the prosecutor had said: “There is some
information that Alfred Flores is angry with Ricardo Torres
about that particular issue, that he didn’t show up to jump into
the gang.” Given that the prosecutor used the same phrase
(“some information”) to describe Torres’s failure to jump into the
gang, and given that neither the prosecutor nor Penney specified
the nature of the “some information” Torres might have had on
the person who shot him, it is unclear what significance the jury
could have attributed to the reference. The colloquy contained
no hint of any theory that defendant believed Torres knew
information about a prior homicide. After the prosecutor asked
if it was possible Torres was killed because he had “some
information” on defendant, Penney responded with a simple
“[y]es,” and the prosecutor immediately pivoted back to the
notion of disrespect and Torres’s failure to jump into the gang.
       Turning to the remainder of Penney’s testimony,
defendant contends Penney’s opinions were inadmissible
because there was no evidence that defendant personally asked
the boys to join the gang or that criminal street gangs ordinarily
kill people who refuse to join them.
     Based on our review of the record, we conclude Penney’s

                                 36
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


testimony was sufficiently grounded in the evidence to both
satisfy evidentiary standards and pass constitutional muster.
Defendant’s gang affiliation and philosophies were well
established before Penney’s testimony.          Officer Loveless
previously testified defendant admitted he was an active
member of El Monte Trece and spoke about killing for a
“righteous cause” as part of his philosophy of “street justice.”
Loveless specifically recalled defendant’s statement that killing
someone who demonstrated disrespect would be a “righteous
cause according to gang culture.”         The prosecution also
introduced evidence defendant was interested in expanding his
gang’s footprint by recruiting young men, specifically friends of
Mosqueda.5 Loveless recalled that during his interview of
defendant, defendant explained he viewed himself as
responsible for “school[ing]” Torres, Ayala, and Mosqueda in
“the right way.”
      The prosecution also introduced evidence to support the
hypothetical fact patterns it posed for each of the three killings.
With respect to the Torres homicide, the prosecution elicited
testimony from Mosqueda that Torres had backed out of his
“jump[ing] in” ceremony and thereby declined to join defendant’s
gang. Although Mosqueda’s testimony was inconsistent on this

5
      Much of the evidence regarding defendant’s intent to
expand the influence of El Monte Trece came from statements
made by Mosqueda, whose testimony conflicted from one
interview to the next. But there was additional supporting
evidence, and the prosecution was not barred from offering
hypothetical fact patterns based on some—but not all—of
Mosqueda’s conflicting statements. The ultimate resolution of
disputed facts underlying the prosecution’s hypothetical
questions was a task assigned to the jury, which was properly
instructed on its role.

                                 37
                         PEOPLE v. FLORES
                   Opinion of the Court by Kruger, J.


matter, he stated before the jury that defendant was
“disappointed” by Torres’s failure to appear. Mosqueda also
testified that immediately before Torres was shot, defendant
said, “Hey, don’t you trust me?”          When combined with
defendant’s own statements about disrespect, “street justice,”
and “righteous” killings, the testimony about Torres’s failure to
join the gang and defendant’s resulting disappointment, there is
sufficient support for the hypothetical fact pattern presented to
Detective Penney.
       Defendant argues Penney’s opinion on the hypothetical
tracking the Torres killing was not based on Penney’s
specialized knowledge of gang culture because he admitted he
had never before heard of someone being killed for failing to join
a gang. But an expert need not have personal experience with
the precise fact pattern to offer an informed opinion that is
“sufficiently beyond common experience” so as to “assist the
trier of fact.” (Evid. Code, § 801, subd. (a); see also id., subd. (b)
[expert opinion may be based on matter “made known to him at
or before the hearing,” even if not “perceived by or personally
known” to him].) Notably, Penney acknowledged the novelty of
the hypothetical situation before the jury. And the jury was
instructed it was not bound by the expert’s opinion, but rather
should give it the weight it deserved and decide independently
whether the facts assumed in the hypothetical questions had
been proved. (See Vang, supra, 52 Cal.4th at p. 1050 [noting
jury’s “critical role” in vetting expert’s opinion in response to
hypothetical questions]; id. at p. 1051 [noting that “the
defendant has the opportunity during argument to stress to the
jury that an expert’s testimony is one opinion concerning the
motivations of actors in a hypothetical scenario; the expert has
no personal knowledge concerning the particular defendant’s

                                  38
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


state of mind”]; see also Prince, supra, 40 Cal.4th at p. 1227;
Moore, supra, 51 Cal.4th at p. 406.) Because Penney’s opinion
drew on his expertise about the significance of gang
recruitment, jumping-in ceremonies, and disrespect, we
disagree with defendant’s assertion that Penney offered a
merely personal, rather than expert, view of the evidence.
      Applying our deferential abuse of discretion standard
(Prince, supra, 40 Cal.4th at p. 1222), we also find there was an
adequate evidentiary basis for the hypothetical fact patterns
relating to the Ayala and Van Kleef killings. With respect to
Ayala, the prosecution asked Penney if Torres’s killer would
have wanted to kill Ayala because Ayala was not in the gang,
was not loyal to the gang, and was close friends with Mosqueda.
The hypothetical was adequately grounded in the evidence
presented. Mosqueda testified that he and Ayala were close
friends, that Ayala and defendant were not close friends, and
that Mosqueda and Ayala had spent time together after Torres
and Van Kleef were killed. Ayala was not in the gang, and
Alvarez testified she had a conversation with defendant about
trying to get “the boys” to join the gang, where she told
defendant they were not gang types. The prosecution offered
enough evidence that Ayala resisted efforts by defendant to
recruit him into El Monte Trece to support its hypothetical
questions to Penney.
      With respect to Van Kleef, the prosecution presented a
hypothetical in which Van Kleef witnessed Torres’s murder, was
not a gang member, and was shot in the back of the head. This
hypothetical assumed facts fairly within the limits of the
evidence. Jessica Ramirez, who was dating Ayala, testified she
saw Van Kleef in Alvarez’s van on the night of Torres’s murder.
Mosqueda similarly testified that Van Kleef was in the van that
                                 39
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


night and that he and Van Kleef were outside the van when
defendant shot Torres. Etnies-pattern shoe prints—the kind of
shoes Van Kleef was wearing—were found at the Torres murder
scene. Multiple witnesses acknowledged that Van Kleef was not
in the gang. And the forensic pathologist who examined Van
Kleef’s body testified he was shot in the back of the head. It is
true that the record did not include evidence drawing a line
between Van Kleef as a potential witness to the crime and Flores
therefore wanting him killed—which is to say, there are no
statements by Flores expressing a desire to eliminate potential
witnesses. We acknowledge the evidence of motive was not
equally strong with respect to all three murders. But applying
the usual standard of review, we conclude the trial court did not
err by allowing the prosecution’s hypotheticals.
      The record not only provides adequate support for the
hypotheticals, it also illustrates the trial court’s care in
exercising its discretion to exclude questions lacking evidentiary
support. The court repeatedly struck Penney’s testimony when
it was not grounded in facts in evidence. (Cf. Prince, supra, 40
Cal.4th at p. 1222 [recognizing trial court’s exclusion of
improper expert testimony and careful attention to the issue].)
      Defendant further argues that even if the expert
testimony was relevant and supported by the evidence, the trial
court should have excluded it as unduly prejudicial. (See Evid.
Code, § 352.) Trial courts must “carefully scrutinize” gang-
related testimony before admitting it into evidence, because the
content of such testimony “may have a highly inflammatory
impact on the jury.” (People v. Williams, supra, 16 Cal.4th at
p. 193.) The risk of injecting undue prejudice is particularly
high in cases where the prosecution has not charged a gang
enhancement and the probative value of the gang evidence is
                                 40
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


minimal. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
      Here, the prosecution did not charge defendant with a
gang enhancement, and the expert’s testimony occasionally
touched on inflammatory subjects; for example, Penney noted
that the “ultimate” discipline for “rat[t]ing out another gang
member” is death. But any prejudice resulting from this
testimony was far outweighed by its probative value. Penney’s
testimony about gang culture—particularly the importance of
recruitment, the significance of disrespect, and the concept of
“good murders”—was highly relevant to defendant’s possible
motive for the charged crimes. Moreover, the trial court
properly exercised its discretion in limiting the scope of the
expert’s testimony to exclude any mention of specific crimes
committed by other members of El Monte Trece. The trial court
did not abuse its discretion in admitting the expert’s testimony.
     C. Alleged Prosecutorial Misconduct
       Defendant contends the prosecutor committed misconduct
by misstating the evidence during her opening statement and
eliciting inadmissible hearsay when questioning a witness, in
violation of his rights to confrontation, due process, and a
reliable guilt and penalty determination. (U.S. Const., 6th, 8th,
& 14th Amends.; Cal. Const., art. I, § 15.)
     Defendant asserts there were two instances of
prosecutorial misconduct at the guilt phase. First, he points to
the prosecutor’s remark during her opening statement that
defendant admitted taking the nine-millimeter handgun to
Mexico with him. Because this statement was not borne out by
the evidence at trial—witness testimony revealed that
defendant admitted to taking a .22-caliber rifle to Mexico but
not the nine-millimeter handgun—defendant claims the

                                 41
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


prosecutor improperly attested to an otherwise unsupported
material issue of fact. Second, defendant points to the
prosecutor’s questioning of Maria Jackson regarding the
interaction Jackson had with her nephew, from whom she
purchased the nine-millimeter handgun in Mexico. In response
to one of the prosecutor’s questions, Jackson relayed hearsay
that her nephew recognized a picture of defendant as “the man
that was here.” Defendant argues the prosecutor deliberately
solicited inadmissible hearsay to fill an evidentiary gap as to
how the gun arrived in Mexico. Both these incidents, defendant
claims, rendered the trial fundamentally unfair by introducing
damaging evidence without affording him his right to confront
the witnesses against him.
      The United States Constitution requires reversal when a
prosecutor makes improper remarks that “ ‘so infected the trial
with unfairness as to make the resulting conviction a denial of
due process.’ ” (Darden v. Wainwright, supra, 477 U.S. at
p. 181.) “ ‘Conduct by a prosecutor that does not reach that level
nevertheless [can] constitute[] misconduct under state law, but
only if it involves the use of deceptive or reprehensible methods
to persuade the court or jury.’ ” (People v. Armstrong (2019) 6
Cal.5th 735, 795.)
       “A defendant’s conviction will not be reversed for
prosecutorial misconduct . . . unless it is reasonably probable
that a result more favorable to the defendant would have been
reached without the misconduct.” (People v. Crew (2003) 31
Cal.4th 822, 839 (Crew).) To preserve a claim of misconduct for
appeal, a defendant must make a timely objection and ask the
court to admonish the jury, unless an objection would have been
futile and a request for admonition ineffective. (People v. Hill
(1998) 17 Cal.4th 800, 820 (Hill).)
                                 42
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


      Defendant has forfeited his challenge to the first of the
claimed instances of prosecutorial misconduct.                 He
acknowledges his failure to object to the prosecutor’s remark
during her opening statement and offers no persuasive reason
to excuse this forfeiture. The remark was made at the very
beginning of the trial, and there is no reason to suspect that
corrective action would have been futile. (Cf. People v. Friend
(2009) 47 Cal.4th 1, 29 (Friend) [failure to object excused “when
the ‘misconduct [is] pervasive, . . . and the courtroom
atmosphere was so poisonous that further objections would have
been futile’ ”]; Hill, supra, 17 Cal.4th at p. 822 [same].)
      Defendant did successfully object to the prosecutor’s
questioning of Jackson, but he did not object on misconduct
grounds or request a specific admonition to cure any harm.6
Again, defendant fails to persuade that such a request would
have been ineffective. (See People v. Frye (1998) 18 Cal.4th 894,
969.) He insists the harm of Jackson’s testimony could not have
been undone because without the hearsay statement, “there was
no credible evidence to establish that [defendant] brought the
gun to Mexico, or that he sold it to [Jackson’s nephew] or anyone
else.” But this argument places too much weight on Jackson’s
testimony, which communicated only that her nephew said



6
      Several days after Jackson’s testimony, defendant
requested Jackson’s answer be formally stricken from the
record. The court erroneously believed it had ordered the
comment stricken when it sustained defendant’s objection in
front of the jury, but the court nonetheless granted defendant’s
subsequent request to strike the testimony. Defendant never
requested a specific admonition to the jury.


                                 43
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


defendant “was here”—a fact supported by ample other
evidence.7
      In any event, regardless of whether defendant forfeited
either or both asserted errors, the prosecutor’s actions did not
amount to prejudicial misconduct. “ ‘[R]emarks made in an
opening statement cannot be charged as misconduct unless the
evidence referred to by the prosecutor “was ‘so patently
inadmissible as to charge the prosecutor with knowledge that it
could never be admitted.’ ” ’ ” (People v. Dykes (2009) 46 Cal.4th
731, 762 (Dykes).) During her opening statement, the prosecutor
said defendant “admits to having the 9 mm. He also admits to
taking down his rifle. That he had all of those. Went to Mexico
with him.” As explained below, the prosecutor’s implied
assertion—that defendant admitted to taking the nine-
millimeter handgun to Mexico—was not directly supported by
the evidence; the prosecutor’s misstatement, however, does not
amount to prosecutorial misconduct.
      Although the prosecution did not produce direct evidence
that defendant admitted taking the nine-millimeter handgun to
Mexico, it did produce evidence of ambiguous admissions made
by defendant with respect to the same gun. Most pointedly,

7
      This fact was supported by defendant’s own statements to
Detective Elvert that he had been in the same area of Mexico,
that defendant had “torched” the van, and that he had removed
the seats from the van beforehand. The jury easily could have
inferred defendant had been at the same residence as Jackson’s
nephew: Elvert testified the area where the van was burned
was “very close . . . [w]ithin a mile up the hill from the
[nephew’s] residence”; Acevedo testified he saw the van intact
during his first trip to Mexico in that same neighborhood; and
both detectives testified they recovered the van seats from the
very residence where they met Jackson’s nephew.

                                 44
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


Loveless testified about an interview he conducted with
defendant. During direct examination by the prosecutor,
Loveless recalled defendant “admitted that the 9mm belonged
to him” and defendant said, “Just because my fingerprints are
on that gun, doesn’t mean I killed anybody.” In response to a
clarifying question from the prosecutor, Loveless said “[t]hat
was the gist” of the “discussion about the 9mm that was
recovered in Mexico.” Defendant did not object to this exchange.
      On recross-examination, however, defense counsel asked
Loveless about a report he wrote documenting the interview.
After consulting the report and in response to questioning from
the defense, Loveless confirmed defendant “admitted to
transporting the .22-caliber rifle to Tijuana but not the 9mm
handgun.” Loveless testified defendant’s answers were at times
“vague” and “evasive” during the interview; for instance,
Loveless recalled defendant answering multiple questions with
responses such as “[m]aybe so, maybe not” and “those theories
[are] possibilities.”
      With the benefit of the complete record before us, we agree
with defendant that the prosecutor mischaracterized
defendant’s admission regarding the transportation of the nine-
millimeter handgun in her opening statement. But given the
ambiguous nature of defendant’s answers, which appeared to
confuse even the detective conducting the interview, we cannot
say the prosecutor’s characterization of what she expected the
evidence to show was wholly unsupported. (See Dykes, supra,
46 Cal.4th at p. 762.)
     In any event, any mischaracterization by the prosecutor
was not prejudicial. “ ‘[P]rosecutorial misconduct in an opening
statement is not grounds for reversal of the judgment on appeal

                                 45
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


unless the misconduct was prejudicial or the conduct of the
prosecutor so egregious as to deny the defendant a fair trial.’ ”
(People v. Wrest (1992) 3 Cal.4th 1088, 1109.) The court twice
instructed the jury that the attorneys’ statements did not
constitute evidence. (See People v. Martinez (2010) 47 Cal.4th
911, 957 [“We presume the jury followed the court’s
instruction”].) And defendant had a full opportunity “to
challenge and rebut all evidence offered against him.” (Wrest,
at pp. 1109–1110; accord, Dykes, supra, 46 Cal.4th at p. 762.) As
noted above, during recross-examination, defense counsel
elicited a clarification from Loveless that defendant “admitted
to transporting the .22-caliber rifle to Tijuana but not the 9mm
handgun.” Defense counsel reiterated this point in closing
argument, underscoring the lack of direct evidence as to how the
handgun arrived in Mexico. In light of the court’s cautionary
instructions and defendant’s challenge of the very evidence the
prosecutor misstated, we discern no prejudice or denial of
defendant’s right to a fair trial.
      The prosecutor’s questioning of Jackson similarly does not
constitute misconduct requiring reversal of the judgment.
Defendant maintains the prosecutor deliberately elicited a
hearsay statement made by Jackson’s nephew, who was not
available for cross-examination, thereby violating defendant’s
confrontation rights. (See People v. Molano (2019) 7 Cal.5th 620,
673–675 [prosecutor commits misconduct by deliberately
drawing out inadmissible testimony]; People v. Tulley (2012) 54
Cal.4th 952, 1035 [same].) Even if we were to assume that the
prosecutor deliberately elicited Jackson’s hearsay response, the
misconduct was not prejudicial. The trial court sustained
defense counsel’s objection to the prosecutor’s question and
Jackson’s response; it later struck the question and response

                                 46
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


from the record; and it twice instructed the jury not to consider
any evidence that was rejected. (People v. Martinez, supra, 47
Cal.4th at p. 957.) It is true that this was a general instruction,
not one that was directed specifically at Jackson’s testimony.
But if “defendant believed the jury should have been more
directly admonished on this point, it was incumbent on him to
request such an admonishment.” (Mills, supra, 48 Cal.4th at
p. 199.) As noted above, defendant did not do so.
      Moreover, as explained above (see ante, fn. 7), defendant
overstates the evidentiary value of the improper testimony. The
jury heard other evidence indicating defendant had been at
Jackson’s nephew’s residence, including defendant’s own
statements that he had been in that same area of Mexico and
had burned the van, which was seen near the residence. Given
this properly admitted evidence, and given the court’s
cautionary instructions, any prejudice from the prosecutor’s
question was minimal. (Cf. Friend, supra, 47 Cal.4th at p. 33
[prosecutor’s eliciting of inadmissible hearsay was harmless in
light of the defendant’s admissions to the same effect].) The
prosecutor did not, in short, commit prejudicial misconduct.
      D. Restrictions on Defendant’s Cross-Examination
         of Polygraph Examiner
      After his arrest, defendant agreed to take a polygraph
examination. Both the fact of the examination and the results
were excluded at trial (see Evid. Code, § 351.1, subd. (a)
[prohibiting admission of references to polygraph exams and
their results absent stipulation]), but defendant’s otherwise
admissible statements made during the examination were
admitted (see id., subd. (b)). Rather than introduce defendant’s
statements through audio or video recordings, which would have
required redactions to eliminate any indicia of the polygraph
                                 47
                         PEOPLE v. FLORES
                   Opinion of the Court by Kruger, J.


examination,   the   prosecution   introduced    defendant’s
statements through the testimony of the polygraph examiner,
Robert Heard.
       Defendant sought to exclude Heard’s testimony about one
particular exchange during the polygraph examination. Heard
had asked if defendant was present when each victim was shot
and had written down three options from which defendant could
select: (A) “I shot 1, 2 or all 3,” (B) “I was there (present) when
1, 2 or all 3 were shot,” or (C) “I told someone to shoot 1, 2 or all
3.” Defendant denied options A and C. Heard then asked
defendant about specific victims. Defendant denied being
present when Torres and Ayala were shot, but, according to
Heard, defendant said, “I was present” when asked about the
Van Kleef shooting. When Heard sought confirmation that
defendant was present only when Van Kleef was shot, defendant
refused to answer the question.
      Defendant argued to the trial court that his answer to
Heard’s question about the Van Kleef shooting was inaudible
and that the prosecution should not be allowed to introduce
Heard’s testimony about that particular answer. The trial court
listened to the audio recording approximately 30 times and
concluded defendant did, in fact, say, “I was present” in response
to Heard’s question.       The court, therefore, allowed the
prosecution to elicit Heard’s testimony on the matter. The court
also indicated that, depending on defendant’s cross-examination
of Heard, it might allow the prosecution to play the videotape of
the interview so the jury could listen firsthand to defendant’s
response and observe his mannerisms and gestures. Although
the court did not make a final determination about the
admissibility of the videotape, it made clear that the prosecution
could not introduce the video under any circumstances unless
                                  48
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


the video was redacted to eliminate any indication that
defendant was taking a polygraph examination.
      At trial, Heard testified for the prosecution about the three
options he presented to defendant and defendant’s alleged
admission to being present when Van Kleef was shot. Defense
counsel cross-examined Heard about his exchange with
defendant. The prosecution did not seek to introduce any part
of the video, and the court never revisited the question of the
video’s admissibility. Defendant now challenges the trial court’s
earlier determination about the conditional admissibility of the
videotape. He claims the trial court forced him to make a
“Hobson’s Choice” between his constitutional right to cross-
examine Heard and his constitutional right to exclude evidence
of the polygraph examination. We disagree.
      In People v. Westerfield (2019) 6 Cal.5th 632, we rejected a
similar claim. The prosecution in that case introduced a
redacted videotape of the defendant’s polygraph examination
and called the polygraph examiner to testify about the
defendant’s responses. (Id. at p. 700.) On cross-examination,
defense counsel asked the examiner about portions of the
interview the court had previously ruled inadmissible and
therefore had been redacted from the video. (Id. at p. 701.) The
court warned defense counsel that further questioning on such
subjects “would ‘open the door’ to the whole tape being admitted
into evidence.” (Ibid.) After multiple warnings, the court
offered to allow defense counsel to ask questions regarding
redacted portions of the video if coupled with a limiting
instruction to the jury that certain material had been redacted
from the videotape. (Id. at p. 702.) The defendant did not accept
the court’s offer. (Ibid.) On appeal, the defendant argued the
court’s conditional ruling left him with “no real choice but to
                                 49
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


forgo further questioning.” (Id. at p. 703.) We rejected the
defendant’s claim, noting, “[T]he trial court’s ruling did not give
the prosecution permission to introduce the entire tape
containing the inadmissible polygraph evidence . . . .” (Ibid.)
      Similarly here, defendant argues he was forced to sacrifice
his right to cross-examine Heard to prevent the introduction of
inadmissible polygraph evidence. But the trial court placed no
limitations on defendant’s cross-examination; the court simply
indicated that certain questioning about the nature of
defendant’s statements might lead it to consider admitting a
redacted portion of the videotape so the jury could evaluate the
issue for itself. In light of the court’s factual finding that
defendant’s answer to Heard’s question was in fact audible, the
court’s tentative determination was reasonable.
       Defendant also fails to persuade that introduction of the
video would have violated his right to a fair trial. He insists the
prosecution would not have been able to redact all indicia of the
polygraph examination. But the court expressly conditioned
any admission of the videotape on such removal, and defendant
merely speculates that the court would have been unwilling or
unable to uphold this condition. Indeed, defendant’s own
attorney had previously told the court that she “viewed the
videotape and . . . can’t tell really that that’s a polygraph room.”
Absent any support for the contention that he was forced to
sacrifice his right to confrontation to preserve his right to a fair
trial, defendant’s constitutional claims fail.




                                 50
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


      E. Admission of Testimony That Defendant Was
         “Taken to the Polygraph Unit” and Trial Court’s
         Curative Instruction
      During cross-examination, defense counsel asked Loveless
about the chronology of events at the end of his interview with
defendant. Loveless testified that after he concluded the
interview, defendant “was escorted over to the polygraph unit.”
The trial court immediately called for a recess to address
Loveless’s reference to “the polygraph unit.” (See Evid. Code,
§ 351.1, subd. (a) [prohibiting the admission into evidence of
“any reference to an offer to take, failure to take, or taking of a
polygraph examination”].) At sidebar with counsel, the court
expressed the opinion that Loveless did not intentionally exceed
the bounds of admissible testimony, but the court did consider
the reference “prejudicial” and noted, “[I]t doesn’t take much to
deduce that Mr. Heard is a polygraph examiner.” Defendant
moved to strike Heard’s testimony and for a mistrial; the court
denied both motions. The court decided to instruct the jury, at
defense counsel’s request, that defendant “was never offered nor
ever submitted himself to a polygraph examination” but was
“physically transported to that area [i.e., the polygraph unit]
only because that’s where Mr. Heard’s office is.”
      On appeal, defendant claims Loveless’s reference to “the
polygraph unit” was prejudicial and the court’s instruction
failed to cure the resultant harm. He maintains the jury must
have deduced Heard was a polygraph examiner because Heard,
who testified immediately before Loveless, stated he was retired
from the police force and agreed he now “assist[s] homicide
detectives with interviewing particular witnesses.” Defendant
also asserts Heard’s testimony reflected the kind of “yes or no”
questions the jury would have associated with a polygraph

                                 51
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


examination.     Taking this evidence together, defendant
contends the jury was likely to disbelieve the court’s admonition
and to discredit the defense as a result, thereby violating his
rights to due process and to reliable guilt and penalty
determinations. (U.S. Const., 8th & 14th Amends.)
      We review the trial court’s evidentiary ruling for abuse of
discretion. (Thompson, supra, 1 Cal.5th at p. 1120 [applying
abuse of discretion standard to “questions involving the
admission of polygraph-related evidence”]; People v. Jenkins
(2000) 22 Cal.4th 900, 986 [“ ‘[w]hether a particular incident is
incurably prejudicial is by its nature a speculative matter, and
the trial court is vested with considerable discretion in ruling on
mistrial motions’ ”].) Under this deferential standard, we
discern no error.
       As an initial matter, we note that the fleeting reference to
“the polygraph unit” did not clearly constitute a “reference to an
offer to take, failure to take, or taking of a polygraph
examination” (Evid. Code, § 351.1, subd. (a)). While the jury
could have inferred defendant took a polygraph examination
when he was escorted to “the polygraph unit,” that is not the
only plausible inference; the trial court offered the jury another
one—that Heard’s office was located nearby. And the court’s
unequivocal statement that defendant “was never offered nor
ever submitted himself to a polygraph examination” forcefully
pointed the jury toward the latter inference. “In the context of
erroneously offered polygraph evidence, we have held that a
trial court’s timely admonition, which the jury is presumed to
have followed, cures prejudice resulting from the admission of
such evidence.” (People v. Cox (2003) 30 Cal.4th 916, 953 (Cox).)
Assuming that the reference to “the polygraph unit” was


                                 52
                       PEOPLE v. FLORES
                 Opinion of the Court by Kruger, J.


inadmissible, we have no reason to conclude the admonition was
insufficient here.8
      Nor are we persuaded by defendant’s argument that the
admonition was ineffective given the other evidence from which
the jury may have deduced that Heard was a polygraph
examiner. Heard testified he had worked in a number of law
enforcement roles; he was then working as an investigator for
the San Bernardino County Sheriff’s Department and
previously worked as an employee of the Los Angeles County
Sheriff’s Department and the Pomona Police Department. The
fact that Heard said he now helped “homicide detectives with
interviewing particular witnesses” did not meaningfully
differentiate him from other law enforcement personnel, nor did
it necessarily signal he was a polygraph examiner.
      In sum, defendant fails to show that the trial court’s
immediate and forceful curative instruction—an instruction
defendant himself suggested—was insufficient. (See Thompson,
supra, 1 Cal.5th at p. 1122.) Defendant fails to establish a
violation of his rights under either state or federal law.


8
      Defendant compares his case to People v. Basuta (2001) 94
Cal.App.4th 370, 389–391, where the prosecutor violated a
preexisting court order not to mention a polygraph examination,
which, when combined with another serious error, prejudiced
the outcome of the trial. Defendant’s argument is undeveloped
and, in any event, fails for the same reasons that we rejected
similar arguments in Cox and Thompson. (See Cox, supra, 30
Cal.4th at pp. 953–954 [noting that Basuta involved multiple
evidentiary errors, including one more significant than the
reference to polygraph-related evidence]; Thompson, supra, 1
Cal.5th at p. 1122 [noting that Basuta involved cumulative
errors that “ ‘substantially affected the crucial issue in the
case—[the main witness’s] credibility’ ”].)

                                53
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


      F. Admission of Testimony That Victim Was Afraid
         of Defendant
      Defendant argues the trial court erred by admitting
certain testimony by Erick Tinoco, a friend of Torres, Van Kleef,
and Ayala. According to Tinoco, Torres said he was concerned
he might have been “in trouble” because he did not show up to
his jumping-in ceremony, where he was supposed to join the
gang. Torres also “said he didn’t know if he should go back to
Andrew’s aunt’s apartment because he was afraid that
[defendant] was going to get mad at him, so he didn’t know what
to do.” The court allowed this testimony to come in for the
limited purpose of showing Torres’s state of mind.
       Evidence Code section 1250, subdivision (a)(1) provides
that hearsay statements reflecting an existing state of mind of
the speaker are admissible for the limited purpose of proving the
declarant’s state of mind. But this state of mind exception
applies only if the declarant’s state of mind is relevant to a
disputed issue at trial. (People v. Noguera (1992) 4 Cal.4th 599,
621 (Noguera).) A trial court errs by admitting a murder
victim’s out-of-court statement of fear of the defendant when the
victim’s state of mind is not at issue. (Ibid.) “[A] victim’s prior
statements of fear are not admissible to prove the defendant’s
conduct or motive (state of mind). If the rule were otherwise,
such statements of prior fear or friction could be routinely
admitted to show that the defendant had a motive to injure or
kill.” (People v. Ruiz (1988) 44 Cal.3d 589, 609.) Here, Torres’s
state of mind was not at issue. It was error to admit his
statements on this basis. (See Noguera, at pp. 621–622.)
     We conclude, however, that the error in admitting the
statements was harmless. It is not reasonably probable the jury
would have reached a different result had it not heard evidence
                                 54
                       PEOPLE v. FLORES
                 Opinion of the Court by Kruger, J.


that Torres was afraid defendant “was going to get mad at him.”
(See People v. Watson (1956) 46 Cal.2d 818, 836.) Torres’s
statements were relatively inconsequential compared to the
other evidence adduced at trial. Multiple witnesses placed
defendant at the scene of Torres’s murder. Mosqueda testified
that he saw defendant shoot Torres many times. And Alvarez
testified that defendant was holding what appeared to be a
pistol when he returned to her van immediately after the
shooting. In addition, there was other, nonhearsay evidence to
support the prosecution’s theory of motive, including testimony
that Torres did not attend his jumping-in ceremony and expert
testimony that backing out of an agreement to join the gang
would be considered disrespectful. The jury could have inferred
defendant’s motive from that evidence without Torres’s hearsay
statements expressing fear of defendant. We therefore conclude
that any hearsay error in admitting Tinoco’s testimony was
harmless. (See Noguera, supra, 4 Cal.4th at pp. 622–623.)
     G. Sufficiency of the Evidence as to the First
        Degree Murders of Van Kleef and Ayala
       Defendant argues there was insufficient evidence that he
murdered Van Kleef and Ayala. We conclude there was
sufficient evidence as to both murders.
      The test for evaluating a sufficiency of evidence claim is
deferential: “whether, on the entire record, a rational trier of
fact could find the defendant guilty beyond a reasonable doubt.”
(People v. Jones (1990) 51 Cal.3d 294, 314.) We must “view the
evidence in the light most favorable to the People” and “presume
in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence.” (Ibid.) We must
also “accept logical inferences that the jury might have drawn


                                55
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


from the circumstantial evidence.” (People v. Maury (2003) 30
Cal.4th 342, 396.)
      We begin with the evidence supporting defendant’s
conviction for the first degree murder of Van Kleef. Multiple
witnesses testified that Van Kleef witnessed defendant murder
Torres. Van Kleef was then himself murdered later that night.
Defendant had no alibi and the jury could have logically
concluded from the evidence that he was with Van Kleef at the
time he was murdered. Alvarez testified she returned to her
apartment after Torres was murdered to find defendant and
Van Kleef there. Van Kleef then left the apartment, and
defendant followed within a few minutes, holding the keys to
Alvarez’s van. Alvarez testified she was at that point worried
about Van Kleef’s safety. Defendant was gone for about an hour.
When he returned to Alvarez’s apartment, he told her “he had
gotten into an argument or something and they broke the
window, somebody broke the window” of her van on the front
passenger’s side. Alvarez said she went to her van and saw that
half the passenger’s side windshield had been shattered.
Mosqueda testified he also saw the damage to the windshield.
He described it as a “bullet hole.”9 From these facts, the jury
could have inferred that defendant was with Van Kleef when he
was killed; that defendant had shot someone near the van; and
that the person defendant shot was Van Kleef. These inferences


9
      Defendant argues Mosqueda’s testimony should be
discredited because he changed his story over time. But “it is
the exclusive province of the trial judge or jury to determine the
credibility of a witness . . . .” (People v. Jones, supra, 51 Cal.3d
at p. 314.) The jury was made aware of the discrepancies in
Mosqueda’s various accounts, and nonetheless presumably
found his trial testimony to be credible.

                                 56
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


would have been particularly reasonable given defendant’s
apparent motive to eliminate Van Kleef because he witnessed
Torres’s murder and was not loyal to the gang.
      Significant physical evidence also linked the van, which
was in defendant’s possession at the relevant time, and
defendant himself to Van Kleef’s murder. Loveless, who
investigated the Van Kleef crime scene, testified that Van
Kleef’s body was covered in a thin blue blanket or sheet, and
Alvarez testified that she kept a blue sheet in her van. Loveless
also testified that he found a white Stafford Polo-type T-shirt
underneath Van Kleef’s body. The prosecution introduced into
evidence an open package of T-shirts of this type and brand that
belonged to defendant. The forensic pathologist who examined
Van Kleef testified he could have been shot by a nine-millimeter
handgun, and defendant was known to carry a nine-millimeter
handgun. Defendant himself also admitted he was “present” at
the Van Kleef murder. Based on all this evidence, viewed in the
light most favorable to the prosecution, a rational trier of fact
could have found defendant guilty of murdering Van Kleef
beyond a reasonable doubt.
       We now turn to the evidence concerning Ayala’s murder.
The trial evidence showed that defendant again borrowed
Alvarez’s van during the time period when Ayala was murdered.
On the night of the murder, Mosqueda drove Ayala home in
Alvarez’s van around 11:00 p.m. Mosqueda gave the keys to
Alvarez, then returned to his home. Defendant then borrowed
the van and left for approximately one hour. Ayala’s sister
testified about Ayala’s whereabouts on the night he was killed.
She was home that night around 10:30 p.m. or 11:00 p.m., and
Ayala was there with her. Ayala told her he was not going out
that night and was in the clothes he usually wore to bed. Ayala
                                 57
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


was killed around midnight and left on the side of the road, in
clothes inadequate for the weather. Detective Joe Palomino
testified he clocked the mileage between the place where Torres
was killed and the place where Ayala was killed the next day,
and it was only two-tenths of a mile. Based on this evidence, the
jury could logically infer that Flores killed Ayala during the time
period when he borrowed Alvarez’s van.
       Furthermore, a rational jury could have logically
concluded that the ballistics evidence—together with the other
evidence presented—showed defendant murdered Ayala. Two
bullets were recovered from the Ayala crime scene. Heward
testified that she test-fired the nine-millimeter handgun
recovered from Mexico and compared the test-fires to the two
bullets found at the Ayala crime scene. She was able to identify
one of the bullets as coming from the handgun but was not
positive about the other bullet. This was the same nine-
millimeter handgun that she identified was used in the Torres
murder. The handgun was linked to defendant in that he was
known to carry a nine-millimeter handgun; Mosqueda identified
the nine-millimeter handgun from Mexico as the one defendant
carried; and multiple witnesses testified that defendant
appeared to have shot Torres. The jury could have logically
inferred that defendant shot Torres and Ayala with the same
handgun.
      We agree with defendant that there was limited evidence
of defendant’s motive for killing Ayala. The jury heard
testimony that Ayala was friends with Van Kleef and Mosqueda,
both of whom had witnessed the Torres killing; indeed,
Mosqueda testified he saw Ayala every day. The jury also heard
evidence that defendant was a member of the El Monte Trece
gang and that, according to Detective Penney, in the gang
                                 58
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


culture, “disrespect” would be a reason to murder someone.
Ayala was not in the gang; Penney testified that declining to join
the gang, as Ayala did, would have been considered a form of
disrespect. Penney also testified that, because Ayala was shot
in the back of the head while on his knees, he appears to have
been assassinated, just like Van Kleef. Based on this evidence,
the jury may have inferred that defendant believed Van Kleef or
Mosqueda had told Ayala about the Torres murder and that
defendant killed Ayala for much the same reason he killed Van
Kleef—that is, to silence all potential witnesses to the Torres
murder not affiliated with the gang. Alternatively, the jury
could have believed defendant felt it was disrespectful for Ayala
to decline to join the gang and murdered him for that reason.
But in any event, motive is not an element of murder, so the
prosecution could prove its case without definitive evidence of a
motive. The relatively limited evidence of motive does not
undermine the sufficiency of the evidence that defendant
committed the crime.
      Defendant compares his case to People v. Blakeslee (1969)
2 Cal.App.3d 831. There, the Court of Appeal found insufficient
evidence where the defendant could be placed at the murder
scene but where there was little else to connect her to the
murder. (Id. at pp. 837–840 [highlighting, in particular, the
absence of a murder weapon or any evidence “linking the
defendant in some manner to a weapon” (id. at p. 840)].) The
comparison is inapt. Here, unlike in Blakeslee, the prosecution
presented evidence linking defendant to the type of weapon used
in the murders. There was also other physical evidence linking
defendant to the Van Kleef murder, including the T-shirt, the
blue sheet, and the bullet hole in the van window. Finally,
defendant does not dispute the sufficiency of the evidence that

                                 59
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


he murdered Torres. The close proximity in time and space of
the other two murders, and the fact that all three boys were in
the same friend group, also supported an inference that the
murders were related to one another. Based on these facts and
all the evidence in the record, we conclude there was sufficient
evidence showing defendant murdered Van Kleef and Ayala.
                  IV. PENALTY PHASE ISSUES
      A. Purported Miranda Violation Regarding
         Admission of Guilt for Jaimes Murder
         1. Background
       During the penalty phase of trial, the prosecution
introduced a taped interview during which defendant confessed
to killing Jaimes.10 Defendant admitted he killed Jaimes after
Jaimes allegedly disrespected defendant and his mother; Jaimes
had solicited defendant’s mother as a prostitute and then
refused to promptly leave the motel where defendant and his
mother were living. After a verbal altercation between the two
men, defendant killed Jaimes by shooting him multiple times in
the stomach, chest, and head. Defendant recalled wrapping
Jaimes’s body in plastic, placing it in the trunk of a car he stole,
and then taking the car for a joyride before parking it near the
motel. Jaimes’s body was later discovered by Milam, the owner
of the car, who recovered it from an impound lot.
     The Jaimes killing occurred in Los Angeles. Los Angeles
authorities did not locate defendant until Customs and Border
Patrol caught him attempting to cross the United States-Mexico



10
      As noted above, the court did not allow the prosecution to
introduce evidence of this uncharged homicide during the guilt
phase of trial, deeming it unduly prejudicial.

                                 60
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


border on September 6, 2001. The San Bernardino authorities,
who were actively investigating the three homicides in the
present case, transported defendant from the border to their
jurisdiction and informed the Los Angeles Police Department
defendant was in their custody. Defendant was booked that
evening. At approximately 10:55 p.m., Detective Chris Elvert of
the San Bernardino County Sheriff’s Department interviewed
defendant about the Torres, Van Kleef, and Ayala homicides.11
Elvert advised defendant of his Miranda rights at the start of
the interview, and defendant indicated that he understood his
rights and was willing to speak with the detective. Elvert
continued to question defendant for approximately one hour.
Defendant answered many of Elvert’s questions but refused to
answer others; throughout the interview, defendant denied
responsibility for the crimes.
      The following morning, Elvert walked defendant across
the street to a nearby facility where Lieutenant Kusch of the Los
Angeles Police Department was waiting. Elvert told Kusch
defendant had been advised of his Miranda rights the previous
night and had participated in a lengthy interview. Kusch
introduced himself to defendant and explained that he planned
to ask defendant about a different crime—the Jaimes killing.
He told defendant Los Angeles County did not have an arrest
warrant out for him at that time. Kusch also noted that
defendant may have already known quite a bit about their

11
      Elvert had driven defendant from the border to San
Bernardino and had spoken with defendant during the drive
without giving any Miranda advisements. The prosecution did
not introduce any evidence related to the drive, and defendant
does not rely on the lack of Miranda advisements during the
drive to support his arguments here.

                                 61
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


investigation through his mother or other family. Before Kusch
began any substantive questioning, he readvised defendant of
his Miranda rights, and defendant indicated that he understood
all of them. Kusch then said: “Basically what I’d like to do is
talk about the the [sic] case that we investigated that we got
called out on back on November 17th, 2000. Uh I’ll tell you how
we got called out on it in a minute but uh do you want to take a
few minutes to talk a little bit about that?” The transcript
records defendant’s response as “No,” although in the videotape
of the interview, the response sounds more like, “Nah.” Kusch
responded as follows:
       “Well essentially what I want to do is to take a minute and
kind of explain to you what uh what we got called out on and
what the investigation entailed and what not. Of course you
know whether you choose to answer the questions is completely
up to you um but obviously you know I just wanted to at least
give you the thumbnail sketch of what we investigated, what we
what we [sic] did and talk a little bit about that. Again, you
know you don’t have to answer any questions. We’re just sitting
here, if you don’t want to answer certain questions you don’t
have to answer them, if you want to answer other questions you
can answer those. So, you know . . . for example some of the
stuff I want to talk to you about is what’s your name and birth
date and stuff like that which are pretty simple questions. So.
Do you want to take a few minutes and talk to me about that
stuff?”
      Defendant answered: “Oh yeah, well whatever.” The
interview continued from there, and eventually defendant
described in detail how he killed Jaimes. Defendant told Kusch:
“I’m gonna tell you what happened. [¶] . . . [¶] Not because I
have to not because, I mean because I want to, ay. Cuz I feel
                                 62
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


what happened wasn’t right.” Defendant said he went to the
motel room where his mother lived to find Jaimes there,
seemingly taking drugs; defendant asked him to leave, but he
would not leave and was “disrespecting” and “coming at my
mom.” Defendant told Kusch: “I murdered him ey. I did it. All
right? And I enjoyed doing it ay. I’m gonna tell you why,
because it was defending my mother.” Defendant later said, “I
pulled out my gun and I blew his fucking head off ay.”
       Before trial, defendant filed a motion to suppress his
statements to Kusch, claiming he invoked his right to remain
silent by saying, “No” when asked whether he wanted “to talk a
little bit about that.” The trial court held an evidentiary hearing
and reviewed audio recordings and transcripts of the
aforementioned interviews. The court ruled that defendant’s
“[n]o,” in context, was not an unambiguous invocation of his
right to remain silent. In the court’s view, defendant’s answer
was ambiguous because Kusch’s question was ambiguous: when
Kusch asked defendant whether he wanted to talk “about that”
(italics added), it was unclear whether Kusch was referring to
the Jaimes case in general or to the specific matter of how the
Los Angeles Police Department “got called out on” it. In light of
this ambiguity, the court reasoned, Kusch properly clarified
defendant’s right to refuse to answer questions, and defendant
thereafter waived his Miranda rights by willingly engaging in
the interview.
      Defendant now challenges the trial court’s admissibility
ruling. He claims the statements he made to Kusch were
obtained in violation of Miranda and that their introduction
during the penalty phase of trial violated his rights to due
process, to a reliable penalty verdict, and to be free from cruel
and unusual punishment. (U.S. Const., 5th, 8th & 14th
                                 63
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


Amends.; Cal. Const., art. I, § 15.) We conclude the trial court
did not err in ruling defendant’s statements admissible.
         2. Analysis
      “Under California law, issues relating to the suppression
of statements made during a custodial interrogation must be
reviewed under federal constitutional standards.” (People v.
Nelson (2012) 53 Cal.4th 367, 374.) To protect suspects’ Fifth
and Sixth Amendment rights, in Miranda v. Arizona (1966) 384
U.S. 436, the high court held that before questioning,
individuals in custody must be advised of their right to remain
silent, that anything they say may be used as evidence against
them, and that they have the right to the presence of an
attorney, whether retained or appointed. (Id. at p. 444.) But a
suspect can waive these rights and agree to speak with law
enforcement. (Maryland v. Shatzer (2010) 559 U.S. 98, 104.)
The burden is on the prosecution to prove by a preponderance of
the evidence that the waiver was knowing, intelligent, and
voluntary, based on a totality of the circumstances. (Ibid.)
      The requirements for a valid waiver of rights differ from
the requirements for a valid invocation of rights. (Smith v.
Illinois (1984) 469 U.S. 91, 98 (Smith) [“Invocation and waiver
are entirely distinct inquiries, and the two must not be blurred
by merging them together”].) “A valid waiver need not be of
predetermined form, but instead must reflect that the suspect
in fact knowingly and voluntarily waived the rights delineated
in the Miranda decision.” (People v. Cruz (2008) 44 Cal.4th 636,
667 (Cruz).) “A suspect’s expressed willingness to answer
questions after acknowledging an understanding of his or her
Miranda rights has itself been held sufficient to constitute an
implied waiver of such rights.” (Ibid.) The critical question with
respect to waiver is whether it was knowing and voluntary,
                                 64
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


which is “directed at an evaluation of the defendant’s state of
mind.”     (People v. Williams (2010) 49 Cal.4th 405, 428
(Williams).)
      In contrast, a suspect’s invocation of Miranda rights must
be “unambiguous[]” from the perspective of a reasonable officer.
(Berghuis v. Thompkins (2010) 560 U.S. 370, 381 (Berghuis).) If
“a reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking the right,”
then the officer need not cease all questioning immediately.
(Davis v. United States (1994) 512 U.S. 452, 459 (Davis).)
Whether or not a reasonable officer would perceive a suspect’s
statement as ambiguous may depend on context. (People v.
Sauceda-Contreras (2012) 55 Cal.4th 203, 218 (Sauceda-
Contreras); Williams, supra, 49 Cal.4th at pp. 428–429; People
v. Sanchez (2019) 7 Cal.5th 14, 49–50.) “ ‘[W]hen a suspect
under interrogation makes an ambiguous statement that could
be construed as an invocation of his or her Miranda rights, “the
interrogators may clarify the suspect’s comprehension of, and
desire to invoke or waive, the Miranda rights.” ’ ” (Williams, at
p. 428.)
      “In reviewing constitutional claims of this nature, it is well
established that we accept the trial court’s resolution of disputed
facts and inferences, and its evaluations of credibility, if
supported by substantial evidence.             We independently
determine from the undisputed facts and the facts properly
found by the trial court whether the challenged statement was
illegally obtained.” (People v. Cunningham (2001) 25 Cal.4th
926, 992.)
             a. Invocation of the Right To Remain Silent
      Defendant advances a series of layered arguments
challenging the admission of his confession to the Jaimes

                                 65
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


murder. First, he contends he unambiguously invoked his right
to remain silent when he answered, “No” in response to Kusch’s
initial query whether defendant “wanted to talk a little bit about
that.” Defendant argues that, at that point, Kusch should have
immediately terminated the encounter. Instead, as noted above,
Kusch asked a follow-up question to clarify the nature of his
inquiry, repeatedly reminding defendant of his right not to
answer questions. In response to this follow-up, defendant
expressed willingness to answer Kusch’s questions. Defendant
argues there never should have been a follow-up question, so his
expressed agreement to continue the interview should be given
no effect. After closely reviewing the record, including a
videotape of the interview, we are not persuaded.12
      It is true, as defendant emphasizes, that a “no” response
to a simple question whether the suspect wishes to speak with
law enforcement generally constitutes an unambiguous
invocation. (See, e.g., People v. Case (2018) 5 Cal.5th 1, 21 [“In
this case, defendant was asked whether he would talk to the
detectives and answered no. This seems clear enough”]; Garcia
v. Long (9th Cir. 2015) 808 F.3d 771, 773 [similar].) But here,
considered in context, neither the question asked, nor the
answer given was this simple—and, as is true with most
questions of interpretation, context does matter. In certain


12
       To avoid any confusion, we emphasize that the question
before us is not whether Kusch was entitled to refuse to “take
‘no’ for an answer” and simply forge ahead with his substantive
questioning. (Conc. & dis. opn., post, at p. 9.) That is not the
situation we confront here, and we do not address it. The only
question is whether it was permissible for Kusch to ask his
follow-up clarifying question, to which defendant responded
with willingness to continue the interview.

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                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


situations, statements that might seem clear in isolation
“actually may be equivocal under an objective standard, in the
sense that in context it would not be clear to the reasonable
listener what the defendant intends. In those instances, the
protective purpose of the Miranda rule is not impaired if the
authorities are permitted to pose a limited number of followup
questions to render more apparent the true intent of the
defendant.” (Williams, supra, 49 Cal.4th at p. 429; see also, e.g.,
People v. McGreen (1980) 107 Cal.App.3d 504, 522 [head shake,
followed by verbalized “no,” unclear in context; permissible for
officer to clarify suspect’s meaning]; Medina v. Singletary (11th
Cir. 1995) 59 F.3d 1095, 1105 [defendant’s “no” unclear in
context; under circumstances, “[t]o prohibit a clarifying question
. . . would ‘transform the Miranda safeguards into wholly
irrational obstacles to legitimate police investigative
activity’ ”].)
       Several circumstances, taken together, lead us to conclude
that this is a case in which the officer acted reasonably in
clarifying defendant’s intent. First, the clarity of a suspect’s
answer may depend in part on the clarity of the officer’s
question. (Sauceda-Contreras, supra, 55 Cal.4th at p. 219; cf.
Smith, supra, 469 U.S. at p. 98 [“Where nothing about the
request . . . or the circumstances leading up to the request would
render it ambiguous, all questioning must cease” (italics
added)].) Here, as the trial court found, the nature of Kusch’s
initial question was unclear. Kusch said he would “tell
[defendant] how [the police] got called out on [the case] in a
minute” immediately before asking whether defendant
“want[ed] to take a few minutes to talk a little bit about that.”
(Italics added.) It was not entirely clear whether Kusch was
asking defendant whether he was willing to answer questions

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                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


about the Jaimes case or whether defendant wanted to talk
about how “we got called out on it,” or both. Because Kusch’s
question was imprecise, defendant’s answer could have meant
either, “No, I do not want to talk to you at all,” or “No, I do not
want to hear about how the police got called out.”13
      The factual backdrop to the conversation makes the
second interpretation particularly plausible.     Although a
suspect normally might not care much about how a law
enforcement agency began its investigation, in this case there
was cause to think defendant might react differently. That is
because defendant’s own mother played a central role in that
story by providing information that helped lead the police to


13
       The dissent disagrees with this assessment, concluding
that the “plain language and flow of Kusch’s prefatory
statements . . . leave no doubt” about the intended referent of
the “that.” (Conc. & dis. opn., post, at p. 6.) We do not disagree
that the dissent has the better reading of Kusch’s intended
meaning—indeed, Kusch would make this intent clear in his
follow-up question. But was this the only way defendant could
have understood Kusch’s imprecise initial question? We agree
with the trial court that it was not.
       The dissent also argues that the form of Kusch’s question
“invit[ed] Flores to speak,” not the other way around, because
Kusch asked if defendant “wanted to ‘talk a little bit about
that.’ ” (Conc. & dis. opn., post, at p. 6, italics added.) But in
ordinary speech, we understand that asking another person if
he or she is willing to talk about something often means the
speaker has something to say (consider, for example, the age-old
“We need to talk”). Here, Kusch’s question contained a promise
to talk to defendant about a subject of which defendant had no
personal knowledge—the path of the police investigation of the
Jaimes murder. It is not unreasonable to think defendant was
focused on that promise when he answered Kusch’s question.


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                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


defendant, as Kusch himself would explain to the jury during
the penalty phase of trial. Kusch had reason to believe
defendant was aware of that fact and indeed alluded to it shortly
before asking if defendant wanted to talk: “Um pretty clearly
you know we’ve done a pretty thorough investigation,” Kusch
said, “I don’t know if you had a chance to talk to any family or
your mom or anything between you know November and now
but uh I have a sense that you probably know a little bit about
uh our investigation et cetera.” As Kusch was aware, how the
police “got called out on” the case may have been a subject of
particular personal importance to defendant. Knowing that, a
reasonable officer might well wonder whether defendant’s
response to Kusch’s poorly framed question was aimed at
Kusch’s promise to talk more about the path of the police
investigation, as opposed to signaling unwillingness to answer
Kusch’s questions about the Jaimes murder.
       The videotape of the interview, which we have reviewed,
also provides context to our inquiry and reinforces our
conclusion about the lack of clarity in the initial exchange
between Kusch and defendant. The interview begins with
Kusch and defendant in the interrogation room, with defendant
sitting calmly and Kusch audibly fumbling with his papers.
Kusch then begins a lengthy, somewhat unfocused discussion of
the various things Kusch plans to disclose to defendant and
what he is generally interested in learning from defendant.
Kusch then begins to read defendant his Miranda rights.
Defendant smiles and nods in response. When Kusch ultimately
asks whether defendant wants to “take a few minutes to talk a
little bit about that” defendant says a casual sounding “no,” or,
perhaps, “nah”; as he says this, defendant is still smiling and
gives a short laugh. The dissonance between defendant’s

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                         PEOPLE v. FLORES
                   Opinion of the Court by Kruger, J.


seemingly bemused demeanor and his spoken response is
confusing; the combined effect is murky and unclear. A
reasonable officer, having just asked a badly framed question,
might legitimately wonder whether this response was rooted in
some misunderstanding of the officer’s intended meaning.
(Compare, e.g., Com. v. Mazariego (2016) 474 Mass. 42, 53 [47
N.E.3d 420, 430] [relying on the defendant’s laughter, as shown
on the videotape of his interview, to help explain that when he
said, “ ‘No, no, no,’ ” he was responding to a different proposition,
not to the question whether he wanted to continue talking].)
       Finally, we note that at the time of this exchange, Kusch
knew that defendant had, the previous day, already waived his
Miranda rights and voluntarily engaged in an extended
conversation with Detective Elvert about the homicides charged
in this case. At least until this point, nothing in defendant’s
interactions with Kusch suggested that defendant would be less
willing to answer questions about the Jaimes homicide.
Defendant was of course entitled to refuse to answer questions
about the Jaimes homicide, as Kusch properly informed
defendant, and defendant’s willingness to talk about the
homicides charged in this case creates no presumption that he
would also be willing to talk about a different homicide. But
this, too, may add context to Kusch’s decision to ask a question
clarifying his initial, poorly framed inquiry into defendant’s
willingness to answer questions about the Jaimes murder.
      Based on all of these case-specific contextual
considerations, we agree with the trial court that Kusch was not
bound to cut off the encounter immediately; it was not
unreasonable for Kusch to ask a neutral follow-up question to
clarify defendant’s intent.


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                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


      This conclusion is consistent with our precedent in this
well-trodden area of the law. (See Sauceda-Contreras, supra, 55
Cal.4th 203; Williams, supra, 49 Cal.4th 405.)14 In Williams,
the defendant, then a suspect in custody, expressed a
willingness to waive his right to remain silent. (Id. at p. 426.)
The interrogating officers then inquired about defendant’s
willingness to waive the right to counsel, and the following
colloquy took place:
     “[Defendant]: ‘You talking about now?’
     “[First Officer]: ‘Do you want an attorney here while
     you talk to us?’
     “[Defendant]: ‘Yeah.’
     “[First Officer]: ‘Yes you do.’
     “[Defendant]: ‘Uh huh.’
     “[First Officer]: ‘Are you sure?’
     “[Defendant]: ‘Yes.’
     “[Second Officer]: ‘You don’t want to talk to us right
     now.’
     “[Defendant]: ‘Yeah, I’ll talk to you right now.’
     “[First Officer]: ‘Without an attorney.’
     “[Defendant]: ‘Yeah.’ ”



14
      Williams and Sauceda-Contreras involved purported
invocations of the right to counsel rather than the right to
remain silent, but we apply the same analysis to both inquiries.
(See Berghuis, supra, 560 U.S. at p. 381 [“there is no principled
reason to adopt different standards for determining when an
accused has invoked the Miranda right to remain silent and the
Miranda right to counsel”].)

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                  Opinion of the Court by Kruger, J.


(Ibid.) The officers went on to explain that if the defendant
wanted a lawyer, a public defender would be present in a couple
days, but the defendant insisted he did not want to wait and
preferred to talk with the officers immediately. (Ibid.)
       On appeal, the defendant argued the officers were
required to cease all questioning as soon as he said, “ ‘Yeah’ ” in
response to their question whether he wanted an attorney.
(Williams, supra, 49 Cal.4th at p. 426.) In response, we
explained that while the defendant’s “ ‘Yeah’ ” may have seemed
clear in isolation, the answer was ambiguous in context. (Id. at
pp. 429–431.) The defendant had previously waived his right to
remain silent and appeared confused about the timing of when
an attorney would be available; under those circumstances, the
officers were permitted to ask follow-up questions to clarify
what he truly intended. (Id. at p. 429.)
       In Sauceda-Contreras, supra, 55 Cal.4th 203, a detective
similarly advised the defendant of his Miranda rights with the
help of a translating officer, and the defendant said he
understood. (Id. at p. 206.) He was then asked: “ ‘Having in
mind these rights . . . , the detective would like to know if he can
speak with you right now.’ ” (Ibid.) The defendant responded:
“ ‘If you can bring me a lawyer, that way I[,] I with who . . . that
way I can tell you everything that I know and everything that I
need to tell you and someone to represent me.’ ” (Ibid.) The
translator said, “ ‘[P]erhaps you didn’t understand your rights,’ ”
and rephrased the question: “ ‘[W]hat the detective wants to
know right now is if you’re willing to speak to him right now
without a lawyer present?’ ” (Ibid.) The defendant responded
affirmatively. The detective, through the translator, reiterated
that “[t]he decision is yours” and repeated the question. (Ibid.)
After the defendant repeatedly expressed a desire to continue
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                        PEOPLE v. FLORES
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without an attorney, the detective conducted an interrogation
and ultimately obtained a confession. (Ibid.)
      We rejected the defendant’s argument that the officers
were required to cease all questioning after his initial response
referred to “ ‘bring[ing him] a lawyer.’ ” (Sauceda-Contreras,
supra, 55 Cal.4th at p. 206.) We explained that his answer was
“conditional, ambiguous, and equivocal,” in part because of the
question asked of him. (Id. at p. 219.) Because the question was
qualified with “ ‘right now,’ ” the defendant’s answer was
“impliedly asking whether [an attorney] could be provided right
now.” (Ibid.) We concluded that “[f]rom an objective standpoint,
a reasonable officer under the circumstances would not have
understood defendant’s response to be a clear and unequivocal
request for counsel.” (Ibid.) It was therefore appropriate for the
detective to “seek[] confirmation that [the defendant]
understood the decision to proceed with the interview . . . was
his alone, and that he in fact wished to do so.” (Id. at p. 220.)
      Much as in Williams and Sauceda-Contreras, we conclude
that defendant’s “[n]o,” in context, was susceptible of more than
one possible interpretation. Kusch therefore was not forbidden
from asking his follow-up question to clarify defendant’s intent.
We emphasize, as we did in these prior cases, that Kusch’s
question was both brief and neutrally phrased and delivered;
Kusch did not in any way badger defendant nor otherwise use
coercive tactics to induce a waiver of his right to remain silent.
(See Sauceda-Contreras, supra, 55 Cal.4th at p. 220 [“No
coercive tactics were employed in order to obtain defendant’s
waiver of his rights”]; Williams, supra, 49 Cal.4th at p. 429 [“it
does not appear that the officers were ‘badgering’ defendant into
waiving his rights”].) On the contrary, in clarifying whether
defendant was willing to answer questions, Kusch reminded
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                        PEOPLE v. FLORES
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defendant—no fewer than three times—that he was under no
obligation to do so.
      The dissent does not appear to take issue with the basic
lesson of these cases: That, in some instances, context may raise
questions about the meaning of a seemingly unequivocal
response. Nor does the dissent dispute that, “[i]n those
instances, the protective purpose of the Miranda rule is not
impaired if the authorities are permitted to pose a limited
number of followup questions” to clarify. (Williams, supra, 49
Cal.4th at p. 429.) The dissent argues, however, that Kusch’s
effort to clarify here was impermissible because defendant’s
response was meaningfully less ambiguous, in context, than
were the responses of the defendants in Sauceda-Contreras or
Williams.
      Our prior cases are not easily distinguished on the
grounds cited by the dissent. The dissent claims that Sauceda-
Contreras differs from this case because the defendant’s
invocation there was ambiguous “based on a number of facts, not
just the nature of the detective’s question.” (Conc. & dis. opn.,
post, at p. 10.) But surely the nature of the question matters in
evaluating the meaning of the answer. And in any event, we
have explained that, here, too, the available facts support the
conclusion that defendant’s “[n]o” answer in response to Kusch’s
poorly framed question may have rested on a misunderstanding
of Kusch’s intended meaning.
      The dissent would distinguish Williams on the ground
that the defendant there asked a question about timing (“ ‘You
talking about now?’ ”) before responding “ ‘Yeah’ ” to the
question “ ‘Do you want an attorney here while you talk to us?’ ”
(Williams, supra, 49 Cal.4th at p. 426.) Here, by contrast,

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                  Opinion of the Court by Kruger, J.


defendant did not ask Kusch questions when asked whether he
wanted to “talk a little bit about that.” (Conc. & dis. opn., post,
at p. 12.) But it is not clear why this distinction matters. In
Williams, the interrogating officer’s question was clear, while
here it was not. Nonetheless, despite the defendant’s seemingly
absolute response to the officer’s question in Williams, we
concluded there was “sufficient ambiguity” in the exchange
“that a reasonable officer would be uncertain of defendant’s
actual intent,” and that it was therefore reasonable to clarify.
(Williams, supra, 49 Cal.4th at p. 431; see id. at p. 430.) The
same is true here.
       The dissent relies heavily on Anderson v. Terhune (9th Cir.
2008) 516 F.3d 781, but that case differs markedly from this one.
There the court found it unambiguous when the defendant said,
“ ‘I plead the Fifth,’ ” and concluded the interrogating officer did
not ask a “legitimate clarifying question” when he responded,
“ ‘Plead the Fifth. What’s that?’ ” (Id. at pp. 784, 787–790.) But
unlike defendant’s simple “[n]o,” “ ‘I plead the Fifth’ ” is a
“pristine invocation of the Fifth Amendment” that does not vary
its meaning based on the question asked. (Id. at p. 784.) And
unlike the interrogating officer’s feigned ignorance of the Fifth
Amendment in Anderson, Kusch did ask a follow-up question
legitimately aimed at clarifying defendant’s intent.
      Finally, in arguing it was improper for Kusch to ask his
neutral follow-up question, defendant and the dissent rely on
the testimony of Sergeant Robert Dean, who monitored Kusch’s
interrogation in real time and testified about it during the
evidentiary hearing. When asked whether he “ever hear[d]
Mr. Flores ask for an attorney, ask to remain silent, or any
nonverbal behavior that would tell you he didn’t want to talk to
Lieutenant Kusch,” Dean said, “At one point. [¶] . . . [¶]
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                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


Lieutenant Kusch asked Mr. Flores if he wanted to talk about
that, meaning the Maywood murder, and Alfred replied, ‘No.’ ”
We do not find Dean’s characterization to be particularly telling.
Dean’s testimony certainly provides one plausible interpretation
of Kusch’s question (and, by extension, of defendant’s response).
But as explained above, it is not the only plausible
interpretation. Considering the exchange in its broader factual
context, it was objectively reasonable for Kusch to ask his brief,
neutrally worded follow-up question to ensure he understood
what defendant meant. (See Williams, supra, 49 Cal.4th at
p. 428 [the “question of ambiguity in an asserted invocation” is
an “objective inquiry”].)
       In sum, in light of the circumstances surrounding
defendant’s “[n]o” answer, we conclude a reasonable officer
certainly could have understood that defendant might be
invoking his right to remain silent but would not have
understood whether he was in fact invoking his right to remain
silent. (See Davis, supra, 512 U.S. at p. 459.) It was therefore
reasonable to clarify. This conclusion is a narrow one, based on
the particular circumstances surrounding the interrogation in
this case. Although we ultimately agree with the trial court that
defendant’s initial “[n]o” answer was unclear because Kusch’s
initial question was imprecise, our conclusion is based on other
contextual factors as well, including the background
information known to Kusch and defendant’s demeanor and
vocal inflection as recorded in the videotaped interview. We do
not hold that an officer may purposefully create ambiguity in a
suspect’s invocation of rights by asking an unclear question.
Officers should do just the opposite. They should ask clear
questions amenable to simple answers.            But given the
circumstances of the case, we conclude Kusch acted reasonably

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                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


in asking a neutral follow-up question to clarify whether
defendant wished to answer questions, while repeatedly
reminding defendant of his right to remain silent. (See
Williams, supra, 49 Cal.4th at p. 428.)15


15
      This conclusion also disposes of defendant’s alternative
argument that even if his response was ambiguous, Kusch was
obligated to stop and clarify whether defendant indeed intended
to invoke his right to remain silent. For this argument,
defendant relies on the Ninth Circuit’s opinion in U.S. v.
Rodriguez (9th Cir. 2008) 518 F.3d 1072, 1080, in which the
court held that “[p]rior to obtaining an unambiguous and
unequivocal waiver, a duty rests with the interrogating officer
to clarify any ambiguity before beginning general
interrogation.” The court distinguished Davis, supra, 512 U.S.
452, 461–462, where the high court held that officers are
permitted—but not required—to clarify ambiguous invocations
that arise partway through lawful interrogations.
      This court has previously acknowledged the Ninth
Circuit’s ruling in Rodriguez without expressly approving or
rejecting it. (Duff, supra, 58 Cal.4th at p. 553 [noting that
whereas “we have held that an officer is permitted to clarify the
suspect’s intentions and desire to waive his or her Miranda
rights,” the Ninth Circuit has held that “an officer not only may,
but must, clarify the suspect’s intentions”]; see id. at p. 554
[observing that “[w]e have occasionally implied the same rule as
the Ninth Circuit’s,” citing People v. Box (2000) 23 Cal.4th 1153,
1194].) We do the same in this case: Even if Kusch was under
a duty to stop and clarify defendant’s intent following his
ambiguous response to the Miranda warnings, Kusch did just
that.
      We likewise conclude that Kusch’s follow-up question was
adequate for this task. As we explained in Duff, an officer is “not
under a legal obligation to follow any particular script in
ascertaining [the defendant’s] desires.” (Duff, supra, 58 Cal.4th
at p. 554.) Kusch explained that what he was asking was
whether defendant was willing to answer questions and


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            b. Limited Waiver
      As noted above, when Kusch asked his follow-up question
to clarify whether defendant was willing to answer questions,
defendant this time responded affirmatively, if dispassionately:
“Oh yeah, well whatever.” Defendant argues that even if this
was a valid waiver of the right to remain silent, it was a limited
one: It extended only to background questions about his name
and age. He emphasizes that Kusch said, “[S]ome of the stuff I
want to talk to you about is what’s your name and birth date
and stuff like that.” It was immediately after this description
that Kusch asked: “Do you want to take a few minutes and talk
to me about that stuff?” Defendant argues, in effect, that the
scope of Kusch’s question delimited the scope of his own answer,
such that defendant’s waiver extended only to basic personal
information. We disagree.
       A suspect may invoke his right to remain silent selectively.
(People v. Suff (2014) 58 Cal.4th 1013, 1070.) For instance, in
People v. Johnson (1993) 6 Cal.4th 1, we held that the
defendant’s remark that he did not want to be tape-recorded
placed a “ ‘partial restriction’ on his willingness to speak to the
officers.” (Id. at p. 25.) Likewise, in People v. Clark (1992) 3
Cal.4th 41, we characterized the defendant’s waiver of the right
to counsel as selective based on his statement that he was “ ‘not
going to . . . talk any further about [a different crime] without
an attorney.’ ” (Id. at p. 122.) The defendant’s waiver there only


reiterated—multiple times—that defendant did not have to
answer questions. Only after reviewing defendant’s rights and
explaining the general nature of the interview did Kusch ask
defendant if he wanted to “take a few minutes and talk.” When
defendant clarified his intent, Kusch permissibly continued the
interrogation.

                                 78
                       PEOPLE v. FLORES
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encompassed a willingness to speak on the primary crime.
(Ibid.)
       Defendant’s statements here did not evince a comparable
intent to waive his right to remain silent selectively. Even
though his initial expression of willingness to speak with Kusch
was dispassionate and arguably directed only to background
questions “and stuff like that,” defendant continued to answer
more substantive questions without any prodding by the officer.
He points to nothing in the record that reflects his asserted
desire to stop talking about the Jaimes murder. In contrast,
there were multiple instances when defendant expressed an
unwillingness to discuss events unrelated to his role in the
Jaimes killing. Kusch asked defendant, for example, about a
bullet hole found in the window screen of the motel room;
defendant said, “Oh no, no, no, no. I won[’]t tell you how that
happened.” Kusch honored defendant’s right not to speak about
that. On another occasion, Kusch asked defendant whether
there was another person involved; defendant said, “I’ll never
tell you that man.” Kusch, again, did not pursue it. Defendant
clearly knew how to exercise his right to remain silent
selectively but chose to speak about the Jaimes murder. By
willingly answering substantive questions about the crime,
defendant impliedly waived his right to remain silent, without
any limitation to only background information. (See Cruz,
supra, 44 Cal.4th at p. 667 [suspect can waive Miranda rights
impliedly by willingly answering questions after acknowledging
an understanding of his rights].)
           c. Voluntariness of Confession
     Finally, defendant contends that, even if he wholly waived
his right to remain silent, his waiver was coerced and

                                79
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                  Opinion of the Court by Kruger, J.


involuntary. The trial court disagreed: It concluded that “based
on the totality of the circumstances and [the court’s] review of
the entire interview process, it appears the defendant
definitively, knowingly, intelligently, voluntarily waived his
Miranda rights and he [was] willing to speak to Lieutenant
Kusch based on the prior advisements, based on Lieutenant
Kusch’s going over the Miranda rights again, and based on the
defendant’s willingness to speak about this incident with
Lieutenant Kusch after those rights were given.” We agree with
the trial court.
      In determining whether the prosecution met its burden of
establishing by a preponderance of the evidence that
defendant’s confession was voluntary, we consider the totality of
the circumstances. (Williams, supra, 49 Cal.4th at p. 436.)
“[N]o single factor is dispositive. [Citation.] The question is
whether the statement is the product of an ‘ “essentially free and
unconstrained choice” ’ or whether the defendant’s ‘ “will has
been overborne and his capacity for self-determination critically
impaired” ’ by coercion.” (Ibid.)
       To the extent defendant’s argument is premised on
Kusch’s failure to honor defendant’s asserted invocation of his
Miranda rights, we have already rejected the basis of that claim.
Defendant’s remaining arguments that Kusch utilized coercive
interrogation tactics are belied by the record. At the start of the
interview, Kusch reiterated defendant’s right to refuse to
answer questions, stating, “[Y]ou know whether you choose to
answer the questions is completely up to you,” and “you know
you don’t have to answer any questions.” Following defendant’s
initial expression of a dispassionate willingness to speak,
defendant actively engaged in the interview. He appeared calm
throughout. His confession was vivid, thorough, and largely
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                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


without interruption; defendant even acted out part of his
altercation with Jaimes and explained how the incident
unfolded with reference to visual aids. (Cf. People v. Parker
(2017) 2 Cal.5th 1184, 1216 [concluding beyond a reasonable
doubt that the defendant voluntarily waived his Miranda rights
where he “actively participate[d] in the conversation with the
detectives—answering questions, asking for clarification, and
generally contributing to a discussion he knew was being tape-
recorded”].) Defendant’s clear understanding of his right to
remain silent is evidenced by his selective refusal to answer
certain questions throughout the interview. Notably, when
defendant chose not to answer questions, Kusch respected that
choice.
       Defendant also contends Kusch made a coercive “implied
promise” that defendant could escape a murder charge if he
waived his rights. We see no evidence of such coercion in the
record. Defendant prompted the mention of murder charges by
asking Kusch what charges would be brought against him.
Kusch responded candidly that murder was the likely charge,
but that there are certain “things that may mitigate” or
“justif[y]” a killing and that the ultimate decision would fall to a
jury. There was nothing improper or coercive about Kusch’s
response.
       Ultimately, defendant’s own statements provide the
strongest evidence that his admissions were made of his own
free will. Defendant prefaced his confession with the following
statement: “I’m gonna tell you what happened. [¶] . . . [¶] Not
because I have to not because, I mean because I want to, ay. Cuz
I feel what happened wasn’t right ay. You know what I mean?
And I feel that I shouldn’t even have to be like this because of
that. I feel that that’s that [sic] it wasn’t right. And I’m pretty
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                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


sure you would do the same thing if you were in my shoes.”
(Italics added.) Immediately before admitting to the murder,
defendant expressed a similar sentiment, saying, “[I]f you guys
want to charge me with murder or whatever, I know it’s for
something righteous and I don’t mind that.” And after
admitting to the murder, defendant said, “I enjoyed doing it ay.
I’m gonna tell you why, because it was defending my mother.”
He repeated this theme later saying, “[L]ike I told you I mean,
I’m telling you the story all right because it’s righteous and I’d
rather you guys convict me.” In light of these statements, we
see no reason to doubt that defendant’s confession was “the
product of an ‘ “essentially free and unconstrained choice.” ’ ”
(Williams, supra, 49 Cal.4th at p. 436.) We hold that, in view of
the totality of circumstances—with great weight given to
defendant’s own statements—the prosecution met its burden of
establishing that defendant’s confession was voluntary.
     B. Claim of Prosecutorial Misconduct
      Defendant claims the prosecutor committed misconduct at
the penalty phase by soliciting inadmissible hearsay in her
direct examination of Lieutenant Kusch. The prosecutor did err
by asking, “Now, did you at some point—well basically Lillian
Perez told you basically her son is the one who shot Mr. Jaimes,
correct?” Kusch answered, “In short, yes.” Defense counsel then
objected on hearsay grounds. The court sustained the objection
and granted defendant’s motion to strike.
      To have a conviction or sentence reversed for prosecutorial
misconduct, a defendant must show it is reasonably probable
that a result more favorable would have been reached without
the misconduct. (See Crew, supra, 31 Cal.4th at p. 839.)
Defendant fails to demonstrate any prejudice from the


                                 82
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


prosecution’s single question soliciting hearsay. The trial court
sustained defendant’s objection and struck the answer, thereby
eliminating any prejudice from the improper testimony. (People
v. Tully, supra, 54 Cal.4th at p. 1038.)          Moreover, the
prosecution properly introduced defendant’s detailed confession
to the Jaimes murder, which was corroborated by testimony by
a firearms expert, who opined that the same gun was used in
the Jaimes murder as in the shooting of defendant’s former
girlfriend, Mary Muro. Even without the prosecutor’s question
and Kusch’s response, it is highly unlikely the jury would have
reached a different result.
     C. Instructions on Mitigating and Aggravating
        Factors
      The trial court instructed the jury to take into account all
aggravating and mitigating factors listed in Penal Code section
190.3, factors (a) through (k), “if applicable” in determining the
appropriate penalty. As we have consistently held, the jury is
capable of deciding which factors are “ ‘applicable.’ ” (People v.
Ghent (1987) 43 Cal.3d 739, 777.) Defendant offers no
persuasive reason for us to overturn this settled law.
      Defendant further claims the trial court erred by failing to
instruct the jury sua sponte that the absence of a mitigating
factor is not itself aggravating. Although such an instruction
would have been a true statement of the law, we have long held
that a court has no duty to give this instruction unless the court
or a party suggests that the absence of mitigation is
aggravating. (People v. Livaditis (1992) 2 Cal.4th 759, 784–785.)
There was no such suggestion here.




                                 83
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


      D. Eighth Amendment Challenge to the Death
         Penalty for Those Age 21 and Under
      Defendant argues the death penalty may not be
constitutionally applied to persons who were 21 years of age or
younger at the time of their crimes, as defendant was in this
case. Specifically, he argues the death penalty for those 21 and
younger is “cruel and unusual” under the Eighth Amendment to
the United States Constitution, which has been incorporated
against the states through the Fourteenth Amendment.
      The United States Supreme Court has held that the
Eighth Amendment bars imposition of the death penalty on
individuals who were under 18 at the time of their offenses.
(Roper v. Simmons (2005) 543 U.S. 551, 574 (Roper).) Defendant
asks us to expand Roper to reach those ages 18 to 21, arguing
that research shows that young adults suffer from many of the
same cognitive and developmental deficiencies as adolescents.
We have previously rejected similar arguments, most recently
just two years ago in People v. Powell (2018) 6 Cal.5th 136, 191.
(Accord, People v. Gamache (2010) 48 Cal.4th 347, 405.) As we
noted in those cases, the high court in Roper recognized that the
“ ‘qualities that distinguish juveniles from adults do not
disappear when an individual turns 18,’ ” but nonetheless held
that the “ ‘age of 18 is the point where society draws the line for
many purposes between childhood and adulthood’ ” and is “ ‘the
age at which the line for death eligibility ought to rest.’ ”
(Powell, at pp. 191–192, quoting Roper, at p. 574.)
      Defendant makes no persuasive argument for
reconsidering this precedent here. He does point to various
developments from the past few years, including a 2018
resolution from the American Bar Association House of
Delegates urging the prohibition of the death penalty for those
                                 84
                       PEOPLE v. FLORES
                 Opinion of the Court by Kruger, J.


ages 21 and under (Res. No. 111 (Feb. 2018)); a nonprecedential
opinion from a trial court in Kentucky declaring the death
penalty unconstitutional for this same group (Commonwealth v.
Bredhold (Ky.Cir.Ct., Aug. 1, 2017, No. 14-CR-161) 2017 WL
8792559); and the California Legislature’s expansion of Penal
Code section 3051, subdivision (a)(1), which provides “youth
offender parole hearing[s]” to inmates who were 25 or younger
at the time of their commitment offense.             But these
developments do not establish the “national consensus”
necessary to justify a categorical bar on the death penalty for
individuals between the ages of 18 and 21 at the time of their
offenses. (Atkins v. Virginia (2002) 536 U.S. 304, 316.) Nor has
defendant presented much in the way of new scientific evidence
that might be relevant to the issue.
      Defendant further contends that, for those ages 18 to 21,
a death sentence is inherently unreliable. The United States
Supreme Court has recognized that “the features that
distinguish juveniles from adults also put them at a significant
disadvantage in criminal proceedings.” (Graham v. Florida
(2010) 560 U.S. 48, 78.) Juveniles may, for example, “mistrust
adults,” “have limited understandings of the criminal justice
system,” and have trouble “work[ing] effectively with their
lawyers to aid in their defense.” (Ibid.) But, again, the high
court has concluded that the federal Constitution draws the line
at age 18. (Id. at pp. 74–75.) There was no Eighth Amendment
violation here.
     E. Constitutionality of California’s Death Penalty
        Law
      Defendant claims his death sentence violates the United
States Constitution; we reject his contentions, as we have in
previous cases. “California’s death penalty statute is not
                                85
                         PEOPLE v. FLORES
                   Opinion of the Court by Kruger, J.


impermissibly broad and adequately narrows the class of death-
eligible defendants.” (People v. Brady (2010) 50 Cal.4th 547,
590.) Penal Code section 190.3, factor (a), which directs the jury
to consider the “circumstances of the crime” in determining the
penalty, is not unconstitutionally vague, nor does it violate the
Eighth Amendment. (Tuilaepa v. California (1994) 512 U.S.
967, 980.) The death penalty statute is not unconstitutional
because it does not require “findings beyond a reasonable doubt
that an aggravating circumstance (other than Pen. Code,
§ 190.3, factor (b) or factor (c) evidence) has been proved, that
the aggravating factors outweighed the mitigating factors, or
that death is the appropriate sentence.” (People v. Rangel (2016)
62 Cal.4th 1192, 1235.) The absence of written findings by the
jury does not render the California death penalty scheme
unconstitutional. (People v. McDowell (2012) 54 Cal.4th 395,
444.) Nor does the lack of intercase proportionality review.
(People v. Clark (1993) 5 Cal.4th 950, 1039; Pulley v. Harris
(1984) 465 U.S. 37, 44.) And the use of restrictive adjectives,
such as “ ‘extreme’ ” and “ ‘substantial’ ” in section 190.3’s list of
mitigating factors, “does not act unconstitutionally as a barrier
to the consideration of mitigation.” (People v. Hoyos (2007) 41
Cal.4th 872, 927.) The use of the prefatory “whether or not” in
certain mitigating factors does not invite the jury to convert
those mitigating factors into aggravating circumstances.
(People v. Morrison (2004) 34 Cal.4th 698, 730.) Capital
defendants are not similarly situated to noncapital defendants;
thus, providing certain procedural protections to noncapital
defendants but not to capital defendants is not unconstitutional.
(People v. Scott (2011) 52 Cal.4th 452, 497.) The death penalty
as applied in California does not violate international law.
(Ibid.)

                                  86
                        PEOPLE v. FLORES
                  Opinion of the Court by Kruger, J.


      The high court’s decision in Roper, supra, 543 U.S. 551 did
not preclude admission of evidence of defendant’s juvenile
criminal activity as an aggravating factor. (People v. Taylor
(2010) 48 Cal.4th 574, 653; Bramit, supra, 46 Cal.4th at
p. 1239.)
      The trial court did not err by admitting victim impact
testimony evidence from the murder victims’ family members.
(Payne v. Tennessee (1991) 501 U.S. 808, 825.) The prosecution
“ ‘has a legitimate interest in counteracting the mitigating
evidence which the defendant is entitled to put in, by reminding
the sentencer that just as the murderer should be considered as
an individual, so too the victim is an individual whose death
represents a unique loss to society and in particular to his
family.’ ” (Ibid; see also People v. Edwards, supra, 54 Cal.3d at
p. 835.)
      F. Cumulative Error
      Defendant argues that the claimed errors at trial
cumulatively rose to the level of reversible and prejudicial error.
Whether considered separately or together, the three or four
minor errors at defendant’s trial were harmless and did not
interfere with his due process right to a fair trial.
      G. Enhancements Imposed Under Penal Code
         Section 12022.53, Subdivision (d)
      In addition to convicting defendant of three counts of first
degree murder, the trial jury found true as to each count that
defendant personally and intentionally discharged a firearm in
violation of Penal Code section 12022.53, subdivision (d) (section
12022.53(d)). Section 12022.53(d) imposes a 25-years-to-life
sentencing enhancement for each count as to which it attaches.
Because defendant was sentenced to death, the court imposed

                                 87
                         PEOPLE v. FLORES
                   Opinion of the Court by Kruger, J.


but stayed the section 12022.53(d) enhancements. (See Pen.
Code, § 654.)         When defendant was sentenced, these
enhancements were mandatory. (§ 12022.53, former subd. (h).)
But the Legislature subsequently passed Senate Bill No. 620
(2019–2020 Reg. Sess.), which amended section 12022.53 to now
provide that “[t]he court may, in the interest of justice . . . strike
or dismiss an enhancement otherwise required to be imposed by
this section.”       (§ 12022.53, subd. (h).)       In his second
supplemental brief, defendant asks us to remand his case to the
trial court for it to exercise the discretion section 12022.53 now
provides. The Attorney General concedes that the revision of
section 12022.53 applies retroactively to defendant’s case but
argues a remand is unnecessary here. We agree with the
Attorney General.
      “ ‘Defendants are entitled to sentencing decisions made in
the exercise of the “informed discretion” of the sentencing court.
[Citations.] A court which is unaware of the scope of its
discretionary powers can no more exercise that “informed
discretion” than one whose sentence is or may have been based
on misinformation regarding a material aspect of a defendant’s
record.’ [Citation.] In such circumstances, we have held that
the appropriate remedy is to remand for resentencing unless the
record ‘clearly indicate[s]’ that the trial court would have
reached the same conclusion ‘even if it had been aware that it
had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th
1354, 1391.)
       The record in this case demonstrates with unusual clarity
that remand would be an idle act. (See People v. McDaniels
(2018) 22 Cal.App.5th 420, 425.) At sentencing, the trial court
said, “[Q]uite frankly, based on what I know about the defendant
and based on what I know the defendant did . . . I think
                                  88
                         PEOPLE v. FLORES
                   Opinion of the Court by Kruger, J.


Mr. Flores does fall into the category of the worst of the worst
offenders thereby deserving the ultimate sentence of death.” It
“believe[d] that in this situation the punishment does fit the
crimes based on the senseless murders of four separate
individuals, three being charged in the information in this case.”
Defendant, the court remarked, “show[ed] absolutely no
remorse”; “[i]t’s as if he has no soul.” In the court’s “opinion[,]
justice will be served” by a death sentence. Given that the trial
court explicitly said it thought it “just[]” for defendant to receive
a death sentence—the most severe sentence available under
California law—it is clear the trial court would not have
exercised its discretion to eliminate the firearm enhancements
“in the interest of justice,” had such discretion been available to
it at the time of sentencing (Pen Code., § 12022.53, subd. (h)).
Under these circumstances, a remand is not required.16
                         V. DISPOSITION
      We affirm the judgment, including the judgment of death.


                                                        KRUGER, J.


We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
GROBAN, J.



16
      We express no opinion here on the utility of remand for
application of Penal Code section 12022.53, subdivision (h)
where the record shows the trial court approved of a high
sentence short of the death penalty.

                                  89
                     PEOPLE v. FLORES

                            S116307



      Concurring and Dissenting Opinion by Justice Liu


      During the penalty phase of this case, the trial court
admitted a videotaped interrogation in which defendant Alfred
Flores confessed to the murder of Mark Jaimes. At the
beginning of the interrogation, Lieutenant Roderick Kusch
asked Flores if he wanted to talk about the Jaimes murder.
Flores responded, “No.” His response was an unequivocal
invocation of his right to silence, requiring the interrogation to
stop. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) But
Kusch continued the interrogation, and the evidence obtained
was quite damaging: Flores described in detail how he killed
Jaimes and said he “enjoyed doing it.” Because this evidence
was admitted in violation of Flores’s right to silence under
Miranda, the penalty judgment cannot stand.
      Today’s opinion declines to hold that “No” means no and
instead treats Flores’s simple one-word answer as a “question[]
of interpretation.” (Maj. opn., ante, at p. 66.) Invoking the
truism that “context does matter” (ibid.), the court undertakes
an exquisite parsing of the interrogation and conjures ambiguity
from an implausible reading of ordinary language and from
signals so faint as Flores’s fleeting smile on a grainy videotape.
This is an exercise at which lawyers (especially lawyers in robes)
may excel. But the Miranda warnings and the rights they
secure are for everyday people, and “[i]nterpretation is only
required where the defendant’s words, understood as ordinary
                        PEOPLE v. FLORES
                  Liu, J., concurring and dissenting


people would understand them, are ambiguous.” (Connecticut v.
Barrett (1987) 479 U.S. 523, 529 (Barrett).) The right to silence
is one of the fundamental ground rules for interactions between
citizens and the police. Today’s decision erodes that right and,
in its speculative reasoning, sets a dangerous precedent.
                                  I.
      For half a century, it has been settled law that “if a person
in custody is to be subjected to interrogation, he must first be
informed in clear and unequivocal terms that he has the right
to remain silent. . . .     [S]uch a warning is an absolute
prerequisite in overcoming the inherent pressures of the
interrogation atmosphere. . . . Further, the warning will show
the individual that his interrogators are prepared to recognize
his privilege should he choose to exercise it.” (Miranda, supra,
384 U.S. at pp. 467–468.) “Once warnings have been given, the
subsequent procedure is clear. If the individual indicates in any
manner, at any time prior to or during questioning, that he
wishes to remain silent, the interrogation must cease.” (Id. at
pp. 473–474.)
       In order to invoke the right to silence, the suspect must do
so unambiguously from the perspective of a reasonable officer.
(Berghuis v. Thompkins (2010) 560 U.S. 370, 381; see Davis v.
United States (1994) 512 U.S. 452, 459 (Davis).) A suspect need
not “ ‘speak with the discrimination of an Oxford don’ ” in order
to invoke Miranda rights, but the suspect must speak
“sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be” an
invocation. (Davis, at p. 459; see ibid. [“this is an objective
inquiry”].)




                                  2
                         PEOPLE v. FLORES
                   Liu, J., concurring and dissenting


        When a suspect has clearly expressed a desire not to talk,
“it is presumed that any subsequent waiver that has come at the
authorities’ behest, and not at the suspect’s own instigation, is
itself . . . not the purely voluntary choice of the suspect.”
(Arizona v. Roberson (1988) 486 U.S. 675, 681.) The reason is
that “subsequent requests for interrogation” in the face of a clear
invocation “pose a significantly greater risk of coercion. That
increased risk results not only from the police’s persistence in
trying to get the suspect to talk, but also from the continued
pressure that begins when the individual is taken into custody
as a suspect and sought to be interrogated — pressure likely to
‘increase as custody is prolonged.’ ” (Maryland v. Shatzer (2010)
559 U.S. 98, 105.) Any statements or evidence obtained in
disregard of a suspect’s invocation of the right to silence are
inadmissible. (Michigan v. Mosley (1975) 423 U.S. 96, 104.)
                                  II.
      Applying an objective inquiry, I see no ambiguity in
Flores’s invocation of his right to remain silent. Lieutenant
Kusch asked Flores if he wanted to speak about the Jaimes
murder, and Flores’s response, “No,” indicated that he did not
want to speak about it.
      Today’s opinion accurately recounts the portion of the
interrogation at issue. (Maj. opn., ante, at pp. 61–62.) From the
beginning, Kusch made clear to Flores that he planned to ask
him about a Los Angeles case that occurred on November 17,
2000 — i.e., the Jaimes homicide. Kusch began, “I’m Rod Kusch
uh one of the investigators on a case that happened out in
Maywood [in Los Angeles County] . . . . [T]he case I’d like to take
a minute and chat with you about uh is uh a case we’re
investigating happened back on November 17th back in uh


                                   3
                         PEOPLE v. FLORES
                   Liu, J., concurring and dissenting


2000. So pushing close to a year about nine months I guess right
about now or so.” He repeated his intention to ask about the
Jaimes homicide by saying, “I can tell you right now that we in
Los Angeles County do not have a warrant for your arrest on
any case that I’m investigating. So uh I didn’t or I wanted to
have an opportunity to chat with you first and uh try to clear up
some loose ends and try to get a clear picture of what happened.”
Kusch then read Flores his Miranda rights and confirmed that
Flores understood them. Next, Kusch asked Flores the critical
question: “Basically what I’d like to do is talk about the case that
we investigated that we got called out on back on November 17th,
2000. Uh I’ll tell you how we got called out on it in a minute but
uh do you want to take a few minutes to talk a little bit about
that?” (Italics added.) Flores answered, “No.” Today’s opinion
says the answer sounds more like “Nah” on the videotape (maj.
opn., ante, at p. 62), but no one disputes that “Nah” is
synonymous with the word “No,” which is what appears in the
transcript.
      There is no ambiguity in this exchange. The word “that”
at the very end of Kusch’s question plainly refers to “the case”
that the Los Angeles Police Department (LAPD) “got called out
on back on November 17th, 2000,” which was the Jaimes
homicide. Flores’s answer, “No,” indicated he did not want to
talk about it. At that point, Kusch was required to stop all
questioning regarding the Jaimes murder. Instead, Kusch
rephrased his question and continued the interrogation until he
eventually elicited a confession from Flores. Today’s opinion
characterizes Kusch’s question immediately following Flores’s
“No” as merely a clarifying question. (Maj. opn., ante, at p. 66
& fn. 12.) But whether Kusch’s subsequent question was
intended to clarify Flores’s response or to ignore it is irrelevant


                                   4
                        PEOPLE v. FLORES
                  Liu, J., concurring and dissenting


for purposes of determining whether it was constitutionally
permissible. The high court has repeatedly held that “[w]here
nothing about the request for counsel or the circumstances
leading up to the request would render it ambiguous, all
questioning must cease.” (Smith v. Illinois (1984) 469 U.S. 91,
98; see Fare v. Michael C. (1979) 442 U.S. 707, 719 [“[A]n
accused’s request for an attorney is per se an invocation of his
Fifth Amendment rights, requiring that all interrogation
cease.”]; Miranda, supra, 384 U.S. at pp. 473–474 [“If the
individual indicates in any manner, at any time prior to or
during questioning, that he wishes to remain silent, the
interrogation must cease.”].)
      While acknowledging that the word “no” in response to
whether a suspect wishes to speak with the police will “generally
constitute[] an unambiguous invocation,” the court says that
“here, considered in context, neither the question asked, nor the
answer given was this simple . . . .” (Maj. opn., ante, at p. 66.)
Of course, context matters. But none of the contextual
circumstances discussed in today’s opinion comes close to
suggesting that Flores’s “No” could have meant something other
than that he did not want to talk about the Jaimes murder.
       First, today’s opinion posits that when Kusch asked Flores
if he wanted to “talk a little bit about that,” Kusch could have
been asking Flores “whether he was willing to answer questions
about the Jaimes case or whether defendant wanted to talk
about how ‘we got called out on it.’ ” (Maj. opn., ante, at pp. 67–
68.) Because the question was ambiguous, the court says, a
reasonable officer could have interpreted Flores’s response to
mean either, “ ‘No, I do not want to talk to you at all,’ or ‘No, I
do not want to hear about how the police got called out.’ ” (Id.
at p. 68.) But this reading of the interview evinces “a disregard

                                  5
                        PEOPLE v. FLORES
                  Liu, J., concurring and dissenting


of the ordinary meaning of [Kusch’s and Flores’s] statement[s].”
(Barrett, supra, 479 U.S. at p. 530.) The plain language and flow
of Kusch’s prefatory statements, in the transcript and on
videotape, leave no doubt that he was asking Flores to talk
about the Jaimes murder when he asked if Flores wanted to
“talk a little bit about that.”
       Recall that Kusch immediately prefaced his question by
saying he would “tell [Flores] how we got called out on [the case]
in a minute,” thereby indicating that Kusch was tabling that
topic for later. So, when Kusch asked in the next clause, “do you
want to take a few minutes to talk a bit about that,” he was
plainly asking Flores if he wanted to talk about the case itself.
Kusch’s question was not an offer to share information with
Flores; it was an invitation for Flores to speak. The court
compares Kusch’s phrasing to “the age-old ‘We need to talk’ ”
(maj. opn., ante, at p. 68, fn. 13), but this was a police
interrogation, not a heart-to-heart. A reasonable officer would
not interpret Flores’s response to mean, “ ‘No, I do not want to
hear about how the police got called out.’ ” (Id. at p. 68, italics
added.)
      Equally important, consider the context of the question:
Having opened the interrogation by saying he wanted “to get a
clear picture of what happened” in a case that occurred on
November 17, 2000, why would Kusch then ask Flores whether
he wanted to hear about how the LAPD “got called out” on the
case? Kusch already knew how the LAPD got called out; his
stated objective was to get Flores to talk about “what happened”
in the homicide. No reasonable officer could have understood
the exchange as anything but an effort to ask Flores to discuss
the case itself, not how the LAPD got called out. Indeed, a
firsthand witness to the interrogation — a police officer no less

                                  6
                        PEOPLE v. FLORES
                  Liu, J., concurring and dissenting


— confirmed this understanding: Sergeant Robert Dean, who
monitored the interview in real time, testified that “[a]t one
point . . . . Lieutenant Kusch asked Mr. Flores if he wanted to
talk about that, meaning the Maywood murder, and Alfred
replied, ‘No.’ ” (Italics added.)
      Today’s opinion speculates that because Flores’s mother
“played a central role” in the LAPD’s investigation of the crime,
how the LAPD “got called out on” the murder “may have been a
subject of particular personal importance to defendant.” (Maj.
opn., ante, at p. 69.) To be clear, Flores’s mother did not play a
central role in how the LAPD “got called out on” the case. Kusch
and the LAPD were alerted to the Jaimes homicide by Rick
Milam, who had discovered Jaimes’s body in the trunk of his car.
Only after Kusch had begun investigating the case, identified
the body, and interviewed Jaimes’s family members did Kusch
learn that Milam and Jaimes had been clients of Flores’s mother
and that Milam’s car had disappeared while Milam was with
Flores’s mother in a motel room.
      But even assuming that the topic of how the LAPD “got
called out” would have involved a reference to Flores’s mother,
the court’s reliance on this point is unpersuasive for the simple
reason that Flores’s mother played a central role in the events
surrounding Jaimes’s murder itself. On the night Jaimes was
killed, he had solicited Flores’s mother as a prostitute and
refused to promptly leave the motel where Flores and his mother
were living when Flores confronted him. (Maj. opn., ante, at
p. 8.) Kusch knew these facts because he had interviewed
Flores’s mother before the interrogation, and she had recounted
the events of the Jaimes murder to him. So, any sensitivity
Flores might have had about his mother could not have led a
reasonable officer in Kusch’s position to infer that Flores’s “No”

                                  7
                        PEOPLE v. FLORES
                  Liu, J., concurring and dissenting


was a refusal to hear about how the LAPD got called out on the
case as opposed to a refusal to talk about the Jaimes murder.
To the contrary, given the tangential role of Flores’s mother in
how the LAPD got called out and her far more significant role in
the events leading to the Jaimes murder itself, any such
sensitivity would have bolstered the plain meaning of Flores’s
“No”: He did not want to talk about the Jaimes murder.
       Second, the court notes that Flores answered Kusch’s
question with “a casual-sounding ‘no,’ or, perhaps, ‘nah’; as he
says this, defendant is still smiling and gives a short laugh. The
dissonance between defendant’s bemused demeanor and his
spoken response is confusing; the combined effect is murky and
unclear.” (Maj. opn., ante, at pp. 69–70.) This is a remarkable
dissection of a fleeting snippet of grainy video footage recorded
almost 20 years ago on VHS cassette tape. Having watched the
tape, I see no lack of seriousness in Flores’s response to Kusch’s
question. But even accepting the court’s description of Flores’s
demeanor, these faint cues (which seem indicative of
nervousness more than anything else) are not remotely
sufficient to cast doubt on Flores’s spoken word, “No.” (See
Barrett, supra, 479 U.S. at p. 529 [“Interpretation is only
required where the defendant’s words, understood as ordinary
people would understand them, are ambiguous.”].) After today’s
decision, ordinary people must beware: If you say “no” when the
police ask if you want to talk, your answer better not be too
“casual-sounding,” and you better not “smil[e]” or “laugh” or
betray, in a judge’s estimation, a “bemused demeanor.” (Maj.
opn., ante, at pp. 69–70.)
     This aspect of the court’s opinion is especially misguided
because judges are not theater critics and suspects facing
custodial interrogation are not method actors. I would like to

                                  8
                        PEOPLE v. FLORES
                  Liu, J., concurring and dissenting


believe that today’s decision is “a narrow one, based on the
particular circumstances surrounding the interrogation in this
case.” (Maj. opn., ante, at p. 76.) But I fear it portends further
erosion of Miranda rights. Under its reasoning, interrogating
officers, whether unscrupulous or well intentioned, need not
take “no” for an answer if they can parse a suspect’s intonation,
facial expression, or body language for hints of uncertainty. In
cases without a videotape, courts will have little basis to reject
an officer’s sworn testimony that a suspect’s refusal to talk, as
indicated by the word “no,” was “confusing,” “murky,” or
“unclear” in light of the suspect’s demeanor and therefore
warranted further questioning to “clarify [the] defendant’s
intent.” (Maj. opn., ante, at p. 70.) We should not open the door
to such “interpretation” (id. at p. 66) when the suspect has used
clear language.
       Third, the court explains that because Kusch knew Flores
had willingly talked the previous day about the murders of
Ricardo Torres, Jason Van Kleef, and Alexander Ayala, a
reasonable officer in Kusch’s position would have had no reason
to think Flores would be unwilling to talk about the Jaimes
murder as well. But this gets the presumption backwards: The
law “presume[s] that a defendant did not waive his rights”
(North Carolina v. Butler (1979) 441 U.S. 369, 373), and “[a]
person may invoke his Miranda rights selectively” (People v.
Suff (2014) 58 Cal.4th 1013, 1070). The fact that Flores
previously agreed to talk about a different case to different
officers the day before does not raise a presumption that he was
willing to talk about the Jaimes murder. (See Anderson v.
Terhune (9th Cir. 2008) 516 F.3d 781, 788 (en banc) (Anderson)
[“[T]he fact that [the defendant] had answered the officers’
questions for over two hours does not somehow undermine or


                                  9
                        PEOPLE v. FLORES
                  Liu, J., concurring and dissenting


cast doubt on an unambiguous invocation.”].) And even if some
presumption could have been drawn by Flores’s willingness to
talk about a different case, it was certainly overcome when
Flores said, “No.”
     Finally, today’s opinion compares this case to People v.
Sauceda-Contreras (2012) 55 Cal.4th 203 (Sauceda-Contreras)
and People v. Williams (2010) 49 Cal.4th 405 (Williams), both of
which held that asserted Miranda invocations were ambiguous.
Both cases are distinguishable.
      In Sauceda-Contreras, a detective read the defendant his
Miranda rights and then asked through a translator: “ ‘Having
in mind these rights . . . , the detective would like to know if he
can speak with you right now?’ ” (Sauceda-Contreras, supra, 55
Cal.4th at p. 216.) Sauceda-Contreras responded: “ ‘If you can
bring me a lawyer, that way I[,] I with who . . . that way I can
tell you everything that I know and everything that I need to
tell you and someone to represent me.’ ” (Ibid.) We held that
Sauceda-Contreras’s invocation was “conditional, ambiguous,
and equivocal” based on a number of facts, not just the nature of
the detective’s question. (Id. at p. 219.) We said, “It was
conditional in that it began with an inquiry as to whether a
lawyer could be brought to defendant. By responding ‘[i]f you
can bring me a lawyer . . .’ (italics added), defendant was
expressly asking the officer whether a lawyer could be brought
to him, and impliedly asking whether one could be provided
right now, given that the officer had asked him if he would speak
with Detective Blazek ‘right now.’ It was equivocal in that
defendant went on to plainly state his intent and desire to waive
his right to remain silent and ‘tell you everything that I know
and everything that I need to tell you,’ but then ended his
response ambiguously with the words ‘and someone to represent

                                 10
                          PEOPLE v. FLORES
                    Liu, J., concurring and dissenting


me.’ From an objective standpoint, a reasonable officer under
the circumstances would not have understood defendant’s
response to be a clear and unequivocal request for counsel.”
(Ibid.) Flores’s one-word statement, “No,” is nothing like the
defendant’s winding statement in Sauceda-Contreras.
Moreover, Sauceda-Contreras did not rely on non-verbal cues to
find ambiguity as today’s opinion does.
      In Williams, after an interrogator read the defendant his
Miranda rights and confirmed his understanding of them, the
following exchange occurred:
     “[Interrogator]: ‘Do you wish to give up your right to
                      remain silent?’
     “[Williams]:       ‘Yeah.’
     “[Interrogator]: ‘Do you wish to give up the right to speak
                      to an attorney and have him present
                      during questioning?’
     “[Williams]:       ‘You talking about now?’
     “[Interrogator]: ‘Do you want an attorney here while you
                      talk to us?’
     “[Williams]:       ‘Yeah.’
     “[Interrogator]: ‘Yes you do.’
     “[Williams]:       ‘Uh huh.’
     “[Interrogator]: ‘Are you sure?’
     “[Williams]:       ‘Yes.’
     “[Interrogator]: ‘You don’t want to talk to us right now.’
     “[Williams]:       ‘Yeah, I’ll talk to you right now.’
     “[Interrogator]: ‘Without an attorney.’



                                   11
                          PEOPLE v. FLORES
                    Liu, J., concurring and dissenting


     “[Williams]:       ‘Yeah.’ ”
(Williams, supra, 49 Cal.4th at p. 426.)
      We concluded that Williams’s request for counsel was
ambiguous because “[h]e already had agreed to waive his right
to remain silent, and his question [‘You talking about now?’]
suggests to us that his willingness to waive the assistance of
counsel turned on whether he could secure the presence of
counsel immediately.” (Williams, supra, 49 Cal.4th at p. 426.)
Here, by contrast, Flores did not ask Kusch any questions
suggesting that his willingness to waive his right to silence was
conditional. His response to whether he wanted to talk about
the Jaimes case was simply “No.”
      In sum, there is nothing ambiguous or confusing in the
words spoken by Kusch and Flores “as ordinary people would
understand them.” (Barrett, supra, 479 U.S. at p. 529.) Kusch
asked Flores a yes-or-no question about whether he wanted to
speak about the Jaimes case. Flores said, “No.” I am unsure
how an ordinary person (or even an Oxford don) could have more
clearly expressed his desire to remain silent. As for “context,”
the Ninth Circuit put it well in an en banc opinion rejecting a
California decision purporting to find ambiguity on interpretive
grounds similar to those offered by the court today: “Using
‘context’ to transform an unambiguous invocation into open-
ended ambiguity defies both common sense and established
Supreme Court law. It is not that context is unimportant, but it
simply cannot be manufactured by straining to raise a question
regarding the intended scope of a facially unambiguous
invocation of the right to silence.” (Anderson, supra, 516 F.3d at
p. 787.) Because there was nothing in Flores’s response for
Kusch to clarify, Kusch’s continued questioning of Flores


                                    12
                         PEOPLE v. FLORES
                   Liu, J., concurring and dissenting


violated Miranda, and the trial court erred in admitting Flores’s
self-incriminating statements about the Jaimes homicide.
                                 III.
      The error was not harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18, 24.) During the
penalty phase, the prosecution introduced evidence that Flores
committed several crimes unrelated to the three murders,
including brandishing a gun while driving to a birthday party,
assaulting a correctional officer while a ward at a youth
correctional facility, participating in the nonfatal shooting of his
ex-girlfriend, stabbing his sister’s boyfriend, committing two
armed robberies with other El Monte Trece gang members,
possessing a “slashing type weapon” while in custody, and
murdering Jaimes. The prosecution also introduced victim
impact statements from members of the Torres, Van Kleef, and
Ayala families.
      In mitigation, Flores introduced evidence of the harsh
conditions for prisoners sentenced to life without parole, as well
as the low risk of escape in the prisons housing such inmates.
Retired police officer Steven Strong testified that individuals
from “broken homes” like Flores’s often joined gangs at a young
age and learned to resolve problems through violence. Strong
read transcripts of interviews with Flores’s mother, father, two
sisters, and the adoptive mother of his youngest brother. Based
on these interviews, Strong testified that Flores had an unstable
childhood and was “bounced around . . . from different family
members to social services.” At the age of two, Flores was
separated from his brother, who was adopted by another set of
parents. Both of Flores’s parents were imprisoned for drug
offenses, and at the age of 11 or 12, Flores became involved in


                                  13
                         PEOPLE v. FLORES
                   Liu, J., concurring and dissenting


gang life because the authority figures he lived with were in
gangs.
      In view of the evidence offered at trial, there is a
reasonable possibility that exclusion of the Jaimes confession
tape would have resulted in a different verdict. First, the hour-
long taped interrogation provided the only direct evidence that
Flores killed Jaimes. During the penalty phase, the jury heard
Flores confess, “I murdered him [Jaimes] ay. I did it. All right?
And I enjoyed doing it ay,” and “I pulled out my gun and I blew
his fucking head off ay.” Flores then described the events
leading up to the murder and his motivation for killing Jaimes.
“A confession is like no other evidence. Indeed, ‘the defendant’s
own confession is probably the most probative and damaging
evidence that can be admitted against him.’ ” (Arizona v.
Fulminante (1991) 499 U.S. 279, 296.) Although the prosecution
also introduced circumstantial evidence to corroborate Flores’s
statements on the tape, the tape itself provided the primary
evidence and motivation for the murder.
      Second, although the prosecution presented evidence that
Flores may have committed a number of prior offenses during
the penalty phase, the Jaimes murder was the most serious.
During closing argument, the prosecution recounted several of
Flores’s past offenses and then said, “But it didn’t end there, and
we know that. Because there had to be something even worse.
And even worse is the murder of Mark Jaimes.” The prosecution
went on to devote a significant amount of its closing argument
to discussing the murder.
     Finally, the Jaimes confession may have been particularly
weighty because it erased any lingering doubt the jury may have
had that Flores committed multiple murders. The evidence in


                                  14
                        PEOPLE v. FLORES
                  Liu, J., concurring and dissenting


support of Flores’s guilt for the murders of Van Kleef and Ayala
was rather thin. Two witnesses, Andrew Mosqueda and
Carmen Alvarez, provided much of the testimony implicating
Flores in the Van Kleef and Ayala murders during the guilt
phase and much of the testimony that Flores committed past
offenses during the penalty phase. During the penalty phase,
Flores impeached both witnesses based on contradictions
between their guilt and penalty phase statements. To the
extent that these contradictions sowed doubt in the jury about
its multiple-murder finding, the Jaimes confession made clear
that Flores committed multiple murders, which qualified him
for the death penalty. In sum, the erroneous admission of
Flores’s confession was not harmless beyond a reasonable doubt.
      I join the portions of today’s opinion affirming Flores’s
convictions, but for the reasons above, I would vacate the
judgment of death.


                                             LIU, J.

I Concur:

CUÉLLAR, J.




                                 15
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Flores
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S116307
Date Filed: May 4, 2020
__________________________________________________________________________________

Court: Superior
County: San Bernardino
Judge: Ingrid Adamson Uhler

__________________________________________________________________________________

Counsel:

Robert H. Derham, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala Harris and Xavier Becerra, Attorneys General, Ronald S. Matthias, Julie L. Garland and Dane R.
Gillette, Assistant Attorneys General, Holly D. Wilkens, Heather F. Crawford, Ronald A. Jakob and
Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Robert H. Derham
Attorney at Law
369-B Third St., #364
San Rafael, CA 94901
(415) 485-2945

Heather Clark
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9033
