        IN THE SUPREME COURT OF
               CALIFORNIA

                      THE PEOPLE,
                 Plaintiff and Respondent,
                             v.
                EDUARDO DAVID VARGAS,
                 Defendant and Appellant.

                          S101247

               Orange County Superior Court
                        99CF0831



                        July 13, 2020

Justice Cuéllar authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Kruger, and Groban concurred.
                     PEOPLE v. VARGAS
                            S101247


              Opinion of the Court by Cuéllar, J.


      Defendant Eduardo David Vargas was convicted of one
count of first degree murder (Pen. Code,1 § 187, subd. (a)), six
counts of robbery (§§ 211, 212.5, subd. (c)), one count of
attempted robbery (§§ 664, 211), two counts of active
participation in a criminal street gang (§ 186.22, subd. (a),
defined at the time of the offense as “street terrorism”), and one
count of possessing a firearm while on probation (former §
12021, subd. (d)). The jury also found true a robbery-murder
special-circumstance allegation. (§ 190.2, subd. (a)(17)(A).) The
People alleged as well, and the jury found true, allegations that
defendant personally discharged a firearm causing death during
the robbery murder (§ 12022.53, subd. (d)), and that the crimes
were committed with the intent to promote a criminal street
gang (§§ 186.22, subd. (b), 12022.53, subds. (b), (e)(1)). After a
penalty trial, the jury returned a verdict of death. The trial
court denied the automatic application to modify the verdict
(§ 190.4, subd. (e)) and, on October 4, 2001, sentenced defendant
to death. This appeal is automatic. (§ 1239, subd. (b).) We
affirm the judgment.




1
     All further unspecified statutory references are to the
Penal Code.
                       PEOPLE v. VARGAS
                 Opinion of the Court by Cuéllar, J.


I. FACTUAL BACKGROUND

     A. Guilt Phase

         1. Prosecution Case

            a. March 30, 1999

                i. Baek and Kim
      Realtor John Baek met with contractor Hong Kim on
March 30, 1999 to inspect an abandoned property in Santa Ana.
While Baek and Kim spoke, two men entered the property. One
of the men, whom Baek later identified as defendant, pointed a
gun at Baek and ordered him to give the men everything he had.
Baek gave the men his pager and wallet, which contained cash
and credit cards.2 Kim raised his hands in the air after seeing
the two men enter with a gun, and his cell phone and checkbook
were taken from him. After the two men left, Baek called the
police using the cell phone in his car.
      Perly Abdulnour, owner of WorldNet Pager, testified that
on the afternoon of March 30, 1999, three men came into his
store. One of them, Eloy Gonzalez, with whom Abdulnour was
familiar, wanted to pay his bill. The other two men wished to
purchase pagers. Abdulnour accepted a $27.00 credit card
payment on Gonzalez’s account for “air time.” The other two
men, Matthew Miller,3 and a man who identified himself on the

2
       Baek later learned two unauthorized purchases were
made using his credit cards, both at WorldNet Pager, in the
amounts of $27.00 and $329.99.
3
       Abdulnour testified that he did not know Miller’s name at
the time the pager was purchased, but he learned it while
testifying at a different trial three months before defendant’s
trial.


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pager application as “Carlos Juan Rodriguez,” each purchased a
pager. The pagers were collectively worth approximately
$240.00.
       Baek described the gunman to police as a black-haired
male with a “light complexion,” about five feet 10 inches tall,
weighing 150 pounds. Baek described the individual who was
not wielding the gun as a black-haired Caucasian male weighing
approximately 180 pounds, with a height of five feet nine inches.
On April 8, 1999, Baek was shown a photo lineup, and he
identified defendant as the gunman. Baek also identified two
photographs, including one of Matthew Miller, as possible
images of the nongunman involved in the robbery. Baek
attended a live lineup at the Orange County Jail, where he again
identified defendant as the gunman. On April 12, 1999,
Abdulnour identified the three men through a photo lineup as
defendant, Gonzalez, and Miller, and he identified defendant at
trial.

                 ii. Hill and Wilson
       Shortly before midnight on March 30, 1999, Leavon Hill
and his stepson Cornelius Wilson were working on Hill’s truck
in front of his home in Santa Ana. Three men walked up to Hill,
whose back was to the street, and Wilson — who was getting
jumper cables from the trunk. By the time Hill noticed the three
men, they were directly in front of his truck. As Hill commented
that it was a strange time of night to be out walking, “one of the
gentlemen pulled [a] gun on” Hill. Hill described the gun as “all
black.” The man holding the gun then “left [Hill] and he went
after [Hill’s] son,” and one of the two other men who had walked
up to Hill and Wilson told Hill, “ ‘if you move, I am going to shoot
you.’ ”


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      Hill had been slowly walking backwards toward his home
and, despite the warnings that he would be shot if he moved,
decided to run into his home anyway to call the police. After Hill
ran into his home, Wilson ran away down the street. At some
point during the altercation, the first man, who had been
holding the black gun, stole Hill’s wallet. One of the men, the
one who had told Hill he would be shot if he tried to move,
attempted to take the stereo from Hill’s truck but was unable to
complete the task before all three men left the area; the stereo
was found on the seat of the truck, although it had been installed
prior to Hill and Wilson’s altercation with the three men.
       Hill described the gunman as about five foot nine or ten,
and 165 or 170 pounds. Hill identified defendant as the gunman
at a photo lineup on April 13, 1999, and also identified the
gunman as defendant at trial. Hill described the man who
removed the stereo and told Hill he would be shot if he tried to
move as the tallest of the three men, standing at about six feet.
Hill was unable to identify anyone else at the photo lineup.
Wilson recognized images of both Miller and Gonzalez from the
April 13, 1999 photo lineup, but he failed to make a positive
identification of either. Fingerprints taken from the stereo in
Hill’s truck matched Gonzalez.

             b. April 1, 1999
     In the early evening hours of April 1, 1999, Laura
Espinoza and Amor Gonzalez4 used drugs together and went to
a shopping mall, after which they responded to Gonzalez’s page
and picked up Gonzalez, defendant, and Miller from defendant’s

4
       Amor Gonzalez and Eloy Gonzalez are unrelated. For ease
of reference, Amor Gonzalez will be referred to by her first name,
and Eloy Gonzalez by his last name.


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apartment.      Espinoza stopped to pick up an additional
passenger, but that person was not home. She then went to her
apartment complex in Tustin, across the street from the Santa
Ana Zoo, to pick up a sweater and some CDs. Espinoza parked
in the zoo parking lot, then went into her home at around 8:45
p.m. to retrieve the items for which she had stopped, and to page
a friend. Once Espinoza left the car, defendant and Miller also
got out of the car and walked across the street. When Espinoza
returned to the car, the three men — defendant, Miller, and
Gonzalez — were gone.
       At around 8:00 p.m., Matthew Stukkie and Jesse Muro
were walking down Main Street in Tustin, headed away from
Stukkie’s house, which was located approximately two blocks
from the Santa Ana Zoo. As Stukkie and Muro walked past the
zoo, they saw Espinoza’s car parked across the street in the zoo’s
parking lot. Muro noticed “a couple people” with shaved heads
near the car, and he pointed them out to Stukkie because he
“didn’t want [any] trouble.” Stukkie noted one of the men was
tall and slender, while another was stockier and wore a red,
Pendleton-style shirt. Immediately after noticing the men, “a
couple guys” approached Stukkie and Muro, held “guns to [their]
heads, . . . and told [them], ‘don’t look back; don’t look at our
face.’ ”
      The man who held a gun to Stukkie’s head repeatedly
asked Stukkie for money, and Stukkie told him he had none.
The gunman took Stukkie’s bracelet and pager. Stukkie
realized that there were three men behind him at some point,
although a gun was pointed at the back of his head and he was
unable to fully view the men. Stukkie then heard a gunshot and
a scream. Prior to hearing these sounds, Stukkie had only been
able to hear the man who held the gun to his head, and he had

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lost sight of Muro. Immediately after hearing the gunshot, the
gunman told Stukkie to lay on the ground, keep his head down,
and not look back or Stukkie would be shot. After lying on the
ground for a few minutes, Stukkie got up and went over to Muro.
Stukkie told Muro to get up and, when Muro did not respond,
Stukkie realized Muro had been shot.
      Police arrived a few minutes after Muro was shot. Stukkie
flagged down Tustin Police Officer Robert Wright, the first
responder to the scene, and directed him toward Muro, who was
lying face down on the sidewalk with a pool of blood coming from
his head. Muro was breathing when Officer Wright first arrived,
and he was transported to the hospital. He died there shortly
afterwards from the two gunshot wounds to his head.
      Shortly before 9:00 p.m. that same night, Simon Cruz
returned to his apartment complex on Main Street in Tustin,
across the street from the zoo. As Cruz entered the complex, a
man walked up behind Cruz, pointed a black gun at the back of
Cruz’s head, and told Cruz to give him “the money.” He told
Cruz to remove his watch, searched his pockets, and took his
wallet. A second man walked up to the gunman and told Cruz’s
assailant, in Spanish, that they needed to leave. The two men
began walking away and Cruz followed, asking that they take
the money from his wallet but leave the wallet itself because it
contained important paperwork. The gunman turned to Cruz,
warning him to “ ‘go back or I will shoot you.’ ”
      Cruz tried to report the theft to the apartment complex’s
manager, who told him to call the police. Before doing so, Cruz
decided to search the complex to see if his assailants had
discarded his wallet while fleeing. During his search, Cruz saw




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a body on the ground near the apartment complex’s exit, with
paramedics and police already on the scene.
      Cruz later described the gunman to the police as a
Spanish-speaking male between the age of 18 and 20, who was
approximately six feet tall, and thin, wearing a red Pendleton-
style shirt and bandana.
      On April 1, 1999, Alexei Sandoval, who lived with his wife
at the Park Place Apartments on Main Street, was watching
television when he heard two gunshots, about three seconds
apart, at around 8:40 or 8:50 p.m. Amor also heard two gunshots
in rapid succession, and she heard a scream.
      Shortly before the gunshots had sounded, Espinoza
returned to the car and was waiting with Amor for Gonzalez,
Miller, and defendant to return. After the gunshots sounded,
Gonzalez and Miller ran back across the street and got into the
car. Espinoza remembered Gonzalez and Miller acted in an
excited fashion. Amor testified that Gonzalez and Miller
“sounded like they were in a hurry and . . . serious.” Espinoza
heard Miller say something to the effect that he saw “his brains
come out of his head.”
      Although defendant had not returned to the car with
Gonzalez and Miller, Amor saw defendant standing near a motel
shortly after Espinoza drove out of the parking lot and down Elk
Lane. Defendant rushed over to the car and got in. Amor
recalled Miller and Gonzalez mutter, “ ‘fucking Peewee,’ ” and
Espinoza heard the two men yelling at defendant, saying they
“should kick his ass for this,” that he would “regret it for the rest




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of his life,” and “he was going to get taxed for” it.5 Espinoza
overheard defendant explain that one of the reasons he shot
Muro was that Muro was getting up.
      Espinoza drove to defendant’s apartment and dropped him
off. Espinoza, Gonzalez, Miller, and Amor then rented a room
at a Motel 6 in Stanton, and consumed drugs and alcohol
together.

            c. Investigation and Arrests
      Just after midnight on April 2, 1999, Orange County
Deputy Sheriff Christopher Cejka was patrolling the parking lot
of the Motel 6 in Stanton, where he had previously made
numerous stolen vehicle and narcotics-related arrests. Deputy
Cejka saw Espinoza, Amor, and Miller sitting inside a grey
Nissan Maxima and Gonzalez standing outside of it. Deputy
Cejka asked Gonzalez what the four were doing, and Gonzalez
responded that they were motel guests and were planning to get
something to eat. Deputy Cejka “noticed some . . . beer bottles
sitting around. [He] asked [Gonzalez] about that. [Gonzalez]
said that he and Miller had been drinking a beer in the room
earlier.” This prompted Deputy Cejka to call for backup,
conduct patdowns of Gonzalez and Miller, and search the car.6
     During the search, Deputy Cejka found the wallet that
had been stolen from Cruz under the front passenger seat. He

5
     Espinoza explained that “to get taxed” meant that
defendant was “going to get his ass kicked.”

6
     Although Espinoza asserted to Deputy Cejka in the Motel
6 parking lot that the Maxima belonged to her brother, and she
consented to the deputy’s search of the car, Amor testified that
she and Espinoza knew the car was stolen.


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also searched Miller, finding a key to a room at the Motel 6.
Deputy Cejka’s search of Gonzalez revealed $950 in cash.
Tustin Police Officer Jeff Blair searched Gonzalez, finding the
bracelet stolen from Matthew Stukkie in Gonzalez’s pants
pocket. A search of room 133 at the Motel 6 revealed defendant’s
driver’s license and Amor’s phone book. The phone book
appeared to have gang style writing on it. On the back of the
book was written the name “Scrappy,” coperpetrator Gonzalez’s
moniker, along with the date of Muro’s murder: April 1, 1999.
      Police interviewed Amor and Espinoza in the early
morning hours of April 2, 1999, and Espinoza told them about
picking up defendant, Miller, and Gonzalez the day before.
Ultimately, Espinoza brought the police to defendant’s home.7
Detective Donnie Kennedy testified that the Tustin Police
Department determined that defendant was on probation8 and
subject to a search condition. Later that morning, Detective
Kennedy and other law enforcement personnel went to
defendant’s home to conduct a search, found defendant lying on

7
       Amor and Espinoza were interviewed again about a year
later, on May 9, 2000 and April 4, 2000, respectively. Both had
been charged with murder and robbery, but became the primary
witnesses against defendant through plea bargains. Amor
ultimately pleaded guilty to two charges of robbery, and was
released from juvenile custody after truthfully testifying,
consistent with her agreement. Espinoza pleaded to a time-
served sentence for two counts of robbery in exchange for her
testimony.
8
       Defendant’s probation arose from an unrelated 1998 case
in which defendant pleaded guilty to two misdemeanors,
possession of a deadly weapon (§ 12020, subd. (a), reduced
according to the People’s § 17, subd. (b) motion) and possession
of 28.5 grams or less of marijuana (Health & Saf. Code, § 11357,
subd. (b)).


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a pullout couch in the living room, and recovered a gun from
under a chair cushion in the living room. A further term of
defendant’s probation prohibited him from possessing a firearm.
Also found in defendant’s home were depictions of gang-related
graffiti, specifically referencing Southside — the gang to which
Miller, Gonzalez, and defendant belonged, according to Officer
Blair’s testimony — along with defendant’s and coperpetrator’s
monikers. A search of Miller’s home revealed further evidence
of gang participation, including an image of a Southside roster
listing Gonzalez, Miller, and defendant’s monikers.
      Bullets and shell casings recovered from the scene of
Muro’s murder were matched to the .380-caliber Lorcin semi-
automatic, magazine-fed pistol with a missing safety, which was
found in defendant’s home. The autopsy report revealed that
Muro suffered two gunshots to his head, one potentially and the
other certainly lethal. Police also lifted a palm print from the
trunk of a Nissan Sentra parked near where Muro was shot,
which was later matched to defendant. The parties stipulated
that the wallet belonging to Muro was found in some bushes
near the Santa Ana Zoo along Elk Lane, near where defendant
returned to the car with Amor, Espinoza, Miller, and Gonzalez.


         2. Defense Case

            a. March 30, 1999
      Hugo Vargas, defendant’s older brother, testified that on
March 30, 1999, he attended his grandmother’s birthday party
at his mother’s apartment, where defendant also lived.
Defendant was present at the party when Hugo arrived about
6:00 p.m. Defendant, known to his family as “Eddie” and “Lalo,”


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but not “Peewee,” stayed for the entire party. When Hugo left
around 9:00 p.m., defendant was sitting on the couch watching
television.
      Defendant’s sister, Nylda Anaya, testified that she lived
in the apartment next to her mother’s. On March 30, 1999, she
attended her grandmother’s birthday party with her children,
staying from about 6:00 p.m. until about 9:00 p.m. Defendant
was at the party the entire time she was there and remained in
his mother’s apartment after Anaya left. Defendant’s mother,
Nilda Quintana, testified that she, her mother, and defendant
remained in the apartment after the gathering ended at around
9:00 p.m. on March 30. Quintana went to bed around 10:30 p.m.;
defendant was sitting on the living room couch watching
television.

            b. April 1, 1999 — April 2, 1999
      When Quintana returned home from work at 3:30 p.m. on
April 1, 1999, defendant was at their apartment with Miller and
Gonzalez. Quintana went to her bedroom and closed the door to
watch videos privately because she did not like Gonzalez. She
left her room to make herself dinner around 7:00 or 7:30 p.m.,
noting that defendant was still home but his friends had, by
then, left the apartment. Quintana returned to her room to
watch television, leaving her bedroom door open. Quintana
could not see defendant from her bedroom, but she was able to
hear him talking on the telephone. Around 8:30 p.m., she heard
the front door open and assumed it was defendant leaving.
About 15 minutes later, she heard the front door again, and
assumed it was defendant returning home. At 10:00 p.m., she
left her room to go to the kitchen and saw defendant standing



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on the patio smoking a cigarette. She joined him on the patio,
and they talked for 15 or 20 minutes.
      Around 4:30 a.m., Quintana woke up and saw a light on in
the living room. Defendant was cleaning his shoes, and he told
her he was getting ready for an appointment the next day at
Target. When she left the house to go to work at 7:00 a.m.,
defendant was sleeping.
     Guadalupe Tinoco, defendant’s neighbor, testified that she
saw defendant in the apartment complex on April 1, 1999
around 5:30 p.m. and again four hours later, when defendant
was on his patio talking on the telephone.
       Defendant’s girlfriend, Mireida Hermosa, met defendant
days before his arrest, on March 28, 1999. Hermosa testified
that the two were contemplating marriage at the time of his
trial. Defendant and Hermosa met at a Carl’s Jr. restaurant
where they exchanged phone numbers. She and defendant
spoke on the phone for hours every evening after that. On April
1, Hermosa had a series of phone calls with defendant beginning
around 7:00 p.m. The first conversation lasted for about an
hour; the second conversation occurred 20 to 30 minutes after
the first and also lasted for about one hour; and the third phone
call spanned several hours, with the couple concluding their
conversation at 3:30 a.m. Hermosa believed defendant was
drinking throughout the night because his speech became more
slurred during each conversation.
      Robert Phillips testified that on April 1, 1999, he was
living and working at the Park Place apartments. Around 5:30
to 6:00 p.m., he observed a group of three Hispanic men standing
by the front gate of the apartment complex, one of whom was
wearing a red plaid flannel shirt and a red bandana. He later


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identified defendant from a photographic lineup, but was unable
to definitively identify anyone else, although he noted one other
photograph was reminiscent of one of the men he saw that day.
      Nannie Marshall, the Park Place apartment complex
manager, testified that she also encountered a group of three
men in the early evening hours of April 1, including a man in a
red flannel shirt and bandana. As she tried to leave the
apartment complex’s parking lot around 6:00 p.m., the men
stood in the driveway blocking her exit, eventually moving to let
her pass. She was gone for approximately 30 minutes. When
she returned to the apartment complex, one of the residents,
Cruz, informed her he had just been robbed by a man who placed
a red bandana across his face and demanded his wallet. She
advised Cruz to call the police and, as she was doing so, heard
two gunshots “very close together.” Marshall, Cruz, and other
apartment residents ran to the front of the building; Marshall
saw someone lying on the ground, and she spoke to the police
shortly thereafter.
      Officer Charles Celano spoke with witness Santiago
Martinez, who was driving near the Park Place apartment
complex looking for a parking spot on April 1, when he saw four
men involved in a fight. Martinez identified two of the men as
Stukkie and Muro, although he acknowledged he was not paying
significant attention to the fight as he wished to leave the area
as quickly as possible out of fear for his family’s safety.
      Marlon Aguirre owned the Nissan Sentra from which
police recovered defendant’s palm print. The Sentra was
impounded on April 1, 1999; Aguirre had no recollection of
when, prior to that date, the car had been washed.




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      Detective Michael Lamoureux seized several items of
clothing from defendant’s home on April 2, 1999. Detective
Lamoureux showed the seized clothing, including black pants, a
white shirt, a blue jacket, and a black jacket, to Stukkie, who
was unable to identify any of the items as having been worn by
his assailant.
      Dr. Scott Fraser, a neurologist and expert in eyewitness
identification, testified about the reliability of eyewitness
identifications, enumerating several reasons why an eyewitness
identification might be incorrect.
      Michelle Stevens, a forensic scientist for the Orange
County Coroner’s Office, testified about defendant’s level of
intoxication around the time of the murder and his possible
impairment.
      David Carpenter, a private investigator hired by the
defense, testified about the distance between defendant’s home
and the site of the Baek and Kim robbery, as well as the site of
the WorldNet Pager store. Carpenter testified that the Baek
and Kim robbery site was less than a minute from defendant’s
home, and that it could have taken defendant about 12 minutes
to reach the WorldNet Pager store after returning home from
that robbery and remaining inside his home for about two
minutes.
      On October 27, 1999, Baek participated in a live lineup at
the Orange County jail, observed by defendant’s former defense
attorney Donald Rubright. Rubright testified that defendant
was in the third position in the lineup and Baek, who had been
instructed to be silent, “said audibly so that everyone in the
room could hear ‘maybe number 3.’ ” Baek was told not to
audibly comment and was given a form to indicate whether he


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could make an identification from the lineup. As the form was
being taken from Baek, Rubright heard him say, “ ‘maybe.’ ”
Rubright noted that Baek failed to positively identify any
suspect on the form he was given, but in the comment section of
the form Baek had written, “ ‘maybe number 3,’ and he put a
dash ‘younger’ and then a question mark.” Finally, as Baek was
walking out, Rubright heard him ask, “ ‘Did I pick the right guy,’
” to which no negative response was given.

         3. Rebuttal
      Sergeant Tarpley testified that he spoke with defendant’s
mother on April 2, 1999 and asked her about her son’s
whereabouts between 8:30 and 9:00 p.m. the night before. She
told him she did not know, because defendant had been “in and
out of the house throughout the evening.” She also told him that
defendant had been with Gonzalez and Miller on the night of
April 1, 1999.

     B. Penalty Phase

         1. Prosecution Case
       Jesse Muro’s family described the impact of his death on
them. Three of Muro’s cousins and his father testified about his
life and his connection to the family.
     Leticia Orosco, Muro’s cousin and godmother, testified she
was close to Muro and thought of him as a younger brother.
Muro had been very close to her children and he had “a special
bond with animals.” Orosco described the tragedy of losing
Muro two weeks before his 18th birthday, testifying that the
family held Muro’s birthday celebration despite his death.
Orosco testified that she learned of Muro’s death, had to tell her



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mother, and rushed to the hospital “too late.” The holidays —
particularly Easter and Muro’s birthday — are difficult for the
family, but Orosco said they “cope” by going “to his tombstone.
That is all we have left.”
       Gloria Cervantes testified that Muro was the “baby cousin
of the family” and they got along well, enjoying a humor-filled
relationship. Muro was “just fun loving, a big kid,” who loved
Cervantes’s two children, and had a fondness for baseball.
Cervantes thinks of Muro daily, particularly about the manner
of his death, and she most misses “his smile, his goofiness.”
      Arturo Jimenez, Muro’s cousin, also testified. Because
Jimenez did not have a younger brother and Muro lacked an
older brother, the two “formed this big brother, little brother
relationship, and that is how [they] referred to each other.”
Jimenez, along with Muro’s father, coached Muro’s little league
team, Muro and Jimenez went on hikes and dirt bike rides in
the desert, and Muro assisted with Jimenez’s photography work.
Jimenez testified that finding out Muro had died “was almost
like [an] ethereal situation.” He explained that he and family
members learned of Muro’s death, drove to the hospital, met
with a bereavement counselor, and prayed. Jimenez testified
about the impact Muro’s death had on him, and his difficulty
coping with it. Finally, he described the “terrific kid” Muro had
been, echoing his cousin’s testimony that Muro was an animal
lover and good with children.
       Finally, Muro’s father, Jesse Muro, Sr., testified about the
impact his son’s death had on him, explaining what it was like
when police came to his door to tell him his son had been shot
and later, at the hospital, when he was told to “sit down” because
his “ ‘son didn’t [make] it.’ ” Muro, Sr., testified he “went a little


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bit crazy like anybody would” in that moment. He had to call
his relatives to tell them that his son was dead, and he had to
identify his son, which “was probably one of the hardest things
[he] ever had to do in [his] lifetime.” Muro, Sr., testified that
“they took [him] away from the family, and then they showed
[him] the picture of his [son’s] face, and it was full of blood. They
asked [him] if this was my son, and [he] told them yes, it is.”
Muro, Sr., described the many people that came to his house to
pray for his son, explaining that there is always at least one
candle burning for him. Muro, Sr., testified that he often goes
to the cemetery to lay flowers at his son’s gravesite, and prays
there before work almost daily. Muro, Sr., was deeply affected
by his son’s death, in part because, after his son’s death, he
continued to go every morning to the local 7-Eleven near where
his son was murdered, and he saw “there is still . . . paint where
they painted to cover the blood. And [he] can’t help [having to
pass the location] because [he] live[s] around there. Every[]time
[he] pass[es he] tell[s] him, ‘Rest in peace, my son. May the Lord
be with you in Heaven.’ ”

          2. Defense Case
        Quintana testified defendant was the youngest of her five
children. Defendant’s parents divorced when he was young and
Quintana moved with four of her children to the United States,
with her eldest son remaining in Mexico. Quintana moved in
with her mother, Bertha Barocios, with whom defendant was
still living at the time of his arrest.
      Defendant was a “pretty good” student in elementary and
junior high school. In high school, he began to get in trouble and
use marijuana; his grades became “flaky,” and he was
suspended. After changing high schools three times due to


                                   17
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


various moves, suspensions, and expulsions, defendant was
referred to continuation school, where he completed the units for
12th grade, but never received a high school diploma.
      In 1995, defendant’s family tried to convince him to visit
his father in Mexico; defendant refused to take the trip and ran
away from home for several days. Defendant again refused to
visit his father in 1997, a trip his mother thought would be
helpful to “straighten[ him] out,” which she thought was
necessary due to his poor attitude toward her and the inferences
she drew from his preference for wearing baggy clothing.
Despite her concerns, she testified that defendant consistently
treated children and his elders with respect.
       Cesar Vargas, one of defendant’s brothers, testified that
their father had been strict with all of the children, but was most
lenient with defendant.        Although Cesar’s contact with
defendant was limited after he moved out of Quintana’s home in
the early 1990’s, he recalls both from the time he lived with
defendant and from the time after he moved that defendant was
respectful and courteous toward others.
      Hugo Vargas, another of defendant’s brothers, testified
that he visited his mother weekly and saw defendant during
those visits. Although defendant “had a little change in his
attitude” between the ages of 13 and 15, and failed to listen to
his mother, Hugo “intervene[d] in a good, positive way” to
remind his brother “to kind of follow our values that we had with
our father like respect the house and everything.” His
intervention was successful; other than wearing baggy clothing,
Hugo noted no change of behavior later in defendant’s teen
years, around age 18 or 19. Hugo testified that defendant was




                                  18
                       PEOPLE v. VARGAS
                 Opinion of the Court by Cuéllar, J.


not disrespectful, and was particularly respectful toward his
elders and good with children.
      Nylda Anaya, defendant’s sister, testified that defendant
was a playful child who earned good grades in school. Anaya
recalled that defendant was babied and given special privileges
because he was the youngest child in the family. Anaya moved
out of their mother’s house in 1991; between 1991 and 1994 she
saw defendant regularly and his behavior was good. She moved
out of state for a year and when she moved next door to her
mother’s apartment upon her return to California in 1996, the
only changes she noted in her brother were his “shaved head”
and “baggy clothes, too big for him.” Between 1996 and 1999,
defendant spent much of his free time drinking and hanging out
with friends; he did not have a steady job. Since his arrest,
defendant had expressed sorrow and become more religious.
      Chris Miller, Matthew Miller’s father, testified that
defendant worked on two or three jobs as a “helper” on Chris’s
paint crew, and that between 1988 and 1997 defendant was a
courteous young man.9 In 1995, Chris noticed Miller and
defendant began wearing baggy clothing and cut their hair
short, which he thought could lead to “some trouble,” and he
warned them they could be “involved in . . . a drive-by or
something just because of the way they looked.” Just before
Christmas 1998, Chris noticed Miller and defendant both had a
“harder edge”; they were more serious and not as “happy-go-
lucky.”



9
     Because we refer to Matthew Miller by his last name,
Chris Miller will be referred to using his first name, to avoid
confusion.


                                 19
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


      Mark Kent, defendant’s youth pastor, testified he saw
defendant, at most, twice monthly between 1991 and 1993.
During that time, defendant was a respectful young man who
did not have issues with authority. The last time Kent saw
defendant was in 1995. Although Kent did not notice a change
in defendant’s demeanor, Kent observed a change in defendant’s
appearance: He had a shaved head and was wearing baggy
clothing.
      Dr. Ted Greenzang, a psychiatrist, testified for the defense
after reviewing defendant’s history and interviewing defendant
and his family. In Dr. Greenzang’s opinion, defendant was an
“at risk youth.” He based this opinion on numerous factors,
including defendant’s family’s low socioeconomic status. Dr.
Greenzang also found relevant the fact that defendant’s mother
had an intrauterine device implanted to prevent pregnancy
when she became pregnant with defendant, which he inferred
meant that defendant “was the product of an unplanned,
unwanted pregnancy.” Other factors included “separation of the
family, breakup of the home, [and] lack of male role models.” Dr.
Greenzang characterized defendant as an “underachiever” of
“low-average” intelligence. Finally, defendant’s self-esteem
issues, impulsivity, heavy drinking, daily use of marijuana, and
use of amphetamines and cocaine brought about, in Dr.
Greenzang’s opinion, some paranoia, irritability, and impaired
judgment.
      Dr. Ines Colison, a forensic toxicologist charged with
looking for drugs in biological samples, testified that defendant’s
blood sample — taken on April 2, 1999, at 11:50 a.m. —
contained      a      nearly      undetectable       amount      of




                                  20
                       PEOPLE v. VARGAS
                 Opinion of the Court by Cuéllar, J.


methamphetamine.10       Defendant’s blood was negative for
opiates, cocaine, and barbiturates.
      Defense Investigator David Carpenter testified he met
with defendant 15 to 20 times in face-to-face meetings. Prior to
his conviction, defendant expressed remorse on multiple
occasions. On February 15, 2000, defendant asked Carpenter,
unsolicited, if he could speak to the Muros. Defendant wanted
to communicate with the Muros “off the record” because “he
wanted to convey to them that he was sorry that they lost a
family member. . . . That he felt very badly for what they were
going through.” Carpenter explained it was unlikely defendant
would be granted permission to speak with the Muro family.
Defendant told Carpenter he hoped the family would forgive
him; he tried to say something else but began crying and could
not finish his thought. Carpenter attempted to provide
defendant with as much privacy as the small visiting space
allowed, ultimately suggesting that defendant write a letter to
the Muro family, which he did.
II. PRETRIAL ISSUES

     A. Denial of Motion to Suppress Evidence
     Defendant contends the trial court erred by denying his
motion to suppress evidence seized during a warrantless
probation search of his home on April 2, 1999. He argues the


10
      The concentration of methamphetamine in defendant’s
blood was 33 nanograms per milliliter. The cutoff for detection
is 25 nanograms per milliliter; any amount of
methamphetamine below that amount is considered
undetectable. The half-life of methamphetamine is between
seven and 15 hours, rendering it impossible to determine
precisely when defendant ingested the drug.


                                 21
                         PEOPLE v. VARGAS
                   Opinion of the Court by Cuéllar, J.


search was improper, because he did not provide a valid waiver
of his Fourth Amendment rights when he was placed on
probation. We conclude the condition of probation was valid,
rendering the warrantless search constitutionally permissible.

          1. Background
       On April 2, 1999, before traveling to defendant’s home
intending to conduct a search, Detective Lamoureux reviewed a
court order indicating defendant was on probation and subject
to a search condition. Then, at around 8:30 a.m., he and other
officers conducted a warrantless probation search of defendant’s
home. Detective Lamoureux knocked on defendant’s slightly
ajar door. From his vantage point outside the house, Detective
Lamoureux could see defendant laying on a fold-out couch;
Lamoureux then saw defendant’s hand begin moving. After
waiting 20-30 seconds, the detective entered defendant’s
apartment, then “climbed up on to the bed . . . and secured
[defendant’s]         hands          because        of . . . suspicion
[detectives] . . . hadn’t recovered [a firearm] yet.”
      Detective Kennedy entered defendant’s home after
Detective Lamoureux, placed handcuffs on defendant, and
formally arrested him; he then asked defendant if he was on
probation and subject to a search condition. Defendant
answered those questions affirmatively. Detectives searched
defendant’s home and seized two firearms, both found in a chair
near the bed: a Lorcin semiautomatic and an AK-47. Although
the AK-47 was alleged not to have been used in connection with
the crimes in this case, the Lorcin was purportedly used in the
Muro homicide, and bullet casings matching that weapon were
found at the scene of the Muro shooting.



                                   22
                         PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


      In a motion under section 1538.5, filed in the trial court,
defendant sought to suppress the firearms seized from his
residence, arguing that the search was invalid because it arose
from a defective condition of probation. In his motion to
suppress, defendant asserted that he did not “read or receive[] a
copy of his summary probation order,” and he urged the trial
court to find the search condition invalid because he did not sign
the disposition/minute order placing him on probation and
subjecting him to a search condition.
      The trial court rejected this argument, stating that “before
there is a plea, . . . defendants know what they are pleading to
and what the consequences of the plea are going to be. And the
judge made those findings, and then goes through the conditions
of probation, specifically spelling out the search and seizure
condition. And there is no objection by either counsel or your
defendant, so there is no — [defendant] was aware of and agreed
to voluntarily because of the disposition reached in that case to
accept the search and seizure condition.” The court suggested
defendant “could get on the stand and say, ‘I wasn’t there, and
nobody told me [I would be subject to a search condition],’ but
we don’t have that evidence.” Defense counsel acknowledged his
understanding, and the court replied, “I know you understand
that. But you are not going to submit your client to perjury. I
understand that. . . . It is clear that there was a valid order and
a waiver.” The motion to suppress was denied.

         2. Discussion
     The Fourth Amendment protects “ ‘[t]he right of the
people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures’ by police officers
and other government officials.” (People v. Robles (2000) 23


                                  23
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


Cal.4th 789, 794, quoting U.S. Const., 4th Amend.) The crux of
Fourth Amendment analysis is whether a person has a
reasonable, constitutionally protected expectation of privacy: “a
subjective expectation of privacy in the object of the challenged
search that society is willing to recognize as reasonable.
[Citations.] [¶] ‘[P]rivate residences are places in which the
individual normally expects privacy free of governmental
intrusion not authorized by a warrant, and that expectation is
plainly one that society is prepared to recognize as justifiable.’ ”
(People v. Robles, supra, at p. 795, quoting United States v. Karo
(1984) 468 U.S. 705, 714.)
      A search without a warrant is unreasonable under the
Fourth Amendment, unless it fits in one of a few narrow
exceptions allowing for warrantless searches.          (People v.
Schmitz (2012) 55 Cal.4th 909, 916.) One such exception is a
valid probation condition authorizing warrantless searches.
(People v. Robles, supra, 23 Cal.4th at p. 795; see also People v.
Ramos (2004) 34 Cal.4th 494, 506.) In exchange for avoiding
service of a prison term, a probationer may consent to future
warrantless searches. (People v. Woods (1999) 21 Cal.4th 668,
675.)
      Defendant argues, as he did at the trial court, that the
probation search condition here was invalid because it was not
furnished to him in writing as he alleges was required under
section 1203.12,11 and there was no direct evidence presented at

11
      Section 1203.12 provides, “The probation officer shall
furnish to each person who has been released on probation, and
committed to his care, a written statement of the terms and
conditions of his probation unless such a statement has been
furnished by the court, and shall report to the court, or judge,
releasing such person on probation, any violation or breach of


                                  24
                         PEOPLE v. VARGAS
                   Opinion of the Court by Cuéllar, J.


the suppression hearing — whether through the sentencing
transcript or witness testimony — that he knowingly, freely,
and voluntarily consented to warrantless searches when agreed
to be placed on probation. Defendant’s argument lacks merit.
      The trial court’s process of analyzing a motion to suppress,
we have explained, calls for a three-step inquiry: The trial court
“ ‘find[s] the historical facts, select[s] the rule of law, and
appl[ies] it to the facts in order to determine whether the law as
applied has been violated.’ ” (People v. Letner and Tobin (2010)
50 Cal.4th 99, 145.) We review de novo a trial court’s resolution
of the legal questions resolved in a suppression motion, and we
review the trial court’s resolution of factual issues under the
more deferential substantial evidence standard. (Ibid.) We are
concerned with the propriety of “the trial court’s ruling itself, not
the correctness of the trial court’s reasons for reaching its
decision.” (Ibid.)
      Here, substantial evidence supports the trial court’s
determination that when defendant was placed on probation he
freely, voluntarily, and knowingly waived his Fourth
Amendment rights as a condition of probation. The clerk’s
minutes indicate that defendant had been advised of his plea’s
consequences. To wit, he was “ordered to SUBMIT your
PERSON and PROPERTY including any residence, premises,

the terms and conditions imposed by such court on the person
placed in his care.” By its terms, section 1203.12 addresses only
formal probation; defendant was placed on informal probation,
and it is not clear that section 1203.12 applies. We note also
that the rights conferred under section 1203.12 are “statutory;
not of constitutional dimension.” (Freytas v. Superior Court
(1976) 60 Cal.App.3d 958, 962.) That is, even were we to find a
statutory violation — and we do not — defendant’s Fourth
Amendment rights may not be implicated.


                                   25
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


container, or vehicle under your control to SEARCH and
SEIZURE at anytime [sic] of the day or night by a police or
probation officer with or without a warrant or probable cause.”
The trial court was able to consider the clerk’s minutes in
evaluating defendant’s suppression motion because they were
attached as an exhibit to the district attorney’s opposition to the
motion.     Defense counsel acknowledged as much when
conceding before the trial court that the “clerk’s minutes
indicate[d] maybe there might have been some communication”
to defendant concerning the search condition.
       Defendant now argues that it is improper to conflate
defendant’s change of plea proceedings with his grant of
probation proceedings. Defendant contends that the plea
agreement did not address his sentence; it simply indicated the
possible consequences of a guilty plea. Thereafter, a probation
recommendation with a search condition was made, which does
not, in defendant’s view, evince defendant’s knowledge or
consent of the probation condition. Defendant’s argument is
unpersuasive. The clerk’s minutes reflect that defendant
“underst[ood] the nature of the charge(s) against him[],”
“WITHDR[E]W[] [HIS] PLEA OF NOT GUILTY . . . AND
ENTER[ED] A PLEA OF GUILTY,” was “placed on INFORMAL
PROBATION for a period of 3 YEAR(S),” and a had a search
condition imposed — all during the same proceedings. To the
extent defendant contends the forms imposing a probation
condition are distinct from those evincing a change of plea, that
is certainly true. But that distinction is without difference as to
the propriety of the suppression motion. Indeed, the proceeding
during which defendant changed his plea and accepted a search
condition were one and the same.



                                  26
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


       While it does not appear the trial court gave significant
weight to the clerk’s minutes, we need not agree with the trial
court’s reasoning to find its ruling proper. (People v. Letner and
Tobin, supra, 50 Cal.4th at p. 145.) The trial court concluded
that a plea cannot be taken without certain advisals, including
one regarding imposition of a search condition, which it
presumed was provided here. The court explained, “the history
and practice of the courts” is to ensure defendants understand
the nature of a plea so they “know what they are pleading to and
what the consequences of the plea are going to be.” The court
added that, after advising a defendant regarding the nature of
the plea, they would be apprised of “the conditions of probation,
specifically spelling out the search and seizure condition.” The
trial court ruled that there was “no question in this court’s mind
that [defendant] was aware of and agreed to voluntarily . . .
accept the search and seizure condition.”
      Taking into account the totality of this record, we find the
trial court’s ruling proper. (See People v. Letner and Tobin,
supra, 50 Cal.4th at p. 145 [considering “correctness of the trial
court’s ruling itself, not the correctness of the trial court’s
reasons for reaching its decision”].) In addition to the clerk’s
minutes indicating the court advised defendant of the
consequences of his plea, defendant told officers he was subject
to a probation search condition when they entered his home. His
acknowledgment of the condition to officers suggested he
understood the advisals applied. The clerk’s minutes and
defendant’s acknowledgment belie his assertion that he was not
furnished with or did not sign the disposition/minute order.
Defendant was also invited to present evidence that ordinary
advisements were not provided, and he declined to do so. We



                                  27
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


conclude the trial court committed no error denying defendant’s
motion to suppress.

     B. Denial of Motion to Sever the Capital Charges
      Defendant contends the trial court’s denial of his motion
to sever the capital charges stemming from the Muro robbery
and murder, the Stukkie robbery, and the firearm possession
(counts 1, 2, 3, and 5) from his remaining charges constituted an
abuse of discretion under state law and violated his federal
constitutional right to due process and his right to be free from
cruel and unusual punishment. We conclude this claim lacks
merit: No abuse of discretion occurred at the time the trial court
denied the motion, nor did joinder of the charges result in gross
unfairness.

         1. Background
      Before trial, defendant moved to sever the Muro, Stukkie,
and firearm charges — which made him eligible for a sentence
of death — from the remaining charges. In his severance
motion, he argued the types of charges were not distinctive
enough to be cross-admissible as to identity,12 the murder
charge was likely to inflame the passions of the jury, and joinder
would bolster the weaker charges. The prosecution opposed the
motion, arguing that the evidence was cross-admissible to show
identity, common plan or scheme, that the murder occurred
during a robbery, and that the crimes were committed in
furtherance of gang activities. The prosecution further argued
12
      The remaining charges defendant sought to sever were the
Cruz robbery (count 4), two counts of active participation in a
criminal street gang (counts 7 and 12), the Hill robbery (count
8), the Wilson robbery (count 9), the Baek robbery (count 10),
and the Kim robbery (count 11).


                                  28
                          PEOPLE v. VARGAS
                   Opinion of the Court by Cuéllar, J.


that none of the charges were weak and that there was not a
substantial likelihood of prejudice. At the hearing on the
motion, the court indicated it did not “know how in good
conscious [sic] [it] could sever” the Muro, Stukkie, and firearm
counts from the remaining charges, but provided defense
counsel an opportunity to argue the motion; defense counsel
declined, submitting on the moving papers alone. The court
denied severance, explaining that the capital and noncapital
charges were essentially the same type. Defense counsel
inquired whether the denial was without prejudice, and the
court confirmed all severance denials were without prejudice.

          2. Discussion
        Because consolidating or joining actions is efficient, there
is a preference to do so. (People v. O’Malley (2016) 62 Cal.4th
944, 967 (O’Malley).) As we explained in O’Malley, section 954
furthers this efficiency goal by permitting different types of
offenses to be charged in the same pleading if they are “
‘connected together in their commission’ ” or if they are “ ‘the
same class of crimes or offenses.’ ” (Ibid., quoting § 954.) Here,
as in O’Malley, the “murder[, robberies,] and the related charges
. . . are of the same class, because they are all ‘ “assaultive crimes
against the person.” ’ ” (O’Malley, supra, 62 Cal.4th at p. 967.)
The charges would therefore be properly joined unless the
defense could have made such a “ ‘ “clear showing of potential
prejudice” ’ ” that denying the severance motion would have
constituted an abuse of discretion. (Id. at p. 968.) That did not
occur in this case.
     We review a trial court’s denial of a severance motion for
abuse of discretion based on the record before it at the time of
that denial. (People v. Armstrong (2016) 1 Cal.5th 432, 456;


                                   29
                         PEOPLE v. VARGAS
                   Opinion of the Court by Cuéllar, J.


O’Malley, supra, 62 Cal.4th at p. 968.) We assess four factors;
first, we consider “whether evidence of the crimes to be jointly
tried is cross-admissible.” (O’Malley, supra, at p. 968.) Second,
we address whether the charges are especially inflammatory.
Third, we consider whether a weak case has been joined to a
strong one “so that the spillover effect of aggregate evidence
might alter the outcome of some or all of the charges.” (Ibid.)
Finally, we consider whether joinder renders the case capital
when it would not otherwise have been. (Ibid.) If the evidence
of any of the charged offenses would be “ ‘cross-admissible’ ” in
hypothetical separate trials of any of the other charges, that is
enough “standing alone, to dispel any prejudice and justify a
trial court’s refusal to sever the charged offenses.” (Alcala v.
Superior Court (2008) 43 Cal.4th 1205, 1221.)
       Here, in its opposition to the severance motion, the
prosecution argued the evidence was cross-admissible to show
common plan or scheme, identity, and that the crimes were
committed in furtherance of the criminal street gang.
“ ‘ “[O]ther crimes” evidence is admissible under Evidence Code
section 1101, subdivision (b) “when offered as evidence of a
defendant’s motive, common scheme or plan, preparation,
intent, knowledge, identity, or absence of mistake or accident in
the charged crimes.” ’ [Citation.] ‘In this inquiry, the degree of
similarity of criminal acts is often a key factor, and “there exists
a continuum concerning the degree of similarity required for
cross-admissibility, depending upon the purpose for which
introduction of the evidence is sought: ‘The least degree of
similarity . . . is required in order to prove intent . . . .’ . . . By
contrast, a higher degree of similarity is required to prove
common design or plan, and the highest degree of similarity is



                                   30
                         PEOPLE v. VARGAS
                   Opinion of the Court by Cuéllar, J.


required to prove identity.” ’ ”        (People v. Erskine (2019) 7
Cal.5th 279, 295 (Erksine).)
      Here, a series of armed robberies took place. This gave
rise to seven charged robbery offenses, two of which defendant
sought to sever from the remaining five. The prosecution argued
against this parsing of offenses, reasoning that all four robberies
took place in the same geographic area, occurred over just three
days, and involved the same three perpetrators threatening
their victims with firearms. Evidence concerning defendant’s
gang affiliation was admissible across charges to prove both the
gang enhancements and active participation counts. As the
Attorney General points out, the offenses shared additional
similar characteristics, including defendant approaching a
victim, brandishing a black gun, and demanding money.
      Defendant argues these similarities are not sufficiently
specific to demonstrate identity — the purpose under Evidence
Code section 1101, subdivision (b) demanding “ ‘the highest
degree of similarity’ ” between criminal acts — and the evidence
is thus not cross-admissible. (Erksine, supra, 7 Cal.5th at p.
295.) He argues that none of the evidence to which the
prosecution refers is unique to this set of crimes, claiming his
were “typical armed robberies” lacking “distinctive
characteristics to prove that anyone other than [defendant]
could have committed them.”
      Although we are inclined to conclude that the
characteristics of the offenses are sufficiently similar to find that
the evidence would be cross-admissible even for identity (see
Alcala v. Superior Court, supra, 43 Cal.4th at p. 1221), those
similarities would certainly be cross-admissible on the issues of
common plan or design and of intent. (People v. Daveggio and


                                   31
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


Michaud (2018) 4 Cal.5th 790, 827.) As we have explained, “
‘[t]he least degree of similarity (between the uncharged act and
the charged offense) is required in order to prove intent.’
[Citation.] Evidence is admissible for these purposes if there is
‘sufficient evidence for the jury to find defendant committed
both sets of acts, and sufficient similarities to demonstrate that
in each instance the perpetrator acted with the same intent or
motive.’ ” (Ibid.) In order to demonstrate the existence of a
common design or plan, the prosecutor must show that “ ‘the
common features must indicate the existence of a plan rather
than a series of similar spontaneous acts, but the plan thus
revealed need not be distinctive or unusual.’ ” (Id. at p. 828,
quoting People v. Ewoldt (1994) 7 Cal.4th 380, 403 (Ewoldt).)
       The same three assailants — defendant, Miller, and
Gonzalez — were involved in four robberies. In both the Baek
and Hill robberies, defendant pointed a gun at his victims and
stole their wallets. Cruz and Stukkie were similarly robbed at
gunpoint, with weapons held to the backs of their heads.
Finally, the crimes were temporally and physically proximate.
The similarities between the four robberies — that they
occurred at gunpoint by the same assailants in physically
proximate areas within the span of a few days — “provided a
sufficient basis for the jury to conclude that defendant[] acted
with the same criminal intent or motive, rather than by
‘ “accident or inadvertence or self-defense or good faith or other
innocent mental state.” ’ ” (People v. Daveggio and Michaud,
supra, 4 Cal.5th at p. 827.)
      Likewise, this evidence is enough to support the jury’s
conclusion that defendant was pursuing a common plan or
scheme. As we described in Ewoldt, “evidence that the
defendant has committed uncharged criminal acts that are

                                  32
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


similar to the charged offense may be relevant if these acts
demonstrate circumstantially that the defendant committed the
charged offense pursuant to the same design or plan he or she
used in committing the uncharged acts.” (Ewoldt, supra, 7
Cal.4th at p. 403.) Defendant’s robbery charges arose from acts
occurring before the Muro crime but followed a substantially
similar design: defendant approached victims, brandished a
black gun, and asked them to give him money. Defendant’s
assertion that the similarities shared by the offenses is not
sufficient fails because, “[u]nlike evidence of uncharged acts
used to prove identity,” the common design or plan alleged “need
not be unusual or distinctive; it need only exist to support the
inference that the defendant employed that plan in committing
the charged offense.” (Ibid.)
      Even if we conclude that the trial court was well within its
discretion in denying severance pretrial, we must also discern
“ ‘whether events after the court’s ruling demonstrate that
joinder actually resulted in “gross unfairness” amounting to a
denial of defendant’s constitutional right to fair trial or due
process of law.’ ” (People v. Simon (2016) 1 Cal.5th 98, 129.)
Whether joinder worked a gross unfairness turns upon
assessing whether it was “reasonably probable that the jury was
influenced by the joinder in its verdict of guilt.” (Id. at p. 130.)
Here, “strong evidence warranting conviction” supported all the
charges — the Muro murder and robbery offenses, the four
charged robbery offenses that defendant conceded were
supported by strong evidence, and the remaining firearm and
gang offenses. (Ibid.) Defendant argues it was beyond the
bounds of reason for the court to have denied his severance
motion, and ultimately for the jury to have convicted him on
these joined charges, but that is simply not the case. This


                                  33
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


argument lacks any meaningful support: Defendant fails to
articulate a basis demonstrating how joinder was so unfair as to
violate his federal constitutional rights, and we find none.
III. GUILT PHASE ISSUES

      A. Claims of Insufficient Evidence
      Defendant claims insufficient evidence supports his
convictions of active participation in a criminal street gang, his
robbery of Simon Cruz, and his personal discharge of a firearm.
Each of these contentions lacks merit.
      When a defendant challenges the sufficiency of the
evidence for a jury finding, we review the entire record in the
light most favorable to the judgment of the trial court. We
evaluate whether substantial evidence, defined as reasonable
and credible evidence of solid value, has been disclosed,
permitting the trier of fact to find guilt beyond a reasonable
doubt. (People v. Rivera (2019) 7 Cal.5th 306, 323–324.) “ ‘The
standard of review is the same in cases in which the prosecution
relies mainly on circumstantial evidence.’ ” (Id. at p. 324.)
      We review the sufficiency of the evidence supporting
convictions and enhancements using the same standard,
presuming “ ‘every fact in support of the judgment the trier of
fact could have reasonably deduced from the evidence.’ ” (People
v. Rivera, supra, 7 Cal.5th at p. 331.) If the finder of fact’s
determination is supported, whether the prosecutor relied upon
direct or circumstantial evidence, we have held that reversal is
not warranted, even where “ ‘the circumstances might also
reasonably be reconciled with a contrary finding.’ ” (Ibid.)




                                  34
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


         1. Evidence of Active Gang Participation

             a. Gang Evidence Presented at Trial
      Tustin Police Officer Jeff Blair, “Tustin’s first and only
gang investigator” at the time, presented expert testimony that
Miller, Gonzalez, and defendant were all members of the
Southside gang, a criminal street gang. Officer Blair worked on
over 500 gang cases and had had contact with over 1,000 gang
members. Officer Blair was familiar with a number of gang
tattoos, which he noted were seen less frequently than in years
past because they may be evidence of gang membership when
viewed by a jury. Officer Blair testified that a tattoo depicting
three dots meaning “my crazy life” was typical of gang
membership. Defendant had a tattoo of three dots on his hand.
     Officer Blair testified that criminal street gangs
habitually maintained rosters regarding membership, and a
name would not be listed on a roster if the individual was not a
member of a gang. Blair testified that an image of a gang roster
found at Miller’s home listed Miller, Gonzalez, and defendant13
as members of the Southside gang.




13
      Defendant’s name was listed on the roster using the
moniker “Peewee,” spelled with the letter P, followed by an x
intended to signify a period, and then the letters w-e-e.
Evidence was presented indicating defendant used this
nickname; for instance, in a drawing seized from defendant’s
home depicting gang signs with the words “brown pride
Mexicano” written across it and showing a character wearing a
stocking cap, sunglasses, and a revolver pointed at the viewer,
the nickname written on the trigger guard of the weapon was
“Mr. Pewee [sic].”


                                  35
                         PEOPLE v. VARGAS
                   Opinion of the Court by Cuéllar, J.


             b. Discussion
     Section 186.22, subdivision (a) states in relevant part:
“Any person who actively participates in any criminal street
gang with knowledge that its members engage in, or have
engaged in, a pattern of criminal gang activity, and who willfully
promotes, furthers, or assists in any felonious criminal conduct
by members of that gang, shall be punished.” Section 186.22,
subdivision (b)(1), the so-called “gang enhancement,” provides
in pertinent part, “any person who is convicted of a felony
committed for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang
members, shall, upon conviction of that felony, in addition and
consecutive to the punishment prescribed for the felony or
attempted felony of which he or she has been convicted, be
punished.”
       The statutory enhancement is applicable to “ ‘any person’
convicted of a number of enumerated felonies, including
murder” and being a felon in possession of a firearm, provided
certain conditions are present. (People v. Rivera, supra, 7
Cal.5th at p. 331; § 186.22, subd. (b)(1).) The crime must be “(1)
‘committed for the benefit of, at the direction of, or in association
with any criminal street gang,’ and (2) ‘with the specific intent
to promote, further, or assist in any criminal conduct by gang
members.’ ” (Rivera, at p. 331.) If a gang-related crime is
committed for the particular purpose of helping members of the
gang, the enhancement is applicable, although we have
cautioned that “ ‘[n]ot every crime committed by gang members
is related to a gang.’ ” (Ibid.)




                                   36
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


       Defendant contends there was insufficient evidence he
was an “active participant” in a criminal street gang rather
than, simply, associated with gang members. Specifically,
defendant argues he had no history of documented gang
affiliation. He claims to have been devoid of any personal
knowledge of information exclusive to a gang member, nor did
he possess tattoos linking him to a gang. Moreover, he claims
the drawings of gang graffiti found in his and Miller’s homes and
in the Motel 6 room suggested only that he was an aspiring gang
member. Defendant’s argument misses the point. Our review
tests whether the evidence was sufficient, not whether
hypothetical evidence would have strengthened the
prosecution’s case. We conclude it was. As with all sufficiency
claims, “ ‘[w]e presume every fact in support of the judgment’ ”
that can be “ ‘reasonably deduced from the evidence. [Citation.]
If the circumstances reasonably justify the trier of fact’s
findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled
with a contrary finding.’ ” (People v. Rivera, supra, 7 Cal.5th at
p. 331.)
       Defendant argues that no evidence was presented at trial
indicating he had prior gang affiliation. He also conveys that
Amor and Espinoza — both Southside gang members — testified
that defendant was from “nowhere,” meaning he had no gang
affiliation. But concluding defendant was unaffiliated with a
gang was not the only possible interpretation of the evidence
presented at trial; indeed, ample additional evidence was
presented showing, or permitting a finder of fact to infer, that
defendant (1) actively participated in the Southside gang, (2)
was aware that its members — including Miller and Gonzalez
— “engaged in a pattern of criminal gang activity,” and (3)


                                  37
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


promoted the felonious conduct of its members. Officer Blair
testified that defendant’s name appeared on a roster of
Southside gang members. (People v. Rivera, supra, 7 Cal.5th at
p. 331.) Quintana, defendant’s mother, testified that defendant
and Miller, another Southside gang member, had been friends
since 1987. While in custody awaiting trial, defendant wrote
three letters to Miller containing language and slang used by
gang members. Quintana also testified that defendant and
Gonzalez had been acquainted for some time. Miller and
Gonzalez were both known to be Southside gang members.
      Defendant argues that the evidence was insufficient to
demonstrate that he was an active gang participant, as required
by section 186.22, and he argued the statute does not penalize
“a person’s fantasies of being part of a criminal underworld.” We
conclude sufficient evidence existed for a factfinder to find
defendant’s involvement extended beyond the realm of fantasy.
A factfinder could surmise that defendant, Miller, and Gonzalez
engaged in a pattern of criminal activity together; indeed, all
three were present when Baek’s stolen credit cards were used at
WorldNet Pager. All three participated in the robbery of Hill
and attempted robbery of Wilson, and all three were also present
during the robbery of Stukkie and the robbery and murder of
Muro. Officer Blair testified that gang members regularly
commit crimes together to provide each other with “backup.”
The robberies in this case, he explained, were committed for the
benefit of, i.e., to promote the felonious conduct of, the Southside
gang. He also testified that the robberies would have financially
benefitted the Southside gang, permitting its members to
purchase alcohol, drugs, and motel rooms. He also opined that
the robberies would have enhanced the gang’s reputation as
dangerous by instilling fear in community members.


                                  38
                       PEOPLE v. VARGAS
                 Opinion of the Court by Cuéllar, J.


      Viewed in the light most favorable to the judgment, this
evidence was sufficient for a reasonable juror to have concluded
that defendant was an active participant in the Southside gang.

            c. Request to Reconsider Castenada
       In addition to arguing that the evidence was insufficient
to support the jury’s verdict, defendant contends that our
holding in People v. Castenada (2000) 23 Cal.4th 743
(Castenada), in which we concluded that the phrase “active
participation” used in section 186.22 was not unconstitutionally
vague, should be reconsidered. Defendant argues the statute is
unconstitutional and violates principles of due process because
it fails to define what constitutes “active participation,” and
Castenada, while upholding the statute, does not sufficiently
clarify what is considered “active participation.” (Castenada,
supra, 23 Cal.4th at pp. 746–747.) Defendant argues he was
harmed by the statute’s vagueness because his association with
Miller and Gonzalez, along with drawings found in his
possession, permitted his conviction under section 186.22 when
he and individuals like him would not otherwise have been on
notice that such activities would have constituted active
participation. Defendant also contends the statute permits
arbitrary and discriminatory enforcement. He claims, by way of
example, that police possess the power to stop any vehicle
because it contains an individual wearing a red or blue bandana
— transforming that person into a suspected gang member,
even if the purpose for wearing such a bandana is as innocuous
as gym-going or performing outdoor activities, rather than
membership in the Crips or Bloods gangs — simply by justifying
the stop under the auspices of presumed active participation
under section 186.22.


                                 39
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


      Defendant’s arguments were considered and rejected in
Castenada, with the exception of the gang member traffic stop
hypothetical, and he presents us with no reason to reconsider
our holding here. Indeed, in People v. Albillar (2010) 51 Cal.4th
47, relying on Castenada, we reaffirmed that section 186.22 is
not facially ambiguous, which the defendants there conceded.
(Albillar, at p. 55.) We held that section 186.22’s plain language
“targets felonious criminal conduct, not felonious gang-related
conduct.” (Albillar, at p. 55.) Here, defendant was not convicted
simply because he possessed some drawings and knew gang
members. He participated in multiple felonious criminal
enterprises with gang members, communicated from prison to
gang members, was listed on a gang roster, and had a gang
tattoo. Section 186.22 places defendant, and those similarly
situated, on notice regarding what conduct is prohibited, raising
no due process concerns, and we need not reconsider our holding
in Castenada concluding the same. (Castenada, supra, 23
Cal.4th at pp. 746–747.)

         2. Evidence of Defendant’s Involvement in the Robbery
            of Simon Cruz
      Defendant claims there was insufficient evidence
presented at trial for the jury to convict him of the robbery of
Simon Cruz. He argues that Cruz did not identify him, and that
two other witnesses, Robert Phillips and Nannie Marshall,
described another individual in the area at the time of the
robbery, as the more likely perpetrator. We conclude, for the
reasons that follow, that defendant’s claim lacks merit.
        As noted above, we review the record in the light most
favorable to the judgment, evaluating “ ‘ “ ‘ “whether it discloses
. . . evidence which is reasonable, credible, and of solid value[,]


                                  40
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.” ’ ” ’ ” (People v. Rivera, supra,
7 Cal.5th at p. 323.) Defendant complains the evidence was
insufficient to convict him of robbery because Cruz did not
identify defendant as the assailant, the clothing seized from
defendant’s apartment did not match the clothing Cruz
described his assailant as having worn, no photo array was
conducted, and Cruz did not identify defendant or indicate
defendant looked like his assailant.
      Defendant’s argument does not persuade us. What
defendant manufactures is essentially a list of evidence that
would buttress the prosecution’s case. To treat this as
dispositive would be to ignore the full range of evidence the jury
actually considered. Here, although Cruz did not identify
defendant as the assailant, Cruz did convey that there were two
of them, both Hispanic males between the ages of 18 and 20
years old. Cruz also testified that one of his assailants wore a
red, Pendleton-style shirt, which is consistent with Stukkie’s
description of one of the assailants on the night of Muro’s
murder. Cruz’s description of the offense was similar to the
evidence adduced concerning each of the robberies with which
defendant was charged: namely, that an assailant approached
brandishing a black firearm and demanding money.
      Jurors were also able to credit Amor’s testimony that
around the time Cruz was robbed, defendant and Miller exited
her vehicle, which was parked at the Santa Ana Zoo across the
street from the apartment complex where Cruz lived, and they
walked toward Cruz’s apartment building. She told police she
observed defendant and Miller return a short while later
carrying a wallet. About four hours after that, the vehicle was



                                  41
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


searched, and Cruz’s wallet was recovered from under the
driver’s seat.
      Viewing all of this evidence in the light most favorable to
the judgment, see People v. Rivera, supra, 7 Cal.5th at pages
323–324, it supports the jury’s finding that defendant, perhaps
along with Miller, entered the apartment complex, robbed Cruz,
and returned to the car with his wallet. We cannot, as a matter
of law, say that the jury lacked sufficient evidence to convict
defendant of this crime.

         3. Evidence Defendant Personally Discharged a
            Firearm
      Defendant claims insufficient evidence supported the
jury’s findings that he personally discharged a firearm within
the meaning of section 12022.53, subdivision (d)14 in the Muro
robbery and murder. We disagree.
      We review the record in the light most favorable to the
judgment, evaluating “ ‘ “ ‘ “whether it discloses . . . evidence
which is reasonable, credible, and of solid value[,] such that a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” ’ ” ’ ” (People v. Rivera, supra, 7 Cal.5th at
p. 323.) “ ‘We review the sufficiency of the evidence to support
an enhancement using the same standard we apply to a
conviction.’ ” (Id. at p. 331.)


14
      Section 12022.53, subdivision (d) states in relevant part:
“any person who, in the commission of a felony specified in
subdivision (a), Section 246, or subdivision (c) or (d) of Section
26100 [murder is enumerated in subdivision (a)], personally and
intentionally discharges a firearm and proximately causes great
bodily injury, as defined in Section 12022.7, or death, to any
person other than an accomplice, shall be punished . . . .”


                                  42
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


      Defendant argues the jury’s true finding is not supported
by sufficient evidence because Stukkie failed to identify him as
the shooter and failed to identify his clothing. He also argues
that Espinoza’s and Amor’s testimony is unreliable because they
were biased in favor of the prosecution. Finally, he argues that
a latent palm print found on the trunk of a nearby car does not
suggest he was the shooter because the print might not have
been fresh. None of these arguments are meritorious. Once
again, defendant has merely pointed to other theoretical
evidence that would have made the prosecution’s case stronger,
and to inferences (that Espinoza and Amor lied and the palm
print could have been old) that the jury could have, but was not
compelled, to draw. This does not establish a valid insufficiency
of the evidence claim.
      To the contrary: Ample evidence was presented placing
defendant at the scene of the shooting and pointing to him as
the shooter. Espinoza and Amor, whom the jury could have
believed despite defendant’s claim of bias, testified that
defendant was in the area where Muro was shot around the time
he was shot. Defendant’s location, and Espinoza’s and Amor’s
testimony regarding his location, was corroborated by the
presence of defendant’s palm print on a car parked near where
Muro was murdered, and the jury could have rejected the notion
that defendant had somehow put his hand on that car at some
earlier time. Espinoza also testified that, after the shooting
occurred, Gonzalez and Miller ran back to Espinoza’s car
without defendant, shouting “let’s go; let’s go; start the car.” The
group then left the parking lot and picked up defendant on the
east side of Elk Lane next to the Santa Ana Zoo fence, with
Gonzalez and Miller yelling “fucking Peewee; fucking Peewee”



                                  43
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


while hitting the backs of the seats in front of them. When police
searched that area the next day, they found Muro’s wallet.
      Once defendant was in the car, Gonzalez and Miller told
defendant he would “regret it for the rest of his life,” he was
“going to get taxed for that,” and that they “should kick his ass
for this.” While in the car, defendant told the group he shot
Muro because Muro “was going to fight back,” “he got up,” and
“he came back at” defendant. Defendant was arrested the next
morning, and the firearm used in the Muro shooting was found
in his apartment.
      Viewed in the light most favorable to the verdict, the
evidence described above is sufficient for a jury to have
concluded defendant personally discharged a firearm during
Muro’s robbery and murder.

      B. Asserted Instructional Errors
      Defendant mounts numerous challenges to the trial
court’s guilt phase instructions. We assume for the sake of
argument that all claims are cognizable to the extent
defendant’s substantial rights could have been affected.
(§ 1259.) Regardless, they are without merit.

         1. Failure to Give Voluntary Manslaughter Instruction
      Defendant contends the trial court reversibly erred by
failing to sua sponte instruct the jury on voluntary
manslaughter, the lesser included offense of murder, because
there existed sufficient evidence that he committed the homicide
in the heat of passion. This claim lacks merit.




                                  44
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


             a. Background
      Martinez purportedly witnessed an altercation on April 1,
1999, that resulted in Muro’s death: As he slowly drove past his
apartment complex, he saw four people struggling, although
several parked cars partially blocked his view. Martinez could
not see the faces of the people engaged in the fight, and he was
only able to tell they wore loose clothing. As he continued to
drive down the street, Martinez noticed a fifth person cross the
street and walk toward the fight. Martinez drove away from the
fight to a store, from which he called the police to report the
incident. While at the store, he could no longer see the fight and
he did not hear any gunshots. When he returned to the scene of
the fight, Martinez saw someone lying on the ground, and he
believed that person to be one of the people who had been
involved in the fight.
      The court held a colloquy with the parties regarding jury
instructions on theories of murder, during which the parties
agreed the jury should be instructed — and it was — on murder
(CALJIC No. 8.10), first degree premeditated murder (CALJIC
No. 8.20), first degree felony murder (CALJIC No. 8.21), second
degree murder (CALJIC Nos. 17.10, 8.30, 8.31), and robbery-
murder special circumstances (CALJIC No. 8.81.17). The court
asked defense counsel whether he had “any theory at all . . . for
a manslaughter” instruction. The court added, “I couldn’t think
of any. I looked back through some cases. I couldn’t find any.
You can’t either?” Defendant’s attorney replied, “No.” No
manslaughter instruction was given.

             b. Discussion
     Defendant claims that because substantial evidence
supported an instruction on the lesser included offense of

                                  45
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


voluntary manslaughter, the trial court erred by failing to
provide that instruction to the jury sua sponte. A trial court
must instruct a jury on lesser included offenses when the
evidence raises questions regarding whether every element of a
charged offense is present.         (People v. Sattiewhite (2014)
59 Cal.4th 446, 477.) No instruction on lesser included offenses
is required if there is no evidence that there was any offense less
than that charged. Instructing the jury on a lesser included
offense is not required when the evidence supporting such an
instruction is weak, but “ ‘ “whenever evidence that the
defendant is guilty only of the lesser offense is ‘substantial
enough to merit consideration’ by the jury,” ’ ” such an
instruction is required. (Ibid.) Whether the evidence is
substantial is tested by considering whether a jury would
conclude the lesser but not the greater offense was committed.
(Ibid.)
      Voluntary manslaughter, a lesser included offense of
murder, is defined as the unlawful killing of a human being
without malice. (§ 192; see People v. Rios (2000) 23 Cal.4th 450,
465 [acknowledging the judicially developed theory not
enumerated in § 192 that “manslaughter is a killing which,
though criminal, lacks the murder element of malice”].)
Manslaughter instructions are warranted when substantial
evidence exists to support a jury’s determination that the killing
was committed in the heat of passion and thus does not
constitute a first degree murder. (See People v. Smith (2018)
4 Cal.5th 1134, 1164–1167.)
      “Heat of passion is a mental state that precludes the
formation of malice and reduces an unlawful killing from
murder to manslaughter.” (People v. Beltran (2013) 56 Cal.4th
935, 942.) Heat of passion killing is distinct from malice murder

                                  46
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


because thought in some form is necessary “to form either an
intent to kill or a conscious disregard for human life.” (Ibid.) A
heat of passion killing, we have explained, is one caused by an
unconsidered reaction to provocation rather than the result of
rational thought. If reason “ ‘ “was obscured or disturbed by
passion” ’ ” to so great a degree that an ordinary person would “
‘ “act rashly and without deliberation and reflection,” ’ ” we have
concluded that killing arose from “ ‘ “passion rather than from
judgment.” ’ ” (Ibid.)
       Defendant argues substantial evidence existed to
demonstrate that he killed in the heat of passion, requiring that
the court give a voluntary manslaughter instruction. Defendant
claims that Martinez’s observation of a “struggl[e]” between,
presumably, defendant and the victim, sufficed to demonstrate
that passion. This contention falls short of the mark. Martinez
was unable to see more than outlines of individuals involved in
the fight; he testified that several parked cars blocked his view
of the altercation. Martinez had no information regarding what
precipitated the struggle, who might have been the aggressor,
or how violent the altercation became. (See, e.g., People v.
Enraca (2012) 53 Cal.4th 735, 760 [“[p]redictable and
reasonable conduct by a victim resisting felonious assault is not
sufficient provocation to merit an instruction on voluntary
manslaughter”].) Martinez’s scant evidence regarding the
struggle would not permit a reasonable jury to conclude that
defendant acted under the influence of a strong passion
inflamed by the victim, nor that this was the sort of fight that
would lead an ordinary person to act rashly and without
deliberation and reflection, and from a heat of passion rather
from judgment. Accordingly, defendant’s claim that the trial



                                  47
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


court erred by failing to sua sponte instruct the jury on
voluntary manslaughter is without merit.

         2. Constitutionality of CALJIC No. 2.51
      Defendant reiterates two often repeated challenges to
CALJIC No. 2.51 regarding evidence of motive:15 that the
instruction permitted the jury to determine guilt based on
motive alone in violation of due process, and that it
impermissibly shifted the burden of proof to the defense to prove
innocence. To the extent defendant’s challenges to CALJIC No.
2.51 are not forfeited for failing to object to the instruction or
request it be modified, there was no error. “This court has
previously rejected the argument that it is necessary to instruct
the jury that motive alone is insufficient to establish guilt.”
(People v. Westerfield (2019) 6 Cal.5th 632, 711.) Likewise, “as
we have in the past,” we reject the argument that “CALJIC No.
2.51 lessens the prosecution’s burden of proof.” (People v. Tate
(2010) 49 Cal.4th 635, 699.)

         3. Failure to Give a Unanimity Instruction on Theory
            of First Degree Murder
      Defendant argues the trial court erred in failing to
instruct the jury that “it had to agree unanimously whether [he]
committed malice murder or felony-murder.” He acknowledges
the many decisions of this court rejecting the claim and urges us

15
      The trial court instructed the jury that “[m]otive is not an
element of the crimes charged and need not be shown. However,
you may consider motive or lack of motive as a circumstance in
this case. Presence of motive may tend to establish guilt.
Absence of motive may tend to establish innocence. You will
therefore give its presence or absence, as the case may be, the
weight to which you find it to be entitled.”


                                  48
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


to reconsider them, but he provides no basis to do so. As we
explained in People v. Sattiewhite, the two types of murder at
issue in that case — premeditated murder and felony murder —
were not different crimes but were instead alternate
mechanisms of determining liability. (People v. Sattiewhite,
supra, 59 Cal.4th at p. 479; see also People v. Milan (1973) 9
Cal.3d 185, 194–195.) In People v. Milan, we noted a similar
rule had been applied in burglary cases with respect to the
underlying felonious theory of entry (see People v. Failla (1966)
64 Cal.2d 560, 569) and theft cases with respect to the type of
taking, whether by false pretenses, larceny by trick,
embezzlement, or otherwise (see People v. Nor Woods (1951) 37
Cal.2d 584, 586). We adhere to our previously expressed view.
“[A]s long as each juror is convinced beyond a reasonable doubt
that defendant is guilty of murder as that offense is defined by
statute, it need not decide unanimously by which theory he is
guilty.” (People v. Santamaria (1994) 8 Cal.4th 903, 918; see
also People v. Potts (2019) 6 Cal.5th 1012, 1048.)
IV. PENALTY PHASE AND SENTENCING ISSUES

     A. Instructional Error Pertaining to CALJIC No.
        8.85
      Defendant contends that CALJIC No. 8.85, the standard
instruction identifying the aggravating and mitigating
circumstances, is “constitutionally flawed.”         The defect,
according to defendant, is that the instruction’s “prefatory” use
of the phrase “whether or not” in conjunction with certain
factors caused the jury confusion as to which factors were
aggravating, mitigating, or either — depending on the jury’s
view of the evidence. That is, the instruction’s language



                                  49
                         PEOPLE v. VARGAS
                   Opinion of the Court by Cuéllar, J.


permitted the jury to consider factors in mitigation as
aggravating.
      As defendant acknowledges, “ ‘[t]he trial court had no
obligation to advise the jury which sentencing factors were
aggravating, which were mitigating, or which could be either
aggravating or mitigating depending on the jury’s appraisal of
the evidence.’ [Citation.] ‘The phrase “whether or not” in section
190.3, factors (d)–(h) and (j) does not unconstitutionally suggest
that the absence of a mitigating factor is to be considered as an
aggravating circumstance.’ ” (People v. Miracle (2018) 6 Cal.5th
318, 354.) We decline to reconsider this precedent.

      B. Claimed Violation of the Vienna Convention
      When law enforcement officials questioned Vargas, they
failed to inform him of his right to contact the Mexican consulate
and failed to notify the consulate of his arrest until after the jury
returned a death verdict. As a result, defendant claims, law
enforcement officials violated his rights under the Vienna
Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77,
T.I.A.S. No. 6820 (Vienna Convention). After the verdict,
defendant unsuccessfully moved for a new trial. Defendant
conceded during oral argument that a showing of prejudice is
required to prevail on a Vienna Convention claim, and he
asserts he suffered prejudice.16 We conclude defendant suffered
16
      Defendant argued initially that prejudice could not be
determined on the appellate record and raised the issue to
preserve it for habeas corpus review. (See People v. Mendoza
(2016) 62 Cal.4th 856, 917; People v. Mendoza (2007) 42 Cal.4th
686, 710.) The Attorney General argued defendant would be
barred from habeas corpus relief because he had an opportunity
to present evidence before the trial court that he suffered
prejudice due to a violation of the Vienna Convention when he


                                   50
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


no prejudice, and although law enforcement officials involved in
questioning Vargas technically violated the Vienna Convention,
reversal is not warranted.

         1. Background
       Before he was sentenced, defendant filed a motion for new
trial, claiming he was denied due process of law when law
enforcement officials failed to follow the Vienna Convention and
notify consular officials of his arrest. Mexican consular officials
did not become aware of defendant’s case until after defendant
was convicted and the jury recommended a death sentence.
Defendant argues that had the Mexican consulate been notified
of his arrest, a consular official would have advised him,
consistent with Miranda v. Arizona (1966) 384 U.S. 436
(Miranda), to exercise his Fifth Amendment right to silence.
Instead, defendant spoke with police. Although he did not
incriminate himself, he claims to have made statements he
alleges were factually inconsistent with evidence adduced at
trial. Had he remained silent, defendant argues, he would have
felt more free to testify at his trial. But because his statements
to police contained self-described factual inconsistencies, any
testimony he might have given would have been subject to
impeachment.
      In support of his motion for new trial, defendant presented
evidence that he was a Mexican national, and presented
testimony from two witnesses regarding the benefits


filed a motion for new trial. The trial court denied that motion,
however, finding a violation of the Vienna Convention occurred,
but that defendant suffered no prejudice. The matter has now
been fully briefed for appellate consideration.



                                  51
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


preconviction consular assistance might have provided to him.17
Defendant argued that he was not notified upon arrest of his
right to speak with a consular official. Indeed, no consular
official ever contacted defendant, although, as defense counsel
argued, “almost 12 hours after [defendant] was arrested, an
Immigration and Naturalization Service official showed up . . .
to see whether or not he was deportable.” After determining
defendant was a “lawful, permanent resident,” Diane Booker,
the immigration agent who interviewed defendant, advised him
of his rights to counsel and consular services in connection with
his immigration proceedings. Booker testified that she did not
routinely record whether consular services were requested by
arrestees, and that Mexico’s consulate was not one Immigration
and Naturalization Service (I.N.S.) officials were under an
obligation to contact.
      The prosecution maintained that defendant made no offer
of proof regarding what specific evidence would have been
presented in the guilt or penalty phases had consular assistance
been provided. Despite the “technical violation” of the Vienna
Convention, the prosecutor argued defendant would not have
sought consular assistance because he did not contact an
attorney even after he was advised by the I.N.S. to do so.

17
      Specifically, defendant relied on the testimony of Sandra
Babcock, an attorney enlisted by the Mexican government to
assist defendant, who testified that she was the director of a
legal assistance program for Mexican nationals facing the death
penalty. Babcock suggested that defendant retain the services
of a bilingual mental health expert. That expert, Dr. Ricardo
Weinstein, also testified on defendant’s behalf, criticizing a
great deal of the psychological and social evidence that was
presented at trial.



                                  52
                         PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


      After hearing argument, the court concluded that the
notice of rights provided by the I.N.S. official — i.e., handing
defendant “a copy of the immigration rights form” — did not
“satisf[y] the requirements of the Vienna Convention, but it did
put [defendant] on notice that the Mexican Consulate was
available.” The trial court ruled that “there was a technical
violation of the Vienna Convention,” noting: “There are no
remedies set out in the Treaty.” Sandra Babcock, a witness for
defendant in support of his motion for new trial, urged the court
to return defendant “to the status he was in at the time of the
violation, meaning immediately post arrest,” a remedy that was,
in the court’s view, “unreasonable” and “not based upon law. [¶]
If there is a violation of the statute, due process requires
prejudice before any remedy should be imposed.” The court
ruled that it was defendant’s burden to demonstrate that
prejudice, and because he failed to meet his burden no remedy
was warranted.

         2. Discussion
       The Vienna Convention requires that law enforcement
officers convey to arrested foreign nationals, “without delay,”
that they have the right to have their consulate notified of their
arrest. (Vienna Convention, supra, art. 36, par. 1(b), at p. 101
(Article 36); see § 834c, subd. (b).)
      Should the arrestee request consular notification, the law
enforcement officer must promptly inform the consulate of the
arrest. (Article 36, at p. 101.) These requirements of the Vienna
Convention were enacted as state statutory law in 2000, but the
California Legislature did not specify a remedy for their
violation.    (§ 834c; see Comment, A Proposal for U.S.
Implementation of the Vienna Convention’s Consular


                                  53
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


Notification Requirement (2013) 60 UCLA L.Rev. 1324, 1366.)
Section 834c provides that any “ ‘known or suspected foreign
national’ ” must be informed of the right to consular notification
within two hours of arrest, booking, or detention. (People v. Leon
(2020) 8 Cal.5th 831, 845 (Leon), quoting § 834c, subd. (a)(1).)
Although defendant argues his rights under that statute were
violated, we conclude no violation of section 834c occurred, since
it was not effective until after defendant’s arrest.
       As we have in other cases, we assume here that Article 36
of the Vienna Convention created rights enforceable by
individuals. (People v. Mendoza, supra, 62 Cal.4th at p. 917.) A
defendant is entitled to relief under the Vienna Convention if
the defendant can show that a violation occurred, and that the
violation resulted in prejudice. (See People v. Mendoza, supra,
42 Cal.4th at p. 711; see also Breard v. Greene (1998) 523 U.S.
371, 377.) Although Article 36 “ ‘secures only a right of foreign
nationals to have their consulate informed of their arrest or
detention—not to have their consulate intervene, or to have law
enforcement authorities cease their investigation pending any
such notice or intervention’ ” (Leon, supra, 8 Cal.5th at p. 846),
consular notification may facilitate a defendant’s access to
assistance, advice, and legal services. If a defendant is unable
to make “some showing that the violation had an effect on the
trial,” the U.S. Supreme Court has explained that even with a
“properly raised and proved” Vienna Convention claim, “it is
extremely doubtful that [a] violation should result in the
overturning of a final judgment of conviction.” (Breard v.
Greene, supra, 523 U.S. at p. 377.) “ ‘In most circumstances,
there is likely to be little connection between an Article 36
violation and evidence or statements obtained by police.’
(Sanchez-Llamas v. Oregon (2006) 548 U.S. 331, 349, [165


                                  54
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


L.Ed.2d 557, 126 S.Ct. 2669] (Sanchez-Llamas).) Accordingly,
the ‘failure to notify a suspect of his or her consular rights does
not, in itself, render a confession inadmissible’ under Article 36.
(People v. Enraca[, supra,] 53 Cal.4th [at p. ]756 [137
Cal.Rptr.3d 117, 269 P.3d 543] (Enraca); see Sanchez-Llamas,
at p. 349.)” (Leon, supra, at p. 846.)
      A consular notification claim may be raised as part of a
broader challenge to a confession’s voluntariness. (Sanchez-
Llamas v. Oregon, supra, 548 U.S. at p. 350.) Defendant argues
that had he received consular assistance, he would not have
waived his right to silence under Miranda. Yet defendant did
not confess; he made statements to police following a Miranda
waiver that he acknowledges were not incriminating. He
contends that he did not testify because those statements
contained inconsistencies with facts developed at trial and could
have been used for impeachment purposes. In Leon, the
defendant did not contend “his statements to police were
involuntary;” but instead “assert[ed] the lack of consular notice
is a circumstance that rendered his Miranda waiver invalid.”
(Leon, supra, 8 Cal.5th at p. 846.) We concluded the defendant’s
argument lacked merit because he did not establish a link
between his confession and lack of consular notice. (Ibid.)
      The link between defendant’s statements to law
enforcement and the lack of consular notice is even more
tenuous here. Defendant’s Article 36 claim fails for that reason.
Defendant’s argument — that he might have testified at trial
had a consular official advised him to remain silent when
questioned by the police — is far too speculative given the record
in this case. (See Leon, at p. 846; see also Breard v. Greene,
supra, 523 U.S. at p. 377 [speculative Vienna Convention claim
rejected where it could not “arguably” be shown that the treaty’s

                                  55
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


“violation should result in the overturning of a final judgment of
conviction without some showing that the violation had an effect
on the trial”].) Defendant made no incriminating statements
but argues his “uncounseled” “misstatements” to law
enforcement rendered testifying an impossibility. That is, he
claims that while the consular notification failure did not cause
him to waive his Miranda rights, the notification failure
nonetheless left him unable to understand and exercise his right
to silence.
      We considered and rejected this argument in Leon. (Leon,
supra, 8 Cal.5th at p. 846.) In that case, the defendant argued
that a consular official would have provided a more “ ‘full[] and
careful[]’ ” recitation of Miranda advisements than those
delivered by an officer and he would have been better situated
to heed the advice of a consular official due to his “poor[]
acculturat[ion] and inexperience[].” (Ibid.) The defendant in
Leon alleged that a consular official would have advised him to
exercise his right to silence under Miranda. In order to find any
resulting statement subject to suppression, we concluded in
Leon that there must be a link between the treaty violation and
statement made to law enforcement. (Leon, at p. 846.) We did
not find the situation in Leon precluded defendant from
exercising the right to silence or compelled his confession to law
enforcement officials, and we likewise find no link here. (Ibid.)
      Defendant also argues that, without the Vienna
Convention violation, he would have availed himself of consular
resources in the form of mitigation specialists and other officials
who would have dissuaded prosecutors from seeking the death
penalty, and he did not obtain similar assistance elsewhere.
Specifically, defendant claims the Mexican consulate would
have provided him with a bilingual mitigation specialist

                                  56
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


familiar with Mexican culture, an addiction specialist, a
bilingual psychologist familiar with standardized testing biases,
and a neuropsychologist. He argues the notification failure also
prejudicially deprived him of the financial benefit associated
with the preparation and presentation of his defense.
      This argument fails, too. To the extent this claim asserts
prejudice based on material outside the record, it should be
raised in a petition for habeas corpus, as defendant notes.
(People v. Mendoza, supra, 62 Cal.4th at p. 918; see People v.
Mendoza, supra, 42 Cal.4th at p. 710.) To the extent the claim
is based on evidence presented at his motion for new trial, we
conclude the trial court did not err. In his motion for a new trial,
defendant presented evidence from Dr. Ricardo Weinstein, one
of the experts that attorney-witness Babcock had recommended.
Weinstein testified that defendant’s family was dysfunctional,
that defendant suffered a history of trauma, and that defendant
was addicted to drugs and alcohol; Weinstein also opined that
the disparity between defendant’s verbal and performance
ability, as well as his cultural background, rendered the
Minnesota Multiphasic Personality Inventory an invalid test.
Defendant argues that this evidence would have been available
had the consulate been notified, because the consulate would
have provided him with a host of trial specialists.
      Even without consular assistance, defendant managed to
present a great deal of evidence during the guilt and penalty
phases of his trial. (See ante, at pp. 9-13, 15-19.) Much of this
evidence concerned topics Weinstein proposed to raise,
including defendant’s drug and alcohol dependency and his
family dysfunction. Defendant argues it is “highly likely the
outcome of [his] trial would have been different” had consular
assistance been available because of “Mexico’s unequaled track

                                  57
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


record in defending its nationals.” In particular, defendant
explains that the Mexican Capital Legal Assistance Program
experienced a great deal of success in defending its clients,
although he does not assert whether or to what extent he was
eligible for their services. He also fails to articulate what
evidence, specifically, the program would have assisted him
with developing or presenting, and how such evidence would
have affected the outcome of his trial. Despite defendant’s lack
of consular assistance, he was able to present evidence in
mitigation concerning his family history and cognitive abilities.
Defendant is unable to demonstrate he suffered prejudice
because he has neither shown that the Mexican consulate would
have provided him with resources that were not otherwise
accessible, nor that those resources would have affected the
outcome of his trial. (See People v. Mendoza, supra, 42 Cal.4th
at p. 711.)
      Though no prejudice resulted from the consular
notification failure here, we are mindful that “the United States
Supreme Court has articulated several possible remedies for a
consular notification violation.” (Leon, supra, 8 Cal.5th at p. 856
(conc. opn. of Cuéllar, J.).) Those remedies can range from
“mak[ing] accommodations to secure for the defendant the
benefits of consular assistance” to suppressing a confession
made to law enforcement in the absence of such assistance.
(Ibid.) Too often ignored, the nation’s Article 36 obligations
remain enormously important.             Where courts become
“concerned [that a] consular notification failure may be part of
a scheme to deprive the national of any meaningful choice . . . ,
a remedy for the consular notification violation is surely
warranted.” (Leon, at p. 857 (conc. opn. of Cuéllar, J.).) That a



                                  58
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


failure of consular notification occurred here is beyond dispute,
but on the record before us we find no prejudice resulted from it.

      C. Denial of Application to Modify the Jury’s
         Verdict
      Defendant contends the trial court improperly denied his
automatic motion to modify the jury’s death verdict and seeks
either a reduction of his sentence to life without the possibility
of parole or, in the alternative, remand for a new sentence
modification hearing. (§ 190.4, subd. (e).)18 Defendant appears
to have forfeited this claim by failing to raise it at trial (People
v. Hartsch (2010) 49 Cal.4th 472, 514); we also conclude neither
form of relief sought is warranted.




18
      In its entirety, section 190.4, subdivision (e) provides: “In
every case in which the trier of fact has returned a verdict or
finding imposing the death penalty, the defendant shall be
deemed to have made an application for modification of such
verdict or finding pursuant to Subdivision 7 of Section 11. In
ruling on the application, the judge shall review the evidence,
consider, take into account, and be guided by the aggravating
and mitigating circumstances referred to in Section 190.3, and
shall make a determination as to whether the jury’s findings and
verdicts that the aggravating circumstances outweigh the
mitigating circumstances are contrary to law or the evidence
presented. The judge shall state on the record the reasons for
his findings. [¶] The judge shall set forth the reasons for his
ruling on the application and direct that they be entered on the
Clerk’s minutes. The denial of the modification of the death
penalty verdict pursuant to subdivision (7) of Section 1181 shall
be reviewed on the defendant’s automatic appeal pursuant to
subdivision (b) of Section 1239. The granting of the application
shall be reviewed on the People’s appeal pursuant to paragraph
(6).”


                                  59
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


         1. Background
      Following his death sentence, defendant filed a motion
under section 190.4, subdivision (e), seeking a reduction of his
sentence to life without parole. The People did not file a written
opposition, but noted their position at the hearing on the motion
“that the facts that the jury was presented [sic] did support the
verdict and the recommendation of death.” The trial court held
a thorough hearing on the motion, explaining that the burden
was on the court to “make findings” on the evidence, which the
court noted it had done contemporaneously, “when the facts
were still fresh.” The trial court subsequently denied the
motion, extensively reviewing and discussing the factors in
aggravation and mitigation prior to reaching its decision.
      The trial court concluded that Muro’s murder was
“senseless,” and done simply to avoid Muro’s ability to identify
defendant. The court found aggravating that defendant fired a
second shot when a single shot could have accomplished his goal
and noted that just days before the crime defendant and his
friends were involved in multiple armed robberies. The court
also noted the existence of mitigating factors, including
defendant’s age and lack of criminal background. Throughout
the hearing the court offered the parties an opportunity to be
heard, although defense counsel declined on numerous
occasions.
      After denying the motion and stating its findings on the
record, the court directed that the reasons for its ruling “be
entered on the clerk’s minutes” consistent with section 190.4,
subdivision (e), which directive was followed in an October 11,
2001 minute order.




                                  60
                         PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


         2. Discussion
      Defendant claims the trial court erred in violation of
section 190.4, subdivision (e) by not properly reweighing the
aggravating and mitigating factors before denying the
automatic motion under that statute, and by failing to set forth
the reasons for its denial of the motion in the clerk’s minutes as
the statute requires. The record reveals the invalidity of these
claims.
      As the statute makes clear, “the trial court must set forth
reasons [for denying an application to modify a sentence] on the
record and direct that they be entered in the clerk’s minutes.
[Citation.] On appeal, we review the trial court’s ruling
independently, but it is not our role to redetermine the penalty
in the first instance.” (People v. Gamache (2010) 48 Cal.4th 347,
403.) The trial court is not required to “recount ‘every detail’
supporting its determination.” (People v. Lewis and Oliver
(2006) 39 Cal.4th 970, 1064; see People v. Landry (2016) 2
Cal.5th 52, 124.) “ ‘Where the record shows the trial court
properly performed its duty under section 190.4, subdivision (e),
to conduct an independent reweighing of the aggravating and
mitigating evidence, the court’s ruling will be upheld.’ ”
(Landry, at p. 124.)
      The record here demonstrates the trial court appropriately
reweighed the mitigating and aggravating evidence. The trial
court discussed, at length, the various factors supporting the
jury’s verdict. The trial court found compelling that the Muro
robbery and murder were “senseless,” and that defendant shot
the victim twice when one bullet would have sufficed. The court
noted the presence of other aggravating factors, including the
armed robberies defendant, Miller, and Gonzalez committed in


                                  61
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


the days preceding the murder. In mitigation, the trial court
noted defendant’s relative youth and his family background.
The trial court also asked whether counsel wished to be heard
as to each factor; defense counsel generally “submit[ted]”
argument. Defendant’s assertion that the trial court failed to
properly reweigh the circumstances in aggravation and
mitigation is not borne out by the record — the mere fact that
the court gave more significant weight to certain facts it found
aggravating than those that were mitigating does not make its
decision improper.
      The record also does not support defendant’s assertion
that the court failed to record its findings in the clerk’s record.
The minute order, dated October 11, 2001, contains a near
verbatim recitation of the court’s recounting of the aggravating
and mitigating circumstances. Section 190.4, subdivision (e)
provides that “[t]he judge shall set forth the reasons for his
ruling on the application and direct that they be entered on the
Clerk’s minutes.” The court did precisely this, ordering: “The
court’s reasons for these findings will be — or shall be entered
on the clerk’s minutes.” The minute order reflects that the
findings were entered. Defendant’s claim that “[t]he minutes
only reiterated [the] factors in aggravation and mitigation but
failed to state why the aggravating factors substantially
outweighed the factors in mitigation” is derivative of the claim
rejected above. Accordingly, there was no error in the court’s
denial of the motion to modify the verdict.




                                  62
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


V. OTHER ISSUES

     A. General Challenges to California’s Death Penalty
        Law
      Defendant     raises      several objections  to    the
constitutionality of California’s death penalty scheme. We
decline to reconsider our existing precedent and reject these
objections, on the merits, as follows:
       The special circumstances set forth in section 190.2 that
render a defendant eligible “for the death penalty [citation] are
not unconstitutionally overbroad.” (People v. Eubanks (2011) 53
Cal.4th 110, 153; see also People v. Bell (2019) 7 Cal.5th 70, 130
[“ ‘Section 190.2 adequately narrows the category of death-
eligible defendants and is not impermissibly overbroad under
the requirements of the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution’ ”].) Further,
there are not so many special circumstances enumerated that
they “fail to perform the constitutionally required narrowing
function.” (People v. Williams (2010) 49 Cal.4th 405, 469.)
      Allowing the jury to consider the “circumstances of the
crime” under section 190.3, factor (a) does not result in the
arbitrary and capricious imposition of the death penalty.
(People v. Peoples (2016) 62 Cal.4th 718, 806.)
      This court has repeatedly rejected the argument that the
adjectives “extreme” and “substantial,” as they relate to factors
in mitigation, “impose an unconstitutional threshold
requirement before the jury may consider mitigating evidence.”
(People v. Landry, supra, 2 Cal.5th at p. 122.) Likewise, the
phrase “so substantial” in the instruction on comparing
aggravating and mitigating factors does not yield unlimited



                                  63
                         PEOPLE v. VARGAS
                   Opinion of the Court by Cuéllar, J.


discretion in the sentencing process, nor does it raise such a
prospect of an arbitrary or capricious sentencing outcome that it
would risk the instruction’s constitutionality. (Id. at p. 123.)
      The jury’s instruction to consider whether or not some
factors in mitigation “ ‘ “ ‘ “ ‘ “were present did not impermissibly
invite the jury to aggravate the sentence upon the basis of
nonexistent or irrational aggravating factors.” ’ ” ’ ” ’ ” (Erskine,
supra, 7 Cal.5th at p. 304.) The federal Constitution does not
require that a jury be instructed on whether a section 190.3
factor is aggravating or mitigating, or whether the factor could
be either of those. (Ibid.)
      We have not held the Sixth and Fourteenth Amendments
to “require a jury instruction regarding the burden of proof in
capital sentencing.” (People v. Capers (2019) 7 Cal.5th 989,
1015.) The only burden of proof consideration made during the
penalty phase concerns aggravating evidence under section
190.3, factors (b) and (c), of other crimes and prior convictions,
respectively. Decisions of the United States Supreme Court
interpreting the Sixth Amendment’s jury trial guarantee do not
alter the basis for our conclusion. (People v. Debose (2014) 59
Cal.4th 177, 213.)
      Similarly unavailing is defendant’s contention that a jury
is required to find beyond a reasonable doubt that the
appropriate penalty is death, that aggravating factors outweigh
those in mitigation, or that all aggravating factors have been
proved beyond a reasonable doubt. (People v. Mendez (2019) 7
Cal.5th 680, 717.) There is no requirement that the jury make
written findings of aggravating and mitigating factors. (Ibid.)
And juries are not subject to a unanimity requirement when




                                   64
                        PEOPLE v. VARGAS
                  Opinion of the Court by Cuéllar, J.


they are deciding whether a particular factor in aggravation is
present. (Ibid.)
      Nor is there support for the conclusion that existing
international law prohibits imposition of the death penalty in
the United States. (People v. Capers, supra, 7 Cal.5th at p.
1017.) When the United States signed the International
Covenant on Civil and Political Rights, it expressly reserved the
right to impose capital punishment subject to certain
constraints not applicable here. (Ibid.)
     The federal and state Constitutions, and the state’s death
penalty laws, do not require intercase proportionality review.
(People v. Capers, supra, 7 Cal.5th at pp. 1016–1017.)
     A delay between the time a defendant is sentenced and
executed does not violate the California or federal Constitutions.
(People v. Masters (2016) 62 Cal.4th 1019, 1078.)

     B. Cumulative Prejudice
      Defendant contends the combined guilt and penalty phase
errors require reversal of his conviction and death sentence,
even if the errors are not prejudicial when considered
individually. We have found no error, so no prejudice can
accumulate.




                                  65
                     PEOPLE v. VARGAS
               Opinion of the Court by Cuéllar, J.


VI. DISPOSITION
    We affirm the judgment.


                                           CUÉLLAR, J.


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




                               66
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Vargas
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S101247
Date Filed: July 13, 2020
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: John Ryan

__________________________________________________________________________________

Counsel:

Russell S. Babcock, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Robin Urbanski, Michael T. Murphy, Holly D.
Wilkens and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Russell S. Babcock
Law Offices of Russell S. Babcock
1901 First Avenue, First Floor
San Diego, CA 92101
(619) 531-0887

Michael T. Murphy
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92186-5266
(619) 738-9211
