Filed 8/9/12




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S062180
           v.                        )
                                     )
RICHARD VALDEZ,                      )
                                     )                      Los Angeles County
           Defendant and Appellant.  )                    Super. Ct. No. BA108995
____________________________________)


        A jury convicted defendant Richard Valdez of five counts of first degree
murder (Pen. Code, §§ 187, subd. (a), 189)1 and, as to each count, found true
special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) and
gang and weapon enhancement allegations (§§ 186, subds. (b)(1), (b)(2), 12022,
subd. (a)(1), 12022.5, subd. (a).) The jury returned a verdict of death as to each of
the victims. The trial court denied the automatic application to modify the verdict
(§ 190.4, subd. (e)) and sentenced defendant to death for the five murders. This
appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.




        1      All further unlabeled statutory references are to the Penal Code.



                                          1
                                     I. FACTS

       A. Guilt Phase
       On April 22, 1995, the bodies of three adults – Anthony ―Dido‖ Moreno,
his sister, Maria Moreno, and Gustavo ―Tito‖ Aguirre – and two of Maria‘s
children – five-year-old Laura Moreno and six-month-old Ambrose Padilla – were
found at Maria‘s apartment on Maxson Road in El Monte, California.2 The
evidence presented at trial established that defendant, who was a member of the
Sangra street gang, shot and killed Anthony and Gustavo while his codefendant
and fellow Sangra gang member Jimmy Palma shot and killed Maria and the
children.
       1. Prosecution Evidence
       The Mexican Mafia was formed in 1957 as a prison gang and, by 1977,
controlled most of the criminal activity inside California‘s prisons. Eventually, it
extended its influence outside of the prison system and came to exert control over
virtually all Hispanic street gangs in Southern California, including Sangra and El
Monte Flores. Hispanic gang members are essentially ―soldiers‖ of the Mexican
Mafia and would probably be beaten up or killed for refusing to carry out a
Mexican Mafia order. Mexican Mafia members take a ―blood oath‖ when they
join and ―death is the only way out‖; those who attempt to leave the gang are
eventually killed, even 10 or 15 years after their disassociation. Dido was a
member of the Mexican Mafia from 1973 until he dropped out in the mid 1980‘s.
In January 1995, Raymond Shyrock, a Mexican Mafia leader, stated at a Mexican
Mafia meeting: ―I don‘t know if you have ever heard of this brother Dido. He

       2      For simplicity and to minimize confusion, we will generally refer to
the victims by their nicknames or first names.



                                          2
dropped out a long time ago. He‘s in an apartment where I was living. The
mother fucker was living right downstairs but never showed his face. All kinds of
people in the pad, bunch of young sisters and kids, all kinds of shit. So I‘m trying
to figure out how to – I need a silencer is what I need.‖
       On April 22, 1995, Dido and Maria were living in Maria‘s apartment along
with her children. In the afternoon, a car parked in Maria‘s driveway.
Simultaneously, a Jeep containing four Hispanic men stopped in front of a
neighbor‘s driveway and idled. Early that afternoon, Sangra gang member
Anthony ―Scar‖ Torres had borrowed a Jeep for about 10-20 minutes from Sangra
gang member Victor Jimenez. Four tall, bald, Hispanic men wearing white t-shirts
exited the car. One of them had a tattoo on his neck with chain letters. Another
had a heavy build. The four men walked toward Maria‘s residence.
       About 2:30 p.m., Luis Maciel, who was a Mexican Mafia member and a
former member of El Monte Flores, approached Dido and his brother – Witness
No. 153 – in Maria‘s driveway. With him were two younger men, one of whom
had an El Monte Flores gang tattoo on his arm. When the men arrived, Tito, who
was at the apartment, ran inside and hid. Tito, who was a drug user, had robbed
several Hispanic drug dealers, including at least one who was paying ―taxes‖ to
the Mexican Mafia. This would have subjected him to being killed by the
Mexican Mafia. Maciel spoke with Dido and Witness No. 15 for about 30
minutes. He seemed nervous and unusually talkative. As he spoke, he faced the
apartment‘s door and periodically looked inside, enabling him to see Maria and
her children. He asked about Witness No. 15‘s family and Tito‘s whereabouts. At
some point, he offered Dido and Witness No. 15 heroin, which the latter found

       3       As later explained in more detail, many of the trial witnesses were
identified in the written record by number to protect their safety.



                                          3
―suspicious‖ because, in his experience, ―people don‘t normally give away drugs.‖
Maciel and his companions eventually returned to the car and drove off. Maciel
later met with Palma, Witness No. 14, who was an El Monte Flores gang member,
and another gang member known as ―Diablo,‖ at Maciel‘s house. Palma arrived
in a Nissan Maxima owned by fellow Sangra gang member Danny ―Tricky‖
Logan. Maciel told Palma, ―if anything happens to me, go ahead and contact
Diablo.‖ Palma stated he ―was going to take care of some business‖ for Maciel
and was ―strapping,‖ meaning he was carrying a gun. At Maciel‘s direction,
Witness No. 14 gave Palma a small amount of heroin that Maciel had retrieved
from his house.
      In the late afternoon, Palma asked fellow Sangra gang member Witness No.
16 for a ride to his sister‘s house. While the two men drove around, Palma said he
was expecting a page and, after receiving it, would need Witness No. 16 to take
him to the Alhambra house of fellow Sangra gang member Torres. Palma said
―they had to take care of something‖ and ―the brothers wanted him.‖
      Witness No. 13, who was Torres‘s sister, arrived at Torres‘s house about
7:00 or 7:30 p.m. A short time later, two men arrived looking for Torres; one had
a ―Sangra‖ tattoo on his neck and said his name was Jimmy. Jimmy Palma had a
―Sangra‖ tattoo on his neck. Torres was not at home, and the two men left. Torres
later arrived at the house accompanied by defendant, who was a Sangra gang
member known as ―Primo.‖ They went into Torres‘s room and started making
telephone calls. More Sangra gang members, including Palma, Logan, Jose
―Pepe‖ Ortiz, ―Creepy,‖4 and Witness No. 16, subsequently arrived and went into
Torres‘s room. At some point, Ortiz, who seemed to be in charge, stated that there


4     ―Creepy‖ was never identified at trial by his real name.



                                        4
was ―a problem in El Monte‖ and that they had to go there ―to take care of
something.‖ Witness No. 16 understood Ortiz‘s comment to mean they were
going to kill someone. While in Torres‘s room, Ortiz and Palma took
methamphetamine and Palma shaved his head.
       Sometime before 9 p.m., the men left for El Monte in two groups. Logan
drove in his Nissan Maxima with defendant, Palma and Torres, and Witness No.
16 followed in his Ford Thunderbird with Ortiz and Creepy. When they arrived in
El Monte, Logan pulled into, or stopped in front of, Maria‘s driveway on Maxson
Road and turned off his headlights. Witness No. 16 drove a few blocks further
down the street, pulled over, and turned off the car and the headlights. Ortiz
exited the Thunderbird, walked back toward Maxson Road and looked up and
down the street. According to several witnesses who were visiting Maria‘s
neighbors that night, the driver of the Nissan remained in the car while three
Hispanic men exited and walked down Maria‘s driveway. After six to eight
gunshots rang out, the three men – one holding a handgun – ran back to the
Nissan, which then drove away with its lights off. Witness No. 8, who was one of
Maria‘s neighbors, also heard several gunshots at Maria‘s apartment. A short time
later, Maria‘s six- or seven-year old son – crying, screaming, and covered in
blood – came to Witness No. 8‘s house and said his mother and siblings had been
shot. Witness No. 8 then called the police.
       Ortiz returned to Witness No. 16‘s car as police began to arrive and said
―Let‘s go,‖ ―Let‘s get out of here.‖ When they returned to Torres‘s house,
Logan‘s Nissan was already in the driveway and defendant, Palma, Logan and
Torres were inside listening to a police scanner ―to see if the people were dead.‖
The men began discussing the shootings on Maxson Road. In front of defendant,
Palma said that, while he showed a man some heroin, ―Primo had shot him in the
head.‖ He also said that, ―after the man had got shot,‖ ―the lady with the baby said

                                         5
that it wasn‘t her problem,‖ at which point he ―pulled out the gun and shot her and
let off rounds on the kids.‖ Defendant confirmed Palma‘s statements, explaining
that ―he had shot one guy in the temple and another guy running away from him.‖
Torres said he had ―stood by the door with the shotgun making sure nobody would
walk up.‖ Logan drove the Nissan and waited in the car while the murders took
place.
         Responding to Witness No. 8‘s call, police arrived at the scene of the
shooting about 10:40 p.m. They found Dido lying on the ground in a pool of
blood just outside of the door to Maria‘s apartment. Inside the door, Maria was
lying face down on the floor in a pool of blood. Next to her, Laura was lying face
down in a pool of blood and Ambrose was lying on his back with a gunshot
through his eye. Tito was lying face down between the bed and the wall. A three-
or four-year-old girl was hiding in the corner.
         Dido died from a single gunshot to the head. The bullet entered his skull
near the right ear and exited from the left side. A contact wound to the skin
indicated that the gun had been pressed to his head when fired. Tito died from a
gunshot to the top of the head. A contact wound indicated that the gun had been
pressed to his head when fired. Tito also had a nonfatal gunshot wound through
his left shoulder. The position of his body was consistent with his having been
shot while he was lying at least partially on the bed. Maria died from a gunshot to
the head, which had been fired from a distance of a few inches to one foot. She
also had a nonfatal gunshot wound to her right buttock. Laura died from a gunshot
to her torso, which had entered her back, punctured her lung, and exited from her
chest. The angle of the wound suggested she was probably seated or lying down
or slightly bent over when she was shot. Ambrose died from a gunshot that
entered his right eye and traveled through his mouth, the base of his brain, and his



                                           6
spinal cord before exiting from the back of his neck. A hole in the pillow
underneath him suggested he was lying on his back when shot.
       During subsequent investigation, police discovered ballistics evidence
linking defendant to the Maxson Road shootings. In a house he had lived in until
early April 1995, they found an expended .38- or .357-caliber bullet. They
recovered similar caliber bullets from a bathroom wall at Maria‘s apartment and
from Tito‘s head. All three bullets had the same general rifling characteristics and
had been fired from a revolver. In a condominium defendant had moved into
shortly before the shootings, police found in a bedroom closet a bag of
unexpended bullets, some of which were .45-caliber. They recovered two .45-
caliber bullets from Maria‘s body and, at the crime scene, several .45-caliber
bullet fragments, a complete .45-caliber bullet, and several .45-caliber shell
casings. The bullets recovered from Maria‘s body and the bullet and bullet
fragments had all been fired from the same semi-automatic weapon. In addition,
the .45-caliber shell casings had at some point been chambered in the same firearm
as the two unexpended .45-caliber bullets found at defendant‘s condominium.
       Police also discovered and collected other evidence linking the various
participants to each other and to the shootings. Pager and telephone records
showed that Maciel was paged three times from Ortiz‘s residence on April 22,
1995, and five times from Torres‘s house that evening between 9:20 and 11 p.m.
Between 11:00 p.m. and midnight that night, five calls were placed from Torres‘s
residence to a pager registered to Veronica Lopez, who was defendant‘s former
girlfriend. The next day, Maciel was paged once from Ortiz‘s residence, twice
from Torres‘s, and three times from Palma‘s.
       The morning of May 2, 1995, police saw Logan arrive in his Nissan at
Palma‘s house. Defendant was in the passenger seat. They left after speaking



                                          7
with Palma for about 2 minutes. Later, Witness No. 16 picked up Palma in his
Thunderbird and took him on various errands before returning to Palma‘s house.
       On May 15, 1995, about two hours after police arrested Palma and took
him to the Los Angeles County jail, a call was placed from the jail to the
condominium defendant had moved into in early April. About 10 minutes later, a
call was made from the jail to Palma‘s residence. Less than 30 minutes later, a
call was made from the condominium to Logan‘s residence. About 50 minutes
later, a collect call was made from the jail to the condominium. After the call to
Logan‘s residence but before the last call to the condominium, police saw Torres
leave the condominium in a Jeep. They pursued Torres, who eventually
abandoned the Jeep, fled on foot, and took refuge in the house of his girlfriend, Jill
Steele. They surrounded the house and would not let Steele enter. She spoke with
Torres by telephone and then, at his request, called defendant. Meanwhile, police
spotted Logan at a nearby restaurant with another Sangra gang member. In
Logan‘s Jeep, they found a change of clothes. Eventually, they entered Steele‘s
house and arrested Torres.
       2. Defense Evidence
       Defendant denied any involvement in the murders. He maintained that,
although he had once had been a Sangra gang member, he was not a member at
the time of the murders. He attempted to elicit testimony to support this
contention during cross-examination of several prosecution witnesses. He also
offered a stipulation that Torres‘s mother, who shared her house with Torres, had
not identified him from a photographic lineup. During cross-examination of other
prosecution witnesses, defendant attempted to develop evidence that a gang called
the Border Brothers may have committed the murders because Tito had robbed
drug ―connections‖ associated with that gang.



                                          8
       Defendant also called three witnesses. His best friend, Randi Chavers,
testified that he had never seen a gun in defendant‘s residences and had seen
defendant shoot a gun only once, at a public shooting range in 1993. Richard
Valdemar, a gang expert who was also a prosecution witness, testified that, after
listening to an enhanced recording of Shyrock‘s comments at the January 1995
Mexican Mafia meeting, he did not believe Shyrock had ordered the children
killed and had not intended that they be killed. Defendant introduced this
testimony to counter Valdemar‘s earlier testimony, based on an unenhanced
recording of the meeting, that Shyrock had wanted to ―silence‖ Maria and her
children. Trent Hampton, defendant‘s stepfather, testified that defendant was in
Utah during all of May 1995. To support this testimony, defendant introduced
into evidence an airline ticket issued to Richard Valdez for an April 30 flight from
Ontario, California, to Salt Lake City, Utah, and a stipulation with the prosecution
that someone named Richard Valdez flew from Ontario, California, to Salt Lake
City, Utah, on April 30, 1995. Defendant introduced this evidence to counter the
prosecution‘s evidence that police had seen him at Palma‘s house on May 2.
       Palma called one witness, David Hooker, a state prisoner who testified
regarding his conversations with Witness No. 14 while they were in prison
together. Witness No. 14 testified for the prosecution that, during a meeting with
Maciel on April 22, 1995, Palma said he was ―going to take care of some
business‖ for Maciel and was ―strapping.‖ According to Hooker, sometime in
May 1996, Witness No. 14 said he was in protective custody because the Mexican
Mafia had a ―green light‖ on him due to his ―involve[ment] in a thing where some
kids got killed during a murder.‖ Witness No. 14 explained to Hooker that (1) he
sold drugs in partnership with a Mexican Mafia member, (2) on the day of the
murders, he threatened a customer who owed money for drugs, and (3) when the



                                         9
customer did not pay despite the threat, he went to the Mexican Mafia member
and ―arranged to get some vatos from San Gabriel to take the puto out.‖

       B. Penalty Phase
       In its case-in-chief, the prosecution presented no additional evidence in
aggravation against defendant.
       Through several witnesses, defendant presented evidence regarding his
upbringing, including the following: (1) he was raised and educated in the
Catholic religion and received the sacraments of reconciliation and holy
communion; (2) in grade school he played Pop Warner football and Little League
baseball; (3) in a ninth grade electronics class, he received an A one semester and
a B another semester, and in both semesters received an ―O‖ for ―outstanding
citizenship‖; (4) the teacher of the electronics class viewed defendant as being
―very responsible,‖ ―hard working,‖ intellectually above average, and one of his
better students; (5) in 1992, he enrolled in ITT Technical Institute after receiving
high scores on the entrance examination; (6) he joined the Navy Reserves and
participated in naval duties; and (7) while living with his grandfather after high
school, he cared for his grandfather, worked at an auto body shop and a print shop,
and helped support his younger brother, who was heavily into drugs.
       Defendant presented testimony from three witnesses about his ability to
make a positive contribution in prison. Dr. Ronald Fairbanks, a licensed clinical
psychologist who interviewed defendant twice, testified that defendant likely had
―above average‖ intellectual abilities and could be productive in prison if given
opportunities to work or assist others with reading or obtaining library materials.
Jesus Avila, who was housed in a cell near defendant‘s in the Los Angeles County
Jail, testified that defendant had helped him with writing, spelling, speaking, and
drawing, and was friendly with other prisoners. Defendant‘s father testified that,



                                         10
based on defendant‘s school performance, defendant ―could be productive in
society through a prison system‖ and would be able to get his G.E.D.
       In rebuttal to defendant‘s evidence, the prosecution presented testimony
from Anthony France, who had been a campus supervisor at San Gabriel High
School when defendant was a student. According to France, in December 1991,
he detained defendant after breaking up a fight on campus. Defendant called
another supervisor his ―bitch‖ and threatened to ―kick his ass.‖ Defendant later
told France he was ―going to put a bullet in [France‘s] head.‖ On cross-
examination, France testified he had not taken defendant‘s threat seriously, it was
not the first time a student had threatened him at a high school, and defendant‘s
threat to put a bullet in his head was a ―standard phrase‖ students used when
security officers broke up fights.
                            II. PROCEDURAL HISTORY
       On September 20, 1995, a Los Angeles County grand jury returned an
indictment charging defendant, Palma, Logan, and Torres with five counts of
murder in connection with the events of April 22. As to each count, the
indictment also alleged a multiple murder special circumstance (§ 190.2, subd.
(a)(3)) and gang and weapon enhancements (§§ 186, subds. (b)(1), (b)(2), 12022,
subd. (a)(1), 12022.5, subd. (a).) In December, the grand jury returned an
amended indictment containing identical charges and adding Ortiz and Maciel as
defendants. In September 1996, the court ruled that defendant and Palma would
be tried together before a single jury and ordered separate trials for the other
defendants.
       Jury selection began on September 30, 1996, and a jury was sworn on
October 17, 1996. Counsel began opening statements on October 21, 1996. The
jury began guilt phase deliberations on November 18, 1996, and declared an
impasse on November 25, 1996. It resumed deliberations after further instructions

                                          11
from the court. On November 27, 1996, the court excused a juror who declared
she could not, under any circumstances, impose the death penalty and could not be
objective during the guilt phase in light of the possibility of a penalty phase. It
replaced the juror with an alternate and, on December 2, 1996, instructed the jury
to begin deliberations anew. On December 4, 1996, the jury returned guilty
verdicts on all counts and found all allegations true. The penalty phase began on
December 9, 1996, and concluded on December 13 with jury verdicts of death.
On June 11, 1997, the trial court denied motions for new trial and applications to
modify the verdicts, and sentenced defendant and Palma to death. This appeal is
automatic.5 (§ 1239.)
                                  III. DISCUSSION

       A. Nondisclosure of Witnesses’ Identities
       Defendant alleges numerous errors in connection with protective orders the
trial court issued delaying and limiting disclosure of the identities of certain
prosecution witnesses. For reasons explained below, defendant‘s claims fail.

                1. Background
       At the prosecution‘s request, on September 29, 1995, nine days after the
return of defendant‘s indictment, the Hon. James Bascue, who was the presiding
judge of the grand jury, ordered redaction from the grand jury transcripts of the
names of 13 grand jury witnesses and certain identifying information regarding a
14th witness. He also ordered defense counsel not to show or provide copies of
the transcripts to anyone absent further court order. Judge Bascue found
―overwhelming good cause‖ for these orders based on the prosecution‘s showing


       5    Palma was killed in San Quentin State Prison on October 13, 1997.
We ordered his appeal permanently abated.



                                          12
that the life of anyone who testified would be ―extremely and seriously in danger.‖
On October 19, 1995, Judge Bascue issued a second order sealing the grand jury
transcripts and exhibits. The order provided that each defense counsel was to
receive a redacted copy of the transcripts, but could not share the transcripts with
anyone absent further court order.
       About six weeks later, on November 7, 1995, after transfer of the case to
the superior court, Judge Robert Dukes revisited the issue upon defense counsel‘s
motion for greater disclosure of the witnesses‘ identities. After conducting an in
camera hearing pursuant to section 1054.7, at which the prosecution presented
evidence, Judge Dukes ordered continued redaction of the witnesses‘ identities
and addresses. However, he also ordered the prosecution to make the witnesses
available for interview by defense counsel and/or their investigators or for
lineups. Judge Dukes order also specified that: (1) defense counsel could not
disclose to their clients, or put into any report, witness identities they discovered
as a result of the interviews; (2) the prosecution could provide defense counsel
with information about witnesses‘ prior convictions if the witnesses‘ identities
were not revealed; and (3) defense counsel could obtain police reports regarding
the crimes if the witnesses‘ names, addresses, and information pointing to their
identities and residences were deleted. Judge Dukes invited defense counsel to
return to court should they feel the order needed amending.
       A few months later, Judge J. Stephen Czuleger, to whom the case was
initially assigned for trial, decided to consider the issue de novo and ordered the
prosecution to make a new showing to justify nondisclosure. In March 1996, after
the prosecution presented evidence at an in camera hearing pursuant to section
1054.7 and the parties presented argument, Judge Czuleger issued a written order
providing: (1) the identities of 10 ―stranger‖ witnesses — those who do not know
any of the defendants and who are not connected to a gang — and the identity of

                                          13
Witness No. 13 were to remain undisclosed and ―will be made available at the
time the witness[es] testif[y],‖ and their addresses and telephone numbers were to
be ―permanently‖ undisclosed; (2) the identities, addresses, and telephone
numbers of the remaining witnesses were to remain undisclosed until further court
order; (3) upon 15 days‘ written notice, the prosecution was to make any witness
available once for a recorded interview by defense counsel at the prosecution‘s
office, the prosecution could be present during the interview if the witness so
requested, and any party could memorialize the interviews by tape recording or
stenographic reporter; (4) the prosecution must give defense counsel a record of
any convictions suffered by the witnesses, but could redact from that record any
case number or identifying information; (5) defense counsel, upon learning a
witness‘s identity, place of residence, or place of employment could not disclose
this information ―to any person,‖ but could disclose a witness‘s identity to the
client ―if such disclosure is necessary to adequately represent their client,‖
provided that such disclosure as to the ―stranger‖ witnesses and Witness No. 13
could not occur absent prior court order; (6) defense counsel and their
investigators could review with their clients police reports, court transcripts, and
grand jury proceedings, but could not give any of this material to anyone absent
court order; (7) the prosecution could redact from all police reports the witnesses‘
names and all information that would reveal their identities, addresses, telephone
numbers, or places of incarceration; (8) until further court order, the previous
court-ordered redactions of the grand jury proceedings would remain in effect and
the grand jury transcripts, witness lists, and exhibits would remain sealed. Judge
Czuleger‘s order recited that it was based on ―good cause having been shown as to
threats and/or possible danger to the safety of witnesses.‖
       In September 1996, after reassignment of the case for trial to the Hon.
George Trammel III, the nondisclosure issue arose again in connection with

                                          14
defense counsel‘s request for videotapes of witness interviews. The prosecutor
explained his assumption that, under the existing orders, he would disclose the
witnesses‘ identities to defense counsel ―a day or two before they testify.‖ Judge
Trammel, after stating that he could not revisit the prior rulings absent new and
previously unavailable information, stated: ―I will require that at least 48 hours in
advance of any witness testifying that their particular tape be actually turned
over. . . . [Defense counsel has] my assurances, if the redacted portions, if you‘re
able to show you need a mid trial continuance for the purposes of doing some . . .
material investigation, you‘ll get it. You have my word on that.‖
       During jury voir dire on October 2, 1996, Palma‘s counsel complained that
the existing court orders, though allowing him to read to his client the information
in the police reports and grand jury transcripts, prohibited Palma from actually
looking at that material. The prosecution disagreed with defense counsel‘s
interpretation, arguing that the court‘s orders precluded defendants not from
reading the material, but from keeping copies of it. Judge Trammell then clarified
that, under the court‘s orders, defendants could read the material but could not
―walk away with it.‖
       On Wednesday, October 16, 1996, five days before trial began, defendant‘s
counsel requested that the prosecution provide the witnesses‘ names so he could
review them with defendant. The prosecutor responded in part that the witnesses
were still in danger. He also noted that defendant‘s counsel had received ―rap
sheets as far as [the witnesses‘] felony convictions,‖ and had ―been given an
opportunity to interview in person the vast majority of the witnesses.‖ Judge
Trammell then explained that, ―to strike a balance‖ between the prosecution‘s
concern for the witnesses‘ safety and defendant‘s right to a fair trial, he would
―withhold [the witnesses‘] names with this understanding, that when one of these
witnesses takes the stand that [defense counsel] will have the right before [they]

                                         15
begin cross examination if [they] can give a good cause reason for delaying cross
examination because [they] didn‘t know who the person was, I will give it to
you. In other words, I am not about to let . . . or make [defense counsel] start to
cross examine until [they] are fully prepared.‖ After the court‘s ruling, the
prosecution indicated its intent to identify the witnesses ―within a couple of days
of their testimony.‖ It also stated that it had no objection to giving defense
counsel the names of ―some of‖ the witnesses ―on Friday with the understanding
that they not tell their clients‖ the names of the ―stranger‖ witnesses. The court
stated that it wanted to defer its decision on the prosecution‘s suggestion. After
addressing other matters, it concluded the day‘s proceedings by stating: ―To the
extent as the case moves on, if [the prosecution] can keep counsel apprised of who
the witnesses next up will be for the next day so that they can use the evening to
prepare for cross examination, again, that would be helpful.‖
       Before opening statements began on October 21, the court asked the
prosecution whether it wanted to refer to the witnesses by number or name. The
prosecution responded that it wanted to use numbers, in order to keep the
witnesses‘ identities out of the public record. It also stated that, ―at this point,‖ it
was ―willing to give‖ defense counsel the names of all unidentified witnesses, so
long as defense counsel did not repeat the information to anyone ―unless they can
articulate a reason why they need to.‖ Palma‘s counsel objected that identifying
the witnesses by number instead of by name would be prejudicial. After agreeing
with Palma‘s counsel, the court explained that defense counsel was ―going to get
the names‖ but could not reveal that information to their clients absent a showing
of good cause. The prosecution then suggested that the witnesses be identified at
trial by aliases.
       The next morning, before opening statements resumed, the prosecutor
expressed concern about using aliases and suggested that the witnesses instead be

                                           16
identified by name in court but only by number in the transcript. During his
remarks, the prosecutor noted that he had given Palma‘s counsel ―the names of the
two people who may testify today,‖ that he had not had ―an opportunity to talk to‖
defendant‘s counsel, and that ―at the recess at 11:00 we are going to go over the
other list of names.‖ Later that morning, ―Witness No. 9‖ — one of the ―stranger‖
witnesses — began testifying. After a three-hour lunch recess, she resumed her
direct testimony. She was followed by Witness No. 8, another of the ―stranger‖
witnesses. Although given the opportunity, defense counsel declined to cross-
examine either witness.
       The next afternoon, October 23, the prosecution called three more of the
―stranger‖ witnesses: ―Witnesses Nos. 1, 2 and 3.‖ Defense counsel cross-
examined two of these witnesses. On October 24, the prosecution called
―Witnesses Nos. 13 and 15.‖ Witness No. 13‘s testimony concluded on October
28, after a three-day break. Defense counsel cross-examined both of these
witnesses extensively.
       The morning of Friday, October 25, the prosecution asked the court to order
that defense counsel ―not tell . . . their clients which witnesses are going to be
testifying the next day.‖ He explained that, on the previous Wednesday, he had
informed defense counsel ―in front of their clients‖ that Witness No. 15 would be
testifying on Thursday and that there was evidence steps had thereafter been taken
to have the witness killed. He further explained: ―I have no problem with telling
[defense counsel] the expected order that I believe we‘ll have for the rest of the
trial. I‘ve been letting them know the day before but I will even tell them for the
rest of the trial. I have no problem with that whatsoever. And I have told them . . .
the true names of the witnesses. But I do want an order. And the mistake I made
the other day was saying it in front of the defendants, . . . and I could have cost a
man his life. But I do want an order that the defendants not be told by their

                                          17
counsel, the prospective order of witnesses.‖ The court granted the prosecution‘s
request and ordered defense counsel ―not to divulge to their clients directly or
indirectly the order in which witnesses are called.‖ Based on the evidence, the
court found that the witnesses‘ lives and safety ―far outweigh[ed]‖ any detriment
to the defense ―in a defendant not knowing who‘s coming the next day.‖
       In response to the court‘s ruling, defendant‘s counsel, after stating he was
―glad‖ the prosecution had ―been telling us the night before [so] at least we can
open the book at least and prepare,‖ asked that the court give him some time to
prepare for cross-examination after a witness takes the stand. The court
responded: ―If it is a reasonable amount of time, certainly. If it is a couple of
days, no. But if it is a matter of 10 or 15 minutes or 20 minutes, I have no
problem with that. I think under the circumstances it is reasonable . . . . Again, I
am not real concerned with the time on this case anymore. I am not saying that
you can have several days but certainly that‘s not an unreasonable request and I
am certainly inclined to go along with it.‖
       Regarding the court‘s statement that the danger to the witnesses outweighed
any detriment resulting from the defendants‘ failure to know who would be
testifying the next day, Palma‘s counsel then interjected: ―One additional matter
so the record‘s clear as [to] our position on this. . . . I think what our position has
been . . . in this it is not that we just don‘t know who the witness is going to be the
day before, we don‘t know who the witnesses are at all. . . . We have been
handcuffed all through the preparation of this case because of this restrictive order
and I just want that to be part of the record.‖ The court responded by assuring
Palma‘s counsel that he, like defendant‘s counsel, would ―be given a reasonable
amount of time [before beginning for cross-examination] and I suppose what is
reasonable would depend on the circumstances. You‘re not going to find me . . .
to be trying to rush this case along because . . . it‘s moving along quite quickly.‖

                                           18
         Two more protected witnesses — Witnesses Nos. 14 and 16 —
subsequently testified for the prosecution. The former testified on October 30,
and was cross-examined by both defense counsel. The latter began his testimony
on October 31 and, four days later, on November 4, returned to the stand for an
extensive cross-examination by defense counsel that consumed almost the entire
day of trial.

                 2. Alleged Violation of Constitutional Rights
         Defendant asserts that, by withholding the witnesses‘ identities, the trial
court violated his constitutional rights to due process, to a fair trial, to confront
witnesses and to a reliable determination of death judgment. His assertions lack
merit.
         The starting point for our conclusion is Alvarado v. Superior Court (2000)
23 Cal.4th 1121 (Alvarado), where we dealt with somewhat similar disclosure
issues. There, a grand jury, based on the testimony of three inmate witnesses,
returned an indictment charging two jail inmates with murdering another
inmate. (Id. at p. 1126.) The prosecution provided the defendants with transcripts
of the witnesses‘ grand jury testimony and information regarding their criminal
histories, but refused to disclose their identities; the transcripts identified them
only by witness number. (Id. at pp. 1127-1128.) After holding a series of in
camera hearings from which it excluded the defendants, the trial court entered a
protective order providing as follows: (1) the prosecution could permanently
withhold the witnesses‘ identities; (2) the prosecution had to produce the witnesses
for interview by defense counsel 30 days before trial, although the witnesses did
not have to speak with counsel or disclose their names; (3) if defense counsel
learned the witnesses‘ names, they could not disclose them to defendants; and (4)
the witnesses did not have to disclose their names even at trial. (Id. at pp. 1128-



                                           19
1130.) After the Court of Appeal upheld the order, we granted review to
determine whether the order violated the defendants‘ ―constitutional rights to due
process of law and to confront the witnesses against them.‖ (Id. at p. 1132.)
       We first held in Alvarado that the protective order was valid insofar as it
permitted pretrial nondisclosure of the witnesses‘ identities. (Alvarado, supra, 23
Cal.4th at pp. 1134-1136.) As a statutory matter, we explained, although the
prosecution must generally disclose at least 30 days before trial the names and
addresses of persons it intends to call as witnesses at trial (§§ 1054.1, subd. (a),
1054.7), ―section 1054.7 establishes that a trial court has discretion to deny,
restrict, or defer disclosure for good cause,‖ which ―expressly includes ‗threats or
possible danger to the safety of a victim or witness.‘ [Citation.]‖ (Alvarado,
supra, at p. 1134.) The trial court properly found good cause, we reasoned, based
largely on evidence that the Mexican Mafia had ordered the homicide, posed an
extreme danger to government witnesses, had an excellent intelligence network
and, before approving a contract to kill a witness, demanded documentation
identifying an individual as a government witness. (Id. at pp. 1128-1129,
1136.) Constitutionally, we continued, no authority suggests that section 1054.7,
insofar as it authorizes ―the denial of pretrial disclosure‖ based on concerns for
witness safety, is ―unconstitutional under either the confrontation or the due
process clause.‖ (Alvarado, supra, at pp. 1135, 1134.) Moreover, in rejecting the
defendants‘ constitutional attacks on pretrial nondisclosure, we relied on high
court decisions for the following propositions: (1) ― ‗the right of confrontation is a
trial right‘ ‖; (2) ― ‗[t]here is no general constitutional right to discovery in a
criminal case‘ ‖; and (3) ― ‗the Due Process Clause has little to say regarding the
amount of discovery which the parties must be afforded.‘ ‖ (Id. at pp. 1134-1135.)
       However, we further held that the protective order exceeded constitutional
bounds insofar as it authorized ―crucial witnesses whose veracity and credibility

                                           20
[were] likely to be central to the prosecution‘s case‖ to testify at trial without
disclosing their identities during their testimony, where ―nondisclosure would
significantly impair the defense‘s ability to investigate or effectively cross-
examine them.‖ (Alvarado, supra, at pp. 1146-1147.) In reaching this conclusion,
we agreed with the People that ―the confrontation clause does not establish an
absolute rule that a witness‘s true identity always must be disclosed.‖ (Id. at p.
1146.) However, we continued, ―in every case in which the testimony of a witness
has been found crucial to the prosecution’s case the courts have determined that it
is improper at trial to withhold information (for example, the name or address of
the witness) essential to the defendant's ability to conduct an effective cross-
examination. [Citations.]‖ (Ibid.) ―Thus, when nondisclosure of the identity of a
crucial witness will preclude effective investigation and cross-examination of that
witness, the confrontation clause does not permit the prosecution to rely upon the
testimony of that witness at trial while refusing to disclose his or her
identity.‖ (Id. at p. 1151, italics added.)
       As defendant concedes, the protective order here at issue did not suffer
from the same constitutional infirmity that afflicted the order in Alvarado; it did
not authorize permanent nondisclosure of the identity of any witness, crucial or
otherwise. Indeed, the record reflects that all but one of the protected witnesses
who actually testified at trial identified themselves during their testimony.6 Nor
does defendant challenge the adequacy of the prosecution‘s showing that the
witnesses would have been in significant danger had their identities been
disclosed. Indeed, the evidence the prosecution presented in this regard was
similar in many respects to the evidence we found adequate in Alvarado to justify

6     As far as the record shows, unlike the other testifying witnesses, Witness
No. 1 was never asked for identifying information.



                                              21
a pretrial nondisclosure order. Specifically, the prosecution presented evidence
that the Mexican Mafia ordered at least one of the murders, posed an extreme
danger to the People‘s witnesses, had an excellent intelligence network, and
demanded documentation identifying an individual as a government witness
before approving a contract to kill a witness. Thus, as Alvarado establishes, the
record was sufficient to justify a pretrial nondisclosure order.
       Nevertheless, defendant asserts, the protective order was constitutionally
invalid insofar as it allowed the prosecution to withhold the witnesses‘ identities
―until the moment [they] took the witness stand,‖ ―immediately prior to their
testimony.‖ This ―belated disclosure,‖ defendant argues, ―failed to provide [him]
with an adequate opportunity to investigate and prepare his defense.‖ As to the
―stranger‖ witnesses — those who had no connection to the defendants and saw
relevant events at the victims‘ home from nearby locations — it prevented him
from determining whether they harbored bias or prejudice against him or other
defendants, whether they had reason to testify falsely, or where they were when
they made their observations. As to the other protected witnesses — who
defendant asserts were ― ‗crucial witnesses‘ ‖ within the meaning of Alvarado —
it prevented defendant from adequately investigating grounds for impeachment,
i.e., their ― ‗reputation[s] for truthfulness or dishonesty, previous history and
accuracy of providing information to law enforcement, and other motives to
fabricate, such as revenge or reduction of their own charges.‘ ‖ More generally,
defendant asserts, nondisclosure prevented the defense from investigating a viable
defense theory — that the murders were carried out not by the Sangra gang, of
which defendant was a member, but by the El Monte Flores street gang — and
fundamentally impaired his relationship with counsel by ―prohibit[ing]‖ his
attorney ―from discussing any matter . . . that might disclose the identity of a
[protected] witnesses.‖   In these respects, defendant asserts, the court‘s order

                                          22
prevented him from having ―an adequate opportunity to investigate and prepare
his defense‖ and ―effectively denied [him] the ability to present potentially
mitigating and exonerating evidence.‖
       Defendant‘s arguments are unpersuasive. As a factual matter, the record
does not support defendant‘s assertion that the witnesses‘ identities were unknown
to the defense until the moment the witnesses took the stand. As detailed above,
on Wednesday, October 16, 1996, five days before trial began, the prosecution
indicated its intent to identify the witnesses ―within a couple of days of their
testimony‖ and stated that it was willing to disclose to defense counsel the names
of ―some of‖ the witnesses on Friday, October 18. Before opening statements
began on Monday, October 21, the prosecution indicated that it was ―willing to
give‖ defense counsel the names of all unidentified witnesses, so long as defense
counsel did not repeat the information to anyone ―unless [counsel] can articulate a
reason why they need to.‖ The next morning, before opening statements resumed,
the prosecution indicated that it had already given Palma‘s counsel ―the names of
the two people who may testify today,‖ that it had not had ―an opportunity to talk
to‖ defendant‘s counsel, and that ―at the recess at 11:00 we are going to go over
the other list of names.‖ On Friday, October 25, the prosecution indicated that it
had ―told‖ defense counsel ―the true names of the witnesses,‖ that it had been
telling defense counsel ―the day before‖ which witnesses would be testifying the
following day, and that it was willing to tell defense counsel the order of witnesses
―for the rest of the trial.‖ As defendant concedes, this record supports a finding
that the prosecution disclosed the identities of all witnesses by October 22, the day




                                          23
the parties completed their opening statements and witnesses began to testify.7
Thus, the record suggests that, except as to the two ―stranger‖ witnesses who
testified on October 22 — ―Witnesses Nos. 8 and 9‖ — defendant knew the
protected witnesses‘ identities a day or more before they testified.8 As to


7       Likewise, the People assert that, ―although the record is not completely
clear, it appears that witness names were all disclosed by the time of opening
statements.‖
8       In arguing that disclosure did not actually occur until the moment the
witnesses took the stand, defendant relies in part on Judge Trammell‘s statement
on October 16, five days before trial began, that he would ―withhold‖ the
witnesses‘ names with the ―understanding‖ that, ―when one of these witnesses
takes the stand,‖ he would grant a continuance before proceeding with cross-
examination if defense counsel ―can give a good cause reason for delaying cross
examination because [they] didn‘t know who the person was.‖ However, as
indicated above, after the court‘s statement, the prosecution indicated its intent to
identify the witnesses ―within a couple of days of their testimony‖ and stated that
it had no objection to giving defense counsel the names of ―some of‖ the witnesses
―on Friday.‖ The court then stated that it wanted to defer its decision on the
prosecution‘s suggestion and concluded the day‘s proceedings by directing the
prosecution to ―keep counsel apprised of who the witnesses next up will be for the
next day so that they can use the evening to prepare for cross examination.‖
Defendant also relies on the following October 25 statement of Palma‘s counsel,
after the court, at the prosecution‘s request, directed defense counsel not to tell
their clients the order in which witnesses would be testifying: ―[S]o the record‘s
clear as [to] our position on this. I think what our position has been . . . in this it is
not that we just don‘t know who the witness is going to be the day before, we
don‘t know who the witnesses are at all.‖ However, in context and in light of the
record as a whole, this comment is best understood not as a statement that Palma‘s
counsel still did not know the witnesses‘ identities, but as a reiteration — to clarify
the record — of counsel‘s prior objection to earlier court rulings that authorized
nondisclosure. Notably, defendant‘s counsel did not join in the comments of
Palma‘s counsel or challenge the prosecution‘s representation earlier in the
hearing that it had ―told‖ defense counsel ―the true names of the witnesses.‖
Instead, defendant‘s counsel responded to the prosecution‘s representation by
expressing gratitude that the prosecution had ―been telling‖ defense counsel the
order of witnesses ―the night before [so] at least we can open the book at least and
prepare.‖



                                           24
Witnesses Nos. 8 and 9, the record indicates that the prosecution disclosed their
identities several hours before they took the stand. As to the witnesses defendant
asserts were ―critical‖ — Witnesses Nos. 13, 14, 15 and 16 — the record indicates
that defendant‘s counsel knew the witnesses‘ identities at least two days, and as
much as two weeks, before he had to begin cross-examination.9
       As a legal matter, governing precedent does not support defendant‘s
constitutional claim. As the high court has explained, ―[t]here is no general
constitutional right to discovery in a criminal case‖ and ― ‗[t]he Due Process
Clause has little to say regarding the amount of discovery which the parties must
be afforded. . . .‘ [Citation.]‖ (Weatherford v. Bursey (1977) 429 U.S. 545, 559.)
Applying these principles, the Weatherford court found no constitutional violation
where the prosecution surprised the defendant at trial by calling to the stand a
previously unidentified witness. (Id. at pp. 559-561.) The court rejected the
argument that the lack of advanced disclosure deprived the defendant ―of the
opportunity to investigate [the witness] in preparation for possible impeachment
on cross-examination,‖ explaining: ―[T]here was no objection at trial to [the
witness‘s] testimony, no request for a continuance, and even now no indication of
substantial prejudice from this occurrence.‖ (Id. at p. 561; see also United States




9       On October 31, before Witness No. 16‘s testimony — which defendant
asserts was ―the cornerstone of the prosecution‘s case‖ — defendant‘s counsel told
the court he had interviewed the witness the previous July, ―obviously‖ knew the
witness‘s name, and ―had been referring to [the witness] by name for the last two
weeks.‖ Indeed, the record suggests that defendant‘s counsel may have known the
identities of the protected witnesses well in advance of trial. In March 1996,
Logan‘s counsel told the court that he ―ha[d] been able to ascertain who‖ the
witnesses were from his own investigation and from the information he had
received, including the redacted grand jury transcripts and the police reports.



                                         25
v. Edwards (7th Cir. 1995) 47 F.3d 841, 842-843 [Constitution does not require
disclosure of protected witness‘s identity before the morning of his testimony].)
       For several reasons, we similarly find no constitutional violation in this
case. First, at the same time it authorized pretrial nondisclosure of the witnesses‘
identities, the court afforded defendant several methods of investigating those
witnesses, including potential sources of impeachment evidence. As detailed
above, in early November 1995, almost a year before trial began, the court
directed the prosecution to make the witnesses available for interview by defense
counsel, authorized the prosecution to provide defense counsel with information
about the witnesses‘ prior convictions, and authorized defense counsel to obtain
police reports regarding the incident. In March 1996, still more than six months
before trial, the judge initially assigned for trial ordered the prosecution to make
the witnesses available for a recorded interview by defense counsel and to give
defense counsel a record of the witnesses‘ prior convictions. Second, by October
16, 1996, five days before trial began, defendant‘s counsel had in fact received
information regarding the witnesses‘ prior convictions and had interviewed ―the
vast majority of the witnesses.‖ Third, when the court issued a protective order in
November 1995, it specifically invited defendant‘s counsel to seek amendment of
the order should he determine that further disclosure was necessary.10 Similarly,
in March 1996, when Judge Czuleger revisited the issue de novo, he emphasized
that the protective order was ―a work in progress as this case progresses‖ and that


10     The court stated: ―[A]fter you have had a chance or an opportunity to
conduct the investigation a little bit further, . . . if it is to be the request of the
defense for lineups, anything of that nature, then at all times you are invited to
return to court should you find, feel that there is a need or a necessity to get some
further amendment to the order.‖ ―[A]s you go along if you feel there needs to be
an expansion of the order, then you are invited to return to court.‖



                                          26
―one of [his] largest concerns [was] that these defendants be adequately
represented and be able to adequately defend themselves.‖ Fourth, the court stated
several times that it would grant defense counsel continuances during trial upon a
showing that the delayed disclosure of the witnesses‘ identities had hampered
counsel‘s ability to prepare for cross-examination.11 Fifth, despite the court‘s
offers, defendant‘s counsel made no attempt to demonstrate that further disclosure
was necessary to his trial preparation and, during trial, never requested a
continuance before beginning cross-examination.12



11      In September 1996, the court stated to defense counsel: ―You have my
assurances . . . if you‘re able to show that you need a mid trial continuance for the
purposes of doing some — not fishing but doing some material investigation,
you‘ll get it. You have my word on that.‖ In October 1996, it told defense
counsel: ―[W]hen one of these witnesses takes the stand . . . you will have the
right before you begin cross examination if you can give a good cause reason for
delaying cross examination because you didn‘t know who the person was, I will
give it to you. In other words, I am not about to let you or make you start to cross
examine until you are fully prepared.‖
12      During trial, the court raised the possibility of a continuance specifically
regarding Witness No. 16. After the prosecution completed its direct examination
of the witness on Thursday, October 31, 1996, defendant‘s counsel moved for a
mistrial, explaining in part that, although he had interviewed the witness the
previous July and had known the witness‘s identity for at least two weeks, he did
not learn information about the witness‘s current employment until the witness
testified at trial. Counsel stated that, had he known this information, he could
have investigated possible impeachment evidence, including ―what type of
employee [the witness] was and whether or not he is known to lie and whether or
not he has covered himself by lying about other people at the time.‖ In denying
the motion, the court responded: ―[I]f you need time to look into his impeachment
insofar as his general character, I will give you a reasonable time. We do have
three days [before trial resumes] and that‘s something certainly on Monday if you
come in and ask for more time, I am going to probably want to know what it is
you need to do and why you didn‘t do it over the next three days, but I mean
there‘s no question he‘s material, and if you‘re able to show me you need
additional time to pursue that particular issue, you may have my word you will get
                                                           (footnote continued on next page)


                                         27
        The sixth relevant factor is that the court‘s protective orders did not in fact
―significantly impair‖ defendant‘s ―ability to investigate or effectively cross-
examine‖ the witnesses he maintains were ―crucial‖ to the case against him:
Witnesses Nos. 13-16. (Alvarado, supra, 23 Cal.4th at p. 1147.) As defendant
asserts, the most crucial witness was Witness No. 16, the Sangra gang member
who testified that defendant and Palma said defendant shot one man in the head
and that defendant said he also shot another man who was running away.
Defendant‘s counsel interviewed Witness No. 16 in July 1996, three months
before trial began, and by his own admission, knew the witness‘s identity at least
two weeks before the witness began testifying. At trial, Palma‘s counsel cross-
examined the witness first, and he extensively exposed to the jury the witness‘s
criminal background and his incentives to help the prosecution. Defendant‘s
counsel followed with his own lengthy cross-examination, which included



(footnote continued from previous page)

it.‖ When trial resumed the following Monday, defendant‘s counsel said nothing
more about the issue.

        By contrast, Palma‘s counsel, after explaining that he had served subpoenas
duces tecum for employment records the previous Friday and that the records
would not be available until the next day, asked the court to delay for one day the
continued examination of Witness No. 16. The court asked Palma‘s counsel to try
to ―work it out‖ with the prosecution if possible, while reiterating: ―I think I said
at the beginning of the trial because you have not been given names, primarily
numbers, if that necessitates a day or so or some lost time I have no problem with
it.‖ ―If you need time, I promised you at the beginning you‘d get it . . . .‖ Shortly
thereafter, the direct examination of Witness No. 16 resumed. When the court
invited Palma‘s counsel to begin cross-examination, Palma‘s counsel requested ―a
moment with‖ the prosecution and, after receiving it, began cross-examination.
After Palma‘s counsel finished, defendant‘s counsel cross-examined the witness
without in any way indicating that he needed more time to prepare.



                                           28
questions about his July interview with the witness and the witness‘s grade-school
association with Creepy.13
       During closing argument, defendant‘s counsel took full advantage of this
cross-examination, hammering hard at the witness‘s credibility. Counsel argued
that the prosecution‘s case against defendant was ―centered around‖ and depended
―on the testimony of one man‖ — Witness No. 16 —who ―smoked PCP‖; who
lied to the grand jury and the police regarding his own involvement in the
murders, ―even after being granted immunity‖; who ―had a purpose‖ and ―his own
agenda‖; who ―told you a story that would . . . separate him . . . from being an
accomplice‖; and who ―took every step in order not to be involved even though he
drove the leader of the pack to the [murder] site.‖ Defendant‘s counsel also
emphasized what he believed were inconsistencies in the witness‘s testimony,
noting that, although he testified he had been to Valdez‘s house, he could not find
it ―when he drove the [sheriff‘s] officers around‖ after the murders.
       Palma‘s counsel likewise attacked Witness No. 16‘s credibility during
closing argument, stressing that the witness was a gang member and ―a PCP


13      During the cross-examination by Palma‘s counsel, the witness testified that
the prosecution had granted him immunity in connection with the murders and
would not prosecute him if he told the truth; that he had been held in jail for
refusing to testify despite the grant of immunity and a judge told him he would
stay in jail until he testified; that a case involving a charge of driving under the
influence would be ―washed out‖ and a pending drug charge would not be
prosecuted if he testified; that he would be moved out of the area; that he had lied
when he first spoke with police about the murders and told them he was not
involved; and that he had refused to tell the police the truth ―until after [he was]
granted immunity and [he] had cut [a] deal.‖ During his ensuing cross-
examination, defendant‘s counsel extensively probed inconsistencies in the
witness‘s trial testimony and his prior statements to police and during the July
interview with defendant‘s counsel. Defendant‘s counsel also established that the
witness was a phencyclidine (PCP) user.



                                         29
abuser‖; that ―he was heavily using PCP at the time‖ of the murders; that he lied
the first time he spoke with police about the crimes, saying he did not know
anything about them and ―lie[d] under oath‖ to the grand jury; that he initially
refused to testify before the grand jury even after being ―granted immunity‖; that
during the time he was in jail for refusing to testify before the grand jury, he was
―getting his story together, his version of the truth‖; that, in exchange for his trial
testimony, he got ―out of jail,‖ received ―complete immunity . . . from prosecution
for five murders,‖ got his ―dope‖ and ―drunk driving cases taken care of,‖ and was
―relocated out of the area‖ along with ―his whole family.‖ Summing up, Palma‘s
counsel stated: ―[Witness No. 16‘s] credibility is unbelievable and . . . you should
not rely upon him. When you talk about him and when you discuss his testimony,
you think about his background. . . . You talk about his lies, you talk about his
motives for testifying in this case and then see if he‘s believable.‖
       As to Witnesses Nos. 14 and 15, we first question defendant‘s assertion that
these witnesses were ―crucial‖ to the case against him. Neither witness provided
any testimony about defendant. The latter testified about his encounter at the
Maxson Road apartment some nine hours before the murders occurred (2:30 p.m.)
with Maciel and two younger men, one with an El Monte Flores gang tattoo on his
arm. He also testified that Tito had robbed drug dealers associated with the
Border Brothers, a group that sold drugs in the El Monte area and would kill those
who stole their drugs. During closing argument, defendant‘s counsel relied on
this witness to argue that defendant was not involved in the murders and that
members of either the El Monte Flores gang or the Border Brothers committed the
murders. Witness No. 14, a member of the El Monte Flores gang, testified that on
the evening of the murders, Palma said he ―was going to take care of some
business‖ for Maciel, a former El Monte Flores gang member. This testimony
supported defendant‘s alternate theory that the El Monte Flores gang committed

                                           30
the murders. Thus, these witnesses may have been more crucial to defendant‘s
defense than to the prosecution‘s case against him.
      Consistent with his defense, defense counsel made little effort during cross-
examination to impeach Witnesses Nos. 14 and 15. Instead, he focused his efforts
on developing evidence that members of the Border Brothers or the El Monte
Flores gang, rather than Sangra gang members, committed the murders. Palma‘s
counsel, however, thoroughly cross-examined both witnesses at trial, exposing
their criminal backgrounds and their extensive drug use.14 During closing
argument, Palma‘s counsel later attacked Witness No. 14‘s credibility, arguing
that he was ―an admitted liar‖ and ―a dope user‖ who ―admitted to using dope on
at least two occasions on‖ the day of the murders; that he was a ―convicted
kidnapper, a convicted robber, and a convicted dope seller‖ who ―lied to the police
when he was being interviewed the first time‖; and that, as a member of the El
Monte Flores gang, which was a Sangra rival, he had ―an additional motive to
draw a member of Sangra gang into this conspiracy.‖ Palma‘s counsel also
attacked Witness No. 15‘s credibility, arguing: ―I am not sure there is anything


14      During cross-examination, Witness No. 14 testified that he was presently in
custody for kidnapping and robbery; that he had a 1993 felony conviction for drug
sales; that Dido and Tito had sold drugs for him at one time; that he used heroin
twice on the day of the murders; and that he told Hooker he was involved in
selling drugs with a Mexican Mafia member. Witness No. 15 testified on cross-
examination that the night before the murders, he stole several items; that on the
day of the murders, three separate times he sold some of the stolen items to buy
heroin; that he used heroin four different times on the day of the murders; that he
had spent a substantial part of his adult life in prison; that he currently was in
prison for commercial burglary; that he went to prison in 1972 for ―a couple of‖
burglaries, in 1986 for robbery while using a buck knife, and in 1993 for petty
theft; and that he had been ―in and out of the county system‖ from 1980 to 1986.
Palma‘s counsel also explored inconsistencies between Witness No. 15‘s trial
testimony and his prior statements.



                                        31
that you can believe that comes out of that guy‘s mouth. Here is a guy committing
crimes, stealing people‘s property, and going down and selling it for drugs and
seems kind of proud of it the way he testified.‖ Thus, even were Witnesses Nos.
14 and 15 crucial to the case against defendant, the record shows that the court‘s
protective orders did not significantly impair the defense‘s ability to prepare for
and cross-examine these witnesses.15
       Also unpersuasive is defendant‘s assertion that Witness No. 13 was crucial
to the prosecution‘s case against him. Witness No. 13 testified that sometime
before 8:30 or 9 p.m. on April 22, 1995, defendant and Torres arrived together at
Torres‘s house, went into Torres‘s room and began making telephone calls, and
were later joined by other Sangra gang members, including Logan. However,
Torres‘s mother, whose identity was not withheld from defendant, similarly
testified that, beginning about 6:00 p.m. on April 22, 1995, several of Torres‘s
friends, including defendant, arrived at Torres‘s house and went into Torres‘s
room. During closing argument, defendant‘s counsel stated, ―There‘s no doubt
that [Torres‘s mother] was credible.‖ He also stated that both Witness No. 13 and
Torres‘s mother were ―the most credible witnesses so far that have come along.‖
Given that Witness No. 13‘s testimony substantially duplicated that of Torres‘s
mother and that defendant‘s counsel conceded at trial that both witnesses were
credible, his claim that the delayed disclosure of Witness No. 13‘s identity
hampered his defense fails.


15     To the extent defendant now complains in his reply brief that the protective
order, by prohibiting counsel from disclosing the witnesses‘ identities to anyone,
precluded him from further inquiring into the witnesses‘ biases, their reputations
for veracity, and their abilities to perceive, recall and describe the events to which
they testified, defendant could have asked the trial court to amend its order to
permit such disclosure. He did not.



                                          32
       Regarding the ―stranger‖ witnesses, defense counsel conducted little or no
cross-examination. However, these witnesses testified only briefly about their
observations on the day of the murders, and none of them identified defendant,
Palma, or anyone else. In fact, three of them testified they could not identify
anyone they saw that day, and a fourth said he could not describe anyone he saw.
One of the former testified she was ―positive‖ none of the people she saw was in
court. Thus, defendant‘s professed inability to determine whether these witnesses
harbored any bias or prejudice against him or other defendants, whether they had
reason to testify falsely, or where they were when they made their observations,
did little, if anything, negatively to impact his case. On the contrary, although he
now complains about his inability to impeach these witnesses, during closing
argument at trial, he urged the jury to rely on Witnesses Nos. 8 and 9, stressing
their failure to identify him as one of the men who visited the victims‘ residence
the afternoon of April 22 and commenting that no reason existed to doubt their
credibility. Regarding the other ―stranger‖ witnesses, who testified that a Nissan
Maxima pulled up later that night, defendant‘s counsel actually bolstered their
testimony, commenting, ―obviously, that‘s what had to occur.‖16


16      Moreover, defendant errs in asserting that, without address information, he
had ―no way to determine where‖ the two witnesses who were the victims‘
neighbors were when they made their observations. Under the court‘s protective
order, defendant could have requested an interview with these witnesses and asked
them where they were when they made their observations. Judge Czuleger
expressly mentioned this option to defense counsel during the March 29 hearing
on the disclosure issue. To the extent this information would have disclosed their
identities, defendant could have sought permission from the court to obtain this
information, based on his asserted need to test their ability to observe. Similarly,
to the extent defendant now complains in his reply brief that the protective order,
by prohibiting counsel from disclosing the witnesses‘ identities to anyone,
precluded him from interviewing neighbors regarding the witnesses‘ reputation for
                                                           (footnote continued on next page)


                                         33
        Defendant‘s arguments as to why the trial court‘s efforts to protect his
ability to put on a defense were insufficient are unpersuasive. Defendant asserts
that the possibility of a continuance was ―patently inadequate‖ given that the
witnesses‘ identities were not disclosed until immediately before their testimony
and the court indicated it would consider delaying cross-examination only for ―10
or 15 or 20 minutes.‖ However, as explained above, defendant is incorrect in
asserting that the witnesses‘ identities were not disclosed until the moment they
took the stand. Moreover, as the People assert, the record indicates that the court
made its comment about delaying cross-examination for 10, 15, or 20 minutes in
the context of discussing its order precluding defense counsel from disclosing the
order of witnesses to their clients, not with respect to the disclosure of the
witnesses‘ identities to defense counsel. With regard to the disclosure of the
witnesses‘ identities, as explained above, in September 1996, the court gave
defense counsel its ―word‖ that it would grant ―a mid trial continuance‖ if counsel
showed they needed to investigate the witnesses after disclosure of their identities,
and on October 16, 1996, just five days before trial began, it again told defense
counsel: ―[W]hen one of these witnesses takes the stand . . . you will have the
right before you begin cross examination if you can give a good cause reason for
delaying cross examination because you didn‘t know who the person was, I will
give it to you. In other words, I am not about to let you or make you start to cross
examine until you are fully prepared.‖17 Given this record and defendant‘s failure


(footnote continued from previous page)

veracity, defendant could have asked the trial court to amend its order to permit
such disclosure.
17     Even as to disclosure of the order of witnesses, defendant‘s view of the
court‘s position is overly restrictive. At the same time it indicated its
                                                            (footnote continued on next page)


                                          34
to test the court‘s sincerity by requesting a continuance, it is defendant‘s argument,
not the court‘s promise of a continuance, that is ―patently inadequate.‖ Having
declined to seek a continuance, defendant is in no position to argue he ―had too
little time to conduct an adequate investigation.‖
        For several reasons, defendant also errs in arguing that, by ―prohibit[ing]‖
his counsel ―from discussing any matter with [him] that might disclose the identity
of a [protected] witnesses,‖ the court‘s order ―[i]nevitably . . . undermined‖ his
―confidence in his counsel,‖ thus ―fundamentally interfer[ing] with the attorney-
client relationship.‖ First, the court‘s order was not as restrictive as defendant
asserts. As explained above, the order permitted defendant‘s counsel to review
with defendant police reports, court transcripts, and grand jury transcripts,
redacted to protect identifying information. It also provided that, upon
discovering the identities of Witnesses Nos. 14, 15, and 16 — who were three of
the four witnesses defendant now asserts were ―crucial‖ — defendant‘s counsel
could disclose that information to defendant ―if such disclosure [was] necessary to
adequately represent‖ him. Even as to the remaining witnesses — the ―stranger‖
witnesses and Witness No. 13 — the order did not forever bar counsel, upon
discovering a witness‘s identity, from disclosing that information to defendant; it
simply required that counsel obtain a ―court order‖ authorizing disclosure. Thus,
the order only minimally inhibited communication between defendant and his



(footnote continued from previous page)

unwillingness to delay cross-examination ―a couple of days‖ based on the
defendants‘ lack of knowledge of the order of witnesses, it stated it would delay
cross-examination ―a reasonable amount of time‖ and explained: ―I suppose what
is reasonable would depend on the circumstances. You‘re not going to find me . . .
to be trying to rush this case along because . . . it‘s moving along quite quickly.‖



                                          35
counsel. Second, to the extent the order prevented information sharing, it should
not have undermined defendant‘s confidence in counsel. Counsel could simply
have explained that the court‘s order precluded him from sharing certain
information with defendant. Though defendant might have been unhappy with the
order, he would have had no basis for losing confidence in counsel as a result of
the court-ordered nondisclosure.
       Defendant next errs in asserting that pretrial nondisclosure prevented him
from developing and pursuing a viable defense theory — that the murders were
carried out not by Sangra gang members, but by members of the El Monte Flores
gang. The only way in which defendant asserts that pretrial nondisclosure
hampered development of this theory was by ―effectively prevent[ing]‖ him from
establishing that Witnesses Nos. 14 and 15 ―were trying to falsely implicate
members of the rival Sangra gang‖ and/or ―were trying to protect fellow members
of El Monte Flores (perhaps out of a sense of gang loyalty or fear of retribution).‖
However, Witness No. 15, who was or had been an El Monte Flores gang member,
actually supported this defense theory by testifying at trial that Maciel and the two
men who visited Moreno on the afternoon of April 22 were probably from El
Monte and that one of the men had ―E.M.F.‖ tattooed on his arm, indicating the El
Monte Flores gang. Nor in his trial testimony did he implicate defendant, Palma,
or anyone else in the Sangra gang. Notably, during closing argument, defendant‘s
counsel relied heavily on Witness No. 15, stressing that the witness had not
identified defendant or Palma, had not otherwise indicated that anyone from
Sangra was involved, and had noticed that one of the visitors that afternoon was
from the El Monte Flores gang.18 After recounting Witness No. 15‘s testimony,

18     During his closing argument, Palma‘s counsel also relied on Witness No.
15‘s testimony to argue that the El Monte Flores gang committed the murders.



                                         36
defendant‘s counsel told the jury, ―so there‘s no indication yet during the build-up
of this conspiracy as alleged by the People that Sangra was even involved in this
matter.‖ Consistent with this argument, but contrary to defendant‘s current
assertion, during closing argument defendant‘s counsel explained to jurors why
they should find Witness No. 15 credible, stating: ―You just can‘t help but like a
gentleman . . . [who has] spent most of his time in prison who has lost a niece,
nephew, and a brother. He had no grudge. . . . He‘s been involved in the system
enough to know that you can‘t lie yourself out of the system anymore. You can‘t
lie when you were on the stand.‖ Witness No. 14 also supported defendant‘s
theory, by identifying Maciel as a member of the El Monte Flores gang and
testifying that, on the evening of April 22, Palma said he was going to ―take care
of some business‖ for Maciel. The witness did not identify Palma as a member of
the Sangra gang, and he testified that he was in no way identifying defendant.
Indeed, during closing argument, defendant‘s counsel relied on Witness No. 14,
stressing that the witness had not identified defendant and stating that the witness
was credible because he ―ha[d] nothing to beef about.‖ Thus, defendant fails to
show any way in which pretrial nondisclosure hampered development of his
theory that members of the El Monte Flores gang committed the murders.19
       Finally, defendant errs in asserting that we must reverse because the trial
court, in March 1996, ordered that the addresses of the ―stranger‖ witnesses and of
Witness No. 13 be ―permanently‖ undisclosed. As already explained, that
information was ―inconsequential to the defendant‘s right to a fair trial under the



19    Again, had further disclosure been necessary to develop this defense,
defendant could simply have sought amendment of the protective order, in
accordance with the trial court‘s invitation. He did not.



                                         37
facts presented. [Citations.]‖20 (Alvarado, supra, 23 Cal.4th at p. 1142.) For all
of these reasons, defendant‘s constitutional claim fails. (See People v. Lopez
(1963) 60 Cal.2d 223, 246-247 [protective order authorizing prosecution to
withhold identities of witnesses until 24 hours before they testified did not deprive
the defendant of a fair trial].)

            3. Alleged Violation of Work Product Protection
       Defendant asserts the trial court, by ―requir[ing]‖ his counsel to interview
the protected witnesses ―in the presence of the prosecutor‖ and authorizing any
party to memorialize the interviews, violated his counsel‘s work product privilege.
According to defendant, ―[t]he questions defense counsel . . . asked of prospective
prosecution witnesses necessarily revealed the very substance of the attorney‘s
strategies with respect to the witnesses, which information is protected under the
constitutionally mandated work product privilege of a criminal defense attorney.‖
At trial, defendant asserts, the prosecution ―used the fruits of‖ this work product
violation ―to bolster the testimony of [its] witnesses,‖ ―to deter impeachment by
the defense,‖ and ―to falsely insinuate that the defense had been afforded a fair and
independent opportunity to investigate the case.‖ Defendant insists that this use
by the prosecution of defense counsel‘s interviews prejudiced his case and
requires reversal.
       For several reasons, defendant‘s argument fails. Procedurally, defendant
forfeited it by failing to raise it in the trial court. In his briefs, defendant cites
nothing in the record indicating that his counsel (or any codefendant‘s counsel)

20     Moreover, during the prosecution‘s direct examination at trial, Witnesses
Nos. 8 and 9, who were neighbors of the victims, gave their addresses on the date
of the murders. Referring to a diagram, the witnesses explained precisely where
they were when they made their observations and the locations of the people and
vehicles they observed.



                                            38
objected that the prosecution‘s attendance at defense counsel‘s interviews violated
counsel‘s work product privilege, and our own search of the record reveals no
such objection. Nor did defendant‘s counsel object at trial when, during his
examination of some of the witnesses, the prosecution mentioned defense
counsel‘s interviews. Under the circumstances, defendant may not now assert a
violation of his counsel‘s work product privilege as a ground for reversal. (See
People v. Zamudio (2008) 43 Cal.4th 327, 354; People v. Combs (2004) 34 Cal.4th
821, 862.)
       On the merits, defendant‘s argument fails for one simple reason: the trial
court did not, as defendant asserts, mandate the prosecution‘s attendance at the
interviews. Rather, as explained above, the trial court ruled that the prosecution
could attend a particular interview if the witness requested the prosecution’s
attendance. As defendant concedes, although a criminal defendant may ask
witnesses to give interviews, witnesses have no legal obligation to grant that
request; they may decline to speak with a defendant. (Reid v. Superior Court
(1997) 55 Cal.App.4th 1326, 1337, fn. 4; People v. Pitts (1990) 223 Cal.App.3d
606, 872; Walker v. Superior Court (1957) 155 Cal.App.2d 134, 139-140.) It
therefore follows that a witness, short of declining a request altogether, may instead
place conditions on the interview, such as insisting on the prosecution‘s attendance.
The trial court‘s order did no more than recognize this power. It was not, as
defendant erroneously asserts, ―tantamount to advice not to speak to the defense, or
at least to request the presence of the prosecutor or an investigator.‖ Thus, to the
extent the prosecution, at the witnesses‘ request, attended interviews conducted by
defense counsel, there was no violation of the work product privilege.21

21   The record does not contain the interviews in question or otherwise indicate
how many of the protected witnesses defendant‘s counsel interviewed.



                                         39
       Finally, even were defendant able to assert and establish a violation of
counsel‘s privilege, reversal would be unwarranted. As noted above, the only
prejudice defendant alleges is that the prosecution ―used the fruits of‖ this asserted
violation ―to bolster the testimony of‖ Witnesses Nos. 14 and 16, ―to deter‖ his
impeachment of these witnesses, and ―to falsely insinuate‖ that he had had ―a fair
and independent opportunity to investigate the case.‖ This was accomplished,
defendant argues, by eliciting testimony from the witnesses that defense counsel
had interviewed them before trial and that their trial testimony was consistent with
their statements during the earlier interviews with defense counsel. However, as
explained above, during closing argument, defendant‘s counsel relied on Witness
No. 14, stressing that he had not identified defendant and stating that the witness
was credible because he ―ha[d] nothing to beef about.‖ As also explained above,
at trial, defendant‘s counsel and counsel for Palma thoroughly attacked Witness
No. 16‘s credibility, stressing that he was a drug user and gang member, that he
had lied to police, and that he had several motives for testifying in the
prosecution‘s favor. Thus, the record shows that any work product privilege
violation was harmless and would not entitle defendant to reversal.22 (See People
v. Coddington (2000) 23 Cal.4th 529, 606; People v. Collie (1981) 30 Cal.3d 43,
60-61.)

               4. Alleged Nonreciprocal Discovery
       Defendant argues the trial court‘s protective order impermissibly provided
the prosecution with nonreciprocal discovery benefits. He first asserts that, by

22     Given this conclusion, we need not determine whether, as defendant
asserts, the prosecution‘s access to his counsel‘s interviews implicated the work
product privilege because counsel‘s questions to the witnesses ―necessarily
revealed the very substance of the [his] strategies.‖ (See Coito v. Superior Court
(2012) 54 Cal.4th 480.)



                                          40
authorizing the prosecution to attend, record and transcribe his counsel‘s
interviews with the prosecution‘s witnesses (ante, at p. 14), the trial court
―effectively required‖ him to provide the prosecution with discovery to which it
would not ordinarily be entitled under the reciprocal discovery statutes, i.e.,
―statements [the defense] obtained from prosecution witnesses that it [might] use
to refute the prosecution‘s case during cross-examination.‖ Defendant then asserts
that, by granting this discovery to the prosecution ―but not providing [him] with a
reciprocal right, the trial court upset the ‗balance of forces between the accused
and [the] accuser,‘ in violation of [his] right to due process under the Fourteenth
Amendment.‖
       For several reasons, defendant‘s argument fails. Initially, defendant‘s
argument again overlooks the fact that, under the trial court‘s order, the
prosecution could attend defendant‘s interview of a protected witness only if the
witness requested the prosecution‘s attendance. Because, as explained above, the
witnesses had a right, independent of the court‘s order, to refuse to talk with
defendant unless the prosecution was present, the trial court‘s order did not
―effectively require[]‖ defendant to disclose statements he obtained from the
prosecution‘s witnesses.
       Moreover, even were defendant correct regarding the effect of the court‘s
order, reversal would not be required. As defendant asserts, the due process
clause, though having ―little to say about the amount of discovery‖ to which a
criminal defendant is entitled, ― ‗does speak to the balance of forces between the
accused and his accuser.‘ [Citation.]‖ (Izzazaga v. Superior Court (1991) 54
Cal.3d 356, 372-373.) However, as we have explained, because the concern of the
due process clause is ―the right of a defendant to a fair trial,‖ the focus of the
reciprocity inquiry under the due process clause is whether any lack of reciprocity
―interferes with the defendant‘s ability to secure a fair trial.‘ [Citation.]‖ (People

                                           41
v. Hansel (1992) 1 Cal.4th 1211, 1221, quoting Wardius v. Oregon (1973) 412
U.S. 470, 474, fn. 6.) Thus, ―mere repetition of the word ‗reciprocity‘ is not
enough to show that [a defendant‘s] right to a fair hearing [has been] violated.‖
(Hansel, supra, at p. 1221.) The inquiry is not whether ―the procedures available
to the defendant . . . precisely mirror[ed] those available to the prosecution,‖ but
whether the defendant received ―a full and fair opportunity to present‖ a defense
and whether the rules at issue ―tilt[ed] the balance toward the state to any
significant degree.‖ (Id. at p. 1222.) To the extent, if any, that the order resulted
in a lack of reciprocity, it did not compromise defendant‘s ability to present his
defense or tilt the balance toward the state to any significant degree. As explained
above, the court allowed defendant to interview the protected witnesses. Nothing
prevented him from asking the witnesses during those interviews what they had
told the prosecution. Moreover, for reasons already set forth, the nondisclosure of
the witnesses‘ identities did not, as defendant asserts, ―preclude[]‖ him ―from
investigating critical avenues of investigation.‖ Finally, to the extent there was
any nonreciprocity, the prosecution made ―a strong showing of state interests‖ to
justify the trial court‘s order. (Wardius, supra, at p. 475.) Defendant‘s
nonreciprocity claim therefore fails.

               5. Lack of Notice and Opportunity to Participate
       Defendant next argues the trial court erred by conducting a series of ex
parte hearings pursuant to section 1054.7 regarding the nondisclosure of the
witnesses‘ identities. According to defendant, nothing in section 1054.7
authorized the court to proceed without providing him notice and an opportunity to
be heard. Moreover, defendant asserts, in so proceeding, the trial court violated
(1) his federal constitutional rights to counsel, to confront witnesses against him,
to due process, and to a reliable penalty determination, and (2) ―his rights under



                                          42
the California Constitution and the California Penal Code.‖ According to
defendant, even if it was necessary to keep him and his counsel from discovering
the witnesses‘ identities, it was not necessary to deprive him of notice and to
exclude him from the hearings, because the hearings could have been conducted in
his presence and the witnesses could simply have been referred to by number
instead of name.
       Initially, it appears defendant has forfeited this issue by failing to object
and obtain a ruling in the trial court. The first ex parte hearing took place before
Judge Bascue on September 29, 1995. Although the record reflects that Logan,
Palma, and Torres, and their counsel received advanced notice of this hearing,23
defendant did not. In fact, he could not have received notice because, as of the
hearing date, he was not yet in custody, had not been arraigned, and did not have
counsel.24 However, a few days later, on October 3, 1995, the court appointed
counsel for defendant and the prosecution informed defendant‘s counsel of Judge
Bascue‘s in camera hearing and the resulting redaction order. Defendant‘s
counsel‘s sole response was to request a copy of the redacted transcript; he did not
object to the ex parte nature of Judge Bascue‘s hearing or the lack of notice.
       Indeed, as far as the record discloses, during the many subsequent hearings
at which Judge Bascue‘s redaction order was discussed, defendant‘s only mention
of any objection that Judge Bascue had proceeded ex parte occurred during a trial-
setting conference before Judge Dukes on January 30, 1996. During that


23     These defendants and their counsel were present in court on September 28,
1995, when the prosecution explained that the next day, Judge Bascue would be
deciding whether to redact the names of certain witnesses from the grand jury
transcripts.
24     Counsel was appointed on October 3, 1995. Defendant was arraigned on
October 26, 1995.



                                          43
conference, the prosecution informed Judge Dukes of ―sealed motions‖ Judge
Bascue had recently heard and decided regarding redaction of witness names from
transcripts of the December 1995 grand jury proceedings involving Maciel and
Ortiz. Logan‘s counsel, after explaining that he had received ―another set of
redacted statements,‖ ―object[ed] to any proceedings that are done in front of
Judge Bascue as being ex parte motions.‖ Defendant‘s counsel joined this
objection. Judge Dukes declined to rule on the objection, explaining that Judge
Czuleger would be taking over the case and that counsel could make their
objections ―at that time.‖
       When the parties first appeared before Judge Czuleger a week later,
defendant did not renew his objections to Judge Bascue‘s order or ask Judge
Czuleger to rule on its validity. Instead, after Judge Czuleger announced that the
prosecution would have ―to make . . . a new showing‖ on the issue, defendant‘s
counsel, in the course of requesting notice of and an opportunity to be present for
any new hearing, merely mentioned in passing that Judge Bascue had proceeded
ex parte. Nor did defendant or his counsel raise these objections to Judge
Bascue‘s order at any other time. Because defendant failed to pursue and obtain a
ruling on these objections, he may not raise them on appeal.25 (See People v.


25      Another pretrial ex parte hearing may have taken place before Judge
Bascue in October 1995. In several discovery-related filings, the prosecution
stated that, on October 19, 1995, it had ―moved in camera‖ to supplement Judge
Bascue‘s September 29 order. The record contains an order dated October 19,
1995, regarding nondisclosure of the witnesses‘ identities, but the order does not
mention the holding of a hearing. The terms of the order are consistent with the
ruling Judge Bascue announced orally on September 29. The record does not
otherwise contain any transcript, filing, or minute order directly related to a
hearing on October 19. Moreover, accompanying one of the prosecution‘s
discovery-related filings was a declaration from the prosecutor stating that, on
October 19, 1995, Judge Bascue issued ―supplemental orders‖ regarding redaction.
                                                          (footnote continued on next page)


                                         44
Ramirez (2006) 39 Cal.4th 398, 450 [defendant forfeited issue by failing, despite
court‘s invitation to resolve it at a later hearing, to press for a ruling]; People v.
Danielson (1992) 3 Cal.4th 691, 729 [defendant forfeited issue by failing to renew
or request a ruling on his earlier objection].)
        Another ex parte hearing took place on November 7, 1995, before Judge
Dukes. Defendant received advanced notice of this hearing in several ways. First,
on November 1, the prosecution filed and served on defense counsel a notice that,
on November 7, it would ask the court to hold an ―in camera hearing‖ to determine
whether to extend Judge Bascue‘s redaction orders. Second, at the scheduled
November 7 hearing, with defense counsel present, Judge Dukes began by noting
the prosecution‘s request and the prosecution responded that it was prepared to
proceed with the in camera hearing that day. Judge Dukes then invited comment
on whether section 1054.7 allowed an in camera hearing. The only response of
defendant‘s counsel was to request that the prosecution give the court a list of its
likely witnesses and that the court not impose discovery restrictions that prevented
the defense from preparing its case. Neither defendant‘s counsel nor any other
defense counsel objected that the hearing should not be held ex parte or that they
received insufficient notice of the hearing.
        After hearing from defense counsel, Judge Dukes announced that court was
―in recess‖ and held a relatively brief in camera hearing without defense counsel.
Judge Dukes then reconvened proceedings in open court with defendants and their


(footnote continued from previous page)

The declaration did not indicate that there was an in camera or ex parte hearing on
that date. In any event, the forfeiture analysis that applies to Judge Bascue‘s
September 29 order applies equally to any order resulting from a hearing on
October 19.



                                           45
counsel present. He began by announcing that, based on an ―in camera‖ hearing
he had ―conducted . . . pursuant to [section] 1054.7,‖ he was ordering continued
redaction of the witnesses‘ identities. He then had a series of exchanges with
defense counsel regarding the terms of his order and their objections to it. None of
the objections related to defense counsel‘s exclusion from the in camera hearing or
a lack of notice.26 After responding to the objections, Judge Dukes invited
defense counsel to invoke ―the writ process‖ should they disagree with his order.
No writ petition was ever filed. Having received advanced notice of the ex parte
hearing, and having failed to object either before or after the hearing, defendant
may not now claim that Judge Dukes prejudicially erred in holding an ex parte
hearing. (People v. Carasi (2008) 44 Cal.4th 1263, 1316 (Carasi); People v.
Jennings (1991) 53 Cal.3d 334, 383.)
       Another ex parte hearing occurred on March 18, 1996, before Judge
Czuleger. Again, defendant had ample advanced notice of this hearing. On
February 7, Judge Czuleger announced in open court, with defendant‘s counsel
present, that he would require the prosecution to make a new showing as to the
need for nondisclosure. Defendant‘s counsel responded: ―[I]f [the prosecution]
has a new hearing, de novo, can defense counsel be notified, and then all be
present and the court makes a decision. At least defense counsel should be
present? [¶] The last time we went before the grand jury, as well as before Judge

26     Logan‘s counsel first stated that he ―disagree[d]‖ with the court‘s ruling,
and asserted that defense counsel were ―entitled to have names and addresses.‖
Palma‘s counsel then objected that the order was ―overly restrictive,‖
―unnecesar[ily] burdensome,‖ and ―interfere[d] with the [defense‘s] ability to
conduct its investigations.‖ Defendant‘s counsel then stated that he ―join[ed] in‖
these objections and added that ―interviewing witnesses from a conventional box
where you open the curtain‖ was ―onerous.‖ Torres‘s counsel then objected that
the order interfered with Torres‘s right to confront and cross-examine witnesses.



                                         46
Bascue, these are all done in camera. These are all done ex parte. And I think
now that we have all seen the transcript, I think we have a right to at least be here
and the court make a decision why we should not be here. If our clients need to be
excluded, that‘s fine.‖ Judge Czuleger replied: ―What I was going to do is set it
down for pretrial conference in a few weeks from now and at that time pretrial
conference, set it for the in camera hearing, and hopefully I will have a better idea
where everything is. My suggestion is the first week of March.‖ After hearing
from counsel regarding proposed dates, Judge Czuleger scheduled a pretrial
conference for March 6.
       On March 6, 1996, Judge Czuleger began the pretrial conference by talking
about possible hearing dates for a discovery motion that Logan had filed and for a
motion members of the media had filed to inspect grand jury records. After Judge
Czuleger indicated that March 22 was an option, the prosecution stated: ―[W]hat
we are discussing for motions at that point is between now and that date we would
have the in camera hearing. . . . There are two other in camera proceedings I want
you to review and my understanding is that on that date what we would basically
be ruling on is your decision regarding the redaction and so forth.‖ Following a
discussion with the prosecution, Judge Czuleger scheduled an in camera hearing
for March 18 and a follow-up hearing with all counsel for March 22. At the end of
the pretrial hearing, Ortiz‘s counsel stated: ―I take it you will not be asking us to
appear on the 18th for the in camera?‖ The court replied: ―No. . . . It will be in
camera.‖ Defendant‘s counsel did not object when the court scheduled the in
camera hearing and announced that defense counsel could not attend.
       As scheduled, Judge Czuleger held the in camera hearing on March 18. On
March 29, he then took up the matter before the prosecution and all defense




                                          47
counsel.27 He began by explaining that he had held ―an in camera hearing‖ on
March 18 and that, based on the testimony he had heard during that hearing, he
intended to order nondisclosure of the witnesses‘ identities. He later explained
that, in making his ruling, he had not considered anything that had happened
during the in camera hearings before Judge Bascue and Judge Dukes. Finally, he
offered defense counsel an opportunity to respond. Although raising various
objections, neither defendant‘s counsel nor any other defense counsel objected that
they had received insufficient notice or that Judge Czuleger had erred in
proceeding ex parte.28
       On this record, it appears that defendant forfeited his right to complain on
appeal that Judge Czuleger erred in proceeding ex parte or that he received
inadequate notice. Although defendant‘s counsel at one point asked for notice and
an opportunity to attend the hearing, he did not renew his request or lodge an
objection when the court, without addressing the issue and in counsel‘s presence,
first scheduled an ex parte hearing and later announced it had held an ex parte
hearing, gave its ruling, and invited defense counsel to comment. Moreover, at no
point did defendant‘s counsel identify any basis for objecting to ex parte


27      Judge Czuleger had earlier rescheduled the March 22 hearing for March 29.
28      Logan‘s counsel complained that the order would prevent him from
discussing discovered information with his client. Maciel‘s counsel complained
that the order would prevent him from asking the ―stranger‖ witnesses where they
were when they made their alleged observations and that certain pages of the
grand jury transcript had been removed entirely. Ortiz‘s counsel objected to the
provision in the order that allowed the prosecution to be present during witness
interviews by defense counsel. Palma‘s counsel objected ―to any limitation on
discovery‖ and complained that the order interfered with the attorney-client
relationship insofar as it limited counsel‘s ability to discuss the case with his
client. Defendant‘s counsel joined in this objection, but otherwise said nothing
about Judge Czuleger‘s proposed order.



                                         48
proceedings. Given these circumstances, it is doubtful that defendant should be
allowed to complain about an alleged lack of notice and an opportunity to be
heard.
         In any event, even had defendant preserved the issue for appeal, reversal
would be unwarranted. As defendant asserts, we have held that ex parte
proceedings generally are ―disfavored‖ because they typically result in ― ‗a
shortage of factual and legal contentions. Not only are facts and law from the
defendant lacking, but the moving party‘s own presentation is often abbreviated
because no challenge from the defendant is anticipated at this point in the
proceeding. The deficiency is frequently crucial, as reasonably adequate factual
and legal contentions from diverse perspectives can be essential to the court‘s
initial decision . . . .‘ [Citation.]‖ (People v. Ayala (2000) 24 Cal.4th 243, 262
(Ayala).) Although ex parte proceedings are permissible if ―compelling reasons
justify them‖ (id. at p. 263), defendant may be correct that, at a minimum, the trial
court could have addressed the prosecution‘s concern for the witnesses‘ safety by
identifying the witnesses by number instead of by name – as they were identified
in the redacted grand jury transcripts – and allowing defense counsel to attend.
         However, contrary to defendant‘s assertion, even where a court errs in
proceeding ex parte, the error is not reversible per se. For example, in Ayala,
where the defendant asserted that the prosecution had impermissibly excused
prospective jurors on the basis of race or ethnicity, we held that, although the trial
court had erred in allowing the prosecution to state its reasons for excusing the
jurors ex parte and outside the defendant‘s presence, the error was harmless under
the standards for judging both state law errors (reasonable likelihood of a more
favorable outcome) and errors under the federal Constitution (harmless beyond a
reasonable doubt). (Ayala, supra, 24 Cal.4th at pp. 259, 264.) Such error, we
explained, ―whether or not of federal constitutional dimension,‖ ―is not structural;

                                          49
it is an error in the conduct of the trial that requires us to consider the record. In
other words, the error does not fall within the category of those that the law
recognizes as reversible per se, i.e., ‗affecting the framework within which the trial
proceeds, rather than simply an error in the trial process itself,‘ ‗ ―transcend[ing]
the criminal process‖ ‘ and ‗defy[ing] analysis by ―harmless-error‖ standards.‘
[Citation.]‖ (Id. at p. 266 fn. 3.) After reviewing the record of the ex parte
proceedings, we concluded in Ayala that the prosecution had not excused the
jurors for constitutionally impermissible reasons. (Id. at p. 266.) In reaching this
conclusion, we rejected the defendant‘s argument that the error was prejudicial
because ―his lack of opportunity to rebut the prosecution‘s justifications for the
challenges resulted in an incomplete record.‖ (Id. at p. 267.) We reasoned that,
although a defendant‘s participation in such a hearing might ―in the abstract‖ make
a difference in the ultimate ruling, the record in the case showed that ―defense
counsel could not have argued anything substantial that would have changed the
court‘s rulings. Accordingly, the error was harmless.‖ (Id. at p. 268.)
       Here, too, the record shows that any error in proceeding ex parte was
harmless, whether we apply the test for state law error or for error under the
federal Constitution. At the first pretrial ex parte hearing on September 29, 1995,
before Judge Bascue, a homicide investigator from the Los Angeles County
Sheriff‘s Department testified, among other things, that: (1) the investigation had
shown that Sangra gang members had committed one or more of the murders at
the Mexican Mafia‘s behest; (2) both the Sangra gang and the Mexican Mafia
have a code against testifying and, to enforce that code, have been willing to kill
or harm people who might cooperate with police; (3) both defendant and one of
the Mexican Mafia members who ordered the hit were at large; (4) Sangra gang
members had told the investigator they would kill anyone who testified in the
case; (5) before acting against a witness, gang members look for validation, i.e.,

                                           50
official paperwork, such as a police report or transcript, that documents a person‘s
name with a statement the person has made to authorities or in court; and (6) were
the identities of the witnesses‘ in question and their grand jury testimony to
become known, the witnesses‘ lives would be in danger because Sangra gang
members would try to prevent them from testifying.
       At the ex parte hearing before Judge Dukes on November 7, 1995, two law
enforcement officers from the Los Angeles County Sheriff‘s Department gave
similar testimony. One, a detective with the homicide division who had
investigated the murder scene, testified that: (1) the Mexican Mafia had used the
Sangra gang to carry out one or more of the killings; (2) an involved member of
the Mexican Mafia was still at large; (3) Witness No. 13 had come forward with
information and said she was fearful for the safety of herself and her family; (4)
during a search of Ortiz‘s house conducted while Ortiz was only an uncharged
suspect and still at large, police had found a transcript of testimony that a
protected witness had given during a preliminary hearing in an unrelated murder
case against three Sangra gang members and a letter from one of the defendants in
that case referencing the fact that the witness was testifying against the Sangra
gang members; (5) police had information that witnesses in other cases against
either Sangra or Mexican Mafia members had been killed, one about a week
before he was to return to court and another shortly after being identified through
court records; and (6) almost everyone the detective had spoken with regarding
defendant‘s case had indicated they were fearful for their own safety and for the
safety of their families as a result of talking to police. The other witness, who was
a member of a task force investigating the Mexican Mafia, testified that: (1) based
on debriefing of several Mexican Mafia associates, authorities had stopped 40
contract murders ordered by the Mexican Mafia, many for people referred to as
snitches or informants; (2) an involved member of the Mexican Mafia was still at

                                          51
large; (3) if the Mexican Mafia had ordered one of the killings, any witness
associated with the case was in imminent danger of being hit by the Mexican
Mafia to prevent their testimony; (4) if bystander witnesses names became known
to the general gang community, their lives ―wouldn‘t be worth a nickel‖ and,
―without question,‖ they would be in danger; and (5) redaction of a witness‘s
name will ―enhance[]‖ the witness‘s ―ability to stay alive‖ even if it can be
determined from the testimony who the witness is, because redaction will hamper
the Mexican Mafia in proving the witness testified.
       At the ex parte hearing on March 18, 1996, before Judge Czuleger, the
homicide investigator who testified at the ex parte hearing before Judge Bascue
largely repeated his earlier testimony.29 He added that, based on what he had
learned while investigating this case – including the murder of an individual who
had testified against the Sangra gang; the recent murder of Angel Carranza, which
police had been told ―may in fact [have been] because of his involvement in this
case; and the violence that the Sangra street gang is reputed to have and has
proven to have in several cases‖ – the lives of the witnesses in question and those
of their family members would be in ―grave danger‖ were the witnesses‘ identities
to become known. Judge Czuleger heard from two other witnesses at the March
18 hearing: (1) a second homicide investigator from the Los Angeles County
Sheriff‘s Department, who testified that an informant had told him Carranza had
been murdered because he was considered a ―rat‖ and because of his knowledge
and information about the case; and (2) a sergeant with the Los Angeles County
Sheriff‘s Department assigned to investigate prison gangs, who testified that the
Mexican Mafia had sponsored the murders in this case and that the lives of the

29    The investigator did not repeat his earlier testimony that defendant and a
Mexican Mafia member who ordered the hit were still at large.



                                         52
witnesses in the case would be in danger were their identities to become known
because the Mexican Mafia would use ―any means necessary‖ to prevent them
from testifying, including killing them and/or members of their families.
       It is clear from this record that the testimony each judge heard at the ex
parte hearings amply supported their respective redaction orders. It is also clear
that neither defendant nor his counsel could have argued anything substantial that
would have changed the court‘s rulings. Indeed, even now, despite knowing the
witnesses‘ identities and having access to the transcripts of the ex parte hearings,
defendant suggests no way in which he could have undermined the prosecution‘s
substantial showing or affected the court‘s rulings. Accordingly, even were
defendant correct that the ex parte proceedings constituted error, the error was
harmless under any standard.
       Any alleged error was harmless for another reason: the court‘s ex parte
orders did not hamper defendant‘s ability to conduct a defense. As explained
earlier, despite the discovery limitations, defendant‘s counsel thoroughly cross-
examined those trial witnesses whose creditability was relevant to defendant‘s
defense. As also explained earlier, although the defense conducted little or no
cross-examination of the ―stranger‖ witnesses, because (1) these witnesses
testified only briefly about their observations on the day of the murders, (2) none
of them identified defendant, and (3) one testified that none of the people she saw
was in court, the discovery limitations did little, if anything, to impact defendant‘s
case. Thus, even had the court permitted defendant or his counsel to participate in
the ex parte hearings, and even had that participation resulted in disclosure of the
witnesses‘ identities, the outcome of defendant‘s trial would have been no
different. For these reasons, defendant‘s claim fails.




                                          53
       B. Gang Evidence
       Defendant next argues the trial court prejudicially erred in permitting the
prosecution to rely at trial on certain gang-related evidence. Specifically, he
asserts the trial court erred in admitting the following: (1) one photograph of the
gang tattoos on his back (exhibit No. 57); (2) seven photographs of the gang
tattoos on Palma‘s body (exhibits Nos. 50-56); (3) two photographs of urban gang
graffiti (exhibits Nos. 72, 73); (4) eleven photographs showing various Sangra
gang members, some of whom were brandishing weapons or ―throwing‖ gang
signs (exhibits Nos. 3, 7, 8, 12A (containing four photographs), 58, 78, 79, 93);
and (5) two pieces of paper with the word ―Sangra‖ written in calligraphy, one
bearing the notation ―touch this and you die‖ (exhibits Nos. 60, 92). Defendant
also complains about two exhibits that, though not admitted into evidence, the
prosecution used in examining witnesses at trial: (1) a district attorney‘s notice of
determination that Sangra is a criminal street gang (marked as exhibit No. 71); and
(2) a drawing of a drive-by shooting recovered during a search of Ortiz‘s residence
(marked as exhibit No. 91). Finally, defendant appears to complain that the trial
court permitted the prosecution during opening statement to show to the jury and
discuss a photograph showing other Sangra gang members, on which ―Sangra
gang kills‖ was hand-written at the top and ―187‖ — the Penal Code section for
murder — was hand-written across someone‘s chest. According to defendant,
under Evidence Code sections 352 and 1101, the trial court should have barred the
prosecution from using this evidence at trial. Moreover, defendant asserts, the
prosecution‘s use of this evidence violated his constitutional rights to due process,




                                         54
a fair trial, and a reliable determination of guilt and penalty. For reasons set forth
below, defendant‘s claims fail.30

           1. Evidence Code section 1101
       With certain exceptions not relevant here, Evidence Code section 1101,
subdivision (a), provides that ―evidence of a person‘s character‖ – whether in the
form of an opinion, evidence of reputation, or evidence of specific instances of
conduct – ―is inadmissible when offered to prove [the person‘s] conduct on a
specified occasion.‖ This prohibition, however, does not preclude ―the admission
of evidence that a person committed a crime, civil wrong, or other act when
relevant to prove some fact . . . other than [the person‘s] disposition to commit
such an act,‖ including ―motive, opportunity, intent, preparation, [or] plan.‖
(Evid. Code, § 1101, subd. (b).)


30     Procedurally, the People assert that, by failing to object in the trial court ―to
the majority‖ of the gang-related evidence he now challenges, defendant ―almost
entirely forfeited‖ his right to challenge on appeal the prosecution‘s use of this
evidence. According to the People, the record shows that defendant ―objected
specifically‖ only to the tattoo photographs, a photograph the trial court excluded,
and the graffiti pictures from defendant‘s scrapbook. His ―objection to ‗others‘
was not [sufficiently] specific‖ and, although the court ―particularly warned
counsel to make a more specific objection during trial regarding the photographs,‖
―[c]ounsel never pursued a ruling at trial.‖ In response, defendant insists that his
counsel‘s objections ―encompassed all of the gang-related exhibits‖ in question.

        The record makes it very difficult to assess the prosecution‘s forfeiture
claim. In their arguments to the court about admissibility, the parties referred to
the exhibits only by general description because, despite the court‘s request, the
parties did not mark the exhibits before making their arguments. Given the
ambiguities in the record, we assume defendant preserved his right to raise these
claims and proceed to the merits. (See People v. Champion (1995) 9 Cal.4th 879,
908, fn. 6 [―Because the question whether defendants have preserved their right to
raise this issue on appeal is close and difficult, we assume [they] have preserved
their right, and proceed to the merits.‖].)



                                          55
       Defendant asserts ―the only purported probative value‖ of the gang
evidence he now challenges was to establish that he and Palma were Sangra gang
members and that Sangra ―was a ‗criminal street gang‘ within the meaning of the
[alleged] gang enhancement‖ under section 186.22. However, defendant
continues, neither of these propositions ―was in dispute‖ because both his counsel
and Palma‘s offered to stipulate not only to the defendants‘ Sangra gang
membership, but also ―to the ‗exact language‘ of the gang enhancement
allegation,‖ thus ― ‗reliev[ing] the burden of the people of proving that
allegation.‘ ‖ Accordingly, defendant asserts, the evidence ―had no probative
value as to the critical question of whether [he] had any involvement in the
charged offenses‖ and was offered by the prosecution to convince the jury he
committed the charged crimes based on his ―propensity to commit‖ such crimes.
       Initially, it appears that defendant‘s argument under Evidence Code section
1101 is not cognizable on appeal because he failed to object on this basis at trial.
Evidence Code section 353, subdivision (a), provides that a court may not reverse
a judgment based on error in admitting evidence unless ―an objection to or a
motion to exclude or to strike the evidence . . . was timely made and so stated as to
make clear the specific ground of the objection or motion.‖ ―In accordance with
this statute, we have consistently held that the ‗defendant‘s failure to make a
timely and specific objection‘ on the ground asserted on appeal makes that ground
not cognizable. [Citations.]‖ (People v. Seijas (2005) 36 Cal.4th 291, 302.)
―Although no ‗particular form of objection‖ is required, the objection must ‗fairly
inform the trial court, as well as the party offering the evidence, of the specific
reason or reasons the objecting party believes the evidence should be excluded, so
the party offering the evidence can respond appropriately and the court can make a
fully informed ruling.‘ [Citation.]‖ (People v. Zamudio, supra, 43 Cal.4th at p.
354.) Here, in objecting to the gang-related evidence, defense counsel neither

                                          56
mentioned Evidence Code section 1101 nor asserted that the evidence constituted
inadmissible character evidence. Defense counsel did make various other
objections to some of the evidence in question, including that it was irrelevant,
cumulative, lacking in foundation, or prejudicial. However, these objections were
insufficient to preserve for appeal the claim that the evidence was inadmissible
under Evidence Code section 1101, subdivision (a). (People v. Doolin (2009) 45
Cal.4th 390, 437 [trial objection that evidence ―was irrelevant and unduly
prejudicial under Evidence Code section 352‖ was insufficient to preserve for
appeal claim under Evidence Code section 1101]; People v. Demetrulias (2006) 39
Cal.4th 1, 19-21 [trial objection that evidence was irrelevant, speculative and
lacked foundation was insufficient to preserve for appeal claim under Evidence
Code section 1101]; People v. Guerra (2006) 37 Cal.4th 1067, 1117 [relevance
objection at trial was insufficient to preserve for appeal objection that testimony
was inadmissible character evidence]).
       In any event, defendant‘s claim also fails on the merits. As a general
matter, ―the prosecution may not be compelled to accept a stipulation where the
effect would be to deprive the state‘s case of its persuasiveness and forcefulness.‖
(People v. Streeter (2012) 54 Cal.4th 205, 238.) Here, defendant is simply
incorrect in asserting that ―the only purported probative value‖ of the gang
evidence he now challenges was to establish the gang enhancement. As
previously explained, the prosecution‘s theory was that the Mexican Mafia had
directed the Sangra gang to kill Dido Moreno because he had dropped out of the
Mexican Mafia, and that Sangra gang members – including defendant and Palma –
obeyed that order because of their own gang allegiances. Given this theory,
evidence of defendant‘s and Palma‘s membership in and level of commitment to
Sangra – including their Sangra tattoos and pictures showing them with other
Sangra gang members, evidence of Palma‘s affiliation with and allegiance to the

                                         57
Mexican Mafia – including some of his other tattoos, and evidence showing the
workings and activities of Sangra and the close connections among its members
was relevant to both motive and identity. Thus, putting aside the gang
enhancement, because the gang-related evidence at issue was ―relevant to prove
some fact . . . other than [defendant‘s] disposition to commit‖ crimes (Evid. Code,
§ 1101, subd. (b)), Evidence Code section 1101, subdivision (a), did not preclude
its admission.31 (People v. Williams (1997) 16 Cal.4th 153, 193-194 [gang
evidence admissible to show motive and identity].)
       Moreover, contrary to defendant‘s assertion, the record does not clearly
show that defendant‘s counsel and Palma‘s counsel offered to stipulate ―to the
‗exact language‘ of‖ the entire gang enhancement. As it does now, at the time of
the alleged crimes, section 186.22, subdivision (b)(1), prescribed an enhanced
penalty for ―any person 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.‖
For purposes of this section, a ―criminal street gang‖ is defined as ―any ongoing
organization, association, or group of three or more persons, whether formal or
informal, having as one of its primary activities the commission of one or more of
[specified] criminal acts . . . , having a common name or common identifying sign
or symbol, and whose members individually or collectively engage in or have
engaged in a pattern of criminal gang activity.‖ (§ 186.22, subd. (f).) As used in


31      Defendant‘s offer to stipulate that he was a Sangra gang member did not
render proof of his membership in and commitment to Sangra irrelevant. As part
of his defense at trial, defendant attempted to persuade the jury that, at the time of
the murders, he either had separated himself from Sangra and was no longer active
in the gang or that he was in the process of separating himself from Sangra and
becoming inactive.



                                         58
this definition, a ― ‗pattern of criminal gang activity‘ ‖ meant ―the commission,
attempted commission, or solicitation of two or more of [certain specified]
offenses, provided at least one of those offenses occurred after the effective date of
this chapter and the last of those offenses occurred within three years after a prior
offense, and the offenses are committed on separate occasions, or by two or more
persons[.]‖ (§ 186.22, subd. (e), as amended by Stats. 1994, ch. 451, § 1, p. 2439.)
       As relevant to this issue, the record shows the following: On October 21,
1996, while discussing the gang-related evidence, defendant‘s counsel offered to
stipulate that defendant ―is a Sangra street gang member.‖ Palma‘s counsel then
offered to stipulate that Palma was a Sangra gang member and that Sangra ―is a
violent street gang for the purposes of proving up the allegation.‖ Later, after the
prosecution responded that the offered stipulations did not include everything it
needed to establish regarding the alleged gang enhancement, Palma‘s counsel
indicated his willingness to stipulate that Sangra ―is a street gang pursuant to the
two allegations.‖ Defendant‘s counsel then added: ―I believe that [Palma‘s
counsel] recited the exact allegation in the information and in the complaint that
was filed against the individuals and that‘s what we‘re willing to stipulate to.‖
       Contrary to defendant‘s current assertion, this record does not clearly show
that defendant‘s counsel and Palma‘s offered to stipulate to the ―exact language‖
of the entire alleged gang enhancement. The proposed stipulation that defendant
and Palma were Sangra gang members would have done little, if anything, for the
prosecution; under the operative statutory language, as set forth above, that fact
was neither necessary nor sufficient to establish any element of the gang
enhancement. (See People v. Valdez (1997) 58 Cal.App.4th 494, 505 [―gang
membership is not an element‖ of gang enhancement].) Moreover, although, read
in context, the proposed stipulation of Palma‘s counsel – which defendant‘s
counsel apparently joined – that Sangra was ―a street gang for the purposes of

                                          59
proving up the [gang enhancement] allegation‖ might arguably have established
that Sangra was a ―criminal street gang‖ within the meaning of the enhancement
statute, it would not have established other required elements of the enhancement,
i.e., that defendant and Palma committed the murders (1) ―for the benefit of, at the
direction of, or in association with‖ a criminal street gang, (2) ―with the specific
intent to promote, further, or assist in any criminal conduct by gang members.‖
(§ 186.22(b)(1).) Thus, the record does not support the claim that defendant‘s
counsel and Palma‘s offered to stipulate to the exact language of the alleged
enhancement.
       Nor does defendant persuasively demonstrate otherwise by citing his trial
counsel‘s statement, ―I believe that [Palma‘s counsel] recited the exact allegation
in the information and in the complaint that was filed against the individuals and
that‘s what we‘re willing to stipulate to.‖ As the preceding discussion
demonstrates, Palma‘s counsel neither recited nor offered to stipulate to ―the exact
[gang enhancement] allegation‖; at most, he offered to stipulate to one element –
the ―criminal street gang‖ element – of that allegation. Thus, the prosecution
would still have had to prove that Palma committed the murders ―for the benefit
of, at the direction of, or in association with‖ a criminal street gang ―with the
specific intent to promote, further, or assist in any criminal conduct by gang
members.‖ (§ 186.22(b)(1).) Insofar as defendant now asserts that his counsel‘s
comment was an offer to go further, the comment was too ―ambiguous in form‖
(People v. Szeto (1981) 29 Cal.3d 20, 29) to establish that defendant offered to
stipulate to every element of the alleged enhancement. As noted, the prosecution
did not agree to the proffered stipulation. We therefore reject defendant‘s claim.




                                          60
           2. Evidence Code section 352
       Evidence Code section 352 provides that a court ―in its discretion may
exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b)
create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.‖ We review a trial court‘s ruling under this section for abuse
of discretion and will reverse a trial court‘s exercise of discretion to admit
evidence ―only if ‗the probative value of the [evidence] clearly is outweighed by
their prejudicial effect.‘ [Citations.]‖ (People v. Carey (2007) 41 Cal.4th 109,
128.) ―Prejudice for purposes of Evidence Code section 352 means evidence that
tends to evoke an emotional bias against the defendant with very little effect on
issues, not evidence that is probative of a defendant's guilt.‖ (People v. Crew
(2003) 31 Cal.4th 822, 842.)
       Defendant asserts that, because the prejudicial effect of the gang evidence
he now challenges substantially outweighed its probative value, the trial court
abused its discretion in admitting it. He first contends the evidence‘s ―only
purported probative value‖ was to show that he and Palma were Sangra gang
members and that Sangra was a ―criminal street gang‖ within the meaning of
section 186.22. Given defense counsel‘s proposed stipulations, these propositions
were not in dispute. According to defendant, the evidence ―had no tendency to
prove either motive or intent‖, and only ―slight,‖ ―negligible,‖ or ―no probative
value‖ regarding the ―critical‖ issue that was in dispute: whether he was involved
in the shootings. And, to the extent any of the evidence was relevant to any issue
that was genuinely in dispute, the prosecution could have relied on the other, ―less
inflammatory‖ gang evidence it presented. Regarding prejudice, defendant asserts
there was ―a high degree of danger‖ and ―strong likelihood‖ the evidence would
―mislead,‖ ―confuse,‖ ―inflame,‖ and ―frighten‖ the jurors and lead them to


                                          61
believe that, ―because of his association with the gang,‖ he ―had the propensity to
commit the kind of crimes for which he was on trial.‖ It thus ―shifted the focus
from the properly admitted testimony and turned the trial into what was essentially
an exercise in character assassination and guilt by association,‖ creating the risk
the jurors ―would decide the case based upon inappropriate considerations‖ and
render a guilty verdict simply to ― ‗punish‘ ‖ him for being ― ‗a person of bad
character,‘ ‖ who had committed, and would again commit, other crimes.
       Defendant‘s argument is unpersuasive. As explained in the preceding
section, for several reasons, defense counsel‘s proposed stipulations did not render
the evidence in question irrelevant. Nor did the prosecution‘s purported ability to
establish the disputed matters with the other evidence render the gang evidence
irrelevant. (People v. Scheid (1997) 16 Cal.4th 1, 16 [―it is immaterial for
purposes of determining the relevance of evidence that other evidence may
establish the same point‖].) Relevant photographs ―are admissible even if
repetitive of other evidence, provided their probative value is not substantially
outweighed by their prejudicial effect.‖ (People v. Watson (2008) 43 Cal.4th 652,
684.) As to that proviso, defendant‘s argument regarding the prejudicial effect of
the challenged gang-related evidence fails on the record here, which demonstrates
that the prosecution introduced a raft of other gang-related evidence — mostly in
the form of testimony — that defendant neither objected to at trial nor challenges
on appeal. Given the extensive other evidence of defendant‘s Sangra gang
membership and of Sangra‘s activities, defendant‘s claim that the handful of gang-
related exhibits he now challenges created ―a substantial danger of undue
prejudice‖ within the meaning of Evidence Code section 352 — i.e., the
challenged evidence ― ‗uniquely tend[ed] to evoke an emotional bias against
defendant as an individual‘ ‖ (People v. Bolin (1998) 18 Cal.4th 297, 320, italics
added) — is untenable. Defendant‘s claim under Evidence Code section 352

                                         62
therefore fails. (See People v. Wright (1985) 39 Cal.3d 576, 585 [evidence of
heroin in victim‘s system not unduly prejudicial ―[i]n light of the evidence already
before the jury‖ that victim used heroin]; People v. Mullens (2004) 119
Cal.App.4th 648, 660 [testimony about kissing child ―cannot be viewed as unduly
inflammatory in light of the other evidence of lewd behavior‖].)

                3. Constitutional Claims
       Defendant argues the prosecution‘s use of the challenged gang-related
evidence violated not only his statutory rights, but also his constitutional rights to
due process, a fair trial, and a reliable determination of guilt and penalty. He
failed to assert these constitutional objections at trial. Because there was no
statutory error, his constitutional claims, insofar as they are cognizable on appeal,
fail. (People v. Hawkins (1995) 10 Cal.4th 920, 952.)

       C. Witnesses’ Fear in Testifying
       Defendant argues the trial court prejudicially erred in permitting three
witnesses – Witness No. 13, Witness No. 16, and David Sandate – to testify about
their fear in testifying at trial and about incidents related to that fear. Admission
of this evidence, he asserts, fatally infected the trial with unfairness and violated
his constitutional rights to due process, a fair trial, and a reliable penalty
determination. Moreover, he contends, the prosecution heightened the testimony‘s
prejudicial impact by referring to it during closing argument.
       In making his argument, defendant acknowledges that evidence a witness is
afraid to testify ―may be admissible on the issue of the threatened witness‘s
credibility.‖ As we have explained: ― ‗Evidence that a witness is afraid to testify
or fears retaliation for testifying is relevant to the credibility of that witness and is
therefore admissible.‘ [Citations.] An explanation of the basis for the witness‘s
fear is likewise relevant to the jury‘s assessment of his or her credibility and is



                                           63
well within the discretion of the trial court. [Citation.] For such evidence to be
admissible, there is no requirement to show threats against the witness were made
by the defendant personally or the witness‘s fear of retaliation is ‗directly linked‘
to the defendant. [Citation.]‖ 32 (People v. Guerra, supra, 37 Cal.4th at pp. 1141-
1142 (Guerra).)
       Nevertheless, defendant argues, quoting People v. Yeats (1984) 150
Cal.App.3d 983, 986 (Yeats), such evidence is not admissible unless the
prosecution first ― ‗establish[es] the relevance of the witness‘s state of mind by
demonstrating that the witness‘s [trial] testimony is inconsistent or otherwise
suspect.‘ ‖ According to defendant, because the prosecution failed to make this
required showing as to each of the three witnesses, the evidence was inadmissible.
       Defendant‘s argument fails in light of our recent decision in People v.
Mendoza (2011) 52 Cal.4th 1056, 1086 (Mendoza), which rejected the view that
evidence of a witness‘s fear in testifying is inadmissible unless the witness‘s trial
testimony is inconsistent with a prior statement. As we explained, ―evidence that
a witness testifies despite fear is important to fully evaluating his or her credibility.
[Citation.] The logic of this rationale does not hinge on whether the witness gave
prior inconsistent testimony.‖ (Ibid.) Thus, in order to introduce evidence of the
witnesses‘ fear, the prosecution was not required to show that their testimony was
inconsistent with prior statements or otherwise suspect.33

32      Evidence of efforts to intimidate a witness is also admissible to show a
defendant‘s consciousness of guilt if there is evidence the defendant authorized or
acquiesced in the efforts. (People v. Hannon (1977) 19 Cal.3d 588, 598-600.)
The People do not argue the evidence at issue was admissible on this basis.
33      We disapprove People v. Yeats, supra, 150 Cal.App.3d 983, 986, to the
extent it is inconsistent with this analysis. In announcing its rule, the court in
Yeats relied solely on People v. Brooks (1979) 88 Cal.App.3d 180. (Yeats, supra,
at p. 986.) In Mendoza, we disapproved Brooks, explaining that it ―cited no
                                                             (footnote continued on next page)


                                           64
        In any event, defendant errs in asserting that Witness No. 13‘s trial
testimony gave rise to no credibility issues to which the evidence of her fear was
relevant. In many instances, Witness No. 13 testified she could not remember
details she had earlier given police. Contrary to defendant‘s assertion, she did not,
―in every [such] instance . . . affirm[] her prior statements to investigators and her
preliminary hearing testimony when the prosecut[ion] refreshed her recollection
by reading them to her.‖ At least five times during direct examination, after
testifying she did not recall a prior statement, she added, ―if that‘s what‘s there
then that‘s what I said,‖ or words to that effect. 34 These responses hardly
constitute affirmations of her prior statements. Moreover, at many points during
her testimony, Witness No. 13 answered the prosecution‘s questions, not with a



(footnote continued from previous page)

authority for the proposition that inconsistent testimony is a prerequisite to the
admission of evidence of a third party‘s threat or a witness‘s fear‖ and was
―contrary to decisions of this court that have recognized the relevance of such
evidence when inconsistent testimony was not at issue‖ or recanted. (Mendoza,
supra, 52 Cal.4th at p. 1086.)

34      The quoted statement was Witness No. 13‘s response after testifying that
she did not recall previously stating she saw the words ―Nissan‖ and ―Maxima‖ on
the car at her mother‘s house or that her brother was at the house when Jimmy
came back the second time. After testifying she did not recall previously stating
that her brother had been on the telephone at her mother‘s house and had received
several pages, she similarly added, ―But if it‘s there then that‘s what I said.‖ At
another point, after testifying she did not remember her prior statement that
someone called ―Tricky‖ (i.e., Logan) had arrived at her mother‘s house with two
other people, she added, ―That‘s what‘s there, that‘s what I said, but I don‘t
recall.‖ Finally, after testifying she did not recall previously testifying that she
had seen a gun in her mother‘s house and that her mother, upon discovering the
gun, had asked her brother to leave, Witness No. 13 added, ―If that‘s what I said,
that is what I said.‖



                                          65
simple ―yes‖ or a ―no,‖ but with a decidedly equivocal, ―I believe so‖ or ―I
guess.‖35
       Based on these answers, when defendant‘s counsel argued at trial that
Witness No. 13 had affirmed her prior testimony — and that the court therefore
should not permit the prosecution to play for the jury a tape of her prior
statements — the trial court responded: ―[W]e must have listened to two different
trials because it is like pulling teeth from her and I don‘t blame her. I can
understand — I can‘t, really understand the terror she‘s probably living. . . . So
many times when — I mean, ‗I don‘t remember‘ or ‗I don‘t know‘ that must have
been her testimony 40 or 50 times in answer to questions. And then when [the
prosecution] would go to the transcript of something, more often than not, the
answer is, ‗well, if it‘s there, I guess it‘s true.‘ And it was — I mean, if it is
testimony left as it is it would be fertile fields for the [defense counsel] to plow in
argument. I mean, it‘s — she never really, rarely acknowledged that, in fact, she
had said something and it was almost all of her testimony. It was very little of the
testimony that, you know, was straightforward answer. And I don‘t — you know,
I don‘t know whether she‘s so frightened that she trying to be deliberately vague.
I mean, certainly, she hasn‘t come in, I don‘t think, and lied and said something
one way before and now is saying something absolutely the opposite. I think she‘s
doing it so many people who get in this situation and they have made some
statements and now they‘re having to repeat it in a very serious situation. We‘re
getting the ‗I don‘t know‘ answers.‖ Later, after defendant‘s counsel argued that
the witness did not need rehabilitating because ―most of her answers were ‗I

35    For example, after playing a tape of one of Witness No. 13‘s prior
statements, the prosecution asked, ―Was that your voice on the tape?‖ Witness
No. 13 responded, ―I believe so.‖



                                           66
believe so,‘ ‖ the court responded: ―This happened a lot, well, if it‘s there, ‗I
guess so‘ or ‗I believe so.‘ There‘s a lot more to an answer than just the words.
There‘s the body language.‖ ―It was difficult to say she was an adverse witness or
hostile witness because I think she‘s anything but that. But, boy, she‘s sure, and I
don‘t blame her, reluctant. My feeling is that that kind of answer is, basically, it‘s
acquiescing and I think — it is part rehabilitation. In other words, her sort of
being fed and her arm‘s being twisted type of answers I think if there are prior
answers that are consistent to which you sort of begrudgingly or half acquiescing
to are proper.‖
       Given Witness No. 13‘s professed inability to remember her previous
statements, her equivocal responses to many of the prosecution‘s questions, and
the hesitancy and reluctance she demonstrated in answering the prosecution‘s
questions, the trial court did not abuse its discretion in determining that evidence
of her fear in testifying was relevant to the jury‘s assessment of her credibility.
(See People v. Harris (2008) 43 Cal.4th 1269, 1287-1290 [evidence of threat to
witness admissible given his professed inability at trial to remember prior
statements that, while preparing for his testimony earlier that morning, he said he
recalled]; Guerra, supra, 37 Cal.4th at p. 1142 [evidence of witnesses‘ fear was
admissible given their ―hesitancy in responding to questions‖ at trial]; People v.
Avalos (1984) 37 Cal.3d 216, 232 [testimony regarding witness‘s fear was
admissible given her hesitation in responding when asked whether she saw in the
court room the person she had identified in a lineup].)
       Defendant also errs in asserting that there were no credibility issues
regarding Witness No. 16 to which the evidence of his fear was relevant. During
his direct testimony, Witness No. 16 admitted he had received immunity from
prosecution for the murders in exchange for his truthful testimony, had initially
lied to police when they interviewed him about the case, and had refused to testify

                                          67
before the grand jury even after receiving immunity. It was apparent that defense
counsel would attack Witness No. 16‘s credibility on cross-examination by
suggesting he was a liar and that the promise of immunity was the motive for his
testimony favorable to the prosecution. In anticipation of that attack, the
prosecution was entitled to show that the witness was willing to testify against
defendant and Palma despite his fear of retaliation. (See Mendoza, supra, 52
Cal.4th at p. 1085 [prosecution may introduce evidence supporting a witness‘s
credibility on direct examination when it ―reasonably anticipates a defense attack
on the [witness‘s] credibility‖]; People v. Green (1980) 27 Cal.3d 1, 19-20 [in
anticipation of defense‘s attack on witness‘s credibility based on promise he
would not be sent to prison for parole violation, prosecution could introduce
evidence of witness‘s fear in testifying].)36
       Insofar as defendant argues the evidence was inadmissible under Evidence
Code section 352 because its potential to cause undue prejudice substantially
outweighed its probative value, defendant forfeited this argument by failing to
object on this basis at trial. The only objections defendant‘s counsel raised at trial
were that the evidence was irrelevant or lacked foundation, or that the


36     During his testimony, Witness No. 16 expressed ―concern‖ about a
photograph (exhibit No. 58) of himself and other Sangra gang members with his
face scratched out and ―187‖ — the Penal Code section for murder — written
across his chest. Defendant asserts that, because Witness No. 16 testified he never
saw the photograph ―until the prosecutor showed it to him while he was on the
witness stand,‖ ―it could not conceivably have had any bearing on his state of
mind, or account for any supposed evasiveness or inconsistency in his testimony.‖
However, the witness also testified that the prosecution told him of the picture‘s
existence before he took the stand. Moreover, the photograph was relevant to
support the witness‘s testimony about his fear. In any event, given the other
testimony about the photograph, the witness‘s testimony that the photograph
―concern[ed]‖ him added little to the case.



                                          68
prosecution‘s questions were leading. Palma‘s counsel objected at one point that
the evidence was ―improper, calling for a conclusion.‖ Contrary to defendant‘s
assertion, these objections were insufficient to preserve for appeal the claim that
the trial court should have excluded the evidence under Evidence Code section
352. ―Although [defense] counsel‘s lack of express reference to Evidence Code
section 352 is not itself fatal to defendant‘s claim, the stated bas[e]s of the
objection[s] [were] insufficient to alert the trial court that this provision was being
invoked.‖ (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014-1015 [relevance
objection insufficient to preserve for review claim under Evidence Code section
352]; see also People v. Ghent (1987) 43 Cal.3d 739, 766 [objection that question
is leading does not preserve for review claim under Evidence Code section 352];
People v. Champion, supra, 9 Cal.4th at p. 913 [relevance objection did not
preserve for review claim under Evidence Code section 352].) Nor is defendant
correct in asserting that, because the trial court overruled the objections defense
counsel did make, an objection under Evidence Code section 352 would have been
futile. Nothing about the court‘s rulings on counsel‘s objections indicates it would
have been futile to object to the same evidence under Evidence Code section 352.
For all of the above reasons, defendant‘s challenge to the evidence‘s admission is
unavailing.
       Also unavailing is defendant‘s claim the trial court erred in failing, sua
sponte, to give a limiting instruction informing the jurors they could consider the
evidence of the witnesses‘ fear in testifying only in assessing credibility. We have
consistently held that where, as here, a defendant fails to request an instruction, a
trial court ―generally [has] no duty to instruct on the limited admissibility of
evidence. [Citation.]‖ (People v. Lang (1989) 49 Cal.3d 991, 1020; see also
Evidence Code section 355 [―When evidence is admissible . . . for one purpose
and is inadmissible . . . for another purpose, the court upon request shall restrict

                                          69
the evidence to its proper scope and instruct the jury accordingly.‖ (Italics
added.)].) Although acknowledging this rule, defendant invokes People v. Collie,
supra, 30 Cal.3d at p. 64, where we hypothesized that ―[t]here may be an
occasional extraordinary case in which unprotested evidence . . . is a dominant part
of the evidence against the accused, and is both highly prejudicial and minimally
relevant to any legitimate purpose.‖ Defendant‘s reliance on Collie fails because
the evidence of the witnesses‘ fear was more than minimally relevant to a
legitimate purpose – supporting the witnesses‘ credibility – and was not ―a
dominant part of the evidence against‖ defendant. (Ibid.) Therefore, the trial
court did not err in failing to instruct, sua sponte, on the evidence‘s limited
admissibility.

       D. Alleged Hearsay Statements of Shyrock

       Defendant asserts the trial court prejudicially erred in permitting Valdemar
to testify at trial that, during a Mexican Mafia meeting in January 1995, Shyrock
stated: ―I don‘t know if you have ever heard of this brother Dido. He dropped out
a long time ago. He‘s in an apartment where I was living. The mother fucker was
living right downstairs but never showed his face. All kinds of people in the pad,
bunch of young sisters and kids, all kinds of shit. So I‘m trying to figure out how
to – I need a silencer is what I need.‖ Defendant argues Shyrock‘s statement was
hearsay and the trial court erred in admitting it under the hearsay exception set
forth in Evidence Code section 1230, which provides in relevant part: ―Evidence
of a statement by a declarant having sufficient knowledge of the subject is not
made inadmissible by the hearsay rule if the declarant is unavailable as a witness
and the statement, when made, . . . so far subjected him to the risk of civil or
criminal liability . . . that a reasonable man in his position would not have made
the statement unless he believed it to be true.‖ According to defendant, this
exception was inapplicable because the prosecution failed to show that Shyrock



                                          70
was ―unavailable as a witness,‖ that the statement was against his penal interest
when he made it, and that there was sufficient indicia of the statement‘s
trustworthiness. Defendant also argues that, because the statement does not bear
particularized guarantees of reliability, its admission violated his constitutional
rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United
States Constitution. ―If nothing else,‖ defendant lastly contends, the trial court
erred in failing to exclude the statement under Evidence Code section 352 because
it was ― ‗so [rife] with condemning facts against [him] that [it was] devastating or
crucial to his case.‘ ‖ For reasons that follow, defendant‘s claims fail.

                1. Background

       Before trial, the prosecution moved to admit at trial certain out-of-court
statements of nontestifying witnesses. As here relevant, the prosecution argued
that Raymond Shyrock‘s statement was admissible under Evidence Code section
1230 and as circumstantial evidence of the existence of a conspiracy. At a hearing
on the motion, the prosecution argued the statement was relevant to show motive
and identity and was against Shyrock‘s penal interest because, reasonably
interpreted, it was a statement that Shyrock, a member of the Mexican Mafia,
intended either to kill Dido or have him killed because he was a Mexican Mafia
dropout. The court then asked, ―Is he unavailable?‖ The prosecution responded
by first asking the court ―to assume‖ ―[f]or the purpose of this proceeding‖ that
Shyrock was unavailable, and then adding: (1) the prosecution would have
Shyrock‘s attorney ―fill out a document indicating that if [Shyrock] was called to
testify he would take the Fifth [Amendment];‖ (2) Shyrock was a defendant in a
federal RICO case and the United States Attorney had informed the prosecution
that it ―would oppose any motion to bring him over here either as a witness or a
defendant;‖ and (3) ―the metropolitan detention center‖ where Shyrock was in
custody ―refuses to accept the subpoena by the county authorities as to Mr.
Shyrock.‖ The court then asked if the prosecution had, in fact, attempted to


                                          71
subpoena Shyrock. The prosecutor replied: ―I have talked to them and I was told
if I attempted that‘s what . . . would happen. [¶] So I understand the court‘s
position, but . . . I think clearly if the court looks at it carefully I will be able to
show that Mr. Shyrock is unavailable, one, because the federal authorities refuse
to release him, two, because he clearly has a Fifth Amendment privilege against
self-incrimination.‖
       At this point, Ortiz‘s counsel interjected, ―Even if [the prosecution] covered
these hurdles we are discussing we still have a section 352 problem at the trial he‘s
going to have to deal with.‖ When Maciel‘s counsel interrupted and asked to
speak, the court explained that it was going to give everyone a chance to respond
and invited Ortiz‘s counsel to ―go ahead.‖ Ortiz‘s counsel then stated, ―That was
what I wanted to indicate to the court.‖ The court replied, ―All right. Mr.
Bestard.‖ Defendant‘s counsel responded, ―Submitted at this time.‖ Logan‘s
counsel then argued it was unclear that the statement was against Shyrock‘s penal
interest and that, given the ambiguity, it was inadmissible under Evidence Code
section 352. Maciel‘s counsel then added that the statement was irrelevant
because Shyrock was not a defendant in the case and that there was ―a
foundational problem‖ because ―no one has ever established‖ that Dido ―was a
Mafia member.‖ Maciel‘s counsel also challenged the prosecution‘s
representations regarding Shyrock‘s unavailability, stating: ―We need Raymond
Shyrock, who I say is available and who is willing to come to this court and testify
that he never intended to make those statements. [The prosecution] has asserted
his Fifth Amendment right for him, but I will bet you that Raymond Shyrock will
come here and testify precisely to what he said and what he meant . . . .‖
       The court then interjected: ―I don‘t like to make rulings when they aren‘t
ready to be made – at this point [the prosecution] ha[s] not been able to establish
unavailability.‖ The prosecutor responded: ―I can‘t argue with the court.‖ The
court continued: ―I am not going to rule. I don‘t want to – clearly, at this time as
we sit here in court you have not established the unavailability of Mr. Shyrock so


                                             72
that these statements are admissible.‖ The prosecutor again responded, ―I cannot
argue,‖ but added: ―What I would simply ask the court to do is put the matter
. . . over to next Monday the 9th, and I will take the steps between now and the
9th – I will take two steps. I will contact Mr. Shyrock‘s attorney, who I have not
yet contacted, and I will also bring in somebody from the metropolitan detention
center who will testify they either will or will not accept the subpoena, and we can
resolve the unavailability issue next Monday and then either yourself or Judge
Czuleger can determine if . . . the statements are admissible.‖ After the
prosecution and Maciel‘s counsel argued further about whether Shyrock was
willing to testify and whether the federal authorities would accept a subpoena, the
court interjected: ―Hold on. I will let you be heard on the other arguments. As far
as the unavailability issue, I can make a ruling subject to whether or not he‘s
available or not so at least you can have a ruling all sides will know how to
proceed on this issue.‖
       The court then invited Maciel‘s counsel to address the Evidence Code
section 352 issue ―or any other argument you want to make.‖ Maciel‘s counsel
responded by discussing only Evidence Code section 352.         Palma‘s counsel
joined in that argument and added: ―It‘s totally hearsay. I don‘t believe there‘s
any established exception to the hearsay rule that has been laid out here, and I
would also object on the grounds that it‘s not relevant.‖ Throughout these
exchanges, defendant‘s counsel remained silent.
       Consistent with its earlier comments, the court then stated that ―the
unavailability issue will be left for another time.‖ It conditionally ruled that, if the
prosecution established Shyrock‘s unavailability, the statement would be
admissible under Evidence Code section 1230 as ―a declaration against penal
interest.‖ It declined to order exclusion under Evidence Code section 352, finding
that the statement was ―more probative than prejudicial.‖
       As far as the record shows, the issue of Shyrock‘s unavailability never
arose again. At trial, when the prosecution asked Valdemar to testify regarding


                                           73
Shyrock‘s statement, neither defendant‘s counsel nor Palma‘s raised any
objection.

                2. Discussion

       Initially, the People contend that, by failing to object in the trial court to
admission of Shyrock‘s statement, defendant failed to preserve this issue for
appeal. In their view, the record, as set forth above, shows that defendant‘s
counsel neither joined in the objections of cocounsel nor made an objection of his
own. Moreover, the People assert, ―even when co-counsel addressed the issue,
they argued relevance and Evidence Code section 352, not the Evidence Code
section 1230 requirements‖ or the constitutional issues that defendant now raises.
Thus, the People argue, ―there was neither a timely nor a specific objection . . .
sufficient to preserve the[se] issue[s] for appeal.‖ ―[A]t the very least,‖ the People
continue, defendant forfeited his challenge to the prosecution‘s showing of
Shyrock‘s unavailability by failing to raise the issue at any time after the court
deferred its ruling on that question.37
       The prosecution‘s forfeiture argument appears to be correct insofar as
defendant now seeks to challenge the statement‘s trustworthiness, to question
Shyrock‘s unavailability, and to raise constitutional objections. Regarding
trustworthiness, as the preceding discussion demonstrates, at no time did anyone
assert there were insufficient indicia of the statement‘s trustworthiness. Therefore,
defendant may not raise that issue on appeal. (People v. Hernandez (1999) 71
Cal.App.4th 417, 425 [defendant could not argue on appeal that statements lacked
sufficient indicia of reliability because ―he failed to object to the statements below
on this ground‖].) This conclusion also defeats defendant‘s constitutional claims,
which he did not raise in the trial court and which hinge on his assertion that the

37    In his briefs, defendant offers no response to the People‘s forfeiture
arguments.



                                           74
statement lacks particularized guarantees of trustworthiness. Regarding Shyrock‘s
unavailability, as the preceding discussion also demonstrates, the trial court
expressly declined to make a ruling and informed counsel that the issue would ―be
left for another time.‖ Neither defendant nor anyone else raised the issue again or
objected when the prosecution offered the evidence at trial. As we have held,
―[f]ailure to press for a ruling on a motion to exclude evidence forfeits appellate
review of the claim because such failure deprives the trial court of the opportunity
to correct potential error in the first instance. [Citation.]‖ (People v. Lewis (2008)
43 Cal.4th 415, 481; see also People v. Morris (1991) 53 Cal.3d 152, 195
[defendant forfeited appellate challenge to admission of testimony by failing ―to
press for‖ a ruling ―until he obtained one‖].) Thus, because defendant failed to
press the trial court for a ruling on Shyrock‘s unavailability, he may not raise the
issue on appeal.
       However, the prosecution‘s forfeiture claim is arguable insofar as defendant
now asserts the statement was not against Shyrock‘s penal interest and should
have been excluded under Evidence Code section 352. It is true that defendant‘s
counsel did not himself raise either of these questions, and that his only comment
regarding the statement‘s admissibility was, ―Submitted at this time.‖ However,
the record shows that, before defendant‘s counsel made this comment, the court
itself raised the ―penal interest‖ issue by asking the prosecution, ―is this in fact a
declaration against interest,‖ ―what kind of interest is it a declaration against,‖ ―is
it a declaration against penal interest‖ and ―what language indicates that to you.‖
The record also shows that, shortly before defendant‘s counsel made his
―submitted‖ comment, Ortiz‘s counsel stated, ―Even if [the prosecution] covered
these hurdles we are discussing we still have a section 352 problem at the trial he‘s
going to have to deal with.‖ On analogous facts, courts, including ours, have
declined to find forfeiture. (See People v. Collins (2010) 49 Cal.4th 175, 227 [no
forfeiture despite lack of objection to alleged prosecutorial misconduct where the
trial court interrupted the prosecutor immediately after the challenged remark,


                                           75
disagreed with prosecution about the remarks propriety, and defense counsel
―submitted the matter after the colloquy between court and counsel‖]; People v.
Brooks, supra, 88 Cal.App.3d at p. 186 [no forfeiture of hearsay argument where
―the court called a hearing to consider exclusion of the evidence immediately
after‖ witness testified to challenged statement].)
       We need not resolve this aspect of the People‘s forfeiture argument because
these arguably preserved claims fail on their merits. The court did not abuse its
discretion in finding that the statement was against Shyrock‘s penal interest when
made. (See People v. Gordon (1990) 50 Cal.3d 1223, 1252 [determination
whether declaration is against interest is reviewed for abuse of discretion].) In
making this determination, the court was entitled to consider ―not just the words‖
themselves, ―but the circumstances under which they were uttered,‖ Shyrock‘s
―motivation,‖ and his ―relationship to‖ defendant. (People v. Frierson (1991) 53
Cal.3d 730, 745.) As the People argue, the trial court could reasonably have
concluded that the statement, viewed in the context of its making – ―a
surreptitiously recorded meeting of Mexican Mafia members‖ – ―marked the
inception of a conspiracy to kill Dido‖ because he was a dropout, and that as such,
―when made,‖ it ―so far subjected [Shyrock] to the risk of . . . criminal liability . . .
that a reasonable man in [Shyrock‘s] position would not have made it unless he
believed it to be true.‖ (Evid. Code, § 1230.)
       Defendant‘s arguments for concluding otherwise are unpersuasive.
Defendant asserts that when Shyrock made the statement, ―the conspiracy had not
yet been conceived.‖ However, as explained above, the trial court could have
reasonably found that the statement marked the conspiracy‘s inception.
Defendant also asserts that Shyrock would have had ―no reason . . . to believe that
statements he made to fellow gang members in a private hotel room would
potentially expose him to criminal prosecution.‖ However, as one federal court
has explained in rejecting a similar argument: ―The question as to such
declarations is whether under the circumstances the declarant would have been


                                           76
unlikely to say it had it not been true. To be against penal interest under the rule,
the statement need not be made to persons who are likely to use it against the
declarant in court proceedings. Declarations against penal interest are received
notwithstanding that they were spoken in confidence in the expectation they would
not be repeated to the authorities. [Citations.] Indeed, that makes such
declarations more trustworthy.‖ (U.S. v. Badalamenti (S.D.N.Y. 1986) 626
F.Supp. 658, 666-667 [rejecting argument that ―the Mafia‘s code of silence
eliminated any risk that the declarants would incur criminal liability in making the
declarations‘].) Finally, after noting that this hearsay exception does not apply to
collateral assertions within a declaration against penal interest – i.e., any portion of
a statement that is not itself specifically disserving to the declarant‘s interests
(People v. Duarte (2000) 24 Cal.4th 603, 612) – defendant argues the only part of
Shyrock‘s statement that was specifically disserving of his penal interest was the
statement, ―I need a silencer.‖ However, the trial court could have reasonably
found that, in context, the statement as a whole was specifically disserving of
Shyrock‘s interest.38 In short, defendant‘s arguments show ―only that a court
might perhaps have been able to arrive at the conclusion that [Shyrock‘s]
statement did not so far subject him to the risk of criminal liability that a
reasonable person in his position would not have made it unless he believed it to
be true. [They] simply do[] not show that a court was unable to arrive at the
opposite conclusion. Therefore, [they do] not establish an abuse of discretion.‖
(People v. Gordon, supra, 50 Cal.3d at p. 1253.)
       Also unpersuasive is defendant‘s prejudice argument under Evidence Code
section 352. As noted above, defendant asserts the trial court should have
excluded the statement under this section because it was ― ‗so [rife] with

38     In any event, any collateral assertions the statement may have contained
could not have prejudiced defendant because they did not attempt to shift blame
from Shyrock to defendant or anyone else.



                                           77
condemning facts against [him] that [it was] devastating or crucial to his case.‘ ‖
However, the test for prejudice under Evidence Code section 352 is not whether
the evidence in question undermines the defense or helps demonstrate guilt, but is
whether the evidence inflames the jurors‘ emotions, motivating them to use the
information, not to evaluate logically the point upon which it is relevant, but to
reward or punish the defense because of the jurors‘ emotional reaction. (People v.
Doolin, supra, 45 Cal.4th at p. 439.) Defendant does not even suggest how
Shyrock‘s statement prejudiced him in this sense. Thus, the trial court did not
abuse its discretion in declining to exclude Shyrock‘s statement under Evidence
Code section 352.

       E. Failure To Instruct that Witness No. 16 Was an Accomplice

       The trial court‘s jury instructions defined the term ―accomplice‖ (CALJIC
No. 3.10) and explained that jurors (1) should view the testimony of an
accomplice with distrust (CALJIC No. 3.18) and (2) could not rely on accomplice
testimony to convict absent corroborating evidence, i.e., evidence of some act or
fact related to the crime which, if believed, by itself and without any aid,
interpretation or direction from the testimony of the accomplice, tends to connect
the defendant with the commission of the crime charged (CALJIC Nos. 3.11,
3.12). Defendant asked the court also to instruct the jury that Witness No. 16 was
an accomplice as a matter of law. The court denied the request, finding that the
evidence presented a question for the jury to determine. Consistent with its ruling,
the court instructed the jurors that they had to determine whether Witness No. 16
was an accomplice and that defendant bore the burden of proving this fact by a
preponderance of the evidence (CALJIC No. 3.19). Defendant claims that, in
refusing to give the requested instruction, the trial court prejudicially erred and
violated his due process rights under the Fourteenth Amendment. For reasons that
follow, defendant‘s claim fails.




                                          78
       Section 1111 provides that ―[a] conviction cannot be had upon the
testimony of an accomplice unless it be corroborated by such other evidence as
shall tend to connect the defendant with the commission of the offense . . . .‖ For
purposes of this rule, an ―accomplice‖ is ―one who is liable to prosecution for the
identical offense charged against the defendant on trial in the cause in which the
testimony of the accomplice is given.‖ (Ibid.) ―This definition encompasses all
principals to the crime [citation], including aiders and abettors and coconspirators.
[Citation.]‖ (People v. Stankewitz (1990) 51 Cal.3d 72, 90.) Whether someone is
an accomplice is ordinarily a question of fact for the jury; only if there is no
reasonable dispute as to the facts or the inferences to be drawn from the facts may
a trial court instruct a jury that a witness is an accomplice as a matter of law.
(People v. Hayes (1999) 21 Cal.4th 1211, 1271-1272.)
       Defendant asserts that Witness No. 16 was an accomplice as a matter of law
because his testimony ―established his role as a principal to murder as an aider and
abettor.‖ He relies on the following testimony of Witness No. 16: During the late
afternoon on April 22, 1995, Palma said he was expecting a page later that day and
he wanted Witness No. 16 to drive him to Torres‘s house after he received the
page because ―they had to take care of something‖ and ―the brothers‖ – i.e., the
Mexican Mafia – ―wanted him.‖ Several hours later, after Palma received the
page, Witness No. 16 drove Palma to Torres‘s house. When they arrived, a
number of Sangra gang members were already in Torres‘s room and a shotgun
was at the foot of the bed. Ortiz, who seemed to be in charge, said there was ―a
problem in El Monte‖ and they had to go there ―to take care of something,‖ which
Witness No. 16 understood to mean they were going to assault or kill someone.
Logan drove to El Monte with defendant, Palma, and Torres; Witness No.16
followed in his car with Ortiz and ―Creepy.‖ Upon arriving in El Monte, Logan
pulled into a driveway on Maxson Road while Witness No. 16 drove a few blocks
further down and pulled over. At Ortiz‘s direction, Witness No. 16 turned off the
car and its headlights. Ortiz exited the car, went to the corner, and looked up and


                                          79
down the street. When he returned, he said the police were behind them and
stated, ―Let‘s get out of here.‖ At Ortiz‘s direction, Witness No. 16 drove first to
an apartment in West Covina that he believed to be defendant‘s and, upon finding
no one there, then to Torres‘s house. This testimony, defendant argues,
established the elements for Witness No. 16‘s liability as an aider and abettor, i.e.,
that ―he acted with knowledge of the criminal purpose of the alleged perpetrators
and with the intent or purpose of encouraging or facilitating the commission of the
offense.‖
       As we have explained, ―an aider and abettor‘s guilt ‗is based on a
combination of the direct perpetrator‘s acts and the aider and abettor‘s own acts
and own mental state.‘ [Citation.]‖ (People v. Perez (2005) 35 Cal.4th 1219,
1225.) Establishing aider and abettor liability ―requires proof in three distinct
areas: (a) the direct perpetrator‘s actus reus — a crime committed by the direct
perpetrator, (b) the aider and abettor‘s mens rea — knowledge of the direct
perpetrator‘s unlawful intent and an intent to assist in achieving those unlawful
ends, and (c) the aider and abettor‘s actus reus — conduct by the aider and abettor
that in fact assists the achievement of the crime.‖ (Ibid.)
       Under these principles, the People correctly argue that Witness No. 16‘s
testimony, though sufficient to permit a jury finding that Witness No. 16 was an
accomplice as an aider and abettor, did not compel that finding as a matter of law.
Most notably, there was no direct evidence that Witness No. 16 had the intent to
assist in achieving the direct perpetrators‘ unlawful ends. As we have explained,
―an act [that] has the effect of giving aid and encouragement, and [that] is done
with knowledge of the criminal purpose of the person aided, may indicate that the
actor intended to assist in fulfillment of the known criminal purpose,‖ and may
therefore serve as the basis for ―an inference‖ regarding an alleged aider and
abettor‘s intent. (People v. Beeman (1984) 35 Cal.3d 547, 559, italics added.)
―However, . . . the act may be done with some other purpose [that] precludes
criminal liability.‖ (Ibid.) Thus, Witness No. 16‘s actions, though sufficient to


                                          80
permit an inference that Witness No. 16 intended to assist the perpetrators in
achieving their unlawful ends, did not establish that intent as a matter of law. (See
People v. Williams (2008) 43 Cal.4th 584, 637 [evidence of acts assisting the
crimes did not establish requisite mental state as a matter of law]; People v.
Fauber (1992) 2 Cal.4th 792, 834 (Fauber) [same]: People v. Tewksbury (1976)
15 Cal.3d 953, 960-961 [same].) The trial court therefore properly refused to
instruct the jury that Witness No. 16 was an accomplice as a matter of law. (See
People v. Gordon (1973) 10 Cal.3d 460, 467 [―where the facts are in dispute as to
the knowledge and intent of the asserted accomplice, the witness‘ liability for
prosecution is a question of fact for the jury‖].)
       Moreover, as the People argue, the evidence does not indisputably establish
that Witness No. 16 even had knowledge of the perpetrator‘s unlawful purpose.
During cross-examination, Witness No. 16 testified that, in earlier statements to
police, he said he ―had no idea‖ what Ortiz had meant when he said ―they had to
take care of something in El Monte‖ and, when asked what he thought the
perpetrators were intending to do in El Monte, he replied: ―I said I wasn‘t sure
what they were going to do, if they were going to [box or get some money] or kill
somebody.‖ ―I don‘t know what they were going to do.‖ Although, given
Witness No. 16‘s trial testimony, the jurors could have disbelieved his earlier
statements, they were not required to. Because the record, though adequate to
support the conclusion that Witness No 16 acted with the requisite guilty
knowledge and intent, ―does not dictate‖ that conclusion, the trial court properly
found that Witness No. 16 was not an accomplice as a matter of law. (Fauber,
supra, 2 Cal.4th at p. 834.)
       In any event, even had the trial court erred, the error was harmless. A trial
court‘s error in instructing on accomplice liability under section 1111 is harmless
if the record contains ―sufficient corroborating evidence.‖ (People v. Lewis (2001)
26 Cal.4th 334, 370.) Corroborating evidence may be slight, entirely
circumstantial, and entitled to little consideration when standing alone. (People v.


                                          81
Nelson (2011) 51 Cal.4th 198, 218; People v. Gonzales (2011) 52 Cal.4th 254,
303.) It need not be sufficient to establish every element of the charged offense or
to establish the precise facts to which the accomplice testified. (People v. Hayes,
supra, 21 Cal.4th at p. 1271; People v. Negra (1929) 208 Cal. 64, 69-70.) It is
―sufficient if it tends to connect the defendant with the crime in such a way as to
satisfy the jury that the accomplice is telling the truth.‖ (Fauber, supra, 2 Cal.4th
at p. 834.)
       Under these principles, the record contains adequate corroborating
evidence. Witnesses Nos. 2 and 3 testified that a Nissan Maxima pulled up in
front of a driveway on Maxson Road, that three men – Hispanic men, according to
Witness No. 2 – exited and went down the driveway while the driver remained
inside, and that after six to eight gunshots rang out, the three men – one carrying a
handgun – ran back to the car. Witness No. 16 likewise testified that Logan drove
defendant, Palma, and Torres to El Monte in his Nissan Maxima, that the Maxima
pulled into a driveway on Maxson Road, and that he was later told that Logan
waited in the car while defendant, Palma and Torres exited and the murders
occurred. Witness No. 13 and Torres‘s mother testified that defendant was present
at Torres‘s house with the other Sangra gang members the night of the murders.
The physical evidence at the scene of the murders – two men with fatal gunshot
wounds to the head, a woman and two children shot dead – matched Witness No.
16‘s testimony about what defendant and Palma had told him about the shooting.
As noted above, ballistics evidence connected defendant to the crimes. Finally,
there was independent evidence that members of the Sangra gang had committed
the murders and that defendant was a Sangra gang member. This evidence was
more than sufficient to corroborate Witness No. 16‘s testimony. Thus, even had
the trial court erred in refusing to give the proposed instruction, reversal would be
unwarranted.
       Finally, because the trial court‘s refusal to instruct that Witness No. 16 was
an accomplice as a matter of law was not error, and was harmless in any event,


                                         82
defendant‘s due process claim fails. (See People v. Lewis, supra, 26 Cal.4th at p.
371 [―[b]ecause we find no error and otherwise find any error to be harmless,‖ we
rejected claim that failure to instruct on accomplice liability violated the
defendant‘s constitutional right to due process].)

       F. Alleged Error in Giving CALJIC No. 2.11.5 (Unjoined
          Perpetrators)

       At the guilt phase, the trial court instructed the jurors pursuant to CALJIC
No. 2.11.5 as follows: ―There has been evidence in this case indicating that a
person other than defendant was or may have been involved in the crime for which
defendant is on trial. [¶] There may be many reasons why such person is not here
on trial. Therefore, do not discuss or give any consideration as to why the other
person is not being prosecuted in this trial or whether he has been or will be
prosecuted. Your sole duty is to decide whether the People have proved the guilt
of the defendants on trial.‖ Noting the evidence of Witness No. 16‘s involvement
as an aider and abettor and the immunity he received in exchange for his
testimony, defendant asserts the trial court, in giving this instruction, prejudicially
erred and violated his constitutional rights to a fair trial and a complete defense.
       The People correctly point out that defendant forfeited the claim by failing
to object to the instruction in the trial court or to request a limiting instruction. As
defendant acknowledges, we have held that where, as here, the instruction is
properly given as to some unjoined perpetrators but not as to others, a defendant
who fails to ask the trial court to give a limiting instruction may not raise the issue
on appeal. (People v. Sully (1991) 53 Cal.3d 1195, 1218.)
       In any event, the claim fails on its merits. In addition to the challenged
instruction, the trial court gave instructions on considering the testimony of
accomplices and other standard witness credibility instructions, including CALJIC
No. 2.20, which informed the jurors to keep in mind the existence of any ―bias,
interest, or other motive‖ on the part of a witness. As we have explained in



                                           83
connection with substantially identical facts, when a trial court gives CALJIC No.
2.11.5 ―with the full panoply of witness credibility and accomplice instructions, as
it was in this case,‖ reasonable jurors will understand that although they may not
consider ―the separate prosecution or nonprosecution of coparticipants, and the
reasons therefore,‖ they may consider ―a plea bargain or grant of immunity . . . as
evidence of interest or bias in assessing the credibility of prosecution witnesses.
[Citation.] Although the instruction should have been clarified or omitted
[citation], we cannot agree that giving it amounted to error in this case.‖ (People
v. Price (1991) 1 Cal.4th 324, 446.) Because defendant offers no persuasive basis
for reconsidering this issue, his claim fails.

       G. Instructions on Uncharged Conspiracy

       The trial court granted the prosecution‘s request to present evidence of a
conspiracy even though the indictment did not allege a conspiracy, and the court
instructed the jury on the law of conspiracy. Defendant now asserts the trial court
erred in allowing the prosecution to proceed on an uncharged conspiracy because,
under the statutory definition of principal (§ 31), ―participation in a conspiracy
alone is not an authorized basis for finding a person guilty of any offense other
than conspiracy, a crime also defined by statute. (§ 182.)‖ Moreover, defendant
asserts, allowing an uncharged conspiracy to be the ―basis for criminal liability
creates‖ a constitutionally impermissible ―mandatory conclusive presumption that
a person who engages in an uncharged conspiracy to commit a substantive offense
is guilty of the substantive offense later committed by others.‖ The court‘s error,
defendant argues, prejudiced him and violated his constitutional rights to due
process and to a jury trial.
       Defendant‘s arguments are unpersuasive. Our decisions have ―long and
firmly established that an uncharged conspiracy may properly be used to prove
criminal liability for acts of a coconspirator. [Citations.] ‗Failure to charge
conspiracy as a separate offense does not preclude the People from proving that


                                           84
those substantive offenses which are charged were committed in furtherance of a
criminal conspiracy [citation]; nor, it follows, does it preclude the giving of jury
instructions based on a conspiracy theory [citations].‘ [Citation.]‖ (People v.
Belmontes (1988) 45 Cal.3d 744 (Belmontes), 788-789; see also People v.
Rodrigues (1994) 8 Cal.4th 1060, 1134 [―It is firmly established that evidence of
conspiracy may be admitted even if the defendant is not charged with the crime of
conspiracy.‖].) Defendant acknowledges our prior decisions, but invites asks us to
reexamine them. However, he offers no persuasive basis for doing so, and we
decline his invitation.
       Nor is defendant‘s ―mandatory presumption‖ argument valid. As the
People explain, ―like aiding and abetting, conspiracy (as used here) is itself a
theory of liability. . . . ‗For purposes of complicity in a cofelon‘s homicidal act, the
conspirator and the abettor stand in the same position.‘ (People v. Pulido [(1997)
15 Cal.4th 717], 724.) . . . The instructions given here did not tell the jury that it
could presume any particular element of murder, including intent, based on proof
of predicate facts. Instead, the instructions specified that, as an alternative to
finding, based on the elements of murder, that [defendant] himself committed or
aided in the crime, it could find him responsible for the crime based on his
participation in a conspiracy to commit murder. This correctly stated the law
concerning conspiracy as an alternative theory of liability. [Citations.]
Accordingly, there was no error.‖ (See People v. Luparello (1986) 187
Cal.App.3d 410, 438-439 [conspirator liability does not create unconstitutional
presumption]; see also In re Hardy (2007) 41 Cal.4th 977, 1025 [conspiracy is a
―theor[y] of derivative liability; under § 31, ―[o]ne who conspires with others to
commit a felony is guilty as a principal‖]; Belmontes, supra, 45 Cal.3d at p. 789
[―There being evidence supportive of all the elements of a conspiracy, the People
were entitled to proceed on that alternative theory of liability‖ even though it was
uncharged].)



                                           85
       H. Adequacy of Conspiracy Instructions

       Defendant asserts the trial court‘s instructions on conspiracy were
incomplete in several respects and that the errors violated his statutory and
constitutional rights. For reasons set forth below, his claim fails.

                1. Forfeiture

       Initially, we reject the People‘s argument that defendant forfeited this issue
on appeal by failing to object in the trial court to the conspiracy instructions.
Defendant‘s claims — failure to instruct sua sponte and erroneous instructions
affecting his substantial rights — are ―of a kind . . . that required no trial court
action‖ on his part to be preserved for appeal. (People v. Rogers (2006) 39 Cal.4th
826, 850, fn. 7.) Accordingly, it is appropriate to address their merits.

                2. Failure to Identify Specific Overt Act

       The trial court instructed the jury that, to find a defendant liable as a
member of a conspiracy, ―there must be proof of the commission of at least one
overt act.‖ The court‘s instructions did not, however, identify any specific overt
act that the conspirators allegedly performed. Nor did the indictment allege any
overt act. Defendant asserts that these omissions violated his statutory and
constitutional rights and prejudiced his defense.
       In People v. Prieto (2003) 30 Cal.4th 226, 251 (Prieto), we rejected a
similar contention. Defendant offers no persuasive reason for reconsidering that
decision.

                3. Failure Adequately to Identify the Object of the Conspiracy

       The trial court instructed the jury that ―[a] conspiracy is an agreement
between two or more persons with the specific intent to agree to commit a public
offense such as murder, and with the further specific intent to commit such
offense.‖ (Italics added.) Defendant asserts that, by including the phrase ―such as


                                           86
murder,‖ this instruction ―failed to provide adequate guidance to the jury about
how to determine the object or crime originally contemplated by the conspiracy‖
and impermissibly allowed the jury to convict him based on a ―generalized belief
that [he] intended to assist and/or encourage unspecified nefarious conduct.‖
       Defendant‘s argument rests entirely on People v. Prettyman (1996) 14
Cal.4th 248, 254 (Prettyman), which considered the proper instructions for aiding
and abetting liability under California‘s ― ‗natural and probable consequences‘
doctrine.‖ Under that doctrine, ―a person who aids and abets a confederate in the
commission of a criminal act is liable not only for that crime (the target crime), but
also for any other offense (nontarget crime) committed by the confederate as a
‗natural and probable consequence‘ of the crime originally aided and abetted.‖
(Ibid.) We held in Prettyman that ―when the prosecutor relies on‖ this doctrine,
the trial court must give an instruction ―identify[ing] and describ[ing] the target
crimes that the defendant might have assisted or encouraged.‖ (Ibid.) Such an
instruction, we explained, ―will assist the jury in determining whether the crime
charged was a natural and probable consequence of some other criminal act‖ and
―will eliminate the risk that the jury will engage in uninformed speculation with
regard to what types of conduct are criminal.‖ (Ibid.) Defendant asserts that,
―[w]hile the ‗natural and probable consequence‘ doctrine in Prettyman involved
aiding and abetting, the Court stated that the doctrine applied equally to
conspiracy.‖ Defendant also asserts that, in failing ―to identify the object of the
alleged conspiracy,‖ the instruction here was invalid under Prettyman.
       Even were defendant correct that Prettyman‘s holding applies to
instructions on conspiracy — a question we do not answer — that holding would
not aid him. We stressed in Prettyman that a court‘s sua sponte duty to identify
and describe target crimes ―is quite limited.‖ (Prettyman, supra, 14 Cal.4th at
269.) It arises only when ―uncharged target offenses form a part of the
prosecution‘s theory of criminal liability and substantial evidence supports the
theory.‖ (Id. at pp. 266-267, italics added.) Moreover, even when the duty arises,


                                          87
the trial court ―need not identify all potential target offenses supported by the
evidence, but only those that the prosecution wishes the jury to consider.‖ (Id. at
p. 269, fn. omitted.) In this case, the only target offense under the prosecution‘s
theory of criminal liability was murder, and that was a charged offense. The
prosecution never argued any other target offense and the evidence
overwhelmingly pointed only to that target offense. On this record, the trial
court‘s instruction sufficed.
       In any event, any error was harmless. As explained above, the
prosecution‘s theory was that defendant conspired with other Sangra gang
members to commit murder. The evidence amply supported this theory and, as a
matter of state law, ―it is not reasonably probable that the trial‘s outcome would
have been different in the absence of the trial court‘s [alleged] instructional error.
[Citation.]‖ (Prettyman, supra, 14 Cal.4th at p. 274.) Nor, as a matter of federal
law, is there a reasonable likelihood the jury applied the challenged instruction in a
way that violates the United States Constitution. (Id. at p. 272.) The prosecution
never mentioned the natural and probable consequences rule or any possible target
offense other than the charged offense of murder. Therefore, ―it is highly unlikely
that the jury relied on that rule‖ or on any uncharged offense when it convicted
defendant. (Id. at p. 273.) Moreover, ―there is little likelihood . . . that the trial
court‘s [alleged] failure [adequately] to identify and describe potential target
crimes caused the jury to misapply the [conspiracy] doctrine.‖ (Ibid., italics
omitted.) Defendant and Palma executed their five victims with gunshots at point-
blank range. There was no substantial evidence of any other possible target
offense apart from murder.39 Under these circumstances, it is unlikely that the


39     The evidence and the arguments simply do not support defendant‘s
assertion in his reply brief that jurors ―reasonably‖ may have concluded that ―the
gang‘s purpose was [merely] to assault or take money from someone‖ or that the
―target offense was to assault (but not murder)‖ Tito ―in retaliation for stealing
                                                              (footnote continued on next page)


                                           88
alleged deficiency in identifying the target offense led the jury to misapply the
conspiracy doctrine by relying on some generalized belief that defendant
conspired regarding unspecified nefarious conduct. For the preceding reasons,
defendant‘s argument fails.

                   4. Failure to Instruct on Unanimity and Burden of Proof

        Defendant lastly argues the trial court erred in failing to instruct the jurors
that, in order to convict defendant based on conspiracy, they had to agree
unanimously as to the existence of a conspiracy, the crime the conspirators
conspired to commit, and defendant‘s joinder in the conspiracy, and that the
standard of proof for these elements was beyond a reasonable doubt. These
omissions, defendant argues, constitute ―structural error‖ that is ―reversible per
se.‖
        Defendant‘s argument fails. Under our prior decisions, ―[i]t is settled that
as long as each juror is convinced beyond a reasonable doubt that defendant is
guilty of murder as that offense is defined by statute, [the jurors] need not decide
unanimously by which theory he is guilty. [Citations.]‖ (People v. Santamaria
(1994) 8 Cal.4th 903, 918.) ―Not only is there no unanimity requirement as to the
theory of guilt, the individual jurors themselves need not choose among the
theories, so long as each is convinced of guilt.‖ (Id. at p. 919, italics added.)
Defendant acknowledges that we have applied these principles to hold that a jury
―need not decide unanimously whether‖ a defendant is guilty ―as the aider or
abettor or as the direct perpetrator. [Citations.] ‖ (Id. at p. 918; see also People v.
Jenkins (2000) 22 Cal.4th 900, 1025 [jurors presented with theories of defendant‘s



(footnote continued from previous page)

from drug ‗connections‘ protected by the Mexican Mafia, or simply to recover
whatever he had stolen.‖



                                           89
liability as a direct perpetrator and aided and abettor ―need not unanimously agree
‗on the precise factual details of how a killing under one or the other theory
occurred in order to convict defendant of first degree murder‘ ‖].) He errs,
however, in arguing that these decisions are inapposite because aiding and abetting
liability ―is only a theory of culpability‖ whereas conspiracy ―is a separate crime.‖
As explained above, in this case, conspiracy functioned not as a separate crime,
but as an alternative theory of liability for the charged, substantive crime of
murder. (See In re Hardy, supra, 41 Cal.4th at p. 1025 [conspiracy is a ―theor[y]
of derivative liability‖]; Belmontes, supra, 45 Cal.3d at p. 789 [prosecution could
proceed on conspiracy as an ―alternative,‖ though uncharged, ―theory of
liability‖]; People v. Washington (1969) 71 Cal.2d 1170, 1174-1175 [noting
―distinction between a case in which conspiracy is charged and one in which a
conspiracy theory is used to establish liability for the substantive offense‖].)
Moreover, in Prieto, we expressly rejected the argument that, where the
prosecution seeks to show an uncharged conspiracy ―as one of [its] theories of
liability‖ for charged counts (Prieto, supra, 30 Cal.4th at p. 249), the trial court
must instruct the jurors that they must ―agree unanimously on specific overt acts in
order to find him guilty under a conspiracy theory‖ (id. at p. 251). Under these
decisions, defendant‘s argument fails.40

       I. Judicial Decorum

       At several points during the guilt phase, the trial court used ―monikers‖ to
refer to the defendants, counsel, and the jurors.

40     Even in cases where the prosecution charges conspiracy as a separate
crime, jurors need not unanimously agree on a specific overt act. (People v. Russo
(2001) 25 Cal.4th 1124, 1128-1136.) In such cases, ―[d]isagreement as to who the
coconspirators were or who did an overt act, or exactly what that act was, does not
invalidate a conspiracy conviction, as long as a unanimous jury is convinced
beyond a reasonable doubt that a conspirator did commit some overt act in
furtherance of the conspiracy.‖ (Id. at p. 1135.)



                                           90
       Toward the end of the day on October 29, 1996, the court said to the jurors:
―I have ascertained one thing and that is that apparently one of you has now
acquired a moniker. I am not going to tell you what it is but – because if I were to
tell you what it is you would know who it was, but maybe by the time we‘re
through all 18 of you will have a moniker that‘s assigned to you out here
unbeknownst to you.‖
       About a week later, on November 6, after announcing that it would open
the day‘s proceedings ―a little bit differently,‖ the court stated: ―The record in this
instance will reflect that Character is present with his attorney Comet; Primo is
present with his attorney Slippers; the District Attorney is present in the person of
Windex; the jury in the person of Incognito, Booky, Ill-Bit, Fiddler, Coco, Eagle
Scout, Sharpy, Rabbit, Curly, Tree, it‘s either V or 6, Sleepy, I know who that is,
Foxy, Sharper, who didn‘t make it to Nordstrom‘s this morning, The Suit, Smiley,
Snickers, and Dopey are all present along with Coach, Racer, Bambi, and Flash.‖
The court then asked a witness who was about to testify whether he had ―a
moniker.‖ The witness replied, ―No, your honor.‖ The court then stated to the
prosecutor, ―Mr. Monaghan, or should I say Windex, I want to make sure that the
record is clear.‖ The prosecutor responded, ―Yes, we do, your Honor, we want to
make sure the record is clear.‖ The trial court then explained: ―Incidentally, what
you guys probably don‘t know why I was doing this, I got this [document] from
the jury this morning signed by each of their monikers and then I found out what
your monikers are.‖ The court then commented that the document ―has been
marked as an exhibit 14,391,‖ but the document was not made part of the record.
       Later that day, in discussing a juror‘s scheduling request, the court asked
―Who‘s Dopey.‖ After a juror responded, the court explained: ―I was getting to
where I was kind of worried because for the first two weeks I had never seen
people who were expressionless and not responsive to anything. I said something
to Flash over here ‗Were they still breathing?‘ And concerned because you take
18 people who are total strangers and put them in a little room without coffee and


                                          91
you have real problems, but I am glad to see that you have conquered all that and
really do have [a] pretty good sense of . . . humor among the collective group of
you.‖
        Defendant argues the court‘s ―jokes at the defendants‘ expense‖ were
―grossly improper‖ and ―set an improper tone‖ that ―undermined the jury‘s
responsibility regarding the gravity of its task‖ in a death penalty case. In his
view, upon receiving the note reflecting that the jurors had adopted ―mock ‗gang
monikers,‘ ‖ the court should have taken ―steps to preserve an appropriately
serious atmosphere in the courtroom.‖ Instead, it ―abdicated this duty‖ and
actually ―indulged and encouraged the jurors‘ attempt to poke fun at the
defendants.‖ It ―effectively ridicul[ed] the defendants,‖ who were known by
similar nicknames, conveyed its belief that ―the defendants were properly objects
of ridicule and derision,‖ and ―undermine[d] the proper decorum of a death-
penalty case.‖ In these respects, defendant asserts, the court denied him his
constitutional rights to a fair trial and to a reliable penalty determination.
        Initially, the People correctly argue that, by failing to object in the trial
court, defendant forfeited his right to raise this claim on appeal. (See People v.
Riel (2000) 22 Cal.4th 1153, 1177 [forfeiture of complaint about trial court‘s
―jocular comment‖ to the jury]; People v. Geier (2007) 41 Cal.4th 555, 613
[forfeiture of complaints about trial court‘s jokes]; People v. Monterroso (2004)
34 Cal.4th 743, 761-762 [forfeiture of the complaints about trial court‘s ― ‗over 40
quips and humorous comments‘ ‖]; People v. Melton (1988) 44 Cal.3d 713, 753
[forfeiture of objections to two remarks the trial court made in jest].) Asserting
otherwise, defendant argues that he may raise the issue notwithstanding his failure
to object because (1) it relates to bias of the trial judge and the due administration
of justice, (2) given ―the source of‖ the error – the trial court – ―there was no one
to object to,‖ and (3) an objection and request for admonition may have
antagonized both the court and the jurors. Of course, similar arguments could
have been made in the decisions cited above. Indeed, in Geier, supra, at page 613,


                                            92
we expressly rejected similar arguments. Defendant offers no persuasive reason
for reaching a different conclusion here.
       In any event, defendant‘s claim fails on its merits. Although a jury trial,
especially for a capital offense, is a serious matter, ―[w]ell-conceived judicial
humor can be a welcome relief during a long, tense trial. Obviously, however, the
court should refrain from joking remarks [that] the jury might interpret as
denigrating a particular party or his attorney. We do not condone the instant
judge‘s [remarks]. But the remarks were relatively brief and mild . . . . These
isolated instances . . . fall short of the intemperate or biased judicial conduct [that]
warrants reversal.‖ (Melton, supra, 44 Cal.3d at pp. 753-754; see also Geier,
supra, 41 Cal.4th at p. 614 [same].) ―The trial as a whole . . . was conducted with
appropriate solemnity.‖ (People v. Freeman (1994) 8 Cal.4th 450, 512; see also
Riel, supra, 22 Cal.4th at p. 1177 [same].)

       J. Failure to Declare Mistrial When Jury Declared Impasse

       Defendant asserts the trial judge prejudicially erred in refusing to declare a
mistrial after the jurors declared they were at an impasse and could not reach a
unanimous verdict on any count. Defendant also asserts the trial judge‘s
instruction directing the jury to continue deliberations was erroneous in several
respects. Defendant‘s claims fail.

                1. Factual Background

       Jury deliberations for the guilt phase began on Monday, November 18,
1996, lasting only a few hours that morning. Deliberations continued the rest of
the week and, after a weekend break, resumed the following Monday, November
25. Jury-requested readbacks of trial testimony consumed much of the
deliberation period.
       At 2:00 p.m. on November 25, 1996, the jurors sent the court a note stating:
―We are at an impasse . . . we cannot come to a unanimous decision on any



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count.‖ After denying defense motions for mistrial, the trial court, over defense
objection, decided to question the jurors about their deliberations. It summoned
the jurors and asked the foreperson if the court could do ―anything . . . by a re-
reading of any testimony . . . or by any jury instructions to clarify any legal point.‖
The foreperson responded, ―no.‖ The court posed the same question to the
remaining jurors. None responded. The court then asked the foreperson, out of
the other jurors‘ presence, whether any of the jurors was ―not deliberating in a
good faith attempt to reach a verdict.‖ The foreperson replied, ―I think we have all
deliberated in good faith.‖
       The court then denied another defense motion for mistrial and stated its
intention to order the jurors to continue deliberating, explaining: ―I just don‘t
believe in a two-month case that the jury has put in enough time.‖ After having
the jurors returned to the courtroom, the court stated:
       ―I don‘t know how you are divided numerically and . . . it is not my place at
this point to be inquiring. I am going to assume only because statistical
probabilities favor[] my assumption that you are not deadlocked 6-6, that it‘s some
other numerical division. I am not at this time going to stop this trial or declare a
mistrial. I am ordering you to continue with your deliberations. I am not
convinced that you have put in enough time, especially when I had been told the
amount of time that has been utilized in rereads. And I am not minimizing these
rereads. As a matter of fact, in this case I think it‘s probably very important. But
it would appear we lost a half day last Monday and I understand there were two
substantial days last week, Tuesday and Wednesday, in which most of the day was
consumed in read back and a fair portion of the morning.
       ―I say this to you: those of you in the minority, if I am right that it is not
just 6-6, I ask that you listen to the arguments of those in the majority, reweigh
your positions, and I also ask that you, those of you in the minority, continue to
argue the positions that you believe to convince those in the majority. And I say
the same thing to the majority. I ask that you reweigh your positions in the light of


                                          94
all the arguments to see whether or not those of you in the majority still feel the
way you have voted and, at the same time, ask that you, each of you as a part – the
deliberation process is not only listening to others with an open mind toward
reevaluation, if you believe it‘s appropriate, but it‘s also taking an active part in
sharing what you feel and how you feel and perhaps how you arrive at your
feelings. And I say to both the majority and the minority that that‘s what
deliberations are and I ask that both – I don‘t want to call it sides because then all
of a sudden it becomes confrontational and it shouldn‘t be that way.
       ―At the same time, I would say this to you, this is not a labor negotiation.
In a labor negotiation we always know when the baseball players go on strike
there‘s going to come a time when somebody is going to have pressure and they‘re
going to yield, economic pressure. There‘s obviously no economic pressure here.
You‘re all well paid. But I want to emphasize that this is not a matter of
compromise. One should not compromise just for the purpose of reaching a
verdict. But at the same time, I expect from each one of you, we all expect that
you are going to in good faith be engaging in the deliberation process, sharing
your views of the evidence, and how you got there with the others with a mind
toward convincing them of your position and that‘s whether you‘re in the minority
or the majority, and then the opposite that you have an open mind, each of you,
whichever side you‘re on, to reevaluating.
       ―At this time I order that you return to the jury deliberations room, continue
your deliberations. If at any time – and I don‘t want anybody to be hesitant about
asking even if you had it read once to have it re-read a second time the testimony
or any clarification what you feel is necessary to any points of law. If you‘ll
continue your deliberations.‖
       After the trial court gave these instructions, defense counsel moved for a
mistrial, arguing that instructing the jury to continue deliberations ―invaded [its]
purview.‖ The trial court denied the motion and jury deliberations resumed.



                                           95
       The morning of November 27, 1996, Juror No. 128 informed the court that
she was ―struggling‖ to determine whether she was ―incapable of reaching a
rational decision based on [her] fear of the sentence that [she] may have to
impose,‖ that she had become ―convinced‖ she was ―incapable of sentencing
another human being to death,‖ and that she feared she ―may not or could not have
been totally objective in [her] interpretation of the evidence.‖ During the court‘s
subsequent questioning, the juror indicated she did not think she could ever vote
for the death penalty no matter the facts. The court then asked the juror whether
her reluctance to sentence defendant to death would cause her to refuse to find him
guilty of first degree murder or to find true the alleged special circumstance, even
were she convinced beyond a reasonable doubt on those issues. After first
responding, ―this is where I‘m wrestling,‖ the juror continued: ―Yeah. I honestly
am not sure what‘s happening in my mind and I think that it‘s preventing me from
being able to make my judgment. So I guess my answer would be yes.‖ Based on
these responses, the trial court found ―misconduct at least in the technical legal
sense‖ and ordered that an alternate juror replace Juror No. 128.
       On December 2, 1996, after the Thanksgiving break, the court instructed
the jury to begin deliberations anew. The morning of December 4, the jury
returned its verdicts.

                2. Failure to Declare Mistrial

       As noted above, defendant asserts the trial court erred in failing to declare a
mistrial and instead directing the jury to continue deliberating. In his view, ―the
‗surrounding circumstances‘ ‖ – i.e., approximately 16½ hours of deliberation over
the course of six days – ―demanded that the trial court give controlling weight to
the jurors‘ unanimous judgment that further deliberations would be either futile or
counterproductive.‖ Moreover, defendant argues, the ―sole basis‖ the court
articulated for its decision – that the jury had not ―put in enough time‖ – was




                                         96
―improper‖ because the length of deliberations, though relevant, may not alone be
determinative.
       Defendant‘s argument fails. Section 1140 states in relevant part that,
―[e]xcept as provided by law, the jury cannot be discharged after the cause is
submitted to them until they have agreed upon their verdict and rendered it in open
court, unless . . . at the expiration of such time as the court may deem proper, it
satisfactorily appears that there is no reasonable probability that the jury can
agree.‖ The determination under this section of whether a reasonable probability
of agreement exists ―rests in the discretion of the trial court.‖ (People v. Breaux
(1991) 1 Cal.4th 281, 319 (Breaux).) Thus, contrary to defendant‘s assertion, a
court ―is not bound to take as final the statement of the [jurors] that they cannot
agree upon a verdict.‖ (People v. Greene (1893) 100 Cal. 140, 142.)
       Applying these principles under circumstances analogous to those now
before us, we have upheld a trial court‘s refusal to declare a mistrial. In People v.
Sandoval (1992) 4 Cal.4th 155, 195, after a little more than 14 hours of
deliberation over the course of five days, the jurors informed the court they could
not reach a verdict. Upon the court‘s inquiry, the jury foreperson indicated that,
even were the court to reread the testimony and answer any questions, there was
no reasonable possibility further deliberations would produce a verdict. (Ibid.)
The other jurors then each reiterated to the court that there was no reasonable
possibility of reaching a verdict. (Ibid.) Nevertheless, the court declined to
declare a mistrial, finding that ―a little more time would not be unreasonable in
light of the fact that the trial had lasted five months.‖ (Ibid.) After further
deliberations the next morning, the jury returned verdicts. On these facts, we
found no abuse of discretion. In reaching this conclusion, we expressly rejected
the defendant‘s reliance on ―the length of time the jury had been deliberating‖ and
―the jurors‘ individual statements against the usefulness of further deliberations.‖
(Id. at p. 196.) ―None of these factors,‖ we explained, ―removed the court‘s
discretion to require further deliberations.‖ (Ibid.) ―The court was not


                                          97
unreasonable in concluding that, in light of the fact that the trial itself had taken
some five months, the jury should put in a little more time than the fourteen and
one-quarter hours it had deliberated up to that point.‖ (Id. at pp. 196-197; see also
People v. Breaux, supra, 1 Cal.4th at p. 319 [no abuse of discretion in ordering
further deliberations based on length of deliberations relative to length of trial].)
       The record here supports a similar conclusion. None of the factors
defendant cites – the length of deliberation, the absence of questions about the
law, the jurors‘ statements about their inability to reach a verdict – removed the
trial court‘s discretion to require further deliberation. Nor was it unreasonable for
the court to conclude that, in light of the fact the trial itself had taken two months,
the jurors should put in a little more time than the 16½ hours it had deliberated.
The record shows no abuse of discretion.41

                3. Instruction on Further Deliberation

       Defendant asserts the instruction the trial court gave in directing the jurors
to continue deliberating was prejudicially erroneous in several respects. He first
challenges the court‘s statement, ―I am going to assume only because statistical
probabilities favor[] my assumption that you are not deadlocked 6-6, that it‘s some
other numerical division.‖ He bases his challenge on the high court‘s decision in
Brasfield v. United States (1926) 272 U.S. 448, 449, which held that a trial court
reversibly errs in asking a jury that is unable to reach a verdict how it is divided
numerically, even where the numbers for conviction and acquittal are neither

41       In People v. Caradine (1965) 235 Cal.App.2d 45, 50, on which defendant
relies, the court held that the shortness of deliberations did not alone establish that
the trial court had abused its discretion in declaring a mistrial and refusing to
order further deliberations. Contrary to defendant‘s assertion, this decision does
not establish the converse, i.e., that the shortness of deliberations in relation to the
trial itself may not be the basis for refusing to declare a mistrial and ordering
further deliberations. Nor could it establish that proposition, given our decisions
in Sandoval and Breaux.



                                           98
requested nor revealed. According to defendant, if inquiry into numerical division
is grounds for reversal, so too is the trial court‘s statement here that it ―assume[d]‖
the jurors were not evenly divided numerically.
       Defendant‘s argument fails under our prior decisions, which reject
Brasfield‘s ―rule of procedure [for] federal courts‖ (Breaux, supra, 1 Cal.4th at p.
319) and uphold ―[t]he practice of inquiring into the . . . numerical division‖ of a
jury that has declared itself unable to reach a verdict, without finding out how
many jurors are for conviction and how many are for acquittal (ibid.). Defendant
offers no basis for reexamining these precedents.
       Defendant next challenges the court‘s statement: ―I say this to you: those
of you in the minority, if I am right that it is not just 6-6, I ask that you listen to the
arguments of those in the majority, reweigh your positions, and I also ask that you,
those of you in the minority, continue to argue the positions that you believe to
convince those in the majority. And I say the same thing to the majority. I ask
that you reweigh your positions in the light of all the arguments to see whether or
not those of you in the majority still feel the way you have voted and, at the same
time, ask that you, each of you as a part – the deliberation process is not only
listening to others with an open mind toward reevaluation, if you believe it‘s
appropriate, but it‘s also taking an active part in sharing what you feel and how
you feel and perhaps how you arrive at your feelings. And I say to both the
majority and the minority that that‘s what deliberations are and I ask that both – I
don‘t want to call it sides because then all of a sudden it becomes confrontational
and it shouldn‘t be that way.‖ According to defendant, under our decision in
People v. Gainer (1977) 19 Cal.3d 835 (Gainer), this statement constitutes
reversible error insofar as it addressed the minority and majority ―as distinct
groups‖ and ―essentially mandated‖ that each juror consider the numerical division
or preponderance of opinion of the jury in forming or reexamining their views.
       In Gainer, we held that the trial court had reversibly erred in giving a
―discriminatory admonition directed [only] to minority jurors to rethink their


                                            99
position in light of the majority‘s views.‖ (Gainer, supra, 19 Cal.3d at p. 845.)
The defective instruction in Gainer provided in relevant part: ― ‗[I]f much the
larger of your panel are for a conviction, a dissenting juror should consider
whether a doubt in his or her own mind is a reasonable one, which makes no
impression upon the minds of so many men or women equally honest, equally
intelligent with himself or herself, and [who] have heard the same evidence with
the same attention and with an equal desire to arrive at the truth and under the
sanction of the same oath. [¶] And, on the other hand, if a majority are for
acquittal, the minority ought seriously to ask themselves whether they may not
reasonably and ought not to doubt the correctness of a judgment, which is not
concurred in by most of those with whom they are associated, and distrust the
weight or sufficiency of that evidence which fails to carry conviction to the minds
of their fellows.‘ ‖ (Id. at p. 841.) The first sentence of this instruction, we
explained, improperly ―direct[ed] the jurors to include an extraneous factor in their
deliberations, i.e., the position of the majority of jurors at the moment. The one or
more ‗holdout‘ jurors are told that in reaching their independent conclusions as to
whether or not a reasonable doubt of the defendant‘s guilt exists, they are to weigh
not only the arguments and evidence but also their own status as dissenters – a
consideration both rationally and legally irrelevant to the issue of guilt.‖ (Id. at p.
848, fn. omitted.) More broadly, we reasoned, the instruction‘s ―extraneous
majoritarian appeal‖ was ―manifestly incompatible with‖ the defendant‘s
constitutional right to ―independently achieved juror unanimity,‖ because it
―open[ly] encourage[d]‖ minority jurors to ―abandon their own judgment of the
case‖ and to ― ‗acquiesce in the verdict . . . simply because the verdict ha[d] been
reached by the majority.‘ ‖ (Id. at pp. 848-849.) Finally, we explained, the
instruction‘s ―admonition to minority jurors‖ exerted ―excessive pressure on the
dissenting jurors to acquiesce in a verdict. The dissenters, struggling to maintain
their position in a protracted debate in the jury room, are led into the courtroom
and, before their peers, specifically requested by the judge to reconsider their


                                          100
position. No similar request is made of the majority. It matters little that the judge
does not know the identity of the particular dissenters; their fellow jurors know,
and the danger immediately arises that ‗the . . . charge can compound the
inevitable pressure to agree felt by minority jurors.‘ [Citation.] The charge
‗ ―places the sanction of the court behind the views of the majority, whatever they
may be, and tempts the minority juror to relinquish his position simply because he
has been the subject of a particular instruction.‖ ‘ [Citation.]‖ (Id. at p. 850, fn.
omitted.)
       As is apparent, the instruction defendant challenges here does not share the
vices the Gainer instruction contained. It did not in any way single out minority
jurors or encourage those jurors – if in fact there were any – to consider, along
with the arguments and the evidence, ―their own status as dissenters.‖ (Gainer,
supra, 19 Cal.3d at p. 848.) Rather, it encouraged members of both the majority
and the minority – again, assuming there was a majority and a minority – to
―reweigh [their] positions‖ in light of the ―arguments‖ and to ―have an open mind
. . . to reevaluating.‖42 Nor did the instruction either exert pressure on or in any
way encourage jurors in the minority to abandon their independent judgment and
acquiesce in a verdict simply because the majority had reached a verdict. On the

42      Defendant asserts the trial court‘s instructions to jurors in the minority
differed ―in a significant way‖ from the instruction to jurors in the majority. The
former instructions, he argues, essentially directed minority jurors to ―reweigh‖
their positions in light of ―the arguments of those in the majority,‖ whereas the
latter directed majority jurors to ―reweigh‖ their positions ―in the light of all the
arguments to see whether or not those of you in the majority still feel the way you
have voted.‖ (Italics added.) Defendant overlooks the fact that, after instructing
the jurors in the minority to reweigh their positions, the court began its instruction
to the jurors in the majority by stating, ―And I say the same thing to the majority.‖
He also overlooks the fact that, in concluding its instruction, the court directed all
jurors to ―have an open mind, each of you, whichever side you‘re on, to
reevaluating.‖ Viewing the instructions as a whole, there is little, if any,
likelihood the jurors understood that the court was asking jurors in the minority to
do something different from jurors in the majority.



                                          101
contrary, the instruction ―emphasize[d] that this is not a matter of compromise‖
and that ―[o]ne should not compromise just for the purpose of reaching a verdict.‖
In this regard, the instruction supplemented a standard instruction (CALJIC No.
17.40) the court gave before deliberations began, which stated in relevant part: (1)
―the People and the defendants are entitled to the individual opinion of each
juror‖; (2) ―each of you must decide the case for yourself‖; and (3) ―do not decide
any question in a particular way because a majority of the [jurors], or any of them,
favor such a decision.‖ Nor did the court, through its instructions, in any way
indicate or suggest that it favored a particular verdict or even that it had an opinion
as to the proper verdict under the evidence. Thus, the instruction defendant
challenges bears little resemblance to the Gainer instruction.
       Nevertheless, defendant contends that Gainer requires reversal because,
after emphasizing that the instruction there at issue asked only the jurors in the
minority to reconsider their position, we stated in a footnote: ―Since recognition
of the existence of a majority or minority faction on the jury is irrelevant to the
issue of guilt, such reference is erroneous, even if contained in an arguably
noncoercive, ‗balanced‘ . . . charge which explicitly admonishes the majority as
well as the minority to reconsider their views.‖ (Gainer, supra, 19 Cal.3d at p.
850, fn. 12.) Relying on this statement, defendant argues the instruction here was
erroneous because it ―expressly addressed ‗the minority‘ and ‗the majority‘ as
distinct groups, introducing the ‗rationally and legally irrelevant‘ consideration
identified in Gainer.‖
       Although Gainer‘s statement appears to support defendant‘s position,
several reasons exist for questioning its persuasive force. First, the statement was
dictum, inasmuch as the instruction at issue in Gainer was not balanced; as our
opinion emphasized, only ―the dissenters‖ in Gainer were ―led into the courtroom
and, before their peers [in the majority], specifically requested by the judge to
reconsider their position.‖ (Gainer, supra, 19 Cal.3d at p. 850.) Second, the
dictum is somewhat perplexing given the express endorsement later in the Gainer


                                         102
opinion of the 1970 version of CALJIC No. 17.40, which advised that jurors
―should not be influenced to decide any question in a particular way because a
majority of the jurors, or any of them, favor such a decision.‖ (Italics added; see
Gainer, supra, at p. 856) It seems inconsistent to condemn in the abstract
instructions that recognize the existence of a majority or minority faction on the
jury while simultaneously endorsing a standard instruction that does just that.
Third, in support of the dictum, Gainer cited only People v. Carter (1968) 68
Cal.2d 817 (Gainer, supra, 19 Cal.3d at pp. 850-851, fn. 13), but nothing in that
opinion appears to support the dictum. Fourth, it appears that Gainer has never
been followed on this point in any reported decision. Indeed, in cases where the
facts have actually presented the issue, many state and federal courts have held
that a balanced instruction asking both majority and dissenting jurors to reconsider
their positions is not error. (See, e.g., U.S. v. Boone (3d Cir. 2006) 458 F.3d 321,
331; U.S. v. Hylton (4th Cir. 2003) 349 F.3d 781, 788; U.S. v. Wills (4th Cir. 2003)
346 F.3d 476, 494-495; U.S. v. Clark (6th Cir. 1993) 988 F.2d 1459, 1468-1469;
U.S. v. Nichols (1st Cir. 1987) 820 F.2d 508, 511-512; Sanders v. U.S. (5th Cir.
1969) 415 F.2d 621, 630-631; Miller v. State (Ala.Crim.App. 1994) 645 So.2d
363, 365–366; State v. M.L. Jr. (La. Ct. App. 2010) 35 So.3d 1183, 1194-1195;
State v. Williams (S.C. 2010) 386 S.C. 503, 513-516.) For all of these reasons, we
disapprove Gainer‘s dictum.
       In any event, even were we to find that the trial court in this case erred in
giving a balanced instruction, reversal would be unwarranted. In Gainer, we held
that a discriminatory admonition that directs only minority jurors to rethink their
position in light of the majority‘s views is prejudicial because it ―skews the
deliberative process . . . toward the result favored by the majority,‖ making it
―very likely‖ that prejudice occurred. (Gainer, supra, 19 Cal.3d at p. 854-855.)
However, we also explained that, as to an erroneous instruction that ―does not
threaten to distort the process of jury decision-making to the same degree,‖
reversal is appropriate only if the reviewing court, considering ―all the


                                         103
circumstances under which the charge was given,‖ finds it ―reasonably probable‖
the defendant would have obtained a more favorable result absent the error. (Id. at
p. 855.) Here, no such reasonable probability exists. As previously explained, the
instructions here did not exert pressure on or in any way encourage jurors in the
minority to abandon their independent judgment and acquiesce in a verdict simply
because the majority had reached a verdict. On the contrary, the instructions —
which included a version of CALJIC No. 17.40 substantively identical to the
version we expressly endorsed in Gainer — told jurors that ―this is not a matter of
compromise,‖ that they ―should not compromise just for the purpose of reaching a
verdict,‖ that defendants were ―entitled to the individual opinion of each juror,‖
that ―each of you must decide the case for yourself,‖ and that they should ―not
decide any question in a particular way because a majority of the [jurors], or any
of them, favor such a decision.‖ Given all of the circumstances under which the
charge was given, any error in the court‘s reference to the minority and the
majority as distinct groups was harmless.

       K. Restricted Voir Dire

       Defendant asserts the trial judge prejudicially erred in restricting voir dire
of prospective jurors regarding the effect on their ability to perform their duties of
two circumstances: (1) there were five murder victims; and (2) two of the victims
were children. He argues the error violated his constitutional rights to a fair and
impartial jury, a reliable penalty determination, and due process. For reasons
explained below, defendant‘s argument fails.
       ―Prospective jurors may be excused for cause when their views on capital
punishment would prevent or substantially impair the performance of their duties
as jurors. [Citation.]‖ (People v. Cash (2002) 28 Cal.4th 703, 719 (Cash).) ― ‗A
prospective juror who would invariably vote either for or against the death penalty
because of one or more circumstances likely to be present in the case being tried,
without regard to the strength of aggravating and mitigating circumstances, is


                                         104
therefore subject to challenge for cause, whether or not the circumstance that
would be determinative for that juror has been alleged in the charging document.
[Citations.]‖ (Id. at p. 720, italics omitted.)
       Accordingly, defendants are entitled to ―probe the prospective jurors‘
attitudes‖ as to any fact or circumstance in the case that ―could cause some jurors
invariably to vote for the death penalty, regardless of the strength of the mitigating
circumstances.‖ (Cash, supra, 28 Cal.4th at p. 721.) They may not, however,
pose questions so specific that they require prospective jurors to prejudge the
penalty issue based on a summary of the mitigating and aggravating evidence the
parties are likely to present at trial. (Id. at pp. 721-722.)
       Our prior decisions indicate that, under the above standards, a trial court
would err in categorically prohibiting a defendant from asking prospective jurors
whether they could vote for life without parole for a defendant convicted of
―multiple murder.‖ (People v. Vieira (2005) 35 Cal.4th 264, 286.) As defendant
acknowledges, however, the trial court here imposed no such prohibition. On the
contrary, it distributed a questionnaire to prospective jurors asking them, among
other things, to indicate whether, in a case involving multiple murders, they would
always impose the death penalty, never impose the death penalty, or base their
punishment decision on the evidence introduced at the trial‘s guilt phase and
penalty phases. Moreover, before distributing the questionnaire, the court
informed prospective jurors that the death penalty was potentially at issue because
the prosecution had alleged as a special circumstance that defendant ―has been
convicted in the instant proceeding of more than one murder.‖
       Insofar as defendant asserts that questioning about ―multiple murders‖ was
too general and that the trial court erred in refusing to allow more specific
questioning about the precise number of alleged murders, his argument fails. To
begin with, defendant cites no case holding that a trial court must allow such
specific questioning. ―In deciding where to strike the balance in a particular case,
trial courts have considerable discretion. [Citations.]‖ (Cash, supra, 28 Cal.4th at


                                           105
p. 722.) It is not clear a court would abuse its discretion in allowing questioning
regarding ―multiple murder‖ while precluding questioning regarding the precise
number of murders.
       In any event, even would such a ruling have been an abuse of discretion,
defendant would not be entitled to relief on the record here. ―The gravamen of‖
our decisions in this area ―is that the defense cannot be categorically denied the
opportunity to inform prospective jurors of case-specific factors that could
invariably cause them to vote for death at the time they answer questions about
their views on capital punishment.‖ (Carasi, supra, 44 Cal.4th at p. 1287.) Here,
although initially precluding disclosure of the number of murder victims, the trial
court, pursuant to agreement among counsel, prefaced the live examination of
prospective jurors by reading the indictment, including the five separate murder
counts. Later, in addressing pretrial publicity, the trial court noted that the case
―involves five counts of murder‖ based on ―five homicides occurring at a location
on Maxson Road in the City of El Monte‖ on April 22, 1995. After conveying this
information, the trial court asked each prospective juror during individual
questioning whether, in a penalty phase where the special circumstance is more
than one murder, he or she would always vote to impose the death penalty no
matter what the evidence was, or would be open to returning either the death
penalty or life without parole depending on what the evidence was. It is logical to
assume that, when they answered these questions, the prospective jurors had in
mind the circumstance of which the trial court had informed them at the outset of
the questioning, i.e., that defendant had allegedly murdered five people. (See ibid.
[where court instructs jurors on case-specific factors before death qualification
begins, ―[i]t is logical to assume that when prospective jurors are thereafter
asked . . . whether they would automatically vote for life or death regardless of the
aggravating and mitigating circumstances, they have answered the question with
those case-specific factors in mind, and are aware of the factual context in which
the exchange occurs‖].)


                                         106
       Moreover, the record further discloses that both defendant‘s counsel and
the prosecution, while questioning prospective jurors in open court before other
prospective jurors, discussed the circumstance that there were five alleged murder
victims in the case.43 This record establishes that the voir dire procedures were
adequate to enable defense counsel to determine whether that circumstance would
affect the prospective jurors‘ ability to perform their duty.
       Defendant‘s claim presents a closer question insofar as he argues that the
trial court erred in precluding mention of the circumstance that two of the victims
were children. We have never directly held that the age of a murder victim is a
circumstance that could cause some jurors invariably to vote for the death penalty,
regardless of the strength of the mitigating circumstances, but dicta in several of
our decisions suggests as much. For example, in People v. Roldan (2005) 35
Cal.4th 646, 694, we rejected the defendant‘s claim that the trial court had erred in
precluding additional voir dire of certain prospective jurors, commenting: ―[The]
defendant identifies no fact about his case that is comparable in relevance to the
prior murders in [Cash], facts that could potentially have prejudiced even a
reasonable juror. There were in this case no prior murders, no sensational sex

43      During questioning of a prospective juror, defendant‘s counsel asked: ―Do
you have any notions now, my God, there‘s five murders?‖ The prospective juror
responded, ―Well, that‘s been going through my head, yes.‖ Defendant‘s counsel
then asked, ―And what has been going through your head.‖ The prospective juror
replied, ―How would you weigh that if it did come to that part of the case, the
judgment part.‖ During general questioning, the prosecution stated: ―This is a
very, very serious case. I know you don‘t know about the facts but you do know
that the defendants are charged with killing five people.‖ Later, in probing the
possible effect of Witness No. 16‘s immunity, the prosecutor commented: ―I
know that if I had been seated on the jury and someone said to me in the case
where five people were murdered, . . . that someone had been given immunity, . . .
I know that my feeling would probably be somewhat negative.‖ The prosecution
also asked one of the prospective jurors whether, despite being acquainted with
defendant‘s counsel, he could impose the death penalty if ―at the conclusion of the
case‖ he believed that defendant ―was shown guilty of the five murders.‖



                                         107
crimes, no child victims, no torture. [Citation.]‖ (Italics added.) In People v.
Zambrano (2007) 41 Cal.4th 1082, 1122 (Zambrano), we rejected a similar claim,
explaining: ―The sole fact as to which the defense unsuccessfully sought
additional [voir dire] inquiry — the [dismembered] condition of the adult murder
victim‘s body when found — was not one that could cause a reasonable juror —
i.e., one whose death penalty attitudes otherwise qualified him or her to sit on a
capital jury — invariably to vote for death, regardless of the strength of the
mitigating evidence. No child victim, prior murder, or sexual implications were
involved.‖ (Italics added, original italics omitted.) Defendant relies on this dicta
in support of his argument.
       However, under the circumstances of this case, the trial court did not abuse
its discretion in precluding mention of the circumstance that two of the murder
victims were children. Our recent decisions in this area indicate that, in assessing
whether a trial court erred in refusing to allow questioning about a particular
circumstance, we look not to the circumstance in isolation, but to the entire factual
context, including ―what the prospective jurors [actually] knew about the case.‖
(People v. Solomon (2010) 49 Cal.4th 792, 840 (Solomon).) For example, in
Solomon, we found that the trial court had not abused its discretion in prohibiting
the defendant from questioning prospective jurors about the fact that he had been
to prison for sexually assaulting women and had sexually assaulted some of the six
women he had previously murdered. (Ibid.) These circumstances, we reasoned,
did ― ‗not appear [to be] so potentially inflammatory as to transform an otherwise
death-qualified juror‘ ‖ — who knew from reading the juror questionnaire that
seven women, some of whom were believed to be prostitutes, had been found
buried in backyards and in abandoned houses, and that the defendant had been
convicted of murdering six of them — ― ‗into one who could not deliberate fairly
on the issue of penalty.‘ [Citation.]‖ (Ibid.) Notably, in Solomon, we expressly
found that Roldan, insofar as it mentioned ― ‗sensational sex crimes‘ ‖ and ― ‗child
victims‘ ‖ as circumstances comparable in relevance to the prior murders in Cash


                                         108
that could potentially prejudice a reasonable juror, did not require a different
result: ―The dictum in Roldan suggests that, in an appropriate case, evidence of
‗sensational sex crimes‘ might cause an otherwise death-qualified juror to
automatically vote for death, regardless of the mitigating facts. As we have
explained, however, this is not such a case.‖ (Solomon, supra, at p. 840, fn. 21.)
       We also stressed context in Zambrano, supra, 41 Cal.4th at page 1123, in
finding that the trial court had not erred in precluding voir dire regarding the fact
that the murder victim had been dismembered. We explained: ―[I]nsofar as the
defense sought to restrict examination to the abstract issue of dismemberment, the
question posed was not entirely fair in the context of this case. As jurors would
later learn, the circumstances surrounding the dismemberment of [the victim‘s]
body were hotly disputed. The prosecution urged that defendant used
dismemberment to commit, or cover up, a cold-blooded murder. But defendant‘s
version was that after pulling a gun on defendant, [the victim] died accidentally
during a struggle for the weapon, and that defendant, acting in a panic,
dismembered [the victim‘s] body only to delay its discovery and identification
while he sought legal help. Jurors‘ attitudes toward the dismemberment thus
might well be affected by which version they believed. [¶] Accordingly, were the
defense allowed to broach the dismemberment issue in voir dire, the prosecutor
could strongly argue he should be permitted to explore in more detail how
prospective jurors might react to all the anticipated evidence on that issue. This,
in turn, could have led to a lengthy examination of prospective jurors about
specific details of the case.‖ (Ibid.)
       Based on similar considerations, we find that, on the record here, the trial
court did not err in precluding mention of the circumstance that two of the victims
were children. First, as to defendant, a question about the effect of this
circumstance would not have been ―entirely fair in the context of this case.‖
(Zambrano, supra, 41 Cal.4th at p. 1123.) As jurors would later learn, the
evidence showed that Palma, not defendant, shot the children, that the Mexican


                                         109
Mafia had not ordered the killing of the children, and that the killing of the
children actually violated Mexican Mafia policy. Insofar as defendant was
concerned, this evidence might well have affected the prospective jurors‘ attitudes
regarding the age of the two child victims. Indeed, defendant‘s counsel stressed
this evidence at trial, first at the guilt phase as a basis for not convicting defendant
of the three murders Palma committed, and again at the penalty phase as a basis
for not imposing the death penalty. Thus, had the court allowed defendant to raise
the victims‘ ages during voir dire, the prosecutor could have strongly argued that
he should be permitted to explore in more detail how prospective jurors might
react to all the anticipated evidence on that issue. ―This, in turn, could have led to
a lengthy examination of prospective jurors about specific details of the case.‖
(Ibid.) Second, as noted above, prospective jurors were told that defendant and
Palma were charged with using firearms to willfully, unlawfully, and with malice
aforethought kill five people — three males and two females — at the same place
and on the same day, for the benefit of, at the direction of, and in association with
a criminal street gang, with the specific intent to promote, further and assist in
criminal conduct by the gang members. One of the questionnaires prospective
jurors completed during the selection process contained more than 10 questions
relating to gangs and specifically asked whether prospective jurors had heard of
the Sangra and El Monte Flores ―street gang[s]‖ and the Mexican Mafia ―prison
gang.‖ Given what the prospective jurors knew about the case, the circumstance
that two of the victims codefendant Palma shot and killed were children ― ‗does
not appear so potentially inflammatory as to transform an otherwise death-
qualified juror into one who could not deliberate fairly on the issue of penalty.‘
[Citation.]‖ (Solomon, supra, 49 Cal.4th at p. 840.) Defendant‘s claim therefore
fails.




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       L. Testimony of Anthony France

       As noted above, after defendant introduced his penalty phase evidence, the
prosecution presented testimony from Anthony France regarding a 1991 incident
at San Gabriel High School. According to France, defendant, after being detained
in connection with a campus fight, said he was ―going to put a bullet in [France‘s]
head,‖ called another supervisor ―his bitch,‖ and said he was going to ―kick‖ the
other supervisor‘s ―ass.‖
       When the prosecution first proposed calling France, defendant objected that
France‘s testimony was not proper rebuttal evidence. The court disagreed and
overruled the objection. Defendant renewed his objection after France‘s
testimony, again arguing that it was improper rebuttal. The trial court overruled
the objection, finding that (1) the evidence would have been admissible in the
prosecution‘s case-in-chief as ―factor b‖ evidence under section 190.3, which
permits jurors to consider in determining penalty ―[t]he presence or absence of
criminal activity by the defendant which involved the use or attempted use of
force or violence or the express or implied threat to use force or violence,‖ and (2)
admitting the evidence during rebuttal would not prejudice defendant. Defendant
now renews his objections to France‘s testimony.

                1. The testimony was proper rebuttal evidence.

       Rebuttal evidence is relevant and admissible if it tends to disprove a fact of
consequence on which the defendant has introduced evidence. (People v. Loker
(2008) 44 Cal.4th 691, 709.) The scope of proper rebuttal depends on ―the breadth
and generality of the direct evidence.‖ (Ibid.) ―[E]vidence presented or argued as
rebuttal must relate directly to a particular incident or character trait [the]
defendant offers in his own behalf.‖ (People v. Rodriguez (1986) 42 Cal.3d 730,
792, fn. 24.) When a defendant places his character at issue during the penalty
phase of a capital trial, the prosecution may respond by introducing character
evidence to undermine the defendant‘s claim that his good character weighs in


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favor of mercy and to present a more balanced picture of the defendant‘s
personality. (People v. Loker, supra, 44 Cal.4th at p. 709.) The trial court has
broad discretion to determine the admissibility of rebuttal evidence and, absent
palpable abuse, an appellate court may not disturb the trial court‘s exercise of that
discretion. (People v. Gurule (2002) 28 Cal.4th 557, 656.)
       Here, the trial court did not abuse its discretion in initially determining that
France‘s testimony was admissible rebuttal evidence. As noted above, during the
penalty phase, defendant introduced evidence regarding his intelligence, his
positive performance in school, and other positive aspects of his background,
including his religious upbringing, his participation in youth sports, his
participation in the Navy Reserves, his work history, and his efforts to care for his
grandfather and to support his younger brother. He also offered evidence that he
could make a positive contribution in prison by helping other inmates. The trial
court did not abuse its discretion in finding that, to counter this evidence and to
present a more balanced picture of defendant‘s personality, the prosecution could
introduce through France‘s testimony evidence that, in a structured school setting,
defendant had physically threatened school personnel who detained him after
breaking up a campus fight. (See People v. Clark (1993) 5 Cal.4th 950, 1026-
1027 [evidence of school suspensions admissible to rebut the defendant‘s evidence
of his good character, including testimony that he was an excellent Boy Scout and
a good student]; People v. Mitcham (1992) 1 Cal.4th 1027, 1071-1072 [evidence
of juvenile misconduct was admissible to rebut the defendant‘s evidence of his
character, including testimony that he was a good student].)
       The closing argument of defendant‘s counsel at the penalty phase reinforces
this conclusion. Counsel argued that the evidence of defendant‘s positive school
performance, his ―good background,‖ and his demonstrated willingness to assist
other inmates showed that defendant could and would atone for his crimes were
the jury to spare his life and impose a life sentence. Counsel explained: ―[Y]ou
have put everything in a structured situation, everything, all of his training of his


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parents and our society invested because he went most of the time to school where
he can do some good inside‖ by helping other inmates. To reinforce his argument,
counsel stressed that the prosecution had offered no evidence defendant had been
arrested before committing the murders in this case. In fact, defense counsel
argued that the only evidence defendant had even previously been in trouble was
France‘s testimony about the high school incident. Thus, France‘s testimony not
only enabled the prosecution to counter defendant‘s argument for mercy based on
his positive school performance, his ―good background,‖ and his demonstrated
willingness to assist other inmates, it prevented defendant from arguing there was
no evidence defendant had even been in trouble before committing the murders.
On this record, the trial court did not abuse its discretion in admitting France‘s
testimony.

                2. Admission Under Factor (b) Was Harmless

       Defendant makes several challenges to admission of France‘s testimony
under section 190.3, factor (b) (factor (b)). He argues the testimony was not
admissible on this basis because his conduct ―did not constitute ‗criminal activity‘
in violation of any penal statute.‖ He also argues the trial court erred in failing to
give sua sponte CALJIC No. 8.87, which instructs jurors they may not consider as
an aggravating circumstance a criminal act involving the threat of force or
violence unless they find beyond a reasonable doubt that the defendant committed
the act. These errors, defendant contends, were prejudicial because they ―allowed
the jury to consider evidence in aggravation even though [his] conduct did not
constitute a violation of a penal statute,‖ and the evidence ―was not cumulative of
any other properly admitted factor (b) evidence.‖
       We agree with the People that any error in admitting France‘s testimony as
factor (b) evidence was harmless under any standard. As explained above, the
trial court properly admitted France‘s testimony as rebuttal evidence. Thus,
regardless of whether the evidence was admissible under factor (b), the jury


                                         113
properly learned about the high school incident. It is true, as defendant notes, that
during argument, the prosecution told the jurors they could consider the evidence
of the high school incident with respect to factor (b). However, after this brief
mention of factor (b), the prosecutor did not focus on the incident as evidence of a
prior crime; indeed, he noted several times that France had not even taken the
threat seriously. Instead, the prosecutor argued that defendant‘s statement during
the incident ―tells you . . . quite a bit about Mr. Valdez,‖ that it showed ―the true,‖
―the real,‖ and ―the manipulative Mr. Valdez,‖ who ―wants to intimidate‖ and who
―means business‖ when he ―makes that kind of statement.‖ The prosecutor could
have made the same arguments based on the evidence‘s admission as rebuttal
evidence. Thus, as the People explain, despite the prosecutor‘s brief mention of
factor (b) before discussing France‘s testimony, that testimony was, in essence,
―actually presented to the jury‖ as rebuttal evidence.
       Second, the properly admitted aggravating evidence in this case –
specifically, the circumstances of the crime (§ 190.3, factor (a)) – was simply
overwhelming. From that evidence, the jury found that defendant participated in
five execution-style shootings of unarmed and unresisting victims. Defendant
personally executed two of the victims by pressing a gun to their heads and firing
at point-blank range. France‘s testimony about the high school incident paled in
comparison to the seriousness and excessive violence of the charged offenses. As
defendant‘s counsel emphasized to the jury during cross-examination, defendant‘s
threat was no different from threats other students had made and France had not
taken it seriously. Thus, the jurors no doubt viewed the incident the same way
defendant‘s counsel characterized it to the court: just ―a hot-headed student after a
fight making idle threats.‖ To rebut the overwhelming aggravating evidence,
defendant offered little evidence in mitigation. Notably, his own witness, Dr.
Fairbanks, testified that he could find no mitigating circumstances ―of any major
significance‖ here. Given all of the circumstances, ―[i]t would require capricious
speculation for us to conclude‖ that any error in admitting France‘s testimony


                                          114
under factor (b) ―affected the penalty verdict.‖ (Belmontes, supra, 45 Cal.3d at p.
809 [erroneous admission of factor (b) evidence was harmless given that ―[t]he
properly admitted aggravating evidence,‖ i.e., ―the circumstances of the crime,‖
was ―overwhelming‖]; see also People v. Silva (1988) 45 Cal.3d 604, 636 [finding
harmless error because erroneously admitted factor (b) evidence was ― ‗trivial
when compared to [defendant‘s] crimes and the other proper evidence adduced at
the penalty phase‘ ‖].)

         M. Failure to Reread Guilt Phase Instructions

         During discussions with counsel about the penalty phase jury instructions,
the court, after indicating that all of the guilt phase instructions applied to the
penalty phase except those telling jurors they could not consider sympathy or
penalty, stated: ―My belief is that all the other instructions to the extent that they
apply, there may be some that don‘t, but I don‘t think it‘s confusing to just tell the
jury that all the previous instructions do apply with those . . . exceptions.‖ The
prosecutor replied that the reasonable doubt and circumstantial evidence
instructions from the guilt phase also were inapplicable to the penalty phase, and
then added: ―I would have no objections to the court just simply telling the
[jurors] . . . that they certainly can now consider sympathy and they certainly can
consider penalty or punishment and that they can consider the rest of the
instructions that have previously been given as they feel they apply.‖ The court
responded, ―All right,‖ and the prosecutor interjected, ―If no one else has an
objection to it.‖ Counsel for both defendant and Palma responded, ―I agree with
that.‖
         Based on counsel‘s agreement, the court instructed the jury as follows:
―Generally speaking, all of the instructions I gave you in the first phase you may
consider to the extent that they‘re applicable in this phase and I am not going to re-
read all of those instructions. There are several areas that don‘t apply. For
instance, I told you in the first phase that you could not consider sympathy for a


                                          115
defendant in determining guilt. In this phase you may if you deem it to be
appropriate, consider sympathy in selecting your verdict. [¶] In the first phase I
told you that you could not in determining the guilt or innocence of a defendant
consider or . . . any way take into consideration punishment. Obviously, that‘s the
whole focus of your attention in this case. [¶] And I also told you of the standard
of proof in the first case was proof beyond a reasonable doubt. That instruction
does not apply to this phase. And there may be a couple of others that you‘ll find
by just applying common sense or are just not applicable.‖ After giving this
instruction, the court also gave CALJIC Nos. 8.84 (penalty phase introduction),
8.85 (penalty phase factors to consider), 9.20 (assault with a deadly weapon on a
peace officer), 9.02 (great bodily injury), 8.88 (penalty phase concluding
instruction), and special instructions regarding sympathy, lingering doubt and
deterrence.
       Defendant now claims the penalty phase instructions were inadequate
because the court failed to reread instructions from the guilt phase that also
applied to the penalty phase and failed to give CALJIC No. 8.84.1, which states in
part that jurors ―must neither be influenced by bias nor prejudice against the
defendant, nor swayed by public opinion or feelings.‖ The court compounded
these errors, defendant asserts, by instructing jurors it was their job to determine
which instructions from the guilt phase applied during the penalty phase.
       For several reasons, defendant‘s claims fail. Procedurally, defendant
forfeited appellate review of the issue by failing to raise it in the trial court and,
through counsel, expressly agreeing that the court could simply tell jurors they
could ―consider the rest of the instructions that have previously been given as they
feel they apply.‖ (See People v. Rundle (2008) 43 Cal.4th 76, 188.) As to the
merits, a trial court‘s failure to specify which previously given guilt phase
instructions apply at the penalty phase is error only if a reasonable likelihood
exists that the omission misled the jury. (People v. Romero (2008) 44 Cal.4th 386,
424 (Romero).) In Romero, we found ―[n]o such reasonable likelihood,‖


                                          116
emphasizing that the trial court had ―told the jury that many of the guilt phase
instructions would not apply at the penalty phase‖ and had ―specifically singled
out punishment and sympathy as matters ‗obviously‘ to be considered by the jury
at the penalty phase.‖ (Ibid.) We reach the same conclusion in this case, which
involves substantially similar circumstances.
       Ignoring these authorities, defendant argues the jurors ―might reasonably
have concluded‖ under the trial court‘s instructions that CALJIC No. 2.60, which
directs jurors not to infer guilt from a defendant‘s failure to testify, ―did not apply
to their penalty determination.‖ He reasons that the principle CALJIC No. 2.60
states, though ―commonly understood‖ to apply ―to a determination of guilt,‖
would not necessarily also be understood to apply ―to a determination of penalty.‖
       Defendant‘s argument fails because, as the People correctly explain,
nothing in CALJIC No. 2.60‘s language suggests the instruction is inapplicable to
the penalty phase. On the contrary, the instruction plainly and categorically states
that ―[a] defendant in a criminal trial has a constitutional right not to be compelled
to testify,‖ that jurors ―must not draw any inference from the fact that a defendant
does not testify,‖ and that jurors ―must neither discuss this matter nor permit it to
enter into [their] deliberations in any way.‖ 44 (CALJIC No. 2.60.)
       Finally, given that the trial court did not err in directing the jury to apply
the guilt phase instructions, it also did not err in failing to give CALJIC No.
8.84.1. That instruction would have contradicted the instructions the trial court
gave pursuant to the parties‘ agreement by directing jurors to ―accept and follow
the law‖ as set forth in the penalty phase instructions and to ―[d]isregard all other

44      Moreover, as we have observed, this instruction ―is of only questionable
value to the defense‖ because it ―draws attention‖ to the defendant‘s failure to
testify at the same time it cautions the jury not to draw an adverse inference from
that failure. (People v. Stanley (2006) 39 Cal.4th 913, 966.) Thus, defendant‘s
failure to request rereading of the instruction at the penalty phase may ―reflect a
reasoned tactical decision. [Citation.]‖ (Ibid.)



                                          117
instructions given to you in other phases of this trial.‖ (See People v. Harris,
supra, 43 Cal.4th at pp. 1319-1320 [―it was confusing for the jury to hear first that
it was to ‗[d]isregard all other instructions given to you in other phases of this
trial,‘ and then that it should ‗be guided by the previous instructions given in the
first phase of this case which are applicable and pertinent to the determination of
penalty‘ ‖].) For the above reasons, defendant‘s claims fail.

       N. Automatic Motion To Modify The Death Verdict

       After receiving the jury‘s penalty verdicts on December 13, 1996, Judge
Trammell, who presided over the guilt and penalty phases of defendant‘s trial, set
sentencing proceedings for February 19, 1997. Before that date, Judge Trammel
retired. Judge Robert Armstrong took over the case and, at defense counsel‘s
request, continued sentencing proceedings to June 11, 1997. On June 4, Judge
Armstrong denied defense counsel‘s request for another continuance. Two days
later, and only five days before the scheduled June 11 hearing, Palma filed a
motion for a new trial and an application under Penal Code section 190.4,
subdivision (e), for modification of the death verdict to life imprisonment without
the possibility of parole.
       Judge Armstrong began the June 11 hearing by denying defense counsel‘s
request for yet another continuance and Palma‘s new trial motion, and then took
up Palma‘s modification application. After noting that Palma‘s written application
highlighted the court‘s obligation to review the special circumstance findings,
Judge Armstrong, addressing Palma‘s counsel, stated: ―The Court has read the
transcript of the proceedings in which the – on penalty phase of the trial, and I‘ve
also read the material that‘s been submitted by [Palma]. [¶] And the factors that
[Palma] suggested were either neutral or mitigating factors. [¶] Do you have
anything to add to what you filed in this regard . . . .‖ Palma‘s counsel submitted
the matter on the written application. After the prosecutor responded, defendant‘s
counsel indicated that defendant wanted to join Palma‘s application. Judge


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Armstrong then denied the motion, explaining: ―The principal thrust of the
argument seems to be that because the defendants were members of the Mexican
Mafia, that they were acting under duress. [¶] But, of course, that contention
would be better supported if there were people there so that if they didn‘t carry out
this hit that they were supposed to, that they would immediately be executed
themselves. And that simply isn‘t supported. [¶] They‘re obviously – this was a
Mexican Mafia situation, but the defendants had free will. And particularly the
killing of the baby just seems to be so outside of the pale of anything, that showed
a wantonness, as far as these defendants were concerned, to wipe out a family.
The baby and the child were certainly not the objects of the wrath of the Mexican
Mafia people. [¶] So I think that reviewing all of the evidence that was taken at
the hearing, it just seems to the Court that it would be almost impossible for any
responsible jury in this situation to come to any other verdict other than the verdict
of death. [¶] And the Court finds no basis for setting aside or for modifying the
finding to life without possibility of parole in keeping with the special
circumstances.‖
       On appeal, defendant asserts that Judge Armstrong, who did not preside at
trial, failed to review the record of the trial‘s guilt phase in making his ruling.
Because of this failure, defendant argues, Judge Armstrong ―was unfamiliar with‖
the evidence that the Mexican Mafia did not want the children killed. According
to defendant, this was the ―most important‖ mitigating evidence, in that it
―suggest[ed]‖ that Palma‘s execution of the children contravened, rather than
furthered, the conspiracy. Because Judge Armstrong did not know of this
evidence, defendant asserts remand for a new modification hearing is required.
       Procedurally, by failing to make a contemporaneous objection in the trial
court, defendant forfeited his right to raise this issue on appeal. As to modification
rulings made after 1992, appellate review of a claimed deficiency in the ruling is
not available unless the defendant brought the deficiency ―to the trial court‘s
attention by a contemporaneous objection.‖ (People v. Mungia (2008) 44 Cal.4th


                                          119
1101, 1141.) The purpose of this rule — ―to give the court an opportunity to
correct the error‖ (ibid.) — fully applies in this case. Defendant bases his claim
that Judge Armstrong failed to review the guilt phase record entirely on Judge
Armstrong‘s statements at the modification hearing. Had defendant raised his
claim at the hearing, Judge Armstrong could have reviewed the guilt phase record
if, in fact, he had not already done so. Defendant therefore forfeited his claim.
(See also People v. Wallace (2008) 44 Cal.4th 1032, 1096 [by failing to object
―when the trial court ruled on‖ the modification application, defendant forfeited
claim that court erred in failing to consider as mitigation his age, mental state,
alcoholism, and intoxication at the time of the offense, and in finding that section
190.3, factor (k) was the only mitigating factor].)
       In any event, the claim lacks merit. In reviewing modification rulings, as a
general rule, we presume the trial court properly followed established law.
(People v. Crew, supra, 31 Cal.4th at p. 859; see Evid. Code, § 664 [―[i]t is
presumed that official duty has been regularly performed‖].) As here relevant,
section 190.4, subdivision (e), provides that, ―[i]n ruling on the [modification]
application, the judge shall review the evidence, consider, take into account, and
be guided by the aggravating and mitigating circumstances referred to in [s]ection
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.‖ (Italics added.) We have
construed this section as requiring the court in ruling on a modification application
independently to reweigh the evidence of aggravating and mitigating
circumstances and to determine in its independent judgment whether the weight of
the evidence supports the jury‘s verdict. (People v. Burgener (2003) 29 Cal.4th
833, 890.) Thus, a presumption exists here that Judge Armstrong performed his
duty and reviewed the evidence in deciding the modification application. (Cf.
People v. Coddington, supra, 23 Cal.4th at pp. 644-645 [applying presumption
that ―judicial duty is properly performed‖ in finding that court complied with duty


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to base modification ruling ―solely on the evidence before the jury‖].) ―This
presumption ‗affect[s] the burden of proof‘ (Evid. Code, § 660), meaning that the
party against whom it operates — here, the defendant — has ‗the burden of proof
as to the nonexistence of the presumed fact.‘ (Evid. Code, § 606; [citation].)‖
(People v. Martinez (2000) 22 Cal.4th 106, 125.)
       Defendant has failed to meet his burden. To begin with, in several ways,
the record affirmatively supports the presumption that Judge Armstrong properly
reviewed the evidence. First, at a June 4 hearing on defense counsel‘s request for
a further continuance, Judge Armstrong reminded defense counsel that he had
earlier asked them to direct his attention to any alleged trial error because he
―ha[d] the full transcript of the proceedings, some thousands of pages of the trial
itself.‖ Second, at the June 11 hearing on Palma‘s new trial motion, Judge
Armstrong demonstrated his familiarity with the guilt phase record by correctly
challenging the assertion of Palma‘s counsel that Judge Trammell, upon being
informed of the jury deadlock, told the jurors to ―compromise‖ if necessary to
reach a verdict. Third, when Palma‘s counsel asked during the discussion of this
issue whether the court had ―read the transcripts in this matter,‖ Judge Armstrong
replied, ―I have reviewed them.‖ Fourth, Palma‘s written modification motion
emphasized the court‘s ―duty‖ under section 190.4, subdivision (e), ―to review the
evidence,‖ to ―make findings on its sufficiency to support the verdicts,‖ and ―to
―independently weigh the evidence of aggravating and mitigating circumstances‖
in ―determin[ing] whether, in [its] independent judgment, [the] weight of the
evidence supports the jury‘s verdict.‖ Fifth, Judge Armstrong began his
consideration of the modification application at the June 11 hearing by noting that
Palma‘s written material ―point[ed] out that the court has the obligation to review
the special circumstances, the findings.‖ Sixth, Judge Armstrong next noted that
he had read ―the [written] material that‘s been submitted by‖ Palma, including
―the factors that [Palma] suggested were either neutral or mitigating factors.‖
Notably, the first factor Palma‘s written material discussed was the ―circumstances


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of the crime.‖ Regarding this factor, Palma, after noting that the court had
―presumably reviewed the transcripts as to the facts of the case,‖ argued that
because ―any crime involving murder and special circumstances is horrible,‖
―[t]his should be considered a neutral factor.‖ These aspects of the record support
the presumption that Judge Armstrong carried out his duty to review the evidence.
       Also supporting that presumption are some of Judge Armstrong‘s remarks
at the modification hearing. As noted above, in announcing his ruling, Judge
Armstrong explained in part: ―[The] contention [about duress] would be better
supported if there were people there so that if they didn‘t carry out this hit . . . they
would immediately be executed themselves. And that simply isn‘t supported.‖
The parties never mentioned whether people were present to execute defendant
and Palma if they failed to commit the murders, so Judge Armstrong‘s comment
appears to reflect his own view of the evidence based on his review of the record.
Judge Armstrong also explained that the child victims ―were certainly not the
objects of the wrath of the Mexican Mafia people.‖ This comment, which appears
to reference the evidence that the Mexican Mafia did not want the children killed,
is significant because nothing in the record indicates the parties mentioned this
evidence or this circumstance to Judge Armstrong during posttrial proceedings.
Although not definitive, these comments further suggest that Judge Armstrong
reviewed the guilt phase record before denying the modification application.
       The isolated snippets of the record defendant cites in support of his contrary
conclusion are insufficient to meet his burden to show otherwise. Defendant cites
Judge Armstrong‘s statement to Palma‘s counsel during the hearing on the new
trial motion that he had ―read the parts [of the record] that had to do with penalty,
and . . . the parts that had to do with deliberation.‖ However, Judge Armstrong
immediately prefaced this statement, which was part of his response to Palma‘s
counsel‘s question about whether the court had ―read the transcripts in this
matter,‖ by stating: ―I have reviewed them. I haven‘t read them line by line.‖
Read together, Judge Armstrong‘s comments may reasonably be understood as


                                          122
indicating that he had ―reviewed‖ all of the transcripts and had closely ―read‖ –
i.e., read ―line by line‖ – the parts dealing with penalty and deliberations.
Defendant also cites Judge Armstrong‘s statement at the beginning of the hearing
on Palma‘s modification motion that ―[t]he Court has read the transcript of the
proceedings in which the – on penalty phase of the trial, and . . . the material that‘s
been submitted by‖ Palma. However, as noted above, Judge Armstrong explained
that the ―submitted‖ material he reviewed included ―the factors that [Palma]
suggested were either neutral or mitigating factors,‖ and the first factor Palma‘s
application discussed was the ―circumstances of the crime.‖ Thus, read in context,
Judge Armstrong‘s statement may be reasonably understood as indicating that he
reviewed the parts of the record relevant to the factors Palma had discussed,
including the circumstances of the crime. In neither instance did Judge Armstrong
affirmatively state that he had not reviewed the guilt phase record insofar as it
pertained to the circumstances of the crime. Moreover, that counsel for both
defendant and Palma, who heard the court‘s comments in context, failed to object
suggests they understood those comments as indicating that Judge Armstrong had,
in fact, reviewed the guilt phase record. (Cf. People v. Hooton (1959) 53 Cal.2d
85, 88 [defendant‘s failure to object that court had overlooked its power to impose
a life sentence suggests defendant ―understood‖ the court‘s remarks as indicating
that court was exercising its power].) At most, the comments defendant cites are
ambiguous on this question. As such, they are insufficient to overcome the
presumption that Judge Armstrong performed his duty to review the guilt phase
record and the circumstances discussed above supporting that presumption.45
       Nor has defendant overcome that presumption by citing Judge Armstrong‘s
comment in making his ruling that defendant and Palma ―were members of the
Mexican Mafia.‖ According to defendant, had Judge Armstrong read the

45   Of course, defendant could have easily clarified the meaning of the court‘s
comments simply by objecting when Judge Armstrong made them.



                                         123
transcripts of the guilt phase, he would have known that defendant and Palma were
not Mexican Mafia members. Judge Armstrong‘s contrary understanding,
defendant reasons, ―apparently reflected the fact that he was only familiar with the
penalty phase portion of the trial record,‖ because Palma‘s counsel, in arguing
duress to the jury during that phase, ―made repeated references to the Mexican
Mafia, but none to the Sangra gang.‖ However, defendant‘s reasoning is faulty
because other parts of the penalty phase record, which Judge Armstrong stated he
had reviewed, clarified that defendant and Palma were members of the Sangra
gang, rather than the Mexican Mafia. Judge Armstrong also would have learned
this fact in denying Palma‘s new trial motion, which was based in part on the
court‘s orders restricting disclosure of witnesses‘ identities. As noted above, those
orders were based in part on evidence that Sangra gang members had committed
the murders at the Mexican Mafia‘s behest. Thus, as the People argue, Judge
Armstrong‘s misstatement, rather than reflecting a failure to review the guilt phase
record, more likely reflects that the precise gang affiliation of defendant and
Palma ―was not directly pertinent to the point the court was making,‖ i.e., ―that
even though the defendant‘s had been ordered [by the Mexican Mafia] to commit
the killings, there was no duress in the sense of an immediate physical threat.‖ In
any event, any ambiguity Judge Armstrong‘s comment created regarding the
extent of his record review is insufficient to overcome the presumption that he
performed his duty and the circumstances discussed above supporting that
presumption. For all of the above reasons, defendant‘s claim fails.

       O. Constitutionality of California’s Death Penalty Scheme

       Defendant makes numerous constitutional challenges to California‘s death
penalty scheme. He acknowledges we have previously rejected these challenges,
but asks that we reconsider our prior decisions. We reject his request.




                                         124
       In permitting jurors to consider the ―circumstances of the crime,‖ section
190.3, factor (a), does not result in the arbitrary and capricious imposition of the
death penalty. (People v. Kennedy (2005) 36 Cal.4th 595, 641.)
       The trial court need not instruct jurors that (1) they must find beyond a
reasonable doubt that aggravating circumstances exist, that the aggravating factors
outweigh the mitigating factors, and that the aggravating factors are so substantial
as to make death the appropriate punishment (People v. Mendoza (2007) 42
Cal.4th 686, 707); (2) the prosecution has the burden of persuasion regarding these
matters (People v. Lenart (2004) 32 Cal.4th 1107, 1136-1137); (3) they should
presume life imprisonment without the possibility of parole is an appropriate
sentence (People v. Arias (1996) 13 Cal.4th 92, 190); (4) their findings regarding
aggravating factors must be unanimous (People v. Prieto, supra, 30 Cal.4th at p.
275); (5) they may not consider acts of prior unadjudicated criminality as an
aggravating circumstance unless they unanimously find that defendant committed
those criminal acts (People v. Ward (2005) 36 Cal.4th 186, 221-222); (6) the
central determination is whether death is the appropriate penalty (People v.
Boyette (2002) 29 Cal.4th 381, 465); (7) they should impose life imprisonment
without the possibility of parole if they find that the mitigating circumstances
outweigh the aggravating circumstances (People v. Catlin (2001) 26 Cal.4th 81,
174); (8) they may impose life imprisonment without the possibility of parole even
if they find that the aggravating factors are ― ‗so substantial in comparison with the
mitigating factors that it warrants death instead of life without parole‘ ‖ (People v.
Smith (2005) 35 Cal.4th 334, 370); (9) their findings regarding mitigating
circumstances need not be unanimous or beyond a reasonable doubt (People v.
Lewis, supra, 43 Cal.4th at p. 534); or (10) certain sentencing factors are only
relevant as mitigating (People v. Farnam (2002) 28 Cal.4th 107, 191).
       The instructions were not impermissibly broad or vague in directing jurors
to determine whether the aggravating factors were ―so substantial in comparison



                                         125
with the mitigating factors that it warrants death instead of life without parole.‖
(See People v. Carter (2003) 30 Cal.4th 1166, 1226.)
       Jurors need not make written findings in determining penalty. (People v.
Cook (2006) 39 Cal.4th 566, 619.)
       Including in the list of potential mitigating factors adjectives such as
―extreme‖ (§ 190.3, factors (d), (g)) and ―substantial‖ (id. factor (g)) does not erect
an impermissible barrier to the jury‘s consideration of mitigating evidence.
(People v. Avila (2006) 38 Cal.4th 491, 614.)
       The trial court need not delete factually inapplicable sentencing factors
from the instructions. (People v. Cook, supra, 39 Cal.4th at p. 618.)
       The absence of intercase proportionality review is not unconstitutional.
(Prieto, supra, 30 Cal.4th at p. 276.)
       The death penalty scheme, insofar as defendant alleges it affords capital
defendants fewer procedural protections than the law affords noncapital
defendants, does not violate constitutional guarantees of equal protection. (People
v. Manriquez (2005) 37 Cal.4th 547, 590.)
       International law does not bar imposing a death sentence rendered in accord
with state and federal constitutional and statutory requirements. ((People v. Cook,
supra, 39 Cal.4th at p. 620.)

       P. Cumulative Error

       Defendant contends the errors he alleges cumulatively amounted to
reversible error. To the extent there are a few instances in which we have found
error or assumed its existence, no prejudice resulted. The same conclusion is
appropriate after considering their cumulative effect.




                                         126
                               IV. DISPOSITION

     We affirm the judgment.


                                                 CHIN, J.

WE CONCUR:

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




                                    127
                     CONCURRING OPINION BY LIU, J.



       I join today‘s opinion and write separately to add two comments
concerning the trial court‘s restriction on voir dire of prospective jurors. (See maj.
opn., ante, at pp. 104-110.)
                                          I.
       As the court notes, we said in People v. Cash (2002) 28 Cal.4th 703 that
―death-qualification voir dire must avoid two extremes. On the one hand, it must
not be so abstract that it fails to identify those jurors whose death penalty views
would prevent or substantially impair the performance of their duties as jurors in
the case being tried. On the other hand, it must not be so specific that it requires
the prospective jurors to prejudge the penalty issue based on a summary of the
mitigating and aggravating evidence likely to be presented. [Citation.] In
deciding where to strike the balance in a particular case, trial courts have
considerable discretion. [Citations.]‖ (Id. at pp. 721-722.)
       In exercising such discretion, trial courts should be mindful that the risks on
the two sides of the balance are not symmetrical. If voir dire is too abstract, it may
fail to identify a prospective juror whose views on the death penalty prevent him
or her from impartially weighing the facts and following the law. (See Rosales-
Lopez v. United States (1981) 451 U.S. 182, 188 [―Without an adequate voir dire
the trial judge‘s responsibility to remove prospective jurors who will not be able
impartially to follow the court‘s instructions and evaluate the evidence cannot be


                                          1
fulfilled.‖].) As a result, an unqualified juror may end up serving on the jury.
That was the basis for reversal of the conviction in Cash. By restricting voir dire
with respect to the defendant‘s commission of prior murders, the trial court in
Cash ―created a risk that a juror who would automatically vote to impose the death
penalty on a defendant who had previously committed murder was empanelled
and acted on those views, thereby violating defendant‘s due process right to an
impartial jury.‖ (Cash, supra, 28 Cal.4th at p. 723.)
       If voir dire is too specific, the risk is that prospective jurors will be asked to
prejudge the case. A prospective juror may have no categorical biases such as ―I
will automatically vote for the death penalty where the murder victim is a child.‖
But a prospective juror‘s answers to questions about the specifics of a case may
suggest how he or she is likely to vote upon hearing the evidence to be presented
at trial. Those answers may lead the prosecution or the defense to peremptorily
challenge a prospective juror who is in fact impartial and qualified to serve.
       For obvious reasons, we do not want the conduct of voir dire to encourage
the parties to ask prospective jurors to prejudge the case. But asking a prospective
juror too many questions about the particular circumstances of a case does not
have the same potential for mischief as asking too few questions. Asking a
potential juror too many questions may tip the juror‘s hand as to how the juror
might actually vote in the case, which might lead to a peremptory challenge
against a qualified juror. Yet peremptory challenges are usually exercised against
qualified jurors in any event. By contrast, not asking enough questions leaves a
dearth of information which may result in the empanelment of an unqualified juror
— a juror whose death penalty views will substantially impair his or her ability to
impartially apply the law to the facts. The latter implicates the fairness of the trial
in a manner that the former does not.



                                           2
        This asymmetry does not by itself suggest a general rule for achieving the
balance required by Cash. Because the facts of each case are integral to
determining the proper scope of voir dire, trial courts have broad discretion in this
area, and in a given case, there may be several approaches to death-qualification
voir dire that are reasonable and not reversible for abuse of discretion. However,
in exercising discretion, trial courts should take into account the important
distinction between the risk of empanelling an unqualified juror and the risk of
subjecting a qualified juror to peremptory challenge. This distinction may be
consequential to a trial court‘s judgment not only as to what is a reasonable
approach to voir dire, but also as to what is the most fair approach among several
possible reasonable approaches.
                                          II.
        The court rejects defendant‘s claim that the trial court should have allowed
death-qualification voir dire on the fact that two of the murder victims were
children. (See maj. opn., ante, at pp. 107-110.) I agree that the trial court‘s
handling of voir dire was not unreasonable in light of the circumstances here —
most notably, the fact that defendant did not personally kill the child victims. But
this conclusion must be understood as a fact-bound exception to a more general
rule.
        As the court explains (maj. opn., ante, at pp. 107-108), we have repeatedly
suggested, albeit in dicta, that the murder of a child falls within the category of
circumstances that have the potential to ―cause a reasonable juror — i.e., one
whose death penalty attitudes otherwise qualified him or her to sit on a capital jury
— invariably to vote for death, regardless of the strength of the mitigating
evidence.‖ (People v. Zambrano (2007) 41 Cal.4th 1082, 1122, disapproved on
another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see People
v. Roldan (2005) 35 Cal.4th 646, 694, disapproved on another ground in Doolin,

                                           3
supra, 45 Cal.4th at p. 421, fn. 22; see also People v. Tate (2010) 49 Cal.4th 635,
658 [quoting Roldan].)
       In People v. Alfaro (2007) 41 Cal.4th 1277, we recognized that the age of a
minor victim is an important circumstance on which the parties should be allowed
to question prospective capital jurors. The defendant in Alfaro, who was charged
with killing a nine-year-old girl, claimed error in the trial court‘s refusal to allow
her to voir dire prospective jurors with specific questions regarding the minor
victim‘s age. We rejected the claim under the circumstances there, noting that
―[a]lthough the trial court rejected [the] defendant‘s specific questions concerning
whether the victim‘s age would impair the prospective jurors‘ ability to remain fair
and impartial, it nonetheless permitted extensive questioning on this subject.‖ (Id.
at p. 1311, fn. omitted.) Alfaro concluded: ―All of the prospective jurors
repeatedly were made aware of the unusual circumstances of this case, and
numerous prospective jurors revealed that the victim‘s young age would prevent
their serving as fair and impartial jurors. Numerous other prospective jurors
candidly told the court that this circumstance would weigh heavily on them, but
maintained they nonetheless could retain an open mind, and defense counsel was
permitted to fully examine each of those jurors regarding the sincerity of those
stated beliefs. In light of the exhaustive examination of the issue during the
penalty retrial, we discern no prejudicial error in the trial court‘s rejection of
defendant‘s specific proposed question regarding the victim‘s age.‖ (Id. at pp.
1312-1313.) Our observation in Alfaro that ―numerous prospective jurors revealed
that the victim‘s young age would prevent their serving as fair and impartial
jurors‖ confirms that when a defendant stands accused of personally killing a
child, that fact by itself is a circumstance with demonstrated potential to cause
otherwise reasonable jurors to invariably vote for death regardless of the
mitigating circumstances.

                                           4
       Decisions from other states support this conclusion. In State v. Jackson
(Ohio 2005) 836 N.E.2d 1173, the Ohio Supreme Court reversed a death judgment
for failure to allow voir dire regarding a three-year-old murder victim‘s age.
Jackson explained: ―Protecting children from harm is a common human
characteristic, and many people harbor strong feelings and emotions whenever a
child is a victim of a violent crime. Some prospective jurors, when presented with
this fact, may have been unable to remain dispassionate and impartial when
deciding whether the death sentence should be imposed. The possibility that one
juror might not have fairly considered sentencing options and may have voted for
the death penalty solely because appellant murdered a three-year-old child is a risk
too great to ignore. ‗If even one such juror is empanelled and the death sentence is
imposed, the State is disentitled to execute the sentence.‘ [Citation.]‖ (Id. at pp.
1191-1192.)
       Other decisions have recognized that informing prospective jurors that the
murder victim was a child is important to ensuring the selection of an impartial
jury. In People v. Terrell (Ill. 1998) 708 N.E.2d 309, the Illinois Supreme Court
found no abuse of discretion in the trial court‘s refusal to ask a specific voir dire
question proposed by the defendant regarding the minor victim‘s age, reasoning
that the trial court had ―informed the venire that the victim involved was a child‖
and had ―asked each venireperson whether he or she would automatically vote to
impose death without consideration of the mitigating evidence.‖ (Id. at p. 318.) In
State v. Moore (N.J. 1991) 585 A.2d 864, the New Jersey Supreme Court reached
the conclusion that ―as a whole, the voir dire was sufficiently probing in its
attempt to weed out‖ unqualified jurors in part on the ground that the prosecutor
and defense counsel had asked prospective jurors about the fact that one of the
murder victims was a child. (Id. at p. 878.) The court in Moore explained that
―voir dire should allow more open-ended questioning on the issue of the status of

                                           5
the victims as it relates to any prejudice or predisposition affecting the juror‘s
ability to adjudge fairly in the guilt phase or the ability to consider mitigating
evidence in any penalty phase.‖ (Id. at p. 880.)
       Our conclusion that ―on the record here, the trial court did not err in
precluding mention of the circumstance that two of the victims were children‖
(maj. opn., ante, at p. 109) rests on the unique facts of this case — in particular,
the fact that defendant did not personally kill the child victims. Nothing we say
today erodes the general rule, apparent in the decisions of our court and others,
that where a capital defendant stands accused of personally killing a child, that fact
by itself is so potentially inflammatory as to cause an otherwise qualified juror to
invariably vote for death, rendering the preclusion of voir dire on that fact an
abuse of discretion. With that understanding, I concur in the court‘s opinion.


                                                   LIU, J.




                                           6
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Valdez
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S062180
Date Filed: August 9, 2012
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: George W. Trammell III and Robert W. Armstrong

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Raoul Schonemann
and Gary D. Garcia, Deputy State Public Defenders, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Michael R.
Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Gary D. Garcia
Deputy State Public Defender
221 Main Street, 10th Floor
San Frnacisco, CA 94105
(415) 904-5600

Michael R. Johnsen
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90012
(213) 897-2268
