Filed 5/31/12


      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S076999
           v.                        )
                                     )
MATTHEW A. SOUZA,                    )
                                     )                       Alameda County
           Defendant and Appellant.  )                    Super. Ct. No. 122159B
____________________________________)


        A jury convicted defendant Matthew A. Souza of the first degree murders
of Regina Watchman, Dewayne Arnold, and Leslie K. Trudell (Pen. Code, § 187),
and the attempted premeditated murders of Rodney James and Beulah John (Pen.
Code, §§ 187, 664).1 An allegation of multiple-murder special circumstance
(§ 190.2, subd. (a)(3)) was found true, and defendant was found to have personally
used a deadly weapon (an automatic rifle) in the commission of the murder.
(§ 12022.5.) Following the penalty phase of the trial, the jury returned a verdict of
death against defendant. The trial court denied the automatic motion to modify the
penalty (§ 190.4, subd. (e)), and imposed a sentence of death, with additional
consecutive terms of 25 years to life in prison on each of the three murder
convictions plus 10 years for the firearm use, and concurrent life terms on both
attempted murder convictions, all of which were ordered stayed pending


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




                                          1
imposition of the judgment of death. Defendant‘s appeal is automatic. (§ 1239,
subd. (b).) We strike and modify the restitution orders; as so modified, we affirm
the judgment.
                                     I. FACTS

       A. Introduction
       In retaliation for an earlier incident in which their mother had been forcibly
removed from a house party, defendant Matthew Souza, his brother Michael, and a
third, unidentified man2 armed themselves with guns and drove to the apartment
of murder victim Regina Watchman. At the party they opened fire on the
partygoers; five people were shot, and three of the victims died.
       The prosecution sought the death penalty against both brothers but only
defendant‘s case proceeded to the penalty phase because the jury did not find the
special circumstance true as to codefendant Michael Souza.3

       B. Guilt Phase

           1. The prosecution’s evidence
       In December 1993, defendant, who was 18 years of age, and Michael, who
was 19 years of age, were staying with their mother Rebecca Souza, in a room in
Rebecca‘s cousin‘s apartment in Oakland, where Rebecca was living.        Defendant


2       The third man was never apprehended, remains unidentified, and played no
role in these proceedings.
3       The jury found Michael Souza guilty of the counts charged against him,
found that the murders were of the first degree, and found true the allegation that
he was armed with a firearm in the commission of the murders. It did not return a
true finding on the special circumstance allegation. Michael Souza was sentenced
to a single term of 25 years to life in prison, plus four years for use of a firearm,
with the terms on the remaining convictions to run concurrently. To avoid
confusion, we hereafter refer to Michael Souza as ―Michael.‖




                                          2
and Michael did not have a permanent residence, and were dividing their time
between relatives, family friends, and their mother‘s room in the Oakland
apartment.
       One evening in mid-December, Rebecca, who like all of the victims is
Native American, attended a fundraiser at the Hilltop Tavern in Oakland, a
popular gathering place for Native Americans. Rebecca, who attended the
fundraiser with friends, began drinking alcoholic beverages before arriving at the
tavern, and drank between five and 10 more beers while at the tavern, becoming
noticeably intoxicated. At some point in the evening, victim Regina Watchman
approached Hilary Leonesio and told her that she believed Rebecca was flirting
with Leonesio‘s boyfriend, and that Leonesio should do something about it. When
Leonesio confronted Rebecca, Rebecca stated that nothing had occurred, and
Leonesio did not pursue the matter further. After the tavern closed, 10 to 15
people, including Rebecca, were invited to Regina Watchman‘s apartment for an
―after party.‖ Rebecca did not know Watchman. Before leaving the bar, Rebecca
searched for her purse, but could not locate it. Rebecca apparently had forgotten
that she had placed her purse in the trunk of her friend Esther Dale‘s car for
safekeeping.
       Watchman‘s boyfriend Raymond Douglas was at the apartment that
evening with Watchman‘s mother and four young children. When the guests
arrived from the Hilltop Tavern at approximately 2:00 a.m. on December 19,
1993, Douglas began drinking with them. He testified that upon arrival, many of
the guests appeared to be heavily intoxicated. He also testified that more alcohol
was served at the apartment and some members of the group became ―pretty
drunk.‖
       At some point in the evening, Watchman forcibly removed Rebecca from
the party. Numerous witnesses observed the altercation. Edward Arnold was a

                                          3
designated driver that evening, and did not consume any alcohol. He testified that
he saw Watchman come down the stairway and ask if anyone wanted anything to
drink. Rebecca asked who Watchman was, and Watchman responded that ―This is
my house.‖ Rebecca asked several more times whose house it was, and who
Watchman was. Arnold believed from witnessing the interaction that Rebecca
was attempting to provoke Watchman. Eventually, Watchman stated ―This is my
house, and I want you to leave.‖ Rebecca refused to do so, and instead continued
to ask whose house it was, and who Watchman was. Eventually, Arnold observed
as Watchman grabbed Rebecca by the hair and pulled her about 10 feet to the
door. Rebecca was stepping along as Watchman pulled, and Arnold did not
observe any hitting or kicking. Hilary Leonesio, Raymond Douglas, Lea Coss,
and Martin Jones also witnessed the altercation, and testified similarly to Arnold.
None of the witnesses reported seeing any punching or kicking by Watchman, and
no one observed any visible injuries or blood on Rebecca. Edward Arnold drove
Rebecca home after the altercation, along with Esther Dale and Jeri Davis. The
drive to Rebecca‘s home lasted 20 to 25 minutes. Arnold testified that during the
duration of the trip, Rebecca repeatedly stated that she was going to ―get even‖
with ―those people.‖ Arnold told Rebecca to calm down, get some sleep, and
forget about it. Rebecca responded, ―these people aren‘t going to get away with
this. They‘re going to get — they will pay for this and I‘m going to get even with
them.‖ Dale testified that on the ride home from the party, Rebecca cried ―a little
bit.‖ Rebecca also stated that her head was hurting. Dale did not observe any
blood or injuries on Rebecca. Thirty minutes after Rebecca was forced to leave
the party, Jeri Davis called and asked Leonesio to look for Rebecca‘s purse and
coat. Leonesio looked for the items, but could not find them.
       Rebecca Souza testified that she was intoxicated at the party, and that she
argued with Watchman, who told her to leave. She remembered being struck in

                                         4
the back of the head and being knocked down. Thereafter, she lay on her back as
Watchman kicked her in the ribs and called her a ―whore,‖ and then dragged her
along the floor by her hair. She testified that no one else was involved in the
altercation, and she believed Watchman was angry with her because of the
incident earlier in the evening when Leonesio believed Rebecca was flirting with
Leonesio‘s boyfriend.
       At trial, Rebecca could not recall what she said in the car on the way home
from the party. Her testimony at the preliminary hearing was admitted into
evidence, however, and at that hearing she stated that during the drive home, she
had said she ―wasn‘t going to put up‖ with being thrown out of Watchman‘s party,
claiming ―[s]he can‘t do this to me, who does she think she is,‖ and that she was
going to tell her sons. Upon arriving at the apartment, Rebecca was crying, in
physical pain, and upset. On direct examination, she testified that she was in a
state of shock and may have been ―hysterical.‖ Rebecca stated that upon arriving
home, she noticed that she was bleeding from the mouth, although she was unsure
how she had received the injury. She testified that there was blood on the front of
her shirt, which she attempted to clean. After Rebecca changed into a clean shirt,
her cousin attempted to clean the stain to no avail, after which Rebecca threw
away the shirt. Rebecca did not tell the police about her shirt or her injury, and the
cousin did not testify.
       Sometime after she arrived home, defendant and his brother awoke, and
Rebecca convinced them to take her back to the party. At the preliminary hearing,
Rebecca testified that her reason for going back to the party was to ―get even with
[Watchman],‖ and that she wanted to ―hit [Watchman] on the nose or something.‖
She further testified that she did not show her sons her injury, and ―I don‘t think
they knew anything about the injury.‖



                                          5
       However, at trial, contrary to her preliminary hearing testimony, Rebecca
testified that she wanted to return to the party to retrieve her purse, jacket, and
identification, having realized her purse was missing sometime after returning
home. Rebecca did not mention the missing purse or identification to police, but
testified that she told her sons she wanted to return to the party to retrieve her
belongings. Upon cross-examination, Rebecca stated that she had ―probably‖ told
her sons that she was beaten up, and ―probably‖ showed them the cut on her
mouth. She further testified that she told her sons she was assaulted by one
woman, not a group of people, and that she may have told them that the woman
who assaulted her was also the woman who told her to leave the party.
       Rebecca and her sons left the apartment and drove around looking for the
party, but could not find it. Although Michael stored a .22-caliber rifle at the
apartment, they did not take the rifle with them. During the drive, Rebecca
calmed down and stopped crying. When they could not find the party, Rebecca,
defendant and Michael drove back to the Hilltop Tavern to look for Dale‘s car
because Rebecca thought she might have left her purse and jacket in Dale‘s car.
They then drove to Jeri Davis‘s house, but Davis was not home. Thereafter,
defendant and Michael took Rebecca home, leaving the apartment again after she
went to sleep.
       About an hour after Rebecca and the others left the party, Leonesio stepped
outside to check on her boyfriend, who was asleep in a car. As she unsuccessfully
attempted to wake her boyfriend, Leonesio observed a car pull up behind them.
She observed what she believed were three people in the vehicle, and it appeared
to Leonesio that the occupants of the car were waiting to see what she would do.
The occupants of the car watched Leonesio as she walked back to the apartment.
Leonesio watched the vehicle, whose engine was still running, from the front gate,
and saw a man run to the apartment. Leonesio entered the apartment to tell the

                                           6
others what she had observed, but three men with guns came into the room.4
Leonesio later identified the first man to enter the apartment as Michael, and
testified that she focused on him when the three men entered. The three men
appeared to be Native American or Hispanic.
       Numerous witnesses testified regarding the shootings. Martin Jones
testified that approximately one hour after Rebecca left the party, a man later
identified as defendant, a man later identified as Michael, and a third man entered
the apartment. Michael displayed a shotgun that had been hidden under his jacket,
pointed it at Jones‘s chest and asked, ―who jumped my mother?‖ Jones was
experienced with firearms in general, and shotguns in particular, and identified
Michael‘s weapon as a sawed-off 12-gauge pump-action Mossberg shotgun with a
pistol grip. Similarly, Raymond Douglas saw a man, whom he later identified as
Michael, enter the apartment, pull a shotgun from underneath his jacket, and aim it
at Douglas. Douglas was familiar with firearms, and was certain Michael carried a
shotgun.
       Jones testified that after Michael advanced into the room, forcing Jones
backward, two additional men entered the apartment. One of the men was armed
with an assault rifle with a magazine that extended three or four inches below the
receiver. The third man was armed with a nickel-plated .25-caliber semiautomatic
handgun. Both men wore bandannas that covered their mouths and chins. Jones
testified that defendant was ―definitely‖ one of the armed men who followed
Michael into the apartment. Douglas also identified defendant as one of the men
who entered the apartment after Michael. According to Douglas, defendant was

4     The downstairs level of Watchman‘s apartment was one large room with an
open kitchen, a laundry area, and stairs leading to the upper level, where the
bedrooms were located.




                                          7
armed with a large gun, or possibly a large handgun. The third man was armed
with a revolver. Douglas was not certain precisely where defendant positioned
himself after entering the apartment, only that it was somewhere near the stairs.
       Joyce Gonzales also saw the men waving the guns in front of them and
heard Michael repeating, ―Who did this to my mom?‖ or ―Who did this to our
mom?‖ Gonzales stepped in front of the men and said, ―What are you doing?‖ and
―Your mom‘s our friend,‖ or ―Your mom‘s my friend.‖5 Similarly, Douglas heard
Michael ask, ―Which one of you motherfuckers beat up my mom?‖ Joyce Coss
saw Michael standing in the middle of the room shouting, ―who kicked my
mother‘s ass, just show me who did it. Show me which one is the bitch that
kicked my mother‘s ass and stole her purse.‖ Jones testified that the man holding
the assault rifle stood at the bottom of the stairs leading to the upper level of the
apartment, holding the assault rifle to his face, and aiming it into the room. The
man with the handgun stood at the front door, aiming his weapon into the room
with both hands. Leonesio‘s testimony placed the three men in the same positions.
       Michael stopped directly in front of a couch in the middle of the room,
facing away from the front door. Victims Dewayne Arnold and Regina Watchman
were sitting together on the couch. Michael asked where his mother‘s purse was.
Douglas testified that Michael walked over to the couch, pointed the shotgun


5      Gonzales testified that ―a second‖ after she spoke to the men, they left the
apartment. Gonzales had not taken her eyes off the three men while they were
within her line of vision, and only after they left did she look around and see the
bodies all around her. Gonzales could not recall seeing or hearing any shooting
and believed that the shooting happened when she was upstairs or when she was
coming down the stairs, and was over by the time she encountered the three men.
She acknowledged, however, that she may have witnessed the shooting but had
subsequently ―blocked‖ it from her mind, an issue she was still working through
with her therapist at the time of trial.




                                           8
directly at Watchman, and asked, ―Who‘s the bitch that beat up my mom?‖ Jones
testified that when Michael positioned himself in front of the couch, Dewayne
Arnold attempted to stand up, and asked, ―what the hell is going on here?‖
Michael struck Arnold on the head with the butt of the shotgun, but Arnold ducked
and avoided the full force of the blow. As Michael attempted to strike Arnold
again, Arnold reached for him. Jones testified that Arnold reached for Michael,
not for his shotgun. Douglas heard Arnold say, ―We don‘t need any trouble.‖
Douglas and Coss also saw Michael strike Arnold as he attempted to stand up,
then heard a lamp break followed by scuffling. Arnold again attempted to stand,
and Michael struck him again, causing him to fall back to the floor. Arnold may
have reached for Michael‘s gun when he fell to the floor the second time, but he
did not grab the gun. Coss testified that as Arnold fell to the floor a second time, a
lamp, or possibly Michael‘s gun, broke and fell to the floor.
       As Michael prepared to strike Arnold a second time, Jones saw the man
with the assault rifle step forward and point the weapon at Arnold. Because Jones
believed the man with the assault rifle was preparing to fire, Jones hid behind the
refrigerator. As he reached the refrigerator, Jones heard 15 or more gunshots,
lasting 10 to 15 seconds. In his estimation, the gunshots were not fired quickly
enough to have come from a fully automatic weapon, but rather sounded like they
came from a semiautomatic weapon. One of the gunshots was not as loud as the
others. Jones emerged from behind the refrigerator after the shooting stopped, and
he heard footsteps and the sound of an automobile driving away.
       Douglas dropped to the floor when he heard gunfire. He did not see who
did the shooting. Before he dropped to the floor, Douglas saw, out of the corner of
his eye, a muzzle flash either in the center of the room, or somewhere on that side
of the room. Douglas did not observe where defendant was standing after the
lamp broke, and did not see whether defendant walked toward Michael after first

                                          9
positioning himself near the stairs. After hearing five or six gunshots, Douglas
saw legs running out the door.
       After witnessing Michael‘s assault on Arnold, Coss left the apartment
through a sliding glass door leading into the backyard. As she rose, she heard the
first of ―a lot‖ of gunshots, but could not see who was shooting or where the
shooting was coming from. Although at the preliminary hearing she testified that
she saw a flash from a gunshot fired from the middle of the room, at trial she could
not remember where the flash had come from, but she stated she heard a shot from
the middle of the room.
       As Arnold attempted to rise from the floor, Leonesio heard gunfire, and
saw a flash of light from Michael‘s gun discharge toward Arnold. Leonesio ran
onto the patio with Coss, and heard more gunfire. Although she initially testified
that the gunfire lasted for 20 to 30 seconds and was continuous, she later stated
that there were pauses between groups of shots, but all of the shots appeared to be
coming from the same gun. She heard bursts, followed by pauses, followed by
bursts, and there were several such bursts and pauses.
       After the three men left the apartment, Jones observed Trudell lying near
the refrigerator with a pool of blood around his head. He appeared to be dead.
Dewayne Arnold too was lying on the ground in a large pool of blood, and also
appeared to be dead. Watchman was on the couch, with her eyes open and blood
patterns on her chest. Jones observed her exhale but she did not inhale again.
Victim James was sitting in a chair by the front door and had been shot in the
shoulder. He was breathing very heavily and appeared to be in shock. Joyce
Gonzales also observed the aftermath of the shooting, and testified that she saw
her best friend Beulah John in the kitchen, lying in a pool of blood. John was shot
in the leg, just below the hip. The other witnesses corroborated Jones‘s and



                                         10
Gonzales‘s recollections of the crime scene and the locations of the victims. The
police arrived five to 10 minutes after the shootings.
       Page Nelson was Watchman‘s neighbor. Nelson was awake at 5:00 a.m.
and heard extremely loud gunfire. When Nelson looked out the window, he saw a
car drive away approximately one minute after the shooting stopped, seeing it
clearly when it drove under a street light. Nelson believed the car depicted in
exhibit No. 24, photo No. 8, which was a photograph of Michael‘s car, looked
very similar to the car he saw.
       Later that day, police found Michael‘s car parked in Oakland. They kept
the car under surveillance, but when people began loitering around the car, the
police impounded it. Inside the trunk, police found three shotgun shells.
       Officer Monica Russo, an evidence technician working for the Oakland
Police Department, processed the physical evidence at Watchman‘s apartment.
Russo found 14 rifle casings spread around the room in ―almost a complete 360.‖
Although some furniture in the apartment had been moved by emergency
personnel, Russo found casings in locations where it was unlikely they had been
disturbed by emergency workers, such as in a basket on top of a table, on top of
the kitchen counter, and on top of a blue patio-type chair. Russo found two bullet
holes in the apartment walls, but neither bullet was recovered. Russo found five
major pools of blood on the floor, and one .25-caliber pistol casing, and two slugs
or bullets of unspecified caliber. She found no evidence that a shotgun had been
fired in the room.
       Lansing Lee, an Oakland Police Department criminalist, analyzed the
ballistics evidence. He determined that all 14 of the .223-caliber casings
recovered from the apartment were fired by the same rifle. One of the slugs
recovered from the apartment was .25 caliber and one was .223 caliber. One slug
removed from Watchman, four bullets removed from Arnold, and one of the

                                         11
fragments removed from Trudell were .223 caliber. Of the six .223-caliber bullets
he was provided, Lee could determine that five were fired from the same weapon.
According to Lee, one fragment recovered from Trudell and one recovered from
Watchman were also ―likely‖ fired from that weapon. The remaining fragments
were too small to identify or compare. Lee testified that none of the fragments
appeared to have come from a shotgun.
       Lee testified that .223-caliber rifles can be automatic or semiautomatic. An
automatic weapon is capable of firing more than one round with each trigger pull,
while a semiautomatic weapon fires only one round with each trigger pull. The
number of automatic weapons available to the public is ―very limited‖ and assault
rifles are only semiautomatic. The maximum capacity of assault rifle magazines
ranges from five to 50 or more rounds.
       Dr. Sharon Van Meter, a board-certified pathologist, conducted the
autopsies of the three murder victims and testified regarding her findings.
Watchman was shot three times, and bled to death from the gunshot wounds —
dying within three to 20 minutes. She did not necessarily lose consciousness
before dying. A mark around one of the bullet holes on Watchman‘s clothing
indicated that one shot had been fired from a distance of approximately two feet.
Watchman‘s blood-alcohol level was 0.12 percent. Dewayne Arnold was shot
seven times, and died within one or two minutes from these wounds. Arnold‘s
blood-alcohol level was 0.54 percent, and testing revealed a ―fairly high level‖ of
methamphetamine in his system. Trudell was shot twice, and died within a few
heartbeats. The marks surrounding the wounds indicated to Van Meter that
Trudell was shot from a distance of greater than three feet. Van Meter found no
evidence that a shotgun was fired at the scene.
       Evidence was presented regarding a photographic lineup conducted on
December 21, 1993, two days subsequent to the shooting. Witnesses Douglas,

                                         12
Jones, and Coss were shown a lineup that contained photographs of defendant and
Michael. All of the witnesses identified Michael as the first armed man to enter
the apartment. None of the witnesses identified defendant‘s photograph as one of
the armed men who entered the apartment with Michael. But at the physical
lineup conducted on December 28, 1993, Douglas and Coss identified defendant
as the second armed man to enter the apartment.

           2. The defense evidence
       In his defense, defendant re-called Officer Russo, the evidence technician,
who described in further detail the locations of the shell casings and bullet holes
she found in Watchman‘s apartment. Lansing Lee, criminalist from the Oakland
Police Department, also was re-called to the stand, and testified that a shotgun slug
could create a single bullet hole, but he found no evidence that a shotgun slug had
been fired in the present case. He further testified that a .223-caliber rifle ejects
spent shell casings to the right, sometimes as far as 30 feet, and the casings could
ricochet. Lee further explained that if a .223-caliber rifle is fired from a single
position, the casings would not be spread widely throughout the room.
       Defendant presented the testimony of Officer Thomas Swisher of the
Oakland Police Department, who testified regarding the investigation of the case.
Swisher, who was the primary investigator, interviewed the witnesses to the
shooting, and soon learned of the altercation between Watchman and Rebecca
Souza. Thereafter, he learned the names of her sons, defendant and Michael.
Using this information, he created the photographic lineup. For defendant and
Michael, he used photographs obtained from the Department of Motor Vehicles
(DMV). For the remainder of the photographs, he requested that the police
photography lab make the photos appear to look like DMV photographs. Swisher
was aware that some of the witnesses were Native American, but he was not aware



                                          13
of the ethnicities of any of the people depicted in the photographs used in the
lineup, choosing photographs based solely upon the physical similarly between the
men depicted and the photographs he had of defendant and Michael. Swisher
oversaw the search for defendant and Michael, which included conversations
between Swisher and the Souza family. Defendant and Michael surrendered on
December 27, 1993, and the physical lineup was held one day later.

       C. Penalty Phase

           1. The prosecution’s evidence
       Leslie Miller, a tribal chairman and a relative of victims Watchman and
Arnold, testified regarding their good nature. Miller emphasized that Watchman
had four young children who were sleeping upstairs when the shooting started.
Two of the children were under the age of three, and although one of the older
children seemed to be coping with Watchman‘s death, the other older child
remained deeply disturbed, and was not adjusting well.
       Dewayne Arnold‘s daughter Angel testified that her father‘s murder left her
and her three siblings fatherless. She was 18 years of age at the time of her
father‘s murder, and her youngest sibling was 11 years of age. She testified that
her father was a good man, and her family was deeply affected by his death.
       Joyce Arnold, Dewayne Arnold‘s sister, testified that she continued to
receive therapy at the time of trial, five years after the shooting. She had made
efforts to forget the shooting, but was unable to do so, continuing to have
traumatic flashbacks.
       Trudell‘s sister Patricia Gordon testified that her brother was a Vietnam
Veteran who initially had great difficulty readjusting to civilian life. Eventually,
he found personal satisfaction in teaching children, and devoted much of his time
and energy to a nonprofit organization called Indian Youth of America. Gordon



                                         14
explained that Trudell also engaged in a great deal of other volunteer work with
children.

             2. The defense evidence
         Defendant presented the testimony of numerous witnesses, who testified
regarding his good character, his gentle nature, his difficulties in school, and his
close relationship with Michael.
         Defendant‘s father Harry Souza, Jr., testified that defendant was one of four
children, and that defendant and his siblings had a close relationship and never
fought. Defendant‘s grandparents and other relatives played an active role in the
children‘s lives. When defendant was six years old, he was diagnosed with a
hearing problem and a learning disability, for which he received treatment, but
which caused him to be held back one year in school. Defendant was very good at
drawing and mathematics. Defendant and Michael were particularly close, and as
the older sibling, Michael was the leader. Defendant‘s parents divorced when he
was 13 years of age. Rebecca Souza initially retained custody, and disappeared
with the children for one year. When Harry Souza located the children, it was
decided they should live with him temporarily. However, after approximately one
week, Rebecca Souza told Harry she did not want the children, and they should
continue living with him, a circumstance that greatly upset defendant and his
siblings. Harry never received reports of misbehavior from defendant‘s school,
and testified that defendant was a very shy, caring child who had never been in a
fight.
         Defendant‘s other brother Mark Souza described defendant as a happy,
affectionate child. Mark also had a close relationship with defendant. Mark never
knew defendant to be violent or aggressive, and described him as the animal lover
in the family. Mark owned several guns, which he and his brothers would shoot



                                          15
on camping trips, and occasionally on a shooting range or on back roads. Mark
testified that defendant was an ―okay‖ shot. Defendant helped Mark, who was the
assistant manager of the Shattuck Apartments, with his work responsibilities, and
was one of the better employees Mark ever had.
       Defendant‘s sister Marcie Souza described defendant as a shy, artistic child
who was very close to his older brother Michael, who was the leader. He was
never violent with her or with anyone else, and she had never known defendant to
have a girlfriend because he was too shy.
       David Bard was the manager of the Shattuck Apartments, where defendant
lived for some years, and where defendant‘s grandmother had worked for 32 years
before she died. Bard described the Souza family as close and loving, and
defendant as well-behaved, polite, and respectful. Bard never saw any indication
that defendant was involved with gangs, or abused alcohol or drugs.
       Lee Williams was a friend of defendant‘s father, and babysat defendant and
Michael when they were children. He testified that defendant was a well-behaved,
happy, and affectionate child. He described defendant as a talented artist, and
warm and engaging, but very shy. He never saw defendant engage in violent or
aggressive behavior, and described Rebecca Souza as a good parent. Williams
rarely saw the Souza children after defendant‘s parents divorced.
       Harry Souza‘s friend, neighbor and employer Gary Nichols testified that
defendant was a well-behaved child and that all of the Souza children were very
close to and protective of their mother. Cathleen Thomas, who lived with the
Souzas briefly during defendant‘s childhood, testified that defendant was a happy,
well-behaved child who was a ―little bit‖ shy.
       Ruth Underwood knew the Souza family throughout defendant‘s childhood.
She testified that defendant was shy, more likely than the others to stay in the
background, and that she never saw defendant in a fight. She recounted that after

                                         16
the divorce, Rebecca Souza began drinking excessively, and that during this
period, defendant and his siblings were not attending school. Defendant‘s uncle
Randy Souza testified that during the time defendant‘s parents were married, he
observed Rebecca intoxicated in front of the children. Rebecca often became
violent and belligerent while drinking.
       Five of defendant‘s teachers testified regarding his performance in school,
and his status as a special education student. They uniformly described defendant
as well-behaved, and a hard worker, but noted that his attendance in school was
sometimes sporadic. In elementary school, defendant was calm, shy, and
respectful. Defendant had a learning disability that affected his ability to read and
write, but he was a strong performer in mathematics and was good at problem
solving. Defendant‘s high school special education coordinator described
defendant‘s intelligence and his grades as higher than average. Defendant‘s high
school mathematics teacher described him as a good student with a positive
attitude toward learning. Defendant was quiet, diligent, and shy.
       Defendant‘s aunt testified that defendant and his siblings were very well-
behaved, and had a loving relationship with their grandparents. Defendant
appeared to be protective of his mother. Three members of the Eaves family, with
whom the Souza family lived briefly when defendant was 11 years of age, testified
that defendant and his siblings were extremely well-mannered, well-behaved
children, and that Rebecca Souza was a good cook and homemaker. Jerry Eaves,
with whom Harry Souza played music, testified that defendant was particularly
kind to animals, and was very close with and considerate towards his
grandparents.
       The educational coordinators of the adult school district that included the
Santa Rita jail testified that defendant was a diligent and dedicated student during
his incarceration, and was working toward fulfilling the requirements for a regular

                                          17
high school diploma at the time of trial. They testified that after moving to
another jail from the Santa Rita jail, defendant had been mailing in his school
assignments.
                                 II. DISCUSSION

       A. Asserted Errors Affecting the Guilt Phase of Trial

           1. Denial of defendant’s severance motion
       Defendant contends the trial court erred in denying his pretrial motion for
severance, violating his rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the federal Constitution and parallel provisions of the California
Constitution, requiring reversal of the guilt and penalty judgments. For the
reasons outlined below, we conclude that the trial court did not err.

                (a) Facts
       Before trial, defendant moved to sever his trial from that of codefendant
Michael. Defendant contended that a joint trial would be unfair because the
uncertain state of the evidence made it likely that the codefendants would present
antagonistic defenses. Specifically, defendant asserted that because the evidence
as to the identity of the actual shooter was disputed — some witnesses‘ testimony
indicated that Michael was the individual who fired the fatal shots using the
shotgun, but the physical evidence suggested that the shots were fired from a
semiautomatic rifle rather than a shotgun — each codefendant was likely to defend
by asserting that it was the other who fired the fatal shots. As defendant observes,
the identity of the person who fired the fatal shots was crucial to establishing the
truth of the special circumstance finding of multiple murder, and that circumstance
also could be used as an aggravating factor in the penalty phase of the trial. (See
§§ 190.2, subd. (a)(3), 190.3, subd. (j), and 190.2, subd. (c) [in order for an aider
and abettor to be eligible for the death penalty for any non-felony-murder special


                                          18
circumstance, the prosecution must establish intent to kill].) Defendant also
contended that severance was required in light of incriminating out-of-court
statements Michael had made that the prosecution might offer into evidence at
trial. Defendant made a concurrent motion in limine to exclude Michael‘s out-of-
court statements.
       The trial court granted defendant‘s motion to exclude Michael‘s out-of-
court statements but denied the motion to sever the trials. Upon appointment of a
different trial judge, the court revisited the motion to sever the trials, although
counsel declined the opportunity to orally argue their positions. The trial court
again denied the motion, noting that a defendant‘s natural tendency is to shift
blame to a codefendant, but that such blame shifting is not sufficient grounds for
severance.

                (b) Discussion
       Our Legislature has expressed a strong preference for joint trials. (People
v. Burney (2009) 47 Cal.4th 203, 236 (Burney); People v. Lewis (2008) 43 Cal.4th
415, 452 (Lewis); People v. Boyde (1988) 46 Cal.3d 212, 231, 250; cf. People v.
Soper (2009) 45 Cal.4th 759, 771-772 [expressing judicial preference for joinder
in context of joined charges].) ―Section 1098 provides in pertinent part: ‗When
two or more defendants are jointly charged with any public offense, whether
felony or misdemeanor, they must be tried jointly, unless the court order[s]
separate trials.‘ The court may, in its discretion, order separate trials if, among
other reasons, there is an incriminating confession by one defendant that
implicates a codefendant, or if the defendants will present conflicting defenses.‖
(Lewis, supra, at p. 452, citing People v. Avila (2006) 38 Cal.4th 491, 574-575
(Avila I); see also People v. Massie (1967) 66 Cal.2d 899, 917.) ―Additionally,
severance may be called for when ‗there is a serious risk that a joint trial would



                                          19
compromise a specific trial right of one of the defendants, or prevent the jury from
making a reliable judgment about guilt or innocence.‘ ‖ (Lewis, supra, at p. 452,
quoting Zafiro v. United States (1993) 506 U.S. 534, 539 [addressing severance
under Fed. Rules Crim.Proc., rule 14, 18 U.S.C.]; see also People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 40 (Coffman).)
       ―We review a trial court‘s denial of a severance motion for abuse of
discretion based upon the facts as they appeared when the court ruled on the
motion.‖ (Burney, supra, 47 Cal.4th at p. 237; see also Lewis, supra, 43 Cal.4th at
p. 453; People v. Hardy (1992) 2 Cal.4th 86, 167 (Hardy).) ―If we conclude the
trial court abused its discretion, reversal is required only if it is reasonably
probable the defendant would have obtained a more favorable result at a separate
trial.‖ (Burney, supra, at p. 237; see also Lewis, supra, at p. 453; Coffman, supra,
34 Cal.4th at p. 41; People v. Keenan (1988) 46 Cal.3d 478, 503 (Keenan).) ―If
the court‘s joinder ruling was proper when it was made, however, we may reverse
a judgment only on a showing that joinder ‗ ―resulted in ‗gross unfairness‘
amounting to a denial of due process.‖ ‘ ‖ (Lewis, supra, at p. 452, quoting People
v. Mendoza (2000) 24 Cal.4th 130, 162; see also People v. Soper, supra, 45
Cal.4th at p. 783 [― ‗if a trial court‘s ruling on a motion to sever is correct at the
time it was made, a reviewing court still must determine whether, in the end, the
joinder of counts or defendants for trial resulted in gross unfairness depriving the
defendant of due process of law.‘ ‖].)
       We conclude the trial court did not abuse its discretion in denying
defendant‘s motion for severance in the present case. As in Burney and Lewis,
defendant and codefendant Michael were charged with having committed
― ‗ ―common crimes involving common events and victims.‖ ‘ ‖ (Burney, supra,
47 Cal.4th at p. 237; accord, Lewis, supra, 43 Cal.4th at pp. 452-453, quoting
Keenan, supra, 46 Cal.3d at p. 500.) Thus, as in our prior cases, the trial court was

                                           20
presented with a ― ‗classic case‘ ‖ for a joint trial. (Burney, supra, at p. 238; see
also Lewis, supra, at p. 453; Avila I, supra, 38 Cal.4th at p. 575; Coffman, supra,
34 Cal.4th at p. 40; Keenan, supra, at pp. 499-500.)
       Nevertheless, defendant contends he was prejudiced by the denial of the
severance motion because the defense presented by his codefendant — that
defendant, not Michael, fired the fatal shots — was antagonistic to his defense that
it was Michael, not defendant, who shot the victims for purposes of the multiple-
murder special-circumstance allegation.6 Defendant asserts that the evidence
presented at the joint trial did not establish beyond a reasonable doubt that either
Michael or defendant fired the fatal shots. Moreover, because Michael‘s counsel
argued the evidence showed that defendant, not Michael, fired the fatal shots,
defendant contends that his own defense was precluded. Defendant claims,
therefore, that if the jury believed that Michael‘s defense theory was correct and
Michael was not the shooter, then it would have no choice but to conclude that
defendant was the actual shooter, regardless of whether the evidence established
this fact beyond a reasonable doubt.
       Defendant‘s contention is meritless. ―The court‘s discretion in ruling on a
severance motion is guided by the nonexclusive factors enumerated in [Massie,
supra, 66 Cal.2d at p. 917], such that severance may be appropriate ‗in the face of
an incriminating confession, prejudicial association with codefendants, likely


6      The sole special circumstance allegation was multiple murder, section
190.2, subdivision (a)(3). As the jurors were instructed, a finding of guilt of two
murders, at least one of which is first degree murder, conclusively establishes the
truth of the special circumstance for the actual killer and renders him eligible for
death. (§ 190.2, subd. (a)(3).) As to the aider and abettor who did not actually kill
the victims, however, the special circumstance requires an additional finding that
he harbored an intent to kill. (§ 190.2, subd. (c).)




                                          21
confusion resulting from evidence on multiple counts, conflicting defenses, or the
possibility that at a separate trial a codefendant would give exonerating
testimony.‘ ‖ (Coffman, supra, 34 Cal.4th at p. 40.) Nevertheless, ―[i]f the fact of
conflicting or antagonistic defenses alone required separate trials, it would negate
the legislative preference for joint trials and separate trials ‗would appear to be
mandatory in almost every case.‘ ‖ (Hardy, supra, 2 Cal.4th at p. 168, quoting
People v. Turner (1984) 37 Cal.3d 302, 312-313.)
       ―Thus, ‗[a]ntagonistic defenses do not per se require severance, even if the
defendants are hostile or attempt to cast the blame on each other.‘ [Citation.]‖
(Hardy, supra, 2 Cal.4th at p. 168.) ― ‗Rather, to obtain severance on the ground
of conflicting defenses, it must be demonstrated that the conflict is so prejudicial
that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this
conflict alone demonstrates that both are guilty.‘ ‖ (Ibid., quoting United States v.
Davis (1st Cir. 1980) 623 F.2d 188, 194-195.) If ―there exists sufficient
independent evidence against the moving defendant, it is not the conflict alone that
demonstrates his or her guilt, and antagonistic defenses do not compel severance.‖
(Coffman, supra, 34 Cal.4th at p. 41.)
       In the present case, it was undisputed that all of the victims were shot with
a rifle, and that the rifle was wielded by only one shooter. Witnesses identified
both brothers as being present and armed with guns.7 The eyewitness testimony,
however, conflicted with the physical evidence as to which brother fired the fatal

7      Defendant concedes that although his counsel fleetingly suggested that
there was reasonable doubt he was at the crime scene at all, it was undisputed that
if he was there, he was the second gunman. Because neither the evidence nor the
parties suggested that the third, unidentified gunman was the shooter, the critical
factual determination for the jury was whether the first gunman, Michael, or the
second gunman, defendant, fired the fatal shots.




                                           22
shots. Most notably, Leonesio testified that she saw gunfire come from Michael‘s
gun toward Dewayne Arnold. Coss saw a flash from a gun, and although she
testified at trial that she could not identify where it came from, at the preliminary
hearing she testified that it came from Michael‘s position. Douglas similarly
testified that he saw a flash and a shot from Michael‘s position in the room.
Witnesses Jones and Douglas — who were both familiar with firearms and closely
observed the gunmen — testified that Michael was armed with a shotgun. Jones
further testified that the second gunman, identified by others as defendant, carried
a rifle. Thus, although no witnesses testified that defendant carried a shotgun or
that Michael carried a rifle, no witnesses testified that defendant actually shot the
rifle.
         Conversely, the physical evidence established conclusively that all of the
victims were shot with a rifle, and not with a shotgun.
         Nevertheless, despite the conflicting nature of the eyewitness testimony and
the physical evidence, and the circumstance that defendant and his codefendant
relied upon antagonistic versions of the evidence presented, defendant does not
establish that the conflict alone demonstrated his guilt. The prosecution presented
independent evidence supporting defendant‘s participation in the events that night,
and although the evidence that he fired the fatal shots was circumstantial, the fact
that Michael‘s defense depended in part upon naming defendant as the actual
murderer was not dispositive. The evidence merely conflicted as to whether
Michael discharged his weapon but there was no irreconcilable conflict as to who
fired the fatal shots. Notably, none of the surviving witnesses directly saw how
each victim was shot. The forensic evidence conclusively supported the
prosecution‘s contention that the victims were shot with a rifle, and the
eyewitnesses placed that rifle in defendant‘s hands. As to the victim Arnold, the
jury could have reasonably inferred from Martin Jones‘s testimony that, when

                                          23
Michael scuffled with Arnold at the couch, defendant was the man armed with the
rifle who stepped forward and shot Arnold.
       In conclusion, joinder was proper in the present case. The charges against
defendant and Michael were identical, and both defendants were charged with
capital crimes. There was no danger of jury confusion, or prejudicial association.
Neither defendant nor Michael testified at trial, and there also was no suggestion
that if tried separately, Michael would have provided testimony exonerating
defendant. Moreover, because the trial court granted defendant‘s motion to
exclude Michael‘s out-of-court statements, there was no issue concerning
extrajudicial statements in which a codefendant implicated defendant. Finally, no
evidence was presented at the joint trial that would not have been presented at a
separate trial.
       Under these circumstances, no gross unfairness resulted from the joint trial.
(Lewis, supra, 43 Cal.4th at p. 461; see also Avila I, supra, 38 Cal.4th at pp. 574-
576; Coffman, supra, 34 Cal.4th at p. 41; People v. Box (2000) 23 Cal.4th 1153,
1195-1197.)

            2. Alleged failure to instruct on lesser included offenses
               of voluntary manslaughter and attempted voluntary manslaughter
       Defendant contends that the trial court‘s failure to instruct on the lesser
included offenses of voluntary manslaughter and attempted voluntary
manslaughter in a heat of passion at the guilt phase of his trial violated his rights
under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal
Constitution and parallel provisions of the California Constitution, requiring
reversal of the guilt and penalty judgments. Defendant asserts there was sufficient
evidence of provocation and sudden heat of passion to support the instructions
with regard to all five victims. We reject that contention.




                                          24
       Counsel for defendant and his codefendant requested instructions on the
lesser included offense of voluntary manslaughter committed in a reasonable heat
of passion with regard to victims Watchman, Arnold, and Trudell, and the offense
of attempted voluntary manslaughter committed in a reasonable heat of passion
with regard to victims John and James. The trial court, agreeing with the
prosecutor that reasonable heat of passion requires provocation from the victim,
declined to give voluntary manslaughter instructions except on the count relating
to victim Watchman, the only victim who assaulted Rebecca Souza. Defense
counsel conceded that voluntary manslaughter instructions were proper only as to
Watchman.
       Defendant‘s counsel also sought instructions on unpremeditated second
degree murder with regard to victims Arnold and Trudell, and on the relevance of
provocation evidence to the element of premeditation for all five victims. The trial
court granted these requests, agreeing with defendant that provocation — while
not adequate to reduce murder to voluntary manslaughter with regard to any
victim except Watchman — nevertheless could be relevant with regard to
premeditation and deliberation. Accordingly, the trial court provided the standard
CALJIC instructions concerning second degree murder (CALJIC Nos. 8.30, 8.31,
8.71, 8.73, 8.74), and on the relevance of provocation evidence in determining the
degree of murder (CALJIC No. 8.73). The instructions were not limited to any
particular count, but rather applied broadly to all charged offenses.
       In light of the trial court‘s ruling regarding these instructions, defense
counsel withdrew his request for an instruction on voluntary manslaughter in the
heat of passion with regard to victim Watchman. As he explained to the trial
court, the withdrawal of his request for this instruction was a tactical decision to
prevent unnecessary jury confusion resulting from different instructions related to
the word ―provocation.‖

                                          25
       Defendant now contends that despite defense counsel‘s express tactical
withdrawal of the request for the instruction on voluntary manslaughter in the heat
of passion with regard to Watchman, the trial court nevertheless should have
provided the instruction. He also asserts that substantial evidence existed that the
shooting of all five victims was committed in a reasonable heat of passion and
that, accordingly, the trial court erred by refusing to instruct concerning the lesser
included offenses of voluntary manslaughter and attempted voluntary
manslaughter with regard to the other four victims.
       On appeal, we review independently the question whether the trial court
improperly failed to instruct on a lesser included offense. (See, e.g., People v.
Waidla (2000) 22 Cal.4th 690, 739.) As explained below, there was no substantial
evidence that defendant acted under the influence of a reasonable heat of passion
invoked by the victims‘ conduct, and accordingly, the trial court did not err in
refusing the requested instructions.

                (a) Regina Watchman
       Defendant contends that the evidence of both provocation and heat of
passion was sufficient to warrant instructions on voluntary manslaughter in the
heat of passion with respect to the shooting of Regina Watchman. As explained
ante, however, the instruction was not given to the jury because defense counsel
voluntarily withdrew his request for it. Defendant nevertheless asserts the trial
court erred in failing to give an instruction on voluntary manslaughter because a
― ‗ ―defendant has a constitutional right to have the jury determine every material
issue presented by the evidence . . . .‖ [Citations.]‘ ‖ (People v. Cunningham
(2001) 25 Cal.4th 926, 1007, quoting People v. Lewis (2001) 25 Cal.4th 610, 645.)
       ― ‗ ―It is settled that in criminal cases, even in the absence of a request, the
trial court must instruct on the general principles of law relevant to the issues



                                          26
raised by the evidence. . . .‖ [Citation.] That obligation has been held to include
giving instructions on lesser included offenses when the evidence raises a question
as to whether all of the elements of the charged offense were present [citation], but
not when there is no evidence that the offense was less than that charged.
[Citations.] The obligation to instruct on lesser included offenses exists even
when as a matter of trial tactics a defendant not only fails to request the instruction
but expressly objects to its being given.‘ ‖ (People v. Breverman (1998) 19
Cal.4th 142, 154 (Breverman), citing People v. Mosher (1969) 1 Cal.3d 379, 393.)
       Nevertheless, the claim may be waived under the doctrine of invited error if
trial counsel both ― ‗intentionally caused the trial court to err‘ ‖ and clearly did so
for tactical reasons. (Coffman, supra, 34 Cal.4th at p. 49.) Invited error will be
found, however, only if counsel expresses a deliberate tactical purpose in resisting
or acceding to the complained-of instruction. (People v. Cooper (1991) 53 Cal.3d
771, 830; People v. Wickersham (1982) 32 Cal.3d 307, 332, disapproved on other
grounds in People v. Barton (1995) 12 Cal.4th 186, 201.)
       The Attorney General contends the doctrine applies here because defense
counsel expressly withdrew his request for the instruction, and explained that his
decision to do so was a tactical decision.8 (See People v. Wader (1993) 5 Cal.4th
610, 657-658.) But given that defense counsel‘s choice appears to have been the
product of the trial court‘s earlier ruling, it may be questionable to impose this
procedural bar if counsel merely acted defensively and reasonably in direct

8       Although the trial court was willing to provide the instruction, trial counsel
explained that he was withdrawing the request because ―I don‘t want to confuse
the jury with the different provocations that may be involved with respect to
reducing first to second . . . . Any time the word provocation is used, I don‘t want
it to be confused with provocation that is required for manslaughter, which is one
of my tactical reasons in asking that these instructions not be given.‖




                                           27
response to the court‘s earlier ruling that voluntary manslaughter instructions were
applicable only as to victim Watchman. (See People v. Turner (1990) 50 Cal.3d
668, 704, fn. 18 [counsel‘s ―defensive acts‖ in light of a court ruling ―do not waive
an objection on appeal‖].)
       In any event, no substantial evidence supported a manslaughter instruction
as to victim Watchman. During defendant Michael‘s and Rebecca‘s first
unsuccessful attempt to locate Watchman‘s home, Rebecca calmed down and
defendant and codefendant brought her back home. After Rebecca went to bed,
defendant and codefendant armed themselves and set out yet again to find
Watchman‘s home, and, in doing so, they enlisted a third armed accomplice.
When they located Watchman‘s home, they waited outside and observed. Before
entering the home, they obscured their faces with bandanas. These circumstances
reveal a concerted effort to plan and execute a surprise attack at Watchman‘s
home. ―If anything, defendant appears to have acted out of a passion for revenge,
which will not serve to reduce murder to manslaughter. Although the defense
evidence was probative of whether defendant subjectively killed in the heat of
passion, from an objective standpoint, the evidence arguably did not establish the
requisite provocation necessary for conviction of voluntary manslaughter, rather
than murder.‖ (People v. Gutierrez (2002) 28 Cal.4th 1083, 1144, original italics.)

               (b) Other victims
       Defendant contends the trial court erred in refusing to instruct the jury on
voluntary manslaughter in the heat of passion concerning the counts involving
victims Arnold and Trudell, and in refusing to instruct on attempted voluntary
manslaughter concerning the counts involving victims John and James. These
claims also are meritless.




                                         28
       ―The trial court is obligated to instruct the jury on all general principles of
law relevant to the issues raised by the evidence, whether or not the defendant
makes a formal request.‖ (People v. Blair (2005) 36 Cal.4th 686, 744; see also
Breverman, supra 19 Cal.4th at p. 154 [duty to instruct on court‘s own motion];
People v. Flannel (1979) 25 Cal.3d 668, 684 [duty to instruct on request].) ―That
obligation encompasses instructions on lesser included offenses if there is
evidence that, if accepted by the trier of fact, would absolve the defendant of guilt
of the greater offense but not of the lesser.‖ (Blair, supra, at p. 745, citing People
v. Memro (1995) 11 Cal.4th 786, 871; see also Breverman, supra, at p. 154.) ―To
justify a lesser included offense instruction, the evidence supporting the
instruction must be substantial — that is, it must be evidence from which a jury
composed of reasonable persons could conclude that the facts underlying the
particular instruction exist.‖ (Blair, supra, at p. 745; see Breverman, supra, at
p. 162.)
       ― ‗Conversely, even on request, the court ―has no duty to instruct on any
lesser offense unless there is substantial evidence to support such instruction.‖ ‘
[Citation.] This substantial evidence requirement is not satisfied by ‗ ― any
evidence . . . no matter how weak,‖ ‘ but rather by evidence from which a jury
composed of reasonable persons could conclude ‗that the lesser offense, but not
the greater, was committed.‘ [Citation.] ‗On appeal, we review independently the
question whether the trial court failed to instruct on a lesser included offense.‘
[Citation.]‖ (People v. Avila (2009) 46 Cal.4th 680, 705 (Avila II).)
       ― ‗Manslaughter, an unlawful killing without malice, is a lesser included
offense of murder.‘ [Citation.] ‗Although section 192, subdivision (a), refers to
―sudden quarrel or heat of passion,‖ the factor which distinguishes the ―heat of
passion‖ form of voluntary manslaughter from murder is provocation.‘ ‖ (Avila II,
supra, 46 Cal.4th at p. 705.) ―The ‗ ―heat of passion must be such a passion as

                                          29
would naturally be aroused in the mind of an ordinarily reasonable person under
the given facts and circumstances . . . .‖ ‘ [Citation.]‖ (Ibid.) ― ‗The provocation
which incites the defendant to homicidal conduct in the heat of passion must be
caused by the victim [citation], or be conduct reasonably believed by the
defendant to have been engaged in by the victim.‘ [Citation.] ‗[T]he victim must
taunt the defendant or otherwise initiate the provocation.‘ ‖ (Ibid.)
       Defendant contends that, even if their passion had cooled by the time the
armed men entered the apartment, victim Arnold‘s resistance ―rekindled‖ their
heat of passion and provided sufficient provocation to justify an instruction on
voluntary manslaughter. Specifically, numerous witnesses testified that after
Michael stepped in front of Arnold and Watchman — who were sitting side by
side on the couch — Arnold rose and demanded to know what was going on.
After Michael forced him back down with his shotgun, Arnold attempted to rise
again, and according to witnesses Jones and Coss, Arnold reached for Michael.
During the scuffle, a lamp was broken. Defendant contends that these acts of
defiance and the commotion caused by the lamp breaking, when considered in
conjunction with defendant and Michael‘s belief that numerous people had
assaulted their mother and the emotional state of mind this belief instilled in them,
constituted sufficient evidence of provocation to require the giving of the
requested instruction.
       Even assuming defendant and his brother reasonably believed that a group
of persons had assaulted their mother, there was no substantial evidence of
―rekindled‖ provocation or heat of passion because, as explained above, the
amount of time that had elapsed between the allegedly provocative act and the
crimes made defendant‘s actions consistent with planned revenge and such a
desire for revenge cannot objectively satisfy the provocation requirement. (People
v. Moye (2009) 47 Cal.4th 537, 550; People v. Gonzales (2011) 52 Cal.4th 254,

                                         30
301.) Additionally, Arnold‘s actions, in standing up from the couch and reaching
for Michael — one of three armed unknown men bursting into the home —
constituted predictable and reasonable conduct by a victim resisting felonious
assault, and not provocation sufficient to merit a manslaughter instruction.
(People v. Pride (1992) 3 Cal.4th 195, 250; People v. Rich (1988) 45 Cal.3d 1036,
1112.) Thus, defendant‘s request for such instructions was properly denied.
       Nor, contrary to defendant‘s assertion, was the jury forced into an ―all-or-
nothing‖ choice between murder and acquittal after the court refused to instruct on
voluntary manslaughter and attempted voluntary manslaughter. (See Beck v.
Alabama (1980) 447 U.S. 625, 637; People v. Benavides (2005) 35 Cal.4th 69,
103.) ―[N]o fundamental unfairness or loss of verdict reliability results from the
lack of instructions on a lesser included offense that is unsupported by any
evidence upon which a reasonable jury could rely.‖ (People v. Holloway (2004)
33 Cal.4th 96, 141.) Moreover, the jury was instructed on second degree murder
and attempted second degree murder, and accordingly had a choice in evaluating
defendant‘s culpability. (Schad v. Arizona (1991) 501 U.S. 624, 646-648 [second
degree murder instruction sufficient to ensure verdict‘s reliability]; Benavides,
supra, 35 Cal.4th at p. 103.)

           3. Asserted error from cumulative effect of failing to instruct on heat
              of passion and provocation
       As noted above, the trial court instructed the jury on the lesser included
offense of second degree murder and further instructed that it could consider any
evidence of provocation to determine whether the shooter premeditated and
deliberated all of the killings and attempted killings. In addition to the second
degree murder instruction, the court provided a modified version of CALJIC
No. 8.73, which informed the jurors, ―[i]f the evidence establishes that there was
provocation which played a part in inducing an unlawful killing of a human being,


                                         31
you should consider the provocation for such bearing as it may have on whether a
defendant killed with or without premeditation and deliberation.‖ The trial court
also instructed the jury pursuant to CALJIC No. 8.20, which defines premeditation
as material to first and second degree murder.
       Defendant contends that these and related instructions were incomplete
because they did not define or explain the terms ―heat of passion‖ or
―provocation‖ and did not explain the relationship between the two terms and their
dual relationship to the element of premeditation. He asserts that by refusing the
instructions on voluntary manslaughter in the heat of passion in their entirety
rather than tailoring them, the instructions that were provided to the jury were
rendered inadequate because they failed to explain the critical legal principles
underlying defendant‘s defense. He avers this is especially so in light of the
prosecutor‘s numerous asserted misstatements of the law. Therefore, defendant
argues, the trial court had a duty to instruct on voluntary manslaughter.
       ―We apply an independent or de novo standard of review to the failure by a
trial court to instruct on the meaning of provocation and heat of passion.‖ (People
v. Cole (2004) 33 Cal.4th 1158, 1217.) We previously have rejected the
contention that CALJIC No. 8.73, a ―pinpoint‖ instruction, is ambiguous. (People
v. Mayfield (1997) 14 Cal.4th 668, 778-779.) If the evidence in a case does not
support instructions on voluntary manslaughter, the definition of provocation and
heat of passion as relevant to voluntary manslaughter are immaterial. (Cole,
supra, 33 Cal.4th at p. 1217.) In such cases, provocation and heat of passion as
used in the instructions on second degree murder and in CALJIC No. 8.83 bear
their common meaning, which requires ―no further explanation in the absence of a
specific request.‖ (Cole, supra, at pp. 1217-1218; see also People v. Cox (2003)
30 Cal.4th 916, 967.) Thus, in the present case, because the instructions as given
were complete and because defendant did not ask the trial court to clarify or

                                         32
amplify them, defendant may not complain on appeal that the instructions were
ambiguous or incomplete. (Mayfield, supra, at p. 779.)
       We also reject defendant‘s contention that the prosecutor‘s alleged
misstatements of the law misled the jury and distorted the meaning of the
proffered instructions, thereby rendering otherwise proper instructions inadequate.
Defendant asserts that during closing argument, the prosecutor incorrectly told
jurors that the central question was whether provocation (not heat of passion)
―prevented the person provoked from forming the intent to kill as a process of
premeditation and deliberation‖ and that there must be ―provocation that reduces
the crime from a willful premeditated murder to a second degree murder.‖
Although the prosecutor‘s statements were inartful, the jury properly was
instructed regarding the role provocation played as material to first and second
degree murder and that both concepts — provocation and heat of passion —
possessed their ordinary meanings. The prosecutor‘s argument did not alter
meaning of the terms or render the instructions inadequate.
       Moreover, contrary to defendant‘s contention, the prosecutor did not argue
to the jury that the relevant inquiry with regard to provocation was what actually
happened to Rebecca when she was removed from the party; rather, the prosecutor
focused on defendant‘s subjective state of mind, and argued that the evidence did
not establish what Rebecca told her sons upon returning home. The prosecutor
also repeatedly reminded the jury that there were no provocative acts by any of the
victims except Watchman — a characterization that finds ample support in the
record. Similarly, the prosecutor did not improperly object to a defense argument
that defendant and his brother believed that more than one person at the party
assaulted their mother. The prosecutor‘s objection was founded upon his
conclusion that no evidence supported that theory of the case and did not
constitute inappropriate comment on the evidence.

                                         33
       Moreover, the prosecutor, by emphasizing that Arnold‘s conduct in
standing up from the couch and reaching for Michael after Michael pushed him
down with his shotgun was reasonable under the circumstances, did not mislead
the jury into believing the shooter‘s state of mind was irrelevant. This comment
on the evidence was consistent with the well-established rule that a victim‘s
predictable resistance to a felonious assault does not constitute sufficient
provocation to arouse a heat of passion in an ordinarily reasonable person. (Rich,
supra, 45 Cal.3d at p. 1112.) Finally, the prosecutor‘s statement that the assault
on Rebecca was unlikely to have caused heat of passion sufficient to interfere with
deliberation and premeditation did not mislead the jury into believing that the
shooter‘s state of mind was irrelevant, but rather properly conveyed that the
existence of any heat of passion depends, in part, upon the events that defendant
asserts provoked that passion.

           4. Asserted error concerning instruction regarding specific intent for
              attempted murder
       Defendant contends the trial court‘s pinpoint instruction on transferred
intent for the murder charges improperly conveyed to the jury that it could find
defendant guilty of attempted murder without finding that he intended to kill the
attempted murder victims, thereby violating state law and his rights under the
Fifth, Sixth, Eighth and Fourteenth Amendments. We reject the contention.
       As to the murder charges, the trial court instructed the jury pursuant to
CALJIC No. 8.20, the standard deliberate and premeditated murder instruction,
and at the request of the prosecutor, added a one-sentence pinpoint instruction
providing that ―[i]t is not necessary that premeditation and deliberation be directed
at a specific individual, it may be directed at a group.‖ Also, the court instructed
the jury on the attempted murder charges pursuant to CALJIC No. 8.66 and on the
willful, deliberate, and premeditated enhancement allegation pursuant to CALJIC


                                          34
No. 8.67. The attempted murder instruction did not contain the pinpoint
instruction.
       Under the common law doctrine of transferred intent, ―a person maliciously
intending to kill is guilty of the murder of all persons actually killed. If the intent
is premeditated, the murder or murders are first degree.‖ (People v. Bland (2002)
28 Cal.4th 313, 323-324.) The doctrine does not apply to attempted murder. ―To
be guilty of attempted murder, the defendant must intend to kill the alleged victim,
not someone else.‖ (Id. at p. 328.)
       Defendant contends that the inclusion of the pinpoint instruction on
deliberate and premeditated murder made it reasonably likely that the jurors
misunderstood the instructions to permit convictions on the attempted murder
charges without finding that the shooter had the specific intent to kill victims John
and James. Because the instructions did not delineate the difference between the
specific intent required for the murder charges and that required for the attempted
murder charges, defendant asserts that confusion was likely because the
instructions spoke of an intent to ―kill a human being‖ rather than an intent to kill
―the person injured‖ and because Michael‘s trial counsel conceded that defendants
were guilty of at least second degree murder with regard to all three murder
victims — even those shot unintentionally.9
       Defendant did not object to or request amplification of the instructions
provided and accordingly his claim that they were inadequate and misleading is
forfeited on appeal. (People v. Welch (1999) 20 Cal.4th 701, 757.)


9      Michael‘s counsel argued to the jury that the shooter shot victim Arnold
intentionally (but with provocation in the heat of passion), but that the shooter did
not intend to kill victims Watchman and Trudell, who were struck accidentally by
an inexperienced shooter who did not have control over his automatic weapon.




                                           35
       The claim also fails on the merits. The trial court‘s instructions were
neither erroneous nor confusing, and in light of Michael‘s counsel‘s contention
that only victim Arnold was killed intentionally, the pinpoint instruction on
transferred intent was warranted as material to the murder charges. Moreover, it is
not reasonably likely that the jury applied the transferred intent instruction to the
attempted murder counts. The attempted murder instruction did not contain the
pinpoint language regarding the doctrine of transferred intent, and no language in
that or any other instruction suggested that it incorporated definitions from other
crimes. To the contrary, the jury was instructed with CALJIC No. 3.31, which
provided, as relevant here, that ―[t]he specific intent required is included in the
definitions of the crimes charged and the lesser included offenses.‖ Additionally,
the jury was instructed pursuant to CALJIC No. 17.02 that ―[e]ach count charges a
distinct crime. You must decide each count separately. Each defendant may be
found guilty or not guilty of any or all of the crimes charged.‖ Thus, the jury
properly was instructed on each separate crime, and instructed that each crime
charged had a separate definition of specific intent. Under these circumstances,
there was no likelihood of confusion, and the trial court did not err.

           5. Asserted error from instruction pursuant to CALJIC No. 17.4.1
       Defendant contends his rights under the Sixth and Fourteenth Amendment
to the federal Constitution were violated by instruction pursuant to CALJIC
No. 17.41.1. The instruction, as it was read to the jury, provided: ―The integrity
of a trial requires that jurors at all times during their deliberations conduct
themselves as required by these instructions. Accordingly, should it occur that any
juror refuses to deliberate or expresses an intention to disregard the law or to
decide the case based on penalty or punishment or any other improper basis, it is
the obligation of the other jurors to immediately advise the court of the situation.‖



                                           36
       Although defendant correctly observes that we held in People v. Engelman
(2002) 28 Cal.4th 436 that CALJIC No. 17.41.1 should not be given in criminal
trials in California because it has the potential to intrude unnecessarily on the
deliberative process and affect it adversely, defendant points to nothing in his trial
that would provide a compelling reason for us to reconsider our further conclusion
that giving the instruction, although ill-advised, does not violate a defendant‘s
constitutional rights. (Engelman, supra, at p. 454.)

           6. Asserted error based on the prosecutor’s reference to assertedly
              false evidence
       Defendant contends the prosecutor misled the jury on numerous occasions
— during both the guilt and penalty phases of his trial — by referring to ―false‖
evidence during argument, thereby violating defendant‘s right to due process and
requiring reversal of the guilt and penalty phase verdicts. As the Attorney General
correctly characterizes it, the claim is one of prosecutorial misconduct, and
defendant failed to object to the conduct below and has, therefore, forfeited these
claims on appeal. (People v. Gray (2005) 37 Cal.4th 168, 215.) In his reply brief,
defendant withdraws these claims, except as it may accumulate prejudice as to
other asserted errors. But the only other identifiable error that bears relevance to
this claim of prosecutorial misconduct is instructional error at the penalty phase
discussed below. As we explain, any asserted prosecutorial misconduct at the
penalty phase could not have prejudiced defendant in light of that instructional
error. (See post, at pp. 54-58.)




                                          37
             B. Asserted Errors Affecting the Penalty Phase of Trial

                1. Jury Selection Issues

                       (a) Asserted error based on exclusion of prospective jurors
                       who disfavor the death penalty
       Defendant contends the trial court erred in excluding for cause four
prospective jurors who expressed reservations about the death penalty, thereby
violating his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to
the United States Constitution and article I, section 16 of the California
Constitution.
       A prospective juror in a capital case may be excluded for cause if his or her
views on capital punishment ―would ‗prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his
oath.‘ ‖ (Wainwright v. Witt (1985) 469 U.S. 412, 424.) Prospective jurors ―may
not know how they will react when faced with imposing the death sentence, or
may be unable to articulate, or may wish to hide their true feelings.‖ (Id. at
p. 425.) Accordingly, ―deference must be paid to the trial judge who sees and
hears the juror‖ and must determine whether the ―prospective juror would be
unable to faithfully and impartially apply the law.‖ (Id. at p. 26.) We apply this
standard to determine whether excusing a prospective juror in a capital case for
cause based on the prospective juror‘s views on capital punishment violates the
defendant‘s right to an impartial jury under article I, section 16 of the California
Constitution. (People v. Thomas (2011) 51 Cal.4th 449, 462 (Thomas); People v.
Griffin (2004) 33 Cal.4th 536, 558 (Griffin); People v. Ghent (1987) 43 Cal.3d
739, 767.)
       ― ‗On appeal, we will uphold the trial court‘s ruling if it is fairly supported
by the record, accepting as binding the trial court‘s determination as to the
prospective juror‘s true state of mind when the prospective juror has made


                                           38
statements that are conflicting or ambiguous.‘ ‖ (Thomas, supra, 51 Cal.4th at
p. 462, quoting People v. Mayfield, supra, 14 Cal.4th at p. 727.) ― ‗In many cases,
a prospective juror‘s responses to questions on voir dire will be halting, equivocal,
or even conflicting. Given the juror‘s probable unfamiliarity with the complexity
of the law, coupled with the stress and anxiety of being a prospective juror in a
capital case, such equivocation should be expected. Under such circumstances, we
defer to the trial court‘s evaluation of a prospective juror‘s state of mind, and such
evaluation is binding on appellate courts.‘ ‖ (Thomas, supra, at pp. 462-463,
quoting People v. Fudge (1994) 7 Cal.4th 1075, 1094.)
       Applying these precepts, we find no errors in the present case.

                           (i) Prospective Juror B.M.
       Prospective Juror B.M.‘s juror questionnaire revealed that she identified
herself as a Christian and that she taught children‘s classes at her church.
Although her church did not advocate for or against the death penalty, she was
―unsure‖ whether she held ―any religious or philosophical principle that would
affect [her] ability to vote for the death penalty.‖ In response to a question
regarding her philosophical opinion regarding the death penalty on a scale from
―strongly against‖ to ―strongly in favor,‖ she described herself as ―neutral.‖ When
asked to describe her general feelings about the death penalty, she wrote: ―I
believe the law is the law, you must abide by the law of the land and if that means
the person/s fall under that category, so be it. I myself really don‘t know how I
feel about the death penalty. I believe that God allows certain things and it all
depends. I am really unsure.‖ As to her general feelings about the punishment of
life without the possibility of parole,‖ B.M. wrote, ―I don‘t disagree with it. It all
depends on the circumstances.‖ When asked to choose which of the two
punishments was the ―more severe,‖ she stated that her evaluation would depend



                                          39
―on the person, one could be more severe than the other, so I choose neither one.‖
When asked if she wanted to hear about a defendant‘s background and family
before deciding on a penalty, she stated that it would depend upon the ―nature of
the crime‖ but when asked if she would consider such information if she was
required to, she agreed that she would.
       During oral voir dire conducted by the trial court, the court asked B.M.
whether she could ―realistically consider two options,‖ one of which was the death
penalty. B.M. replied that ―it would be really, really difficult for me to make that
decision.‖ I mean it would take a whole lot before that decision could be made by
me.‖ When asked by the court to explain what she meant by a ―whole lot,‖ B.M.
replied that ―it is basically the whole circumstance . . . . I mean everything that‘s
taken and accounted for. The evidence, the person, what — the circumstance,
what happened, all of that.‖ The court further investigated what B.M meant by a
―whole lot‖ with the following exchange:
       ―Q:    But when you talk about making that decision, is there something
within you that you‘re kind of warning me about, that you might not be able to do
that? You might not be able to realistically consider both choices because of your
own feelings or the unsureness of your feelings?
       ―A:    Yes.
       ―Q:    As you — are there, now, realistically, practically thinking that you
could keep an open mind, hear all of the evidence and depending on the evidence
that you could impose the death penalty? Do you think you could?
       ―A:    I don‘t know how to answer that. It really — I mean I — to me it
would really take a whole — I mean when I say a whole, I don‘t know what would
make it — I can‘t say that I wouldn‘t say no to the death penalty. But I — it
would take a whole, whole, whole, lot.



                                          40
         ―Q:   If an individual were charged with, oh, being a major participant in
the holocaust, if an individual were charged with blowing up a public building
with 200 people including infants in it are those things you think —
         ―A:   A possibility.
         ―Q:   — fit a whole lot?
         ―A:   Yes.
         ―Q.   If somebody‘s charged with shooting a gun and shooting several
people, does that measure up to a whole lot in your mind?
         ―A.   No. All depends on the state of mind too.
         ―Q:   Okay. I understand as you‘re struggling with this trying to express
your feelings, as I understand it, you‘re conveying that you really have a problem
with the death penalty?
         ―A:   Yes.
         ―Q.   But you also have thought about it enough to appreciate a lot can go
into it besides a body count; but then you also come back to the idea that you
really have a problem with the death penalty?
         ―A:   Yes.‖
         Michael‘s counsel questioned B.M. further, explaining that the law allowed
for B.M. having a ―hard time‖ imposing the death penalty but that the real
question was whether she could be open to both options. B.M. responded that ―in
my heart, it would make me sick to make that decision.‖ Michael‘s counsel
restated the question, asking, ―can you be open to that decision?‖ B.M. replied,
―yes.‖
         The prosecutor did not question B.M. before challenging her for cause.
Michael‘s counsel challenged the prosecutor‘s characterization of B.M. as having
views that would substantially impair her ability to perform her duties as a juror in
a capital case, pointing out that although B.M.‘s views were equivocal, they were

                                         41
no more weighted toward a particular penalty than the views of W.L. — a
prospective juror whom defense counsel had unsuccessfully attempted to
challenge for cause on the basis that his views revealed an impermissible bias in
favor of the death penalty. The trial court agreed with the prosecutor and excused
B.M for cause, noting that unlike juror W.L., who ―was all over the place,‖
Prospective Juror B.M. was very clear that she would be ―sickened at the thought
of‖ voting to execute someone, a statement which the court concluded ―seemed to
show the extremity of the situation.‖ The court noted that B.M.‘s demeanor
reflected her difficulty, in that there were ―five, six-second delays sometimes
when she was asked about some of these questions. She was really struggling.‖
       Substantial evidence supports the trial court‘s finding that Prospective Juror
B.M.‘s views on capital punishment would substantially impair her ability to
perform the duties of a juror. In both her juror questionnaire and during voir dire,
she asserted that she was unsure as to whether she could vote to impose the
penalty of death, stating during voir dire that doing so would make her ―sick to her
stomach.‖ Although it is true that in response to questioning by defense counsel,
B.M. stated that she could be open to the decision of choosing between life
imprisonment or death, her other answers revealed a deep reluctance to consider
imposition of the death penalty.
       We previously have held comments very similar to those made by B.M.
provided substantial evidence to support a trial court‘s dismissal of a prospective
juror for cause. In Griffin, supra, 33 Cal.4th at page 559, we held that the trial
court properly excused for cause a prospective juror who stated on voir dire ―that
she did not know whether she ever could vote to impose the death penalty,
regardless of the state of the evidence‖ and properly excused another prospective
juror who stated she generally supported the death penalty but added that ―she did
not know whether she actually could vote to impose the death penalty.‖ (Id. at

                                          42
p. 560.) Moreover, the trial court noted on the record that B.M.‘s manner of
speaking — particularly her long pauses before answering — reflected a strong
internal struggle regarding a willingness to impose the penalty of death. We defer
to the trial court‘s evaluation of a prospective juror‘s state of mind. (Thomas,
supra, 51 Cal.4th at p. 463.)

                           (ii) Prospective Juror T.F.
       In his questionnaire, Prospective Juror T.F. selected the responses
indicating that he was ―moderately in favor‖ of the death penalty and wrote that
his general feelings about the death penalty were that it was ―[h]ard to look at
most of the time — I mean having to exercise it. I wonder if it is a deterrent at all.
Overall, I believe there is a need for it.‖ Asked his ―general feelings‖ about life
without parole, he replied that ―it‘s better than death and leaves the door open for
personal rehabilitation. It seems, however there are few systems in place to
accomplish this.‖ T.F. indicated he had no ―religious or philosophical principle‖
that would affect his ability to vote for the death penalty and that ―to be fair,‖ he
would want to know about the defendant‘s background.
       On oral voir dire, Prospective Juror T.F. stated that he could consider both
penalties, but ―not without difficulty.‖ Asked to clarify, he stated, ―the death
penalty is a very final penalty, so not to be considered lightly.‖ He stated he
would find it ―very difficult‖ to vote for death and that he would be ―more in favor
of life imprisonment.‖ Asked whether he could ―practically‖ see himself voting
for the death penalty, he stated, ―I would have to be persuaded at that point by the
evidence.‖ After the trial court asked him if he had ―prejudged,‖ T.F. explained
that, since being faced with the possibility of serving on this jury, he, upon further
introspection of his thoughts and religious beliefs, now felt that he would be ―more
likely to sway or fall on the side of lenient punishment,‖ even without ―having



                                          43
heard one fact, whatsoever.‖ He characterized this feeling, as ―[p]retty strong.‖
Neither defense counsel nor the prosecutor questioned T.F., and the trial court
granted the prosecutor‘s challenge for cause and dismissed T.F. without
explanation or objection by defense counsel.
       Although defense counsel‘s failure to object to T.F.‘s removal did not
forfeit this claim on appeal based on the then-applicable law,10 we note that, by
failing to question T.F., defense counsel relinquished ―the opportunity to
rehabilitate [T.F.] in an effort to show [he was] not excludable‖ (People v. Mills
(2010) 48 Cal.4th 158, 188), and further suggests that ―counsel concurred in the
assessment that the juror was excusable‖ (People v. Cleveland (2004) 32 Cal.4th
704, 735). In any event, substantial evidence supports the trial court‘s finding that
Prospective Juror T.F.‘s views on capital punishment would substantially impair
his ability to perform the duties of a juror. Although T.F. wrote in his
questionnaire that he was moderately in favor of the death penalty and that he had
no religious views or personal beliefs that would affect his ability to vote for it, his
answers during voir dire reflected that he had changed his feelings and developed
strong feelings against it. He stated repeatedly that he was more in favor of a
sentence of life without the possibility of parole and that he would ―sway‖ in favor
of lenient punishment, without considering any evidence. These responses reflect
a strong reluctance to impose the penalty of death, even in an appropriate case.
―Those answers, in combination with the trial court‘s firsthand observations, could

10      As we recently explained, we now prospectively require the defense to
―make either a timely objection, or the functional equivalent of an objection, such
as a statement of opposition or disagreement, to the excusal stating specific
grounds under [Witherspoon v. Illinois (1968) 391 U.S. 510 and Wainwright v.
Witt, supra, 469 U.S. 412] in order to preserve the issue for appeal.‖ (People v.
McKinnon (2011) 52 Cal.4th 610, 643.)




                                          44
give rise to a definite impression that [his] views on the death penalty would
substantially impair the performance of his duties.‖ (People v. Lewis and Oliver
(2006) 39 Cal.4th 970, 1007.)

                          (iii) Prospective Juror E.R.
       In her juror questionnaire, Prospective Juror E.R. identified herself as
moderately against the death penalty, explaining that she opposed its application
except under ―special and/or severe circumstances.‖ She held no religious or
philosophical principle that would affect her ability to vote for death. During voir
dire, she was asked by the trial court whether there was a realistic possibility that
she could impose the death penalty. She replied, ―I‘d have to know more about
. . . the case than what you‘ve told me, but generally speaking I‘m not in favor of
the death penalty.‖ She agreed with the trial court‘s characterization that she had
―not ruled out the possibility of imposing the death penalty, but that basically you
don‘t think it should exist.‖ When asked if she could give the People a ―fair
shake,‖ she replied, ―no, because I don‘t believe in the death penalty, basically.‖
Defendant did not object to the court‘s excusal of Prospective Juror E.R. for cause,
which suggests that ―counsel accepted that the record as it stood was sufficient to
support the intended ruling.‖ (People v. McKinnon, supra, 52 Cal.4th at p. 644.)
       Indeed, substantial evidence supports the trial court‘s order excusing
Prospective Juror E.R. The trial court was justified in concluding that the
prospective juror‘s views on capital punishment alone would substantially impair
her ability to perform the duties of a juror. Aside from some heavily qualified
assurances that she was not categorically against the death penalty, Prospective
Juror E.F. was never able to state that she would be able to vote for the death
penalty. She repeatedly stated that she was against the death penalty, and admitted
that she would be unable to fairly assess the People‘s evidence. Substantial



                                          45
evidence supported the trial court‘s determination that E.R.‘s views substantially
impaired her ability to serve as an impartial juror. (Griffin, supra, 33 Cal.4th at
p. 559.)

                          (iv) Prospective Juror D.L.
       In his jury questionnaire, Prospective Juror D.L. identified himself as
neutral regarding the death penalty, and stated that he held no religious or
philosophical beliefs that would affect his ability to vote for death. He also stated
that he did not believe that the death penalty is necessary. During voir dire, he
questioned whether it would be appropriate to take a defendant‘s life ―if it‘s not a
serious killing‖ and stated that he did not see himself as someone who could
impose the death penalty. The court then granted the prosecutor‘s challenge for
cause without explanation or objection by defense counsel.
       As previously noted, by failing to question D.L., defense counsel
relinquished the opportunity to rehabilitate him to show that he was not excludable
and counsel‘s conduct additionally suggests that counsel agreed that the juror was
excusable. (People v. Mills, supra, 48 Cal.4th at p. 188; People v. Cleveland,
supra, 32 Cal.4th at pp. 734-735; People v. McKinnon, supra, 52 Cal.4th at
p. 644.) Moreover, substantial evidence supports the trial court‘s finding that
Prospective Juror D.L.‘s views on capital punishment would substantially impair
his ability to perform the duties of a juror. As noted above, we held in Griffin,
supra, 33 Cal.4th at page 560, that the trial court properly excused for cause a
prospective juror who stated on voir dire that ―she did not know whether she
actually could vote to impose the death penalty.‖ Prospective Juror D.L.
explained that he did not believe the death penalty was necessary, felt it was
inappropriate to impose the death penalty under most circumstances, and that he




                                          46
did not feel he was the type of person that could vote to impose death. D.L.‘s
answers supported the trial court‘s order excusing him.

                      (b) Failure to excuse juror for bias
       Defendant contends the trial court committed reversible constitutional error
by including Juror No. 5 in the penalty jury, and refusing defendants‘ challenge to
dismiss Juror No. 5 for cause. (Wainwright v. Witt, supra, 469 U.S. at pp. 423-
424; People v. Weaver (2001) 26 Cal.4th 876, 910.)
       Juror No. 5 indicated on his questionnaire that he was ―moderately in
favor‖ of the death penalty, and that his ―general feelings‖ about the death penalty
were an ―eye for an eye‖ in some cases. He stated that he would not want to know
about defendant‘s background in determining the appropriate penalty. If required
to consider such information, he noted that ―considerations are possible.‖
       During voir dire, Juror No. 5 was asked by the trial court whether he could
fairly evaluate all of the evidence in the case and keep open the option of either
penalty, to which he responded, ―I believe so.‖ When questioned as to whether he
could remain impartial if there were as many as three murder convictions and two
attempted murder convictions, he answered, ―Yeah, I think so.‖ During
questioning by Michael‘s counsel, Juror No. 5 explained that his statement about
an ―eye for an eye‖ reflected his belief that ―[c]ertainly in some situations, when
it‘s, I guess, beyond a reasonable doubt, you know, eye for an eye . . . and in a
supposed civilized society, where a life is taken away for no reason, seemingly, as
the Bible will state eye for an eye, you know if it was taken away for no real good
reason . . . . I mean there‘s always reasons for something, but there‘s — if the
society is going to maintain itself, something has to be done, I would think.‖
When asked by counsel whether he would vote to impose the death penalty if
defendants were found guilty beyond a reasonable doubt of the charges, ―without



                                         47
other considerations,‖ Juror No. 5 stated that he would. The trial court posed a
hypothetical involving a getaway driver in a bank robbery who was found liable
for three murders that occurred during that robbery. Without providing any
mitigating factors, the court asked whether Juror No. 5 believed death would be
the appropriate punishment. He answered, ―I believe so.‖ Asked whether he
could keep an open mind to hear the evidence regarding the appropriate
punishment, he stated, ―I‘d try to keep an open mind.‖ When asked, ―do you think
you‘d be able to do that?,‖ Juror No. 5 nodded his head.
       Defense counsel asked whether Juror No. 5 would automatically vote for
the death penalty if the defendants were found guilty of the charged offenses. He
answered, ―Well, I wouldn‘t automatically.‖ Asked whether he would be inclined
at the outset to impose the death penalty in such a case, Juror No. 5 answered,
―yes.‖ He stated it was ―hard to say‖ and that ―it depends‖ on the evidence put
forth by the defense, and agreed that the burden would be on the defense to change
his mind in such a case. In response to questions by the prosecutor, Juror No. 5
stated he would listen to evidence offered in mitigation at the penalty phase but
affirmed that he would ―[m]ore than likely‖ lean toward death if he knew only the
basic facts of three murders and two attempted murders, although he again
allowed that mitigation evidence ―could‖ change his decision.
       Defense counsel challenged Juror No. 5 for cause, but the trial court denied
the challenge, stating its impression that Juror No. 5 had repeatedly conveyed that
he was ―pretty objective‖ about the death penalty, generally, and that multiple
murders were merely aggravation that would make him lean toward death. The
trial court also agreed with the prosecutor‘s impression that the questions defense
counsel posed, because they contained only aggravating and no mitigating
circumstances, elicited misleading answers from Juror No. 5.



                                         48
       The Attorney General contends defendant‘s claim is forfeited. We agree.
Defendant, having chosen not to challenge Juror No. 5 peremptorily, and having
neither exhausted his peremptory challenges nor expressed dissatisfaction with the
jury, cannot raise on appeal the trial court‘s failure to excuse Juror No. 5. ― ‗Under
our state law, a defendant who wishes to preserve a claim of error in the improper
denial of a challenge for cause must (1) use a peremptory challenge to remove the
juror in question; (2) exhaust his or her peremptory challenges or justify the failure
to do so; and (3) express dissatisfaction with the jury ultimately selected.‘ ‖
(People v. Taylor (2009) 47 Cal.4th 850, 884, quoting People v. Blair, supra, 36
Cal.4th at p. 741; see also People v. Carasi (2008) 44 Cal.4th 1263, 1290 [the
requirement of stating dissatisfaction applies to trials conducted after 1994
decision clarified the law].)
       Defendant contends his claim is not forfeited because defendant did exhaust
his peremptory challenges in a subsequent proceeding in which alternate jurors
were selected, and one of those alternate jurors ultimately sat on defendant‘s jury.
This circumstance does not save defendant‘s claim because it has no bearing on
his failure to exhaust his peremptory challenges or his failure to express
dissatisfaction with the 12 jurors that included Juror No. 5. As required, counsel
received a new set of peremptory challenges in the proceeding in which alternate
jurors were selected, and defense counsel expressed satisfaction with the alternate
jurors who were selected and later sworn to hear the penalty phase. Under these
circumstances, ―we adhere to the well-established rule that to preserve a claim a
biased juror was improperly permitted to serve, the defense must exhaust its
peremptory challenges and object to the jury as sworn.‖ (People v. Taylor, supra,
47 Cal.4th at p. 885, citing People v. Blair, supra, 36 Cal.4th at p. 741.)




                                          49
                       (c) Alleged error in biased composition of jury
       Defendant presents several interrelated arguments that his constitutional
rights to a fair trial and impartial jury were violated by the trial court and
prosecutor‘s systemic and biased exclusion of jurors who were skeptical of the
death penalty and by inclusion of jurors who were biased in favor of it, resulting in
a jury unconstitutionally ―culled of all those who revealed during voir dire
examination that they had conscientious scruples against or were otherwise
opposed to capital punishment.‖ (Adams v. Texas (1980) 448 U.S. 38, 43.) We
find no merit to defendant‘s contention.
       Defendant urges us to perform a comparative analysis that he contends
demonstrates that the trial court applied an arbitrary and capricious standard to the
excusal of jurors for cause — excusing life-inclined jurors more frequently and
with less hesitation than jurors who revealed a bias in favor of the death penalty.
To support this contention, he compares the trial court‘s excusal for cause of
Prospective Jurors B.M.,T.F., E.R., and D.L., with its refusal to excuse for cause
Prospective Jurors M.L., Q.I., and L.W., who gave answers on their jury
questionnaires, and in response to the court‘s oral examination, revealing that they
would automatically vote for the death penalty. Prospective Jurors M.L., Q.I., and
L.W. ultimately were dismissed for other reasons, and as we noted previously,
defendant did not exhaust his peremptory challenges.
       As set forth above, substantial evidence supported the trial court‘s excusal
of Prospective Jurors B.M.,T.F., E.R., and D.L. for cause, obviating defendant‘s
contention that the trial court‘s removal of these jurors was arbitrary and
capricious. Moreover, defendant‘s claim fails because even assuming Prospective
Jurors M.L., Q.I., and L.W. were biased, they did not serve on the jury and
therefore could not possibly have affected the jury‘s fairness. (People v. Yeoman
(2003) 31 Cal.4th 93, 114.) As we explained in Yeoman, ―[a]n erroneous ruling


                                           50
that forces a defendant to use a peremptory challenge, and thus leaves him unable
to exclude a juror who actually sits on his case, provides grounds for reversal only
if the defendant ‗can actually show that his right to an impartial jury was affected
. . . .‘ [Citation.] In other words, the loss of a peremptory challenge in this
manner ‗ ―provides grounds for reversal only if the defendant exhausts all
peremptory challenges and an incompetent juror is forced upon him.‖ ‘
[Citations.]‖ (Ibid.) In the present case, where defendant did not exhaust all his
peremptory challenges, he cannot demonstrate that his right to an impartial jury
was impaired by the trial court‘s refusal to excuse Prospective Jurors M.L., Q.I.,
and L.W. for cause, even assuming the trial court impermissibly applied differing
standards to death-inclined jurors than it did to jurors who favored the penalty of
life imprisonment.
       Nor, contrary to defendant‘s contention, did the prosecutor‘s use of
peremptory challenges to excuse prospective jurors who expressed reservations
about the death penalty violate defendant‘s constitutional right to a representative
jury. ― ‗[W]e see no . . . constitutional infirmity in permitting peremptory
challenges by both sides on the basis of specific juror attitudes on the death
penalty. While a statute requiring exclusion of all jurors with any feeling against
the death penalty produces a jury biased in favor of death [citation], we have no
proof that a similar bias arises, on either guilt or penalty issues, when both parties
are allowed to exercise their equal, limited numbers of peremptory challenges . . .
against jurors harboring specific attitudes they reasonably believe unfavorable.‘ ‖
(People v. Richardson (2008) 43 Cal.4th 959, 983-984, quoting People v. Turner,
supra, 37 Cal.3d at p. 315; see also People v. Brown (2004) 33 Cal.4th 382, 403
[―The prosecution‘s use of peremptory challenges to remove prospective jurors
who express scruples about imposing the death penalty does not violate any
constitutional guarantee.‖].)

                                          51
                2. Asserted error stemming from court’s modified lingering doubt
                   instruction
       Defendant contends the trial court‘s lingering doubt instruction, by using
the word ―guilt,‖ prevented the jury from considering any lingering doubt about
the truth of the special circumstance, thereby violating his rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments of the United States Constitution and
parallel provisions of the state Constitution. We disagree.
       Defendant requested a pinpoint instruction informing the jury that, when
determining penalty, it could consider any lingering doubt it had that defendant
was the ―actual shooter, intended to kill, or premeditated and deliberated.‖ The
trial court agreed it had discretion to provide a pinpoint instruction on lingering
doubt, but stated that it did not agree with the language of defendant‘s proposed
instruction. The trial court ultimately instructed the jury with a lingering doubt
instruction that provided: ―It may be considered as a factor in mitigation if you
have a lingering doubt as to the guilt of the defendant.‖ Defense counsel stated
that although he preferred the instructional wording he had proposed, he was
satisfied with the trial court‘s formulation. Thereafter, both the prosecutor and
defense counsel argued the concept of lingering doubt to the jury.
       The Attorney General contends the claim is forfeited because defendant did
not object to the instruction, and in fact, stated that although he preferred the
instruction as he had requested it, he was ―satisfied‖ with the instruction as given.
Although defense counsel did not object to the lingering doubt instruction
provided to the jury, he did unsuccessfully request a lingering doubt instruction
more closely tailored to the circumstances of the present case. Accordingly,
defendant has preserved his claim on appeal. (People v. Taylor (2010) 48 Cal.4th
574, 628.)




                                          52
       The claim nevertheless fails on the merits. Although ―[a] defendant has no
federal or state constitutional right to have the penalty phase jury instructed to
consider any‖ lingering doubts as to whether the defendant is guilty, ―[t]his is not
to say that the jury‘s consideration of any such doubt is improper; defendant may
urge his possible innocence to the jury as a factor in mitigation.‖ (People v.
Johnson (1992) 3 Cal.4th 1183, 1252.)
       Defendant asserts that because the instruction as given utilized the word
―guilt,‖ it was insufficient to address any lingering doubt concerning the truth of
the multiple-murder special circumstance. Defendant reasons that such a finding
required a conclusion by the jury that he intended to kill the victims — a
circumstance which did not necessarily depend upon defendant‘s ―guilt‖ for his
role in the murders. Thus, he contends, the jury was precluded from considering
and giving effect to any lingering doubt that defendant was the actual shooter. We
disagree.
       Nothing in the proffered instruction or in the prosecutor‘s arguments to the
jury conveyed to it that the issue of lingering doubt was limited to the substantive
offenses and could not be considered in conjunction with the multiple-murder
special-circumstance finding. To the contrary, the jury was instructed pursuant to
CALJIC No. 8.85, that in assessing aggravation and mitigation, it must consider
the circumstances of the crime, any special circumstances, defendant‘s level of
participation, and any other extenuating circumstances. Additionally, the jury was
told to disregard any instruction that appeared to conflict with this primary
directive. The jury also was instructed pursuant to CALJIC No. 8.88 that it must
consider mitigating factors, defined broadly as ―any fact, condition or event which
as such, does not constitute a justification or excuse for the crime in question, but
may be considered as an extenuating circumstance in determining the
appropriateness of the death penalty.‖

                                          53
       Taken together, these instructions properly conveyed to the jury that its
consideration of mitigation in general, and of lingering doubt as a factor in
mitigation in particular, did, and must, extend to its consideration of the multiple-
murder special circumstance. Thus, the jury was free to consider and give effect
to any lingering doubt as to whether defendant was the actual shooter, or was, as
he urges, a weaker accomplice influenced heavily by his older brother.
Accordingly, there was no reasonable likelihood that the lingering doubt
instruction, as given, prejudiced defendant, and we ascertain no error.

           3. Asserted error in penalty phase based on omission of previously
              given instructions in guilt phase
       In the guilt phase of defendant‘s trial, the trial court provided the standard
instructions guiding the jury‘s consideration of evidence. At the penalty phase of
the trial, the trial court instructed the jury pursuant to CALJIC No. 8.84.1, to
disregard all guilt phase instructions omitted from the penalty phase, but the court
failed to reinstruct the jury regarding the consideration and evaluation of evidence.
Thus, as in People v. Moon (2005) 37 Cal.4th 1 (Moon), unlike with regard to the
guilt phase, ―the jury was not specifically instructed at the penalty phase how to
consider statements by attorneys, testimony for which an objection was sustained,
and insinuations couched in questions (CALJIC No. 1.02); nor was it instructed
regarding the prohibition on independent investigation (CALJIC No. 1.03), the
definitions of ‗evidence,‘ ‗direct evidence,‘ and ‗circumstantial evidence‘
(CALJIC No. 2.00), how to consider inconsistent statements by witnesses
(CALJIC No. 2.13), assessing the believability of a witness (CALJIC No. 2.20),
the weighing of conflicting testimony (CALJIC No. 2.22), or the sufficiency of the
testimony of a single witness (CALJIC No. 2.27).‖ (Moon, supra, at p. 36.)
       Defendant contends the court‘s failure to instruct generally on these matters
at the penalty phase trial violated his constitutional rights under the Eighth and


                                          54
Fourteenth Amendments to the United States Constitution, as well as his rights
under parallel provisions of the state Constitution.
       In Moon, we held under identical facts that the trial court erred in failing to
reinstruct with guilt phase instructions applicable in the penalty phase after giving
a directive consistent with CALJIC No. 8.84.1. (Moon, supra, 37 Cal.4th at
p. 37.) We also held, however, that a court‘s omission of the applicable
instructions, though error, does not necessarily require reversal. (Ibid.) Instead,
we evaluated ―the nature of the evidence presented to determine whether it was
likely the omitted instructions affected the jury‘s evaluation of the evidence‖ and
concluded that in light of the relatively straightforward nature of the evidence
presented by both the prosecutor and defendant at the penalty phase, defendant
was not prejudiced by the omission of the instructions. (Id. at p. 38.)
       In the present case, the prosecution relied upon the circumstances of the
crime as a factor in aggravation, and the only new evidence presented by the
prosecutor in the penalty phase of the trial was the testimony of family members
of the victims, who testified regarding the loss and hardship they had experienced
as a result of the deaths of their loved ones. In mitigation, defendant presented the
testimony of numerous witnesses who testified generally regarding his good
nature, educational failures and successes, and his lack of prior acts of violence.
As in Moon, defendant called no expert witness to present his social history, and
no forensic expert or mental health professional took the stand for either side.
(Moon, supra, 37 Cal.4th at p. 38.) All penalty phase witnesses spoke from
personal knowledge, and the prosecutor did not vigorously cross-examine any of
defendant‘s character witnesses. Accordingly, as in Moon, ―the penalty phase
evidence was entirely straightforward, and the trial court‘s failure to reinstruct the
jury with any applicable guilt phase instructions was harmless under any
standard.‖ (37 Cal.4th at p. 39.)

                                          55
       Defendant focuses primarily on the prosecutor‘s summation arguments in
the guilt phase, contending that because of the absence of guilt phase instructions
that would have instructed the jury regarding the proper scope of its consideration
of arguments of counsel, the jury may have believed the prosecutor‘s guilt phase
summation argument could be treated as evidence in the penalty phase of the trial.
Thus, he contends, in the absence of the general instructions regarding evaluation
of evidence, the jury reasonably believed that the same arguments of counsel it
evaluated in the guilt phase could change character and be evaluated in a different
manner in the penalty phase.
       As evidence that he was prejudiced by this error, defendant claims the
prosecutor falsely stated in his penalty phase closing argument that: (1) powder
burns on victim Watchman indicated the gun had been fired from a short range,
when there was no evidence of powder burns on any victim; (2) defendant had no
adult felony conviction records, thereby improperly alluding to a juvenile history
of violent crime that did not exist; (3) defendant would benefit from privileges
from life in prison, such as family and conjugal visits, although prisoners
sentenced to life without the possibility of parole are not entitled to overnight or
conjugal visits with family; (4) victim Rodney James died of a heroin overdose
two years after the shooting and that his drug use was attributable to the trauma he
experienced after the shooting, when no evidence established that James died from
a drug overdose or that any possible use of drugs was related to trauma from the
shooting; (5) defendant‘s counsel was a skilled advocate who was misrepresenting
the record — but in making the point, quoting from statements made by Michael‘s
counsel, not defendant‘s counsel.11

11     As we noted, ante at page 37, defense counsel did not object to these
portions of the prosecutor‘s penalty phase closing arguments.



                                          56
       The first two complained-of statements were not false or misleading.
Pathologist Van Meter testified that there were powder burns on Watchman‘s
clothing which indicated that she had been shot from a distance of about two feet.
The prosecutor also did not improperly allude to a nonexistent juvenile record
when he stated to the jury that defendant‘s lack of an adult felony conviction
record should not be a dispositive factor in mitigation. The statement was made to
support the prosecutor‘s contention that defendant was not entitled to mercy
simply because he started right ―at the top‖ by committing multiple murders at
18 years of age.
       Defendant is correct, however, that some of the statements identified above
were erroneous. Prisoners serving sentences of life without the possibility of
parole are not entitled to conjugal or overnight visits with family. There also was
no evidence that victim James had died of a drug overdose or that he had turned to
drugs to cope with the trauma of the shooting. Finally, the prosecutor did
incorrectly attribute statements to defendant‘s counsel that had been made by
Michael‘s counsel. But the misstated facts related to relatively minor points, and
were not likely to sway the jurors when considered in the context of the substantial
evidence presented at trial establishing that defendant intentionally killed three
unarmed persons.
       Moreover, as we concluded in Moon, defendant‘s contention that the
absence of instruction led the jury to believe it could make a ― ‗standardless
assessment of the evidence,‘ ‖ is pure speculation. (Moon, supra, 37 Cal.4th at
p. 39.) Contrary to defendant‘s assertion, nothing in the prosecutor‘s closing
argument at the penalty phase suggested the jurors were free to recharacterize the
arguments of counsel from the guilt phase as relevant evidence in the penalty
phase, and no other evidence or instruction in the penalty phase suggested that the



                                         57
distinction drawn between evidence and counsel‘s statements in the guilt phase
was to be disregarded in the penalty phase.
       Accordingly, we conclude the trial court‘s erroneous failure to reinstruct the
jury pursuant to applicable guilt phase instructions was harmless because
defendant ― ‗fails to demonstrate that the instructions given in his case, to a
reasonable likelihood, precluded the sentencing jury from considering any
constitutionally relevant mitigating evidence.‘ ‖ (Moon, supra, 37 Cal.4th at p. 39,
quoting People v. Carter (2003) 30 Cal.4th 1166, 1221.)

            4. Asserted error based on exclusion of mitigating evidence
       Defendant sought to admit the testimony of his father, Harry Souza, that
when defendant and his brother Michael were in high school, Michael engaged in
a fistfight to protect defendant. After the prosecutor objected to the testimony,
defendant asserted the testimony was relevant because it ―goes to family
closeness.‖ The trial court sustained the objection, noting defendant‘s proffered
justification was ―a bit far afield.‖
       The trial court also sustained the prosecutor‘s objection to the admission of
defendant‘s essay, titled ―Someone who understands‖ which consisted of
approximately 10 lines of text in which defendant described Michael as a person
he trusts and turns to when he needs help. In the essay he described Michael as a
person who would always stand by him, noting that the brothers played football
together, and people understand each other best when they are faced with ―bad and
good times together.‖ Defense counsel sought admission of the essay on the
ground that it showed defendant‘s education level and progress. The trial court
noted that other, more persuasive evidence had already been admitted on that
point, and sustained the prosecutor‘s objection on hearsay grounds.




                                          58
       Defendant now contends that by refusing to permit admission of this
evidence, the trial court violated his state and federal constitutional rights to due
process, to present a defense, and to a reliable penalty verdict. We conclude there
was no error.
       ― ‗The Eighth and Fourteenth Amendments require the jury in a capital case
to hear any relevant mitigating evidence that the defendant offers, including ― ‗any
aspect of a defendant‘s character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less than death.‘ ‖ ‘ ‖
(People v. Harris (2005) 37 Cal.4th 310, 352.) The court, however, has the
authority to exclude as irrelevant evidence that does not bear on the defendant‘s
character, record, or the circumstances of the offense. (Id. at p. 353.) ―The trial
court determines relevancy of mitigating evidence and retains discretion to
exclude evidence whose probative value is substantially outweighed by the
probability that its admission will create substantial danger of confusing the issues
or misleading the jury.‖ (People v. Guerra (2006) 37 Cal.4th 1067, 1145.)
       In the present case, neither Harry Souza‘s anecdote about Michael
participating in a fistfight nor the essay written by defendant about Michael‘s
trustworthiness had any bearing on defendant’s character, prior record, or the
circumstance of the offense, and therefore, there was no abuse of discretion in the
trial court‘s refusal to admit the evidence in mitigation. (People v. Hamilton
(2009) 45 Cal.4th 863, 923.) Instead, this evidence highlighted Michael’s good
character in protecting and caring for defendant.
       Defendant contends on appeal that the circumstance that Michael engaged
in a fistfight to protect defendant was relevant to the circumstances of the crime —
the incident tended to support defendant‘s defense that Michael was the leader,
and defendant the follower, on the night of the crimes. Defendant‘s only theory
for relevance at trial was ―family closeness,‖ however, and he may not now, for

                                          59
the first time on appeal, assert this alternate ground for relevance. (Evid. Code,
§ 354; People v. Fauber (1992) 2 Cal.4th 792, 831 [on appeal, a defendant cannot
raise grounds of admissibility which were not presented to the trial court].) The
same is true of defendant‘s assertion, for the first time on appeal, that defendant‘s
essay tended to humanize him by illustrating the close, loving relationship he
shared with his brother.
       In any event, there was no prejudicial error. Defendant presented abundant
evidence in mitigation tending to establish that defendant had a close, loving
relationship with his family in general, and with Michael in particular, including
the testimony of defendant‘s father and sister that defendant and Michael were
particularly close and that Michael was the ―leader‖ among the two. With regard
to the essay, which defendant sought to introduce to show his educational
achievements, defendant presented the testimony of five of his former teachers,
who testified extensively regarding defendant‘s strong work ethic, intelligence,
and positive attitude. Additionally, the educational coordinators of the adult
school district that included the Santa Rita jail testified specifically that during his
incarceration, defendant was a diligent and dedicated student. Accordingly, ―[t]he
jury was allowed to hear and consider the essence of the mitigating evidence,‖ and
any error was harmless. (People v. Hughes (2002) 27 Cal.4th 287, 397.)

           5. Asserted error based on instruction regarding victim impact
              evidence
       The prosecutor requested a special instruction pinpointing victim impact
evidence as a circumstance of the crime within the meaning of section 190.3,
subdivision (a). Over defendant‘s objection that the requested pinpoint instruction
was argumentative, the trial court included the requested language in paragraph (a)
of CALJIC No. 8.85, which instructed the jury concerning the factors in
aggravation and mitigation that it was permitted to consider. As modified, the


                                           60
instruction advised the jury to consider: ―(a) The circumstances of the crimes of
which the defendant was convicted in the present proceeding and the existence of
any special circumstance found to be true. As part of the circumstances of the
offense under factor A, you may also consider the testimony offered in this penalty
phase portion of the trial concerning the impact of the crimes on the family and
friends of the victims.‖
       Defendant contends inclusion of this pinpoint instruction was error because
the instruction as given was incomplete and improper. Specifically, he asserts the
instruction was improperly argumentative because it highlighted certain aspects of
the evidence without explaining the legal limitations on the use of such evidence.
(People v. Fauber, supra, 2 Cal.4th at p. 865.) Relying on several out-of-state
decisions, defendant contends that, under both state law and the Eighth
Amendment, the trial court should have instructed on the proper use of victim
impact testimony. He contends that a proper instruction would have told the jury
the following: it could consider victim impact evidence, which shows that the
victim was a unique individual, as a circumstance of the capital crime, but the law
deems no one life more valuable than another. Thus, the jury must confine itself
to a ―rational inquiry into the culpability of the defendant, not an emotional
response to the evidence.‖ Furthermore, it must not consider the opinions of the
victim‘s survivors, or any other member of the community, as to the appropriate
punishment. Defendant contends the trial court‘s failure to so instruct the jury
violated the federal Constitution and requires reversal. We disagree.
       We have repeatedly held that it is not error to refuse an instruction
substantially identical to that requested by defendant here. Nor is it error, if the
court fails, on its own motion, to give an instruction substantially identical to the
one defendant proposes. We have explained that these proffered instructions are
misleading insofar as they suggest the jury may not be moved by sympathy for the

                                          61
victims and their survivors, and that the standard instructions and the pinpoint
instruction actually given here adequately convey to the jury the proper
consideration and use of victim impact evidence. (People v. Harris, supra, 37
Cal.4th at pp. 358-359; see also People v. Tate (2010) 49 Cal.4th 635, 708; People
v. Bramit (2009) 46 Cal.4th 1221, 1245; People v. Zamudio (2008) 43 Cal.4th 327,
368–370; People v. Valencia (2008) 43 Cal.4th 268, 310; People v. Pollock (2004)
32 Cal.4th 1153, 1195.) We reaffirm those conclusions here.

           6. Alleged cumulative error
       Defendant asserts that numerous alleged errors committed during both the
guilt phase and the penalty phase of his trial, even if not individually requiring
reversal of the judgment, cumulatively impacted the jury‘s penalty determination
and require reversal of the judgment of death. As set forth above, the only errors
we have identified are the trial court‘s failure to reinstruct the jury with certain
guilt phase instructions after instructing them pursuant to CALJIC No. 8.84.1, and
the improper provision of CALJIC No. 17.41.1, but as also explained above,
neither error was prejudicial. Accordingly, we find no error, whether considered
singly or cumulatively, that would warrant reversal.

           7. Special instructions regarding mitigating factors
       Defendant contends the trial court erred by refusing to give his proffered
instruction concerning the distinction between (and the proper use of) aggravating
and mitigating factors. He asserts this error violated his rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments of the United States Constitution and
parallel provisions of the state Constitution. The instruction would have advised
the jury that it might consider any evidence in mitigation (including evidence not
encompassed by the specific mitigating factors listed in the instruction) and that
any mitigating factor, standing alone, could support a determination that death was



                                           62
not the appropriate punishment in this case. Defendant also sought to have the
jury instructed that mitigating circumstances do not have to be proved beyond a
reasonable doubt, and that a juror may find the existence of a mitigating factor if
there is any evidence, however weak, to support it. Finally, defendant sought to
instruct the jury that it was permitted to use mercy, sympathy, and sentiment in
deciding what weight to accord to each mitigating factor.
       We have rejected claims of error for refusing an instruction identical to that
sought by defendant. (Avila II, supra, 46 Cal.4th at p. 722.) As we explained in
Avila II, the instruction was properly refused as duplicative, and other instructions
adequately conveyed to the jury the definition of mitigating and aggravating
circumstances, and that sympathy and pity should be taken into consideration.
(Ibid.) Indeed, we have held CALJIC No. 8.85, the pattern instruction that set
forth the mitigating factors to be considered by the jury in making its penalty
determination, to be ―correct and adequate.‖ (People v. Valencia, supra, 43
Cal.4th at p. 309.) ―Moreover, a trial court is not required to instruct the jury that
mitigating evidence need not be proved beyond a reasonable doubt.‖ (Avila II,
supra, 46 Cal.4th at p. 722.) There was no error.

           8. Asserted error from instruction pursuant to CALJIC No. 8.85
       Defendant contends that asserted defects in pattern instruction
CALJIC No. 8.85 prejudicially affected the jurors‘ understanding of their
weighing function, in violation of his rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments of the United States Constitution. We decline to
reconsider our prior decisions holding that (1) this instruction is not flawed for its
failure to identify which facts may be considered aggravating and which may be
considered mitigating (People v. Cruz (2008) 44 Cal.4th 636, 681; Valencia,
supra, 43 Cal.4th at p. 309 [―CALJIC No. 8.85 is both correct and adequate‖]); (2)



                                          63
the trial court is not compelled to delete assertedly inapplicable factors from the
instruction (People v. Farnam (2002) 28 Cal.4th 107, 191-192); and (3) the
instruction does not ― ‗encourage the double counting of aggravating factors.‘ ‖
(People v. Ayala (2000) 24 Cal.4th 243, 289.)

           9. Asserted error from instruction pursuant to CALJIC No. 8.88
       The trial court instructed the jury in the language of CALJIC No. 8.88,
which defines factors in aggravation and mitigation. Defendant asserts the court
erred by refusing to give the modified version of the instruction he requested
regarding the proper manner of weighing aggravating and mitigating factors. We
repeatedly have held that the standard version of CALJIC No. 8.88 is adequate and
correct. (People v. Boyette (2002) 29 Cal.4th 381, 464-465; People v. Gutierrez,
supra, 28 Cal.4th at pp. 1160-1161; People v. Gurule (2002) 28 Cal.4th 557, 661-
662.) We decline to reconsider that issue here.

           10. Asserted unconstitutionality of multiple-murder special
               circumstance
       Defendant contends that the multiple-murder special circumstance found
true in the present case violates the Eighth Amendment of the federal Constitution
because it does not adequately narrow the class of murders subject to the death
penalty. We repeatedly have rejected this claim and we do so again in the present
case. (People v. Verdugo (2010) 50 Cal.4th 263, 304; People v. Sapp (2003) 31
Cal.4th 240, 286-287.)




                                         64
           11. Constitutionality of California’s death penalty scheme12
       Acknowledging the same arguments have been raised and rejected in
numerous previous decisions, defendant contends several features of California‘s
capital sentencing scheme violate provisions of the federal Constitution, and he
presents those arguments in abbreviated form. (People v. Schmeck (2005) 37
Cal.4th 240, 304 [claims ―presented to this court primarily to preserve them for
review by the federal courts‖ may be ―stated in a straightforward manner
accompanied by a brief argument‖].) We reject those claims for the reasons given
in our precedents.
       The list of special circumstances qualifying a first degree murder for capital
sentencing (§ 190.2) is not impermissibly broad. (People v. Dykes (2009) 46
Cal.4th 731, 813.) Section 190.3, factor (a), under which the jury may consider
the ―circumstances of the crime‖ as a factor in aggravation or mitigation of
penalty, is not so broad as to make imposition of a death sentence arbitrary and
capricious. (People v. Brasure (2008) 42 Cal.4th 1037, 1066 (Brasure).)
       The death penalty statute ― ‗ ―is not invalid for failing to require (1) written
findings or unanimity as to aggravating factors, (2) proof of all aggravating factors
beyond a reasonable doubt, (3) findings that aggravation outweighs mitigation
beyond a reasonable doubt, or (4) findings that death is the appropriate penalty
beyond a reasonable doubt.‖ . . . [B]ecause the assessment of aggravating and
mitigating circumstances required of penalty jurors is inherently ― ‗normative, not
factual‘ [citation] and, hence, not susceptible to a burden-of-proof
quantification,‖ ‘ ‖ the trial court was not obligated to instruct the jury that

12     In his reply brief, defendant withdraws two death-penalty-related claims for
purposes of this appeal only: that intracase proportionality review should result in
the reversal or modification of his judgment of death; and that California‘s
methods of execution are unconstitutional.



                                           65
aggravating factors must be proven by a preponderance of the evidence. (Brasure,
supra, 42 Cal.4th at p. 1067, quoting People v. Bell (2007) 40 Cal.4th 582, 620.)
―No ‗tie-breaking rule‘ is necessary, and the jury need not be instructed that there
is no burden of proof.‖ (People v. Brady (2010) 50 Cal.4th 547, 590.)
       The failure of California‘s death penalty law to require intercase
proportionality does not violate the federal Constitution. (People v. Verdugo,
supra, 50 Cal.4th at p. 305.) Nor does the death penalty law violate equal
protection principles because disparate sentence review has, in the past, been
provided to noncapital defendants. ―Because capital and noncapital defendants are
not similarly situated in the pertinent respects, equal protection principles do not
mandate that capital sentencing and sentence-review procedures parallel those
used in noncapital sentencing.‖ (Brasure, supra, 42 Cal.4th at p. 1069.) The use
of the limiting adjectives ―extreme‖ and ―substantial‖ in the instruction concerning
section 190.3, factors (d) (referring to ―extreme mental or emotional disturbance‖)
and (g) (referring to ―extreme duress‖ and ―substantial domination‖ by another)
does not unconstitutionally prevent the jury from considering mitigating evidence.
(People v. Taylor, supra, 47 Cal.4th at p. 899.) ―No instruction on a presumption
that the sentence should be life without parole, rather than death, was
constitutionally required.‖ (Ibid.)
       Finally, defendant contends that the asserted denials of his state and federal
constitutional rights constitute violations of international law because the United
States is in the minority of nations worldwide that regularly permit capital
punishment and because the International Covenant on Civil and Political Rights
prohibits the arbitrary deprivation of life. We previously have rejected identical
arguments. (People v. Mungia (2008) 44 Cal.4th 1101, 1142-1143.)




                                          66
           12. Alleged erroneous imposition of restitution orders
       The trial court imposed a $10,000 restitution fine under section 1202.4.
Additionally, the court ordered defendant to pay a total of $14,178.73 restitution to
the victim/witness compensation program to reimburse it for compensating the
victims‘ families for their losses resulting from the crimes. Defendant contends
the restitution order was improperly imposed because the trial court applied the
law of restitution that applied at the time of defendant‘s sentencing in 1999, rather
than the law applicable at the time of the crimes in 1993, thereby violating the ex
post facto clause of the United States Constitution. The Attorney General
concedes error and agrees that defendant is entitled to a remand to the trial court
for recalculation of restitution orders.
       It is well established that the imposition of restitution fines constitutes
punishment, and therefore is subject to the proscriptions of the ex post facto clause
and other constitutional provisions. (Avila II, supra, 46 Cal.4th at p. 728; People
v. Saelee (1995) 35 Cal.App.4th 27, 30; People v. Hanson (2000) 23 Cal.4th 355,
361-363; People v. Walker (1991) 54 Cal.3d 1013, 1024.)
       At the time the crimes were committed, former section 1202.4 and
Government Code former section 13967 required setting a restitution fine of
between $200 to $10,000, but additionally provided that in a case in which a
victim has suffered an economic loss as a result of a defendant‘s conduct, a court
may order that restitution be paid directly to the victim in the amount of the losses,
―in lieu of imposing all or a portion of the restitution fine.‖ (Former Gov. Code,
§ 13967, subd. (c), as amended by Stats. 1990, ch. 45, § 2, , p. 256; see Stats.
1990, ch. 45, § 4, p. 261, amending Pen. Code, former § 1202.4; Stats. 1992,
ch. 682, § 4; p. 2922, amending Gov. Code, former § 13967.) The relevant statute
in existence at the time of sentencing in 1999 did not require the court to offset a




                                           67
direct victim restitution order with a reduction or elimination of the restitution
fine. (Former § 1202.4, subds. (b)(1), (d), (f).)
         Defendant correctly observes that the trial court‘s restitution fine of
$10,000 combined with its order of $14,178.73 in victim restitution violates the
statutory maximum as defined by the statutes applicable at the time of defendant‘s
crimes, which by their terms allowed such victim restitution only in lieu of all or a
portion of the restitution fine. (People v. Kwolek (1995) 40 Cal.App.4th 1521,
1536.)
         Moreover, the final restitution orders, as described in the abstract of
judgment, contain several inconsistencies when the reporter‘s transcript is
compared with the minute order and with the probation report. First, the minute
order ascribes a $5,500 loss to Regina Watchman, whose family did not submit
any compensation claim. Instead, the reporter‘s transcript and probation report
reflect that Alice Arnold submitted a restitution claim for $5,500 for Dewayne
Arnold‘s funeral and burial services. Second, the trial court‘s order in the
reporter‘s transcript reflects Alice Arnold‘s total loss as $5,500, but also separately
lists Arnold as having been compensated in the amount of $2,059.33 by the
victim/witness compensation program for funeral and burial services. The
victim/witness program, therefore, should be compensated $2,059.33 and Arnold
$3,440.67. (People v. Kwolek, supra, 40 Cal.App.4th at p. 1534 [―a governmental
agency qualifies as a ‗victim‘ within the meaning of [former] Government Code
section 13967, subdivision (c)‖].) Third, based on the reporter‘s transcript, the
trial court appears to have misstated the amount paid to Marlene Besoni by the
victim/witness compensation program, indicating $2,246 instead of $2,446, as
reflected in the probation officer‘s report. The victim/witness program, therefore,




                                            68
should be compensated $2,446.13 Finally, because the remaining amounts
attributable to the victim/witness compensation program total $3,510, the grand
total of the amounts of restitution ordered does not match the trial court‘s stated
grand total of $13,678.73, but instead equals $12,119.40.
       In light of these errors, we recalculate the restitution orders as follows: the
$10,000 restitution fine is stricken; Alice Arnold is awarded $3,440.67 in victim
restitution; and the victim/witness compensation program is awarded $8,678.73 in
victim restitution. Thus, defendant is ordered to pay a total of $12,119.40 in
victim restitution.




13     In addition, also based on the reporter‘s transcript, the trial court appears to
have misstated the amount paid to Beulah John by the victim/witness
compensation program, indicating $663 instead of $663.40, as reflected in the
probation officer‘s report. The victim/witness compensation program, therefore,
should be compensated $663.40.



                                          69
                               III. CONCLUSION
       For the foregoing reasons, the $10,000 restitution fine is stricken and the
amounts awarded to the victim/witness compensation program are stricken. The
restitution orders are modified to award Alice Arnold $3,440.67 in victim
restitution and to award the victim/witness compensation program $8,678.73 in
victim restitution. As so modified, the judgment is affirmed. The clerk of the
superior court is directed to prepare an amended abstract of judgment to reflect the
modification of victim restitution as described above. The clerk of the superior
court also is directed to forward a certified copy of the amended abstract to the
Department of Corrections and Rehabilitation.


                                                 CANTIL-SAKAUYE, C. J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.




                                         70
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Souza
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S076999
Date Filed: May 31, 2012
__________________________________________________________________________________

Court: Superior
County: Alameda
Judge: Joseph Hurley

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and C. Delaine
Renard, Deputy State Public Defender, for Defendant and Appellant.

Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gerald A. Engler, Assistant Attorney General, Bruce Ortega, William Kuimelis and Donna M.
Provenzano, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

C. Delaine Renard
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600

Donna M. Provenzano
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5873
