Filed 2/18/16




      IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S024046
           v.                        )
                                     )
JAMES FRANCIS O‘MALLEY,              )
                                     )                      Santa Clara County
           Defendant and Appellant.  )                     Super. Ct. No. 131339
____________________________________)



        Defendant James Francis O‘Malley was convicted at trial of three counts of
first degree murder (Pen. Code, § 187, subd. (a)),1 one count of conspiracy to
commit murder (§ 182.1), and one count of robbery (§§ 211, 212.5, subd. (b)).
The jury acquitted defendant of a second charge of conspiracy to commit murder.
The jury also found true special circumstances alleging murder for financial gain,
multiple murder, and robbery murder. (§ 190.2, subd. (a)(1), (3), (17)(A).)
Additionally, the jury found true allegations that defendant personally used a
firearm and a deadly and dangerous weapon in the commission of the offenses.
(former §§ 12022, subd. (b), 12022.5, subd. (a).) Following a penalty trial, the
jury returned a verdict of death. The trial court denied the automatic application to



1       All unspecified statutory references are to the Penal Code.


                                          1
modify the verdict (§ 190.4, subd. (e)) and sentenced defendant to death. This
appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
                                    I. FACTS

      A. Guilt Phase

           1. Summary
      In 1986 and 1987, defendant was a member of a Hayward-based
motorcycle club called the Freedom Riders, as well as president of its San Jose
chapter. The evidence presented at trial showed that the three murders of which
defendant was convicted all had some connection to his involvement in the club.
The first victim, Sharley Ann German, was married to Geary German, a fellow
Freedom Rider, who paid defendant to kill Sharley Ann to prevent her from
divorcing him and claiming their marital assets.2 The second victim, Herbert Parr,
was a Freedom Rider ―wannabe‖ whom defendant and Rex Sheffield, another
Freedom Rider, killed to obtain Parr‘s motorcycle. The third victim, Michael
Robertson, was a friend of defendant‘s whom defendant and Sheffield killed
because defendant suspected him of being a ―snitch.‖ Defendant either admitted
the killings or implicated himself in them in statements he made to various people,
including one of his girlfriends, Brandi Hohman.

           2. Prosecution Case-in-Chief

               a. The Sharley Ann German Murder
      Sharley Ann German was married to Geary German, who, like defendant,
was a member of the Freedom Riders. They lived with Thomas M. (Sharley
Ann‘s teenage son), Judith Flemate (a friend of Sharley Ann‘s), and Flemate‘s


2     To avoid confusion, we refer to the victim and her husband by their first
names.


                                         2
husband. Defendant and Geary were good friends. In 1985, another Freedom
Rider, Rex Sheffield, fatally shot Geary‘s neighbor Frank Ramos, with whom
Geary had had a dispute. The killing occurred in the Germans‘ garage with a gun
belonging to Geary. Sharley Ann told police Sheffield was the shooter and
showed them where the gun was concealed. Sheffield was arrested and pled guilty
to involuntary manslaughter. Geary was angry that Sharley Ann had snitched on
Sheffield and their marriage began to deteriorate.
       In April 1986, Sharley Ann confided to her friend Judith Flemate that she
wanted to divorce Geary because he was having an affair with a coworker named
Sandra Lithgow. Sharley Ann confronted Geary about the affair and also told
Lithgow‘s husband about it. Flemate later heard the couple quarrelling in the
garage and when they emerged, Sharley Ann had a black eye and her throat was
bruised. A few weeks later, Sharley Ann told Flemate, in Geary‘s presence, that
when she married Geary she had paid off his debts and paid for work on their
house, and she would see to it that he lost the house and their bank accounts.
Geary was very angry. Sharley Ann also told her friend Joan Whitworth that she
wanted to divorce Geary and keep the house, and mentioned that she had a life
insurance policy.
       Geary was scheduled to return to jail and serve his sentence for his part in
the Ramos killing while Judith Flemate and her husband remained with Sharley
Ann, who was worried about retaliation from Ramos‘s family.3 Geary, however,
wanted them to leave, so they moved out a few days before April 25.


3      Geary, who was charged as an accessory, was sentenced to 10 months in
county jail for his involvement in the Ramos killing, but his sentence was stayed
until April 30, 1986. After Sharley Ann‘s murder, he received a further stay to
July 30, 1986. He was released from jail on October 14, 1986. At the time of
                                                          (footnote continued on next page)

                                         3
        On the morning of April 25, a Friday, Thomas M. woke up at 6:00 a.m.,
and talked to Sharley Ann before leaving for school. Geary had already gone to
work, clocking in at 6:45 a.m. Daniel Whitworth, Joan‘s husband, talked briefly
to Sharley Ann on the phone around 9:40 a.m., when he called and asked to
borrow a battery charger, and again a few minutes later when she called back and
asked to borrow a book. She seemed normal and was apparently alone. Her
mother also spoke with her briefly by phone around the same time. Thomas
returned home from school around 4:00 p.m. The front door was unlocked, which
was unusual. He went into his bedroom to change clothes, where he discovered
Sharley Ann‘s body on the floor between the dresser and the bed. He went to the
home of Reni Jensen, the next-door neighbor, for help. Jensen called 911.
        Sergeants Philip Beltran and Charles Hahn and Officer Herb Brown of the
San Jose Police Department were dispatched to the German residence. All were
present when Geary appeared around 4:30 or 5:00 p.m., which was later than he
usually arrived home on Fridays. According to Officer Brown, Geary showed no
emotion upon the discovery of his wife‘s murder. It appeared to Sergeants Beltran
and Hahn that he was pretending to be anguished.
        Sharley Ann‘s autopsy revealed she had been stabbed on the left side of her
neck, severing her carotid artery, and shot in the head with a .25-caliber handgun.
The medical examiner attributed her death to both wounds.
        Geary received the proceeds of Sharley Ann‘s insurance policy and bought
a red Corvette with the license place ―CRIKET4.‖ ―Cricket‖ was his pet name for



(footnote continued from previous page)

defendant‘s trial, Geary had not been arrested for or charged with his wife‘s
murder.


                                          4
Sandra Lithgow, whom he continued to see after Sharley Ann‘s death. Sharley
Ann‘s silver Honda went missing after her death. On July 25, 1986, it was found
abandoned just off the Dumbarton Bridge near Interstate 580.
       On the day his mother was killed, Thomas M. told police he thought a
member of the Ramos family might have killed her because of the ongoing feud
between the families in the wake of Frank Ramos‘s death. Police investigated
Ramos‘s wife, Connie, but Sharley Ann‘s murder remained unsolved until
defendant was arrested in 1988 on other charges.
       Following defendant‘s 1988 arrest, Theodore Grandstedt, with whom
defendant sold drugs, told police that Geary had hired defendant to kill his wife.
Grandstedt told police he saw defendant the day of the killing. Defendant was
excited and agitated and told Grandstedt he had finished doing the job, which
Grandstedt understood to mean that he had killed Sharley Ann. Grandstedt said
defendant and Geary had a dispute over payments for the killing. He told police
that defendant and Karen Dolan (one of defendant‘s girlfriends, the mother of his
children, and eventually his wife) argued about Geary owing money to defendant
for his part of the job.
       In July 1987, defendant described how he killed Sharley Ann to Robert
Fulton, a one-time Freedom Rider. He said he went to her house, talked to her for
a while, then went into another room and stabbed her in the neck. After he
stabbed her, he shot her. He told Fulton that Sharley Ann ―was a tough bitch to
kill,‖ and that Geary had hired him to kill Sharley Ann because she was going to
divorce Geary and ―take everything.‖ Defendant said Geary paid him $2,500 and
gave him Sharley Ann‘s silver Honda, which Fulton had seen in the Germans‘
driveway before Sharley Ann was killed. Defendant called him when the car
broke down on the side of the Dumbarton Bridge and asked Fulton to help him fix
or move it. Fulton declined and defendant abandoned the car.
                                         5
       Marlene Fulton, Robert Fulton‘s wife, saw defendant driving Sharley Ann‘s
car after the murder. Defendant subsequently told her he had killed Sharley Ann.
She agreed with her husband that defendant showed up at their residence after the
car broke down on the Dumbarton Bridge.
       According to Brandi Hohman, one of defendant‘s girlfriends, defendant
told her he was hired by Geary to kill Sharley Ann, which he did by shooting her
and cutting her throat. Defendant also told Hohman he sold the .25-caliber
handgun he had used to a girl he met at the home of their mutual friend, Laurel
Beiling. In December 1986, Alison Hurst, who was living with Beiling, bought a
.25-caliber semiautomatic handgun from defendant.
       At trial, defendant‘s friend Richard Balthazar testified that around the
summer of 1986 he cleaned a gun for defendant, who gave him the box the gun
came in. Police obtained the box from Balthazar. Edward Peterson, an expert in
firearm identification, testified that the bullet that killed Sharley Ann German had
characteristics consistent with a bullet fired from the gun that would have been
contained in the box.

               b. The Christopher Walsh Robbery
       To provide context for subsequent events related to the charged offenses,
the prosecution, over defendant‘s objection, presented evidence that defendant
robbed Christopher Walsh. In December 1986, Walsh, who aspired to join the
Freedom Riders, was staying with defendant and Hohman at a motel in Mountain
View. Walsh and defendant had a falling out after Walsh kicked defendant‘s dog
and Walsh moved out of the motel room. Later, he called defendant and asked if
he could return to pick up some of his belongings. Defendant agreed. Walsh
returned to the motel and he and defendant used methamphetamine. Defendant
then pistol-whipped Walsh and forced him to write a phony bill of sale for his


                                          6
motorcycle, turning it over to defendant. Defendant told Walsh that if he went to
the police, defendant would hunt him down and kill him. Walsh nonetheless
reported the robbery to the police, and a warrant was issued for defendant‘s arrest.

                c. The Herbert Parr Murder
       According to his girlfriend, Linda Magner, Herbert Parr was a motorcycle
club wannabe. In late 1986 or early 1987, Parr met Joseph Martinez, a member of
the Freedom Riders, and through Martinez he met defendant, who sold marijuana
to Parr. Magner sensed that the two men disliked each other, an impression
confirmed by defendant‘s girlfriend Brandi Hohman, who said that defendant
usually used the derogatory term ―lop‖ to describe Parr.
       Linda Magner bought Parr a Harley Davidson motorcycle. Parr was proud
of the motorcycle and liked showing it off to his Freedom Rider acquaintances,
including defendant. On the night of August 14, 1987, Parr told Magner he was
going to Joseph Martinez‘s house and would return in a couple of hours. She
never saw him or the motorcycle again. That night, Parr showed up at a party at
his brother David‘s house. A number of Freedom Riders were at the party,
including defendant and his friend Rex Sheffield, the man who had killed Frank
Ramos. When David went to bed between 1:00 a.m. and 3:00 a.m. that morning,
Parr was still at the party.
       Defendant was selling drugs at the party. He had earlier told Brandi
Hohman he knew Herbert Parr was going to be there and that he wanted Parr‘s
motorcycle. He said he was going to wait for Parr at the party and intimidate him.
When defendant and Parr encountered each other, defendant made ―mean‖
comments to Parr, who seemed afraid of defendant. Hohman heard defendant and
Rex Sheffield talking about taking Parr‘s motorcycle for a ride. Sheffield became




                                         7
offended when Parr bragged about knowing a member of the Hells Angels whom
Sheffield knew was dead.
       Defendant and Parr disappeared into a back room for an hour and when
they emerged they acted like buddies. Defendant decided to move the party to the
home of his friend Laurel Beiling and invited Parr to come along. Brandi Hohman
and defendant left in his car while Parr followed on his motorcycle. On the drive
to Beiling‘s, defendant told Hohman he was going to beat up Parr and take his
motorcycle.
       There was no party when defendant, Hohman, and Parr arrived at Beiling‘s
residence; everyone there was asleep. Defendant, Hohman, and Parr went into
Beiling‘s bedroom, where they used methamphetamine. Hohman was sent to the
store. When she returned, Sheffield and his wife, Gail, had arrived. Defendant,
Sheffield, and Parr went into the backyard. Defendant asked Parr if he wanted his
last cigarette before they went out. Hohman and Gail Sheffield were told to go to
the front of the house. While they waited there, Hohman heard a high pitched
voice and strange noises that sounded like gurgling, coming from the backyard.
Defendant and Sheffield entered the house without Parr and went into a bathroom.
Hohman heard running water and defendant told her he and Sheffield had been
washing up. Defendant told Hohman to take Yoshi — a friend of Beiling‘s
staying at her house — to the store in Sheffield‘s car and keep him there for a
while. When they returned, Hohman and defendant went to the motel where they
were staying.
       The next day, Laurel Beiling went into her backyard and noticed that a pile
of wood beside the shed had been ―knocked around.‖ Inside the shed she found
further disarray. She was rearranging a stack of lumber when she found a bloody
board with between 17 and 27 ―knife stabs‖ in it, made by a double-edged blade.
She also discovered that a double-edged utility knife she customarily wore on her
                                         8
belt was missing. Beiling tried to call defendant but reached Brandi Hohman,
whom she told about the bloody board. When Hohman told defendant about the
call, he was angry that Beiling had mentioned the subject over the phone. Later
Beiling spoke to defendant, who told her to calm down and come to his house. He
apologized for leaving her house ―in a mess‖ and said he would clean it up. He
returned her knife, telling her it was clean and she had nothing to worry about.
Later that day, defendant went to Beiling‘s home and together they cleaned up the
board and the shed. As they did, defendant told her the less she knew, the better.
       A day or so later, defendant brought a U-Haul truck to the motel at which
he and Brandi Hohman were staying. With him was Freedom Rider Steven
Dyson. Accompanied by Hohman, defendant drove the truck to a house in
Fremont because, he told her, ―[t]hey had to tear down [Parr‘s] bike.‖ Defendant
said another Freedom Rider was going to buy the dismantled motorcycle from
Sheffield and defendant. Hohman did not see Parr‘s motorcycle in the back of the
truck because defendant told her to remain in the cab, but she heard and felt a
heavy object being lifted and removed from the back. Defendant and the men who
were assisting him went into the garage and closed the door. Eventually,
defendant and Hohman returned to their motel.
       Sometime after Laurel Beiling‘s call, defendant told Brandi Hohman he had
killed Parr in Beiling‘s backyard. He said he stabbed Parr, then cut his throat and
―step[ped] on him trying to push the blood‖ out of his body ―because he wasn‘t
dying.‖ Defendant acted out the killing for her. Defendant gave Beiling various
versions of Parr‘s death but in the most specific and detailed account he said he
had killed Parr.
       Not long after the Fremont trip, defendant, still driving the U-Haul truck,
took Hohman to the house in San Jose defendant sometimes shared with Karen
Dolan and their children. It was there, he said, that he intended to ―bury [Parr].‖
                                          9
At the house, defendant directed Hohman to the garage. She saw Steven Dyson
digging a hole in back of the garage. Defendant helped with the digging. When
he and Dyson finished, Dyson backed defendant‘s car — a white Cadillac — up to
the hole and opened the trunk. He and defendant removed Parr‘s body, lowered it
into the hole, and buried it. Later, defendant asked Laurel Beiling and his friend
Michael Robertson to buy baking soda and apples to put in his trunk to remove the
smell of Parr‘s body.
       After defendant‘s arrest, police recovered Parr‘s body from behind the
garage of the San Jose residence. A search of defendant‘s car revealed baking
soda and dried apples in the trunk.
       At trial, the pathologist who performed the autopsy on Parr‘s body testified
he had died after receiving 18 stab wounds.

               d. The Michael Robertson Murder
       Defendant was arrested for the Christopher Walsh robbery on April 18,
1987. A bail bondsman posted his bail on April 20; the bail was secured by
certificates of title to cars and motorcycles belonging to members of the Freedom
Riders. Defendant was scheduled to appear in court on October 7, but failed to do
so. Bail was forfeited and an arrest warrant issued. According to Laurel Beiling,
one of the Freedom Riders who put up vehicles as security for defendant‘s bail
was ―pissed‖ by defendant‘s failure to appear. Around the same time in early
October, defendant got into an accident while riding a motorcycle belonging to
Freedom Rider Joseph Martinez. Defendant hid the motorcycle at Beiling‘s house
and told her not to let Martinez know about the accident until he could repair the
damage to the vehicle. Martinez was very angry when he learned about the
accident.




                                         10
       As a result of these incidents, defendant began avoiding direct contact with
his fellow Freedom Riders and communicated with them through his close friend
Michael Robertson. Robertson and defendant were together almost every day and
Robertson sometimes shared a motel room with defendant and Brandi Hohman.
At some point, however, defendant began to suspect Robertson of being a snitch.
Defendant told Hohman that Robertson, who had recently been released from jail,
must have made a deal to insinuate himself into defendant‘s life and to provide
information on him in exchange for Robertson‘s release. Defendant told Hohman
snitches ―should be killed and that snitches breed snitches and their kids should be
killed too.‖ Matters came to a head on October 24, 1987, when defendant wrote a
note to Hohman about Robertson that said ―[t]he serious mother fucker has to go.‖
That same day he told Camolyn Ramsfield, Beiling‘s daughter, that he believed
Robertson was a ―federal snitch‖ and he was going to ―take [Robertson] out.‖ She
understood that to mean defendant planned to kill Robertson.
       That evening, Brandi Hohman went with defendant to a bar in Mountain
View where they met two Freedom Riders, Greg Hosac and Rex Sheffield.
Defendant had asked them to meet him there to talk about whether Michael
Robertson had been lying about the messages he was carrying back and forth
between defendant and club members. After defendant talked to Hosac he told
Hohman that Hosac had confirmed his suspicion that Robertson ―had been lying to
him and the club.‖ Shortly afterwards, Robertson appeared at the bar, to
defendant‘s and Hosac‘s evident displeasure. Robertson did not join them but
remained at the other end of the bar. Later, defendant disappeared and Hohman
went looking for him. She found him behind the bar, talking to Sheffield.
Defendant told her to leave them. According to Hohman, when defendant and
Sheffield returned to the bar, they invited Robertson to join them and ―everybody
all of a sudden was best friends again.‖ Defendant invited Robertson to drive with
                                         11
him and Sheffield to Santa Cruz to buy drugs. Robertson said he preferred to
return to the motel with Hohman, but defendant shamed him into going with a
remark about ―being one of them women.‖ Defendant, Sheffield, and Robertson
departed in a car Sheffield had borrowed from Joseph Martinez; the three men
were all in the front seat, with Robertson in the middle. Hohman returned to the
motel where she, defendant, and Robertson had been staying.
       Around 8:15 p.m., Ellen McDonough and her husband were driving to
dinner on Highway 17 when she saw a car on the shoulder and a man running
around it. The man‘s hair was cut in an unusual style that looked like a horse‘s
mane; the hair ran down the middle of his head with the sides shaved. This was
defendant‘s hairstyle. When she and her husband returned from dinner, she saw a
sheriff‘s car and highway patrol car beside the vehicle. She told her husband to
stop so she could report what she had seen earlier. Santa Cruz County Deputy
Sheriff Joseph Hemingway was one of the officers at the scene. He observed
blood smears on the front seat, window, and doorjamb, as well as a blood-soaked
bedsheet on the passenger side floorboard. The car was registered to Gilbert
Martinez, who was the uncle of Joseph Martinez. Defendant‘s and Sheffield‘s
fingerprints were found in the car.
       Around 3:00 a.m. on October 25, Brandi Hohman was awakened by
knocking at the door of the motel room. When she opened it, defendant and Rex
Sheffield came in. They were later joined by Greg Hosac. Hosac said the police
had found the car with blood in it and said ―something about they thought that
[defendant] had done it.‖ Hosac and Sheffield were discussing alibis when
defendant interrupted and ―told them they didn‘t have to tell the police anything.‖
At some point they realized that one of the motel room keys must still be on
Michael Robertson‘s body and they quickly vacated the room. Defendant and
Hohman went to Der Ghan, another motel.
                                        12
       At Der Ghan, defendant shaved his head so he was completely bald. He
told Brandi Hohman he had shot Michael Robertson in the head while Rex
Sheffield was driving because Robertson had said something that offended one or
both of them, and that after removing Robertson‘s body from the car he slit
Robertson‘s throat. When the car ran out of gas, he and Sheffield abandoned it
and walked to a restaurant, where they called a friend who came for them. Later
that day, Greg Hosac and his wife came to the motel and defendant acted out for
them ―shooting [Robertson] in the head and cutting [his] throat.‖ Defendant hid a
bag containing his and Sheffield‘s bloody clothes and his knife behind a ceiling
tile in the room.
       The next day, defendant was arrested for failure to appear in the
Christopher Walsh case. Brandi Hohman called her mother to pick her up. She
took the bag from the ceiling and hid it in her mother‘s attic, where police
eventually recovered it.

                e. Defendant’s Flight and Arrest
       Following his arrest on October 26, defendant again made bail. A
Massachusetts native, defendant fled to the East Coast with his girlfriend Karen
Dolan, their three children, and his other girlfriend Brandi Hohman. Hohman was
arrested at an airport in Boston as she was attempting to return to California.
Dolan and her children stayed in Massachusetts with Dolan‘s sister, who
prevented defendant from communicating with Dolan. Angered by this, he told
Laurel Beiling in a phone call he was going to kill Dolan‘s sister and her four
children. Beiling, fearing for the children‘s lives, informed the Santa Cruz County
District Attorney‘s Office of defendant‘s location. On January 28, 1988,
defendant was arrested in a New York City hotel.




                                         13
           3. Defense Guilt Phase Case
      As to the murder of Sharley Ann German, the defense offered evidence that
defendant was in Massachusetts when she was murdered and insinuated that she
was killed by Connie Ramos, the widow of Frank Ramos. The defense maintained
that Rex Sheffield killed Parr and Robertson,4 and presented evidence attacking
the credibility of prosecution witnesses Brandi Hohman and Laurel Beiling.
Another theme of the defense was that defendant was a braggart who took credit
for crimes he had not committed.
      Defendant testified he was in Massachusetts and New Jersey when Sharley
Ann was killed on April 25, 1986, and he did not return to California until two
days before her funeral. He claimed he learned of her death in a phone call from
Karen Dolan. Dolan corroborated his alibi. While in Massachusetts, defendant
saw some old friends, three of whom testified they remembered seeing him in late
April. Defendant testified that when he returned to California, a friend named
Glenn Johnson picked him up at the San Francisco airport and drove him home.
Johnson testified that he picked defendant up three or four weeks before Johnson‘s
birthday, which falls on May 27.
      The defense also presented evidence that Connie Ramos was investigated
for Sharley Ann‘s murder because of the feud between the two families following
Frank Ramos‘s death. Police investigated inconsistencies in Ramos‘s account of
her whereabouts the day Sharley Ann was killed. Police also received an
anonymous tip that a woman matching Ramos‘s description was observed entering
Sharley Ann‘s house the day of the murder, that sounds of a quarrel were heard,


4       Rex Sheffield was originally charged with the Parr and Robertson murders
along with defendant but their cases were severed. At the time of defendant‘s
trial, Sheffield had not been tried.


                                        14
and the woman emerged carrying a rust-colored towel.5 A search warrant was
executed on Ramos‘s car and residence and police recovered a rust-colored towel
from the car. Police also removed knives from the residence.
       Defendant denied telling Brandi Hohman that he had killed Sharley Ann.
He claimed she was lying to avoid being charged as an accessory to the Parr and
Robertson murders and because he had ended his relationship with her and
returned to Karen Dolan. He admitted talking to Theodore Grandstedt about the
murder but denied telling Grandstedt he had committed it. He testified, however,
that he had told both Hohman and Grandstedt about crimes he had not actually
committed to impress them. Defendant also denied having told Robert Fulton or
his wife, Marlene, that he had killed Sharley Ann. He claimed they were part of a
conspiracy against him by the Freedom Riders that developed after the Parr
murder. Finally, defendant testified that he came into possession of Sharley Ann‘s
car after her death because Geary loaned it to him.
       Defendant acknowledged that he and Brandi Hohman had gone to a party at
David Parr‘s house attended by murder victim Herbert Parr, but he denied having
any animosity toward Herbert Parr and claimed there was friction between Parr
and Rex Sheffield, who was also at the party. Like Hohman, he testified that he
invited Parr to Laurel Beiling‘s house to continue the party and that at some point
Sheffield and his wife arrived. He asserted that Sheffield was upset with Parr and
wanted to beat him up because Parr claimed to know people he did not know.
Defendant said he defended Parr. He testified that he, Parr, and Sheffield went to
the backyard, where Parr began talking about a tattoo he claimed to have gotten in
Vietnam. Sheffield then ―snapped‖ and began stabbing Parr. Defendant started to

5      At least one officer investigating Sharley Ann‘s murder believed that Geary
had arranged for someone to make the anonymous call implicating Connie Ramos.


                                        15
leave but then returned and saw Parr was dead. He admitted helping to remove
Parr‘s body from Beiling‘s residence, burying it, and renting a U-Haul truck for
Parr‘s motorcycle, which he dismantled.
       Danny Payne, who had been in county jail with Sheffield, testified that
Sheffield told him about two murders he had committed, one of them involving a
person Sheffield shot and buried in a backyard.
       Defendant testified that after the Parr murder, which occurred on August
14, 1987, he began to distance himself from the Freedom Riders. In September
1987, he met Michael Robertson, who had just been released from prison.
Robertson became his best friend and acted as his go-between with the Freedom
Riders, carrying messages back and forth. He and Robertson met with Rex
Sheffield — who at this point was not a Freedom Rider — and resolved their
differences. Defendant, however, remained wary of the Freedom Riders. On
October 24, he returned a page from Greg Hosac, president of the Freedom Riders,
who told defendant he had Karen Dolan and her (and defendant‘s) children and
wanted to talk to defendant. Defendant agreed to meet Hosac at J.W.‘s bar in
Mountain View.
       Defendant went alone, but later both Michael Robertson and Rex Sheffield
separately showed up at the bar. Defendant resolved his differences with Greg
Hosac and then spoke to Sheffield. Defendant told Sheffield he had not told
Robertson anything about Parr‘s killing and burial. Sheffield said Robertson was
―no good.‖ Nonetheless, the three men — defendant, Sheffield and Robertson —
left the bar in Sheffield‘s car to drive to Santa Cruz to buy drugs. On the way, the
car stopped. Sheffield got out and looked under the hood. He returned to the car,
took a gun from beneath the driver‘s seat, and shot Robertson in the face.
Defendant was shocked and ―scared,‖ but he assisted Sheffield in moving the car
out of the road and disposing of Robertson‘s body.
                                         16
       Defendant denied telling Brandi Hohman to conceal his knife and clothes,
and he denied telling her that Robertson had died more easily than Sharley Ann.
The defense presented two witnesses who testified Hohman was promiscuous, a
drug user, and a liar. Another defense witness portrayed Laurel Beiling as
mentally unstable and untruthful, while still another testified Beiling told her
defendant killed Parr but later recanted.

           4. Rebuttal
       Using phone records, the prosecution presented evidence that in the week
up to and including April 10, 1986 (15 days before Sharley Ann German was
murdered), a number of collect telephone calls were made from the East Coast to
defendant‘s home in San Jose, and that on April 10, a collect call was made from a
public telephone at the San Francisco airport to defendant‘s home (indicating that
defendant may have returned from the East Coast on that date, and was trying to
obtain transportation back to his home), but that no long distance calls from the
East Coast were charged to defendant‘s telephone after April 10. Karen O‘Neal,
who had been married to defendant‘s friend John Mercuri, testified that defendant
threatened to kill her and members of her family if she laid claim to any marital
assets during the divorce proceedings. As a result, she signed away everything to
Mercuri. Paul Doty worked as a night clerk at a Massachusetts motel where
defendant and Karen Dolan were staying. The police arrived at the motel and took
Dolan and their children, defendant not being present. Defendant called Doty and
threatened to ―blow [his] brains out‖ because he evidently believed Doty had
informed the police of defendant‘s whereabouts. John Acord, a police officer
from defendant‘s home town of Wrentham, testified to a 1979 incident during
which defendant attempted to slash him with a knife, leading to defendant‘s arrest
and conviction for assault with a deadly weapon.


                                            17
       B. Penalty Phase

           1. Prosecution Case
       At the penalty phase, the prosecution primarily relied on evidence it had
presented at the guilt phase: the circumstances of the charged crimes (see § 190.3,
factor (a)) and other episodes involving defendant‘s use of force or threat of force,
including his threats to kill Karen O‘Neal and members of her family, his attack
on Christopher Walsh, and his threat to kill Paul Doty (id., factor (b)). The
prosecution presented a certified copy of defendant‘s 1979 felony conviction for
assault with a deadly weapon on Officer Acord.

           2. Defense Case
       Defendant presented evidence of his religious conversion, his positive
influence on other inmates while in custody, his harsh upbringing, and his
addiction to drugs and alcohol, as well as expert testimony that he suffered from a
form of fetal alcohol syndrome.
       Reverend Lawrence Walsh, a jail chaplain, testified that defendant had
become a ―born again Christian,‖ with an understanding of his faith equivalent to a
first-year Bible college student. Defendant, he said, had taken Bibles to other
inmates and had been and would continue to be a positive influence on others.
Father Jim Mifsud, a Catholic priest, described defendant as ―probably the best
prisoner‖ he had ever seen.
       Seven law enforcement officers testified about defendant‘s behavior while
in custody in this case. They said that he had behaved well, respected staff and
other inmates, and had not created any problems for staff. They predicted that he
would continue to benefit the inmate population. A fellow inmate testified that
defendant had a calming influence on the witness and other inmates. The program
manager for education programs at the jail testified that defendant had earned his
GED and high school diploma while in custody. James W. L. Park, a prison
                                         18
consultant, testified that a person sentenced to life without possibility of parole
would be assigned to a level 4 or maximum security prison, which he described.
He believed defendant would be a useful member of prison society.
       Vincent Schiraldi (a social worker with expertise in criminal justice), Gail
Stewart (defendant‘s elder half sister), and Ellen Muzzy (the first wife of
defendant‘s father) testified about defendant‘s family and upbringing. They
portrayed defendant‘s father as a violent man who physically abused his first wife,
defendant, and defendant‘s mother. As a result of his abuse, defendant‘s mother
became an alcoholic. Defendant‘s father pushed defendant into playing hockey,
lying about defendant‘s age so he could play in a semiprofessional hockey league.
When defendant was 14, he began to drink, with his father‘s permission, and to
come and go unsupervised. At 15, he dropped out of school and began to abuse
drugs. When he was 18, he moved out of the family home and left for California.
       Dr. Eugene Schoenfeld, a psychiatrist, testified that, based on his
examination of defendant, he had found ―evidence of a type of fetal alcohol
syndrome‖ attributable to defendant‘s mother‘s drinking while pregnant with
defendant. In Dr. Schoenfeld‘s view, fetal alcohol syndrome might lead a person
to become antisocial.

           3. Prosecution Rebuttal
       The prosecution called witnesses from Massachusetts who had known
defendant and his family. They testified that defendant‘s father was a kind-
hearted person and that they never saw evidence of, nor did defendant ever
complain about, his father‘s violence.




                                          19
                                  II. DISCUSSION

       A. Severance Motion
       Defendant contends the trial court‘s denial of his motion to sever the three
murder counts constituted an abuse of discretion under state law and also violated
his federal constitutional right to due process.6 The claims lack merit.

           1. Background
       Defendant and Rex Sheffield were initially charged in the same information
with the Herbert Parr and Michael Robertson murders, while defendant alone was
charged with the murder of Sharley Ann German. Defendant and Sheffield each
moved to sever their cases, and defendant sought separate trials on each of the
three murder counts. At the hearing on the motion, defense counsel argued the
three murders were unconnected by time, by motive, or by the method of killing,
and that trying them together would prejudice defendant because the jury would be
influenced to his detriment by the number of murder counts.



6       As to this and other federal constitutional claims, defendant does not
specify which federal constitutional provisions he relies on, nor does he say
whether he raised the federal claims below. Nonetheless, as to each of his federal
constitutional claims, ―it appears that (1) the appellate claim is the kind that
required no trial court action to preserve it, or (2) the new arguments do not invoke
facts or legal standards different from those the trial court was asked to apply, but
merely assert that the trial court‘s act or omission, in addition to being wrong for
reasons actually presented to that court, had the legal consequence of violating the
United States and California Constitutions. To that extent, defendant‘s new
constitutional arguments are not forfeited on appeal. [Citations.] In the latter
case, no separate constitutional discussion is required or provided where rejection
of a claim that the trial court erred on the issue presented to that court necessarily
leads to rejection of any constitutional theory or ‗gloss‘ raised for the first time
here.‖ (People v. Contreras (2013) 58 Cal.4th 123, 139, fn. 17.) We apply this
principle throughout this opinion in considering federal constitutional claims that
were not advanced below.


                                         20
       The trial court severed defendant‘s case from Sheffield‘s but denied
defendant‘s request to sever the murder counts. It reasoned that all of the counts
were ―of the same class,‖ that they were ―related factually to some extent,‖ and
that ―in some respects the circumstances of each case [were] similar and some of
the evidence of one count [was] cross-admissible and interwoven with the others.‖
The court stated: ―The only real possibility of prejudice . . . would be from the
jury adding up counts against a defendant and letting the evidence of one murder
eliminate the possible reasonable doubt as to another . . . . [¶] But because of the
jury instructions to the contrary and the fact that this Court will pre-instruct the
jury as to adding up [sic] each count separately without regard to the verdicts on
the other counts, prejudice will be so diminished as to guarantee . . . defendant a
fair and separate trial on all counts charged against him.‖
       Although the trial court did not preinstruct the jury regarding its obligation
to decide each count separately, its closing charge included this instruction: ―Each
count charges a distinct crime. You must decide each count separately. The
defendant may be found guilty or not guilty of any or all of the crimes charged.
Your finding as to each count must be stated in a separate verdict.‖

           2. Discussion
       ― ‗ ―[B]ecause consolidation or joinder of charged offenses ordinarily
promotes efficiency, that is the course of action preferred by the law.‖ ‘ ‖ (People
v. Capistrano (2014) 59 Cal.4th 830, 848.) This preference is embodied in Penal
Code section 954, which states in pertinent part: ―An accusatory pleading may
charge two or more different offenses connected together in their commission, . . .
or two or more different offenses of the same class of crimes or offenses, under
separate counts, . . . provided, that the court in which a case is triable, in the
interests of justice and for good cause shown, may in its discretion order that the


                                           21
different offenses or counts set forth in the accusatory pleading be tried separately
or divided into two or more groups and each of said groups tried separately.‖
Here, the three murders and the related charges (conspiracy to commit murder and
robbery) are of the same class, because they are all ― ‗assaultive crimes against the
person.‘ ‖ (Capistrano, supra, at p. 848.) Thus, they were properly joined unless
the defense made such a ― ‗clear showing of potential prejudice‘ ‖ that the trial
court‘s denial of defendant‘s severance motion amounted to an abuse of discretion.
(People v. Vines (2011) 51 Cal.4th 830, 855.)
       In determining whether a trial court‘s refusal to sever charges amounts to
an abuse of discretion, we consider four factors: (1) whether evidence of the
crimes to be jointly tried is cross-admissible; (2) whether some charges are
unusually likely to inflame the jury against the defendant; (3) whether a weak case
has been joined with a stronger case so that the spillover effect of aggregate
evidence might alter the outcome of some or all of the charges; and (4) whether
any charge carries the death penalty or the joinder of charges converts the matter
into a capital case. (People v. Geier (2007) 41 Cal.4th 555, 575.)
       Defendant argues joinder was improper because the evidence of the three
murders was not cross-admissible. Cross-admissibility is not, however, a
precondition to joinder of charges. ―[S]ection 954.1 expressly provides that
‗where two or more accusatory pleadings charging offenses of the same class of
crimes or offenses have been consolidated, evidence concerning the one offense or
offenses need not be admissible as to the other offense or offenses before the same
trier of fact.‘ (Italics added.) Thus, ‗cross-admissibility is not the sine qua non of
joint trials.‘ ‖ (People v. Geier, supra, 41 Cal.4th at p. 575.) While the presence
of such evidence ― ‗is normally sufficient to dispel any suggestion of prejudice and
to justify a trial court‘s refusal to sever properly joined charges‘ ‖ (People v.


                                          22
Merriman (2014) 60 Cal.4th 1, 38), the absence of cross-admissible evidence does
not bar joinder.
       There was, in any event, significant cross-admissible evidence here. For
example, Brandi Hohman testified that defendant compared the murder of Sharley
Ann German with the Michael Robertson murder and told her Robertson had died
more easily. This evidence would have been admissible at separate trials of
defendant for each of these murders. Hohman also testified defendant told her that
after killing Robertson he removed the boots Robertson was wearing, which
defendant had loaned to him, because defendant had worn them when he killed
Herbert Parr. This evidence would have been admissible at separate trials of the
murders of Robertson and Parr. The three murders also involved a deeply
interwoven cast of characters and web of circumstances: Defendant, the victims
and the prosecution‘s witnesses were all in some manner connected to the
Freedom Riders and the subculture it represented. The events surrounding the
crimes and the crimes themselves took place within the territory in which the club
was active and within a time span that essentially paralleled defendant‘s
involvement with the club.
       Moreover, defendant has not shown that he was prejudiced by joinder of
the charged offenses. None of the charges was more inflammatory than the others.
Defendant argues Sharley Ann was more sympathetic than the other two victims,
asserting that, unlike Parr and Robertson, she had no criminal record and was not
―entrenched in the ‗biker‘ lifestyle and familiar with the violence that
accompanied that lifestyle.‖ But there was no evidence that either Parr or
Robertson was a hardcore biker. Parr emerges from the trial testimony as
someone ridiculed by the Freedom Riders for his desperate desire to be taken
seriously as a biker and Robertson, whatever his criminal past, as slavishly
devoted to a man who deceived and killed him. Sharley Ann, who was married to
                                         23
a Freedom Rider and participated in the club‘s activities, was certainly as
―entrenched in the ‗biker‘ lifestyle‖ as Parr and Robertson. Moreover, given her
husband‘s involvement in the Frank Ramos murder, she was ―familiar with the
violence that accompanied that lifestyle.‖ Accordingly, she was not necessarily a
more sympathetic victim than Parr or Robertson.
       Nor do we agree with defendant that the evidence that he murdered Sharley
Ann was significantly weaker than the evidence of the other two murders.
Defendant repeatedly told witnesses he had killed Sharley Ann, describing facts
about the crime that the killer would know. Even if the Parr and Robertson cases
were relatively stronger in that there was more evidence of defendant‘s guilt
besides his admissions, the evidence that he murdered Sharley Ann was not so
weak that the jury would be unable to follow the instruction to consider the
evidence as to each count separately. And given that the evidence of each murder
charge was strong, we reject defendant‘s claim that joinder was improper because
this was a capital case. (People v. Ochoa (2001) 26 Cal.4th 398, 423 [―Even
where the People present capital charges, joinder is proper so long as evidence of
each charge is so strong that consolidation is unlikely to affect the verdict.‖].)
       In short, the trial court, after evaluating the relevant factors, found no
reason to depart from the statutory preference in favor of joinder of the murder
charges. Because, for the reasons described above, defendant failed to make a
clear showing of potential prejudice, the court did not abuse its discretion under
state law when it denied defendant‘s motion to sever the charges.
       Defendant maintains that joinder, even if proper under state law, resulted in
violation of his federal constitutional rights. In evaluating that claim, ―we must
. . . inquire whether events after the court‘s ruling demonstrate that joinder actually
resulted in ‗gross unfairness‘ amounting to a denial of defendant‘s constitutional
right to fair trial or due process of law.‖ (People v. Merriman, supra, 60 Cal.4th at
                                          24
p. 46, italics omitted.) Here, defendant fails to point to any specific event or
events that would demonstrate gross unfairness. He argues that the court failed to
preinstruct the jury about its duty to consider each charge separately. This
omission, however, does not demonstrate unfairness. As defendant concedes, the
jury was so instructed at the end of the guilt trial and before it began its
deliberations, and defense counsel reiterated the point in his closing argument to
the jury. ―We presume the jury understood and followed the instruction.‖ (People
v. Homick (2012) 55 Cal.4th 816, 873.)
       Defendant also asserts the trial court‘s instruction was insufficient to
prevent the jury from using evidence of one murder to find he had a predisposition
to commit the other murders, likening this case to Bean v. Calderon (9th Cir.
1998) 163 F.3d 1073. In Bean, the trial court denied the defendant‘s motion to
sever two counts of murder, each involving a residential robbery during which the
defendant allegedly murdered a female victim. The evidence of the defendant‘s
participation in the first murder was significantly stronger than his participation in
the second murder and, even though the evidence was not cross-admissible, the
prosecutor argued the modus operandi for both was the same, thus ―repeatedly
encourag[ing] the jury to consider the two sets of charges in concert.‖ (Bean,
supra, 163 F.3d at p. 1084.) Emphasizing the weakness of the evidence of the
second murder as compared to the first, the lack of cross-admissible evidence, and
the prosecutor‘s modus operandi argument, the Ninth Circuit concluded that
joinder of the charges violated the defendant‘s due process rights. (Id. at
pp. 1085-1086.) Given those circumstances, it rejected as inadequate the
instruction directing the jury to consider the evidence of each count separately.
(Id. at p. 1084.)
       Here, by contrast, there was no joinder of a weak case to a strong case and
there was cross-admissible evidence. Although the prosecutor briefly noted in his
                                          25
closing argument the similarities in the manner in which Robertson and Sharley
Ann were killed, he made no serious attempt to persuade the jury that these
similarities demonstrated defendant‘s guilt of the two crimes, nor did he suggest
any similarity between those crimes and the murder of Parr. And the jury‘s
acquittal of defendant on the charge that he conspired to murder Parr provides an
additional indication of its ability to consider the evidence of each charge
separately. Thus, he ―has not met his high burden of establishing that the trial was
grossly unfair and that he was denied due process of law.‖ (People v. Soper
(2009) 45 Cal.4th 759, 783.)

       B. Jury Issues

           1. Wheeler/Batson Motion
       Defendant contends, as he did at trial, that the prosecutor improperly
exercised two racially based peremptory challenges against African American
prospective jurors, in violation of People v. Wheeler (1978) 22 Cal.3d 258
(Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson). We disagree.

               a. Background
       Voir dire of the prospective jurors began on March 19, 1991. Over the
course of the voir dire, 163 prospective jurors were questioned.
       Defendant‘s challenge focuses on Prospective Jurors D.C. and R.A., both
African American men. In his juror questionnaire, D.C. noted his father had been
a police officer in Louisiana from the 1960s to the 1980s. In response to question
47, which asked about favorable or unfavorable experiences with law
enforcement, he wrote ―Ticket for expired liscence [sic] tags. 1 day exp[ired].‖
Question 55(J) asked whether the prospective juror strongly or somewhat agreed,
was neutral, or strongly or somewhat disagreed with the statement: ―I think that I
would require that the prosecution prove its case not only beyond a reasonable

                                         26
doubt, as the law requires, but beyond all possible doubt and to an absolute
certainty before I would convict anyone of a serious crime.‖ D.C. checked the line
for ―Somewhat agree.‖ Question 58(B) asked whether the prospective juror
strongly or somewhat agreed, was neutral, or strongly or somewhat disagreed with
the statement: ―If someone brags about doing something wrong, he should be
punished — whether or not he actually did it.‖ D.C. checked the ―Strongly
disagree‖ line. In the space provided for an additional explanation, he wrote:
―Someone could be joking around[.] [H]ow do you know if they are telling the
truth.‖
          D.C. was voir dired on April 4. The prosecutor asked if he held any
grudges because he was ticketed for his expired license plate one day after the
registration expired. D.C. said he did not, explaining: ―It was my fault. I was one
day — I was late.‖ The prosecutor inquired whether anything about his father‘s
career in law enforcement would make him ―tend to gravitate toward one side or
the other,‖ to which he responded, ―No, there isn‘t.‖ The prosecutor also asked a
number of other questions about his ability to be an impartial juror.
          As to Prospective Juror R.A., in his juror questionnaire he checked
―Strongly agree‖ on question 55(J), which asked whether the prospective juror
would require more than proof beyond a reasonable doubt to convict. With
respect to personal information, R.A. indicated in response to question 11 that,
although his son lived with him, he did not know what educational level his son
had completed or his occupation, if any. For hobbies, he wrote: ―My hobby is
amateur magic.‖ R.A. had also been a state capitol police officer in Pennsylvania
for two years.
          R.A. was voir dired on April 3. In response to a question from the trial
court about whether, if defendant was convicted, he could consider both life
without the possibility of parole and death, R.A. answered, ―Yes, but I would have
                                           27
to be convinced pretty well,‖ presumably before voting for death. He went on to
say, however, that he would not automatically vote for one penalty over another.
During his questioning of R.A., the prosecutor focused on R.A.‘s understanding of
the burden of proof. With respect to R.A.‘s response to question 55(J), which
indicated he strongly agreed that the prosecutor would have to prove its case
beyond all possible doubt, the prosecutor asked: ―You recognize that that would
mean that your personal standard is higher than the law requires?‖ R.A. answered,
―No. But I just wouldn‘t want to have any doubt in my mind.‖ The prosecutor
read him the reasonable doubt instruction and said, ―We‘re not talking about being
convinced beyond all possible doubt. [¶] Do you see that difference?‖ R.A.
responded, ―I see the difference, but still I just have to feel satisfied with myself
that — ‖ The prosecutor broke in, saying, ―Okay. And that‘s understandable,‖ but
asked if R.A. could follow the law. He answered, ―Well, I would be inclined to
feel that I need to feel the certainty within myself, you know.‖
       The trial court resumed questioning. To illustrate the reasonable doubt
standard, it gave the example of R.A. putting his garbage out on the night before
collection and returning from work to find it gone, and suggested that in this
scenario there would be no reasonable doubt the garbage collectors had collected it
even though it was also possible the garbage can had been knocked over and the
garbage eaten by a ―pack of wild dogs.‖ The court asked, ―Does that help you out
at all?‖ R.A. replied, ―Sure.‖ The prosecutor concluded his voir dire by asking
some additional questions about R.A.‘s ability to be impartial.
       On April 29, selection of the 12 jurors and four alternates began. Twelve
prospective jurors were called to the jury box and the parties were permitted to
exercise peremptory challenges. D.C. was among the first 12 prospective jurors.
The prosecutor used his first peremptory challenge to excuse D.C. Both sides
exercised additional peremptory challenges and additional prospective jurors were
                                          28
seated to replace those who had been excused. The prosecutor used his fifteenth
peremptory challenge to excuse R.A. At that point, defense counsel asked for a
sidebar conference to ―put on the record that the district attorney has excused the
second and only remaining black juror from the panel.‖ He continued, ―the
defendant is denied a representative cross-section. Those were the only two black
jurors in the panel out of the four panels called from this entire area. They both
have been eliminated by peremptories.‖ The prosecutor replied: ―Your Honor, I
would be more than happy to respond as to the reasons, but I don‘t think that it
would be appropriate to do it here.‖ He asked for an in camera conference. The
trial court denied his request and directed him to proceed.
       The prosecutor prefaced his remarks with the observation, ―I think that it‘s
interesting [defendant] is objecting is that the People have excluded the two black
jurors and the People are conscientiously [sic] discriminating against a particular
class. [¶] I think [defendant] has been involved in white supremacy. If anything,
he would like not to have black members on this particular jury.‖7
       Regarding D.C., the prosecutor said, ―[H]e is a 33-year-old black male,
married, three kids, renting. [¶] There were answers in his questionnaire that
talked about that his father was a police officer back in the 60‘s. However, he
recalled and spoke of the prejudice. He mentioned the license tag and so on. [¶]
But primarily there was a question which asked how he felt about if somebody
bragged about something, whether they could be punished — whether or not they
actually did it. He put down in response to that, in effect, that a bragger could
simply be joking about something. [¶] [Defendant‘s] defense in this particular
case is that his confessing to all three murders is that he was only bragging, he was

7     No evidence of defendant‘s participation in any White supremacy group
was presented at trial.


                                         29
not actually telling the truth about what it was he was confessing to. And I didn‘t
like the answer in terms of a bragger could be joking. [¶] In connection with the
demographics in connection with some other answers, 55-J, he was talking about
strongly agreeing . . . proof should be more than beyond a reasonable doubt, to an
absolute certainty.‖
       The court then asked about R.A. The prosecutor said: ―[R.A.] is a 59-year-
old black male, divorced with two kids, he rents. As I indicated, the other juror is
a renter. [¶] In terms of the demographics with not owning a home, and answer
11 on the questionnaire, the question about his children, and it was something in
the answer indicating that lack of knowledge or something about certain
circumstances regarding his children. [¶] [R.A.], for what it‘s worth, had a hobby
as an amateur magician, which, in any event, I don‘t like the situation of one of the
potential jurors being involved in magic, sleight-of-hand. [¶] He also indicated in
terms of the burden of proof involved, a phrase during the voir dire where he said,
‗I‘d have to be convinced pretty well,‘ and my feeling from that was, the context
of which it was said . . . something about the way that he said it in connection with
the questioning that he believed that he may require burden of proof over and
above what the law required. [¶] As far as the death penalty was concerned —
and I had another note down here. My impression was he wanted more than proof
beyond a reasonable doubt. [¶] In terms of the death penalty he was somewhat
equivocal. As I recall, I summarized rather than giving him a rating on the death
penalty how he felt. He was not sure of his feelings, except that he was
ambivalent about that. [¶] And quite frankly, I would like people a little bit more,
in this particular case, more indicative one way or the other how they feel about it
rather than a question mark, that can‘t indicate how they feel about it.‖




                                         30
       At the conclusion of the prosecutor‘s presentation, the trial court ruled:
―The court finds that the People are not intentionally excluding one class of
people, and the People‘s reasons for exercising the peremptory challenges are
valid reasons.‖

                  b. Discussion
       ―Both the federal and state Constitutions prohibit any advocate‘s use of
peremptory challenges to exclude prospective jurors based on race. [Citation.]
Doing so violates both the equal protection clause of the United States
Constitution and the right to trial by a jury drawn from a representative cross-
section of the community under article I, section 16 of the California
Constitution.‖ (People v. Lenix (2008) 44 Cal.4th 602, 612.)
       ―A three-step procedure applies at trial when a defendant alleges
discriminatory use of peremptory challenges. First, the defendant must make a
prima facie showing that the prosecution exercised a challenge based on
impermissible criteria. Second, if the trial court finds a prima facie case, then the
prosecution must offer nondiscriminatory reasons for the challenge. Third, the
trial court must determine whether the prosecution‘s offered justification is
credible and whether, in light of all relevant circumstances, the defendant has
shown purposeful race discrimination. [Citation.] ‗The ultimate burden of
persuasion regarding [discriminatory] motivation rests with, and never shifts from,
the [defendant].‘ ‖ (People v. Manibusan (2013) 58 Cal.4th 40, 75.)
       Here, the trial court did not determine whether a prima facie case had been
established. Instead, after the prosecutor gave his reasons for excusing the
prospective jurors, the court found those reasons to be credible and ruled that the
defense had not demonstrated that they were based on race. Because the court
never decided whether defendant had made a prima facie showing that the

                                          31
challenges were impermissible, the Attorney General correctly acknowledges that
the question whether he did so is moot. (See People v. Scott (2015) 61 Cal.4th
363, 387, fn. 1 [―When a trial court solicits an explanation of the strike without
first declaring its views on the first stage, we infer an ‗implied prima finding‘ of
discrimination and proceed directly to review of the ultimate question of
purposeful discrimination.‖]; People v. Williams (2013) 58 Cal.4th 197, 280-281.)
Thus, the sole question before us is whether the trial court correctly ruled that the
defense did not satisfy its burden of demonstrating discriminatory motivation at
the third stage of the Batson inquiry.
       The prosecutor‘s ― ‗justification need not support a challenge for cause, and
even a ―trivial‖ reason, if genuine and neutral, will suffice.‘ [Citation.] A
prospective juror may be excused based upon facial expressions, gestures,
hunches, and even for arbitrary or idiosyncratic reasons.‖ (People v. Lenix, supra,
44 Cal.4th at p. 613.) ―The proper focus of a Batson/Wheeler inquiry, of course, is
on the subjective genuineness of the race-neutral reasons given for the peremptory
challenge, not on the objective reasonableness of those reasons. . . . All that
matters is that the prosecutor‘s reason for exercising the peremptory challenge is
sincere and legitimate, legitimate in the sense of being nondiscriminatory.‖
(People v. Reynoso (2003) 31 Cal.4th 903, 924.)
       ― ‗We review a trial court‘s determination regarding the sufficiency of a
prosecutor‘s justification for exercising peremptory challenges ― ‗with great
restraint.‘ ‖ [Citation]. We presume that a prosecutor uses peremptory challenges
in a constitutional manner and give great deference to the trial court‘s ability to
distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial
court makes a sincere and reasoned effort to evaluate the nondiscriminatory




                                          32
justifications offered, its conclusions are entitled to deference on appeal.
[Citation.]‘ ‖ (People v. Lomax (2010) 49 Cal.4th 530, 571.)
       Also relevant here, in light of defendant‘s appellate arguments, are
principles pertaining to comparative juror analysis, which, on a claim of race
based peremptory challenges, compares the voir dire responses of the challenged
prospective jurors with those of similar jurors who were not members of the
challenged jurors‘ racial group, whom the prosecutor did not challenge. (Miller-El
v. Dretke (2005) 545 U.S. 231, 241 (Miller-El) [―If a prosecutor‘s proffered reason
for striking a black panelist applies just as well to an otherwise-similar nonblack
who is permitted to serve, that is evidence tending to prove purposeful
discrimination to be considered at Batson‘s third step.‖].) ―[C]omparative juror
analysis is but one form of circumstantial evidence that is relevant, but not
necessarily dispositive, on the issue of intentional discrimination.‖ (People v.
Lenix, supra, 44 Cal.4th at p. 622.) Where, as here, the comparative analysis was
not made at trial, ―the prosecutor generally has not provided, and was not asked to
provide, an explanation for nonchallenges.‖ (People v. Jones (2011) 51 Cal.4th
346, 365.) Therefore, ―an appellate court must be mindful that an exploration of
the alleged similarities at the time of trial might have shown that the jurors in
question were not really comparable.‖ (Snyder v. Louisiana (2008) 552 U.S. 472,
483.) When a defendant asks for comparative juror analysis for the first time on
appeal, we have held that ―such evidence will be considered in view of the
deference accorded the trial court‘s ultimate finding of no discriminatory intent.‖
(People v. Lenix, supra, 44 Cal.4th at p. 624.)

                    i. D.C.
       The prosecutor explained that he excused D.C. ―primarily‖ because of his
answer to question 58(B), which pertained to bragging. The prosecutor also gave

                                          33
additional reasons: He was troubled by D.C.‘s reaction to being ticketed for a
vehicle registration violation and by his answer to question 55(J), in which he
somewhat agreed with the proposition that the prosecutor should be held to a
higher standard of proof than reasonable doubt. Defendant contends the
prosecutor‘s stated reasons for discharging D.C. were pretexts for racial
discrimination.8 We address his contentions regarding each of the prosecutor‘s
reasons.
       As noted, D.C. checked the line ―Strongly disagree‖ for the statement in
question 58(B): ―If someone brags about doing something wrong, he should be
punished — whether or not he actually did it.‖ He added in explanation:
―Someone could be joking around[.] [H]ow do you know if they are telling the
truth.‖ The prosecutor explained he was concerned about this answer because he
anticipated one line of the defense would be that defendant bragged about criminal
activity he had not actually committed. (This indeed proved to be the case.)
       Defendant contends this explanation was equally applicable to several
White jurors whom the prosecutor did not challenge. We disagree. Although 12
of the seated jurors and alternates checked the same line in response to the
statement, only two of them, like D.C., offered an additional explanation: Seated
Jurors L.R. and M.A.S. L.R. wrote: ―bragging is just talking, not committing a




8       In his opening brief, defendant claims the prosecutor exercised his
peremptory challenge against D.C. in part because he was a renter, but his reply
brief does not mention this claim. In any event, we agree with the Attorney
General that, read in context, the prosecutor‘s reference to D.C.‘s status as a
renter, along with his marital and parental statuses, were descriptive and not
reasons for his challenge.


                                         34
crime.‖9 M.A.S. wrote: ―People say a lot of things that they often don‘t mean or
to show off for others.‖
       Because defendant did not raise the issue at trial, the prosecutor was not
given the opportunity to explain his reasons for dismissing D.C. while later
retaining L.R. and M.A.S.10 Under these circumstances, we have said that ―a
reviewing court need not, indeed, must not turn a blind eye to reasons the record
discloses for not challenging other jurors even if those other jurors are similar in
some respects to excused jurors.‖ (People v. Jones, supra, 51 Cal.4th at pp. 365-
366.) In conducting this inquiry, we bear in mind that comparative juror analysis
is not simply an exercise in identifying any conceivable distinctions among
prospective jurors. ―A per se rule that a defendant cannot win a Batson claim
unless there is an exactly identical white juror would leave Batson inoperable;
potential jurors are not products of a set of cookie cutters.‖ (Miller-El, supra, 545
U.S. at p. 247, fn. 6.) Rather, because the ultimate question before us concerns the


9       Defendant contends all 12 of the jurors who checked the line ―Strongly
disagree‖ to question 58(B) should be considered for purposes of comparative
analysis. But the prosecutor specifically referred to D.C.‘s written explanation:
―He put down in response to that, in effect, that a bragger could simply be joking
about something . . . . And I don‘t like the answer in terms of a bragger could be
joking.‖ It was the additional explanation, not the checked response, on which the
prosecutor relied. Only L.R. and M.A.S. gave comparable responses.
10      Because of the structure of the jury selection process in this case, the
prosecutor would not have had occasion to directly compare D.C. with L.R. and
M.A.S. when he exercised his challenge. Jury selection began when a group of 12
prospective jurors was seated in the jury box. When each side exercised a
challenge, other prospective jurors were called in random order to take the place of
the excused juror. D.C. was among the first 12 called to the jury box. Although
the prosecutor would likely have compared D.C. to other prospective jurors sitting
in the box at the time, L.R. and M.A.S. were not called into the box until later in
the process, and the prosecutor could not have known at the time he excused D.C.
when, or whether, L.R. and M.A.S. would ever be considered for selection.


                                          35
prosecutor‘s motivations in exercising the challenge in question, we must ask
whether there were any material differences among the jurors — that is,
differences, other than race, that we can reasonably infer motivated the
prosecutor‘s pattern of challenges. (Cf. id. at p. 247 [finding ―strong similarities
as well as some differences‖ between a challenged African-American juror and
White jurors, and concluding that the differences were not ―significant‖ in light of
the record as a whole].)
       Here, although all three prospective jurors gave similar responses to
question 58(B), their responses to question 55(J) — also cited by the prosecutor as
a reason for striking D.C. — were notably different. That question asked whether
the prosecutor should be held to a higher standard of proof than beyond a
reasonable doubt. While L.R. answered ―Somewhat Disagree‖ and M.A.S.
answered ―Strongly Disagree,‖ D.C. answered ―Somewhat Agree.‖ As the
prosecutor made clear in explaining his challenges against both D.C. and R.A., the
jurors‘ attitudes toward the reasonable doubt standard was an important
consideration that informed his decisions about how to use his peremptories.
       The questionnaire also asked a series of questions regarding the prospective
jurors‘ feelings about the death penalty. Asked about his ―general feelings
regarding the death penalty,‖ D.C. responded: ―I feel it[‘]s fair according to the
case in which it is involved.‖ In response to a question asking about feelings
about the adage ―an eye for an eye,‖ D.C. responded: ―It is not one that I live by.‖
With respect to the adage ―thou shalt not kill,‖ D.C. responded: ―It is an adage or
commandment that I live by.‖ In response to the question concerning the
circumstances, if any, in which he believed the death penalty is appropriate, D.C.
responded: ―First degree murder that was something horrible, maybe multiple
murders when someone would kill several people for no reason but just doing it.‖


                                          36
       By contrast, L.R. described her general feelings about the death penalty as
follows: ―In some cases, when the defendant is proved definitely guilty, I think it
should happen. I can‘t see a person sitting in jail for the rest of their lives, but
only in extreme cases where there is no other way.‖ With respect to the adage ―an
eye for an eye,‖ L.R. responded: ―I don‘t believe in it. But I do believe in
punishment for people who cannot live in society without hurting others.‖ Asked
about the adage ―thou shalt not kill,‖ L.R. answered, ―If there is no other answer,
then I think we do society [and] the person a favor.‖ In response to the question
concerning the circumstances, if any, in which she believed the death penalty is
appropriate, L.R. responded: ―If there is no chance of this person becoming a
productive member of society.‖
       Finally, M.A.S. described her general feelings about the death penalty as
follows: ―Necessary for extreme cases.‖ With regard to the adage ―an eye for an
eye,‖ M.A.S. responded: ―A barbaric concept.‖ With respect to the adage ―thou
shall not kill,‖ M.A.S. responded: ―The person who did the murder should have
thought of that before committing the crime.‖ In response to the question
concerning the circumstances, if any, in which she believed the death penalty is
appropriate, M.A.S. responded: ―Kidnapping, torture and rape — such as the
Central Park case, Manson case, treason that endangers the country, murder
depending upon the case.‖
       While D.C.‘s responses to this series of questions revealed little about his
attitude toward the death penalty, other than a general view that it is ―fair‖ in some
cases, both L.R. and M.A.S. expressed their belief that the death penalty ―should
happen‖ and is ―necessary‖ in certain cases. D.C.‘s responses certainly did not
indicate that he would be an unfavorable juror, and the prosecutor expressed no
concern about these responses in explaining his reason for challenging D.C. But
the other jurors‘ expressions of affirmative support for the death penalty in certain
                                           37
circumstances, the nature of which was further explored and clarified during voir
dire, would have made them more attractive ―in the eyes of a prosecutor seeking a
death sentence.‖ (Miller-El, supra, 545 U.S. at p. 247.) As the prosecutor
explained with respect to his decision to challenge R.A.: ―[Q]uite frankly, I would
like people a little bit more . . . indicative one way or the other how they feel about
[the death penalty,] rather than a question mark.‖
       Finally, M.A.S.‘s questionnaire indicated she had close ties to a number of
people employed in law enforcement and criminal justice administration. Her
father had served as the Fresno County District Attorney for 17 years, and her son
had attended a Florida police academy and was awaiting an offer from the United
States Drug Enforcement Administration. She had longtime friends who were
prosecutors and also listed judges among her friends. In this respect, she and D.C.
were not entirely dissimilar: D.C.‘s father had served as a police officer. But the
nature and extent of M.A.S.‘s ties to law enforcement and criminal justice
administration, which prompted defense counsel to express concern about possible
pro-government bias during voir dire, would have differentiated M.A.S. from D.C.
from the prosecutor‘s perspective as well.
       With respect to the prosecutor‘s second reason for striking D.C., the
prosecutor explained: ―There were answers in his questionnaire that talked about
his father was a police officer back in the 60‘s. However, he recalled and spoke of
prejudice. He mentioned the license tag and so on.‖ Defendant claims the
prosecutor‘s statement is evidence of pretext because D.C. said ―nothing about
prejudice in his questionnaire,‖ nor did he ― ‗recall[] and [speak] of prejudice‘ in
his voir dire.‖
       Defendant is correct that D.C. did not speak of prejudice in either his
questionnaire or at voir dire, but the prosecutor‘s mistaken recollection that he had
done so does not establish that the prosecutor was acting with discriminatory
                                          38
purpose. The prosecutor was attempting to reconstruct the voir dire of a juror that
had taken place more than two weeks earlier, in the midst of a voir dire process
that had lasted almost a month, over the course of which 163 prospective jurors
were questioned. His brief, passing reference to prejudice was linked to D.C.‘s
written response to the question on the jury questionnaire asking about
unfavorable experiences with law enforcement, in which D.C. noted he had been
cited for an expired registration only one day after the license plate tag had
expired. The prosecutor questioned D.C. about the incident and, while D.C. said
he held no grudge against the officer who had cited him, evidently the prosecutor
disbelieved that assurance.
       The prosecutor, unlike this court, not only heard D.C.‘s words, but heard
his tone of voice and observed his body language as he denied bearing a grudge
against the officer who had cited him. ― ‗On appellate review, a voir dire answer
sits on a page of transcript. In the trial court, however, advocates and trial judges
watch and listen as the answer is delivered. Myriad subtle nuances may shape it,
including attitude, attention, interest, body language, facial expression and eye
contact.‘ ‖ (People v. Jones, supra, 51 Cal.4th at p. 363.) Even if the prosecutor‘s
concern about the citation, considered in isolation, might not provide a compelling
reason for a peremptory challenge, the prosecutor‘s mistaken reference to
prejudice alone does not establish that the prosecutor‘s stated reasons were
pretexts for discrimination. (See People v. Williams (2013) 56 Cal.4th 630, 661
[no Batson violation when the prosecutor excused a prospective juror for a
factually erroneous but race-neutral reason]; People v. Williams (1997) 16 Cal.4th
153, 189 [―a genuine ‗mistake‘ is a race-neutral reason‖].)
       The prosecutor‘s third reason for exercising a peremptory challenge against
D.C. was his answer to question 55(J), which asked for his views on the statement:
―I think that I would require that the prosecution prove its case not only beyond a
                                          39
reasonable doubt, as the law requires, but beyond all possible doubt and to an
absolute certainty before I would convict anyone of a serious crime.‖ Although
the prosecutor recalled that D.C. was ―talking about strongly agreeing,‖ D.C. in
fact responded that he ―somewhat agree[d]‖ with the statement. Defendant
contends that because two White jurors, D.R. and F.S., responded even more
emphatically to the question, checking the ―Strongly Agree‖ line, this justification
was also pretextual. But neither D.R. nor F.S. gave a written explanation in
answer to question 58(B) about bragging, as did D.C. The prosecutor‘s challenge
to D.C. was based primarily on that written explanation, and D.C.‘s views on the
burden of proof merely provided an additional ground for concern. Moreover,
F.S., unlike D.C., gave questionnaire answers indicating strong support for the
death penalty, stating that it was not imposed often enough on first degree
murders, again rendering her a more attractive juror from the standpoint of a
prosecutor seeking the death penalty.
       In our view, the differences between D.C. and the other jurors were
significant, if not overwhelming, thus undermining defendant‘s assertion that the
prosecutor‘s stated reasons for excusing D.C. were merely pretextual. Moreover,
this case did not involve a situation in which ―[r]acial identity between the
defendant and excused person,‖ or between the victim and the majority of
remaining jurors, raises heightened concerns about whether the prosecutor‘s
challenge was racially motivated. (See Powers v. Ohio (1991) 499 U.S. 400, 416
[―Racial identity between the defendant and the excused person might in some
cases be the explanation for the prosecution‘s adoption of the forbidden
stereotype, and if the alleged race bias takes this form, it may provide one of the
easier cases to establish both a prima facie case and a conclusive showing that
wrongful discrimination has occurred.‖]; cf. People v. Johnson (2003) 30 Cal.4th
1302, 1326 [the fact that ―this case involves an African–American defendant
                                         40
charged with killing ‗his White girlfriend‘s child‘ ‖ is ―obviously highly relevant‖
to the determination whether a prima facie case of discrimination existed],
overruled on other grounds in Johnson v. California (2005) 545 U.S. 162;
Wheeler, supra, 22 Cal.3d at p. 281 [―the defendant need not be a member of the
excluded group in order to complain of a violation of the representative cross-
section rule; yet if he is, and especially if in addition his alleged victim is a
member of the group to which the majority of the remaining jurors belong, these
facts may also be called to the court‘s attention‖].) Nor were there any other
indications that the prosecutor‘s pattern of challenges might have been racially
motivated. In the end, because the prosecutor‘s stated reasons for challenging
D.C. were both legitimate and credible, we uphold the trial court‘s ruling that the
prosecutor was not motivated by discriminatory intent when he challenged D.C.

                    ii. R.A.
       According to defendant, the prosecutor offered five reasons for his
challenge to R.A. Defendant concedes that three of these — R.A.‘s lack of
knowledge about his children, his insistence that he would apply an excessively
high burden of proof on the prosecution, and his ambivalence on imposing the
death penalty — were race neutral and supported by the record. He argues,
however, that the other two — R.A.‘s status as a renter and the fact he listed as his
hobby that he was an amateur magician — were pretextual and masked
discriminatory intent.
       When asked about R.A., the prosecutor prefaced his remarks by noting,
―[R.A.] is a 59-year-old black male, divorced with two kids, he rents. As I
indicated, the other juror is a renter.‖ Defendant seizes upon the italicized phrase,
which evidently refers to D.C., as proof that R.A.‘s renter status was advanced as a
justification for the peremptory challenge. But the prosecutor did not cite that as a


                                           41
reason for his challenge to D.C. Moreover, unlike his other reasons for
challenging R.A., the prosecutor said nothing more about his renter status as a
justification for the challenge. Although his comment that R.A. was a renter was
admittedly somewhat ambiguous, we construe it as descriptive, not as a
justification for the challenge.
       Defendant argues that the prosecutor‘s reliance on R.A.‘s interest in
amateur magic as a reason to challenge him, while race neutral, ―had nothing at all
to do with this case and [is] properly viewed as a pretext for discrimination.‖ We
disagree. ― ‗ ―[H]unches[,]‖ and even ―arbitrary‖ exclusion is permissible, so long
as the reasons are not based on impermissible group bias‘ [citation]. The basis for
a challenge may range from ‗the virtually certain to the highly speculative‘
[citation] and ‗even a ―trivial‖ reason, if genuine and neutral, will suffice.‘
[Citation.]‖ (People v. Chism (2014) 58 Cal.4th 1266, 1316; see, e.g., Purkett v.
Elem (1995) 514 U.S. 765, 769 [prospective juror challenged ―because he had
long, unkempt hair, a mustache, and a beard‖].) The prosecutor‘s sleight-of-hand
comment reveals some concern with a prospective juror who practiced illusion and
deception as a pastime. While certainly ―idiosyncratic‖ and even ―arbitrary‖
(People v. Lenix, supra, 44 Cal.4th at p. 613), the prosecutor‘s mention of his
aversion to having an amateur magician on his jury does not establish that he acted
with discriminatory intent, particularly in light of his other, concededly legitimate,
reasons for exercising the challenge.
       Accordingly, the trial court properly denied defendant‘s Batson/Wheeler
motion.




                                          42
            2. Excusal of Juror K.N.
       Defendant contends the trial court improperly discharged Prospective Juror
K.N. after it concluded her difficulty in applying the death penalty would
substantially impair her ability to serve as a juror. The contention is without merit.
       ― ‗Under Wainwright v. Witt (1985) 469 U.S. 412, 424 . . . , we consider
whether the record fairly supports the trial court‘s determination that [a
prospective juror‘s] views on the death penalty would have prevented or
substantially impaired her performance as a juror.‘ [Citation.]‖ (People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 399.) ―A trial court may excuse a
prospective juror for cause if no reasonable possibility exists the prospective juror
could consider imposing the death penalty. [Citation.] The trial court has broad
discretion in making this determination. [Citation.] On appeal, we will uphold the
trial court‘s ruling if the record ‗fairly support[s]‘ it, ‗accepting as binding the trial
court‘s determination as to the prospective juror‘s true state of mind when the
prospective juror has made statements that are conflicting or ambiguous.
[Citations.]‘ Prospective jurors often cannot give unmistakably clear answers as to
their ability to impose the death penalty, and the trial court, aided by its
assessment of demeanor, is in the best position to assess state of mind.‖ (People v.
Manibusan, supra, 58 Cal.4th at p. 60, fn. omitted.)
       Applying these principles, we find no abuse of discretion in the trial court‘s
decision to excuse Prospective Juror K.N. In her questionnaire, K.N.
demonstrated her discomfort with imposing the death penalty, writing that such a
decision and the ―the serious nature of this trial . . . [was] beyond what [she]
wanted to deal with.‖ She expressed the same reservations during initial
questioning by the court, saying she would have ―a real hard time with the second
phase of the [trial] having to make that decision.‖ She acknowledged that
intellectually she could consider both penalties, but commented: ―It‘s not

                                           43
something that I feel very comfortable with and it‘s something that I would have
to live with the rest of my life.‖ She told the prosecutor, ―If I find one in my
house, I don‘t kill a spider. I catch them and take them outside. I don‘t want to
have anything to do with another person‘s death.‖ Her voice shook as she was
being examined about the penalty phase and when she left the courtroom she
slammed the door in apparent anger. Three days later, she asked the trial court to
excuse her, reporting that the prospect of serving on the jury had left her unable to
sleep the night following her voir dire. The court asked if her ―emotional state‖
would make it difficult for her to ―pay attention‖ to the trial. She replied, ―Well, if
Monday night was any indication, I probably slept about four hours, you know,
[and] I probably will be extremely exhausted.‖ After noting her physical
responses to voir dire — the shaky voice and sleeplessness — the court found that
her emotional state would substantially impair her ability to serve as a juror, and
that service on the jury ―would be detrimental to the mental and/or physical well-
being of the juror‖ and ―to a fair trial to both sides‖ because ―her emotional state
would prevent her from hearing all the evidence and giving the proceedings the
proper attention required.‖ She was excused.
       K.N.‘s answers regarding her ability to vote for a death sentence expressed
significant hesitancy. Her reports of the emotional toll the mere prospect of
serving on the jury was taking on her reasonably caused the trial court to have
concerns about her ability to concentrate and to render a fair verdict. Thus, the
court acted well within its discretion in excusing her.




                                          44
       C. Guilt Phase Issues

           1. Instructional Claims

                a. Alleged Failure to Instruct on Assault as Lesser Included
                    Offense to Robbery
       Defendant contends the trial court erred by failing to instruct the jury on
assault (§ 240) as a lesser included offense to the robbery of Herbert Parr, charged
as count four, which provided the predicate for the felony-murder special
circumstance alleged in connection with Parr‘s murder. Defendant theorizes that,
under other instructions, the jury could have concluded he was too intoxicated to
have formed the specific intent for robbery but found he had the general intent for
assault.
       ―We have applied two tests in determining whether an uncharged offense is
necessarily included within a charged offense: the ‗elements‘ test and the
‗accusatory pleading‘ test. Under the elements test, if the statutory elements of the
greater offense include all of the statutory elements of the lesser offense, the latter
is necessarily included in the former. Under the accusatory pleading test, if the
facts actually alleged in the accusatory pleading include all of the elements of the
lesser offense, the latter is necessarily included in the former.‖ (People v. Reed
(2006) 38 Cal.4th 1224, 1227-1228.) Here, defendant concedes that assault is not
a lesser included offense of robbery under the statutory elements test, because a
robbery can be committed by ―force or fear‖ (§ 211, italics added), and a robbery
committed by fear does not involve the use of force, which is an element of the
crime of assault. (People v. Wolcott (1983) 34 Cal.3d 92, 99-100.) But the
accusatory pleading charged defendant with robbery by ―force and fear.‖
According to defendant, this means that an element of force was necessary to the
robbery conviction, and that assault was therefore a lesser included offense of the
robbery under the accusatory pleading test.

                                          45
       Preliminarily, defense counsel stated at trial that, as a tactical decision, the
only lesser included offense instructions he sought with respect to the robbery
charge were regarding receiving stolen property. Accordingly, the doctrine of
invited error bars his claim. (People v. Horning (2004) 34 Cal.4th 871, 905
[― ‗[A] defendant may not invoke a trial court‘s failure to instruct on a lesser
included offense as a basis on which to reverse a conviction when, for tactical
reasons, the defendant persuades a trial court not to instruct on a lesser included
offense supported by the evidence.‘ ‖].) In any event, the claim is without merit,
as explained below.
       In People v. Parson (2008) 44 Cal.4th 332, as in this case, the accusatory
pleading charged the defendant with robbery by force and fear. Like defendant
here, the defendant in Parson argued that, under the accusatory pleading test, the
robbery ―necessarily included the lesser offense of assault‖ and that the trial court
erred in not instructing on that offense. (Id. at p. 349.) Declining to address the
Attorney General‘s argument that assault is not included within the crime of
robbery, even when the pleading alleges a robbery by force and fear (see People
v. Wright (1996) 52 Cal.App.4th 203), we concluded that the trial court was not
required to instruct on assault in any event because there was no substantial
evidence that the defendant was guilty only of that offense, and not of the greater
offense of robbery. (Parson, supra, 44 Cal.4th at p. 350.)
       The same reasoning applies here. The only evidence regarding defendant‘s
asserted intoxication was Brandi Hohman‘s testimony that at Laurel Beiling‘s
house defendant used methamphetamine and defendant‘s testimony that he also
consumed an unspecified amount of tequila and beer at Beiling‘s. There was no
evidence that defendant was or appeared to be intoxicated at any point before
Parr‘s murder, particularly not to the extent that he might not have formed the
intent to deprive Parr of his property. There was evidence, however, that
                                          46
defendant wanted Parr‘s motorcycle, was waiting for Parr at a party, allayed Parr‘s
fear of him by acting in a friendly manner toward him after initially being hostile,
invited Parr to Beiling‘s house, armed himself with Beiling‘s knife and, with Rex
Sheffield, led Parr out to Beiling‘s backyard where he stabbed Parr to death and
disposed of the body by putting it in his car trunk after making sure that Hohman
had removed a potential witness — Yoshi — from Beiling‘s residence. There was
additional evidence that after the murder, defendant took Parr‘s motorcycle,
dismantled it, and sold it for parts. Thus, as in Parson, there was no evidence
from which the jury could have concluded that defendant was so intoxicated that
he lacked the intent to rob, and the trial court was not obligated to instruct on
assault.

                b. CALJIC No. 2.11.5
       Defendant contends the trial court erred by giving CALJIC No. 2.11.5, and
asserts the error violated his Fifth, Sixth and Eighth Amendment rights. We reject
the claim.
       As given here, CALJIC No. 2.11.5 stated: ―There has been evidence in this
case indicating that a person or persons other than defendant was or may have
been involved in the crime for which defendant is on trial. [¶] There may be
many reasons why such person or persons is not here on trial. Therefore, do not
discuss or give any consideration as to why the other person or persons is not
being prosecuted in this trial or whether he or she has been or will be prosecuted.
Your sole duty is to decide whether the People have proved the guilt of the
defendant on trial.‖
       Defendant contends this instruction was faulty because it prevented the jury
from evaluating Brandi Hohman‘s credibility and because it undercut his third
party culpability defense, particularly with respect to evidence that Connie Ramos


                                          47
killed Sharley Ann German. Because defendant objected to the instruction only
on the latter ground at trial, the Attorney General asserts the initial argument is
forfeited. Defendant responds that he did object to the instruction, albeit not
specifically as it applied to Hohman, and he argues that in any event no objection
was required because the instruction affected his substantial rights. (§ 1259 [―The
appellate court may . . . review any instruction given, refused or modified, even
though no objection was made thereto in the lower court, if the substantial rights
of the defendant were affected thereby.‖].) Without deciding the forfeiture
question, we address his claim on the merits. (See People v. Champion (1995) 9
Cal.4th 879, 908, fn. 6.)
       Brandi Hohman testified under a grant of immunity. Defendant claims the
instruction prevented the jury from considering that fact in assessing her
credibility. We rejected a similar claim in People v. Price (1991) 1 Cal.4th 324
(Price). There, the defendant argued that the trial court should not have given
CALJIC No. 2.11.5, contending the ―instruction erroneously told the jurors they
could not discuss or consider the fact that prosecution witnesses had been granted
immunity.‖ (Price, at p. 446.) We observed that a challenged instruction cannot
be read in isolation but must be ―considered in light of the entire charge.‖ (Ibid.)
Reading CALJIC No. 2.11.5 in that context, we concluded that ―a reasonable juror
would not have understood it as precluding the jury from considering the
immunity granted to prosecution witnesses in assessing the credibility of those
witnesses.‖ (Price, at p. 446.)
       Price explained: ―The purpose of the challenged instruction is to
discourage the jury from irrelevant speculation about the prosecution‘s reasons for
not jointly prosecuting all those shown by the evidence to have participated in the
perpetration of the charged offenses, and also to discourage speculation about the
eventual fates of unjoined perpetrators. [Citation.] When the instruction is given
                                          48
with the full panoply of witness credibility and accomplice instructions, as it was
in this case, a reasonable juror will understand that although the separate
prosecution or nonprosecution of coparticipants, and the reasons therefor, may not
be considered in the issue of the charged defendant‘s guilt, a plea bargain or grant
of immunity may be considered as evidence of interest or bias in assessing the
credibility of prosecution witnesses. [Citation.] Although the instruction should
have been clarified or omitted [citations], we cannot agree that giving it amounted
to error in this case.‖ (Price, supra, 1 Cal.4th at p. 446.) We have applied Price‘s
reasoning to reject similar challenges to CALJIC No. 2.11.5 in several other cases
involving the testimony of an immunized witness. (People v. Valdez (2012) 55
Cal.4th 82, 148-149; People v. Brasure (2008) 42 Cal.4th 1037, 1055-1056;
People v. Lawley (2002) 27 Cal.4th 102, 162-163; People v. Cain (1995) 10
Cal.4th 1, 34-35.)
       As in those cases, defendant‘s jury was further instructed with CALJIC No.
2.20, which listed the criteria for the assessment of witness credibility, including
the existence of any ―bias, interest, or other motive‖ on the part of the witness.
The jury was also instructed it could consider evidence of a witness‘s character for
honesty. (Defendant introduced evidence that Hohman was not truthful.)
Significantly, because Hohman testified that defendant admitted killing the three
victims, the jury was also instructed that ―[e]vidence of an oral confession [or oral
admission] of the defendant should be viewed with caution.‖ (CALJIC No. 2.70
(5th ed. 1988).) Defendant notes that — unlike the cases cited above — no
instructions were given on accomplice testimony. Nevertheless, when we consider
CALJIC 2.11.5 in conjunction with the other instructions that were given, we find
that it is not reasonably likely that the jury construed the instruction as barring it
from considering that Hohman had been given immunity when it evaluated her


                                           49
testimony. (See People v. Clair (1992) 2 Cal.4th 629, 663 [―reasonable
likelihood‖ standard applies when evaluating ambiguous instructions].)
        Defendant‘s claim that instructing the jury pursuant to CALJIC No. 2.11.5
undercut his third party culpability defense is similarly meritless. As noted, the
purpose of the instruction is to prevent the jury from speculating as to why other
participants are not on trial with the defendant or their eventual fates. Nothing in
the instruction prohibits a jury from considering evidence that such participants,
and not the defendant, committed the charged crimes.

                c. Alleged Failure to Instruct on Target Offense in Conspiracy
                    Instruction
        Defendant contends the trial court erred by failing to define the target
offense in connection with its conspiracy instructions, specifically CALJIC No.
6.11.
        Count two of the information charged defendant with conspiracy to murder
Herbert Parr; count four charged him with the murder of Parr. Count five charged
defendant with conspiracy to murder Michael Robertson; count six charged him
with the murder of Robertson. Pursuant to CALJIC No. 6.10, the trial court
instructed the jury that ―[a] conspiracy is an agreement entered into between two
or more persons with the specific intent to agree to commit the public offense of
murder and with the further specific intent to commit such offense followed by an
overt act committed in this state by one or more of the parties for the purpose of
accomplishing the object of the agreement. Conspiracy is a crime.‖
        The trial court further instructed the jury, pursuant to CALJIC No. 6.11
(1989 rev.) (5th ed. 1988): ―A member of a conspiracy is not only guilty of the
particular crime that to his knowledge his confederates are contemplating
committing, but is also liable for the natural and probable consequences of any act
of a co-conspirator to further the object of the conspiracy, even though such an act

                                          50
was not intended as a part of the original plan and even though he was not present
at the time of the commission of such act. [¶] You must determine whether the
defendant is guilty as a member of a conspiracy to commit the crime originally
contemplated, and if so, whether the crimes alleged in Counts four and six were a
natural and probable consequence of the originally contemplated criminal
objective of the conspiracy.‖
       During deliberations, the jury sent the trial court a note pertaining only to
count two — the charge that defendant conspired to murder Parr — that read: ―If
the jury decided that there was a conspiracy to commit a crime other than murder
and the natural result of that other crime was murder, is the Defendant guilty of
conspiracy even though that other crime is not specified in the charges[?] (The
Information Document[.]) Reference: Count #2. The other crime would be
assault.‖ The court responded: ―No. The defendant can only be convicted of
crimes for which he has been charged in the information; or of those that are lesser
offenses for which the court has instructed you.‖ As previously noted, the jury
ultimately acquitted defendant of conspiring to murder Parr.
       Defendant contends the trial court erred by failing to specify the ―crime
originally contemplated‖ referred to in CALJIC No. 6.11 and that the jury‘s later
question showed that the court‘s failure to do so allowed the jury to engage in
―unguided speculation‖ regarding the nature of that crime. He argues that the
jury‘s question shows that it was willing to engage in such speculation not only on
the conspiracy charge that was the subject of the jury‘s question, but also on the
charges that defendant murdered Parr and Robertson.
       Preliminarily, the Attorney General contends that defendant forfeited the
claim by not asking the trial court to specify a target crime for the jury. As noted
below, defendant relies on People v. Prettyman (1996) 14 Cal.4th 248
(Prettyman), where we said the trial court had a sua sponte duty to instruct on
                                          51
target offenses in connection with aider and abettor liability. (Id. at p. 266.) If
Prettyman applied here in the manner defendant claims, then the trial court would
have had a similar sua sponte duty to identify a predicate offense when it
instructed pursuant to CALJIC No. 6.11, and defendant could not forfeit the claim
by failing to ask the court to do so. The claim, however, fails on its merits.
       In Prettyman, we held that when the prosecutor relies on the natural and
probable consequence doctrine as to a defendant charged as an aider and abettor,
the trial court must give an instruction ― ‗identify[ing] and describ[ing] the target
crimes that the defendant might have assisted or encouraged.‘ ‖ (Prettyman,
supra, 14 Cal.4th at p. 254.) Defendant argues that the same principles should
apply when, as here, a defendant is prosecuted as a conspirator rather than an aider
and abettor.
       We rejected a similar argument in People v. Valdez, supra, 55 Cal.4th 82
(Valdez). In Valdez, the defendant was charged with murder but was not charged
separately with conspiracy. The trial court instructed the jury on conspiracy as a
theory of liability for murder, and it defined ―conspiracy‖ as ― ‗an agreement
between two or more persons with the specific intent to agree to commit a public
offense such as murder, and with the further specific intent to commit such
offense.‘ ‖ (Id. at p. 151.) The jury convicted the defendant of murder. On
appeal, the defendant argued the italicized phrase was ambiguous as to the object
of the conspiracy and ―impermissibly allowed the jury to convict him based on a
‗generalized belief that [he] intended to assist and/or encourage unspecified
nefarious conduct.‘ ‖ (Ibid.) Like defendant here, he relied on Prettyman.
       In Valdez, we rejected the defendant‘s analogy to Prettyman, explaining:
―Even were defendant correct that Prettyman‘s holding applies to instructions on
conspiracy — a question we do not answer— that holding would not aid him. We
stressed in Prettyman that a court‘s sua sponte duty to identify and describe target
                                          52
crimes ‗is quite limited.‘ [Citation.] It arises only when ‗uncharged target
offenses form a part of the prosecution‘s theory of criminal liability and
substantial evidence supports the theory.‘ [Citation.] Moreover, even when the
duty arises, the trial court ‗need not identify all potential target offenses supported
by the evidence, but only those that the prosecution wishes the jury to consider.‘
[Citation.] In this case, the only target offense under the prosecution‘s theory of
criminal liability was murder, and that was a charged offense. The prosecution
never argued any other target offense and the evidence overwhelmingly pointed
only to that target offense. On this record, the trial court‘s instruction sufficed.‖
(Valdez, supra, 55 Cal.4th at p. 152.)
       Here, defendant was charged with two conspiracies to commit specific
murders, as well as with the murders that were the objects of the alleged
conspiracies. He was not charged with any other crimes that he might not have
contemplated, but might have been the natural and probable consequence of the
crimes agreed to in the conspiracies. As in Valdez, ―the only target offense under
the prosecution‘s theory of criminal liability was murder, and that was a charged
offense.‖ (Valdez, supra, 55 Cal.4th at p. 152.) Thus, Prettyman‘s requirement
that the jury be instructed on the target crime or crimes in assessing aiding and
abetting liability is inapplicable. Defendant‘s related claim that the trial court was
required to define the phrase ―originally contemplated criminal objective‖ in the
instruction is even less compelling. The jury was instructed that defendant was
charged with conspiracy to commit murder. There was no other criminal objective
to which the language in CALJIC No. 6.11 could have referred.
       Lastly, defendant argues the jury‘s note shows it ―engaged in ‗unguided
speculation‘ ‖ in connection with CALJIC No. 6.11 that may have led it to convict
him of the charges that he murdered Parr and Robertson. We disagree. The note
pertained only to the charge that defendant conspired to murder Parr — a charge
                                          53
on which the jury ultimately found him not guilty — and gave no indication that
the jury was attempting to apply the natural and probable consequences rule to the
two murder charges.

                d. Uncharged Acts Instruction
       Over defendant‘s objection, the trial court allowed the prosecution to
present evidence that defendant had assaulted Christopher Walsh and robbed him
of his motorcycle. Prior to trial, the prosecutor explained his theory of the
relevance of the evidence. ―[T]he People‘s position is that [it] is relevant . . . in
terms of [defendant‘s] subsequent conduct with Mr. Parr. When he wanted
[Parr‘s] motorcycle, he had learned from Christopher Walsh . . . that if [you] leave
a victim alive they can report it to the police, and [Parr] was subsequently killed
when [his] motorcycle was taken.‖ Walsh was called and testified to the incident.
       In connection with Walsh‘s testimony, the jury was instructed with
CALJIC No. 2.50 and CALJIC No. 2.50.1. At the time of trial, CALJIC No. 2.50
(5th ed. 1988) stated: ―Evidence has been introduced for the purpose of showing
that the defendant committed [a crime] [crimes] other than that for which [he] . . .
is on trial. [¶] Such evidence, if believed, was not received and may not be
considered by you to prove that the defendant is a person of bad character or that
[he] . . . has a disposition to commit crimes. [¶] Such evidence was received and
may be considered by you only for the limited purpose of determining if it tends to
show: [¶] . . . [¶] [A motive for the commission of the crime charged;] [¶] . . .
[The crime charged is part of a larger continuing plan, scheme or conspiracy;] [¶]
[The existence of a conspiracy]. [¶] For the limited purpose for which you
consider such evidence, you must weigh it in the same manner as you do all other
evidence in the case. [¶] You are not permitted to consider such evidence for any
other purpose.‖ (Italics added.)


                                           54
       At the time of trial, CALJIC No. 2.50.1 (5th ed. 1988) stated: ―Within the
meaning of the preceding instruction, such other crime or crimes purportedly
committed by [a defendant] must be proven by a preponderance of the evidence.
You must not consider such evidence for any purpose unless you are satisfied that
[the] . . . defendant committed such other crime or crimes. [¶] The prosecution
has the burden of proving these facts by a preponderance of the evidence.‖
       In his closing argument, the prosecutor told the jury that the Walsh
evidence showed that defendant had ―a common scheme or plan‖ of taking
motorcycles by force, first from Walsh and then from Parr. He also argued that,
because Walsh had reported the crimes to police, defendant had learned from that
experience he could not leave his victim — Parr — alive. He explained: ―I
submit . . . that from this particular evidence, you can draw the legitimate
conclusion that the Walsh situation, no doubt, was fresh on [defendant‘s] mind.
[¶] He knew what happened when he left a live victim with Christopher Walsh.
Christopher Walsh is alive today, and because of the fact he‘s alive today, I
submit, in [defendant‘s] mind, is one of the reasons Herbert Parr is not.‖
       Focusing on the italicized phrase quoted above from CALJIC No. 2.50,
defendant contends that phrase led the jury to believe it could convict him of
conspiracy to murder Michael Robertson simply by finding he had assaulted and
robbed Christopher Walsh by a preponderance of the evidence.
       Preliminarily, we agree with the Attorney General that defendant has
forfeited this claim by failing to ask the trial court to clarify the instruction of
which he now complains. (People v. Lang (1989) 49 Cal.3d 991, 1024.) As
demonstrated below, all parties clearly understood that the uncharged crimes
evidence, and therefore the instructions on that point, pertained solely to the Parr
murder, not to the charges involving Robertson. Had defendant wished, he could


                                           55
have sought to make that explicit in the instructions, but he failed to seek such
clarification. Accordingly, the claim is forfeited. It is also without merit.
       ―The relevant inquiry [when instructional error is claimed] is whether, ‗in
the context of the instructions as a whole and the trial record, there is a reasonable
likelihood that the jury was misled to defendant‘s prejudice.‘ [Citation.] Also,
‗ ― ‗we must assume that jurors are intelligent people and capable of understanding
and correlating all jury instructions which are given.‘ ‖ ‘ ‖ (People v. Sattiewhite
(2014) 59 Cal.4th 446, 475; see People v. Thomas (2011) 52 Cal.4th 336, 356 [―A
single jury instruction may not be judged in isolation, but must be viewed in the
context of all instructions given.‖].)
       The trial court defined the elements of conspiracy for the jury and described
the requirement that the prosecution prove defendant‘s guilt beyond a reasonable
doubt. It also told the jury that whether an instruction applied depended on its
factual findings and that it should disregard any inapplicable instructions. As
noted above, counsel and the court recognized that the other crimes evidence
pertained solely to the prosecutor‘s claim that it showed a common plan with
respect to the robberies of Walsh and Parr. The prosecutor explicitly argued to the
jury that this was its relevance. At no time and nowhere in the record was any
connection drawn between the Walsh incident and count five, which alleged
conspiracy to murder Robertson. Thus, there is not a reasonable likelihood that
the jury applied CALJIC No. 2.50 in the manner that defendant now claims, and
his contention must be rejected.

                e. CALJIC No. 2.01
       Defendant contends that CALJIC No. 2.01, the standard instruction guiding
the jury‘s consideration of circumstantial evidence, was improperly given in this
case because it did not also apply to direct evidence. We have frequently rejected


                                          56
this claim. As we have explained: ―[D]irect evidence, unlike circumstantial
evidence, does not generate conflicting inferences. ‗ ―Circumstantial evidence
involves a two-step process—first, the parties present evidence and, second, the
jury decides which reasonable inference or inferences, if any, to draw from the
evidence—but direct evidence stands on its own. So as to direct evidence no need
ever arises to decide if an opposing inference suggests innocence.‖ ‘ [Citations.]‖
(People v. Lucas (2014) 60 Cal.4th 153, 298-299.)
       Defendant asserts his case is different because he presented evidence that
he boasted about committing crimes he had not committed. Therefore, he claims,
his is ―the extremely rare case‖ where the direct evidence on which the
prosecution relied — his confessions that he committed the crimes — was
susceptible of a reasonable explanation that did not point to guilt. He argues that
―because there is a reasonable likelihood that the jury applied the instructions so as
to permit it to return a guilty verdict based on direct evidence even if that evidence
was reconcilable with innocence,‖ his rights under the Fifth and Sixth
Amendments to the federal Constitution were violated. We disagree.
       Defendant seems to assume there was no other basis on which the jury
could have credited his ―bragging‖ evidence except by application of CALJIC No.
2.01. This is inaccurate. Whether the jury believed defendant confessed to the
crimes was, fundamentally, a credibility question. On that issue, the jury was
instructed at length about how to evaluate the credibility of the witnesses (Brandi
Hohman and others) to whom defendant allegedly made the confessions as well as
defendant‘s own testimony. In addition to the general instruction about credibility
assessment, the jury was specifically told to view evidence of defendant‘s
confessions with caution. ―We presume the jury understood and followed the
instruction.‖ (People v. Homick, supra, 55 Cal.4th at p. 873.) These instructions
applied not only to the preliminary issue of whether defendant made the
                                         57
statements at all but also whether, if he made them, they were true in light of the
evidence that he was taking credit for something he had not done. Under these
instructions, the jury could have concluded either that defendant did not make the
statements at all or, if he did, he was simply bragging and had not actually
committed the crimes. Thus, under the instructions given, the jury would have
fully assessed whether, even if it believed defendant had made the statements,
there was an innocent explanation for them, i.e., that he was a braggart.
Essentially, then, the instructions given here authorized the jury to engage in the
same analysis of the evidence that defendant contends it would have engaged in
had CALJIC No. 2.01 been extended to its consideration of direct evidence.

                f. Aiding and Abetting Instruction
       With respect to the special circumstance allegations, the trial court gave a
modified version of CALJIC No. 8.80 (1990 rev.) (5th ed. 1988). As relevant
here, the court said: ―If you find the defendant in this case guilty of murder in the
first degree, you must then determine if one or more of the following special
circumstances are true or not true: murder for financial gain, murder during the
course of a robbery, or multiple murders. [¶] . . . [¶] If you find beyond a
reasonable doubt that the defendant in counts four or six was either the actual
killer or a co-conspirator or an aider and abettor, but you are unable to decide
which, then you must also find beyond a reasonable doubt that the defendant with
intent to kill participated as a co-conspirator with or aided and abetted an actor in
the commission of the murder in the first degree, in order to find the special
circumstance to be true.‖
       Defendant notes that the instruction required the jury to determine whether
he acted with the intent to kill only if it was ―unable to decide‖ whether he was the
actual killer or an aider and abettor, but the instruction did not expressly tell the


                                           58
jury what to do if it did decide he was an aider and abettor. Thus, he argues, it
permitted the jury to find the special circumstance true without finding that he
acted with intent to kill. That would be error because, at the time of the murders,
the felony-murder special circumstance applied only to those aiders and abettors
who acted with the intent to kill. (People v. Anderson (1987) 43 Cal.3d 1104,
1147.)
         We rejected a similar claim in People v. Letner and Tobin (2010) 50
Cal.4th 99 (Letner and Tobin). We acknowledged the ambiguity of the instruction
at issue, which like the instant one did not explicitly state the intent requirement
for an aider and abettor, but we concluded the ambiguity did not rise to the level of
a due process violation. (Id. at pp. 181-182.) ― ‗For ambiguous instructions, the
test is whether there is a reasonable likelihood that the jury misunderstood and
misapplied the instruction.‘ ‖ (Id. at p. 182.) Based on our review of the record,
we found ―no reasonable likelihood the jury misunderstood or misapplied the
instruction.‖ (Ibid.)
         Here, as in Letner and Tobin, the prosecutor did not argue that the
instruction permitted the jury to find the special circumstance true on the theory
that defendant was a nonperpetrator who lacked the intent to kill; rather, he argued
that whether or not defendant was the actual killer, he lured Herbert Parr to Laurel
Beiling‘s house so that he could kill Parr and take his motorcycle. The prosecutor
did concede that it was unclear whether defendant, Rex Sheffield, or both of them
stabbed Parr, noting that one of them might have held Parr while the other stabbed
him. But the prosecutor never suggested to the jury the possibility that Sheffield
intended to kill Parr and defendant did not, but nonetheless assisted Sheffield in
carrying out the crime. Nor did defendant claim to be an accomplice who did not
share the perpetrator‘s intent to kill; rather, he testified that he had nothing to do
with the killing. The jury convicted defendant of murdering Parr but acquitted
                                           59
him of conspiring with Sheffield to commit the murder, suggesting that it was
convinced that defendant was the killer but was unsure about the extent of
Sheffield‘s participation in the offense.
       Strong evidence supported the prosecutor‘s argument that defendant carried
out a preconceived plan to rob and kill Parr. Defendant, who had already
assaulted Christopher Walsh and robbed him of his motorcycle, told Brandi
Hohman he wanted Parr‘s motorcycle. Defendant met Parr at a party, allayed
Parr‘s fears of him, and convinced Parr to go with him to Laurel Beiling‘s house
and then into her backyard, where defendant was armed with Beiling‘s knife.
There Parr was stabbed 18 times. Defendant later arranged to transport and
dismantle Parr‘s motorcycle, buried Parr‘s body, and told Beiling and Hohman he
had killed Parr. Thus, whether or not the jury believed that defendant was the
actual killer, on this record it could not have convicted him of murder without also
finding he harbored a specific intent to kill. As a result, there is no reasonable
likelihood that the jury based its special circumstance finding on the erroneous
view that it could do so as to an aider and abettor who lacked the intent to kill.

           2. Evidentiary Issues

               a. Exclusion of Evidence of Threats to Defense Investigator
       The defense employed Immendorf Investigations to investigate defendant‘s
case. The investigator who worked on the case was Robert Furlan. Lonne Garey
was a secretary at the firm. Garey testified for the defense that she had received
an anonymous ―scary‖ telephone call. When the prosecutor objected, the defense
made an offer of proof, explaining that the caller said: ―[T]ell the guy in the
Honda next to the BMW, the guy with the big nose, we saw him leave late in the
Honda. Tell him he better fucking get off it. We are conveniently located in San
Bruno.‖


                                            60
       In two Evidence Code section 402 hearings, at which both Garey and
Furlan testified, Garey identified Furlan as the ―guy with the big nose,‖ and said
he had been working on defendant‘s case when she received the call. Furlan
testified he drove a Honda and lived in San Bruno. After he interviewed someone
named ―Frank‖ about Brandi Hohman at a biker bar in Sunol, some patrons
followed him outside and copied down his license plate number. When he talked
to Joseph Martinez, a Freedom Rider, Martinez referred to the length of his
criminal record in what Furlan believed was an attempt to show ―how tough he
was.‖ While Furlan was at Martinez‘s house, Rex Sheffield‘s wife Gail arrived
with two ―large white male adults,‖ which made Furlan anxious. Furlan
acknowledged he had no proof that Martinez or any other Freedom Riders had
made the threatening call. According to the defense, the evidence of the
threatening behavior supported its theory that the Freedom Riders were framing
defendant for the murders, because it showed that the Freedom Riders did not
want Furlan to investigate them.
       The trial court excluded the testimony, concluding it was irrelevant because
―there‘s no connection at all between any threats that may have been made as to
who made those threats.‖ Defendant argues that the ruling violated his right to
present a defense and to a fair trial under the Fifth and Sixth Amendments to the
federal Constitution.
       ―A defendant has the general right to offer a defense through the testimony
of his or her witnesses [citation], but a state court‘s application of ordinary rules of
evidence . . . generally does not infringe upon this right [citations].‖ (People v.
Cornwell (2005) 37 Cal.4th 50, 82, disapproved on another point in People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) ―[T]he Constitution leaves to [state
trial court] judges . . . ‗wide latitude‘ to exclude evidence that is ‗repetitive . . . ,
only marginally relevant‘ or poses an undue risk of ‗harassment, prejudice, [or]
                                            61
confusion of the issues.‘ ‖ (Crane v. Kentucky (1986) 476 U.S. 683, 689-690.)
Here, defendant was unable to connect the anonymous call or the threats to Robert
Furlan to the Freedom Riders. Even if the jury could have inferred such a
connection, the evidence would not have lent any significant support to
defendant‘s claim that the Freedom Riders were trying to frame him for the Parr
and Robertson murders. The evidence showed the Freedom Riders were engaged
in any number of criminal activities including, for example, the sale of drugs.
They would understandably have been reluctant to have defendant‘s investigator
looking into their affairs. Thus, the evidence was, if relevant at all, only
marginally so and could have led to confusion of the issues. Accordingly, ―[t]he
excluded evidence in the present case was not so vital to the defense that due
process principles required its admission.‖ (Cornwell, supra, 37 Cal.4th at p. 82.)

                b. Refusal to release Brandi Hohman’s Medical Records
       Defendant contends the trial court erred when it denied his request for
access to certain medical records of Brandi Hohman, which were generated in
connection with a suicide attempt in September 1987. The defense subpoenaed
the records from the Santa Clara County Mental Health Administration after
Hohman testified at the preliminary hearing that she had attempted suicide
because she was afraid defendant might kill her. Santa Clara County Counsel
moved to quash the subpoena. After an in camera review of the records, the trial
court granted the motion to quash, explaining: ―[T]hese materials are in no way
essential to vindicate the defendant‘s right to cross-examine [Hohman.] [¶]
There‘s no reasonable probability that the protected psychotherapy records could
materially or in any way assist the defense and . . . the records are of no
evidentiary value to the defense in this case.‖




                                          62
       Defendant requests that this court review the records, asserting that they
were vital to the issue of Hohman‘s credibility. ―Parties who challenge on appeal
trial court orders withholding information as privileged or otherwise
nondiscoverable ‗must do the best they can with the information they have, and
the appellate court will fill the gap by objectively reviewing the whole record.‘
[Citation.]‖ (Price, supra, 1 Cal.4th at p. 493.) We have reviewed the records and
conclude that the trial court did not abuse its discretion in rejecting disclosure of
them. (People v. Avila (2006) 38 Cal.4th 491, 607 [no abuse of discretion where
trial court withheld access to a witness‘s parole records].) Even if the court‘s
ruling was erroneous, there was no reasonable probability of a different outcome
given that (1) Hohman‘s fear of defendant was a tangential issue; (2) the
impeachment value of the records pales in comparison to the assault defendant
launched on her credibility through his own testimony and witnesses who
described Hohman as promiscuous, a drug addict and a liar; and (3) the other
evidence of defendant‘s guilt was strong.

                c. Rebuttal Testimony of Glenn Johnson
       Glenn Johnson, a defense alibi witness, testified that he had picked up
defendant from the San Francisco airport in late April or early May 1986, after
Sharley Ann German was murdered. On rebuttal, the prosecutor, who had already
cross-examined Johnson, recalled him to the stand. In response to the prosecutor‘s
questions, Johnson acknowledged he had been arrested for driving under the
influence several weeks before the date he claimed he picked up defendant from
the airport, and that he had lived at a different address than the one he had stated in
his earlier testimony. Defense counsel objected that ―this has already been gone
over on cross-examination.‖ The trial court overruled the objection. Defendant
now contends this ruling was an abuse of discretion.


                                          63
       Rebuttal evidence is ― ‗ ―evidence made necessary by the defendant‘s case
in the sense that he has introduced new evidence or made assertions that were not
implicit in his denial of guilt.‖ ‘ ‖ (People v. Harris (2005) 37 Cal.4th 310, 336.)
―The scope of rebuttal evidence is within the trial court‘s discretion, and on appeal
its ruling will not be disturbed absent ‗ ―palpable abuse.‖ ‘ ‖ (People v. Wallace
(2008) 44 Cal.4th 1032, 1088.) Here, defendant presented evidence, including
Johnson‘s testimony, that he was not in the state on the date Sharley Ann German
was killed. Evidence impeaching Johnson was permissible rebuttal because it
could not have been presented in the prosecution‘s case-in-chief, as it only became
relevant when the defense called Johnson as an alibi witness. (See People
v. Carter (1957) 48 Cal.2d 737, 753-754.) We are unaware of any case holding
that otherwise proper rebuttal evidence becomes inadmissible if the prosecutor
could also have introduced it during cross-examination of a defense witness. The
trial court did not abuse its discretion in these circumstances.

                 d. Limitations on Cross-examination of Thomas M.
       Thomas M., Sharley Ann German‘s son, testified regarding his discovery of
his mother‘s body. He also acknowledged on direct examination that he had been
convicted of a felony burglary. On cross-examination, he testified he had been
sentenced to probation, but when defense counsel asked him if he was still on
probation, the prosecutor objected on relevance grounds. The trial court sustained
the objection.
       Defendant argues that the trial court erred when it sustained the
prosecutor‘s objection because Thomas‘s continuing probation status was relevant
to his credibility. Even if we assume that he is correct (see Davis v. Alaska (1974)
415 U.S. 308), the error was harmless under any applicable standard. Thomas‘s
testimony was a minor part of the prosecution‘s case; moreover, the jury was


                                          64
aware that he had been convicted of a felony and had been placed on probation. It
is inconceivable that the jury would have reached a different outcome if it had
learned that he was on probation at the time of trial.

           3. Denial of Mistrial Motion
       During his cross-examination of defendant, the prosecutor sought to make
the point that defendant, before testifying, knew what evidence would and would
not be introduced against him. In the latter category was the testimony of
witnesses who had made themselves unavailable by asserting the right against
self-incrimination. The prosecutor asked, ―You also had the opportunity prior to
your testimony to look at and consider which witnesses have made themselves
unavailable to testify isn‘t that so?‖ Defendant replied: ―I don‘t know what you
mean.‖ The prosecutor explained, ―Well you know which witnesses have made
themselves unavailable to be called into court; correct?‖ Defendant responded,
―No. I have no idea who was here and who‘s not here. I don‘t know what you
mean by ‗who‘s unavailable.‘ ‖ The prosecutor elaborated: ―Which witnesses
have been here to testify, which ones have made themselves unavailable; correct?‖
Defendant responded, ―I‘m not sure what you mean. You mean by pleading the
fifth?‖ The prosecutor said, ―Yeah.‖ Defendant continued, ―I‘ve seen who was
called in here and who pled the fifth and who didn‘t plead the fifth.‖ Defense
counsel then objected. The trial court sustained the objection, and instructed the
jury to disregard the reference.
       Defendant moved for a mistrial, arguing the prosecutor ―elicited from the
defendant on the stand that he was aware of the fact that several witnesses came
here and took the Fifth Amendment.‖ The prosecutor replied that, in asking the
question, he ―was expecting a yes or no answer in terms of that.‖ The trial court
denied the motion for mistrial.


                                          65
       Defendant contends the trial court abused its discretion when it denied his
mistrial motion after the prosecutor elicited inadmissible evidence regarding
witnesses invoking their Fifth Amendment rights. While it is misconduct for a
prosecutor to elicit inadmissible testimony, ―a prosecutor cannot be faulted for a
witness‘s nonresponsive answer that the prosecutor neither solicited nor could
have anticipated.‖ (People v. Tully (2012) 54 Cal.4th 952, 1035.) Whether or not
the prosecutor‘s questions elicited defendant‘s testimony that witnesses had
asserted the self-incrimination privilege, the court sustained the defense‘s
objection to that testimony and admonished the jury to disregard it. The revelation
that unidentified witnesses had ―pled the fifth‖ was not so necessarily prejudicial
that we should set aside the normal presumption that the jury followed the court‘s
admonition. (People v. Thornton (2007) 41 Cal.4th 391, 441.) Thus, even if the
prosecutor‘s questions were improper, defendant was not prejudiced. Under these
circumstances, the court did not abuse its discretion in denying the mistrial
motion.

           4. Constitutionality of Felony-murder Special Circumstance
       Defendant contends the felony-murder special circumstance violates the
Eighth Amendment to the federal Constitution because it permits imposition of the
death penalty on the actual killer without a finding of intent to kill or a reckless
indifference to human life. We have previously rejected this claim. (See, e.g.,
People v. Contreras, supra, 58 Cal.4th at pp. 163-164 [the felony-murder special
circumstance is constitutional even though it does not require that an actual killer
act with intent to kill or reckless indifference to human life]; People v. Belmontes
(1988) 45 Cal.3d 744, 794 [―The United States Supreme Court has made clear that
felony murderers who personally killed may properly be subject to the death
penalty in conformance with the Eighth Amendment . . . even where no intent to


                                          66
kill is shown.‖], disapproved on another point in People v. Doolin, supra, 45
Cal.4th at p. 421, fn. 22.) Defendant provides no persuasive reason to revisit the
issue.

         D. Penalty Phase Issues

             1. Denial of Counsel’s Request to Withdraw for Conflict of Interest
         Defendant contends his rights under the Sixth, Eighth, and Fourteenth
Amendments to the federal Constitution were violated due to a conflict of interest
arising from a threat allegedly made by defendant‘s wife to harm defense
counsel‘s wife should defendant receive the death penalty. The claim is without
merit.

                 a. Background
         On August 20, 1991, just before the penalty phase, Defense Counsel James
Campbell requested an in camera hearing to discuss a threat made by defendant‘s
wife, Karen, against Campbell‘s wife. According to Campbell, Karen told a
member of the defense team that ―if I lose my husband then [Campbell] is going to
lose his wife.‖ At two further in camera hearings, Campbell acknowledged that
Karen‘s statement appeared to be an expression of frustration rather than a serious
threat: ―[I]t‘s my belief probably that this was probably not something that is
serious or presents any real truth by Mrs. O‘Malley, but . . . I think a prudent
person would have to at least give some pause for concern over.‖ He continued,
―if it is just her in frustration . . . I would be very willing to write it off and dismiss
it.‖
         The trial court asked Campbell if he thought the threat came from
defendant. Campbell said: ―No. Didn‘t appear that way.‖ But he observed ―that
since this occurred I‘ve had no contact whatsoever with [defendant] and that‘s
very unusual because he calls almost on a daily basis.‖ Campbell asked to

                                            67
withdraw because ―[e]ven though I think this threat and the statement was not
something that is of substance really, I think that the very fact of it being made . . .
is something that does interfere with the effectiveness of myself in terms of now
going forward in the penalty phase and literally arguing and advocating for his
life.‖ The court asked defendant what he wanted. Defendant replied, ―I would
like to have him as my attorney still.‖
       The trial court denied Campbell‘s request to withdraw, explaining:
(1) ―Mr. Campbell has always been ready on this case and extremely well-
prepared‖; (2) ―Mr. Campbell has become closely associated with Mr. O‘Malley
and his family . . . . There‘s no one more qualified to argue for Mr. O‘Malley‘s
life than Mr. Campbell‖; (3) ―There‘s no evidence that the statement of
Mrs. O‘Malley was true or viable or had any substance or was uttered out of
anything but frustration, current mental state, in the light of the then existing
circumstances [and], it appears Mr. Campbell put little, if any, stock in
Mrs. O‘Malley‘s utterances‖; (4) ―There is no evidence that Mrs. O‘Malley‘s
utterances can be attributed to Mr. O‘Malley or in any way connected to him‖;
(5) ―Mr. Campbell, as an attorney, has an ethical duty to do as much for his client,
whether it‘s Mr. O‘Malley or anyone else, as possible, and has a duty to put
personal feelings and beliefs aside‖; (6) ―Mr. Campbell is under an obligation to
bring forth the facts, as he has done so [and] notify the court of what has
transpired, of his feelings in the matter, and . . . he has done so,‖ and; (7)
―Mr. O‘Malley wishes to have Mr. Campbell remain as his attorney and . . . still
has faith in Mr. Campbell and his abilities. [¶] The court further finds that
Mr. O‘Malley is making an informed, reasonable and proper choice in wanting
Mr. Campbell to remain as his counsel and still has faith in him despite any prior
disagreements, and, therefore, based on this, the court denies the motion to
withdraw as attorney of record.‖
                                           68
                b. Discussion
       The Attorney General argues that defendant waived his right to complain
about the trial court‘s denial of his attorney‘s request to withdraw when he told the
trial court he would like his attorney to continue representing him. Defendant
responds that there was no waiver because he was not informed of the dangers and
possible consequences of proceeding with conflicted representation or of his right
to conflict-free representation. (See generally People v. Jones (1991) 53 Cal.3d
1115, 1136-1137.) We need not decide whether defendant waived the claim,
because we find no error.
       ― ‗ ―The right to effective assistance of counsel, secured by the Sixth
Amendment to the federal Constitution, and article I, section 15 of the California
Constitution, includes the right to representation that is free from conflicts of
interest.‖ ‘ [Citations.] While the classic example of a conflict in criminal
litigation is a lawyer‘s dual representation of codefendants, the constitutional
principle is not narrowly confined to instances of this type. [Citation.] A conflict
may also arise when an attorney‘s loyalty to, or efforts on behalf of, a client are
threatened by the attorney‘s own interests. [Citation.] [¶] Under the federal
Constitution, prejudice is presumed when counsel suffers from an actual conflict
of interest. [Citation.] This presumption arises, however, ‗only if the defendant
demonstrates that counsel ―actively represented conflicting interests‖ and that ―an
actual conflict of interest adversely affected his lawyer‘s performance.‖ ‘
[Citations.] An actual conflict of interest means ‗a conflict that affected counsel‘s
performance—as opposed to a mere theoretical division of loyalties.‘ [Citation.]
Under the federal precedents, which we have also applied to claims of conflict of
interest under the California Constitution, a defendant is required to show that
counsel performed deficiently and a reasonable probability exists that, but for



                                          69
counsel‘s deficiencies, the result of the proceeding would have been different.‖
(People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 309-310.)
       ―To determine whether counsel‘s performance was ‗adversely affected,‘ we
have suggested that [Cuyler v.] Sullivan [(1980) 446 U.S. 335] requires an inquiry
into whether counsel ‗pulled his punches,‘ i.e., whether counsel failed to represent
defendant as vigorously as he might have, had there been no conflict. [Citation.]
In undertaking such an inquiry, we are . . . bound by the record. But where a
conflict of interest causes an attorney not to do something, the record may not
reflect such an omission. We must therefore examine the record to determine
(i) whether arguments or actions omitted would likely have been made by counsel
who did not have a conflict of interest, and (ii) whether there may have been a
tactical reason (other than the asserted conflict of interest) that might have caused
any such omission.‖ (People v. Cox (2003) 30 Cal.4th 916, 948-949, disapproved
on another point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
       Here, the threat came not from defendant but his wife, and defense counsel
did not take it seriously. Defendant himself evidently perceived no conflict, as he
indicated that he wished to continue with Campbell. Defendant fails to show that
counsel ―pulled his punches‖ out of concern for his wife‘s safety.
       Defendant relies on defense counsel‘s statements during the in camera
hearings expressing doubt about his own ability to continue with the case, but he
identifies no instance in which the alleged conflict actually affected counsel‘s
performance. To the contrary, defense counsel called numerous witnesses during
the penalty trial to demonstrate that defendant‘s life was worth preserving.
Accordingly, we reject defendant‘s claim.




                                         70
           2. Denial of Defendant’s Request to Discharge His Retained Counsel
       Defendant contends the trial court erred by denying his request to discharge
retained counsel. The court did not err.

               a. Background
       As noted in the previous part, on September 11, 1991, the trial court denied
defense counsel‘s request to be relieved based, in part, on defendant‘s desire that
counsel continue to represent him. The penalty phase trial began on the morning
of September 24. The jury was preinstructed regarding factors in aggravation and
mitigation. The prosecutor gave his opening statement. He said that at the penalty
phase he would call no witnesses, but would rely on defendant‘s prior felony
conviction and the guilt phase evidence of the circumstances of the crime and
defendant‘s other violent criminal activity. After putting into evidence a certified
copy of defendant‘s felony conviction, the prosecution rested. The defense called
its first witness (Lawrence Walton, a jail chaplain), who was examined by both
sides before the lunch recess.
       When court reconvened, defense counsel informed the court that defendant
wanted to make a statement. Counsel said, ―I don‘t know if it really is a Marsden
motion, but I think it‘s a quasi Marsden motion, at least approaches that.‖11 Out
of ―an abundance of caution,‖ the trial court cleared the courtroom and invited
defendant to speak.
       Defendant said he wanted to ―address . . . statements made by the Court‖ at
the September 11 hearing when it denied counsel‘s request to withdraw, and
defendant‘s ―response to a question asked . . . by the Court,‖ specifically,
defendant‘s statement that he ―wanted to keep‖ defense counsel. Defendant told


11     People v. Marsden (1970) 2 Cal.3d 118.


                                           71
the court he did ―not have confidence in‖ counsel, but was ―more scared of getting
someone [he did] not know at all.‖ He complained that defense counsel had ―lost
all credibility with the jury, but again, I am worried about who would be appointed
in his place.‖ He brought up the denial of a pretrial request he had made for
second counsel. He asserted the court had been incorrect when it had
characterized defense counsel as well-prepared and effective because trial counsel
had ―ignored or not even read‖ reports and witness statements prepared by defense
investigators. He also alluded to ―numerous other issues and incidents‖ he would
raise at ―a later date.‖ He asserted further the ―defense team‖ had ignored his
―wishes and suggestions.‖ He complained that at times he was told ―how [things]
were going to be handled, and then the opposite was done, or nothing done at all,
which left the situation irrevocable with no . . . input from myself or others.‖
Defendant expressed ―no hard feelings‖ toward defense counsel, adding, ―My only
problem is how I was represented.‖
       The trial court invited counsel to respond. Counsel acknowledged there
had been disputes between defendant and the defense team regarding ―how he
wanted to present the case.‖ He said he explained to defendant his tactical
decisions and, when defendant disagreed, he tried to put defendant‘s opposition on
the record for purposes of appellate review. He alluded to a disagreement he and
defendant were having about defendant‘s wish to call certain penalty phase
witnesses whom counsel feared would invite damaging rebuttal. He asked
defendant if he wanted to call those witnesses or to continue discussing the matter.
Defendant replied, ―At this point, we are still discussing that . . . I may agree with
you, but I don‘t know all the facts yet.‖ The court observed, ―It‘s obvious you two
have not finished discussing this yet. Is that correct Mr. O‘Malley?‖ Defendant
replied, ―Correct.‖


                                          72
       The court stated: ―[I]t would not appear that any disagreement that you
may have had over trial tactics has caused a breakdown in the attorney-client
relationship that would substantially, if in any way, impair the defendant‘s right to
effective assistance of counsel. [¶] It would not appear there has been a defense
that wasn‘t presented or that [defense counsel] did not sufficiently consult with
[defendant] and adequately investigate the facts and the law involved in this case
. . . . [¶] Whether or not this is a real Marsden type situation or not, is hard to say
at this point, but [defense counsel] is not going to be relieved at this point.‖

                b. Discussion
       Defendant contends the trial court erred by denying a request to discharge
his attorney because the court applied the wrong legal standard and the error
requires automatic reversal of the penalty phase verdict. Had defendant made
such a request, we might agree, but, as we explain below, he did not. The court
therefore did not err in denying a request that was never made, regardless of what
standard it purportedly applied.
       ―The right to retained counsel of choice is — subject to certain limitations
— guaranteed under the Sixth Amendment to the federal Constitution. [Citations.]
In California, this right ‗reflects not only a defendant‘s choice of a particular
attorney, but also his decision to discharge an attorney whom he hired but no
longer wishes to retain.‘ [Citations.]‖ (People v. Verdugo (2010) 50 Cal.4th 263,
310-311 (Verdugo).) In People v. Ortiz (1990) 51 Cal.3d 975 (Ortiz), we held that
with regard to discharging a retained attorney, a defendant need not demonstrate
either that counsel ―is providing inadequate representation [citations], or that he
and the attorney are embroiled in irreconcilable conflict [citation].‖ (Id. at p. 984.)
That standard, rather, is applicable when a defendant seeks substitution of
appointed counsel. (Ibid.; see People v. Marsden, supra, 2 Cal.3d 118.)


                                          73
Consistent with the Sixth Amendment right to counsel, a defendant may discharge
retained counsel ―with or without cause.‖ (Ortiz, supra, at p. 983.)
       ―The right to discharge a retained attorney is, however, not absolute.
[Citation.] The trial court has discretion to ‗deny such a motion if discharge will
result in ―significant prejudice‖ to the defendant [citation], or if it is not timely,
i.e., if it will result in ―disruption of the orderly processes of justice‖ [citations].‘ ‖
(Verdugo, supra, 50 Cal.4th at p. 311.) In this context, while ―a defendant seeking
to discharge his retained attorney is not required to demonstrate inadequate
representation or an irreconcilable conflict, this does not mean that the trial court
cannot properly consider the absence of such circumstances in deciding whether
discharging counsel would result in disruption of the orderly processes of justice.‖
(People v. Maciel (2013) 57 Cal.4th 482, 513 (Maciel).)
       The question of which standard applies to a defendant‘s request to
discharge counsel presupposes that such a request was made. In this case,
however, unlike Ortiz, Verdugo, and Maciel, defendant did not explicitly request
that counsel be discharged. Indeed, while he complained about counsel‘s
representation, he also expressed concern about ―getting someone I do not know at
all‖ and ―who would be appointed in his place.‖ These comments signify that
defendant did not have a substitute attorney in mind, whether retained or
appointed. Moreover, his comments toward the end of the hearing showed he and
counsel were still discussing defendant‘s wish to have certain witnesses testify at
the penalty phase, indicating, as the trial court found, no irreconcilable breakdown
of their relationship. The tenor of defendant‘s comments can reasonably be
construed as a clarification of his earlier statement to the court at the conflict of
interest hearing that he wanted to proceed with defense counsel. He explained that
he had agreed to keep his lawyer not because he thought counsel was doing a good
job but because he was more worried about who might replace him. Additionally,
                                            74
comments by defense counsel and the court itself indicate they were uncertain of
what defendant wanted. Trial counsel characterized his complaint as, at most,
―quasi Marsden,‖ and the court cleared the courtroom out of ―an abundance of
caution,‖ presumably in the event defendant did request that counsel be
discharged. Even when the court stated it would not ―relieve counsel at this
point,‖ it prefaced that statement by remarking, ―[w]hether or not this is a real
Marsden type situation or not, is hard to say at this point . . . .‖
       We have not previously considered whether a defendant with retained
counsel may be found to have asserted the right to discharge the attorney without
explicitly making such a request. Some touchstones in our decisions are, however,
helpful by analogy. The right to discharge retained counsel flows from the Sixth
Amendment right to counsel. As we observed in a different context, that right is
personal to the defendant. (People v. Badgett (1995) 10 Cal.4th 330, 343-344
[―The right to counsel is a personal right [citation], and a violation of that right
cannot ordinarily be asserted vicariously.‖].) Moreover, in the Marsden context,
we require ―at least some clear indication by defendant that he wants a substitute
attorney‖ before the trial court must conduct a hearing on such request. (People v.
Lucky (1988) 45 Cal.3d 259, 281, fn. 8; see People v. Dickey (2005) 35 Cal.4th
884, 920 [trial court did not err in declining to conduct Marsden hearing at
conclusion of guilt phase where ―[d]efendant did not clearly indicate he wanted
substitute counsel appointed for the penalty phase‖].)
       Defendant contends that, even though he failed to explicitly ask the court to
discharge his attorney, the trial court ―plainly understood [defendant‘s] comment
as a request to discharge his attorney,‖ as indicated by its statement that counsel
would not be relieved. He relies on People v. Lara (2001) 86 Cal.App.4th 139
(Lara), in support of his argument.


                                           75
       In Lara, on the day set for trial, defense counsel told the trial court the
defendant wished to speak about conflicts between the two of them. When the
prosecutor offered to step outside, the court told her to wait, explaining, ― ‗I am
not sure it is a Marsden motion yet.‘ ‖ (Lara, supra, 86 Cal.App.4th at p. 146.)
Defense counsel replied, ― ‗I have a feeling that is probably what it is.‘ ‖ (Ibid.)
The court cleared the courtroom and invited the defendant to speak. The
defendant complained that counsel had not interviewed witnesses and had not
spoken to him in the preceding eight months. Counsel responded that they
disagreed about calling the defendant‘s accomplice to the stand. The trial court
characterized the dispute between the defendant and counsel as a ― ‗tactical
difference‘ ‖ (id. at p. 148) that did not ― ‗rise to the level in the type of breakdown
in the attorney-client relations that Marsden is looking at‘ ‖ (ibid.) and ruled that it
was ― ‗going to deny your request in the Marsden [sic]‘ ‖ (ibid.). When the
prosecutor returned, the court stated the defendant‘s Marsden motion had been
denied. (Ibid.)
       On appeal, the defendant asserted the trial court had applied the wrong
standard to his request to discharge his attorney, who had been retained rather than
appointed. The Attorney General argued that the defendant never requested that
his attorney be discharged. The Court of Appeal acknowledged it was ―a close
question as to whether appellant wanted to discharge [counsel].‖ (Lara, supra, 86
Cal.App.4th at p. 157.) It concluded, however, that ―the trial court obviously
interpreted appellant‘s complaints as sufficient to raise a Marsden motion,‖ and
that its evaluation of those complaints strongly implied ―that it was willing to
grant the supposed Marsden motion and discharge [the] attorney if the court found
an irreconcilable conflict existed‖ between the defendant and counsel. (Id. at
p. 158.) Under these circumstances, the reviewing court ―rel[ied] on the [trial]
court‘s factual interpretation of the situation as involving a request by [the
                                          76
defendant] to discharge his defense attorney and obtain a new attorney to represent
him.‖ (Ibid.) It held that the trial court, by applying the Marsden standard to a
request to discharge retained counsel, had erred and the error required automatic
reversal. (Lara, supra, at pp. 165-166.)
       Lara is distinguishable because there, unlike the case before us, the trial
court plainly understood the defendant to be bringing a Marsden motion to replace
counsel. Here, defendant‘s equivocal statements, combined with the uncertainty
expressed by defense counsel and the court as to what he wanted, did not
constitute a clear indication he wanted to discharge counsel. Accordingly, the trial
court did not erroneously deny a request to discharge counsel because there was
no request to be ruled on.
       Moreover, unlike Lara, the court here did not indicate it was prepared to
―grant the supposed Marsden motion‖ (Lara, supra, 86 Cal.App.4th at p. 158) had
it found an irreconcilable conflict existed. Its invocation of Marsden principles
must be seen in context as an attempt to respond in some manner to defendant‘s
stated concerns about his conflicts with his attorney and not a true Marsden ruling,
since the court was doubtful it had been presented ―with a real Marsden type
situation.‖ Had defendant clearly indicated he wanted to discharge his attorney,
the trial court could have then assessed whether granting the request would
prejudice him or disrupt the orderly process of justice. The court likely would
have been well within its discretion to deny such a request on the latter ground,
given that it would have come in the midst of defendant‘s penalty phase case and
without any substitute counsel at hand. Accordingly, we conclude that the trial
court did not err when it said that counsel would not be relieved.




                                           77
            3. Exclusion of Evidence of Manner of Execution
        During the penalty phase, defendant sought to ask his correctional expert,
James Park, about his experience with executions. The prosecutor asked to
approach the bench, where defense counsel stated he intended to ask Park about
the manner of executions. The court sustained the prosecutor‘s objection.
Defendant contends the ruling was error. It was not.
        The parties at the penalty phase of a capital case may introduce evidence
―relevant to aggravation, mitigation, and sentence‖ (§ 190.3), provided that such
evidence pertains to the ―character or record of the individual offender or the
circumstances of his particular offense‖ (People v. Grant (1988) 45 Cal.3d 829,
860). In Grant, we rejected the defendant‘s claim that evidence of the manner of
execution was admissible under this statute, explaining: ―Unlike mitigating
evidence of a defendant‘s background and character, which may be introduced to
elicit the sympathy or pity of the jury, accounts of the executions of others do not
aid the jury in making an individualized assessment of the crucial issue whether
the death penalty is appropriate for the particular defendant on trial.‖ (Ibid.) We
have consistently followed Grant on this point. (See People v. Fudge (1994) 7
Cal.4th 1075, 1124; People v. Whitt (1990) 51 Cal.3d 620, 644-645; People v.
Thompson (1988) 45 Cal.3d 86, 138-139; People v. Harris (1981) 28 Cal.3d 935,
962.)
        Defendant asks us to reconsider these decisions, arguing that they have
been undermined by the United States Supreme Court‘s decisions in California v.
Ramos (1983) 463 U.S. 992, 1009 (the federal Constitution permits the state to
instruct juries about the Governor‘s power to commute a sentence of life without
parole), Tennard v. Dretke (2004) 542 U.S. 274, 284 (under the Eighth
Amendment, ― ‗ ―[r]elevant mitigating evidence is evidence which tends logically
to prove or disprove some fact or circumstance which a fact-finder could

                                         78
reasonably deem to have mitigating value‖ ‘ ‖), and Smith v. Texas (2004) 543 U.S
37, 44 (same). That is incorrect. As we have since explained, ―[I]t is not the law
that jurors must be allowed to consider any evidence a defendant offers on the
question whether the death penalty is morally appropriate. Evidence is
inadmissible if it does not pertain to a defendant‘s individual character and record,
but pertains solely to the death penalty generally, such as how death is inflicted
. . . .‖ (People v. Smith (2005) 35 Cal.4th 334, 366; see also People v. Collins
(2010) 49 Cal.4th 175, 233.)

           4. Admission of Testimony About Statements by Defendant’s Father
       As part of its effort to rebut defense evidence that defendant‘s father had
been abusive, the prosecution called Joseph Collamati, a Massachusetts police
officer who had been acquainted with defendant and his father. The prosecutor
asked Collamati if defendant‘s father had told him about problems with
defendant‘s behavior. Following a defense objection, the prosecutor explained he
was offering the statement under the state of mind exception to the hearsay rule to
show the senior O‘Malley‘s state of mind. The defense countered that his state of
mind was not at issue. The trial court overruled the objection, instructing the jury
the evidence was limited to state of mind and ―not for the truth of the matter
asserted.‖ Collamati testified that defendant‘s father had told him defendant was
―running wild,‖ using drugs and alcohol, and that the senior O‘Malley had no
control over him. Collamati testified further that defendant‘s behavior upset his
father to the point that ―a couple of times‖ he was ―almost in tears.‖
       As relevant here, the state of mind exception to the rule against hearsay
applies when the out-of-court statement is ―offered to prove the declarant‘s state of
mind, emotion, or physical sensation . . . when it is itself an issue in the action.‖
(Evid. Code, § 1250, subd. (a)(1).) Defendant argues that his father‘s state of


                                          79
mind was not at issue here, and that the trial court therefore erred in admitting
Collamati‘s testimony. We agree.
       Most of Collamati‘s testimony about the senior O‘Malley‘s statements did
not even describe the latter‘s state of mind; rather, it described defendant‘s
misbehavior. Assuming for the sake of argument that defendant‘s behavior had
some relevance to the question of whether the senior O‘Malley abused his son, the
jury could have considered it only if it was admitted for its truth, and it was
inadmissible for that purpose. As for Collamati‘s testimony that the senior
O‘Malley was upset by the misbehavior, it did describe the father‘s state of mind,
and the Attorney General argues it was therefore admissible to rebut defendant‘s
evidence that his father was abusive, apparently based on the theory that such
parental concern is inconsistent with the abuse defendant reported. We are not
persuaded. Abusive parents are often upset at the misbehavior of their children;
indeed, that distress sometimes causes the parent to engage in the abusive conduct.
Moreover, defendant described a long pattern of abuse by his father beginning
when he was a child and not simply during his teenage years when, in his father‘s
eyes, he began to go astray.
       Nonetheless, the erroneous admission of Collamati‘s testimony was
harmless. Evidence that defendant engaged in out-of-control behavior as a
teenager and that his father found this behavior distressing was of little importance
when compared to the vicious murders he was found to have committed. Thus, it
is not reasonably possible that, had it been excluded, the result of the penalty
phase would have been altered.

           5. Alleged Double Counting of Special Circumstances
       Defendant contends CALJIC No. 8.85, in combination with remarks by the
prosecutor in his closing argument, improperly permitted the jury to double count


                                          80
the financial gain and robbery special circumstances by also considering them as
circumstances of the crime. Assuming the claim is not forfeited by defendant‘s
failure to request a clarifying instruction (see People v. Holt (1997) 15 Cal.4th
619, 699), the claim is meritless. As defendant acknowledges, we have repeatedly
rejected the argument that the instruction inherently encourages such double
counting. (People v. Montes (2014) 58 Cal.4th 809, 893; People v. Burney (2009)
47 Cal.4th 203, 261; People v. Lewis (2001) 25 Cal.4th 610, 669; People v. Ayala
(2000) 24 Cal.4th 243, 288-289.)
       Defendant asserts that the prosecutor‘s argument encouraged double counting
even if the trial court‘s instruction did not. He has forfeited this claim by failing to
raise it at trial. Ordinarily, a claim of prosecutorial misconduct is not cognizable on
appeal unless the defendant both objects to the misconduct and seeks an admonition
from the trial court to the jury regarding the claimed misconduct. (People v.
Gonzalez (2012) 54 Cal.4th 1234, 1275.) Defendant did neither.
       In any event, ―the prosecutor did not urge the jury to double count the
circumstances of the crime and the special circumstances.‖ (People v. Montes,
supra, 58 Cal.4th at p. 893.) True, he mentioned the facts underlying the special
circumstance findings when he discussed the aggravating circumstances of the
offense (§ 190.3, factor (a)), and he also asked the jury to consider the special
circumstances themselves as circumstances in aggravation. But he did not ask the
jury to double count the facts underlying the special circumstances. To the
contrary, he reminded the jury that weighing the factors in mitigation and
aggravation was ―not just a mere mechanical counting up of factors on each side
of an imaginary scale,‖ and that it should ―assign whatever moral or sympathetic
value you deem appropriate‖ to each factor. ―In light of the prosecutor‘s remarks
and the standard instructions given about the weighing of aggravating and
mitigating circumstances given in this case, we find no reasonable likelihood the
                                          81
jurors were misled or confused in the manner defendant suggests.‖ (People v.
Lewis, supra, 25 Cal.4th at p. 669.)

            6. Alleged Prosecutorial Misconduct
       Defendant contends the prosecutor committed six instances of misconduct
in his closing argument. The claims are both forfeited and meritless.
       ― ‗ ―A prosecutor who uses deceptive or reprehensible methods to persuade
the jury commits misconduct, and such actions require reversal under the federal
Constitution when they infect the trial with such ‗ ―unfairness as to make the
resulting conviction a denial of due process.‖ ‘ [Citations.] Under state law, a
prosecutor who uses such methods commits misconduct even when those actions
do not result in a fundamentally unfair trial.‖ [Citation.] ―In order to preserve a
claim of misconduct, a defendant must make a timely objection and request an
admonition; only if an admonition would not have cured the harm is the claim of
misconduct preserved for review.‖ ‘ ‖ (People v. Gonzalez, supra, 54 Cal.4th at
p. 1275.)
       Defendant failed to object to any of the statements he now asserts were
misconduct, thus forfeiting each claim on appeal.12 As explained below, the
claims are also without merit.




12     Defendant asks us to review his claims of prosecutorial misconduct under
the rubric of ineffective of assistance of counsel, asserting there was no tactical
reason for defense counsel not to have objected to these statements by the
prosecutor. Because we find either no misconduct, or, assuming misconduct, no
prejudice, counsel‘s failure to object was not ineffective assistance, nor was
defendant prejudiced by his failure to do so. (See In re Champion (2014) 58
Cal.4th 965, 1007-1008 [stating the standard for ineffective assistance of counsel
claims].)


                                         82
       Defendant contends the prosecutor committed misconduct by urging the
jury to double count certain evidence as both a circumstance of the crime and a
special circumstance. We rejected the claim in the previous section.
       Defendant contends the prosecutor appealed to the prejudices and passions
of the jury by contrasting the murder of defendant‘s victims with the legal
protections defendant had enjoyed during his trial at which his life was at stake.
― ‗It is, of course, improper to make arguments to the jury that give it the
impression that ―emotion may reign over reason,‖ and to present ―irrelevant
information or inflammatory rhetoric that diverts the jury‘s attention from its
proper role, or invites an irrational, purely subjective response.‖ ‘ ‖ (People v.
Linton (2013) 56 Cal.4th 1146, 1210.) But the prosecutor‘s remarks did not
appeal to the jury‘s passions or prejudice. He made them while addressing a
concern that ―[i]f it‘s wrong for the defendant to kill, why should the state have a
right to take a life[.]‖ He argued, ―there‘s a big difference between [the] murders
[defendant] perpetrated and imposing the death penalty after a fair trial with the
protection of each and every one of the defendant‘s constitutional rights, as well as
after a lengthy and exhaustive consideration by you of which penalty is
appropriate.‖ These remarks were designed to assuage any doubt jurors might
have that imposing the death penalty was the equivalent of committing murder,
not to claim that defendant deserved the death penalty because, in contrast to his
victims, he enjoyed the law‘s procedural protections. Thus understood, the
comments were not misconduct.
       Nor was it misconduct for the prosecutor to urge the jury that,
notwithstanding its right to consider mercy toward defendant, it should show him
no more mercy than he showed his victims. (People v. Collins, supra, 49 Cal.4th
at p. 230 [―It is not improper to urge the jury to show the defendant the same level
of mercy he showed the victim.‖].)
                                          83
       Defendant contends the prosecutor argued that the jury should reject
sympathy and remorse because in the guilt phase defendant denied committing the
murders, while in the penalty phase he presented mitigating evidence regarding his
upbringing.
       A prosecutor may not cite a defendant‘s claim of innocence as evidence
that the defendant lacks remorse. (People v. Fierro (1991) 1 Cal.4th 173, 243-
244, disapproved on other grounds in People v. Thomas (2012) 54 Cal.4th 908 and
Letner and Tobin, supra, 50 Cal.4th 99.) Here, in the course of urging the jury to
reject defendant‘s mitigating evidence that he suffered from fetal alcohol
syndrome, the prosecutor argued: ―What we have to do during the guilt phase of
this trial, what we are dealing with here is blame. We‘re dealing with the concept
of blame. In the guilt phase of the trial [defendant] took the stand and testified for
13 days and whatever, and indicated, ‗I didn‘t do the Sharley Ann German
killing,‘ indicated that Rex Sheffield did the other two. Blame. [¶] Guilt phase,
blaming Rex Sheffield. Penalty phase, I submit, blame again, finger of blame on
bad father, finger of blame on drinking mother, finger of blame on fetal alcohol
syndrome. All right. There‘s no remorse there. There‘s no accepting of
responsibility for terrible crimes. Not one but three.‖
       As noted, defendant‘s failure to object to the remark forfeits his claim on
appeal. Assuming for the sake of argument that the prosecutor‘s argument was
improper, it ―was brief and transitory‖ and ―did not impermissibly characterize
defendant‘s lack of remorse as an aggravating factor.‖ (People v. Fierro, supra, 1
Cal.4th at p. 244.) Any impropriety was therefore harmless.
       Next, defendant contends the prosecutor committed misconduct when he
asked the jury to return a death verdict to provide ―justice for the victims.‖ In
context, the prosecutor argued: ―What I am asking you to do is follow the law,
consider the evidence, and render a just verdict. What we‘re asking for is justice,
                                          84
justice for the victims, justice in this case. [¶] I submit to you that the appropriate
punishment is the death penalty and I hope that after you‘ve reviewed the evidence
and the law and applied the moral weight to all of the factors that you will find
that sympathy, mercy is not enough in this case to outweigh all of the other factors
in aggravation.‖ (Italics added.)
       According to defendant, the italicized portion of the argument was
impermissible because it was equivalent to the presentation of evidence that a
defendant‘s victims believe death is the appropriate verdict, which is
impermissible. (People v. Lancaster (2007) 41 Cal.4th 50, 97.) We disagree.
―The prosecutor has wide latitude to argue that, based on the evidence presented,
the death penalty is the proper punishment commensurate with defendant‘s
crime.‖ (People v. McKenzie (2012) 54 Cal.4th 1302, 1359, disapproved on other
grounds in People v. Scott, supra, 61 Cal.4th 363.) By asking for ―justice for the
victims,‖ the prosecutor did not suggest that the victims personally believed the
jury should return a death verdict; rather, he simply said that such a verdict would
bring them justice. We see nothing improper in this comment.
       Defendant contends the prosecutor improperly appealed to the jury‘s sense
of patriotism when he argued ―that a free society requires of its citizens, of its
jurors, vigilance, courage, the strength and resolve in making the hard decisions
that you‘re going to have to make.‖ Contrary to defendant‘s argument, nothing in
these remarks reminding the jurors of their weighty responsibility equated being a
good citizen with returning a verdict of death in this case. The claim is, in any
event, unavailing. (See People v. Brady (2010) 50 Cal.4th 547, 584 [prosecutor‘s
argument that ― ‗[t]his is a case where society cries out for the death penalty‘ ‖ and
the jurors were ― ‗the conscience of society‘ ‖ was not improper]; People v.
Johnson (1992) 3 Cal.4th 1183, 1246 [prosecutor‘s argument that jurors were
― ‗protectors of society from enemies within‘ ‖ was not improper].)
                                          85
       Finally, defendant contends the prosecutor committed misconduct by
arguing the jury could not consider any lingering doubt as to defendant‘s guilt in
determining penalty when he told the jury: ―You don‘t need to worry about
executing an innocent man.‖ Once again, placed in context, the remark belies the
meaning defendant ascribes to it. The prosecutor was addressing a concern raised
by some jurors during voir dire that they would not want to impose the death
penalty ―unless [they] knew the person was truly guilty.‖ The prosecutor then
noted, correctly, that ―Your guilty verdict showed that the evidence convinced you
beyond a reasonable doubt and to a moral certainty that the defendant . . . is guilty
of these crimes. He is not innocent at this point. You don‘t need to worry about
executing an innocent man.‖ Thus understood, there was nothing improper in the
remark, which was no more than a reasonable commentary on the state of the
evidence regarding defendant‘s guilt, and not a description of the legally
permissible mitigating factors.

              7. Constitutional Challenges to California’s Death Penalty Scheme
       To preserve them for future review, defendant briefly raises a number of
constitutional challenges to California‘s death penalty scheme which, he
acknowledges, we have previously and consistently rejected. We do so again,
concluding as follows:
       (1) The use of defendant‘s age as a sentencing factor (§ 190.3, factor (i)) is
not impermissibly vague under the Eighth Amendment. (People v. Ray (1996) 13
Cal.4th 313, 358.)
       (2) ―The homicide and death penalty statutes adequately narrow the class
of first degree murderers eligible for the death penalty. The statutory scheme is
not overbroad or arbitrary in this regard.‖ (People v. Contreras, supra, 58 Cal.4th
at p. 172.)


                                         86
       (3) ―Section 190.3, factor (a) (the circumstances of the capital crime) is not
so broad as to be applied in a wanton or freakish manner. [Citation.] Nor is factor
(b) of the same statute (the defendant‘s other violent criminal activity) irrational or
invalid insofar as it permits consideration of unadjudicated crimes.‖ (People v.
Contreras, supra, 58 Cal.4th at p. 172.) ―In particular, the jury need not make a
unanimous finding under section 190.3, factor (b) . . . .‖ (People v. Lewis and
Oliver (2006) 39 Cal.4th 970, 1068.) Nor were defendant‘s constitutional rights
violated by the use of the same jury that convicted him of first degree murder to
evaluate the evidence of prior unadjudicated crimes. (People v. Hawthorne (1992)
4 Cal.4th 43, 76-77, overruled on other grounds in People v. McKinnon (2011) 52
Cal.4th 610.)
       (4) The trial court did not violate defendant‘s constitutional rights by
failing to instruct the jury it must unanimously agree he committed the 1979
assault — introduced as a prior felony conviction under section 190.3, factor (c)
— notwithstanding the United States Supreme Court‘s decision in Ring v. Arizona
(2002) 536 U.S. 584. (See People v. Schmeck (2005) 37 Cal.4th 240, 304,
overruled on other grounds in People v. McKinnon, supra, 52 Cal.4th 610.)
Consideration by the jury of defendant‘s prior conviction did not place him twice
in jeopardy for the same offense. (People v. Bacigalupo (1991) 1 Cal.4th 103,
134-135, judg. vacated on other grounds and cause remanded sub nom Bacigalupo
v. California (1992) 506 U.S. 802, reaffd. (1998) 6 Cal.4th 457.)
       (5) ―Neither the cruel and unusual punishment clause of the Eighth
Amendment, nor the due process clause of the Fourteenth Amendment, requires
that jurors in a capital case be instructed that they must find beyond a reasonable
doubt that . . . aggravating circumstances outweigh mitigating circumstances . . . .
Indeed, trial courts ‗should not instruct the jury regarding any burden of proof or
persuasion at the penalty phase.‘ [Citation.] ‗ ―Unlike the guilt determination,
                                          87
‗the sentencing function is inherently moral and normative, not factual‘ [citation]
and, hence, not susceptible to a burden-of-proof quantification.‖ ‘ [Citations.]‖
(People v. Linton, supra, 56 Cal.4th at pp. 1215-1216.)
       (6) Instructions in the language of CALJIC No. 8.85 (given here) do not
―violate the Eighth and Fourteenth Amendments by failing to delete inapplicable
sentencing factors, delineate between aggravating and mitigating circumstances, or
specify a burden of proof either as to aggravation (except for other crimes
evidence) or the penalty decision.‖ (People v. Schmeck, supra, 37 Cal.4th at
p. 305.) ―Use in the sentencing factors of such adjectives as ‗extreme‘ . . . and
‗substantial‘ . . . does not create an improper barrier to consideration of mitigating
evidence.‖ (People v. Contreras, supra, 58 Cal.4th at p. 173.)
       (7) ―We have also repeatedly rejected defendant‘s claim that the death
penalty statute violates international norms in general or, specifically, the
International Covenant on Civil and Political Rights. [Citations.] Because
defendant fails to explain why our precedents on this issue should no longer be
followed, we reject this claim as well.‖ (People v. Capistrano, supra, 59 Cal.4th
at p. 881.)

       E. New Trial Motion
       Defendant contends the trial court erred under state law in denying his
motion for new trial (Pen. Code, § 1181) and that the denial also violated the due
process clause of the Fourteenth Amendment to the federal Constitution and his
Eighth Amendment right to a reliable guilt phase proceeding. We reject the claim.

              1. Background
       As previously explained, the defense to the Sharley Ann German murder
was that defendant was in Massachusetts on April 25, 1986, the day she was
killed. Not only did defendant and Karen Dolan testify to this effect, he called


                                          88
three friends from Massachusetts (Robert Thompson, Mark Weber, and Karen
Shaw), all of whom testified they saw defendant in Massachusetts at the end of
April 1986. Weber testified that defendant stayed overnight at his house the last
weekend of April, while Thompson testified he gave defendant a ride to Logan
Airport in Boston that weekend. Glenn Johnson testified he picked up defendant
from the San Francisco airport three or four weeks before Johnson‘s birthday,
which falls on May 27.
       The prosecutor sought through cross-examination to create doubt about the
accuracy of the defense witnesses‘ memories of when they saw defendant in April,
and presented rebuttal evidence designed to undermine their testimony. After
establishing defendant‘s pattern of charging long distance calls he made while on
the East Coast to his San Jose telephone number, the prosecution presented
evidence that there were no such charges after April 10, 1986, 15 days before
Sharley Ann was murdered. Karen O‘Neal, who had been married to defendant‘s
friend John Mercuri, testified that defendant threatened to kill her and members of
her family if she laid claim to any marital assets during the divorce proceedings.
She testified she called him in California on April 14, 1986, and told him she
would sign over everything to Mercuri. Her phone records were introduced to
show the call was made on that date.
       Defendant brought a posttrial motion for new trial based on newly
discovered evidence relating to the killing of Sharley Ann. (§ 1181, subd. (8).)
Included in the motion was an affidavit by one Louis Lombardi, a friend of
defendant‘s. According to the motion, Lombardi had been prepared to testify that
he and defendant were supposed to go to a San Francisco Giants baseball game on
April 29, 1986, but defendant was out of town on that date. Just before trial,
Lombardi told defense counsel he was no longer sure of the date and believed that
defendant had been with him at the game. The defense then decided against
                                         89
calling him to testify. After trial, Lombardi recanted his statement that defendant
was with him at the baseball game, stating he lied because he had not wanted to
testify.
           At the hearing on the new trial motion, defense counsel represented that the
defense had located a second witness, Richard Lillis, defendant‘s high school
hockey coach, who was prepared to testify he saw defendant at a restaurant in
Massachusetts on April 20, 1986, which was Lillis‘s birthday. (Lillis did not
submit a declaration in support of the motion.) Finally, defense counsel
represented that his investigator had uncovered evidence that tended to impeach
Karen O‘Neal‘s testimony that she called defendant on April 14 and agreed not to
seek any of the marital assets in her divorce with John Mercuri. Counsel stated
that on April 19, O‘Neal submitted a statement of assets and liabilities in the
divorce proceeding. He commented that it ―would seem strange if she was
threatened on [April] 14th, she wanted to settle the case, she was setting forth all
her assets in litigation posed just some days later.‖
           The trial court denied the motion. The court found ―the evidence
overwhelming that at the time of the Sharley Ann German murder the defendant
was not back east. The credibility of Mr. Lombardi is extremely questionable
based on him changing his stories. The court does not find this to be newly
discovered evidence, just an affirmation of one of Mr. Lombardi‘s versions of
what his testimony may have been.‖ The court was skeptical that the other
evidence — presumably Lillis‘s proposed testimony and the purported
impeachment evidence relating to O‘Neal‘s testimony — constituted newly
discovered evidence for purposes of the statute. That aside, it concluded: ―It‘s
extremely doubtful whether or not that [evidence] would have in any way made
any difference in the eventual verdict. If they had testified, or Mr. Lombardi had
testified, in accordance with the affidavits, then, everything considered, no
                                            90
different result would have taken place, especially in light of the other evidence
that was presented, especially the phone records.‖

           2. Discussion
       ― ‗To grant a new trial on the basis of newly discovered evidence, the
evidence must make a different result probable on retrial.‘ [Citation.] ‗[T]he trial
court has broad discretion in ruling on a new trial motion . . . ,‘ and its ‗ruling will
be disturbed only for clear abuse of that discretion.‘ [Citation.] In addition, ‗[w]e
accept the trial court‘s credibility determinations and findings on questions of
historical fact if supported by substantial evidence.‘ [Citation.]‖ (Verdugo, supra,
50 Cal.4th at p. 308.)
       ― ‗In ruling on a motion for new trial based on newly discovered evidence,
the trial court considers the following factors: ― ‗1. That the evidence, and not
merely its materiality, be newly discovered; 2. That the evidence be not
cumulative merely; 3. That it be such as to render a different result probable on a
retrial of the cause; 4. That the party could not with reasonable diligence have
discovered and produced it at the trial; and 5. That these facts be shown by the
best evidence of which the case admits.‘ ‖ ‘ ‖ (People v. Howard (2010) 51
Cal.4th 15, 43.) Here, the trial court did not abuse its discretion when, applying
these factors, it denied defendant‘s new trial motion.
       We defer to the trial court‘s finding that, based on his affidavit, Lombardi
would not have been a credible witness. Not only had he twice changed his story
of whether defendant had or had not accompanied him to a baseball game but, as
the prosecutor observed at the hearing, he also would have been subject to
impeachment by his failure to have testified about the baseball game at the
preliminary hearing.




                                           91
       The defense‘s description of Lillis‘s proposed testimony was based entirely
upon defense counsel‘s representation of what he would say, not on a declaration
by Lillis himself. This, surely, is not the ― ‗ ― ‗best evidence of which the case
admits.‘ ‖ ‘ ‖ (People v. Howard, supra, 51 Cal.4th at p. 43.) In any event,
Lillis‘s testimony would have been, at most, cumulative to the testimony of
Thompson, Weber, and Shaw, all of whom claimed to have seen and been with
defendant in Massachusetts at the end of April 1986. Defendant appears to be
arguing that, unlike their testimony, Lillis‘s would have been unassailable because
the date he remembered seeing defendant was his birthday. But any testimony
involving a witness‘s memory of events that occurred years earlier is susceptible
to impeachment. Lillis would have been no different on that score than
defendant‘s other alibi witnesses who, after all, testified not just that they had
casually seen him but that he had visited with them and even stayed at the home of
one of them.
       Finally, we agree with the trial court that the evidence that would
purportedly have impeached Karen O‘Neal‘s testimony hardly seems so
significant that it would have made a different result probable on retrial,
particularly in light of the telephone records showing that defendant did not charge
any long distance calls to his San Jose telephone number within two weeks of
Sharley Ann‘s murder. Accordingly, we find no abuse of discretion in the trial
court‘s denial of defendant‘s new trial motion.

       F. Cumulative Error
       Defendant contends the cumulative effect of prejudice flowing from his
allegations of error requires reversal. As to most of his allegations, we have
concluded there was no error. In those instances in which we found or assumed
error occurred, we have concluded any error was not prejudicial. Even when


                                          92
considered altogether, those actual or assumed errors did not deprive defendant of
a fair trial.
                                    CONCLUSION
        The judgment is affirmed.


                                                KRUGER, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.




                                        93
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. O‘Malley
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S024046
Date Filed: February 18, 2016
__________________________________________________________________________________

Court: Superior
County: Santa Clara
Judge: Hugh F. Mullin III

__________________________________________________________________________________

Counsel:

Cliff Gardner, under appointment by the Supreme Court, and Lazuli Whitt for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gerald A. Engler and Ronald A. Matthias, Assistant Attorneys General, Glenn R. Pruden
and Nanette Winaker, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Cliff Gardner
Law Office of Cliff Gardner
1448 San Pablo Avenue
Berkeley, CA 94702
(510) 524-1093

Nanette Winaker
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5934
