Filed 6/28/18




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S138474
           v.                        )
                                     )
ERIC ANDERSON,                       )
                                     )                      San Diego County
           Defendant and Appellant.  )                   Super. Ct. No. SCE230405
____________________________________)


        A jury convicted defendant, Eric Anderson, of the first degree murder of
Stephen Brucker under the special circumstances of murder in the commission or
attempted commission of robbery and burglary. It also convicted him of
conspiracy to commit robbery and burglary and two counts of residential burglary.
It found defendant personally discharged a firearm during the commission of the
murder and conspiracy. After defendant waived a jury, the court convicted him of
being a felon in possession of a firearm. It also found true that he had suffered
two prior serious felony convictions and a third strike conviction, and that he had
served one prior prison term. After a penalty trial, the jury returned a verdict of
death. The court denied the automatic motion to modify the verdict and imposed a
judgment of death. It also imposed a prison sentence on the other counts and
enhancement allegations. This appeal is automatic.
        We modify the judgment by striking a one-year enhancement the trial court
imposed for the prior prison term and, as modified, affirm the judgment.



                                          1
                                  I. THE FACTS

      A. Guilt Phase

           1. Overview
      Defendant and others conspired to commit burglary and robbery at the
home of Stephen Brucker. On April 14, 2003, when the conspirators arrived at the
home, Brucker confronted them at the door. Defendant shot Brucker in the chest,
mortally wounding him, after which the conspirators fled. Previously, defendant
had committed two other residential burglaries.1

           2. Prosecution Evidence

               a. The Completed Burglaries
      On January 8, 2003, the home of Arlene Bell in La Mesa was burglarized.
The home was ransacked, and many items were taken, including a carved jewelry
box with a “Made in Poland” label and some silver coins. Police later found the
jewelry box and silver coins in defendant’s residence in Poway. The items were
found in the bedroom of defendant’s housemate, James Stevens, to which
defendant had access. Inside the jewelry box were credit cards in defendant’s
name. Later, a cell phone not belonging to the Bell family was discovered in their
house. It had apparently fallen under a load of firewood. Defendant was the
subscriber of the cell phone’s telephone number.
      On April 9, 2003, the home of John and Pamela Dolan in Alpine was
burglarized. The home was ransacked, and various items were missing, including
a .22-caliber handgun and a ring containing the inscription “Jenny.” Defendant

1      Originally, there were three codefendants: Brandon Handshoe, Apollo
Huhn, and Randy Lee. None are involved in this appeal. Handshoe pleaded guilty
to reduced charges and agreed to testify. Lee was tried with defendant and
acquitted of all charges. Huhn was tried simultaneously but with a different jury.
He was convicted of murder with special circumstances and conspiracy. His
judgment was later reversed on appeal.

                                        2
later gave the ring to his girlfriend’s mother, who turned it over to law
enforcement. The stolen handgun was found under the seat of the Ford truck
defendant was driving when he was arrested in Oregon on May 16, 2003.
       Matthew Hansen, a San Diego police officer, lived across the street from
the Dolan home. The day of the burglary, he heard a Ford Bronco that was “kind
of loud” drive down the Dolan driveway. When the Bronco emerged from the
driveway, Hansen paid particular attention. He “could distinctly hear it because it
was loud sounding leaving his driveway.” The next day, while driving in the area,
Hansen observed the same Bronco, with the same loud sound. It “sound[ed] like
there was some sort of exhaust problem on the vehicle.” Defendant was the
driver. Hansen wrote down the Bronco’s license number. The vehicle had been
purchased by, and was registered to, defendant. Police sometimes saw it at
defendant’s residence.

               b. The Brucker Crimes
       Stephen Brucker lived with his family in an unincorporated area of El
Cajon. Randy Lee was familiar with the Brucker home and knew that the family
had a safe. Zachary Paulson, Brandon Handshoe, and Valerie Peretti (Apollo
Huhn’s girlfriend, who was 15 years old and pregnant in April 2003) all testified
that, at various times beginning in 2002, Lee suggested to Handshoe and Huhn
that they burglarize the Brucker house and steal the safe, which, Lee said,
contained $1 million (according to Paulson) or $2 million (according to Peretti).
       In early April 2003, defendant, Handshoe, and Huhn gathered at
Handshoe’s mobilehome in the Rios Canyon area of El Cajon and discussed
burglarizing the Brucker home to steal the safe. Paulson testified he was present
at the mobilehome in the first week in April when they discussed a robbery. Huhn
said he could “get into the safe.” Defendant said that “he could hold the guy



                                          3
hostage” and would “pistol whip him” if necessary. Handshoe said he would
“watch out.”
         Peretti testified that on April 14, 2003, she went to Handshoe’s
mobilehome around 12:30 p.m. Defendant, Huhn, and Handshoe were present.
She sensed that the others did not want her to be there. But then Handshoe told
defendant that it was “okay” because she was Huhn’s girlfriend. Handshoe told
her they were going to rob someone. She observed defendant “messing with some
guns.” She also saw him with a bag containing “disguises.” He had some kind of
a “hair piece” that was “salt and pepper” colored, and thick glasses. The three
talked “about how they were going to do this.” Defendant asked for a piece of
paper, then started drawing what Peretti described as “diagrams . . . of the house
and how he was going to do it.” Defendant did most of the talking. Defendant
“said how they were going to go and do it, and what cars were supposed to be
there, and how the doorway or something was set up.” He told Handshoe “that he
was going to stand over him while Brandon [i.e., Handshoe] could go in and get
the safe or whatever he wanted to do.” Defendant told Huhn to “keep watch.”
Peretti testified that defendant “seemed like he had done this before,” but
Handshoe and Huhn were nervous and scared.
         Defendant, Huhn, and Handshoe left the mobilehome in defendant’s
Bronco, with defendant driving. Before they left, defendant pulled out a
semiautomatic firearm from his waistband, cocked it, said, “ ‘Let’s do this fast,’ ”
then put the gun back in his waistband. He provided gloves to Handshoe and
Apollo from his bag. Handshoe also had a firearm. They were gone for about half
an hour. Huhn returned first, appearing scared and upset. Handshoe returned
later.
         Peretti admitted that when she first talked to her father and the police about
the crime, she did not tell them that Huhn had gone with the others. She said she

                                            4
did not tell them about Huhn’s involvement “[b]ecause I loved him. He’s my
kid’s father.” She received immunity for her testimony.
      Handshoe testified that on April 14, 2003, he was at his mobilehome with
Peretti, Huhn, and defendant. Defendant had a black .45-caliber firearm, and he
was “jacking rounds out of it.” At one point, Handshoe gave defendant a piece of
paper on which defendant drew a map. Defendant said something to the effect of,
“We’re going to do this right.” Defendant supplied Handshoe with a gun, which
Handshoe kept in his pocket and did not use.
      Defendant, Huhn, and Handshoe then went to the Brucker home to
burglarize it. Defendant drove the three of them in his Bronco. When they
arrived, Handshoe remained in the car on the driveway acting as a “lookout.” He
had a walkie-talkie that defendant had supplied. Defendant, his firearm tucked
under his arm, and Huhn walked towards the front door and out of Handshoe’s
line of vision. Defendant was wearing what Handshoe said was a “disguise”—a
baseball cap and a wig. They were gone at most two minutes. Then Handshoe
heard a gunshot followed by a scream. Defendant and Huhn ran back to the car
and they “took off,” with defendant driving. Defendant “said something along the
lines of things went wrong and he shot the guy.”
      While they were driving, Handshoe asked to get out of the car. Defendant
dropped him off, telling Handshoe that “if we were to say anything, we would be
next.” Handshoe went to a friend’s house then returned to his home. Peretti and
Huhn were there when he returned.
      After being shot, Brucker called 911. He told the dispatcher that two White
males knocked on the door, and then one of them shot him in the heart. San Diego
County Deputy Sheriff Karl Miller was the first law enforcement officer to
respond. The front door of the Brucker house was open but the screen door was
closed. Deputy Miller heard someone inside say, “ ‘I’m in here.’ ” He went

                                        5
inside and observed Brucker on the telephone. Brucker had blood “all down to his
waist area.” He was conscious but in a lot of pain.
       Deputy Miller asked what happened. Brucker responded that he had heard
somebody at the front door. He went to the door and saw two men standing there.
Brucker “told them to leave the property or, in his words, ‘Get the fuck off my
property.’ ” After the men said something in reply, Brucker repeated to them what
he had said. Then, Brucker reported, one of the men said, “Fuck you,” and shot
him in the chest. He described the shooter as White, in his “30’s,” with a “salt-
and-pepper beard,” and wearing a black and white baseball cap. Of the other man,
Brucker said only that he was “a 20 year old.” (Defendant was 29 years old at the
time, Huhn was 22.)
       Brucker was rushed to the hospital but soon died of a single gunshot wound
to his torso. A .45-caliber shell casing was found near the front door of the house.
       Several witnesses who lived in the area testified that around the time of the
shooting, they observed a Bronco generally described as similar to defendant’s
either emerging from the Brucker house or nearby. One witness said the vehicle
was going fast, and the driver was wearing a “ball cap.” Another witness said the
vehicle went “zooming” by, and it was “very loud.” Another witness said the
vehicle had a loud and distinctive sound. One witness thought the Bronco she saw
was lighter in color than defendant’s. Previously, the same witness had told an
investigator that the driver was wearing a baseball cap and sunglasses and had a
mustache.
       Travis Northcutt, a roommate of defendant’s along with James Stevens,
told Steven Baker, an investigator with the district attorney’s office, that defendant
had told him “that something big was going to happen, a big hit that involved a
safe.” Northcutt also told the investigator that when he, Stevens, and defendant
were watching a newscast of the Brucker murder, defendant told him to “ ‘keep

                                          6
his fucking mouth shut,’ that he was only the third person to know that [defendant]
was involved and if he didn’t keep his mouth shut, he would be next.” Northcutt
also said he had seen defendant wearing a “goofy hairpiece.” When called to
testify, Northcutt generally denied the truth of these statements.
       Charlene Hause, who had been defendant’s girlfriend, testified that he
normally drove a Bronco. But the last time she saw him, later in April 2003, he
drove a white truck. He told her he was using that truck “because they knew his
Bronco.” He had shaved off his mustache and said he was leaving the San Diego
area because of a parole violation.
       Defendant’s parole agent testified that on April 30, 2003, when defendant
was at large, and after stolen property had been found in James Stevens’s and
defendant’s residence, resulting in Stevens being placed into custody, defendant
left a message on the voicemail of Stevens’s parole agent’s saying, “ ‘It’s all
fucking mine. Come and get me.’ ”
       After the shooting, defendant went to Oregon. On May 16, 2003, Oregon
police stopped him while driving a white truck in Harney County. He had no
identification and said his name was James Stevens. The truck contained
materials for making false identification cards, a handcuff key, and the handgun
stolen from the Dolan home. Defendant was arrested and booked into the local
county jail under the name of James Stevens. His true identity was learned the
next day. A further search of the truck revealed a book entitled, “Counterfeit I.D.
Made Easy,” with several passages highlighted in pink.
       Three witnesses who had shared a cell with defendant in the Oregon county
jail after his arrest testified that he talked to them about his plans to escape, which
included the possibility of violence against the guards. He showed each of them a
handcuff key in his possession. One of the cellmates drew for defendant a sketch
of the nearby town of Burns and the jail’s location. A search of defendant’s cell in

                                           7
July 2003 uncovered the sketch, a bent piece of plastic, three razor blades in a
deck of cards, and two handcuff keys, one on defendant’s person.
       In December 2003, Zachary Paulson, then an inmate in the San Diego
County jail, where defendant was also incarcerated, testified against defendant at
the preliminary hearing in this case. On February 14, 2005, several inmates,
including defendant, assaulted Paulson in jail, inflicting serious injuries.
       The prosecution also presented telephone records and testimony showing
the existence, although not the content, of telephone calls among the various
participants during relevant times.

           3. Defense Evidence
       Defendant presented evidence attempting to raise a reasonable doubt as to
his guilt, including evidence challenging the credibility of prosecution witnesses,
especially Handshoe, Paulson, and Peretti; evidence that he often drove a white
truck; evidence regarding his appearance at different times; and evidence that the
Bronco seen in the area of the crime might not have been his.
       Jeffrey Gardner, a construction contractor, testified that he employed
defendant the day after the Brucker murder. Defendant arrived at the jobsite
before 7:30 a.m. that morning. The white truck, but not the Bronco, was there.
Defendant was calm and appeared his usual self according to Gardner.
       James Stevens testified that sometimes he drove defendant’s Bronco and
sometimes defendant drove his white truck. The day of the Brucker murder,
defendant drove Stevens’s truck. Stevens saw defendant that evening and noticed
nothing unusual about his behavior. The two went to work together the next
morning. Stevens denied that he had ever been with Travis Northcutt and
defendant watching coverage of the Brucker murder or that he heard defendant tell
someone to “shut the fuck up.”



                                           8
       B. Penalty Phase

           1. Prosecution Evidence
       The prosecution presented evidence that in July 1995, while driving a truck,
defendant fired around 12 shots from a .22-caliber firearm at the driver of a car
that passed in front of him. He told his passenger something along the lines of,
“That fucking bitch, who does she think she is?” Defendant later told a cellmate
in Oregon “that somebody in the white car had just aggravated him and he
unloaded a clip at the car.”
       In March 1995, defendant was convicted of one count of residential
burglary and one count of possession of a stolen vehicle. In July 1995, he was
convicted of two counts of residential burglary.

           2. Defense Evidence
       Paul Mason testified that in 2003, he was a cellmate of Apollo Huhn. Huhn
told Mason that he went to the door of the Brucker home with “Brandon,” and
Huhn was the one who shot Brucker.
       Other than Mason’s testimony, defendant stated that he did not want his
attorneys to present evidence in mitigation. However, the court permitted him to
make a statement to the jury. He told the jury the following:
       “I’ve given a lot of thought to what I want to say to you guys, but, you
know, start off is nine pages. I’m down to one page, because, basically, I think
anything I say to you would be a wasted breath. I don’t think you’ll pay attention
to anything I got to say. In one ear, out the other. But I feel compelled to tell you
two things: One is that I don’t give a shit. Give me the death penalty. If you
believe I’m guilty, kill me. The second is: I’m innocent. Your verdict was
wrong, and I hope you all can’t sleep with yourselves. I don’t know what you
expected from my attorneys. This ain’t Perry Mason or Matlock. No one is going



                                          9
to run into a courtroom saying, ‘I did it.’ What the hell did you expect? Did you
not listen to the witnesses? Not a single piece of evidence.”
       At this point, the court told defendant that this was his chance to address
mitigating factors, not to admonish the jurors. Defendant then completed his
statement: “I really despise all of you and your decision. I don’t think you were
reasonable or fair. Thanks for nothing.”
                                   II. DISCUSSION

       A. Issues Regarding Guilt

          1. Denial of Motions to Sever the Defendants
       Defendant moved to sever his trial from that of the codefendants,
Handshoe, Huhn, and Lee. The court denied the motion, but to protect defendant,
it ordered that Huhn be tried in front of a different jury than defendant and Lee.
Later, defendant joined codefendant Lee’s separate severance motion. The court
denied that motion also. Defendant contends the court erred both times.
       “The applicable law is settled. The Legislature has expressed a preference
for joint trials; therefore, two or more defendants jointly charged with crimes must
be tried together unless the court orders separate trials. (Pen. Code, § 1098;
People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 378.) Joint trials
promote efficiency and help avoid inconsistent verdicts. (Zafiro v. United States
(1993) 506 U.S. 534, 537; Bryant, Smith and Wheeler, at pp. 378-379.)
‘[I]mportant concerns of public policy are served if a single jury is given a full and
fair overview of the defendants’ joint conduct and the assertions they make to
defend against [the] ensuing charges.’ (Bryant, Smith and Wheeler, at p. 379.)
The court has discretion to order separate trials if there is an incriminating
confession, prejudicial association, likely confusion due to evidence on multiple
counts, conflicting defenses, or the possibility that a codefendant might provide



                                           10
exonerating testimony at a separate trial. (Ibid.) Prejudicial association might
exist if ‘the characteristics or culpability of one or more defendants [is] such that
the jury will find the remaining defendants guilty simply because of their
association with a reprehensible person, rather than assessing each defendant’s
individual guilt of the crimes at issue.’ (Id. at p. 383.) We review the court’s
denial of severance for abuse of discretion based on the facts as of the time of the
ruling. If the court properly denied severance at the time, the reviewing court may
reverse a judgment only if it finds that the joint trial caused gross unfairness that
denied due process. (Id. at p. 379.)” (People v. Sánchez (2016) 63 Cal.4th 411,
463-464.)
       We see no abuse of discretion. “Defendant was charged with all of the
crimes, making this a ‘classic case for a joint trial.’ (People v. Bryant, Smith and
Wheeler, supra, 60 Cal.4th at p. 379.)” (People v. Sánchez, supra, 63 Cal.4th at p.
464.) Virtually no reason existed to try the defendants separately. Because the
court ordered a separate jury for Huhn, no incriminating confession was admitted
against defendant. The court had discretion to conclude defendant would not be
prejudiced by association with the codefendants, whom the evidence showed were
less culpable than defendant. Because defendant was charged with all counts,
there was no possibility of confusion due to evidence on multiple counts. No
indication exists that any codefendant would have provided exonerating testimony
at a separate trial.
       Defendant argues that Lee’s defense—that Lee was not one of the
conspirators—conflicted with his defense. He notes that the trial court granted a
motion for acquittal of the conspiracy charge that Lee made, and claims the ruling
was erroneous and prejudiced him. We need not decide whether the trial court
correctly acquitted Lee of the conspiracy charge. Lee’s defense was different than
defendant’s, but not antagonistic in a way that prejudiced him. Contrary to

                                          11
defendant’s argument, the jury’s acceptance of Lee’s defense would not preclude
it from acquitting defendant. The jury could easily judge Lee’s guilt and
defendant’s guilt separately.
        Handshoe later pleaded guilty and testified against defendant under
circumstances discussed in part II.A.5., post. Defendant argues that Handshoe’s
transition from a codefendant to a prosecution witness also made the denial of the
severance motions erroneous. We disagree. The possibility that a codefendant
might later plead guilty—a possibility that always exists when multiple defendants
are charged together—is not one of the factors a court must consider in ruling on a
severance motion. If a codefendant pleads guilty in a way that harms another
defendant, that defendant may make appropriate motions at that time, and an
appellate court may review any resulting rulings. Indeed, defendant does raise on
appeal various arguments regarding Handshoe’s change of plea. We consider
those arguments below. (Pt. II.A.5., post.)
        Denial of severance did not violate any federal constitutional right. As the
United States Supreme Court recently explained, trying defendants together, and
allowing the jury to decide based on all the evidence, can increase the reliability of
the resultant verdict. “Joint proceedings are not only permissible but are often
preferable when the joined defendants’ criminal conduct arises out of a single
chain of events. Joint trial may enable a jury ‘to arrive more reliably at its
conclusions regarding the guilt or innocence of a particular defendant . . . .’ ”
(Kansas v. Carr (2016) 577 U.S. __, __ [136 S.Ct. 633, 645]; see People v.
Sánchez, supra, 63 Cal.4th at pp. 465-466.)
        “In short, the joint trial was not unfair to defendant at all, much less grossly
unfair. The court acted within its discretion in implementing the legislative
preference for conducting joint trials.” (People v. Sánchez, supra, 63 Cal.4th at p.
466.)

                                           12
             2. Denial of Motion to Sever Counts
         Defendant moved to sever the burglary counts from the counts concerning
the Brucker crimes. The court denied the motion. Defendant contends the court
erred.
         The law prefers trying charged offenses together because doing so
ordinarily promotes efficiency. (People v. O’Malley (2016) 62 Cal.4th 944, 967.)
Penal Code section 954 embodies this preference. That section provides as
relevant: “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 . . . .” (Pen. Code,
§ 954.) “Offenses ‘committed at different times and places against different
victims are nevertheless “connected together in their commission” when they are
. . . linked by a “ ‘common element of substantial importance.’ ” ’ ” (People v.
Mendoza (2000) 24 Cal.4th 130, 160.) The two burglaries and the Brucker crimes
“all involved the intent to illegally obtain property,” which constitutes a common
element of substantial importance that makes joinder proper. (Ibid.; see Alcala v.
Superior Court (2008) 43 Cal.4th 1205, 1219.)
         Even if, as here, joinder is proper, the court may order the counts tried
separately. “[T]he court in which a case is triable, in the interests of justice and
for good cause shown, may in its discretion order that the 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.” (Pen. Code, § 954.)
“When, as here, the statutory requirements for joinder are met, a defendant must
make a clear showing of prejudice to establish that the trial court abused its
discretion in denying the defendant’s severance motion.” (People v. Mendoza,
supra, 24 Cal.4th at p. 160.) “In determining whether a trial court’s refusal to
sever charges amounts to an abuse of discretion, we consider four factors: (1)


                                           13
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. O’Malley, supra, 62 Cal.4th at
p. 968.)
       We see no abuse of discretion. The trial court carefully considered each of
these factors when it exercised its discretion. Cross-admissibility is not “a
precondition to joinder of charges.” (People v. O’Malley, supra, 62 Cal.4th at p.
968, citing Pen. Code, § 954.1.) But, as the trial court found, it exists here to a
“limited” extent. The court did not find cross-admissibility to show identity. “The
greatest degree of similarity is required for evidence of uncharged misconduct to
be relevant to prove identity. For identity to be established, the uncharged
misconduct and the charged offense must share common features that are
sufficiently distinctive so as to support the inference that the same person
committed both acts.” (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) The court
did not find the burglaries sufficiently distinctive to show identity under this
standard.
       But the court correctly found that the three incidents (the Bell burglary, the
Dolan burglary, and the Brucker crimes) were mutually relevant on the question of
intent. The least degree of similarity is required to prove intent. All that is needed
is for the crimes to be sufficiently similar to support an inference that the
defendant probably had the same intent each time. (People v. Soper (2009) 45
Cal.4th 759, 776.) Here, evidence that defendant stole property during the
daytime Bell and Dolan burglaries supported an inference that he had a similar
intent at the Brucker home. The crimes were also relevant to show a common plan

                                          14
or scheme. “To establish the existence of a common plan or scheme, ‘the common
features must indicate the existence of a plan rather than a series of similar
spontaneous acts, but the plan thus revealed need not be distinctive or unusual.’ ”
(People v. Avila (2006) 38 Cal.4th 491, 586; accord, People v. Capistrano (2014)
59 Cal.4th 830, 849.) The jury could reasonably conclude that the three incidents
were not merely a series of spontaneous acts but part of a plan to steal property
repeatedly during daytime burglaries. Additionally, evidence that defendant used
his Bronco in the Dolan burglary was relevant to show that the Bronco the
witnesses saw at the time of the Brucker crimes was likely defendant’s. It may
have been mere coincidence that a Bronco was used in the two burglaries five days
apart, but, together with the rest of the evidence, the jury could reasonably
conclude otherwise.
       The Bell and Dolan burglaries were not likely to inflame the jury regarding
the Brucker crimes. Although the Brucker crimes were far more serious than the
other burglaries, given the strength of the evidence regarding those burglaries, this
circumstance did not compel severance.
       This is not a matter of joining a weak case with a stronger one. The
evidence that defendant participated in all three incidents was strong. He left his
cell phone in the Bell home and property from that burglary was found in his
home, albeit in Stevens’s bedroom. Credit cards in defendant’s name were in the
stolen jewelry box. Additionally, defendant later left a voicemail message saying
the items were his and challenging the authorities to “come and get” him.
Defendant’s Bronco was involved in the Dolan burglary, he gave a ring stolen in
that burglary to his girlfriend’s mother, and he possessed a gun stolen in that
burglary when arrested in Oregon. Defendant’s participation in the Brucker
crimes was shown by strong evidence, including the testimony of Zachary
Paulson, Brandon Handshoe, and Valerie Peretti; the testimony of various

                                          15
witnesses who saw a Bronco generally similar to defendant’s in the area of the
Brucker crimes; and Brucker’s description of the shooter, which generally
matched defendant and made clear that the shooter was the older of the two who
came to the door. Defendant was the older man by far.
       This is a capital case. But that circumstance merely means the court had to
carefully exercise its discretion to avoid prejudicing defendant. It does not
automatically require severance. “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.” (People v. Ochoa (2001) 26 Cal.4th 398, 423;
accord, People v. O’Malley, supra, 62 Cal.4th at p. 969.) The court acted
reasonably in finding that consolidation was not likely to affect the verdict.
       For these reasons, we also reject defendant’s argument that joinder was so
unfair as to violate his federal constitutional rights. The trial court properly
permitted the counts to be tried together.

           3. Defendant’s Pitchess Motion
       Before trial, defendant made a Pitchess motion (Pitchess v. Superior Court
(1974) 11 Cal.3d 531) to discover past complaints concerning Investigator Steven
Baker that related to dishonesty or other misconduct. The court found defendant
showed good cause for discovery and ordered an in camera review with the
custodian of records in the absence of the prosecutor and defense. After
conducting the hearing, in open court, the court announced to the parties, “The
view has been conducted. No documents are being ordered released.”
       “When a defendant shows good cause for the discovery of information in
an officer’s personnel records, the trial court must examine the records in camera
to determine if any information should be disclosed. . . . Pitchess rulings are
reviewed for abuse of discretion.” (People v. Winbush (2017) 2 Cal.5th 402, 424.)



                                          16
“[T]o protect the officer’s privacy, the examination of documents and questioning
of the custodian should be done in camera . . . , and the transcript of the in camera
hearing and all copies of the documents should be sealed.” (People v. Mooc
(2001) 26 Cal.4th 1216, 1229.) The trial court did this. Defendant properly asks
us to review the sealed record of the in camera hearing to determine whether the
court erroneously failed to provide discovery that he should have received. (Id. at
pp. 1229-1230.)
       We have done so. The trial court did not abuse its discretion. It questioned
the custodian of records carefully to ensure that she had conducted a thorough
search and brought to court all relevant records. It then correctly found there were
no materials to disclose.

           4. Admission of Evidence of the Events in Oregon
       Before trial, defendant moved to exclude evidence of his flight to Oregon
and his plans to escape from custody. After a hearing, the court denied the
motion. Citing People v. Pensinger (1991) 52 Cal.3d 1210 and People v. Remiro
(1979) 89 Cal.App.3d 809, it found the proffered evidence probative to show
consciousness of guilt and not unduly prejudicial under Evidence Code
section 352. Defendant contends the court erred.
       Evidence showing consciousness of guilt, such as flight or escaping from
jail, is generally admissible within the trial court’s discretion. The court’s ruling is
reviewed for abuse of discretion. (People v. Jones (2017) 3 Cal.5th 583, 609-610;
People v. Carrasco (2014) 59 Cal.4th 924, 962-963.) Defendant argues the court
abused its discretion because the consciousness of guilt might have been unrelated
to the Brucker crimes. He notes, for example, that he told Charlene Hause that he
was leaving because of a parole violation. Therefore, he argues, the evidence does




                                          17
not necessarily show consciousness of guilt of the charged crimes. We see no
abuse of discretion.
       As indicated in the cases the trial court cited, the existence of alternate
explanations for the defendant’s behavior does not necessarily defeat the court’s
discretion to admit consciousness-of-guilt evidence. (People v. Pensinger, supra,
52 Cal.3d at pp. 1243-1244 [instruction on flight as showing consciousness of
guilt permissible even though there was a possible innocent explanation for his
actions]; People v. Remiro, supra, 89 Cal.App.3d at p. 845 [evidence of an escape
attempt admissible despite the possibility the consciousness of guilt might be
ascribed to a different crime].) As stated in one of the cases cited in Remiro, “the
existence of explanations—other than consciousness of guilt of the crime
charged—for conduct which may be interpreted as flight is relevant to the weight
of the evidence showing flight, but not to its admissibility . . . .” (People v. Perry
(1972) 7 Cal.3d 756, 773-774.)
       Defendant told Hause he was driving the white truck “because they knew
his Bronco,” which supports the inference that he drove that truck to Oregon due
to the murder in which he had used the Bronco. The jury could readily find that he
mentioned a parole violation to Hause, rather than the murder, for the simple
reason that he did not want to tell her he was implicated in the murder. Defendant
was entitled to argue, or present evidence, that he fled to Oregon and planned to
escape due to his parole status or any other reason. But, in light of all the
evidence, the jury could reasonably infer he drove the white truck and went to
Oregon to avoid the murder charge, which shows consciousness of guilt.
       Defendant argues further that even if the evidence of his flight to Oregon
was admissible, the court abused its discretion is admitting the details of his
escape plans and the items found in his truck, on his person, and in his cell. But
the evidence was all part of defendant’s conduct showing a consciousness of guilt.

                                          18
The evidence was admissible “to permit the jury to assess the effect and value of
the evidence on the issue of consciousness of guilt.” (People v. Remiro, supra, 89
Cal.App.3d at p. 845.) The exact nature of defendant’s actions was highly
relevant to whether he merely acted because of a parole violation or because of
something more serious, such as murder. Unlike the situation in People v.
Carrasco, supra, 59 Cal.4th at page 963, defendant’s plans to escape included the
possibility of violence against the guards. But under the circumstances, the court
had discretion to admit all the evidence.
       Defendant argues that the alleged error was prejudicial regarding guilt and,
especially, regarding penalty. Because the court did not err, we need not consider
the question. He also argues that, at a minimum, the jury should not have been
allowed to consider the evidence in its penalty deliberations. The penalty jury was
permitted to consider the evidence for the reasons it was admitted at the guilt
phase. “ ‘So long as it considered the evidence offered at the guilt phase of trial
solely for [the purpose it was offered], the jury was entitled to take into account all
of the evidence offered at the guilt phase as part of the “circumstances of the
crime,” an aggravating factor that the jury may consider in its penalty
deliberations. ([Pen. Code,] § 190.3, factor (a).)’ (People v. Champion (1995) 9
Cal.4th 879, 947.) ‘Factor (a) of [Penal Code] section 190.3 allows the prosecutor
and defense counsel to present to the penalty phase jury evidence of all relevant
aggravating and mitigating matters “including but not limited to, the nature and
circumstances of the present offense, . . . and the defendant’s character,
background, history, mental condition and physical condition.” ’ (People v.
Guerra (2006) 37 Cal.4th 1067, 1154, some italics added.) The evidence may be
relevant ‘under [Penal Code] section 190.3, factor (a), to the extent that [it] gives
rise to reasonable inferences concerning the circumstances of the crime and



                                            19
defendant’s culpability.’ (People v. Riggs (2008) 44 Cal.4th 248, 321-322.)”
(People v. Cordova (2015) 62 Cal.4th 104, 140-141.)
       Additionally, at least some of the evidence might have been independently
admissible as aggravating evidence at the penalty phase. For example, the
evidence that defendant conspired to commit a forcible escape might have been
admissible as evidence of criminal activity involving the threat to use force or
violence under Penal Code section 190.3, factor (b). But even if some or all of the
evidence was “aggravating evidence of a type not statutorily authorized” (People
v. Champion, supra, 9 Cal.4th at p. 947), defendant cannot show error. “If
defendants had requested the trial court to instruct the jury that it could consider
this evidence only for the light it shed on defendants’ guilt, such an instruction
would perhaps have been appropriate. Defendants, however, did not request such
an instruction, and the trial court was not obligated to give such an instruction on
its own initiative.” (Ibid.; see People v. Barnett (1998) 17 Cal.4th 1044, 1168.)
Defendant did not request such an instruction.
       In any event, the events in Oregon were minor compared to the other
evidence in aggravation. The penalty determination did not turn on whether the
jury improperly considered any of that evidence in aggravation for purposes other
than that for which it had been offered at the guilt phase.

           5. Issues Regarding Handshoe’s Change of Plea and Testimony
       Brandon Handshoe, originally a codefendant, pleaded guilty during jury
selection to reduced charges pursuant to a plea bargain and testified against
defendant. Defendant raises several arguments regarding these circumstances.

               a. Factual Background
       On April 11, 2005 (all further dates in this discussion of the factual
background are to the year 2005), Handshoe made a “free talk” with the



                                          20
prosecution.2 At some point after the talk, the prosecution offered him a plea
bargain that he rejected. On May 2, the prosecution provided the court with a
transcript of the free talk and, around that time, the prosecutor and Handshoe’s
attorney made a joint request to the court that, as the court later characterized it,
“the transcript not be released because it was not exculpatory and the deal had
fallen through” and because of “safety issues.” The court did not rule on the
request at that time.
       Jury selection began on May 6, then was continued to May 11, when voir
dire began. Handshoe’s counsel participated in the jury selection process on those
days. On May 11, after jury selection had ended for the day, Handshoe pleaded
guilty and agreed to testify against defendant. At that time, the court had not yet
ruled on the joint request from the prosecutor and Handshoe’s attorney not to
disclose the free talk. The prosecutor provided defendant a transcript of the free
talk the next morning, May 12.
       Defendant moved for a mistrial or a continuance due to what he called the
“unfair surprise” of Handshoe’s change of plea. The court denied both motions on
May 17. Opening statements in the case began on May 23. Handshoe testified on
June 3.
       When Handshoe pleaded guilty and agreed to testify, he and the prosecutor
entered into a signed, written plea agreement. The agreement specified the exact
terms of the plea bargain and stated that Handshoe would be sentenced to state
prison for a total of 17 years. Additionally, it provided as follows:



2       “As used here, it appears that a ‘free talk’ is a statement about the crime
that a criminal defendant provides to the prosecutor or investigators (or both), in
defense counsel’s presence, with the aim of possibly leading to a plea bargain and
the defendant’s testifying against a codefendant.” (People v. Rices (2017) 4
Cal.5th 49, 82.)

                                          21
       “Defendant [i.e., Handshoe] agrees that he will cooperate by providing
information to law enforcement officers and by testifying in any and all
proceeding relating to Eric Anderson, Apollo Huhn and Randy Lee, including but
not limited to the April 14, 2003 murder of Stephen Brucker and any other
criminal matter filed against the above-listed defendants.
       “On April 11, 2005 [Handshoe] gave a taped statement to investigators
regarding his knowledge of the circumstances surrounding the attempted
robbery/burglary and murder of Stephen Brucker. [Handshoe] confirms that his
statement is true and accurate as to his observations, his actions, and the actions of
Eric Anderson, Apollo Huhn and Randy Lee. [Handshoe] agrees to submit to
subsequent interviews if deemed necessary.
       “Overriding all else, it is understood that this agreement extracts from
Brandon Handshoe an obligation to do nothing more other than to plead guilty to
the listed crimes and to tell the truth. At all times [Handshoe] shall tell the
truth, and nothing other than the truth, both during the investigation and on
the witness stand. [Handshoe] shall tell the truth no matter who asks the
questions—investigators, prosecutors, judges or defense attorneys. It is
further understood that [Handshoe] shall lose the benefits of this agreement for
any intentional deviation from the truth, and if a false statement occurs while he is
on the witness stand, he shall be subjected to prosecution for perjury.
       “This agreement is automatically voided if Brandon Handshoe violates his
obligation to tell the truth or refuses to testify in any grand jury or court
proceeding. However, everything [Handshoe] has told law enforcement officers
after the commencement of this agreement can be used against him.” (Boldface in
original.)
       The agreement added that Handshoe had read it, discussed it with his
attorney, understood its terms, and voluntarily accepted them. It concluded: “I

                                           22
[Handshoe] agree to testify at all grand jury and court proceedings in exchange for
the benefit which I am going to receive pursuant to this agreement.”
       Defendant moved to exclude Handshoe’s testimony on the ground that the
agreement to testify improperly coerced him into testifying in a particular fashion.
After a hearing, the court denied the motion.

                b. Analysis
       Defendant contends the prosecutor committed misconduct by not providing
timely discovery of the free talk. He did not object in the trial court on this
ground. Indeed, his attorney told the court he was not arguing there was a
discovery violation, and that he understood why the prosecutor did not provide the
discovery until Handshoe pleaded guilty. Accordingly, defendant has forfeited a
claim of misconduct. (People v. Sànchez, supra, 63 Cal.4th at p. 475; People v.
Banks (2014) 59 Cal.4th 1113, 1193.) Defendant did, however, move for a
mistrial or a continuance due to Handshoe’s change of plea and the late discovery.
The court’s denial of those motions is reviewable. Moreover, as we explain, we
see no misconduct or discovery violation, and no error in denying a mistrial or
continuance.
       “Normally, the prosecution must disclose to the defendant statements of
other defendants. (Pen. Code, § 1054.1.) However, the prosecutor moved the
court, pursuant to Penal Code section 1054.7, for permission not to provide
discovery of the free talk . . . .” (People v. Rices, supra, 4 Cal.5th at p. 83.)
“Penal Code section 1054.7 provides that disclosure may be ‘denied, restricted, or
deferred’ if ‘good cause is shown.’ ‘ “Good cause” is limited to threats or possible
danger to the safety of a victim or witness, possible loss or destruction of
evidence, or possible compromise of other investigations by law enforcement.’
(Ibid.)” (Id. at p. 83, fn. 3.) “As the prosecutor represented to the court in his



                                           23
motion not to provide the discovery, nothing in the free talk was favorable to
defendant. Accordingly, there was no error under Brady v. Maryland [(1963)] 373
U.S. 83 (concerning the prosecutor’s duty to disclose exculpatory evidence).” (Id.
at p. 84.)
       Defendant claims the free talk was exculpatory in that it contained
statements relevant to Handshoe’s credibility. But the talk contained nothing
suggesting defendant’s innocence. To the extent it contained something that might
undermine Handshoe’s credibility, it became relevant only when Handshoe
became a prosecution witness, at which time the prosecution promptly provided it.
       It was reasonable for the prosecutor not to disclose the free talk as long as
Handshoe was not likely to testify and the trial court had not ruled on the joint
motion to withhold the discovery. Here, unlike the situation in People v. Rices,
supra, 4 Cal.5th at page 84, the prosecutor provided discovery of the free talk
promptly after Handshoe pleaded guilty, that is, as soon as it became apparent he
would become a witness. In Rices, we assumed error in not providing the
discovery once it became apparent the codefendant would become a witness.
(Ibid.) Here, the prosecutor did provide the discovery. We believe the discovery
was timely under the circumstances. As discussed below, we also see no
prejudice. “A violation of [Penal Code] section 1054.1 is subject to the harmless-
error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836.” (People
v. Verdugo (2010) 50 Cal.4th 263, 280.)
       Defendant did move for a mistrial and a continuance due to these
circumstances. To the extent defendant contends the court erred in denying those
motions, we disagree. No doubt defendant was surprised when Handshoe changed
from a codefendant to a prosecution witness. But that happens sometimes.
Criminal defendants, occasionally including codefendants, sometimes accept a



                                          24
plea offer and plead guilty at the last moment, when actually faced with an
imminent trial. We see nothing prejudicial that required a mistrial.
       Relying on two Florida cases, defendant argues he was prejudiced by the
fact that Handshoe’s attorney participated in the beginning of jury selection. In
Kritzman v. State (Fla. 1988) 520 So.2d 568, a codefendant pleaded guilty and
agreed to testify against the remaining defendant. Even after the guilty plea, the
codefendant “was permitted to participate in the jury selection, for purposes of the
sentencing phase of his trial.” (Id. at p. 569.) The court found that “[a]llowing the
state’s star witness to participate in picking the jury that would eventually
determine Kritzman’s guilt and punishment” was reversible error. (Id. at p. 570.)
It noted that the procedure “permitted the state’s chief witness to excuse jurors
who would be prone to disbelieving his story, which implicates Kritzman”; doing
so “deprived Kritzman of the ability to fairly choose jurors, free of this type of
interference from” the former codefendant. (Ibid.) Similarly, in Allen v. State
(Fla.Dist.Ct.App. 1990) 566 So.2d 892, a codefendant participated in the entire
jury selection process, striking two jurors whom the remaining defendant had
accepted; then, after the jury had been sworn, the codefendant pleaded guilty and
became a prosecution witness. Relying on Kritzman, the court found reversible
error because the defendant “was tried before a jury partially chosen by a former
codefendant testifying for the state.” (Id. at p. 893.)
       This case is different. Handshoe’s attorney participated in the beginning of
the jury selection process, including one day of voir dire. But he was not involved
in actually choosing the jurors. As soon as Handshoe pleaded guilty, well before
the jury was selected, his attorney stopped participating in the trial. The trial court
could reasonably conclude that the jury would have no difficulty understanding
that Handshoe, although originally a codefendant, had pleaded guilty, and that



                                          25
defendant therefore suffered no prejudice. The court acted within its discretion in
denying the mistrial motion. (People v. Harris (2013) 57 Cal.4th 804, 848.)
       The court also acted within its discretion in denying a continuance. “[T]he
decision whether or not to grant a continuance of a matter rests within the sound
discretion of the trial court. [Citations.] The party challenging a ruling on a
continuance bears the burden of establishing an abuse of discretion, and an order
denying a continuance is seldom successfully attacked.” (People v. Beames
(2007) 40 Cal.4th 907, 920.)
       When the court and the parties discussed whether a continuance was
needed, the prosecutor informed the court that he would probably call Handshoe
as a witness at the end of his case. In fact, Handshoe did not testify until June 3,
some three weeks after defendant received discovery of the free talk and became
aware that Handshoe would testify. The prosecutor made no use of the free talk,
although defendant himself asked Handshoe about it on cross-examination to show
his interest in obtaining as favorable a plea offer as possible. Nothing in the
record suggests that three weeks was an inadequate amount of time for defendant
to prepare for Handshoe’s testimony. The court acted within its discretion in
denying a continuance.
       Defendant also argues that the plea agreement improperly coerced him into
testifying in a particular fashion.
       “[A] defendant is denied a fair trial if the prosecution’s case depends
substantially upon accomplice testimony and the accomplice witness is placed,
either by the prosecution or the court, under a strong compulsion to testify in a
particular fashion.” (People v. Medina (1974) 41 Cal.App.3d 438, 455; accord,
People v. Homick (2012) 55 Cal.4th 816, 862.) Because of this, “[i]mmunity or
plea agreements may not properly place the accomplice under a strong compulsion
to testify in a particular manner—a requirement that he or she testify in conformity

                                          26
with an earlier statement to the police, for example, or that the testimony result in
defendant’s conviction, would place the witness under compulsion inconsistent
with the defendant’s right to fair trial.” (People v. Jenkins (2000) 22 Cal.4th 900,
1010.) “[W]e review the record and reach an independent judgment whether the
agreement under which the witnesses testified was coercive and whether defendant
was deprived of a fair trial by the introduction of the testimony, keeping in mind
that generally we resolve factual conflicts in favor of the judgment below.” (Ibid.)
       Defendant contends Handshoe’s agreement was improperly coercive under
this standard. However, as the bold print in the agreement emphasized, the
agreement required Handshoe to do nothing more than testify truthfully.
“Although we have recognized that there is some compulsion inherent in any plea
agreement or grant of immunity, we have concluded that ‘it is clear that an
agreement requiring only that the witness testify fully and truthfully is valid.’
[Citations.] Such a plea agreement, even if it is clear the prosecutor believes the
witness’s prior statement to the police is the truth, and deviation from that
statement in testimony may result in the withdrawal of the plea offer, does not
place such compulsion upon the witness as to violate the defendant’s right to a fair
trial.” (People v. Jenkins, supra, 22 Cal.4th at p. 1010.) The agreement is not
improperly coercive unless it “is expressly contingent on the witness sticking to a
particular version . . . .” (People v. Garrison (1989) 47 Cal.3d 746, 771; accord,
People v. Homick, supra, 55 Cal.4th at p. 862.)
       In the agreement, Handshoe confirmed that his previous statement was true.
But this provision did not make the agreement impermissibly coercive. Nothing in
the agreement indicated that it would be violated if Handshoe were to testify
truthfully yet contradict an aspect of his prior statement. “These principles are
violated only when the agreement requires the witness to testify to prior statements
‘regardless of their truth,’ but not when the truthfulness of those statements is the

                                          27
mutually shared understanding of the witness and the prosecution as the basis for
the plea bargain.” (People v. Homick, supra, 55 Cal.4th at p. 863, citing People v.
Boyer (2006) 38 Cal.4th 412, 456.)
       In Boyer, “the agreement stated, ‘the witness has represented that [his]
testimony . . . will be in substance’ ” consistent with his prior taped statements.
(People v. Boyer, supra, 38 Cal.4th at p. 455.) We found this provision not
improperly coercive. “The grant of immunity to Kennedy [the witness], by its
terms, was based on his truthful testimony, which Kennedy himself ‘represented’
would be in accordance with his prior statements. Thus, the agreement simply
reflected the parties’ mutual understanding that the prior statements were the truth,
not that Kennedy must testify consistently with those statements regardless of their
truth.” (Id. at p. 456.) The agreement here was similar.
       The agreement also informed Handshoe that if he intentionally lied, the
agreement would be nullified and he (like any witness) could be prosecuted for
perjury. But this language “simply spells out the consequences present in every
plea agreement conditioned on the witness testifying truthfully; it does not amount
to Medina error.” (People v. Homick, supra, 55 Cal.4th at p. 863.)
       Accordingly, the trial court correctly permitted Handshoe to testify. Its
ruling did not deny defendant a remedy. He had the opportunity to, and did, cross-
examine Handshoe effectively regarding the plea agreement and any coercive
aspect it may have had. The jury learned about the agreement and the surrounding
circumstances and thus could evaluate Handshoe’s credibility. (People v. Jenkins,
supra, 22 Cal.4th at p. 1012.) “We conclude that the record does not establish that
defendant was denied a fair trial.” (Ibid.)




                                          28
           6. Refusal to Order a Witness to Undergo Drug Testing
       During Valerie Peretti’s testimony, at a conference outside the jury’s
presence, defendant’s attorney stated: “I have a concern as to whether Ms. Peretti
may be under the influence as she is testifying today. Her demeanor is such that
she’s constantly leaning, constantly locking her jaw, and is scratching herself.
Given what I know of her history, I think it is—it would be quite likely that she is
under the influence. And I think if she is, that the jurors would have a right to
know about that. So I would ask the court to order that she produce a urine
sample.” The court denied the request but added, “In terms of cross-examination,
if you feel that there is unresponsiveness, you can inquire.” Defendant argues the
court erred in not requiring the witness to undergo drug testing.
       “A witness’s drug intoxication may indeed be a basis for impeaching his
credibility [citations]; in extreme cases it may render him incompetent to testify
[citation]. Defendant must be allowed to explore fully any issue of the witness’s
competence or credibility by cross-examination, subject to the witness’ right
against self-incrimination. [Citation.] But defendant has cited no case, nor have
we discovered one, which suggests that a criminal accused is entitled on demand
to subject a witness to a court-ordered physical intrusion or chemical test to
determine whether he is under the influence of an intoxicating substance.”
(People v. Melton (1988) 44 Cal.3d 713, 737.) Witnesses, as well as criminal
defendants, have a constitutional right “to be free from unwarranted bodily
intrusions by agents of government.” (Ibid.) “[N]o intrusion may be ordered on a
showing less than probable cause.” (Id. at p. 738.) Although most of the cases
involve criminal suspects, “it is manifest that nonparties have equal rights against
unreasonable bodily searches.” (Ibid.) Accordingly, “[a] defendant’s
constitutional right to confront a witness does not entitle him to obtain court-
ordered evidence in violation of the witness’s constitutional rights against


                                         29
unreasonable searches and seizures.” (Ibid; accord, People v. Earp (1999) 20
Cal.4th 826, 882.) Before the court can order a witness to undergo drug testing it
must find probable cause to believe doing so will uncover material evidence.
(Earp, at p. 882.)
       We need not decide whether the circumstances would have permitted the
court to order Peretti to undergo drug testing, for nothing in the record suggests
the court was compelled to do so. Defense counsel argued for drug testing, but
that alone did not compel the court to order it. The judge was present and was in a
far better position than this court to determine the necessity and propriety of
subjecting the witness to drug testing. But even reviewing the cold record, no
reason appears to believe that such testing was warranted, much less required.
The witness, 17 years old at the time she testified, was articulate and appeared to
have no difficulty understanding and answering the questions. She withstood
without apparent difficulty an extraordinarily long and probing cross-examination.
As the trial court noted, defense counsel was able to, and did, ask questions
regarding her past drug use, which the witness candidly and articulately answered.
       This record does not compel a finding of probable cause sufficient to order
the witness to undergo drug testing. Accordingly, we see no error.

           7. Permitting the Jury To View and Listen to Defendant’s Bronco
       Two witnesses who observed the Bronco at the time, and in the area, of the
Brucker crimes described it as loud. Accordingly, the prosecutor requested that
the jury be allowed to listen to the sound of defendant’s Bronco, which had been
impounded. Defendant objected, arguing that whether the Bronco was loud was
not disputed, and the conditions were not the same at the time of trial as they were
at the time of the crimes over two years earlier. The court overruled the objection.
It stated that this is “simply a tidbit of circumstantial evidence. It’s relevant in



                                           30
terms of there’s been testimony that this particular Ford Bronco has some unique
characteristics. So, to me, it’s similar to any type of eyewitness identification
issue.” The court observed that defendant could present any evidence he wished
explaining that the sound at the time of the trial might be different than at the time
of the crimes. But the court “believe[d] that goes to weight, not admissibility.”
Later, Detective Curt Goldberg stated to the court and the parties that the vehicle
would be pulled onto a flatbed truck and towed to the spot where the jury would
view it. Defense counsel indicated there might be additional objections.
       The next court day, the court held another hearing. Defense counsel
reiterated the objection that what she termed an “experiment” would be conducted
under different conditions than prevailed at the time of the crimes. The court
asked the prosecutor whether he intended to conduct an experiment. He
responded that he did not: “The vehicle is simply going to be started so that the
jurors have an opportunity to hear the loudness or lack thereof of the vehicle.”
The court again overruled the objection: “I agree in terms of the logic of what
[defense counsel] said that there may in fact be some dissimilarity in terms of the
exact condition of the exhaust system, the muffler, today’s condition versus April
14th or April 9th and 10th of 2003. But I sense from what’s been proposed by the
district attorney that they’re not trying to establish that the exhaust system is a
tenor or a baritone or a bass or anything of that nature. They’re trying to establish
that it has a problem with the exhaust system, period.” It reiterated that defendant
could cross-examine witnesses in this regard.
       Detective Goldberg testified in front of the jury that he impounded
defendant’s Bronco on May 13, 2003 and, after searching it for evidence, he stored
it at the sheriff’s department impound lot in El Cajon, where it had remained until
trial. He arranged for it to be brought to the area of the courthouse. On cross-
examination, defense counsel established that the vehicle had been towed to the

                                          31
courthouse that day; that it had remained in the open exposed to the elements,
including rain, for over two years; and that it had been started twice during that
time, the last time on February 17, 2005.
       After Detective Goldberg testified, the jury was taken outside to the
Bronco’s location. Defendant further objected that, because the vehicle was on
top of the metal tow truck, the sound would reverberate, making it sound louder
than it otherwise would. The court did not change its ruling. At defendant’s
request, it ruled that the jury could look at the vehicle’s muffler. Then the Bronco
was started and the jury listened to it.
       Defendant contends the court erred in permitting the jury to listen to the
Bronco’s sound. He argues that, because the circumstances in which the jury
heard it were different than those that existed two years earlier, the evidence was
irrelevant and, even if relevant, should have been excluded as impermissibly
prejudicial under Evidence Code section 352. “The trial court has broad discretion
both in determining the relevance of evidence and in assessing whether its
prejudicial effect outweighs its probative value.” (People v. Horning (2004) 34
Cal.4th 871, 900.) We see no abuse of discretion.
       The evidence was relevant. It had a “tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the
action.” (Evid. Code, § 210.) Because witnesses testified that the Bronco seen
near the crime scene was loud, evidence that defendant’s Bronco was loud tended
in reason to prove that his Bronco was the one used in the crime, which, in turn,
tended in reason to prove that defendant was involved in the murder, a disputed
fact that is of consequence to the determination of defendant’s guilt. It also
corroborated Matthew Hansen’s testimony that defendant’s Bronco had a loud
sound the day of, and the day after, the Dolan burglary, i.e., four and five days
before the Brucker crimes. Defendant argues, in effect, that it was possible the

                                           32
Bronco sounded loud at the time the jury heard it but not at the time of the crimes
two years earlier. To the extent that possibility existed—and defendant had full
opportunity to present evidence and argument in that regard—it weakened the
strength of the evidence; but it did not render it irrelevant. Standing alone, the
sound of the Bronco was not particularly strong evidence. But it was, to use the
trial court’s term, a “tidbit” of circumstantial evidence.
       Defendant cites cases involving efforts to admit evidence of the lighting
conditions at the time of the crime. (See generally People v. Jones (2011) 51
Cal.4th 346, 375-377.) Those cases do not aid defendant. They establish that the
decision whether to admit experimental evidence lies within the trial court’s
discretion. (Id. at pp. 375-376.) What occurred here was not an experiment but
merely permitting the jury to listen to defendant’s actual vehicle. But in any
event, the same abuse of discretion standard prevails. Even though it had limited
value, the court acted within its discretion in admitting this bit of circumstantial
evidence.

            8. Admitting Northcutt’s Hearsay Statement
       The prosecution called Travis Northcutt as a witness. His testimony
consisted largely of denials of prior statements and claims of lack of memory. The
prosecution later called Investigator Baker to testify about statements Northcutt
had made to him. He testified that Northcutt told him that defendant had told
Northcutt “that something big was going to happen, a big hit that involved a safe.”
Defendant contends the court erred in admitting this item of evidence because it
was inadmissible hearsay and did not qualify as a prior inconsistent statement.
       Preliminarily, the Attorney General argues defendant has forfeited the
contention because he did not object on hearsay grounds at trial. (Evid. Code,
§ 353; People v. Partida (2005) 37 Cal.4th 428, 433-434.) The prosecutor asked



                                          33
Investigator Baker, “Did [Northcutt] tell you that Eric Anderson had told him that
he was coming along and —” At this point defendant’s attorney objected on the
ground that the question was leading. The prosecutor responded, “It’s
impeachment.” The court ruled, “I think this is a question that was asked of Mr.
Northcutt and . . . my ruling is that there is the foundation for prior inconsistent
statement.” The prosecutor then asked the question that elicited the testimony
defendant challenges.
       Although defendant objected only on the ground the question was leading,
the court anticipated a hearsay objection and ruled on it. The rule requiring an
objection on the ground asserted on appeal serves important purposes—including
permitting the court to make a reasoned ruling and the proponent of the evidence
to cure any defect—but it must also “be interpreted reasonably, not
formalistically.” (People v. Partida, supra, 37 Cal.4th at p. 434.) The court’s
ruling might have forestalled defendant from additionally objecting on hearsay
grounds. It did make a reasoned ruling. Under the circumstances, we conclude
defendant may challenge the correctness of the court’s ruling.
       Turning to the merits, the trial court’s ruling was correct. The testimony
was double hearsay—what Northcutt told the investigator about what defendant
told him. But each level of hearsay came within an exception to the hearsay rule,
making the statement admissible. (Evid. Code, § 1201; People v. Zapien (1993) 4
Cal.4th 929, 951-952.) Defendant’s statement to Northcutt came within the
exception for statements of a party. (Evid. Code, § 1220; People v. Horning,
supra, 34 Cal.4th at p. 898.) Northcutt’s statement to the investigator came within
the exception for prior inconsistent statements. (Evid. Code, § 1235; People v.
Rodriguez (2014) 58 Cal.4th 587, 633.) “[M]ultiple hearsay consisting of a prior
inconsistent statement and an admission of the defendant” is admissible. (Zapien,
at p. 953.)

                                          34
       Defendant argues that the statement in question was not inconsistent with
Northcutt’s trial testimony. Citing part of Northcutt’s testimony, he argues that
Northcutt said that he did not remember the statement. “Ordinarily, a witness’s
inability to remember an event is not inconsistent with that witness’s prior
statement describing the event. [Citation.] When, however, ‘a witness’s claim of
lack of memory amounts to deliberate evasion, inconsistency is implied.’ ”
(People v. Rodriguez, supra, 58 Cal.4th at p. 633.) We need not decide whether
this and Northcutt’s many other claims not to remember (including, for example,
his roommate’s name and his own address) were evasive within this rule, for the
statement in question was clearly inconsistent with other portions of Northcutt’s
testimony.
       Northcutt affirmatively denied that defendant had brought up “the subject
of committing a crime involving a safe.” During cross-examination, defense
counsel asked him “about [defendant] telling you that he was involved in
something big and that it involved a safe.” Northcutt answered, “That would have
never happened.” He then reiterated, “It never happened,” and “It couldn’t
possibly, no, no.” Northcutt’s prior statement was inconsistent with this testimony
and, accordingly, the trial court properly admitted it.
       Defendant also argues the testimony was not sufficiently trustworthy to be
admissible. Trustworthiness is not an element of the hearsay exception for prior
inconsistent statements (Evid. Code, § 1235) but, like most kinds of evidence, a
matter for the jury to judge. To the extent defendant may be understood to argue
that admitting the evidence violated his federal constitutional right to confront
witnesses, the claim also lacks merit. In Crawford v. Washington (2004) 541 U.S.
36, 59-60, footnote 9, the high court “reiterate[d] that, when the declarant appears
for cross-examination at trial, the Confrontation Clause places no constraints at all



                                          35
on the use of his prior testimonial statements.” (See People v. Rodriguez, supra,
58 Cal.4th at p. 632.)

           9. Admitting Evidence Regarding When Defendant Became a Suspect
       The prosecution presented evidence of defendant’s flight to Oregon and
escape plans to show consciousness of guilt. (See pt. II.A.4, ante.) In response,
defendant called Detective Goldberg as a witness and questioned him about a
newspaper article in the San Diego Union-Tribune dated April 24, 2003, that
contained Goldberg’s name. The prosecutor objected on relevance grounds. At a
conference outside the jury’s hearing, defense counsel argued that “this is the
exact date of the parole search. This is the date where the People are alleging that
Mr. Anderson fled because he was a suspect in the Brucker homicide. Whereas in
fact the suspect information, it is completely different. . . . It is being offered to
show the state of the publicity at the time.” The court overruled the prosecutor’s
objection, ruling that the evidence “supports the contention that it was flight for
parole reasons rather than being named as a suspect.”
       Back in the jury’s presence, Detective Goldberg testified that the April 24,
2003, article said two women between the ages of 17 to 25 were being sought as
suspects in the Brucker homicide, and the suspect vehicle was a gray Toyota
“4Runner” or “PreRunner” type of truck. He also testified about another article in
the same newspaper dated May 10, 2003, that also referenced himself. He said
that by that date, the two women had been cleared, and the investigators were
asking the public for more information. The article quoted him as saying that the
investigation was “wide open.”
       On cross-examination, Detective Goldberg testified that defendant first
became a suspect through a “crime stopper tip” on April 17, 2003. Defendant
objected to the testimony as hearsay. The court overruled the objection, stating it



                                           36
would “allow it for the limited purpose, not for the truth of the tip, but the timing
of the tip and what happened next.”
       Defendant argues the court erred in permitting this cross-examination of
Goldberg because it elicited inadmissible hearsay and violated his federal
confrontation rights. However, as the court explained in front of the jury, the
testimony was not offered for a hearsay purpose but for the nonhearsay purpose of
establishing when defendant became a suspect in the case. (See People v.
Livingston (2012) 53 Cal.4th 1145, 1162.) This nonhearsay purpose was relevant
to counter the testimony defendant elicited on direct examination. “[T]here are no
confrontation clause restrictions on the introduction of out-of-court statements for
nonhearsay purposes.” (People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6, citing
Crawford v. Washington, supra, 541 U.S. at p. 60, fn. 9.) Contrary to defendant’s
argument, no reason appears to believe that Detective Goldberg, who investigated
the case from the beginning, would not have personal knowledge of when
defendant became a suspect. The court properly permitted the testimony for this
limited purpose.

           10. Admission of Evidence of Telephone Data
       The prosecution presented telephone records and testimony showing
telephone calls among the various participants during relevant times. It obtained
the telephone records pursuant to a court order under 18 United States Code
section 2703, part of the federal Stored Communications Act. (See Carpenter v.
United States (June 22, 2018, No. 16-402) 585 U.S. __. __ [2018 WL 3073916
p. *4].) Defendant moved to suppress the evidence, partly on the ground that
obtaining the records without a search warrant violated his rights under the Fourth
Amendment to the United States Constitution. Citing Smith v. Maryland (1979)
442 U.S. 735 (using a telephone company’s central offices to track telephone



                                          37
numbers the defendant dialed from his home is not a search under the Fourth
Amendment), the trial court found no constitutional violation.
       The United States Supreme Court has now held that a search warrant is
needed to obtain at least some types of information governed by the Stored
Communications Act. (Carpenter v. United States, supra, 2018 WL 3073916.)
The court stressed that its holding is “narrow,” and that it did “not disturb the
application of” cases such as Smith v. Maryland, supra, 442 U.S. 735. (Carpenter,
at p. *13.) It is not clear whether Carpenter’s holding would apply here. But we
need not decide the question. Any error was harmless beyond a reasonable doubt.
The evidence merely showed that some of the alleged conspirators communicated
by telephone at certain times; the content of the communications was not revealed.
Although relevant, the evidence was unimportant in light of the trial as a whole.

           11. Excluding Defense Evidence
       Defendant called as a witness Andrea Finch. She testified that she knew
Lee, Huhn, and Handshoe through Ronnie Densford, who had been her boyfriend
from 1992-2000. The prosecutor objected to the testimony on relevance grounds,
and a hearing ensued outside the jury’s presence.
       Defendant’s attorney made an offer of proof that the witness would testify
that Densford was a close friend of Huhn and Handshoe, and Densford’s home
was a “hangout place” for the group. At Densford’s home, “there was access to
weapons, specifically large-caliber automatic weapons, there was access to
disguises, and there was access to vehicles.” Defendant’s attorney was not
offering the testimony as evidence of third party culpability but “to show that
Apollo Huhn and Brandon Handshoe had access to all of the items that have been
described as having been used in this particular crime through someone other than
Eric Anderson.” Although the witness broke up with Densford in 2000, “she



                                          38
continued hanging out at the house until summer 2002.” The court sustained the
prosecutor’s objection, explaining, “I’m finding as to the probative value of
summer ’02, a third party exhibiting a firearm has limited probative value and an
undue consumption of time.”
       Defendant contends the court erred in excluding this evidence. We
disagree. As explained before, “The trial court has broad discretion both in
determining the relevance of evidence and in assessing whether its prejudicial
effect outweighs its probative value.” (People v. Horning, supra, 34 Cal.4th at p.
900.) As the court found, any relevance that Huhn and Handshoe were hanging
out at a home where weapons, vehicles, and disguises were present as late as the
summer before the April 2003 crimes was tenuous at best. “The court weighed the
arguably slight probative value of” the evidence “against the likelihood that its
admission would require an ‘undue consumption of time’ (Evid. Code, § 352), and
soundly determined that the balance justified exclusion.” (People v. Brooks
(2017) 3 Cal.5th 1, 45.) There was no error.

           12. Impeaching a Defense Witness
       Over defense objection, the court permitted defense witness James Stevens
to be impeached with his convictions for “auto theft” in 1986, 1987, 1992, and
1993; for “escape” in 1986; and for “robbery with use of a firearm” in 1996, his
last conviction. He was in prison on the last conviction when he met defendant
around 1996-1997.
       In overruling defendant’s objections, the court found that “Mr. Stevens is
not a defendant who can suffer some prejudice in terms of disposition to commit
crimes.” Contrary to defendant’s argument, it found that escape is a crime
involving moral turpitude. It also found that the firearm use finding regarding the
robbery was relevant for impeachment, explaining that “if the firearm was pled



                                         39
and admitted, that constitutes a specific incident of willingness to do evil.” It
“weigh[ed] [the firearm use finding] pursuant to [Evidence Code section] 352.
And my belief is that that is a separate, although it might be a tangent, it is a
separate act that would constitute moral turpitude: the use of a weapon in the
course of a felony offense.” Additionally, in response to defendant’s argument
that some of the convictions were too remote, it ruled that “the fact that they go
back 20 years, I find . . . does not neutralize the probative value of it because it
looks like for ten years, up until the 1996 [robbery], it was an uninterrupted
sequence of criminal activity.”
       Defendant contends the court erred in not excluding at least some of the
convictions and the firearm use finding. It did not. After the 1982 adoption of
article I, section 28, subdivision (f), of the California Constitution, a witness may
be impeached with any prior felony conviction involving moral turpitude, subject
to the trial court’s discretion under Evidence Code section 352 to exclude it if it
finds its prejudicial effect substantially outweighs its probative value. (People v.
Clair (1992) 2 Cal.4th 629, 653-654.) The court’s ruling is reviewed for abuse of
discretion. (Id. at p. 655.) Because this discretion is broad, “a reviewing court
ordinarily will uphold the trial court’s exercise of discretion.” (People v. Clark
(2011) 52 Cal.4th 856, 932.)
       The court did not abuse its discretion. As it noted, because Stevens was not
a defendant, there was no reason to be concerned that the jury might improperly
consider the convictions as showing a propensity to commit crimes. This
circumstance greatly reduces the danger of undue prejudice. The main factors for
the court to consider when the witness is not a defendant are “whether the
conviction (1) reflects on honesty and (2) is near in time.” (People v. Clair, supra,
2 Cal.4th at p. 654.)



                                          40
       Contrary to defendant’s argument at trial, escape, even without force,
involves moral turpitude. (People v. Lang (1989) 49 Cal.3d 991, 1009-1010.)
Any “[m]isconduct involving moral turpitude may suggest a willingness to
lie . . . .” (People v. Wheeler (1992) 4 Cal.4th 284, 295.) The early convictions
were somewhat remote in time, but because the witness continued to commit
crimes for many years thereafter, and then was incarcerated, limiting his ability to
commit more crimes, the court reasonably admitted them. (People v. Turner
(1994) 8 Cal.4th 137, 200.) “Even a fairly remote prior conviction is admissible if
the defendant has not led a legally blameless life since the time of the remote
prior.” (People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926.) The fact that
the witness had so many convictions did not compel the court to exclude any of
them. “[A] series of crimes may be more probative of credibility than a single
crime.” (People v. Clark, supra, 52 Cal.4th at p. 932.) Finally, the firearm use
finding was part of the robbery conviction. The fact that Stevens went so far as to
use a firearm to steal was also relevant to whether he might lie to help defendant.
The court acted within its discretion in admitting the convictions.

           13. Trial Court’s Response to a Juror’s Question
       During a break in Valerie Peretti’s testimony, the court received a note
from one of the jurors asking, “Can I figure a person’s attitude and demeanor
outside of the courtroom, i.e., specific witness actions in court’s main area outside
of main entrance?”
       At a hearing held outside the rest of the jury, the court told the juror that the
“short answer is no. The instructions that I gave in terms of demeanor means
demeanor while testifying.” When questioned, the juror said, “I saw a witness
[later identified as Peretti] that at least — we were down in the common area, and
you see everybody. And a witness was, what I would say, in a much more joyous



                                          41
and, you know, very high levity than what I would expect of somebody who is in
this kind of magnitude of a case.” He also said that two other jurors on the same
panel also observed the same behavior. The three jurors discussed that “that
doesn’t seem, you know, the same demeanor that they should have, and that’s
where we left it.” They wondered whether they could “weigh it or not.” After the
juror left the courtroom, two of the defense attorneys said they observed Peretti
apparently trying to make eye contact with the jurors as they walked by and
smiling at them. The court agreed to admonish Peretti not to do so and to
admonish the jury.
       The court then instructed the jury that “it is important to recognize that a
witness is allowed to communicate with a trial juror only through the question and
answer procedure. The taking of testimony in the courtroom.” It told the jurors to
inform the court if anyone felt a witness was trying to communicate in other ways.
Repeating portions of CALJIC Nos. 1.00, 2.00, and 2.20, that it had given at the
outset of trial, it also reiterated that “you must determine the facts in this case from
the evidence received in this trial and not from any other source. Evidence means
testimony, writings, material objects, or anything presented to the senses that are
offered to prove the existence or nonexistence of a fact. In determining the
credibility of a witness, you may consider the demeanor of the witness while
testifying and the manner in which the witness testifies.”
       Later, outside the jury’s presence, defense counsel asked the court to
instruct the jury that it “can consider the demeanor of the witness present in the
courthouse for the purpose of testifying.” The court declined to so instruct. It
noted that not all the jurors might have seen what one juror saw. Additionally, it
noted that all parties had agreed the court should instruct, pursuant to CALJIC No.
1.00, that the jury “must determine what facts have been proved from the evidence



                                          42
received in the trial and not from any other source.” The court did not “believe
that definition of trial extends to the hallway or the patio.”
       Defendant contends the court erred. He appears not to argue now what his
attorneys argued at trial—that the jury should be allowed to consider a witness’s
demeanor outside the courtroom. The trial court was correct in this regard. “[T]he
jury is to determine the effect and value of the evidence addressed to it . . . .”
(Evid. Code, § 312, subd. (b), italics added.) What a witness might or might not
do outside the courtroom is not part of the evidence presented to the jury. Thus,
CALJIC No. 1.00 correctly informs the jury it may consider only “evidence
received in the trial.” To make the proceeding fair to all, evidence is presented in
controlled circumstances within the courtroom (or, occasionally, outside the
courtroom, as when the jury in this case listened to the sound of defendant’s
Bronco, but still under controlled circumstances) so that all jurors can observe and
hear the evidence together. Trying to draw meaning from what one or more
jurors, but not all, might observe outside the courtroom can be misleading. As
CALCRIM No. 101 (not given in this trial) explains, “It is unfair to the parties if
you receive additional information from any other source because that information
may be unreliable or irrelevant and the parties will not have had the opportunity to
examine and respond to it.”
       Defendant argues instead that the court did not directly answer what he
calls the “jury’s question” regarding whether a juror may consider demeanor
outside the courtroom. However, the jury did not ask the question; a single juror
did. And the court answered that question quite directly and entirely correctly:
“[N]o.”
       The court also correctly reiterated other instructions to ensure the entire
jury understood its duty. Defendant argues those instruction limited the jury’s
ability to consider the witness’s demeanor in the courtroom when that witness is

                                          43
not testifying. It is not clear, but, apparently, defendant claims the court
improperly precluded the jury from considering the witness’s demeanor while
exiting the courtroom after testifying (or perhaps while approaching the witness
chair before testifying). This was not defendant’s concern at trial. The argument
is basically an attack on CALJIC No. 2.20, which instructs the jury that it may
consider “[t]he demeanor and manner of the witness while testifying.” (See also
CALCRIM No. 105 [the jury may consider “the witness’s behavior while
testifying”].) As the Attorney General observes, “Because witnesses necessarily
testify inside the courtroom, jurors would have had no reason to think they could
not rely on their observations of witnesses inside the courtroom in assessing their
credibility.” We see no error in the court’s reiteration of this portion of CALJIC
No. 2.20 or in any other part of its response to the juror’s question.

           14. Instructing the Jury Regarding Accomplices
       The court instructed the jury that the testimony of an accomplice must be
corroborated. It also instructed that Brandon Handshoe was an accomplice as a
matter of law. However, it rejected defendant’s request to instruct the jury that
Valerie Peretti and Zachary Paulson were also accomplices as a matter of law. It
said the parties could argue the point to the jury, but it found the evidence in
dispute as to whether either of those witnesses was an accomplice. Accordingly, it
instructed the jury that it had to determine whether Peretti or Paulson were
accomplices.
       “In California, ‘[a] conviction cannot be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall tend to
connect the defendant with the commission of the offense . . . .’ ([Pen. Code,]
§ 1111.) For purposes of this rule, an ‘accomplice’ is ‘one who is liable to
prosecution for the identical offense charged against the defendant on trial in the



                                          44
cause in which the testimony of the accomplice is given.’ (Ibid.) ‘This definition
encompasses all principals to the crime [citation], including aiders and abettors
and coconspirators. [Citation.]’ . . . [L]iability as an aider and abettor requires
proof that the person in question ‘aid[ed] or promote[d] the perpetrator’s crime
with knowledge of the perpetrator’s unlawful purpose and an intent to assist in the
commission of the target crime.’ . . . [W]hether a witness is an accomplice is a
question of fact for the jury unless no reasonable dispute exists as to the facts or
the inferences to be drawn from them.” (People v. Manibusan (2013) 58 Cal.4th
40, 93.) “The court’s task was not to determine whether the jury could reasonably
find [the witness] was an accomplice, but rather whether it could only reasonably
find that he was an accomplice.” (People v. Bryant, Smith and Wheeler, supra, 60
Cal.4th at p. 430.)
       Defendant contends the court erred in refusing to instruct the jury that
Peretti and Paulson were accomplices as a matter of law. However, the trial court
was correct that the facts or the inferences to be drawn from them were reasonably
disputable as to both witnesses. In fact, little evidence existed that either was an
accomplice. As defendant notes, both were present when the conspiracy was
discussed. This presence might establish that they knew of the conspiracy. But it
does not establish beyond reasonable dispute that either did anything to further the
conspiracy or did so with the required intent.
       Peretti was Huhn’s 15-year-old, pregnant girlfriend. Her testimony
suggested her presence at the April 14, 2003, meeting was accidental, and, indeed,
unwanted. No evidence exists to suggest that she participated in substantive
discussions regarding the planned robbery. She did testify that she said they
would “go shopping” with the money, but that alone does not establish accomplice
liability as a matter of law. She also testified that she told Huhn she did not want
him to go to the planned robbery.

                                          45
       Similarly, little or no evidence exists to suggest that Paulson did anything
to further the conspiracy or had the requisite intent—and certainly none that
establishes these elements beyond dispute. “On this record, it was for the trier of
fact to decide whether [either witness] had the intent necessary to establish that
[either] was an accomplice.” (People v. Manibusan, supra, 58 Cal.4th at p. 94.)
The court properly refused to instruct the jury that either was an accomplice as a
matter of law.
       Moreover, any error would have been harmless. “Error of the kind he
alleges is harmless if the record contains ‘sufficient corroborating evidence.’
[Citation.] ‘Corroborating evidence may be slight, entirely circumstantial, and
entitled to little consideration when standing alone. [Citations.] It need not be
sufficient to establish every element of the charged offense or to establish the
precise facts to which the accomplice testified. [Citations.] It is “sufficient if it
tends to connect the defendant with the crime in such a way as to satisfy the jury
that the accomplice is telling the truth.” ’ ” (People v. Manibusan, supra, 58
Cal.4th at p. 95.)
       Contrary to defendant’s additional argument, even if we were to assume
that both Peretti and Paulson were accomplices, ample evidence corroborated their
testimony. The evidence that defendant drove a loud Bronco during the Dolan
burglary four days before the Brucker crimes, combined with the evidence that
numerous witnesses observed a generally similar Bronco near the Brucker crime
scene, which two also said was loud, tended to connect him to the crime. So did
Charlene Hause’s testimony that defendant told her that he was using the white
truck “because they knew his Bronco.” Additionally, Travis Northcutt’s
statements about what defendant told him, including that a “big hit” involving a
safe was going to happen, connected defendant to the crime.



                                          46
            15. Instructing the Jury on Accessories
       In her argument to the jury, defense counsel argued that Peretti was an
accomplice. In part, she cited actions after the Brucker crimes, including her
failure to report promptly what she knew, the “lies” she told about “her
boyfriend’s involvement,” and the fact she was given immunity for her testimony.
Counsel said, “This is a girl who was definitely an accomplice to the crime.”
       After this argument, outside the jury’s presence, the prosecutor asked the
court to instruct the jury on liability as an accessory. He argued that doing so was
necessary to fully inform the jury of the law in light of the defense argument:
“Without the jury being aware of the fact that there is another criminal liability
theory here, and that is accessory to [sic: probably meant to be “after”] the fact,
they’re going to be influenced to believe that if she was given immunity, it was
because she was an accomplice, and I just don’t think that’s fair under the facts of
this case.” Defendant objected. After considering the matter during a break, the
court agreed to give the requested instruction.
       Accordingly, the court instructed the jury on liability as an accessory:
“Every person who, after a felony has been committed, harbors, conceals, or aids a
principal in that felony with the specific intent that the principal may avoid or
escape from arrest, trial, conviction, or punishment, having knowledge that the
principal has committed that felony or has been charged with that felony, or
convicted thereof, is guilty of the crime of accessory to a felony, in violation of
Penal Code section 32.” The court further instructed that an “accessory to a felony
is not, by that fact alone, a principal in that felony.”
       In his rebuttal argument, the prosecutor cited this instruction to argue that
Peretti might have been guilty of being an accessory, but that did not make her an
accomplice.




                                           47
       Defendant contends the court erred in instructing the jury on accessory
liability. It did not. Because someone who is merely an accessory under Penal
Code section 32 is not “liable to prosecution for the identical offense charged
against the defendant on trial in the cause” (Pen. Code, § 1111), that person is not
an accomplice whose testimony requires corroboration. (See People v. McKinzie
(2012) 54 Cal.4th 1302, 1353.) The trial court must instruct the jury “on general
principles of law that are closely and openly connected to the facts and that are
necessary for the jury’s understanding of the case.” (People v. Carter (2003) 30
Cal.4th 1166, 1219.) To fully understand whether Peretti was an accomplice, it
was necessary for the jury to know that an accessory is not necessarily an
accomplice.
       In a reprise of his earlier argument, defendant contends the evidence did not
support the instruction because Peretti was an accomplice as a matter of law. As
explained previously (pt. II.A.14, ante), she was not. The evidence that she
originally lied about Huhn’s involvement supported the accessory instruction. We
see no error.

           16. Asserted Prosecutorial Misconduct
       Defendant contends that Glenn McAllister, the prosecutor, committed
various acts of misconduct.
       First, defendant contends the prosecutor committed misconduct in cross-
examining defense witness James Stevens. At one point, the prosecutor asked,
“Mr. Stevens, is it fair to say that you’ll do whatever it takes to help Mr. Anderson
avoid responsibility for his actions in this case?” The witness responded that he
took an oath and planned to tell the truth. The prosecutor next asked, “Now, you
took an oath so that you wouldn’t perjure yourself?” The witness responded,
“That’s correct.” Defense counsel objected that the question was argumentative.



                                         48
The court ruled that the question and answer could stand but told the prosecutor
not to ask any “more oath questions.” The prosecutor then asked, “What you’re
telling us here is that you, who have been convicted of these felony offenses that
you’ve told us about, just won’t perjure yourself?” Defense counsel again
objected that the question was argumentative. The witness said, “Sir, I do not plan
on telling any lies. I am telling the truth, honest to God.” The court said, “He
indicates that he’s telling the truth,” and told the prosecutor to ask the next
question. The prosecutor went on to other matters.
       Defendant contends these questions were impermissibly argumentative.
“An argumentative question is designed to engage a witness in argument rather
than elicit facts within the witness’s knowledge.” (People v. Guerra, supra, 37
Cal.4th at p. 1125.) It “is a speech to the jury masquerading as a question. The
questioner is not seeking to elicit relevant testimony. Often it is apparent that the
questioner does not even expect an answer. The question may, indeed, be
unanswerable. . . . An argumentative question that essentially talks past the
witness, and makes an argument to the jury, is improper because it does not seek
to elicit relevant, competent testimony, or often any testimony at all.” (People v.
Chatman (2006) 38 Cal.4th 344, 384.)
       The questions were appropriate. The prosecutor may challenge defense
witnesses’ credibility. (People v. Earp, supra, 20 Cal.4th at p. 894.) He did so,
and rather vigorously. The questions, “though barbed and accusatory at times”
(People v. Pearson (2013) 56 Cal.4th 393, 436), were both answerable and
actually answered, and they elicited testimony within the witness’s personal
knowledge—whether he was lying. The witness himself injected into the
questioning that he had taken an oath. The prosecutor was entitled to ask a follow-
up question on that point. The trial court acted within its discretion in permitting



                                          49
these brief questions while limiting the length and scope of such questioning.
(People v. Chatman, supra, 38 Cal.4th at p. 384.)
       Second, defendant contends the prosecutor misstated the evidence
regarding Brandon Handshoe’s plea agreement during his final argument to the
jury. In response to defense counsel’s argument that the agreement made the
witness incredible, the prosecutor noted that Handshoe would be sentenced to 17
years in prison. He argued, “Is it a lesser sentence? You bet it is. . . . Is it still a
significant sentence? You bet it is. But, you know, the thing about Brandon
Handshoe’s ‘deal’ with the People is that it was done when it was done, and it was
done before he testified on the stand. And he could have blamed this crime on
Martians, and it wouldn’t have changed his 17-year stipulated sentence.”
       Defense counsel objected that the argument “misstates the evidence.” The
court ruled, “This is argument. Ladies and gentlemen, you will have a copy of the
agreement that was reached with Mr. Handshoe. I’m going to allow Mr.
McAllister to argue his viewpoint on what that means.”
       The prosecutor went on to argue, “This would not have changed his
sentence, if he came in and said Martians. Now, if you could make a case for
perjury, . . . you can do a low-level felony, couple years maximum in state prison
or something like that. The point is: The deal was struck, and no matter what he
said, he was getting 17 years. If he came in and said it was Martians that did it,
the deal that he was going to testify and get 17 years was a done deal. It can’t go
up, it can’t go down; that’s the way it is.”
       Later, outside the jury’s presence, defense counsel renewed the objection.
The court explained why it did not sustain the objection: “When the objection was
made, it did appear to me that it might have been a characterization that was not
borne out by the language of the agreement itself. And it could be, however, that
any reasonable person reviewing that would conclude that what is the truth and

                                           50
what is not the truth is going to be hard to establish; and, therefore, it would be
difficult to revoke that agreement. My response was to leave that decision in the
hands of jurors, simply because the agreement, the precise language of that, is
going to be accessible. They can interpret it and determine if it was
mischaracterized by Mr. McAllister.”
       To the extent the prosecutor argued that the agreement could never be
rescinded under any circumstances, it mischaracterized the agreement—as any
juror reading it would readily understand. Given the court’s response in front of
the jury, and its decision to make the agreement itself available to the jury, we see
no reasonable likelihood the jury understood or applied the argument in an
objectionable way. (People v. Linton (2013) 56 Cal.4th 1146, 1205.) The jury
knew exactly what the agreement said.
       Third, defendant contends the prosecutor improperly vouched for his case
in his final argument. The prosecutor argued, “But for the two defendants in this
room [defendant and Lee] Stephen Brucker would be alive today. I believe with
all my heart that I’ve provided you with the evidence to prove that that is true.”
Later, outside the jury’s presence, defense counsel objected that the argument was
improper vouching. The court disagreed: “I don’t believe that was vouching for
the credibility of any particular witness. I believe it was establishing that, in terms
of the case that has been presented, the evidence that has been presented, the
People have presented, and he was arguing he has presented a comprehensive
case. I don’t believe it could be interpreted that Mr. McAllister has inside
information, that he is communicating on what the jurors should rely in
determining the credibility of any particular witness.”
       Improper vouching occurs when the prosecutor either (1) suggests that
evidence not available to the jury supports the argument, or (2) invokes his or her
personal prestige or depth of experience, or the prestige or reputation of the office,

                                          51
in support of the argument. (People v. Seumanu (2015) 61 Cal.4th 1293, 1329;
People v. Linton, supra, 56 Cal.4th at p. 1207.) The prosecutor did not suggest his
argument was based on evidence not available to the jury. On the contrary, he
stated that it was based on the evidence he had “provided.” To the extent the
prosecutor’s language, “I believe with all my heart,” could be viewed as invoking
his personal prestige or depth of experience, the brief remark could not have been
prejudicial. We caution, however, that prosecutors should be wary of mentioning
their personal beliefs about the quality of the evidence.
       Finally, defendant contends the prosecutor committed misconduct by
failing to redact a portion of the transcript of Handshoe’s free talk before, he
claims, the transcript was shown to the jury. Defendant did not object at trial on
that basis, so the claim is forfeited. Additionally, the record does not support
defendant’s claim that the jury was shown the transcript.
       Defendant cites only the trial court’s statement, when it overruled
defendant’s objection to the prosecutor’s argument regarding Handshoe’s plea
agreement, that the jury “will have a copy of the agreement.” That statement
indicates that the jury would receive a copy of the agreement. It does not suggest
the jury would receive, or did receive, a copy of the transcript of the free talk that
had occurred a month before the agreement. Nothing indicates the jury received
the transcript. A copy of the agreement to engage in the free talk and of the
ultimate plea agreement, consisting of three pages total, was marked into evidence
as People’s exhibit 66 and eventually received into evidence. That exhibit appears
to be what the court was referring to. The record does not indicate a transcript of
the free talk itself was even marked as an exhibit, much less received into
evidence. Defendant’s attorney cross-examined Handshoe about the existence of
the free talk but not about its substance. She did not use the transcript itself.



                                          52
       Because the record does not support defendant’s claim that the jury was
given the transcript of the free talk, we need not consider whether presenting it to
the jury would have been error or misconduct.

           17. Court’s Response to the Other Jury’s Verdict
       Apollo Huhn was tried in front of a different jury than defendant and Randy
Lee. The Huhn jury returned a verdict before defendant’s jury did. Defendant
contends the court erred in handling that situation.

                a. Factual Background
       Huhn’s jury began deliberating two days before defendant’s jury. While
the Huhn jury was deliberating, counsel for defendant requested that if Huhn’s
jury reached a verdict before defendant’s jury did, the verdict be sealed until
defendant’s jury also reached a verdict. The prosecutor expressed the concern
that, unless Huhn waived the right to have the jury polled in open court, sealing
the verdict would not ensure that the verdict would be valid later if something
were to happen to one of the jurors. Counsel for Huhn stated he would not waive
the right to have the jury polled.
       The court responded that it would “think about this, and maybe delve into
it . . . and possibly come up with a proposal that satisfies a legitimate concern
expressed by the People. If there is a verdict and we’re going to seal it, how do we
ensure that that becomes an official verdict at some point in time, should there be a
loss of a juror?” The prosecutor suggested “that we take the verdict in a closed
courtroom, and you put a protective order on the result, and that the verdicts are
sealed in court.” The court responded, “There seems to be concurrence by the
People that the effort to ensure that there is not dissemination of a verdict by one
panel before the verdict of the other panel is a good objective, a reasonable goal.




                                          53
We will try to achieve that without jeopardizing the rights of either party.” The
court then recessed for the day.
       The day after defendant’s jury began deliberating, the Huhn jury announced
it had reached a verdict. In Huhn’s matter, in the absence of defendant and his
attorneys, Huhn’s attorney, the prosecutor, and the court discussed how to
proceed. The court noted that, even though defendant and his attorneys were not
present, they had requested “that the court take precautions to ensure that the
continuing deliberations of one jury are not affected or influenced in any way by a
public verdict.” It recognized that “it is so sensitive at this point in time that we
have a jury deliberating on identical facts, that there has to be some step to ensure
that the other jury is not influenced. I don’t want to jeopardize any rights that Mr.
Huhn has or the People in terms of this jury, but I think that we can take some
steps that satisfy the needs of the People, Mr. Huhn, as well as the needs of the
defendants who currently have a jury out deliberating their fate.”
       The court suggested sealing the verdict form and having the jury return
later to complete taking the verdict. However, Huhn’s attorney refused to waive
the right to have the jury polled, to have a public hearing, and to have the verdict
taken that day. Citing Penal Code section 1147, the court stated that, although its
preference would be to “take some steps to ensure that the verdict is not public,”
without a waiver from Huhn, it was “obligated to take the verdict. And, therefore,
we will take the verdict.” Thereafter, in open court, the jury Huhn returned a
verdict of guilty.
       Later that day, while defendant’s jury was still deliberating, the parties in
defendant’s matter discussed the situation. The court stated the intent “to simply
repeat the standard admonishments.” It also asked were there “any suggestions
regarding the admonishments? I am not going to focus on there is going to be a
news report, I’m just going to emphasize the standard order is in place, unless

                                          54
either side would like me to focus on the likelihood that there is going to be news
reports so please, please, be cautious, have somebody screen the paper for you. I
don’t want to do that, unless you both agree, because it seems to arouse curiosity
unnecessarily, and then I will.” Defendant’s attorney responded, “I agree with the
court on that, and besides, the cat is kind of out of the bag at this point.”
       When defendant’s jury recessed for the day, the court admonished it: “I
simply want to remind you of certain rules while you’re off for a long weekend. I
appreciate the fact that you’re probably tired of hearing me admonish you
regarding what can and cannot be said outside the jury deliberation room, but this
is so important that I thought I will bring you in again and remind you. The
separation is going to be fairly lengthy. You will be off tomorrow and returning at
nine o’clock Monday. During this period of time, do not discuss anything
concerning the case with anyone. I’m going to repeat that. Do not discuss
anything regarding the case with anyone. That means family members, spouses,
brothers, sisters, neighbors, you cannot talk about this case at all. . . . Do not read,
view, listen to any account or discussion of the case reported in the news media.
Please be cautious. This is a long period of time where you’re going to be away
from the courthouse. Don’t let any family member coax you into looking at
something that they feel might be associated with the case. Be cautious, don’t
scan the headlines, just ignore them, if you would, the local section, regarding any
type of criminal case.”
       The court asked the jury if there was any uncertainty about these orders. “If
there is,” it instructed, “please let me know, because it is so important that you
abide by these.” There was no response. The court then recessed for the weekend.
       The jury resumed deliberation the following Monday. Outside the jury’s
presence, defendant’s attorney objected to the process of taking the Huhn verdict.
He presented the court with an online article and a newspaper article about the

                                           55
verdict that he claimed were prejudicial. The jury returned its verdict later that
day.

                 b. Analysis
       Defendant contends the court should have delayed taking the Huhn verdict
until his own jury reached a verdict, or sealed the verdict rather than take it in
open court, or imposed a “gag order,” or at least inquired into whether the Huhn
verdict had influenced his jury. We disagree. The court handled the situation
appropriately.
       The trial court was properly concerned that Huhn had the right to have the
verdict taken that day, to have the proceeding be public (a right the public
probably also had), and to poll the jurors about their verdict. (Pen. Code, §§ 1147,
1163; Press-Enterprise Co. v. Superior Court of Cal. (1984) 464 U.S. 501; NBC
Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178 (NBC
Subsidiary); People v. Edwards (1991) 54 Cal.3d 787, 812-813.) Huhn refused to
waive any of his rights. We need not consider in detail the exact nature of these
rights or the potential consequences of violating any of them, because the court
acted with proper caution in trying to protect Huhn’s rights by taking the verdict
that day in open court. Additionally, under the circumstances, trying to impose a
gag order on the parties, court personnel, media, and public would probably have
been inappropriate and certainly unrealistic. We cannot fault the court for taking
the verdict in open court and permitting the press to report it.
       Instead, the court firmly readmonished the jury not to read or view any
media coverage of the trial. “We must presume that jurors generally follow
instructions to avoid media coverage, and to disregard coverage that they happen
to hear or see. . . . ‘[A]bsent a contrary indication in the record, it must be
assumed the jury followed its instruction to avoid all publicity in the case.’ . . .



                                          56
To paraphrase Justice Holmes, it must be assumed that a jury does its duty, abides
by cautionary instructions, and finds facts only because those facts are proved.
(Aikens v. Wisconsin (1904) 195 U.S. 194, 206.)” (NBC Subsidiary, supra, 20
Cal.4th at pp. 1223-1224; see Skilling v. United States (2010) 561 U.S. 358, 388,
fn. 21.) Defendant suggests the admonition was insufficient. But he did not
request an alternative, even though the court invited suggestions. The admonition
seems sufficient to us.
       Defendant also argues the court should have inquired into whether the
Huhn verdict had influenced his jury. He did not request an inquiry at the time.
(People v. Martinez (2010) 47 Cal.4th 911, 943.) But even if we assume the
failure to request an inquiry does not forfeit the claim, as we assumed in Martinez,
no inquiry was needed. “ ‘The decision whether to investigate the possibility of
juror bias, incompetence, or misconduct . . . rests within the sound discretion of
the trial court. . . . [A] hearing is required only where the court possesses
information which, if proven to be true, would constitute “good cause” to doubt a
juror’s ability to perform his duties and would justify his removal from the case.’ ”
(People v. Manibusan, supra, 58 Cal.4th at p. 53; accord, Martinez, at p. 942.)
Here, no information suggested juror misconduct was occurring or was likely to
occur. Although the court had the authority to conduct an inquiry had it believed
one was warranted (see NBC Subsidiary, supra, 20 Cal.4th at p. 1224, fn. 50), it
did not abuse its discretion in failing to hold one.
       Defendant cites People v. Cummings (1993) 4 Cal.4th 1233, another case
involving two juries. That case does not aid him. There, the trial court knew that
two jurors had learned of the codefendant’s jury verdict. The court then
appropriately conducted an inquiry to ensure that the jury remained impartial. (Id.
at pp. 1331-1332.) Here, the court had no information suggesting an inquiry was
needed.

                                          57
       Ultimately, the problem here was little different than the difficulties
inherent in conducting any publicized trial. The media will always cover such
trials, including during the trial itself. And, in this country, appropriately so. As
the United States Supreme Court has noted, “News coverage of civil and criminal
trials of public interest conveys to society at large how our justice system
operates.” (Skilling v. United States, supra, 561 U.S. at p. 399, fn. 34.) We must
trust the jury to follow its sworn duty to decide the case solely on the law and
evidence presented to it. The court’s admonitions to the jury were sufficient.
Absent information warranting further inquiry, none was required.

           18. Asserted Jury Misconduct
       Defendant contends the “jury engaged in misconduct when jurors were
given an exhibit not admitted into evidence during deliberations.” The jury did
not commit misconduct, although judicial error occurred.

                a. Factual Background
       John Pasquale, who had shared a jail cell in Oregon with defendant,
testified about defendant’s escape plans. On cross-examination, defense counsel
confronted him with a letter he had written to the prosecutor in this case stating,
“There is no doubt in my mind of Brandon Handshoe’s [sic] guilt in your case
against him because of information he disclosed to me in Burns County Jail in
Oregon where we shared a cell.” He also said, “I would like to help you to convict
him of murder an[d] see to the fact that he never kills again.” In the letter,
Pasquale asked the prosecutor for help in avoiding a prison sentence in Colorado.
He testified that he meant defendant rather than Handshoe. He used the name
“Brandon Handshoe” in the letter because, he believed, that was what defendant
had originally told him defendant’s name was. He never actually met the real
Brandon Handshoe. The letter was placed into evidence.



                                          58
       On redirect examination, the prosecutor showed the witness a letter from
the prosecutor to the witness responding to the witness’s letter. The prosecutor
stated in the letter that there was nothing he “can do regarding any cases you may
have pending.” The letter also stated, “I also appreciate how difficult it is to find
yourself in the position of being compelled to testify in such a serious case while
incarcerated as an inmate. But, as you pointed out, the greater good here is to see
that Anderson is not in a position to harm others in the future.” The witness
testified that he had not received the letter, and it was never admitted into
evidence. The clerk’s transcript indicates the letter had been withdrawn but then
was “erroneously submitted to” defendant’s jury.
       After trial, defendant moved for a new trial due to the jury’s mistakenly
receiving the letter. At the hearing on the motion, the court acknowledged that it
appeared the letter had been erroneously “placed in the jury room.” It also
assumed, “in ruling on this motion that the jurors looked at this letter, even though
there is no evidence that they, in fact, did.” However, it found no prejudice and
denied the new trial motion.

                b. Analysis
       Defendant claims the jury committed misconduct. However, even
assuming, as the trial court did, that the jury viewed the letter, it did nothing
wrong. “When, as in this case, a jury innocently considers evidence it was
inadvertently given, there is no misconduct. . . . There has been merely ‘an error
of law . . . such as . . . an incorrect evidentiary ruling.’ [Citation.] Such error is
reversible only if it is reasonably probable that a result more favorable to the
defendant would have been reached in the absence of the error.” (People v.
Cooper (1991) 53 Cal.3d 771, 836.)




                                           59
       No such reasonable probability exists in this case. The error was
insignificant. The letter contained no factual content, merely the prosecutor’s
rather mildly stated opinion. The jury already knew, through defendant’s cross-
examination and the letter the witness wrote, that Pasquale professed to believe
defendant guilty and in need of being convicted so he would not kill again.
(Pasquale used the name “Handshoe” in the letter, but, as he testified, he obviously
meant defendant. Pasquale shared a cell only with defendant and never with
Handshoe.) Given the evidence the prosecutor had presented, it could hardly be a
revelation for the jury to learn that, in responding to Pasquale’s letter, the
prosecutor agreed that defendant must not be in a position to harm others.
       Contrary to defendant’s additional argument, the error was also not
prejudicial at the penalty phase. The same prosecutor’s penalty argument to the
jury was much stronger than the single sentence defendant complains of now.
Accordingly, the court did not abuse its discretion in denying the new trial motion.
(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 127.) Indeed, we are
confident under any standard that the verdicts rested on the evidence, instructions,
and argument properly presented, and not at all on the letter the jury was
inadvertently permitted to see.

       B. Issues Concerning Penalty

           1. Defendant’s Statement to the Jury
       Defendant contends that the court’s permission to make his statement to the
jury quoted in part I.B.2, ante, denied him a reliable penalty determination in
violation of various state and federal constitutional rights. (See People v. Mai
(2013) 57 Cal.4th 986, 1054.) He argues the court should have prohibited the
statement or at least stricken the harmful part. We disagree. Acquiescing in
defendant’s wishes did not violate his rights.



                                          60
       A defendant has an “absolute right to testify,” and that right “cannot be
foreclosed or censored based on content.” (People v. Webb (1993) 6 Cal.4th 494,
535, citing People v. Guzman (1988) 45 Cal.3d 915, 962.) Defendant’s statement
was not entirely harmful to him. He was able to assert his innocence without
subjecting himself to cross-examination. We do not suggest defendant had a right
to make such a statement rather than testify in the usual fashion, merely that once
the court permitted him to do so, it could not censor what he said. (See People v.
Cleveland (2004) 32 Cal.4th 704, 766.) Presumably, defendant would not want
the court to prohibit or strike that portion of his statement, only the harmful part.
But the court had no obligation to strike any portion of the statement.
       “[W]e have repeatedly rejected the contention that the constitutional
reliability of a death judgment is undermined by recognizing the defendant’s
personal right to testify in favor of the death penalty.” (People v. Mai, supra, 57
Cal.4th at p. 1056, citing People v. Nakahara (2003) 30 Cal.4th 705, 719, People
v. Webb, supra, 6 Cal.4th at pp. 534-535.)
       Defendant also argues that the trial court should at least have instructed
“the jury sua sponte not to consider [his statement] in choosing the appropriate
penalty.” In People v. Guzman, supra, 45 Cal.3d at page 962, we suggested that
the court might give a special instruction “inform[ing] the jury that despite the
defendant’s testimony, it remains obligated to decide for itself, based on the
statutory factors, whether death is appropriate.” We also held the court had no sua
sponte duty to give the instruction. (Ibid.) The trial court gave such an instruction
in Webb. (People v. Webb, supra, 6 Cal.4th at p. 535 & fn. 29.)
       The court here did give essentially that instruction. When the parties
discussed the penalty instructions, the court stated that, “in anticipation of Mr.
Anderson’s testimony,” it had added to the standard instructions language that
“each of you remain obligated in weighing the factors in aggravation and

                                          61
mitigation whether death is the appropriate penalty despite testimony offered by
the defendant suggesting . . . .” At this point, the court invited suggestions, and
the parties discussed the exact language to be used. The court agreed to language
that defense counsel either suggested or said he wanted. Defense counsel
requested no other instruction in this regard. Ultimately, the court modified the
standard instruction to add the following: “Each of you remains obligated to
decide for yourself, based upon the weighing of the factors in aggravation and
mitigation, whether death or life without possibility of parole is the appropriate
penalty, despite testimony offered by the defendant suggesting a preference for a
particular penalty.”
       This instruction was sufficient to protect defendant from an unreliable
verdict. (People v. Webb, supra, 6 Cal.4th at p. 535.) Indeed, we have upheld
death verdicts even absent such a specific instruction. (People v. Mai, supra, 57
Cal.4th at p. 1056 [finding the other instructions sufficient]; People v. Nakahara,
supra, 30 Cal.4th at p. 719 [“The jurors in this case were properly instructed that
their duty was to decide the appropriate penalty, based on the law and the
evidence, and defense counsel’s closing arguments confirmed that principle and
expressed skepticism about defendant’s asserted preference for death”].) The
prosecutor never relied on defendant’s statement in seeking the death penalty. His
only comment on that statement, an indirect one, came near the end of his jury
argument where he said, “This is not about what the defendant wants. It is about
what he deserves.” Defense counsel also argued that defendant’s “request for a
death sentence is something that is not an appropriate consideration for you.
You’re going to be specifically instructed that that is not something for you to base
your verdict on, penalty on.” (The jury instruction in this regard came after
argument.)



                                          62
       Defendant argues that a different instruction was necessary. But he
requested nothing different. Indeed, he participated in the discussion leading to
everyone agreeing on the exact language the court should use. In substance, that
language was what we suggested in Guzman and what was given in Webb.
Because there was no sua sponte duty to give any instruction, there certainly was
no sua sponte duty to give a different instruction. We see no error.

           2. Claims of Instructional Error
       The court gave the standard instructions set forth in CALJIC Nos. 8.85 and
8.88 as they existed at the time of trial (see CALJIC, Oct. 2005 ed.) except that it
modified CALJIC No. 8.88 in two respects. First, at the request of both the
prosecutor and defendant, it added the sentence, “In reaching your determination
on the appropriate penalty, you must consider death to be a greater punishment
than life without possibility of parole.” Second, it added the sentence discussed in
part II.B.1., ante, referring to defendant’s statement. Defendant contends the court
erred in denying his request to modify the instructions in three other respects. We
disagree. “In general, we have consistently held that the standard jury
instructions, CALJIC Nos. 8.85, 8.86, 8.87, and 8.88, adequately and properly
instruct on the jury’s determination of sentence.” (People v. Bryant, Smith and
Wheeler, supra, 60 Cal.4th at p. 456.) “No additional instructions were required.”
(People v. Valencia (2008) 43 Cal.4th 268, 309.)
       First, defendant contends the court should have revised CALJIC No. 8.85 to
state “that the list of aggravating and mitigating factors was an exclusive list.” But
the standard instructions the court gave effectively do so. The court instructed:
“You shall consider, take into account and be guided by the following factors, if
applicable.” Then follows the statutory factors. (CALJIC No. 8.85.) The court
also instructed: “[Y]ou shall consider, take into account and be guided by the



                                         63
applicable factors of aggravating and mitigating circumstances upon which you
have been instructed.” (CALJIC No. 8.88.) No additional limiting instruction was
required. (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 457;
People v. Sattiewhite (2014) 59 Cal.4th 446, 490; People v. Lucero (2000) 23
Cal.4th 692, 728.)
       As defendant notes, in People v. Hillhouse (2002) 27 Cal.4th 469, 509,
footnote 6, we said, “To avoid any possible ambiguity in the future, we suggest
that, on request, the court merely tell the jury it may not consider in aggravation
anything other than the aggravating statutory factors.” But the “possible
ambiguity” mentioned existed only in the specific instructions given in that case; it
does not exist in the standard instructions given here. In Hillhouse, the court
“instructed the jury, ‘The factors A through J [of Penal Code section 190.3] which
I have just listed are the only factors that can be considered by you as aggravating
factors . . . .’ ” (Id. at p. 508, italics added.) The defendant argued that this
instruction allowed the jury to consider in aggravation all the listed factors,
including those that can only mitigate. We rejected the argument but added the
suggestion in footnote 6. (Id. at pp. 508-509.) Nothing in the standard
instructions given here suggests that mitigating factors can be considered in
aggravation, so the suggestion in footnote 6 of Hillhouse is not needed. The cases
cited above rejecting this contention apply here, not Hillhouse.
       Second, defendant argues the court should have revised the standard
instruction to state “that there need not be any mitigating circumstances to justify a
decision that the penalty be life without parole.” We have repeatedly rejected the
contention and continue to do so. The additional language was unnecessary in
light of the instruction actually given. (People v. Bryant, Smith and Wheeler,
supra, 60 Cal.4th at p. 457; People v. Ray (1996) 13 Cal.4th 313, 355-356.)



                                           64
       Third, defendant argues the court should have instructed on lingering doubt.
It did not have to do so. “[A] penalty phase jury may consider lingering doubt as a
factor in mitigation. But . . . a trial court is under no obligation, constitutional or
otherwise, to give a lingering doubt instruction.” (People v. Brooks, supra, 3
Cal.5th at p. 104.) As the trial court noted in refusing defendant’s request, the
defense may argue lingering doubt. Defense counsel did so, at length. But no
specific instruction was needed.

           3. Challenges to California’s Death Penalty Law
       Defendant repeats many challenges to California’s death penalty law that
we have repeatedly rejected and continue to reject.
       “Penal Code sections 190.2 and 190.3 are not impermissibly broad, and
factor (a) of Penal Code section 190.3 does not make imposition of the death
penalty arbitrary and capricious.” (People v. Sánchez, supra, 63 Cal.4th at p. 487.)
“ ‘Except for evidence of other crimes and prior convictions, jurors need not find
aggravating factors true beyond a reasonable doubt; no instruction on burden of
proof is needed; the jury need not achieve unanimity except for the verdict itself;
and written findings are not required.’ ” (Ibid.) “Intercase proportionality review
is not required.” (Id. at p. 488.) “Admission of evidence of prior unadjudicated
criminal activity does not violate a defendant’s constitutional rights.” (People v.
Hartsch (2010) 49 Cal.4th 472, 515.) “The trial court is not obligated to advise
the jury which statutory factors are relevant solely as mitigating circumstances and
which are relevant solely as aggravating circumstances.” (People v. McKinnon
(2011) 52 Cal.4th 610, 692; see People v. Page (2008) 44 Cal.4th 1, 61.)
“California’s death penalty law does not violate equal protection by treating
capital and noncapital defendants differently.” (Sánchez, at p. 488.) “California’s
use of the death penalty does not violate international law.” (Ibid.)



                                           65
       Defendant argues we should not consider these arguments in isolation but
should view California’s death penalty law as a whole. Citing Kansas v. Marsh
(2006) 548 U.S. 163 (holding, in light of the statutory scheme as a whole, that the
statute’s requirement that death be imposed if aggravating and mitigating factors
are in equipoise did not create a presumption in favor of death) and Pulley v.
Harris (1984) 465 U.S. 37, 51 (rejecting the contention that comparative
proportionality review is required in death penalty cases but, “[a]ssuming that
there could be a capital sentencing system so lacking in other checks on
arbitrariness that it would not pass constitutional muster without comparative
proportionality review,” reviewing the entire statutory scheme), defendant argues
that the “constitutionality of a State’s death penalty system turns on review of that
system in context.” Even considering the arguments in combination, and viewing
the death penalty law as a whole, it is not constitutionally defective. Defendant’s
challenges to California’s death penalty scheme “are no more persuasive when
considered together,” than when considered separately. (People v. Simon (2016) 1
Cal.5th 98, 150.) “California’s capital sentencing scheme as a whole provides
adequate safeguards against the imposition of arbitrary or unreliable death
judgments.” (People v. Williams (2008) 43 Cal.4th 584, 648; accord, People v.
Johnson (2016) 62 Cal.4th 600, 658.)

           4. Cumulative Effect of the Errors
       Defendant contends the cumulative effect of the asserted errors was
prejudicial as to both guilt and penalty. We disagree. The errors, actual or
assumed, were insignificant. Even in combination, they were not prejudicial.

           5. Determinate Sentence on Noncapital Crimes
       In addition to sentencing defendant to death, the court imposed a prison
sentence for the other counts and prior convictions. The sentence included a



                                         66
consecutive one-year enhancement for the prior prison term. (Pen. Code, § 667.5,
subd. (b).) Defendant argues, and the Attorney General concedes, that, because
the prison term was served for two of the convictions for which the court also
enhanced the sentence, the enhancement for the prior prison term must be stricken.
We agree. (People v. Jones (1993) 5 Cal.4th 1142.)


                                 III. CONCLUSION
       We modify the judgment by striking the one-year enhancement for the prior
prison term and direct the trial court to send to the Department of Corrections and
Rehabilitation a corrected abstract of judgment with the enhancement stricken.
We affirm the judgment as modified, including the judgment of death.

                                                         CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GILBERT, J.*




——————————————————
*      Presiding Justice of the Court of Appeal, Second Appellate District,
Division Six, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.


                                         67
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Anderson
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S138474
Date Filed: June 28, 2018
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Lantz Lewis

__________________________________________________________________________________

Counsel:

Joanna McKim, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Julie L. Garland, Assistant Attorney General,
Holly D. Wilkens, Theodore M. Cropley and Michael T. Murphy, Deputy Attorneys General, for Plaintiff
and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Joanna McKim
P.O. Box 19493
San Diego, CA 92159
(619) 303-6897

Michael T. Murphy
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9211
