Filed 4/26/12


      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )
           v.                        )
                                     )                             S097189
JOHN MYLES,                          )
                                     )                    San Bernardino County
           Defendant and Appellant.  )                   Super. Ct. No. FSB10937
____________________________________)


      A jury convicted defendant John Myles and a codefendant, Tony Tyrone
Rogers, of the first degree murder of Fred Malouf (Pen. Code, § 187, subd. (a)),1
and found true the special circumstance allegations that the murder was committed
while defendant and Rogers were engaged in the commission of robbery (§ 190.2,
subd. (a)(17)(A)).2 The jury also convicted defendant of the second degree
robbery of two other victims (§ 211), and unlawful possession of a firearm (former
§ 12021, subd. (a)(1) (now § 29800, subd. (a)(1); Stats. 2010, ch. 711)).3 In


1      All further statutory references are to the Penal Code unless otherwise
indicated; references are to the provisions effective at the time of trial.
2      Outside of the jury‟s presence during the defense case, defendant admitted
that he had suffered a prior felony conviction. As a result of that admission, the
jury was not called upon to determine the truth of a “second strike” allegation
pursuant to section 667, subdivisions (b) through (i), or to decide whether
defendant was a felon for purposes of the felon-in-possession charge under former
section 12021, subdivision (a).
3     Codefendant Rogers also was convicted of one count of second degree
robbery (§ 211), and the jury found true the allegations that he personally used a
                                                          (footnote continued on next page)


                                         1
connection with the murder and robbery counts, the jury found true the allegations
that defendant personally used a handgun. (§ 12022.5, subd. (a).)
      In a separate, subsequent proceeding, the same jury convicted defendant of
the first degree murder of Harry “Ricky” Byrd, and found true the special
circumstance allegation that defendant had been convicted of more than one
murder and the allegation that defendant personally used a handgun in the murder.
(§§ 187, subd. (a), 190.2, subd. (a)(3), 12022.5, subd. (a).) After the penalty
phase, it returned a verdict of death. Defendant moved for new trial (§ 1181), and
for modification of his sentence to life without the possibility of parole (§ 190.4,
subd. (e)). The trial court denied the motions and sentenced him to death.4
Defendant‟s appeal is automatic. (§ 1239, subd. (b).) For the reasons that follow,
we affirm the judgment.




(footnote continued from previous page)

handgun in the commission of the murder and the robbery (§ 12022.5,
subd. (a)(1)). He was sentenced to life in prison without the possibility of parole
consecutive to 10 years for the murder conviction.
4      The court also imposed an aggregate determinate sentence of 44 years
eight months, for the robbery and felon-in-possession convictions and firearm-use
findings, but ordered all but 11 years four months of that term stayed pursuant to
section 654. As discussed post, in part II.C.3., we order that the abstract of
judgment be corrected in a minor respect with regard to the determinate term.




                                          2
                                      I. FACTS

       A. Guilt Phase Evidence

           1. Prosecution evidence

                a. The murder of Harry “Ricky” Byrd5
       Juli Inkenbrandt was a methamphetamine user. On April 11, 1996, she
borrowed a neighbor‟s Buick sedan to drive her drug dealer friend, Jshakar Morris,
and defendant to the West Side neighborhood in San Bernardino. They told her
they needed to “collect some money.” Morris sat in the front passenger seat and
defendant, whom Inkenbrandt did not know, sat in the backseat behind Morris.
Inkenbrandt‟s one-year-old daughter was in a car seat to the left of defendant in
the backseat.
       Inkenbrandt drove to an area known as California Gardens. As she headed
down Magnolia Avenue, defendant directed her to pull up to a group of young
men who were talking in the front yard of a house. Inkenbrandt stopped the car in
the middle of the street and defendant yelled out of the left backseat window
something to the effect of “You guys know Smoke?” They shrugged their
shoulders and said, “No.” One member of the group, Harry “Ricky” Byrd
(Ricky), suggested to defendant that he “[g]o check on the dark side.” The young
men then resumed their socializing.
       Defendant and Morris directed Inkenbrandt to continue driving.
Unbeknownst to defendant and Morris, they passed Ricky‟s cousin, Gary Lee,
who was standing outside talking with Darion “Smoke” Robinson.


5       As discussed more fully post, in part II.A.1., trial on the Ricky Byrd murder
count was bifurcated from, and conducted subsequently to, trial on the charges
stemming from the incident at the Pepper Steak Restaurant that occurred nine days
after the Ricky Byrd shooting.



                                         3
       After several minutes of driving around, defendant directed Inkenbrandt to
return to where the young men were gathered on Magnolia Avenue. Driving in
the same direction as at the time of the initial encounter, Inkenbrandt pulled the
Buick closer to the group as defendant instructed. Defendant again yelled to them
from the left backseat window, this time asking whether they would “give Smoke
a message for him.” Ricky, who was leaning on the side of a friend‟s car that was
parked between him and the Buick, replied, “Okay. What‟s the message?”
Defendant reached over the baby in the car seat, pointed two guns out the window,
and fired twice. The young men dropped to the ground for cover, and the Buick
drove off. Ricky suffered a fatal gunshot wound to his upper chest. Another
bullet struck the driver‟s seat headrest in the parked car.
       As Inkenbrandt sped away from the scene at defendant‟s direction, they
again passed Gary Lee and Darion Robinson, who were still outside talking. This
time, defendant shot at them with what sounded to Lee like a .22-caliber revolver.
The two men ducked behind a parked car until the Buick was gone. They then
pursued their assailant by car, but lost sight of the Buick as it headed toward
Interstate 215. However, Lee thought that he recognized the car and the driver,
and he drove to an area where he believed he might find them.
       When defendant‟s group arrived back at Inkenbrandt‟s apartment complex,
defendant and Morris instructed her to park behind the buildings. Defendant then
removed the shell casings from inside the vehicle and they left, telling Inkenbrandt
to forget what she had seen. Inkenbrandt used the Buick to run some errands. On
her return 15 to 20 minutes later she parked in her normal parking spot in front of
the buildings. Shortly after her arrival, defendant and Morris ran up to her, asking
for a ride to an area where they sold drugs. Inkenbrandt dropped them off as
requested, then returned home, again parking in the front of the apartment
complex.

                                           4
       At some point when the Buick was parked in front of the apartment
complex, Lee and Robinson had driven by and located it. Seeing no one in the
Buick, they returned to Magnolia Avenue, where they discovered that Ricky had
been fatally shot. After hearing witnesses describe the car involved in that
shooting, Lee realized that it was the same car from which shots had been fired at
him. When Lee led police officers to where he had spotted the vehicle, it was no
longer there. However, police were on the scene moments after Inkenbrandt
returned to the apartment complex after dropping off defendant and Morris. A
witness from the Magnolia Avenue shooting was sitting in the back of an
unmarked police vehicle and he identified the Buick and Inkenbrandt as the driver.
When police then contacted Inkenbrandt in her apartment, she told them what had
happened from “the beginning to the end.” As she explained at trial, she talked
with the officers about the incident because she “wasn‟t going down for a murder I
didn‟t commit that they were stupid enough to do.”
       Approximately three weeks after the shootings, two other eyewitnesses
attended a live lineup and identified defendant as the gunman. They also
identified him at trial. Inkenbrandt likewise identified defendant, first by
photograph, then at a live lineup, and finally at trial. Although one other
eyewitness to the shooting had never been asked to view a photographic array or
attend a live lineup, he positively identified defendant at trial.
       Investigating officers searching the area where Ricky was shot recovered a
live .380-caliber round of ammunition and a spent .380-caliber shell casing. The
.380-caliber round bore an “FC” headstamp and the casing had a Winchester
headstamp. During the investigation of the shooting, a search of a room at the
Phoenix Motel in San Bernardino yielded defendant‟s fingerprints and clothing,
along with eight live .380-caliber rounds of ammunition, one live .22-caliber
round, and two expended .22-caliber shell casings. One of the .380-caliber rounds

                                           5
discovered in the motel room had an “FC” headstamp like the live round found at
the scene where Ricky was shot. And ballistics testing showed that the bullet that
killed Ricky was of the same variety as bullets in the live .380-caliber rounds
found at the scene of the shooting and at the Phoenix Motel.
       In connection with the subsequent shooting incident at the Pepper Steak
Restaurant in nearby Colton, officers searched a vehicle parked in the lot of an
apartment building in San Bernardino. They found inside the trunk a Lorcin .380-
caliber semiautomatic handgun wrapped in a towel. Although the prosecution‟s
firearms expert could not state conclusively that the bullet that killed Ricky had
been fired from the Lorcin, he expressed the view that it could have been. The
parties stipulated at trial that, if called to the stand, witnesses would testify that a
person they believed to be defendant possessed a Lorcin semiautomatic handgun.

                b. Robbery Murder at the Pepper Steak Restaurant
       Nine days after Ricky Byrd‟s murder, defendant, with 17-year-old Tony
Tyrone Rogers, used a firearm to commit a robbery that led to another death.
       On April 20, 1996, Fred Malouf (hereafter sometimes Fred), his wife
Donna Malouf (Donna),6 and Donna‟s mother went to the Pepper Steak Restaurant
in Colton at around 8:00 p.m. for coffee. Donna was an employee of the
restaurant and had worked the morning shift that day. Fred was a retired captain
in the Colton Police Department.
       After the Malouf party sat down in a booth at the back of the restaurant, a
waitress named Krystal Anderson walked over to say hello. Donna testified at
trial that moments later, defendant came running through the restaurant yelling,


6    At the time of trial, Donna Malouf had remarried and went by the name
Donna Malouf Lawrence.




                                            6
“It‟s a robbery. I‟ll shoot. Get your money out.” He was holding a large
semiautomatic gun in his right hand. A mask came across his mouth and nose,
and he was wearing a beanie on his head.
       Donna further testified that she immediately rose from the booth and started
walking toward the kitchen because she knew that a gun was kept there. Before
she reached her destination, however, defendant ran up and grabbed her by the
hair. He yelled and cursed at her, wanting to know whether she was the manager
and where the safe was located, and threatening to “blow [her] head off.” Donna
told him there was no manager and no safe. According to Donna‟s testimony,
defendant was yelling so hard that his mask slipped below his nose, and she could
see all of his face except for his mouth and the top of his head. He then wrapped
his hand holding his gun around Donna‟s throat and dragged her by the hair into
the kitchen.
       Donna noticed that three other employees and the codefendant, Tony
Rogers, were inside the kitchen. Rogers also was armed with a large
semiautomatic gun, and he was wearing a hat but no mask. Defendant directed
Rogers to shoot Donna if she moved, then left the kitchen and returned to the
dining area. Several minutes later, Donna noticed Fred‟s face in the window of
the kitchen‟s back door.
       Rogers ran toward the back door just as Fred was entering. When Fred
attempted to wrest control of Rogers‟s gun, a shot rang out. Donna saw Fred fall
back into the women‟s restroom. Rogers then stood over Fred and shot him
repeatedly. At some point, Fred managed to remove his gun from his ankle holster
and shoot Rogers in the upper chest. Rogers screamed, “I‟ve been shot,” and ran
past Donna to exit the kitchen and flee.
       Other restaurant employees and patrons gave varying accounts of the
sequence of events prior to the shooting. Krystal Anderson, the waitress who was

                                           7
talking with the Maloufs at the outset of the robbery, testified that defendant
dragged Donna by the hair and forced her into a booth, then pushed Anderson
toward the cash register near the front of the restaurant by kicking her legs and
hitting her. When Anderson had trouble complying with defendant‟s repeated
demands to open the register, he hit her in the stomach with his gun. After she
finally managed to open the register, defendant took out the money, which was
mostly $5 and $10 bills. Defendant then reached into Anderson‟s apron and
removed her tips. Another witness, Harold Lewis, was seated with his wife and
grandson in a booth across from the cash register when defendant came into the
restaurant waving his gun and demanding that everyone put their money on the
table. According to his testimony, defendant first dragged Donna to the cash
register before grabbing the other waitress. After taking the money from the till,
defendant came up to Lewis, twisted Lewis‟s arm behind his back, and pointed the
gun behind his ear. He then took the billfold and money that Lewis had placed on
the table.
       There were some discrepancies in the testimony of the eight witnesses
regarding the events in the restaurant before the shooting. But the witnesses
testified consistently that after the shots were fired, defendant first ran back to the
door leading to the kitchen and then fled through the front door of the restaurant.
Three witnesses further testified that they saw defendant point his gun in the
kitchen‟s passthrough window and heard it click, but that the gun did not fire.
       Officers responding to a dispatch regarding the robbery found Rogers
hunched over on the sidewalk a short distance away. There was a semiautomatic
handgun lying next to him. Rogers complained of a shotgun wound to the
stomach and officers observed blood in his abdominal area. He was handcuffed
and transported to the hospital, where he underwent emergency surgery. Officers



                                           8
took Donna to view Rogers in the hospital, where she identified him as the
shooter.
       An autopsy showed that Fred was shot five times at close range, suffering
gunshot wounds to his face, abdomen, knee, thigh, and wrist. The fatal wound
was the gunshot to the abdomen, which caused a small hole in the aorta that led to
massive internal hemorrhaging.
       Officers investigating the crime scene discovered extensive evidence of
gunfire in the kitchen area and restrooms, including 7 nine-millimeter cartridges,
an expended bullet, and numerous bullet fragments. Ballistics testing on the nine-
millimeter semiautomatic gun found next to Rogers at the time of his arrest
showed that all of the cartridges found in the kitchen had been fired from his
weapon.
       In the early morning hours the day after the shooting, officers contacted
Rogers‟s 22-year-old cousin, Earl Williams, who was allowing Rogers to live with
him. Williams told the officers that Rogers associated with three large African-
American men, one of whom he identified as J-Dog, the name by which defendant
was known. Williams also took the officers to the San Bernardino apartment
rented by Lateshia Winkler, where defendant occasionally stayed. Police then
brought Williams to the police station to question him about his possible
involvement in the crimes. He told officers that around 11:30 a.m. on the day of
the shooting, defendant came to his apartment looking for Rogers, saying he
needed “to talk to him about some cash flow.” Williams told defendant that
Rogers was socializing at a nearby apartment and defendant left. When he
returned to Williams‟s apartment with Rogers a short time later, Williams
overheard defendant telling Rogers that he had been watching two places for the
last two days and “we got to hit them before 8 o‟clock.” Williams testified at trial
that he did not recall most of what he had told the officers during the questioning.

                                          9
       Investigators also interviewed Lateshia Winkler, in whose apartment
defendant occasionally stayed. According to Winkler, defendant, Rogers, and
another man whom she did not know left her apartment between 6:00 and
6:30 p.m. on the evening of the shooting. Defendant returned around 10:00 p.m.
alone, two hours later than the time he said he would be home, and went straight to
his bedroom. He appeared to be high. Winkler followed him, asking for an
explanation but defendant stated angrily, “Don‟t start. I‟ve got a lot of shit on my
mind.” Defendant then left the apartment for about 30 to 45 minutes. Winkler
also told officers that in a longer conversation later that same night, defendant
stated that “his homeboy got shot in a robbery, either by somebody who worked
there or somebody who was staking it out.” The next day, while defendant was
speaking with his mother by telephone, Winkler overheard defendant asking his
mother, “What are they going to do?” and “Did he die?” Later, he told Winkler
that his friend had been shot and was at a nearby hospital in police custody. Like
Earl Williams, Winkler testified at trial that she did not remember most of what
she told police during the interview.
       Both Williams and Winkler told police that they previously had seen
defendant carry a handgun. According to Winkler, defendant kept two loaded
magazines on the headboard in his bedroom and stored the gun in the trunk of
Winkler‟s 1973 Pontiac Firebird, which was parked in a lot close to her apartment.
Police searched the trunk of her car and discovered a Lorcin .380-caliber
semiautomatic handgun.
       During the investigation, several eyewitnesses identified defendant as the
masked man who entered the front of the restaurant waving a large firearm and
announcing that a robbery was in progress. Donna picked defendant‟s picture
from a photographic lineup, telling police she was “80 percent sure” that the
photograph depicted the man who had forced her to go into the kitchen. She also

                                         10
identified defendant in a live lineup conducted about one week after the
photographic lineup, and later again at trial.

           2. Defense evidence

                a. Defendant’s defense case
       Defendant presented no evidence at the Ricky Byrd murder trial.
       To cast doubt on the prosecution‟s evidence regarding the crimes at the
Pepper Steak Restaurant, the defense called a number of the investigating officers
who had interviewed prosecution witnesses. For example, to undercut the
evidence that defendant left Winkler‟s apartment with Rogers at approximately
6:00 to 6:30 p.m. and returned alone and worried about his “homeboy,” the
defense elicited from Sergeant Mark Owens discrepancies in Winkler‟s various
accounts of these events. Specifically, Winkler had told the officer that on the
night of the crimes, defendant said only that his friend got shot while trying to
commit a robbery and that it was not until the following day that defendant
mentioned that one of his “homies” either killed somebody or got [himself] killed”
by “some gang bangers.”
       The defense also emphasized the lack of physical evidence linking
defendant to the crimes. Sergeant Owens informed the jury that in his search of
clothing associated with defendant he never found a ski mask or black cap, gloves,
dark running suit, or any other article of clothing described by the eyewitnesses.
He confirmed that Winkler told him defendant had about $20 in $1 bills and coins
either on the night of the robbery or the day after, and that he knew that only $5
and $10 bills had been taken from the restaurant‟s cash register. The defense also
elicited from Officer Leroy Valadez that Harold Lewis reported to him that there
was approximately $500 hidden inside the wallet that defendant took from him.




                                          11
       Testimony by other officers highlighted discrepancies in the eyewitnesses‟
descriptions of the robber‟s clothing and firearm. The defense also elicited from
the officers that several of the eyewitnesses were unable to provide them with a
description of the robber‟s facial features because his face was covered by a ski
mask during the incident.
       The defense further challenged the prosecution‟s identification evidence by
presenting testimony by an eyewitness identification expert. Robert Shomer,
Ph.D., described the various factors that reduce the accuracy of an identification,
including life-threatening, unexpected and traumatic circumstances, age and racial
differences between the eyewitness and the perpetrator, the manner in which the
identification procedure is conducted, and the precision of the eyewitness‟s initial
description. According to Dr. Shomer, the more stressors present, the more
difficult it is to later identify a person. He also explained that the accuracy of an
identification is further reduced when any substantial part of a person‟s face is
covered, and that eyes are not a good feature for identifying a person because
unlike ears, the mouth, the nose, and the hairline, eyes typically are not that
distinctive.

                b. Codefendant Rogers’s defense
       Rogers offered his own account of events at the Pepper Steak Restaurant.
Rogers testified that he left his apartment with G-Dog and someone named Dee to
drive to someone else‟s house. He passed out as they drove around because he
had been drinking beer and smoking marijuana. When he awoke, they were in the
Pepper Steak Restaurant‟s parking lot and Dee told him, “Homies went inside.”
Rogers had to use the restroom. When he opened the door to what he thought was
the restroom, a man “came out of nowhere” and shot him in the chest. In
response, Rogers removed the gun that was tucked into his pants. When he and



                                          12
the man struggled for his gun, it fired accidentally and then kept firing. He then
ran out of the door to get help but passed out on the sidewalk. Rogers denied
going into the restaurant to commit a robbery or to “back up” G-Dog.
         According to Rogers, defendant was not involved in the robbery.

         B. Penalty Phase Evidence

             1. Prosecution’s case in aggravation
         The prosecution presented evidence that defendant committed six other
criminal acts involving violence or a threat of violence, three of which occurred in
the West Valley Detention Center where defendant was incarcerated while
awaiting trial on the capital crimes. Family members of the murder victims
testified about how they were affected by their loved ones‟ deaths.7

                 a. Robbery at Denny’s Restaurant
         In October 1992, Mark Repman worked as the manager at the Denny‟s
Restaurant in Victorville. Repman testified that around 11:30 p.m. on October 28,
defendant and two other African-American men entered the restaurant armed with
pistols and a shotgun. One of the men placed a gun to the back of Repman‟s head
and ordered him to the office. Repman complied with the man‟s demand to open
the safe, handing over about $1,200 in cash. Meanwhile, defendant pointed a
shotgun at the restaurant customers and employees and ordered them down on the
floor.
         Deputy Sheriff Matthew Kitchen testified that he responded to the report of
a robbery in progress by stationing his vehicle on the freeway on-ramp near the


7       Defendant was permitted to absent himself from the penalty phase after a
pretrial hearing at which he indicated to the court that he did not want to “act out”
or “cause a scene.” (§ 1043, subd. (b)(1).)




                                          13
restaurant. He spotted a car that matched the description of the assailants‟ vehicle
and a high-speed chase ensued. When the suspects‟ car failed to negotiate a
freeway exit and crashed onto an embankment, two of the men jumped out of the
vehicle and ran toward the railroad tracks. California Highway Patrol Sergeant
Steven Urrea testified that he took defendant into custody along the tracks and
found money and a shotgun under a nearby bush. The parties stipulated that
defendant was convicted of second degree robbery in connection with this
incident. (§ 211.)

               b. Shooting of Shawn Boyd
       Lieutenant Robert Miller of the Colton Police Department investigated a
shooting that had occurred at the home of defendant‟s mother in February 1996.
Miller testified that the victim, Shawn Boyd, told him that he was visiting
defendant‟s mother on the evening of February 23. Around 11:45 p.m., Boyd
mentioned in conversation that he was doing well and had a job and new clothes.
Defendant became jealous and agitated, telling Boyd to “get into the
motherfucking room” and pointing to the master bedroom. When Boyd resisted,
defendant threatened to “plug” him. He then shoved Boyd toward the bedroom,
pulled out a handgun and shot him in the face. Boyd ran through the bedroom and
jumped from the second story through a glass window. The prosecution‟s
firearms expert at the guilt phases, William Matty, testified that the bullet
recovered from the scene of that shooting was fired from the Lorcin handgun that
was recovered from the trunk of Lateshia Winkler‟s car during the Pepper Steak
Restaurant investigation.

               c. Robbery at Thomas Realtors
       Thomas Realtors is a San Diego property management company.
According to Jacqueline Graff, who worked as a receptionist there in April 1996,



                                          14
most of the tenants‟ rent payments came into the office on the 3d and 4th of each
month. Graff testified that on April 3 around 2:20 p.m., two African-American
men entered the office. One of them, whose description matched that of
defendant, put a gun to her head and demanded that she open the desk drawer and
give him all of the money. Graff explained that the owner had taken the money to
the bank. However, she complied with the robber‟s demands to open all of the
drawers and he rifled through them, saying, “Somebody is going to die if I don‟t
get the money.” The assailants then turned their attention to Graff‟s coworker,
Paul Baumhoefner, who had come to the lobby to see what the commotion was
about. Baumhoefner testified that the man with the gun held the weapon inches
from his face, demanding money and backing him into his private office. Like
Graff, Baumhoefner explained that the owner was on his way to the bank, and he
opened all of his desk drawers to show that there was no money inside. He also
pulled out a wad of money from his pockets, which the gunman grabbed before
leaving the office and heading out the front door. Baumhoefner then retrieved the
owner‟s gun from another desk and ran out the door in pursuit. He got into his
truck and took off after a red sedan that bystanders had identified as the getaway
car. Baumhoefner eventually pulled up behind the car and noted its license plate
number, then returned to the office and reported the number to responding
officers.
       The commotion on the street near the scene of the robbery had attracted
Thomas Stone‟s attention as he was driving by. Stone testified that he saw
bystanders pointing at a red car, which he followed as it made its way down
various streets and alleys. When the car stopped in an alley, a large African-
American man emerged from the passenger side and started shooting at Stone as
Stone tried to back up, hitting his vehicle in several places.



                                          15
       The parties stipulated that two days after the incident, police located a
sedan with a license plate number matching the one reported by Paul
Baumhoefner, and that one of the four latent fingerprints recovered from the
vehicle was positively identified as belonging to defendant. The prosecution‟s
firearms expert testified that the .380-caliber casings recovered from the scene of
the shooting could have been fired from the Lorcin handgun, and that cartridges
found in the alley were the same kind as those recovered from the scene of the
Shawn Boyd shooting six weeks earlier.

               d. Jail incidents
       Defendant was held at the West Valley Detention Center in Rancho
Cucamonga while awaiting trial in the case. In December 1996, eight months
after his arrest, he had a violent outburst during a “shakedown” search of the unit
where he was being housed. Deputy Joseph Perea of the San Bernardino County
Sheriff‟s Department testified that during the shakedown, when the inmates were
lined up in front of their cells, defendant mumbled something under his breath as
one of the deputies passed by him. Perea and another deputy took defendant to the
multipurpose room and asked him to sit down, but defendant did not comply.
When Deputy Mark James intervened and attempted to push defendant down into
his chair, defendant punched him on the left side of the face, rendering him
unconscious. Perea sprayed defendant with pepper spray, but defendant managed
to throw a food cart at the officer, hitting him in the right arm. Defendant then ran
to a utility room, grabbed a push broom and started swinging it wildly. The
deputies managed to knock the broom out of defendant‟s hands by throwing
plastic chairs at him, then attempted to tackle him, eventually getting defendant
under control by handcuffing him and shackling his legs.




                                         16
       Defendant had a second violent confrontation with deputies five months
later. According to the testimony of Deputy Timothy Nichols, in May 1997,
Deputy David Llewellyn ordered defendant to go into his cell and “lock it down”
for disrespecting one of the deputies. Defendant first disregarded the directive,
then took a combative stance and responded, “Fuck you.” Deputy Nichols sprayed
him with pepper spray, but it had no effect. Defendant then stepped toward the
deputies, and he and Llewellyn started hitting each other with their fists. When
Nichols attempted to place defendant in a “choke hold,” defendant threw him off
and punched him repeatedly on the side of the head and in the groin as he tried to
get up off the ground. Defendant then picked up Nichols and tried to throw him
over the second-tier railing. After releasing his hold on Nichols, defendant
resumed fighting with Llewellyn until he was subdued by other deputies.
       A third incident occurred approximately one month before the start of the
first guilt phase trial. Deputy Alejandro Barrero testified that in November 2000,
he removed from defendant a sharpened metal instrument known as a “shank.”
The homemade shank had a cloth handle with a leash made of rope that would
permit the user to retrieve the weapon in the event it slipped or was grabbed away.

               e. Victim impact evidence

                   i. Ricky Byrd’s murder
       Ricky Byrd‟s father, Harry Byrd III, told the jury that when he was
informed of his son‟s death, he fell to his knees and dropped the telephone in
disbelief. It was very difficult for him to see his son in a coffin. Although Byrd
had not seen Ricky in person for a year or two before the murder, he had spoken to
him the previous weekend and Ricky was planning to come to Northern California
to visit him the following week.




                                         17
       Ricky Byrd‟s grandmother testified that Ricky lived with her off and on for
most of his life and that she was very close to him. Her home was three houses
away from the scene of the shooting and she heard the gunfire while she was in the
backyard hanging up laundry. Although she was grateful that the responding
officer was performing CPR on Ricky, she knew when she saw him lying on the
sidewalk that he was gone. She further testified that little things around the house
brought back memories of Ricky every day, as did the presence of Ricky‟s young
son, Harry Byrd V, who was born shortly after Ricky‟s death. She also informed
the jury that on the day of the shooting, Ricky had applied for a job at UPS, and
that he aspired to go to college to become a marine biologist.

                    ii. Fred Malouf’s murder
       Fred‟s wife Donna testified that she has been in weekly counseling to deal
with her grief and anger. She also told the jury that she had since remarried, but
that “Fred was, and always will be, my life.”
       Fred‟s nephew testified about their close relationship and the profound
influence his uncle had on him, especially on his decision to choose a career in law
enforcement. He also told the jury that his uncle had a great sense of humor and
that during his retirement he “enjoyed life to the fullest” by hunting, fishing,
prospecting, and spending time with the family. He also organized annual family
reunions so that the family could get together for an event other than a funeral.

           2. Defense case in mitigation
       The defense had intended to present the testimony of three inmates who
witnessed the May 1997 altercation between defendant and sheriff‟s deputies in
the West Valley Detention Center. Because calling the witnesses would have
required a continuance of three to four weeks, however, over the prosecutor‟s




                                          18
objection, the court permitted the defense to introduce the inmates‟ taped
statements in lieu of their testimony.
       The inmates‟ recorded statements were played for the jury, who followed
along with a written transcript. Casey Whigman stated that “all hell broke loose”
when Deputy Llewelyn pushed defendant for not “locking it down” as quickly as
he wanted him to. According to Linnard Roberson, the officers rushed defendant
as he was on his way to his cell, and never asked him to stop. Defendant was
fighting, but he was defending himself, and the officers continued to beat him and
“stomp[] his head into the pavement” even after he had been subdued. Jack
Dunnigan observed that before punches were thrown, one of the officers got “right
up close in [defendant‟s] face” and pushed him. He likewise saw the officers slam
defendant‟s head into the concrete and stomp on him after he was handcuffed.
       The defense also presented testimony by David Call, the attorney who
previously had represented defendant in the case. Call explained to the jury that
he had planned to present mitigating evidence regarding defendant‟s upbringing,
but defendant refused to allow him to do so, saying he “would rather die than have
his mother be disgraced in the courtroom.”8
                                   II. DISCUSSION

       A. Pretrial Issues

           1. Denial of motion to sever the two murder counts
     Defendant asserts that the trial court abused its discretion and deprived him
of his right to a fair trial and other federal and state constitutional guarantees by
denying his motion to sever trial on the Ricky Byrd murder charge from trial on

8      Neither party raises an issue regarding the admissibility of defendant‟s
mitigating evidence. We include these facts in the interest of completeness, and
not as an endorsement of the trial court‟s rulings.



                                          19
the charges relating to the homicide and robberies at the Pepper Steak Restaurant.9
His claim fails, as we explain, post.

                a. Background
     Defendant and Rogers each were charged with the murder of Fred Malouf
and other crimes related to the incident at the Pepper Steak Restaurant. Defendant
also was charged with the murder of Ricky Byrd, a separate crime occurring nine
days earlier that did not involve Rogers. In November 1997, the court held a
hearing on the prosecutor‟s motion to join defendant‟s and Rogers‟s cases for trial.
The court granted the motion over the objection of Rogers‟s counsel, noting that
the guilt phase would focus predominantly on the restaurant homicide and
robberies and rejecting the argument that evidence regarding the Ricky Byrd
murder charge would prejudice Rogers. The court then considered defendant‟s


9       Defendant contends that the court‟s rulings violated his rights to due
process, a fair trial, jury trial, a reliable determination of guilt and penalty, and
fundamental fairness as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution and their counterparts in the
California Constitution. He invokes the same constitutional provisions in almost
every other claim raised in this appeal. “In most instances, insofar as defendant
raised the issue at all in the trial court, he failed explicitly to make some or all of
the constitutional arguments he now advances. In each instance, unless otherwise
indicated, it appears that either (1) the appellate claim is of a kind . . . that required
no trial court action by the defendant to preserve it, or (2) the new arguments do
not invoke facts or legal standards different from those the trial court itself was
asked to apply, but merely assert that the trial court‟s act or omission, insofar as
wrong for the reasons actually presented to that court, had the additional legal
consequence of violating the Constitution. To that extent, defendant‟s new
constitutional arguments are not forfeited on appeal. [Citations.]” (People v.
Boyer (2006) 38 Cal.4th 412, 441, fn. 17.) “ „No separate constitutional
discussion is required, or provided, when rejection of a claim on the merits
necessarily leads to rejection of any constitutional theory or “gloss” raised for the
first time here.‟ [Citations.]” (People v. Solomon (2010) 49 Cal.4th 792, 811,
fn. 8.)




                                           20
motion to sever trial on the Ricky Byrd murder charge from trial on the counts
arising from the restaurant incident. In denying that motion, the court observed
that all of the charges involved crimes of the same class and were committed
relatively close in time.
     Defendant later sought reconsideration of the court‟s ruling denying
severance. At the hearing on that motion, the court also considered defense
counsel‟s alternative proposal to try defendant and Rogers before a single jury on
the charges relating to the restaurant incident first and then, after the jury reached
its verdicts on those counts, try defendant alone on the Ricky Byrd murder charge
before the same jury and proceed to a penalty phase if necessary. The court again
denied the motion to sever counts, reiterating its prior observation that the charges
arising from the separate incidents were the same class of crimes and finding that
joinder would not create undue prejudice. However, it granted the alternative
request to bifurcate the guilt trial, concluding that the procedure proposed by
defendant‟s counsel would not only prevent the potential for prejudice to
defendant and Rogers, but also avoid the inefficiency of conducting separate trials.
At a subsequent hearing, the court explained more specifically that the bifurcated
guilt phase proceedings would alleviate the problem of the jury‟s hearing both
murder charges at the same time and using each of them “to kind of supplement
the other count.”
     Defendant renewed his motion to sever counts after the jury had rendered its
guilty verdicts in the restaurant robbery-murder case, arguing that it was
“fundamentally unfair” to have the same jury now hear the Ricky Byrd murder
charge. The court found no prejudice to defendant and no reason to depart from
its earlier ruling. As the court observed, the bifurcated procedure benefited
defendant because the jury heard evidence and decided the potentially weaker of



                                          21
the two cases first without having heard the evidence relating to the other shooting
incident.

                b. Defendant fails to show prejudice from joinder
     Defendant does not dispute that the restaurant murder and robbery charges
and the Ricky Byrd murder charge were properly joined under section 954, which
permits the joinder of “two or more different offenses of the same class of crimes
or offenses.” (See also People v. Soper (2009) 45 Cal.4th 759, 771 (Soper).) The
law favors the joinder of counts because such a course of action promotes
efficiency. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.) A trial court
has discretion to order that properly joined charges be tried separately (§ 954), but
there must be a “clear showing of prejudice to establish that the trial court abused
its discretion in denying the defendant‟s severance motion.” (People v. Mendoza
(2000) 24 Cal.4th 130, 160.) In assessing a claimed abuse of discretion, we assess
the trial court‟s ruling by considering the record then before the court. (Soper,
supra, at p. 774; People v. Avila (2006) 38 Cal.4th 491, 575.)
     If the evidence underlying each of the joined charges would have been cross-
admissible under Evidence Code section 110110 had they been prosecuted in
separate trials, “that factor alone is normally sufficient to dispel any suggestion of
prejudice and to justify a trial court‟s refusal to sever properly joined charges.”
(Soper, supra, 45 Cal.4th at p. 775; see also People v. Vines (2011) 51 Cal.4th


10     Evidence Code section 1101, subdivision (b) states, “Nothing in this section
prohibits the admission of evidence that a person committed a crime, civil wrong,
or other act when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident, or whether
a defendant in a prosecution for an unlawful sexual act or attempted unlawful
sexual act did not reasonably and in good faith believe that the victim consented)
other than his or her disposition to commit such an act.”




                                          22
830, 855.) We doubt, however, that the evidence regarding these two separate
incidents was sufficiently similar to support an inference of intent, motive, or any
other fact in issue that would render the evidence cross-admissible, and respondent
does not argue otherwise. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) As
defendant observes, the intent and motive behind the restaurant incident was
robbery while the Ricky Byrd shooting may have been motivated by a drug debt or
some sort of personal vendetta against “Smoke.”
     We need not affirmatively decide, however, whether the evidence would
have been cross-admissible in separate trials because, as defendant acknowledges,
lack of cross-admissibility is not dispositive of whether the court abused its
discretion in denying severance. (§ 954.1; People v. Thomas (2011) 52 Cal.4th
336, 350 [“When two crimes of the same class are joined, cross-admissibility is
not required”].) To resolve the question of abuse of discretion, we must further
inquire “whether the benefits of joinder were sufficiently substantial to outweigh
the possible „spill-over‟ effect of the „other-crimes‟ evidence on the jury in its
consideration of the evidence of defendant‟s guilt of each set of offenses.”
(People v. Bean (1988) 46 Cal.3d 919, 938; see People v. Thomas, supra, 52
Cal.4th at p. 350.) To make that determination “[w]e consider [1] whether some
of the charges are likely to unusually inflame the jury against the defendant; [2]
whether a weak case has been joined with a strong case or another weak case so
that the total evidence may alter the outcome of some or all of the charges; and [3]
whether one of the charges is a capital offense, or the joinder of the charges
converts the matter into a capital case.‟ [Citation.]” (People v. Thomas (2012) 53
Cal.4th 771, 798-799.) “ „We then balance the potential for prejudice to the
defendant from a joint trial against the countervailing benefits to the state.‟
[Citation.]” (Ibid.)



                                          23
     None of these considerations point to a potential for prejudice that
outweighed the benefits of joint trial in this case. As previously noted, at
defendant‟s request, the trial court ordered the guilt phase of trial bifurcated so that
the jury heard evidence and reached its verdicts in the restaurant case before
considering the evidence regarding the Ricky Byrd homicide. In the trial court‟s
view, such a procedure both prevented the potential for prejudice and avoided the
inefficiency of conducting separate trials. We agree. As the court observed in
denying defendant‟s final severance motion before commencement of the Ricky
Byrd homicide case, the jury heard evidence and decided the potentially weaker of
the two cases without exposure to the evidence relating to the stronger murder
charge. As a result of this procedure, the risk of potential prejudice from joinder
was small and it certainly was outweighed by the benefits of trial on all counts
before a single jury.
     Defendant argues nonetheless that the evidence relating to the restaurant
crimes was likely to inflame the jurors against him because the homicide victim in
that case was a retired police officer who was killed while attempting to protect his
wife. We have recognized some potential for prejudice when the murder victims
are police officers killed in the line of duty. (See Odle v. Superior Court (1982)
32 Cal.3d 932, 942 [“[c]ommunities undoubtedly have special hostility toward
„cop killers‟ ”].) The same concerns are not implicated here, however. Moreover,
we observe that the callous, cold-blooded killing of Ricky Byrd, who was shot
down in front of his friends after innocently responding to defendant‟s request to
“give Smoke a message,” was no less inflammatory than the events that unfolded
at the restaurant. Any potential for prejudice from evidence regarding the
restaurant murder was lessened, furthermore, because the evidence of defendant‟s
guilt of the Ricky Byrd murder was strong.



                                          24
     Noting that the Ricky Byrd homicide case, standing alone, did not involve a
special circumstance, defendant asserts further that the court‟s refusal to sever
counts converted that matter into a capital case. There is no potential for prejudice
under this factor, however. As we recently explained in People v. Thomas, supra,
53 Cal.4th at pp. 799-800, “[o]ur concern in such situations is whether joinder
„would tend to produce a conviction when one might not be obtainable on the
evidence at separate trials. Clearly, joinder should never be a vehicle for
bolstering either one or two weak cases against one defendant, particularly where
conviction in both will give rise to a possible death sentence.‟ [Citation.]” In the
present case, the evidence supporting each of the murder cases was not weak and
neither case posed the risk of an unjustifiable conviction.
     As defendant correctly points out, even when a trial court‟s denial of
severance was not an abuse of discretion at the time it was made, we must reverse
the judgment on a showing that joinder actually resulted in “ „ “gross
unfairness” ‟ ” amounting to a denial of fair trial or due process. (People v.
Mendoza, supra, 24 Cal.4th at p. 162.) However, he fails to make such a showing
here. Contrary to defendant‟s assertion, the restaurant homicide and robberies
were no more “emotionally charged” and “inflammatory” than the Ricky Byrd
murder charge, as previously discussed. Nor does defendant explain why the trial
court‟s instruction to jurors to decide the Ricky Byrd homicide case “separately
and independently” from the counts at the earlier phase was insufficient to prevent
a grossly unfair trial. Given the bifurcation of trial of the two separate incidents,
there was minimal risk, even absent such an instruction, that the jury would have
considered the restaurant crimes as evidence supporting conviction in the Ricky
Byrd case. (See People v. Mendoza, supra, at p. 163 [rejecting the defendant‟s
argument that the trial court had a sua sponte duty to instruct the jury not to
consider evidence of one of the joined crimes as evidence of another offense].)

                                          25
Defendant‟s claim that the denial of severance rendered his trial grossly unfair
does not succeed.

           2. Denial of defense motion for a “ski mask” lineup
     Prior to the start of trial, the defense moved for a live lineup at which the
participants would wear ski masks to partially obscure their faces. Defendant
claims that the trial court‟s denial of that motion was an abuse of discretion and a
violation of his right to due process and other constitutional protections. We
conclude there was no error.
     The record shows the following. At a live lineup conducted on April 30,
1996, 10 days after the restaurant crimes, four eyewitnesses to those crimes
identified defendant as the perpetrator who was wearing a ski mask. Four years
later, the defense moved that the court order a live lineup at which the participants
would wear ski masks. At a hearing on the motion, defense counsel argued that,
as a matter of fundamental fairness, the eyewitnesses who identified defendant at
the earlier lineup ought to be provided the opportunity to identify him while he
was wearing a ski mask, which is how they described the perpetrator. The court
observed that it was incumbent on investigators to conduct the initial live lineup,
which had occurred shortly after the shooting. The court also noted that at that
lineup, investigators adopted defense counsel‟s suggestion to have the participants
wear a black knit cap pulled down to the forehead, covering their hair and ears. In
the court‟s view, the initial lineup amply protected defendant‟s due process rights
and a second lineup was not required. As the court pointed out, whether or not an
eyewitness could pick out defendant in a ski mask four years after the incident
would neither bolster nor cast doubt on his or her original identification.
     Evans v. Superior Court (1974) 11 Cal.3d 617, 625 (Evans), held that the due
process clause requires the trial court, in an appropriate case, to grant a



                                          26
defendant‟s timely request for a pretrial lineup. The right to a lineup is not
absolute, however. Rather, it arises “only when eyewitness identification is shown
to be a material issue and there exists a reasonable likelihood of a mistaken
identification which a lineup would tend to resolve.” (Ibid.) The decision whether
to order a pretrial lineup rests within the sound discretion of the trial court. (Ibid.;
see also People v. Williams (1997) 16 Cal.4th 153, 235-236.)
     Here, less than two weeks after the incident, eyewitnesses to the restaurant
crimes viewed a live lineup. To account for the fact that there was no opportunity
for the eyewitnesses to observe the robber‟s hairstyle, and at counsel‟s behest, all
of the lineup participants donned black watch caps that were pulled down to cover
their hair, foreheads, and ears. Some of the eyewitnesses identified defendant.
Others identified a different individual or made no identification at all. At trial,
defense counsel cross-examined the eyewitnesses who had positively identified
defendant at the live lineup, eliciting from them that the robber‟s face had been
covered by the ski mask. On this record, we agree with the trial court that
defendant received due process.
     Defendant‟s real complaint appears to be that the initial lineup was
suggestive and its results unreliable because, by presenting participants whose
faces were not covered by ski masks, it failed to duplicate the conditions at the
crime scene. We note that Donna testified she was able to see most of defendant‟s
face when his mask slipped down below his nose. But even if it might have been
proper for each of the lineup participants to wear a ski mask like the one worn by
the perpetrator (United States v. Hinton (D.C. Cir. 1980) 631 F.2d 769, 774), there
is no authority supporting the proposition that they were required to do so. Even
assuming that the participants at the initial lineup should have worn ski masks
rather than knit caps, it would not establish defendant‟s right to a second pretrial
lineup. In considering the defendant‟s claim of a due process right to a pretrial

                                           27
lineup in Evans, this court explained that the inquiry was not whether the receipt
of identification evidence at trial is so unfair to the accused as to infringe due
process but rather whether “the accused can insist that procedures be afforded
whereby the weakness of the identification evidence, if it is in fact weak, can be
disclosed.” (Evans, supra, 11 Cal.3d at pp. 621-622.) In this case, the original
lineup adequately revealed to the defense the weakness of the eyewitnesses‟
identifications, and defense counsel vigorously challenged the evidence during
cross-examination. The court observed, and we agree, that a second lineup would
do nothing to assist the defense in testing the reliability of the identifications. The
court did not abuse its discretion in denying defendant‟s request for a ski mask
lineup.

           3. Denial of the third request for substitution of counsel
     The trial court granted defendant‟s requests to replace his first two appointed
counsel. Ten months before the commencement of trial, when defendant sought to
discharge his third attorney and substitute new counsel, the court denied the
motion. Defendant asserts that the trial court‟s refusal to grant his request for
substitution of counsel constituted an abuse of discretion. As we shall explain, the
court‟s ruling was neither an abuse of discretion nor did it violate defendant‟s
Sixth Amendment right to the effective assistance of counsel.

                a. Background
     In February 2000, the trial court conducted a pretrial hearing on various
motions. Defendant addressed the court directly with regard to one motion,
requesting an order for access to the law library. Defendant explained that he
needed library access in order to fully understand the proceedings and determine
which motions he had a right to file. He complained that his defense attorney,




                                          28
Chuck Nacsin, had failed to properly advise him, advocate for him, and protect his
rights.
     The trial court denied defendant‟s request for law library privileges on the
ground that it was counsel‟s role to present motions on defendant‟s behalf. The
court added that Nacsin was one of the most experienced criminal defense
attorneys in the county, and, in the court‟s view, always had demonstrated the
highest degree of professionalism and competence. The court also found,
however, that defendant‟s expression of dissatisfaction with Nacsin suggested that
he might be requesting substitution of counsel. The court excused the prosecutor
from the courtroom so that it could conduct a hearing pursuant to People v.
Marsden (1970) 2 Cal.3d 118.
     At the hearing, defendant read into the record a written statement entitled
“Request for a Marsden Hearing,” which set forth numerous accusations against
Nacsin. Specifically, he claimed that counsel was attempting to “railroad” him by
refusing to provide discovery. He also complained that counsel refused to
interview the witnesses he had suggested and was not properly investigating issues
that defendant brought to his attention. For instance, defendant faulted counsel for
failing to follow up on evidence indicating that a defense investigator and
detectives from the Colton Police Department had sabotaged the investigation
because they knew the victim Fred Malouf and evidence that investigative officers
were threatening the witnesses. Defendant also complained that counsel refused to
file a motion for the release of police officer personnel files or to seek recusal of
the court and the prosecutor on the ground that they likewise knew Fred Malouf.
Defendant repeated his earlier allegations that Nacsin was not properly advising
him regarding his rights or working in his best interests. He also reiterated that he
had no trust or faith in counsel and accused him of conspiring with the police and
prosecutors to secure his conviction. Defendant complained finally that Nacsin

                                          29
visited him only once every two to three months and that Nacsin‟s law office
refused to accept his collect calls.
     When defendant had finished reading his written statement, he indicated to
the court that he was not actually making a Marsden motion at that time but rather
seeking discovery, which he would review, and then would present his Marsden
motion at a subsequent hearing. Counsel objected to defendant‟s having access to
discovery materials while in jail because of the risk that they would fall into the
hands of jailhouse informants. The court, however, directed counsel to provide
defendant with all discovery and the transcripts of all proceedings that had
occurred since his appointment as counsel of record.
     The hearing on defendant‟s eventual Marsden motion occurred four months
later in June 2000. Defendant repeated his earlier complaints that counsel was
ignoring his requests to explore whether investigative officers were threatening the
witnesses and falsifying evidence. When the court asked Nacsin whether he had
discussed those subjects with defendant, he replied that he had done so “many
times.” Nacsin also indicated that he was pursuing everything he could pursue in
the case. Defendant responded that he did not know what counsel was doing. He
also asserted that when he and counsel discuss the case, they “collide” and he
cannot understand him. As defendant further explained, “I got to be able to trust
him, for us to have that attorney-client relationship. And I don‟t trust him because
I don‟t know . . . what he‟s doing.”
     The court found no basis for ordering substitution of counsel at that time and
denied the Marsden motion without prejudice. In the court‟s view, defendant‟s
appointed counsel was “one of the more tenacious defense attorneys” to appear in
his courtroom over the past 20 years, and the court was certain that if there was
evidence suggesting that a witness had been threatened, counsel would vigorously
pursue that point during cross-examination. Defendant continued to express

                                         30
frustration with attorney-client communications, saying that when he would ask
counsel certain things about the proceedings, he would come away even more
confused. He also disclosed, however, that he wanted an opportunity to see if he
and counsel could “come to some type of understanding” and “somehow see eye-
to-eye” before deciding to go through with his request for a new attorney.
Although the court invited defendant to renew his Marsden motion after he had an
opportunity to review additional discovery, defendant did not renew the motion.

                b. Discussion
     Defendant contends that the court‟s denial of his request for substitution of
counsel was an abuse of discretion because the complaints summarized, ante, were
emblematic of a difficult, unproductive relationship between him and his counsel,
which led to an irretrievable breakdown in their ability to work together that
substantially impaired his constitutional right to the effective assistance of
counsel. We disagree, as explained, post.
     Established principles govern our assessment of whether the court abused its
discretion in denying defendant‟s Marsden motion. “Once a defendant is afforded
an opportunity to state his or her reasons for seeking to discharge an appointed
attorney, the decision whether or not to grant a motion for substitution of counsel
lies within the discretion of the trial judge. The court does not abuse its discretion
in denying a Marsden motion „ “unless the defendant has shown that a failure to
replace counsel would substantially impair the defendant‟s right to assistance of
counsel.” ‟ [Citations.] Substantial impairment of the right to counsel can occur
when the appointed counsel is providing inadequate representation or when „the
defendant and the attorney have become embroiled in such an irreconcilable
conflict that ineffective representation is likely to result [citation].‟ [Citations.]”
(People v. Clark (2011) 52 Cal.4th 856, 912.)



                                           31
     Contrary to defendant‟s contention, none of his various complaints
concerning counsel suggests an irreconcilable conflict between them. Defendant‟s
main grievance was that counsel refused to pursue his suggested motions and lines
of investigation. However, “ „[t]actical disagreements between the defendant and
his attorney do not by themselves constitute an “irreconcilable conflict.” ‟ ”
(People v. Roldan (2005) 35 Cal.4th 646, 682; accord, People v. Cole (2004) 33
Cal.4th 1158, 1192.) Although defendant complained that he did not know what
counsel was doing, counsel informed the court that he and defendant had
discussed defendant‟s suggestions “many times,” and that he was pursuing
everything he could. The court was entitled to credit counsel‟s representations in
this regard. (People v. Clark, supra, 52 Cal.4th at p. 912; People v. Smith (1993) 6
Cal.4th 684, 696.) Nor was an irreconcilable conflict shown by defendant‟s
assertions that he did not trust his attorney and “collided” with him when they
discussed the case. As we explained in People v. Jones (2003) 29 Cal.4th 1229,
“If a defendant‟s claimed lack of trust in, or inability to get along with, an
appointed attorney were sufficient to compel appointment of substitute counsel,
defendants effectively would have a veto power over any appointment, and by a
process of elimination could obtain appointment of their preferred attorneys,
which is certainly not the law.” (Id. at p. 1246; see also People v. Abilez (2007) 41
Cal.4th 472, 489.) Furthermore, “[a] trial court is not required to conclude that an
irreconcilable conflict exists if the defendant has not made a sustained good faith
effort to work out any disagreements with counsel . . . .” (People v. Crandell
(1988) 46 Cal.3d 833, 860.) Here, after defendant indicated his willingness to try
to “come to some type of understanding” with counsel, the court reasonably could
find that any asserted conflict between defendant and his attorney was not
irreconcilable. That conclusion was borne out by the fact that although the court‟s
denial of the request for substitution of counsel was without prejudice, defendant

                                          32
did not renew his Marsden motion. As for defendant‟s complaint that counsel
rarely visited him, such an allegation does not justify substitution of counsel.
(People v. Hart (1999) 20 Cal.4th 546, 604.) We conclude that the trial court did
not abuse its discretion in denying the Marsden motion.

            4. Disclosure of police officer personnel records
     Defendant filed a pretrial motion for an order directing the prosecution to
provide the confidential personnel records of 10 law enforcement officers involved
in the investigation of the crimes and his postarrest confinement in county jail. He
argued that the prosecutor was obligated to disclose the identified records because
they amounted to favorable, material evidence within the meaning of Brady v.
Maryland (1963) 373 U.S. 83. At a hearing on the motion, the court indicated
that, in an abundance of caution, it found good cause to conduct an in camera
review of the personnel records in issue to determine whether any of them showed
complaints or disciplinary action involving improper conduct such as falsifying
evidence or testifying falsely, or any other potential impeachment material that
should be disclosed to the defense. (See Evid. Code, § 1043, subd. (b); Pitchess v.
Superior Court (1974) 11 Cal.3d 531; see generally People v. Gaines (2009) 46
Cal.4th 172, 179 [summarizing the state law procedures by which a defendant may
seek disclosure of police personnel records].) The court conducted separate in
camera hearings to review the files provided by the three different law
enforcement agencies involved. Neither defendant nor the prosecutor attended the
hearings.
     The court ordered that the reporter‟s transcripts of each of the three hearings
be sealed, but it announced its rulings in open court. Specifically, the court
indicated that it denied disclosure of the records of San Bernardino Police Officers
Voss and Filson and Colton Police Officers Morenberg, Owens, and Schiller,



                                         33
finding nothing in their personnel files that was likely to lead to any admissible
impeachment evidence. The court ordered that defense counsel be provided
access to reports and handwritten notes by two San Bernardino Sheriff‟s deputies
who claimed they were injured in the incident involving defendant at the jail, but it
denied disclosure of the remaining files.
     The transcripts of the in camera hearings that the court ordered sealed have
remained under seal. Noting that neither the transcripts nor the documents
reviewed by the trial court were made available to him or his appellate counsel,
defendant requests that this court conduct an independent review of these
materials. He asserts that such review is necessary to ensure that the trial court‟s
rulings did not infringe his right to due process. Respondent does not oppose the
request.
     “This court routinely independently examines the sealed records of such
in camera hearings to determine whether the trial court abused its discretion in
denying a defendant‟s motion for disclosure of police personnel records.
[Citations.]” (People v. Prince (2007) 40 Cal.4th 1179, 1285; accord, People v.
Chatman (2006) 38 Cal.4th 344, 398.) We have done so in this case.
     The sealed record at issue here includes a full transcript of the three
in camera hearings, but not the actual personnel files that formed the basis of the
trial court‟s ruling barring disclosure of most of the requested materials. As
defendant points out, the trial court refused appellate counsel‟s suggestion to
include in the record on appeal the actual documents that it had reviewed during
the in camera hearings. We agree with the trial court‟s ruling that the transcript of
the hearings was sufficient. The sealed transcript that is before us, in which the
court “state[d] for the record what documents it examined,” is adequate for
purposes of conducting a meaningful appellate review. (People v. Mooc (2001) 26
Cal.4th 1216, 1229.)

                                            34
     Having independently reviewed the sealed records, we conclude that the trial
court‟s ruling refusing to disclose the requested personnel files except for the
portions relevant to the May 1997 jail incident that involved defendant was neither
an abuse of discretion nor a violation of defendant‟s due process rights. (Pitchess
v. Superior Court, supra, 11 Cal.3d at p. 535; People v. Salazar (2005) 35 Cal.4th
1031, 1042.)

       B. Guilt Phase Issues

           1. Evidence of witness dissuasion
     Defendant claims that reversal is required because he was prejudiced by the
admission of evidence that a prosecution witness at trial of the restaurant crimes
had received a telephone call “from someone” that may have made her afraid to
testify. Although defendant is correct that the evidence could not be used by the
jury to infer his consciousness of guilt, there was a proper, albeit limited, purpose
for introducing the evidence and there is no merit to defendant‟s assertion that he
was incurably prejudiced by its admission, as we explain, post.

                a. Background
     Prosecution witness Karen King testified that for a two-week period in
February 1996, prior to the restaurant crimes, defendant stayed with her and her
boyfriend in the same Highland apartment complex where codefendant Rogers
resided. She told the jury that she recalled seeing a handgun in the apartment at
the time, although she could not confirm that it belonged to defendant. During
direct examination, the prosecutor asked the witness whether she was afraid to be
in court. She answered, “No.” The prosecutor then followed up by asking, “Did
you receive a phone call from someone?” The court sustained defense counsel‟s
hearsay and discovery objections. The prosecutor continued to question the
witness, eliciting from her that although she was initially fearful of testifying, she


                                          35
was no longer afraid. At defense counsel‟s request, the court then conducted a
sidebar conference to discuss the objected-to evidence.
     Outside the jury‟s presence, the prosecutor explained that the brother of
King‟s boyfriend had called to tell her “that it would be better for her if she did not
come to court and if she did not testify.” The court agreed with defense counsel
that the prosecutor should have disclosed this information to the defense before the
witness‟s testimony. When defendant‟s counsel further complained that the
prosecutor‟s line of questioning implied that defendant made a threatening
telephone call, the court suggested that defense counsel attempt to elicit from the
witness during cross-examination that the call was not from defendant or
codefendant Rogers. The court also indicated that, on request, it would instruct
the jury with CALJIC Nos. 2.05 and 2.06, regarding the requirements for
considering the suppression of evidence as tending to show a consciousness of
guilt. Defense counsel moved for mistrial, arguing that the admission of the
telephone call evidence denied defendant his federal constitutional guarantees,
including his rights to due process and to cross-examine the witnesses against him.
The court denied the motion, finding that any prejudice would be diffused by
cross-examination and a cautionary instruction expressly directing the jury not to
infer defendant‟s guilt from evidence of an effort to suppress evidence. The
prosecutor added that he attempted to present the telephone call evidence solely
for purposes of testing the witness‟s credibility.
     Defense counsel introduced the telephone call evidence during cross-
examination, and elicited from King that neither defendant nor Rogers had called
her or had asked someone to call her. In response to defense counsel‟s question
whether she had been threatened, she replied, “Not threaten. Just told me it would
be best if I didn‟t testify.” King also indicated that she was as reluctant to be on



                                          36
the witness stand as she had been to speak with investigating officers five years
earlier.
     Immediately following King‟s testimony on this point, the court instructed
the jurors that “the phone call was not made” by either defendant or the
codefendant, and informed them that “unless there was evidence to indicate they
told someone to do that, which at this point there is not, it cannot be considered
against either [of them].” The court also explained to the jury, however, that the
telephone call evidence could be considered in evaluating the credibility of the
witness.
     The court instructed on the issue again before closing arguments, this time
affirmatively directing the jury not to consider evidence of an attempt to suppress
evidence “as tending to show any consciousness of guilt on the defendant‟s part.”

                b. Discussion
     We agree with the trial court that there was a proper, albeit limited, purpose
for the introduction of the evidence that someone called King attempting to
dissuade her from testifying, which was its effect on King‟s credibility as a
witness. The fact that King came to court and took the witness stand
notwithstanding the caller‟s advice tended to bolster her credibility. (See People
v. Guerra (2006) 37 Cal.4th 1067, 1142 [evidence that the defendant‟s sister
offered the witness money to refrain from testifying was relevant to evaluating the
witness‟s credibility]; cf. People v. Burgener (2003) 29 Cal.4th 833, 870 [“[i]t is
not necessarily the source of the threat — but its existence — that is relevant to the
witness‟s credibility”].)
     Defendant argues that King‟s testimony was incurably prejudicial, and
deprived him of a fundamentally fair trial, because the very fact the threatening
call was made raised the inference that he had authorized it. His contention is



                                         37
unpersuasive. As the record reflects, defense counsel affirmatively elicited from
King that the caller did not threaten her or state that he was speaking on
defendant‟s behalf, and the court instructed the jury that the telephone call
evidence could not be considered against either him or his codefendant. Under
these circumstances, “[w]e think it highly unlikely the jurors understood they
could infer defendant authorized or orchestrated [a] threat . . . .” (People v.
McKinnon (2011) 52 Cal.4th 610, 670 [relying on similar grounds to reject the
argument that evidence regarding the defendant‟s sister‟s attack on a prosecution
witness posed a danger that the jury would speculate that the defendant authorized
it].) Defendant suggests that the trial court “left the door open” for the jury to
infer that he was responsible for the threatening call when it instructed subsequent
to King‟s testimony that “at this point” there was no evidence connecting
defendant to the call. The record shows, however, that at the close of evidence the
trial court made clear to the jurors that they were not permitted to consider the
telephone call evidence as tending to show defendant‟s consciousness of guilt.
We presume jurors “generally understand and follow instructions.” (People v.
McKinnon, supra, at p. 670.)
     Defendant complains nonetheless that the court‟s instruction directing the
jurors not to consider against him the evidence of the telephone call to King did
nothing to dispel the inference of consciousness of guilt. He urges this court to
adopt the reasoning and result of a 1974 decision by the Indiana intermediate
appellate court, which concluded that a new trial should have been granted in that
case because testimony by a prosecution witness about having received threats and
bribes was “so prejudicial to [the] defendant that no jury could be expected to
apply it solely to the question of the credibility of the witness.” (Keyser v. State
(Ind.Ct.App. 1974) 312 N.E.2d 922, 924.) Even were we to agree with the Keyser
decision that the prejudice to the defendant in that matter could not be cured by an

                                          38
instruction to disregard the improper evidence, the case is readily distinguishable
from the present one in important respects. In Keyser, the prosecution‟s entire
case depended on the testimony of the witness who had been threatened. (Id. at
p. 924.) Here, by contrast, King‟s testimony played but a minor role in
establishing defendant‟s guilt of the restaurant crimes; at best, her testimony
showed only that two months before the crimes defendant was associating with
codefendant Rogers and carrying a firearm. In Keyser, furthermore, the reviewing
court intimated that the prosecutor‟s introduction of the improper testimony was
calculated to prejudice the defendant. (Ibid.) The telephone call evidence at issue
here, however, was admissible for the proper, limited purpose of assessing the
witness‟s credibility. Finally, in Keyser there was no evidence or instruction
advising the jury that the defendant was not involved in the attempted bribe and
threat. In this case, the court expressly instructed the jury that defendant had no
connection to the telephone call King received. Given the slight significance of
King‟s testimony and the absence of any evidence from which the jury could infer
that the telephone call was made at defendant‟s behest, we reject defendant‟s
assertion that the court‟s instructions were insufficient to overcome the assertedly
prejudicial effect of King‟s testimony on this point. The court did not abuse its
discretion in denying defendant‟s motion for mistrial, and its ruling allowing the
testimony for a limited purpose did not render defendant‟s trial fundamentally
unfair.

           2. Courtroom presence of the restaurant murder victim’s wife
     Defendant claims that the court abused its discretion and deprived him of his
various constitutional rights when it allowed Donna, the restaurant murder
victim‟s wife, to remain in the courtroom after testifying for the prosecution.
There was no error.



                                         39
               a. Background
     Prior to jury selection in the case, the court conducted a brief hearing on a
defense motion to exclude witnesses during the course of trial, and the court
agreed that witnesses should not hear the testimony of other witnesses prior to
testifying. The discussion, however, focused primarily on whether Donna Malouf
Lawrence, the homicide victim‟s wife and a percipient witness to the incident at
the restaurant, would be permitted to remain in the courtroom following her
testimony. After being informed that the prosecutor had advised Donna regarding
appropriate courtroom demeanor, the court indicated that it would exercise its
discretion to exclude from the courtroom any witness or spectator whose conduct
would prevent either side from receiving a fair trial. Nonetheless, defense counsel
expressed his concern that Donna‟s presence during the guilt phase would affect
the fairness of the possible penalty phase, at which Donna would be called to the
witness stand to give victim impact testimony. The court pointed out, however,
that the same concern was present in any death penalty case in which victim
impact witnesses were present during the guilt phase. In the court‟s view, once
Donna had testified, the rationale for excluding her from the courtroom no longer
existed. Although the court ruled that it would allow Donna to remain in the
courtroom following her testimony, it reiterated that if it came to the court‟s
attention that anyone in the courtroom engaged in inappropriate conduct, it would
not hesitate to exclude such person from the proceedings.
     Without defense objection, Donna testified at the guilt phase of trial with the
assistance of a victim-witness advocate. At the prosecutor‟s request, the court
instructed the jury regarding the support person‟s presence and role.11


11     The court instructed, “Ladies and gentlemen, the law provides that an
alleged victim in a crime is allowed to have a support person with them in court
                                                           (footnote continued on next page)


                                         40
      Consistent with the court‟s earlier ruling, Donna remained in the courtroom
after completing her testimony, sitting in the front row. When the next
prosecution witness had answered several questions on direct examination,
defense counsel complained to the court outside the jury‟s presence that Donna
had been nodding her head in agreement with the witness‟s answers. The court
indicated that it had not observed Donna nodding her head, but suggested that she
be told to be more mindful of her gestures. The prosecutor informed the court that
he had done so. Although the court overruled defense counsel‟s objection to
Donna‟s presence, it stated it would monitor the situation and, if a problem arose,
it would recommend that Donna sit in the back of the courtroom.
      Defense counsel renewed the objection to Donna‟s presence during the
testimony of a prosecution witness who was describing the shooting of the victim,
Fred Malouf. As counsel pointed out, Donna was crying and being held by her
support people, and he saw one of the jurors looking over at her and staring. The
court noted that it had been paying attention to Donna and agreed that she
appeared upset. It observed, however, that she was not making any disturbance.
In the court‟s view, her conduct was no different from that in any other case in
which family members of the victim exhibit some type of emotional reaction, and
she had a right to be in the courtroom.

                   b. Discussion
      Defendant argues that the presence of a support person to assist Donna
during her guilt phase testimony, coupled with Donna‟s nodding her head in


(footnote continued from previous page)

during testimony. The support person is entitled to sit with them but is, obviously,
not the witness and is not going to participate in any manner.”




                                          41
agreement with prosecution testimony and “emotional outbursts” during trial,
interfered with the jury‟s ability to deliberate and reach an unbiased verdict in
violation of his right to a fair trial, an impartial jury, and other constitutional
guarantees. Because defendant did not object when a victim-witness advocate
accompanied Donna to the witness stand, he has forfeited that portion of his claim.
(People v. Stevens (2009) 47 Cal.4th 625, 641.) We find no merit to his
contention in any event.
     Defendant insists that he was prejudiced by the support person‟s presence on
the witness stand while Donna testified because it created a false and distorted
view of Donna‟s demeanor and tacitly vouched for the truth of her testimony. We
are not persuaded. Section 868.5 permits prosecution witnesses in cases involving
murder and other enumerated offenses to be attended in court by two support
persons, one of whom may accompany the witness to the stand. Absent improper
interference by the support person, however, no decision supports the proposition
that defendant advances here, that the support person‟s mere presence infringes his
due process and confrontation clause rights. “ „The presence of a second person at
the stand does not require the jury to infer that the support person believes and
endorses the witness‟s testimony, so it does not necessarily bolster the witness‟s
testimony.‟ [Citation.]” (People v. Stevens, supra, 47 Cal.4th at p. 641; see
People v. Ybarra (2008) 166 Cal.App.4th 1069, 1076-1079; People v. Patten
(1992) 9 Cal.App.4th 1718, 1725-1733.) Here, the record does not disclose any
circumstances indicating that Donna‟s support person improperly influenced the
jury‟s assessment of her testimony. (See People v. Patten, supra, at pp. 1731-
1732.) For instance, there is no description as to where the support person sat in
proximity to Donna and whether she had physical contact with Donna during her
testimony. Nor is there any indication that the support person displayed emotion
or gestures suggesting to the jury that she believed Donna‟s account of the

                                           42
incident. (Patten, supra, at pp. 1732-1733.) Notably, the court informed the
jurors that Donna was entitled by law to be attended by a support person during
her testimony, and admonished them that the support person was “not the
witness.” This admonition, coupled with the court‟s instruction directing the jury
to base its decision in the case solely on the evidence received at trial and not to be
swayed by sympathy or prejudice, further undermines any suggestion of improper
interference by the support person. (People v. Ybarra, supra, at p. 1078.)
Defendant fails to show that he was prejudiced by the presence of a support person
during Donna‟s testimony.
     Nor are we persuaded by defendant‟s argument that he was prejudiced further
by Donna‟s nodding in agreement with prosecution witnesses and crying in court
while being comforted by support persons. Defendant posits that such conduct
would have instilled in the jury powerful feelings of sympathy and revenge,
leading to verdicts on guilt and penalty that were based, not on the evidence
adduced at trial, but on emotion. His claim of prejudice is unsupported by the
record.
     A spectator‟s conduct is grounds for reversal if it is “of such a character as to
prejudice the defendant or influence the verdict.” (People v. Lucero (1988)
44 Cal.3d 1006, 1022; accord, People v. Chatman, supra, 38 Cal.4th at p. 369; see
also Holbrook v. Flynn (1986) 475 U.S. 560, 572 [spectator conduct violates the
federal Constitution if it is “so inherently prejudicial as to pose an unacceptable
threat to defendant‟s right to a fair trial”].) The trial court has broad discretion to
ascertain whether a spectator‟s actions were prejudicial. (People v. Chatman,
supra, at p. 369.)
     There is no showing that Donna‟s presence in the courtroom following her
testimony prejudiced defendant. During the hearing on Donna‟s continued
courtroom presence, the court made clear its intention to exercise its discretion to

                                           43
exclude any spectator whose conduct threatened the fair trial rights of either side.
When later informed by defense counsel that he had seen Donna nodding her head
in agreement with a prosecution witness, the court indicated that it would monitor
her demeanor. After defense counsel subsequently complained that one or more
jurors were watching Donna being comforted by support persons during another
witness‟s description of the shooting, the court stated that it had observed no
impropriety. The court acknowledged that Donna was upset but noted that she
was not making a disturbance. On this record, the court properly exercised its
discretion in overruling defense counsel‟s repeated objections to Donna‟s presence
in the courtroom. Having observed the courtroom proceedings firsthand, the trial
judge was in the best position to evaluate the impact of Donna‟s conduct in front
of the jury. (People v. Cornwell (2005) 37 Cal.4th 50, 87.)
     Defendant cites a number of out-of-state decisions reversing the judgments
for spectator misconduct in support of his argument that the same result is
warranted here. We examined these identical cases in People v. Lucero, supra, 44
Cal.3d 1006. In rejecting the defendant‟s invitation to adopt the reasoning and
result from those decisions, we concluded that none involved the “single isolated
outburst” at issue there. (Id. at p. 1023.) We easily reach the same conclusion in
this case, in which the conduct in question is even farther afield from the
unrelenting, prejudicial disruptions at issue in the cited cases.

           3. Circumstantial evidence instructions
     Defendant contends he was denied due process because the court‟s
instructions explaining to the jury how to consider circumstantial evidence were
contrary to the requirement of proof beyond a reasonable doubt. We disagree.
     The court instructed at the two guilt phases with CALJIC Nos. 2.01 and 8.83:
the sufficiency of circumstantial evidence to prove guilt and the special



                                          44
circumstance allegations, respectively. In relevant part, both instructions informed
the jury that if one interpretation of the circumstantial evidence “appears to you to
be reasonable and the other interpretation to be unreasonable, you must accept the
reasonable interpretation and reject the unreasonable.”
     Defendant faults the instructions in two respects. First, he argues that telling
the jurors they must accept a guilt interpretation of the evidence “that appears to
be reasonable” allows a finding of guilt based on proof less than beyond a
reasonable doubt. (Cage v. Louisiana (1990) 498 U.S. 39.) We have repeatedly
rejected the identical contention. “When the questioned phrase is read in context,
not only with the remaining language within each instruction but also together
with related instructions, including the reasonable doubt instruction, it is clear that
the jury was required only to reject unreasonable interpretations of the evidence
and to accept a reasonable interpretation that was consistent with the evidence.”
(People v. Crittenden (1994) 9 Cal.4th 83, 144; accord, People v. Brasure (2008)
42 Cal.4th 1037, 1058; People v. Romero (2008) 44 Cal.4th 386, 415.) Defendant
acknowledges our prior decisions and urges us to reconsider them. He offers no
persuasive reason to do so.
     Defendant further criticizes CALJIC Nos. 2.01 and 8.83 for requiring the
jury to draw an incriminatory inference when such an inference merely appears to
be reasonable. Specifically, he argues that imposing on the jurors a duty to accept
an interpretation of evidence pointing to his guilt creates an impermissible
mandatory, conclusive presumption. (Carella v. California (1989) 491 U.S. 263,
265-266.) We repeatedly have rejected the same contention. (People v.
Crittenden, supra, 9 Cal.4th at p. 144; People v. Wilson (1992) 3 Cal.4th 926, 942-
943.) We do so again here for the reasons stated in those decisions.




                                          45
           4. Failure to instruct on voluntary intoxication
     Defendant contends he was denied his state and federal rights to due process,
fair trial, and a reliable determination of guilt and penalty by the absence of
instructions explaining to the jury how voluntary intoxication may have affected
his ability to form the specific intent necessary for conviction of the restaurant
crimes. Defendant acknowledges that, absent a defense request, the trial court had
no duty to instruct on voluntary intoxication. (People v. Verdugo (2010) 50
Cal.4th 263, 295; People v. Saille (1991) 54 Cal.3d 1103, 1120.)
     Even had defense counsel asked the court to give a voluntary intoxication
instruction, however, none was required because there was no substantial evidence
either that defendant was intoxicated or that intoxication affected his ability to
“actually form[] a required specific intent.” (§ 22, subd. (b); see People v. Roldan,
supra, 35 Cal.4th at p. 715; accord, People v. Williams, supra, 16 Cal.4th at
p. 677.) Lateshia Winkler testified that defendant was high when he returned to
her apartment around 10:00 p.m., after the incident at the restaurant. She further
explained on cross-examination that defendant was stumbling around and
“shermed out,” meaning that he was under the influence of PCP. During the same
line of questioning, however, Winkler also indicated that defendant was “acting
normal” before he left her apartment Saturday evening. Defendant points to no
evidence suggesting that he was intoxicated at the time of the crimes.

       C. Penalty Phase and Sentencing Issues

           1. Effect of antisympathy “instruction”
     Defendant contends that his death sentence must be reversed because the
court‟s instruction misled the jury regarding the scope of its discretion in
determining penalty. We conclude that the jury was not misled.
     The complained-of “instruction” was part of the court‟s introductory remarks
to prospective jurors during voir dire. The court provided an overview of the


                                          46
principles governing the guilt phase of the trial, such as the presumption of
innocence and proof beyond a reasonable doubt. It also explained the rule that the
jury determine the facts of the case based on the evidence received at trial, stating
as follows: “It‟s a normal human reaction or a human emotion, you‟re going to be
here during the course of this trial through the various phases, we get to all of
those phases, for several weeks. . . . [Y]ou‟ll be seeing Mr. Rogers, Mr. Myles,
every day,” and their friends or family might be in the courtroom. Likewise, the
court pointed out, there might be friends or family of the victims, and a “normal
human reaction would be to have some feelings of sympathy” for them. The court
indicated, however, that “what we‟re going to be asking you to do as jurors is to
set aside any of those feelings of sympathy or empathy or compassion on either
side and make an objective decision based solely on the facts and the law that
I give you.” (Italics added.)
     Emphasizing the italicized portion of the court‟s remarks, defendant contends
that the jury was impermissibly instructed not to consider sympathy during the
penalty phase. Specifically, he complains that by referring to “the course of this
trial through the various phases,” and indicating that “we get to all of those
phases,” the court led the jury to believe that its “no sympathy” admonition was
not limited to the determination of guilt. He argues that because the directive was
given before the presentation of any evidence in the case, including his penalty
phase witnesses, the jurors would have disregarded critical mitigating evidence,
which he was constitutionally entitled to have them consider.
     Having examined the record as a whole, including the court‟s instructions,
we conclude that the jury was not misled into believing it could not consider
sympathy when determining penalty. (See People v. Frye (1998) 18 Cal.4th 894,
1025; People v. Howard (1988) 44 Cal.3d 375, 433-434; People v. Hernandez
(1988) 47 Cal.3d 315, 365-367.) At the penalty phase, before the presentation of

                                         47
evidence, the court instructed the jury that it was “free to assign whatever moral or
sympathetic value” it deemed appropriate to each of the statutory factors it was
permitted to consider. Immediately after that, the court directed the jury to
“disregard any jury instruction given to you in the guilt or innocence phase of this
trial which conflicts with that principle.” The court made the same point again at
the conclusion of trial, prior to closing arguments, this time adding a directive to
disregard “any statements that may have been made during jury selection, where
we talked generally about some of the guidelines and principles.” Even assuming
for argument that at this juncture some jurors may have misunderstood the role of
sympathy in their penalty determination, the court‟s further instruction left no
doubt that it was a proper consideration. The court specifically informed the jury,
“You were previously instructed at the guilt phase of the trial that sympathy or
pity for the defendant should not influence your consideration of the evidence. In
this, the penalty phase of trial, the jury may properly consider sympathy or pity for
the defendant in determining whether to impose life in prison without the
possibility of parole.”
     Defendant asserts that it is unreasonable to conclude that jurors could or
would disregard the “no sympathy” instruction. We disagree. In the course of
rejecting a claim similar to the one defendant raises here, we previously have
concluded that statements made at the time of jury selection did not “create such
an indelible impression” that jurors were unable to follow the court‟s subsequent,
specific instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.) The same
conclusion is warranted here.12 (See also People v. Silva (1988) 45 Cal.3d 604,

12     Respondent argues that defendant has forfeited his claim of error because
he did not object below. Defendant counters that the forfeiture rule does not apply
when, as here, the court gives an instruction that incorrectly states the law.
                                                           (footnote continued on next page)


                                          48
637 [jurors who were asked during voir dire whether they could set aside feelings
of sympathy would not have remembered or been guided by that question two
months later when making their penalty determination].)

             2. Victim impact evidence
      As previously described, two members of each murder victim‟s family
testified about their respective loved one‟s character and the effect that his death
had on them personally. Defendant claims that the victim impact evidence was
outside the proper scope of aggravating evidence and unrelated to his moral
culpability because there was nothing suggesting that he was aware of any aspect
of the victims‟ lives. Defendant acknowledges that we have repeatedly rejected
the argument that characteristics of the victim that are unknown to the defendant
should not be presented to the jury for its consideration at the penalty phase. (See
People v. Nelson (2011) 51 Cal.4th 198, 219, fn. 17; People v. Pollock (2004) 32
Cal.4th 1153, 1183.) He provides no persuasive reason for us to reconsider our
prior pronouncements on this issue.13


(footnote continued from previous page)

(People v. Hudson (2006) 38 Cal.4th 1002, 1012.) We previously have not
addressed whether a defendant is obligated to call to the trial judge‟s attention the
type of alleged error being asserted here. (See, e.g., People v. Howard, supra,
44 Cal.3d at pp. 433-434 [rejecting the defendant‟s claim on the merits
notwithstanding counsel‟s failure to object to the court‟s question to prospective
jurors whether they would be willing to set aside sympathy].) We need not decide
the forfeiture issue, however, because even if defendant‟s claim was preserved for
appeal, it clearly lacks merit on this record. (People v. Champion and Ross (1995)
9 Cal.4th 879, 908, fn. 6.)
13     For similar reasons, we reject defendant‟s further claim that the trial court
erred by refusing defense counsel‟s request that the jury be instructed not to
consider any victim impact evidence “unless it was foreseeably related to the
personal characteristics of the victim that were known to the defendant at the time
                                                           (footnote continued on next page)


                                          49
             3. Imposition of upper-term firearm enhancement
      In connection with each of the murder and robbery counts the jury found true
the allegation that defendant personally used a handgun, within the meaning of
section 12022.5, subdivision (a)(1). That provision allows for an additional
sentence of 3, 4, or 10 years. The court imposed the upper term of 10 years for
each murder conviction and for one of the two robbery convictions.
      Defendant asserts that sentencing him with these upper term enhancements
violated his Sixth Amendment jury trial right because none of the aggravating
factors on which the court relied to impose them had been found true by the jury
or admitted by him. (Cunningham v. California (2007) 549 U.S. 270; People v.
Sandoval (2007) 41 Cal.4th 825.) We agree with defendant that the court erred
when it selected the upper term enhancement on the Ricky Byrd murder count,
relying on facts not found by the jury. However, the error was harmless beyond a
reasonable doubt.
      Apprendi v. New Jersey (2000) 530 U.S. 466 holds that, under the Sixth
Amendment, “any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” (Apprendi, supra, at p. 490.) In Blakely v. Washington (2004) 542 U.S.
296, the high court extended the scope of Apprendi by defining “statutory
maximum” as the “maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the defendant.” (Blakely,
supra, at p. 303, italics omitted; see In re Gomez (2009) 45 Cal.4th 650, 656.)
Applying Blakely, the court later held in Cunningham v. California, supra, 549

(footnote continued from previous page)

of the crime.” Contrary to defendant‟s assertion, the trial court properly concluded
that the proposed instruction was an incorrect statement of law.




                                          50
U.S. 270, that California‟s determinate sentencing law did not comport with a
defendant‟s Sixth Amendment jury trial right. As Cunningham explained, “If the
jury‟s verdict alone does not authorize the sentence, if, instead, the judge must find
an additional fact to impose the longer term, the Sixth Amendment requirement is
not satisfied.” (Id. at p. 290.) Because the aggravating circumstances necessary
for imposition of an upper term “depend on facts found discretely and solely by
the judge” (id. at p. 288), the “statutory maximum” prescribed in California‟s
sentencing scheme is not the upper term but rather the middle term. (Ibid.)
     Decisions by this court have further clarified the interplay between Sixth
Amendment requirements and our determinate sentencing scheme. People v.
Black (2007) 41 Cal.4th 799 held in relevant part that imposition of the upper term
does not violate a defendant‟s jury trial right “so long as one legally sufficient
aggravating circumstance has been found to exist by the jury,” or “has been
admitted by the defendant.” (Id. at p. 816.) A companion case, People v.
Sandoval, supra, 41 Cal.4th 825 (Sandoval), established that the erroneous
imposition of an upper term is subject to federal harmless error analysis under
Chapman v. California (1967) 386 U.S. 18. (Sandoval, supra, at p. 838.)
     In adding the firearm use enhancement to the sentence for the murder of
Ricky Byrd, the court chose the aggravated term “because of the use of two
firearms and multiple shots and lack of any provocation.” All of the identified
aggravating factors were based on the evidence of the underlying crime, and none
were established by the jury‟s verdict or admitted by defendant. (Sandoval, supra,
41 Cal.4th at pp. 837-838, 839.) We therefore agree with defendant that the court
violated his federal constitutional right to jury trial when it imposed the upper term
for this enhancement.
     Defendant argues that the Cunningham/Black error was not harmless. Under
Sandoval, the pertinent inquiry is “whether, if the question of the existence of an

                                          51
aggravating circumstance or circumstances had been submitted to the jury, the
jury‟s verdict would have authorized the upper term sentence.” (Sandoval, supra,
41 Cal.4th at p. 838.) “[I]f a reviewing court concludes, beyond a reasonable
doubt, that the jury, applying the beyond-a-reasonable-doubt standard,
unquestionably would have found true at least a single aggravating circumstance
had it been submitted to the jury, the Sixth Amendment error properly may be
found harmless.” (Id. at p. 839.)
     Contrary to defendant‟s assertion, we conclude beyond a reasonable doubt
that the jury would have found true all of the aggravating circumstances stated by
the court had they been charged and submitted to the jury for its consideration.
Eyewitnesses to the Ricky Byrd murder testified consistently with one another that
when defendant yelled to their group from the backseat window of the car, asking
whether they would “give Smoke a message for him,” Ricky approached the car
and said, “Okay. What‟s the message?” They further testified that defendant then
pointed two guns out the window and fired twice. Defendant did not dispute this
evidence. Notably, he presented no defense case at the Byrd trial. Nor did
counsel challenge the evidence during closing remarks. Indeed, in the course of
arguing that defendant did not act with premeditation and deliberation, counsel
asserted that defendant asked the group “quickly, just, „Give Smoke a message,‟
and boom boom.” Counsel also argued that defendant had no intent to kill but
rather was firing madly at a parked car and happened to hit the victim as he was
ducking down behind it for protection after seeing the two guns. Given the
undisputed evidence regarding defendant‟s gun use, counsel‟s concessions, and
that the jury convicted defendant of first degree murder rather than a lesser
offense, we conclude beyond a reasonable doubt that, under the same standard, the




                                         52
jury also would have found the aggravating circumstances that defendant used two
firearms, fired multiple shots, and had not been provoked.14

       D. Constitutionality of California’s Death Penalty Scheme
     Defendant presents numerous challenges to the constitutionality of
California‟s death penalty law that, as he acknowledges, are identical to those that
previously have been considered and rejected by this court. We decline his
request to reconsider our prior conclusions here. (People v. Schmeck (2005) 37
Cal.4th 240, 303.)



14      The heading of defendant‟s claim of Cunningham/Black error in his
opening brief refers to the court‟s imposition of upper term gun use enhancements
relating to two counts, the Ricky Byrd murder and the robbery of Krystal
Anderson. However, neither his opening brief nor the reply provides citation to
the record or legal argument concerning the Anderson robbery. For this reason,
we do not consider whether the court permissibly imposed the upper term
enhancement in connection with that count. (People v. Hovarter (2008) 44
Cal.4th 983, 1029 [if the appellate brief presents no legal argument on a point, the
reviewing court may treat it as waived and decline to consider it]; People v.
Wilkinson (2004) 33 Cal.4th 821, 846, fn. 9; People v. Stanley (1995) 10 Cal.4th
764, 793.)
        We agree with defendant, however, that the abstract of judgment should be
corrected with regard to these two convictions and their gun enhancements, and
respondent does not argue otherwise. The reporter‟s transcript indicates that,
pursuant to section 654, the court stayed sentence on the Anderson robbery count
and its associated enhancements. With regard to the Ricky Byrd murder count, it
ordered that imposition of the gun use enhancement not be stayed. However, the
abstract of judgment reflects a stayed sentence, rather than 10 years, for the
enhancement on the Ricky Byrd murder count, and a term of 10 years, rather than
a stayed sentence, for the enhancement on the Anderson robbery. When an
abstract of judgment does not accurately reflect the trial judge‟s oral
pronouncement of sentence, this court has the inherent power to correct such an
error, either on our own motion or at the parties‟ behest. (People v. Mitchell
(2001) 26 Cal.4th 181, 185.) Accordingly, we order that the abstract of judgment
be corrected to conform to the sentences actually imposed by the court.




                                         53
           1. Aggravating and mitigating factors
     Defendant asserts that California‟s capital sentencing statute, with its unitary
list of aggravating and mitigating factors, fails to guide the sentencer‟s discretion
in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments and their state
constitutional counterparts. We have concluded otherwise: Section 190.3 is not
constitutionally infirm for not specifying which factors are aggravating and which
are mitigating, for not limiting aggravation to the specified aggravating factors, or
for not defining the terms “aggravation” and “mitigation.” (People v. Lee (2011)
51 Cal.4th 620, 652; People v. Horning (2004) 34 Cal.4th 871, 913; People v.
Frye, supra, 18 Cal.4th at p. 1026.) Nor do these asserted deficiencies
impermissibly allow the jury to consider mitigating evidence, or its absence, in
aggravation. (People v. Jennings (2010) 50 Cal.4th 616, 690; People v. Page
(2008) 44 Cal.4th 1, 61.)15
     Defendant further contends that section 190.3‟s aggravating and mitigating
factors violate the Eighth Amendment‟s proscription against the use of vague
factors in the penalty phase weighing process. (See Stringer v. Black (1992) 503
U.S. 222, 235.) We previously have rejected the same arguments defendant

15     Defendant complains that section 190.3‟s deficiencies also improperly
allowed the prosecutor to characterize his age as an aggravating factor and to
argue nonstatutory matters as evidence in aggravation. He has forfeited this
portion of his claim because he failed to object to the prosecutor‟s remarks.
(People v. Dykes (2009) 46 Cal.4th 731, 794.) In any event, there is no merit to
defendant‟s assertions. Age can be a factor in aggravation. (See People v.
Castaneda (2011) 51 Cal.4th 1292, 1349, fn. 25.) Furthermore, according to the
record, the prosecutor told the jury that evidence of defendant‟s age is “not really
an aggravating or mitigating factor.” And although defendant complains that the
prosecutor relied on a nonstatutory factor when urging the jury to choose death
because defendant “is still part of society,” the quoted remark does not appear in
the reporter‟s transcript at the page number he cites, and our own review of the
record discloses no such argument.




                                          54
presents here: Section 190.3, factor (a), which permits consideration of the
circumstances of the crime as an aggravating factor, is not impermissibly vague.
(People v. Mills (2010) 48 Cal.4th 158, 213-214; People v. Ervine (2009)
47 Cal.4th 745, 810; see Tuilaepa v. California (1994) 512 U.S. 967, 975-976.)
Moreover, neither the use of the adjective “extreme” in “extreme mental or
emotional disturbance” under factor (d), nor the absence of language explaining
that these identified circumstances are mitigating rather than aggravating, renders
that factor unconstitutionally vague. Nor does the same asserted deficiency
invalidate factor (h), regarding impairment due to mental disease, defect, or
intoxication. (People v. Griffin (2004) 33 Cal.4th 536, 598-599; People v. Kipp
(2001) 26 Cal.4th 1100, 1138; People v. Kelly (1990) 51 Cal.3d 931, 968-969.)
Finally, factor (i), the age of the defendant at the time of the crimes, is not
unconstitutionally vague merely because it may be considered as a factor in
aggravation or mitigation.16 (People v. Carrington (2009) 47 Cal.4th 145, 201-
202; People v. Lucky (1988) 45 Cal.3d 259, 302.) Defendant acknowledges that
the high court upheld the constitutionality of factors (a), (b), and (i) in Tuilaepa v.
California, supra, 512 U.S. 967. He asserts, however, that although discrete
factors may appear constitutional, the combined effect of all factors renders the
entire scheme unconstitutional. We have concluded to the contrary that section
190.3 as a whole is not impermissibly vague. (People v. Seaton (2001) 26 Cal.4th


16      Defendant presents a catch-all argument, contending without any legal
argument or explanation that all of the aggravating and mitigating factors are
unconstitutionally vague and arbitrary, and that the jury‟s consideration of them
results in unreliable sentences. We do not address the remaining factors. (People
v. Jones (2003) 30 Cal.4th 1084, 1129; see also People v. Lindberg (2008) 45
Cal.4th 1, 51, fn. 14 [a matter asserted in a perfunctory manner is not properly
raised].)




                                           55
598, 688; People v. Box (2000) 23 Cal.4th 1153, 1217; People v. Williams, supra,
16 Cal.4th at pp. 267-268.)

           2. Procedural safeguards
     “The jury need not make written findings unanimously agreeing on the
existence of aggravating factors and concluding beyond a reasonable doubt that
the aggravating factors exist, that they outweigh the factors in mitigation, and that
death is the appropriate penalty.” (People v. Clark, supra, 52 Cal.4th at p. 1007.)
Nor is there a constitutional requirement that the jury be instructed on any burden
of persuasion with regard to the penalty determination. (People v. Gonzales and
Soliz (2011) 52 Cal.4th 254, 328.)
     California‟s automatic appeals procedure is not unconstitutional on the
ground that it fails to provide for intercase proportionality review. (People v.
Garcia (2011) 52 Cal.4th 706, 764.)
     Prosecutorial discretion in deciding whether or not to seek the death penalty
does not create a constitutionally impermissible risk of arbitrary outcomes that
differ from county to county. (People v. Bennett (2009) 45 Cal.4th 577, 629;
People v. Keenan (1988) 46 Cal.3d 478, 505.)

           3. Narrowing function
     The various special circumstances listed in section 190.2 that render a
murderer eligible for the death penalty are not so numerous or broad that they fail
to genuinely narrow the class of persons subject to capital punishment. (People v.
Vines, supra, 51 Cal.4th at p. 891.) More specifically, the felony-murder and
multiple-murder special circumstances adequately narrow the class of death
eligible murderers. (People v. Scott (2011) 52 Cal.4th 452, 496, People v.
Solomon, supra, 49 Cal.4th at p. 843; see also People v. Boyer, supra, 38 Cal.4th




                                         56
at p. 483 [to categorize multiple murderers as especially deserving of the death-
penalty is neither arbitrary nor irrational].)
     That the jury may consider the special circumstance finding as an
aggravating factor under section 190.3, factor (a), does not run afoul of the Eighth
Amendment‟s narrowing requirement. “[T]he aggravating and mitigating
circumstances referred to in section 190.3 do not and need not perform a
narrowing function.” (People v. Cornwell, supra, 37 Cal.4th at p. 102; see People
v. Mendoza, supra, 24 Cal.4th at p. 192.) Nor does consideration of a special
circumstance finding in aggravation permit the sentencer unbridled discretion that
is weighted in favor of death. (People v. Moon (2005) 37 Cal.4th 1, 40-41; People
v. Kipp, supra, 26 Cal.4th at p. 1137.) Nor does the use of a felony-murder
special-circumstance finding as an aggravating factor subject the defendant to a
greater likelihood of being sentenced to death than a defendant against whom
some other special circumstance allegation has been found true. (People v. Gates
(1987) 43 Cal.3d 1168, 1188-1189.)

       E. International Law
     Defendant contends that the denial of his state and federal rights to due
process and a fair and impartial trial in this case amounted to a violation of
customary international law as informed by instruments such as the Universal
Declaration of Human Rights, the International Covenant on Civil and Political
Rights, and the American Declaration of the Rights and Duties of Man, which
requires that his convictions and sentence be set aside. We reject the assertion.
“Because defendant has failed to establish prejudicial violations of state or federal
constitutional law, we need not consider whether such violations would also
violate international law.” (People v. Bolden (2002) 29 Cal.4th 515, 567; accord,
People v. Wallace (2008) 44 Cal.4th 1032, 1098.)



                                           57
       F. Cumulative Effect of Asserted Errors
     Defendant argues that the cumulative impact of the asserted errors at the guilt
and penalty phases rendered his trial fundamentally unfair and deprived him of
other constitutional rights. Because we have concluded there was no error related
to the capital offenses or their punishment, there is nothing to cumulate and, in any
event, we reject his claim that any asserted cumulative effect warrants reversal.
                                 III. CONCLUSION
     We order that the abstract of judgment be corrected to conform to the trial
court‟s oral pronouncement that the Penal Code section 12022.5, subdivision (a),
gun use enhancement relating to count 1 (murder of Harry “Ricky” Byrd) is
10 years, and the Penal Code section 12022.5, subdivision (a), gun use
enhancement relating to count 3 (robbery of Krystal Anderson) is stayed. The
judgment is affirmed as so corrected.


                                                       CANTIL-SAKAUYE, C. J.
     WE CONCUR:
     KENNARD, J.
     BAXTER, J.
     WERDEGAR, J.
     CHIN, J.
     CORRIGAN, J.
     LIU, J.




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

Name of Opinion People v. Myles
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S097189
Date Filed: April 26, 2012
__________________________________________________________________________________

Court: Superior
County: San Bernardino
Judge: Michael A. Smith

__________________________________________________________________________________

Counsel:

John F. Schuck, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Annie Fraser, Jeffrey J. Koch and Holly D.
Wilkens, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

John F. Schuck
Law Offices of John F. Schuck
4083 Transport Street, Suite B
Palo Alto, CA 94303
(650) 856-7963

Holly D. Wilkens
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2197
