Filed 12/3/12




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                              S044592
           v.                        )
                                     )
STEVEN HOMICK,                       )
                                     )                      Los Angeles County
           Defendant and Appellant.  )                     Super. Ct. No. A973541
____________________________________)


        Defendant Steven Homick was convicted by a jury of one count of
conspiracy to commit murder (Pen. Code, §§ 182, 187)1 and two counts of first
degree murder (§ 187), as to which the jury found true financial-gain, multiple-
murder, and lying-in-wait special-circumstance allegations (§ 190.2, subd. (a)(1),
(3), (15)).2 Following the penalty phase trial, the jury returned death verdicts on


1       All further unspecified statutory references are to the Penal Code.
2      Six individuals were arrested for the murders of Vera and Gerald
Woodman: defendant; his brother, Robert Homick; the victims‟ sons, Neil
Woodman and Stewart Woodman; Anthony Majoy; and Michael Dominguez.
Dominguez pleaded guilty to two counts of first degree murder. Stewart
Woodman and Anthony Majoy were tried together and then defendant, Robert
Homick, and Neil Woodman were tried together. Stewart Woodman and Anthony
Majoy were convicted of two counts of first degree murder with special
circumstances and conspiracy. Stewart Woodman agreed to testify against the
remaining defendants in exchange for avoiding the death penalty. Majoy was
sentenced to life without the possibility of parole. Robert Homick was convicted
of two counts of murder, the multiple-murder special circumstance was found true,

                                                           (footnote continued on next page)

                                          1
the murder counts. Defendant‟s motions for a new trial and for a reduction of
sentence (§ 190.4, subd. (e)) were denied. The trial court sentenced him to death
on the murder counts and 25 years to life on the conspiracy count, which it stayed
pursuant to section 654.
        This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239,
subd. (b).) We affirm.
                                          FACTS
I. GUILT PHASE
        A. The Prosecution Case
             1. The Woodman family and Manchester Products
        In 1975, Gerald Woodman founded Manchester Products, which made
plastic panels used in ceiling lighting. He ran the company, but ownership was
divided among his two older sons, Neil and Stewart, each of whom had a 25
percent interest, and his wife, Vera, who held the remaining 50 percent interest.3
Neil worked in production, and Stewart worked in sales. Initially, Stewart had a
good relationship with Gerald, but Gerald and Neil‟s relationship was always
acrimonious.
        When the youngest son, Wayne, joined the company in 1978 after
graduating from college, he was given half of Vera‟s ownership interest and a job
overseeing accounts and credit. Neil and Stewart resented the manner in which
Wayne was brought into the company. That Gerald favored Wayne over his


(footnote continued from previous page)

and he was sentenced to life without the possibility of parole. The jury was unable
to reach a verdict as to Neil Woodman, and a mistrial was declared.
3       To avoid confusion, the Woodmans are referred to by their first names.



                                            2
brothers increased familial tension. In late 1978, Gerald suffered a serious heart
attack. While he was recuperating, Neil and Stewart ran the company, to their
father‟s displeasure. Stewart testified that Gerald created problems at the
company to force his sons to seek his help.
       In April 1981, Stewart sought his mother‟s reassurance that she would
support him and Neil in any conflict with Gerald. Vera said she would. A few
months later, however, Vera told Stewart there was to be a meeting of the board of
directors. She said Gerald had decided that Stewart would go back on the road as
a salesman, Neil would be sent back to the factory floor, and Wayne and Gerald
would run the company. She said if Stewart did not agree to Gerald‟s plan, Gerald
would liquidate the business. Stewart felt betrayed by his mother.
       Preemptively, Neil and Stewart issued extra shares of stock to give
themselves a controlling interest in the company and then fired Gerald and Wayne.
The brothers tried to buy Vera‟s and Wayne‟s interests in the company for $2.2
million to be paid over time, but the offer was rejected. A lawsuit ensued that
resulted in a judgment of $675,000 to be paid by the brothers to Vera and Wayne.
Neil and Stewart borrowed the money to pay the judgment owing.
       The brothers also became involved in a bitter dispute involving a $500,000
life insurance policy Manchester Products had taken out on Vera to protect the
interests of the family‟s two daughters. Vera communicated through her sister,
Muriel Jackson, that she wanted the policy cancelled. When Jackson demanded
they cancel the policy, the brothers refused. Neil said, “Look at the odds,” and
laughed.
       After taking over the company, the brothers freely expressed their anger
toward and hatred of their parents. Stewart testified that they would make these
comments “on a daily basis” to “anybody that would listen.” Former employees
and business associates of the brothers confirmed that the brothers constantly
                                         3
made derogatory remarks about their parents. These included wishing their parents
were dead.
       Between 1981 and 1985, Manchester Products‟s financial condition
deteriorated. Servicing the loan from Union Bank to pay the judgment owed to
Vera and Wayne was one factor. Another factor was the purchase of a new plant.
       The brothers were also forced to compete against a rival company,
Woodman Industries, set up by Gerald and Wayne. The ensuing price war
reduced Manchester Products‟s earnings. Eventually, Woodman Industries went
bankrupt, as did both Gerald and Wayne, and each of them lost their residences as
a result. Neil and Stewart expressed satisfaction at having driven their parents into
bankruptcy.
       In response to Manchester Products‟s poor financial picture, the brothers
engaged in an elaborate scheme to misrepresent the value of their accounts
receivable to Union Bank, which financed the company‟s operations with a credit
line secured by those accounts. Neil and Stewart instructed the company‟s
controller, Steven Strawn, to manipulate the accounts receivable to make it appear
that some past due invoices were still current, preventing them from being
excluded from the collateral that secured the credit line. Union Bank discovered
the ploy and audited the company‟s accounts receivable statements. Its auditors
discovered $1.7 million in ineligible collateral.
             2. Neil and Stewart turn to defendant, their longtime acquaintance,
                to kill Vera and Gerald
       Neil and Stewart met defendant around 1980 in Las Vegas through a
mutual friend, Joey Gambino. Stewart was an inveterate gambler who bet on
“everything there was to gamble on,” including football games. Defendant told
Stewart that his brother, Robert Homick, who lived in Los Angeles, also bet on
football games. He asked for Stewart‟s phone number to pass along to his brother.

                                          4
Robert Homick and Stewart struck up a friendship based on their shared love of
gambling. Robert Homick was a frequent visitor to Manchester Products.
Defendant, who lived in Las Vegas, was also a regular visitor to the company and
became friends with Neil.
       Between 1980 and 1985, Neil and Stewart employed defendant and Robert
Homick in various capacities. According to Richard Wilson, the company‟s one-
time national sales manager, the brothers hired defendant to sweep the plant for a
bugging device they feared Gerald had installed. In the summer of 1984, Neil
hired defendant, as well as two former Los Angeles police officers, Jean Scherrer
and John O‟Grady, to act as security at his son‟s bar mitzvah, specifically to keep
Gerald and Vera out.4 According to Scherrer, defendant said that if Gerald and
Vera appeared, “If necessary, I will waste them.”5 In May 1985, defendant
enlisted Scherrer to plant a listening device in the office at Manchester Products
where the Union Bank auditors would be conducting their audit. Scherrer testified
the work was done when the plant was empty; defendant had keys with which they
entered the building.
       Stewart used Robert Homick to commit insurance fraud on two occasions.
Both times, he had Robert Homick take a vehicle—the first time, a Monte Carlo
belonging to Manchester Products, and the second time, Stewart‟s personal Rolls
Royce—which Stewart then reported as stolen to collect the insurance money.
Stewart also used Robert Homick to do collections for Manchester Products,


4     Defendant himself had briefly been with the Los Angeles Police
Department in the 1960‟s.
5      Scherrer received a $25,000 reward offered for information relating to
Vera‟s and Gerald‟s murders. O‟Grady was deceased at the time of defendant‟s
trial.



                                         5
including from a company called Soft Lite. The daughter of Soft Lite‟s owner
testified that Robert Homick had threatened to “ break [the owner‟s] legs, or snuff
out his life” unless he paid what he owed to Manchester Products.
       Stewart testified that in the summer of 1983, while Joey Gambino was
staying at Stewart‟s house, Gambino heard Stewart “screaming” and “yelling” at
his parents. Gambino told him, “Stewart, you are going to kill yourself. Why
don‟t you let me handle this, and we will put an end to it.” Gambino put Stewart
in touch with defendant, and the two of them, together with Neil, met at
Manchester Products. Defendant told Stewart, “Joey told me there were a lot of
problems going on with your mother and father. . . . You are crazy to go through
it. You are not well. [¶] . . . Let‟s put an end to it.”6 Defendant told the brothers
he would be returning to Los Angeles in a couple of weeks and suggested they
“think about it” and meet again.
       The second meeting took place in the first part of November 1983. At that
meeting, the brothers told defendant they had decided to go through with killing
their parents and asked him what information he would need. Defendant wanted
information about Gerald‟s and Vera‟s “traits,” including when they were
together, when they were apart, where they went, and where they got together with
other people. Stewart and Neil provided defendant with such information as
Gerald‟s habit of walking the dog every night, and events like birthdays and
Jewish holidays when their parents got together with the rest of the family.
Stewart also provided defendant with his brother Wayne‟s address where, at the
time, Gerald and Vera were also living. Defendant told them that killing their


6      Stewart suffered from high blood pressure and a heart problem, and had
had a stroke in January 1981. He had spoken to defendant about his health issues.



                                          6
parents would cost $40,000 or $50,000.7 After the second meeting, Neil told
Stewart that Vera as well as Gerald would have to be killed. He said if it was just
their father, they would be suspected of it but, because Stewart had been close to
his mother, if she were also killed the authorities “would never believe” Stewart
was involved. Stewart agreed.
           3. Actions taken between April 1984 and June 1985 in
              furtherance of the conspiracy
       Defendant habitually made notes in a series of “daily reminder” books.
Police seized a number of these books for 1984 and 1985 when they searched his
Las Vegas residence. Defendant stipulated at trial that the books were his, as was
the writing in them. Defendant‟s notes were typically somewhat cryptic,
consistent with testimony that he used codes and jargon.8 However, a note on
April 29, 1984, included Wayne Woodman‟s street address, “2311 Roscomare
Road, number 8.” Wayne‟s parents were living with him at the time. Entries for
May 3, June 4, July 1, August 4, August 5, October 1, November 1, and
December 2, 1984, contained Wayne‟s building and unit numbers—“2311” and
“8.”
       In late December 1984 or early January 1985, Wayne moved from
Roscomare Road to 8420 Blackburn Avenue. Gerald and Vera moved to an
apartment at 11939 Gorham Avenue. An entry in defendant‟s daily reminder for
January 23, 1985, had Wayne‟s name and the notation “gas on.” An entry for


7      Stewart and Neil ultimately paid defendant $50,000 to kill their parents.
8     Art Wilson, a longtime associate of defendant, testified that defendant gave
people nicknames and also used codes. Joey Gambino, who testified for the
defense, said defendant was “always speaking in jargon,” and Gambino did not
always know what defendant was saying.



                                         7
February 12, 1985, had Wayne‟s name and the Blackburn Avenue address. An
entry for February 22, 1985, noted Gerald and Vera‟s new address on Gorham
Avenue.
       Entries for August 5, September 4, October 1, November 1, and
December 12, 1984, contained the notes “Ed,” “Ed Bern,” “grape” and “Dino.”
These references were deciphered for the jury through the testimony of several
witnesses. Wayne Woodman testified that his father habitually carried a comb in
his shirt pocket and identified a photograph of his father doing so. Leith Adams,
an archivist at Warner Brothers studios, testified that in the 1950‟s television
series 77 Sunset Strip, an actor named Edd Byrnes played a character called
“Kookie,” whose trademark was that he always combed his hair with a comb he
kept in the left breast pocket of his jacket. Adams testified that the character‟s
actual first name was “Gerald,” and “Dino” was the name of a restaurant on the
television series.
       As for the “grape” reference, the prosecution called one-time restaurateur
Francis O‟Brien, who in 1984 owned a restaurant in Los Angeles that served
Greek food. O‟Brien testified that defendant was a patron and had a particular
fondness for the restaurant‟s stuffed grape leaves. An entry in defendant‟s daily
reminder for September 24, 1985—the day before the murders—contained the
words “Fran O” and what appeared to O‟Brien to have been the phone number of
his restaurant.
       An entry in defendant‟s daily reminder for February 24, 1985, contained
references to a real estate agent named Sharon Armitage, who had an exclusive
listing at 11939 Gorham Avenue, Gerald and Vera‟s building. Defendant told his
confederate Michael Dominguez that he had tried to “acquire a room . . . an
apartment . . . up in the same building as the man and the lady lived with the dog”
(i.e., Vera and Gerald). In June 1987, Armitage was shown a photo lineup by
                                          8
police and picked the photographs of a man and a woman who looked familiar to
her. The man was defendant.
       In March or April 1984, Robert Homick told Stewart there had been an
unsuccessful attempt on Gerald‟s and Vera‟s lives over Passover. Stewart was
concerned because he considered Robert Homick to be a “klutz” and had
specifically requested that he not be involved in the conspiracy. Robert Homick
wanted $5,000 or $6,000 for expense money. Neil—who had been dealing with
defendant—told Stewart to pay Robert the money. Stewart delivered the money to
Robert Homick in cash at a grocery store. Stewart began to feel that defendant
and his brother were simply trying to get money from them and shared his concern
with Neil. Both Neil and defendant told Stewart to be patient.
       June 22, 1985, was Gerald and Vera‟s 45th wedding anniversary. As was
their custom, they went out to celebrate with other family members. Earlier in the
day, two male residents of Gorham Avenue observed Robert Homick sitting in his
car at different locations on the street. One of the men wrote down the vehicle
license number and called the police. The police came, spoke to Robert Homick,
filled out a field interview card, and left.
            4. Actions taken in preparation for the murders in September 1985
       Defendant recruited Anthony Majoy and Michael Dominguez as
accomplices. He told Dominguez he was “going to rob . . . this olderly [sic]
couple” and that “he had been after them a few times. Missed.”
       Sometime between September 10 and September 12, 1985, defendant
purchased three walkie-talkies from his friend Art Taylor, who operated Art‟s CB
Shop in Las Vegas. The walkie-talkies were for short-range communications with
a five-mile maximum range and required line-of-sight contact. Defendant told
Taylor he needed the walkie-talkies for surveillance work in Los Angeles.


                                               9
      Sometime in mid-September, Robert Homick and Michael Dominguez
bought a boltcutter at Rae‟s Hardware Store in West Los Angeles. The sales clerk
who made the sale identified the men from a photo lineup. On September 23, in a
call to his aunt, Sybil Michelson, Stewart confirmed information he had received
from Michelson‟s daughter Linda that his parents would be breaking the Yom
Kippur fast at the home of Muriel Jackson. Shortly after talking to Michelson,
Stewart received a call from Robert Homick. Stewart told him his parents would
be at Jackson‟s residence.
      On September 24, in Las Vegas, Art Taylor saw defendant‟s other brother,
William Homick, give defendant a brown bag, saying, “[T]his is the ammo that
you had requested.” That morning, defendant and Dominguez flew from Las
Vegas to Burbank on an 11:50 a.m. flight.9 At the Burbank airport, defendant,
accompanied by Dominguez, rented a car.
      Later that day, according to Dominguez, he and defendant went to the
office of a lawyer named Max Herman. Dominguez waited while defendant met
with Herman. Defendant emerged from the meeting carrying a gun case. The
next day, Dominguez saw the case again; it contained a revolver. Dominguez said
that he, defendant, and Robert Homick tested the walkie-talkies to determine over
what distance they could be used. They drove to the entrance of a gated
community where Muriel Jackson lived, three or four miles from the apartment
building where Gerald and Vera lived.
      Defendant called Art Taylor in Las Vegas and complained he was having a
problem with the walkie-talkies and wanted to know where he could buy a battery.

9      The prosecution presented records for PSA airlines showing that two tickets
issued for defendant and “M. Dome” were used on flight 119; defendant and
Dominguez were also identified by a fellow passenger.



                                        10
Taylor referred him to Henry Radio. A notation appears in defendant‟s daily
reminder for September 24, with the name “Henry Radio.” A sales clerk at the
store identified Robert Homick in a photo lineup as the man to whom he had sold
a walkie-talkie battery. The sales receipt recording the sale had Robert Homick‟s
address on it. Defendant returned to Las Vegas on the evening of September 24.
Dominguez stayed overnight in Los Angeles at the Westwood Inn, where Robert
Homick, using the alias “Robert Gilroy,” paid for Dominguez‟s room.
            5. The murders of Vera and Gerald on September 25, 1985,
               and the aftermath
       About 10:00 a.m. on September 25, defendant appeared at Art Taylor‟s
shop with the walkie-talkies. He wanted different walkie-talkies that would work
in Los Angeles. Taylor said he did not know anyone who had such items,
whereupon defendant decided to keep the walkie-talkies he had. He asked Taylor
to call Robert Homick and tell him to pick defendant up at the airport at 1:00 p.m.
Defendant flew to Los Angeles on the same 11:50 a.m. flight he had flown the
previous day; he was identified by another passenger. He was met at the Burbank
airport by Robert Homick and Dominguez about 1:00 p.m.
       Sometime around 2:15 p.m., Gerald and Vera arrived at Jackson‟s
residence to break the Yom Kippur fast. The meal was planned for around 6:00 or
6:30 p.m.
       According to Dominguez, he, defendant, and Robert Homick went back
and forth between the gates outside the Jackson residence and Vera and Gerald‟s
residence, testing the range of the walkie-talkies. Defendant drove to an alley
behind Vera and Gerald‟s Gorham Avenue apartment building and told
Dominguez to go ring their doorbell to see whether anyone was home. No one
answered when he pushed the buzzer. Dominguez went back to the car, reported



                                        11
to defendant, and waited while defendant went to check for himself. Defendant
returned after a few minutes and said, “the people were not home.”
       According to Dominguez, he and defendant drove to Gorham Avenue to
meet Robert Homick. Anthony Majoy was with Robert, wearing “like a black
hood sweatshirt.” In his car, defendant was carrying walkie-talkies, a handgun, a
shotgun, boltcutters, and his and Dominguez‟s luggage. Defendant gave
Dominguez a walkie-talkie and dropped him off at a nearby intersection.
Defendant told him to look for an elderly couple in a tan, two-door Mercedes and
to let defendant know as soon as he saw them. Gerald and Vera left Jackson‟s
house sometime between 10:00 and 10:15 p.m. in their tan, two-door Mercedes.
Dominguez radioed defendant when he saw the victims‟ car.
       On the night of September 25, Rodger Backman was visiting his mother,
who lived on the third floor of 11959 Gorham Avenue, the apartment building
adjacent to 11939 Gorham Avenue, where Gerald and Vera lived. Backman heard
five gunshots and ran out to the balcony. A retaining wall separated the two
buildings, and there was ivy along the wall on the 11939 Gorham side. Backman
heard rustling in the ivy and then saw a man jump over the wall from 11939
Gorham and land on the walkway below him. Backman shouted, “Hey, I see
you,” and the man looked up at him. The man was wearing “some type of martial
arts . . . uniform” that was completely black. It included a hood that covered his
entire face except “approximately half an inch above the eyebrows down to a line
about even with the bottom of his nose.” The man appeared to be about five and a
half feet tall, weighing about 160 pounds, with olive-toned skin. He did not
appear to have anything in his hands. The man ran toward the back of the building
into the alley. Backman went in pursuit but did not see the man again.
       Just as he observed the man jump over the wall between the two apartment
buildings, Backman heard more rustling in the ivy on the 11939 Gorham side of
                                         12
the wall, but he was unable to see who was making the noise. That person was
running in the opposite direction of the first man. Backman testified that the man
who jumped the wall “would not have been” the person making these other noises
in the ivy because those noises were in “the opposite direction . . . and this
particular sound I heard was running towards the street in the opposite direction
south into Gorham.” Backman was “absolutely sure . . . that [he] heard two
different individuals down in these ivy plants,” the man who jumped the wall and
landed on the sidewalk beneath Backman, and a second person running in the
opposite direction on the other side of the wall.
          Backman went downstairs and got up on the wall separating the two
apartment buildings. One of the gates into the subterranean garage at 11939
Gorham Avenue was open. He entered the garage and found Gerald slumped over
in the driver‟s seat of his car with a gunshot wound. Backman noticed some
neighbors had come out, and he yelled for a doctor and for someone to call the
police.
          Sometime after 10:05 p.m., Robert Kelly, who lived at 11959 Gorham
Avenue with his roommate, Jeff Carolan, heard five gunshots and a woman
screaming. The gunshots were coming from outside and were nearby. A few
seconds later, someone yelled, “Call the police,” and then “Call an ambulance.”
Kelly, who was an emergency medical technician, picked up his stethoscope and a
pen light, and he and Carolan went downstairs. They met up with Backman, who
directed them to the garage. They gained entry through a window that Kelly knew
was always closed because he passed it every day.
          Kelly found Gerald and Vera inside their Mercedes. Gerald was sitting up
in the driver‟s seat, bleeding from his neck and chest. Vera was partly out of the
car and appeared to have been shot in the upper torso. After examining them,


                                          13
Kelly decided Vera was in worse condition. He got her out of the car, opened her
airways, raised her feet, and then went back to help Gerald, who was still alive.
       Los Angeles Police Officers Horan and Kane arrived about 10:30 p.m.
They ordered Kelly, Backman, and Carolan out of the garage, made a “sweep,”
and secured the crime scene. Horan observed that a bicycle chain that secured
security bars on the west side of the garage had been cut. Paramedics arrived and
pronounced Vera dead at the scene. Gerald was still alive. He was transported to
the UCLA Medical Center, where he was pronounced dead. Gerald had been shot
below the skull with an exit wound at the bottom of his chin. There was a second
grazing wound across his chest. Powder burn marks were indicative of a close-
range gunshot. Vera had been shot three times on the left side of her body.
       Detectives Richard Crotsley and Jack Holder arrived at the scene about
3:00 a.m. Crotsley observed that Vera was wearing various items of jewelry, that
her unopened purse was inside the Mercedes, and that near her foot was a check
for $2,000 made out to Gerald from his daughter Maxine. Crotsley concluded that
robbery was not the motive for the attack on the victims. While inspecting the
security features of the garage, Crotsley noticed that a chain securing gates on the
east side of the garage had been cut, leaving the gates open. A chain link and
green plastic tubing were discovered outside a gate on the west side of the garage;
that gate was also open.
       On the morning of September 26, 1985, defendant and Dominguez returned
defendant‟s rental car. Defendant flew back to Las Vegas on PSA flight 446; he
was identified by a fellow passenger who also saw a man fitting Dominguez‟s
description, but was unable to positively identify him.
       That same day, Neil told Stewart their parents had been murdered. He told
Stewart “to stay strong [because] . . . [they] were going to be investigated.” The
Monday or Tuesday after Yom Kippur, Stewart came into Neil‟s office while Neil
                                         14
was talking by telephone to Lew Jackson, Muriel Jackson‟s husband. After he
finished the call, Neil told Stewart, “That‟s going to be our problem. He says he‟s
absolutely convinced that we were involved.” Shortly after that conversation,
Stewart delivered $15,000 to Robert Homick at the same grocery store where he
had previously delivered expense money. On January 9, 1986, Neil wired $28,000
into Robert Homick‟s bank account, which Neil told Stewart was the balance due
for the murder of their parents. The following day, Robert Homick wired $25,000
into Anthony Majoy‟s bank account. Dominguez was paid $5,000 for his part in
the murders.
      On September 30, 1985, a claim was made on Vera‟s life insurance policy.
The insurance company ultimately paid the claim in the amount of $506,855.94.
Stewart endorsed the check.
      The police determined that the bullets used to kill Gerald and Vera were
from a .38 Special or .357 Magnum handgun, but the murder weapon was never
recovered. In January 1986, police surveillance put defendant, Robert Homick,
and Anthony Majoy together in Hollywood. On March 11, 1986, search warrants
were executed in Las Vegas and Los Angeles, and defendant, Robert Homick,
Neil Woodman, Stewart Woodman, and Anthony Majoy were arrested.
Dominguez had been arrested March 2 in Las Vegas on a parole violation. A
boltcutter seized from Robert Homick‟s apartment was determined to be the tool
that had cut the chain found outside the garage where Gerald and Vera were
murdered. After he was arrested, Neil called Steven Strawn at Manchester
Products and asked him to destroy some papers located beneath Neil‟s desk;
among them were defendant‟s business cards.




                                        15
         B. The Defense Case
         Defendant attempted to establish an alibi, presenting witnesses who
testified he had a court appearance in Las Vegas in connection with his divorce on
the morning of September 25 before flying to Los Angeles for a doctor‟s
appointment. Two other witnesses who worked at a Los Angeles clinic where
defendant had been a patient testified he had shown up at the clinic sometime
around lunchtime on September 25 without an appointment, but his doctor was not
there.
         Joey Gambino testified he had never referred defendant to Stewart for the
purpose of eliminating Stewart‟s parents or had anything to do with the murders.
Other witnesses sought to impeach the credibility of Michael Dominguez and Art
Taylor.

         C. Robert Homick’s Evidence 10
         Robert Homick called two witnesses to testify about his relationship with
defendant. Helen Copitka is the sister of defendant and Robert Homick.
Defendant is the eldest child, having been born in 1940; Copitka, the second
eldest. There were four other children. Defendant was Robert‟s main caretaker.
He was outgoing, while Robert was shy and withdrawn. Copitka viewed
defendant as a leader and Robert as a follower.
         The second witness, and her husband, had been close friends of defendant
and his wife in the 1960‟s when they all lived in Los Angeles. She met Robert
Homick around 1967 or 1968 when he moved in with defendant. It was not
unusual for her to see defendant tell Robert Homick what to do and how to do it.


10     Neil Woodman called a single witness, his and Stewart‟s rabbi, whose
testimony was aimed at impeaching Stewart‟s credibility.



                                          16
      Clarence Stromwall, a retired Los Angeles Superior Court judge, had
served for many years in the Los Angeles Police Department with Max Herman,
the attorney from whom Dominguez testified defendant had obtained a gun the
day before the murders. Stromwall testified that Herman would never have given
a gun to defendant to use in a crime and that Herman was a good judge of
character who could not have been easily manipulated.
      Joseph Gersky, an FBI agent, testified that in an interview with Michael
Dominguez on March 18, 1986, Dominguez told him he did not know who was
involved in the Woodman murders, other than defendant. Later, Dominguez told
Gersky that defendant‟s other brother, William Homick, and Anthony Majoy were
involved.
II. PENALTY PHASE
      A. The Prosecution Case
      The prosecution‟s penalty phase case consisted of the circumstances of the
current crime and evidence that defendant had committed a triple murder in Las
Vegas for which he had been convicted after the Woodman murders.11 On the
morning of December 11, 1985, Bobbie Jean Tipton, a wealthy Las Vegas woman,
her maid, Marie Bullock, and a deliveryman, James Myers, were shot to death at
Tipton‟s residence. Inside Tipton‟s bedroom, police found drawers pulled open,
jewelry boxes on the bed, and jewelry strewn about. A floor safe in the closet had
also been opened.
      Defendant had been in charge of security at a small chain of jewelry stores,
Tower of Jewels, where Tipton had had her jewelry cleaned several months before

11    Thus, the court admitted the evidence under section 190.3, factor (b) (other
involvement in violent criminal activity) rather than factor (c) (prior felony
conviction).



                                        17
her murder. Defendant was convicted of the murders based largely on the
testimony of Timothy Catt, who managed one of the branches of Tower of Jewels.
According to Catt, defendant had asked him several times about the value of
Tipton‟s jewelry while Catt was cleaning and repairing it. Later, after the
murders, defendant brought Catt jewelry that had belonged to Tipton and admitted
he had killed her and the other two victims.12
       B. The Defense Case
       Defendant‟s witnesses attempted to establish an alibi for his whereabouts at
the time of the Tipton murders and to impeach Timothy Catt‟s credibility.
Additional defense witnesses sought to blame the Tipton murders on Michael
Dominguez and another man, Kelly Danielson.
                                   DISCUSSION
I. PRETRIAL AND GUILT PHASE ISSUES
       A. Section 656
       Defendant contends that under section 656, his 1991 conviction in federal
court of interstate murder for hire (18 U.S.C. former § 1952A)13 barred his
subsequent California convictions for the Woodman murders. At the time of
defendant‟s trial, section 656 provided: “Whenever on the trial of an accused
person it appears that upon a criminal prosecution under the laws of another State,




12      Further evidence regarding the Tipton murders is discussed where relevant
to an issue raised by defendant.
13     The interstate murder-for-hire statute has since been renumbered from title
18 United States Code section 1952A to section 1958. Defendant was charged
under the former section, to which this opinion will therefore refer.



                                         18
Government, or country, founded upon the act or omission in respect to which he
is on trial, he has been acquitted or convicted, it is a sufficient defense.”14
       Section 656 provides “greater double jeopardy protection than the United
States Supreme Court has determined to be available under the Fifth Amendment
of the United States Constitution,” as the Constitution does not bar “prosecution
and conviction for the same act by both state and federal governments.” (People
v. Belcher (1974) 11 Cal.3d 91, 96-97 (Belcher).) We conclude, however, that the
statute does not apply under the circumstances of this case. Because the California
special circumstance charge of murder by means of lying in wait (§ 190.2, subd.
(a)(15)) required proof of conduct that was not necessary for proof of the prior
federal murder-for-hire charge, the prior conviction provided no defense under
section 656 to the state murder charges.
           1. Background
       A federal indictment filed on March 16, 1989, charged defendant, along
with Robert Homick, Neil Woodman, Stewart Woodman, and other defendants
with various combinations of 11 counts.
       Count XI of the federal indictment alleged a violation of the federal
murder-for-hire statute in that, “[f]rom or about September 23 through
September 25, 1985, in the District of Nevada and elsewhere,” defendant and his


14      A later amendment to section 656 (Stats. 2004, ch. 511, § 1, p. 4109)
removed from its scope prior proceedings in a foreign country and replaced
“founded upon the act or omission” with “based upon the act or omission,” giving
the statute its present form: “Whenever on the trial of an accused person it
appears that upon a criminal prosecution under the laws of the United States, or of
another state or territory of the United States based upon the act or omission in
respect to which he or she is on trial, he or she has been acquitted or convicted, it
is a sufficient defense.”



                                           19
codefendants “did travel and cause travel in interstate commerce, that is travel
between the State of Nevada and the State of California, by STEVEN MICHAEL
HOMICK and Michael Dominguez with the intent that a murder be committed in
violation of the Penal Code of California, said murder to be committed in
consideration for the receipt of and for a promise and agreement of money; which
travel resulted in the deaths of Vera and Gerald Woodman.”
       The federal jury was instructed, largely in language drawn from the
statute,15 as follows: “Whoever travels in or causes another (including the
intended victim) to travel in interstate commerce or uses or causes another
(including the intended victim) to use the mail or any facility in interstate or
foreign commerce, with the intent that a murder be committed in violation of the
laws of any State or the United States as consideration for the receipt of, or as
consideration for a promise or agreement to pay, anything of pecuniary value, if
death results . . . [¶] shall be guilty of an offense against the United States.”
Defendant was convicted on count XI and sentenced to life imprisonment; his
conviction was later affirmed in an unpublished decision. (United States v.
Woodman (9th Cir. 1992) 980 F.2d 740 (table) [1992 WL 357106].)

15     At the time of the offense, title 18 United States Code former section
1952A provided: “Whoever travels in or causes another (including the intended
victim) to travel in interstate or foreign commerce, or uses or causes another
(including the intended victim) to use the mail or any facility in interstate or
foreign commerce, with intent that a murder be committed in violation of the laws
of any State or the United States as consideration for the receipt of, or as
consideration for a promise or agreement to pay, anything of pecuniary value,
shall be fined not more than $10,000 or imprisoned for not more than five years,
or both; and if personal injury results, shall be fined not more than $20,000 or
imprisoned for not more than twenty years, or both; and if death results, shall be
subject to imprisonment for any term of years or for life, or shall be fined not more
than $50,000, or both.” (Added Pub.L. No. 98-473, tit. II, § 1002(a) (Oct. 12,
1984) 98 Stat. 2136; see now 18 U.S.C. § 1958.)


                                          20
       In the present California case, defendant orally joined Neil Woodman‟s
motion to dismiss based on his federal conviction. The trial court denied the
motion.
              2. Analysis
       “[P]rosecution and conviction for the same act by both state and federal
governments are not barred by the Fifth Amendment guarantee against double
jeopardy. (Abbate v. United States (1959) 359 U.S. 187, 194-195 [3 L.Ed.2d 729,
733-735, 79 S.Ct. 666]; Bartkus v. Illinois (1959) 359 U.S. 121, 136 [3 L.Ed.2d
684, 694, 79 S.Ct. 676]; United States v. Lanza (1922) 260 U.S. 377, 382 [67
L.Ed. 314, 317, 43 S.Ct. 141].) This rule, however, does not preclude a state from
providing greater double jeopardy protection than is provided by the federal
Constitution under decisions of the United States Supreme Court. [Citations.]”
(People v. Comingore (1977) 20 Cal.3d 142, 145 (Comingore).) Like many other
states (see fn. 17, post), California bars certain such “dual sovereign” prosecutions
by statute.
       As noted, section 656 provides: “Whenever on the trial of an accused
person it appears that upon a criminal prosecution under the laws of the United
States, or of another state or territory of the United States based upon the act or
omission in respect to which he or she is on trial, he or she has been acquitted or
convicted, it is a sufficient defense.”16 The section was enacted in 1872 as part of
our first Penal Code and has been amended only once, in 2004, as earlier described


16      Defendant also cites section 793, which provides: “When an act charged as
a public offense is within the jurisdiction of the United States, or of another state
or territory of the United States, as well as of this state, a conviction or acquittal
thereof in that other jurisdiction is a bar to the prosecution or indictment in this
state.”



                                          21
(see fn. 14, ante). A note by the 1872 code commissioners explains that the statute
focuses on acts and omissions, and does not require identity of charges: “This
section is intended to apply in cases where the foreign acquittal or conviction took
place in respect to the particular act or omission charged against the accused upon
the trial in this State, and is not restricted to cases where the accused was tried
abroad under the same charge.” (Code commrs. note foll. Ann. Pen. Code, § 656
(1st ed. 1872, Haymond & Burch, commrs. annotators) p. 241.) In accord with
this intent, as well as the statute‟s plain language, we have held section 656 applies
when the physical conduct required for the California charges has previously been
the subject of an acquittal or conviction in another jurisdiction, regardless of
whether the two charges have different requirements as to intent or other nonact
elements. (Comingore, supra, 20 Cal.3d at pp. 146-148; Belcher, supra, 11 Cal.3d
at pp. 99-100.)17


17       Sections 656 and 793 (also enacted in 1872) are drawn from the New York
codes associated with David Dudley Field. (See Hagburg, Statutory Bars to Dual
Sovereign Prosecutions: The Minnesota and North Dakota Approaches
Compared (1996) 72 N.D. L.Rev. 583, 592-593 [giving texts of the Field code
provisions].) Several other states, mostly in the West, have similar laws
comparing the acts or omissions required for conviction under the first and second
prosecutions. (See, e.g., Idaho Code, § 19-315; Mont. Code Ann., § 46-11-504;
Nev. Rev. Stat. Ann., § 171.070; N.D. Cent. Code, § 29-03-13; Okla. Stat. Ann.,
tit. 22, § 130; Va. Code Ann., § 19.2-294; Wn. Rev. Code, § 10.43.040.)
         The Model Penal Code and states following it take a seemingly narrower
approach, focusing on proof of different facts in the two proceedings and on the
purposes of the first and second statutes. (Model Pen. Code, § 1.10 [prosecution
barred by former conviction or acquittal in another jurisdiction if based on the
same conduct, unless “each [offense] requires proof of a fact not required by the
other and the law defining each of such offenses is intended to prevent a
substantially different harm or evil . . .”]; see, e.g., Ark. Code Ann., § 5-1-114;
Del. Code Ann., tit. 11, § 209; Hawaii Rev. Stat., § 701-112; N.J. Stat. Ann.,
§ 2C:1-11; 18 Pa. Cons. Stat. Ann., § 111.)

                                                            (footnote continued on next page)

                                          22
        This court has construed and applied sections 656 and 793 in only two
cases, Belcher and Comingore.
        In Belcher, the defendant and a companion had robbed at gunpoint two
undercover officers—one a federal agent, the other a local policeman—who had
arranged a narcotics purchase. We held that section 656, coupled with the
defendant‟s prior acquittal in federal court of assault with a deadly weapon on a
federal officer, provided a defense to conviction in California court for assault
with a deadly weapon based on the same conduct, but not to two counts of robbery
arising out of the same incident. (Belcher, supra, 11 Cal.3d at pp. 99-101.)
        Construing section 656 for the first time in Belcher, we distinguished its
prohibition on multiple prosecutions from that in section 654, which, in addition to
prohibiting multiple punishment when an act or omission is punishable under
multiple California penal provisions, further provides that “[a]n acquittal or
conviction and sentence under any one [provision] bars a prosecution for the same
act or omission under any other.” (§ 654, subd. (a).) Despite the statutes‟ similar
language, we determined section 656 did not apply as broadly as section 654.
(Belcher, supra, 11 Cal.3d at pp. 97-98.) In Kellett v. Superior Court (1966) 63
Cal.2d 822, 827, we had construed section 654‟s multiple prosecutions bar to
apply whenever “the same act or course of conduct plays a significant part” in two
or more offenses, assuming the prosecution in the first case was or should have
been aware of all the offenses. In Belcher, we observed that the Kellett rule


(footnote continued from previous page)
       Other states, more strictly still, require the two prosecution to be for the
same offense, or for two offenses substantially identical in all their elements. (See,
e.g., Minn. Stat. Ann., § 609.045; N.Y. Crim. Proc. Law, § 40.20, subd. 2(a), (b);
Utah Code Ann., § 76-1-404.)



                                          23
assumes “the state has the opportunity to charge all offenses that may arise out of
a single course of criminal conduct,” an assumption that “cannot be made where,
as here, one of the prosecutions occurred in another jurisdiction.” (Belcher, at
p. 98.) Section 656 thus demands a narrower construction than section 654.
       Turning to the critical question of when a prior conviction or acquittal in
another jurisdiction is considered to have been “founded upon the act or omission”
for which the defendant is being tried in California, within the meaning of former
section 656 (see fn. 14, ante), we reviewed in Belcher a pair of appellate decisions
dealing with a single defendant, People v. Candelaria (1956) 139 Cal.App.2d 432
(Candelaria I) and People v. Candelaria (1957) 153 Cal.App.2d 879 (Candelaria
II). As we explained, in Candelaria I the “defendant asserted that under section
656 his prior conviction in federal court of robbery of a national bank was a bar to
his subsequent state conviction for robbery of the same bank. The Court of
Appeal agreed. „The physical act or conduct of defendant in taking the money
was the same whether the robbery be considered as a federal offense or a state
offense. All the acts constituting the state offense were included in the federal
offense and were necessary to constitute the federal offense. It is clear that, within
the meaning of said section 656, the federal conviction was “founded upon the
act” in respect to which the defendant was tried in the present case. It appears, as
a matter of law, that the previous federal conviction is a sufficient defense in the
present case.‟ ” (Belcher, supra, 11 Cal.3d at pp. 98-99, quoting Candelaria I, at
p. 440.)
       In Candelaria II, the same defendant again cited section 656 to challenge a
California conviction, in this case for burglary arising out of the same transaction
as the prior federal robbery charges. This time, we noted in Belcher, the Court of
Appeal rejected his argument because the act required for burglary, “ „the entering
of the building with the intent to commit a theft, is not the same act complained of
                                          24
in the federal court, namely, that he pointed a gun at the teller and by force and
fear compelled her to deliver over to him certain monies.‟ ” (Belcher, supra, 11
Cal.3d at p. 99, quoting Candelaria II, supra, 153 Cal.App.2d at p. 884.)
       Approving the Candelaria decisions, Belcher drew from them the
following test for application of section 656: “Under this section, a defendant may
not be convicted after a prior acquittal or conviction in another jurisdiction if all
the acts constituting the offense in this state were necessary to prove the offense in
the prior prosecution [citation]; however, a conviction in this state is not barred
where the offense committed is not the same act but involves an element not
present in the prior prosecution. [Citation.]” (Belcher, supra, 11 Cal.3d at p. 99.)
       Applying that rule to the facts of Belcher, we held that the defendant,
having been acquitted in federal court of assault upon a federal officer, could not
be convicted in state court “for the same assault upon the same person.” (Belcher,
supra, 11 Cal.3d at p. 99.) As to the two state robbery convictions, however, the
rule led to the opposite result. “A conviction for each of these offenses requires at
the very least proof of an important additional act by defendant—the „taking of
personal property in the possession of another‟ (§ 211)—that need not be proved
to establish the federal offense of assault with a deadly weapon upon a federal
officer. Accordingly, the convictions of first degree robbery under the first two
counts are not convictions founded upon the same act or omission for which
defendant was acquitted in federal court, and these convictions must stand.”
(Belcher, at pp. 100-101.)
       In Comingore, supra, 20 Cal.3d 142, we held section 793, which defendant
also cites, barred the defendant‟s prosecution in California for grand theft auto and
unlawful driving of a vehicle, where he had previously been convicted of an
offense in Oregon arising out of the same act (taking a car in California without
permission and driving it to Oregon). (Comingore, at p. 144.) We determined that
                                          25
section 793‟s protective scope was the same as that of section 656, though the
former provision acted to bar prosecution and the latter as a defense against
conviction. (Comingore, at p. 148.) Quoting and applying the Belcher test for
application of section 656, we held that although the charged California offenses
required the intent to deprive the owner temporarily or permanently of possession
of her vehicle, an element assertedly not required for the Oregon conviction,
section 656 (and hence § 793) applied because the intent required for an offense is
distinct from the act on which the offense is based. The People having conceded
the Oregon conviction was based on “the same physical conduct” giving rise to the
California prosecution (Comingore, at p. 146), the latter prosecution was barred
even though it called for proof of an additional intent element (id. at pp. 146-149).
       The Courts of Appeal have addressed section 656 in several published
decisions since Comingore but, with the exception of People v. Friedman (2003)
111 Cal.App.4th 824, discussed below, none involved facts similar to the present
case.18 We look, therefore, to the language and purposes of the statute, as well as


18     See People v. Bellacosa (2007) 147 Cal.App.4th 868, 877 (Nevada
conviction for driving under the influence and evading a peace officer did not bar
California prosecutions for corresponding offenses, where charges in each state
rested solely on driving within that state); People v. Gofman (2002) 97
Cal.App.4th 965, 973-976 (federal convictions for conspiracy and mail fraud
barred state prosecution for conspiracy, insurance fraud, and grand theft based on
same staged automobile accident scheme); People v. Lazarevich (2001) 95
Cal.App.4th 416, 424-426 (conviction in Republic of Serbia for kidnapping a child
did not bar later conviction in California for concealing the same child, where
convictions were based on conduct during distinct time periods); People v. Brown
(1988) 204 Cal.App.3d 1444, 1450-1451 (conviction in federal court for
conspiring to transport stolen goods in interstate commerce, based on a
Nevada-formed scheme to burglarize a California jewelry store, did not bar later
prosecution in California for burglary of the same store); People v. Walker (1981)
123 Cal.App.3d 981, 986-987 (Nevada conviction for possession of stolen

                                                           (footnote continued on next page)

                                         26
our prior decisions, to decide whether section 656 applies in the circumstances of
this case.
        According to its terms, section 656 provides a defense to a California
prosecution only if the prior foreign prosecution was based upon “the act or
omission” for which the defendant is “on trial” in California. In accord with that
language, we held in Belcher that a California conviction is barred if all the acts
necessary to the California charges were also necessary to prove the prior charges,
but is not barred “where the offense committed is not the same act but involves an
element not present in the prior prosecution.” (Belcher, supra, 11 Cal.3d at p. 99.)
In Comingore, we clarified that “element” in this formulation refers only to
conduct required to prove the charges, not to criminal intent or other nonact
elements. (Comingore, supra, 20 Cal.3d at pp. 146-148.)
        The application of section 656 thus turns on whether the California charges
against defendant required proof of conduct that was not required for conviction of
the earlier federal charges. We conclude that at least in the special circumstance
allegation of murder by lying in wait, they did.
        The lying-in-wait special circumstance (§ 190.2, subd. (a)(15)) requires
proof the killer concealed his or her purpose, watched and waited a substantial
time for the opportunity to act, and thereafter launched a surprise attack on the
victim from a position of advantage. (People v. Bonilla (2007) 41 Cal.4th 313,
330.) No such conduct was required under title 18 United States Code former




(footnote continued from previous page)

traveler‟s checks did not bar California prosecution for robbery in which the
checks were taken).


                                          27
section 1952A, which was satisfied by proof defendant traveled between states in
order to commit a murder for hire, and death resulted.19
       Nor did the federal indictment against defendant charge any of the conduct
constituting lying in wait. The indictment alleged only that defendant and
Dominguez traveled between Nevada and California with the intent that a murder
be committed in exchange for compensation, and that the travel resulted in the
Woodmans‟ deaths. That the federal prosecutor, like the state prosecutor

19      At oral argument, the Attorney General maintained that, lying in wait aside,
the Woodmans‟ killing itself was conduct not required to prove the earlier federal
charge of interstate travel for the purpose of murder for hire (18 U.S.C. former
§ 1952A), which required proof that “death result[ed]” from defendant‟s interstate
travel only in order to obtain the greatest punishment allowed under the statute,
then life imprisonment. In somewhat similar circumstances, comparing a
California murder prosecution with a prior federal prosecution for interstate travel
in aid of racketeering (18 U.S.C. § 1952, known as the Travel Act), the court in
People v. Friedman, supra, 111 Cal.App.4th at page 836, asserted, “There was no
requirement in the federal prosecution that the defendants commit a murder.” (But
see United States v. Friedman (2d Cir. 2002) 300 F.3d 111, 127-128 [death of a
victim resulting from a crime of violence (the target offense of interstate travel) is
an element of a Travel Act offense when a life sentence is sought, though the
defendant need not have personally participated in murder]; see also Jones v.
United States (1999) 526 U.S. 227, 252 [federal carjacking statute establishes a set
of separate offenses with differing punishments, the most severe requiring proof
that death resulted from the carjacking].) Because we determine the lying-in-wait
special-circumstance allegation prevented the application of section 656 here, we
need not decide whether killing the Woodmans was conduct required for
defendant‟s conviction and life sentence under title 18 United States Code former
section 1952A.
        As an alternative rationale, the court in People v. Friedman, supra, 111
Cal.App.4th at page 837, relied on People v. Brown, supra, 204 Cal.App.3d 1444,
for the theory that the federal offense‟s inclusion of a requirement not present in
the state charges (interstate travel, in Friedman) precluded the application of
section 656. The Attorney General makes the same argument here as to title 18
United States Code former section 1952A. Again, we need not decide whether the
interpretation given section 656 in Brown is correct, as the special circumstance
allegation made section 656 inapplicable in any event.


                                         28
afterward, proved defendant ambushed and killed the Woodmans in their garage
(see United States v. Woodman, supra, 1992 WL 357106, *1) is of no import, as
proof of an ambush was not “necessary to prove the offense in the prior
prosecution” (Belcher, supra, 11 Cal.3d at p. 99, italics added). A prior
prosecution is not “founded” or “based,” within the meaning of section 656, on
every piece of conduct shown by the evidence at the earlier trial. Were that the
rule, the entire course of criminal conduct that led to the earlier charges would be
effectively protected from prosecution in California, an interpretation we expressly
rejected for section 656 (in contrast to § 654) in Belcher, supra, 11 Cal.3d at page
98. (See also id. at p. 101, fn. 10 [noting that Belcher‟s California robbery
convictions, which we held were not barred under § 656 by his prior federal
conviction for assault on a federal officer, would likely have been barred under a
§ 654 course-of-conduct analysis had the two prosecutions been brought
sequentially in California courts].)
       That the allegation of murder by means of lying in wait was contained in a
special circumstance allegation attached to the murder charge, rather than in a
separate count charging an offense, does not mandate the application of section
656. Although Belcher refers to “the acts constituting the offense in this state”
(Belcher, supra, 11 Cal.3d at p. 99, italics added), we did not have before us in
Belcher the issue of conduct charged in a special circumstance or similar
allegation. The language of section 656 itself is not restricted to offenses. Instead,
it refers to “the act or omission in respect to which [the defendant] is on trial”
(italics added), implying the potentially relevant charges against the defendant are
not limited to those specifying offenses. Defendant here was indisputably “on
trial” for murder by means of lying in wait; indeed, lying in wait was at issue both




                                          29
as a theory of first degree murder (§ 189)20 and as a special circumstance making
defendant eligible for a sentence of death or life without the possibility of parole
(§ 190.2, subd. (a)(15)).
       Moreover, factual sentencing allegations that make the defendant eligible
for a death sentence have, for constitutional purposes including double jeopardy,
been viewed as functionally equivalent to elements of a greater offense. (See
Sattazahn v. Pennsylvania (2003) 537 U.S. 101, 111-112; Ring v. Arizona (2002)
536 U.S. 584, 609.) The allegations against defendant of first degree murder with
a special circumstance of murder by lying in wait can be conceptualized, for
double jeopardy purposes, as a greater offense (inclusive of first degree murder) of
first degree murder by means of lying in wait, with lying in wait as one necessary
element making up that offense. And while section 656 provides double jeopardy
protection in the dual-sovereign situation to which the constitutional protection
does not extend (Belcher, supra, 11 Cal.3d at p. 97), the constitutional and
statutory protections serve the same general purposes. No reason appears for the
treatment of special circumstance allegations to differ under the two regimes.
       Double jeopardy protection vindicates principles of fairness and finality by
preventing the government from making repeated efforts to convict the defendant
or adding to his or her punishment for the same offense. (United States v. Wilson
(1975) 420 U.S. 332, 343.) But where two different sovereign governments are
involved, the interest of each in punishing criminal conduct as it finds fitting also
comes into play. Constitutionally, this consideration motivates the dual
sovereignty doctrine, under which double jeopardy protection is withdrawn


20      The jury was instructed on both lying in wait and premeditation as theories
of first degree murder.


                                          30
entirely from the second prosecution. (See Abbate v. United States, supra, 359
U.S. at p. 195; Bartkus v. Illinois, supra, 359 U.S. at p. 137.) Section 656 restores
some of that protection, but applies only when the conduct charged in California
has already been the subject of a completed federal or sister-state prosecution; in
other situations, the statute does not prevent the state from pursuing its interest in
punishing criminal conduct.
       Where California charges the defendant with conduct that makes him or her
eligible for the state‟s most severe punishments, death and life in prison without
the possibility of parole, and that particular conduct has not been the subject of a
prior federal or sister-state prosecution, the state‟s interest in a separate
prosecution is particularly strong, while the protective purposes of section 656 are
not implicated. California‟s prosecution of defendant for murder by means of
lying in wait was not unfair to him, as he had not previously been prosecuted for
that conduct, nor did it impugn the finality of a prior judgment, as the federal court
verdict did not adjudicate the lying-in-wait issue. The state, moreover, has a
substantial interest in enforcing its laws differentiating between noncapital
murders and murders that are so heinous as to merit either of our law‟s greatest
punishments, an interest the prior federal prosecution could not and did not serve.
Neither the federal Constitution nor section 656 restricts California, as a sovereign
government separate from that of the United States, from pursuing its own interest
in punishing murder where the acts comprising the special circumstance have not
previously been the subject of a federal prosecution.
     In the heading of his section 656 claim, but without making any argument on
the point, defendant also contends his federal conviction for violation of the
Racketeer Influenced and Corrupt Organizations Act (RICO) statutes, title 18
United States Code section 1961 et seq., barred the murder convictions under
section 656. In the interest of completeness, we note that the reasoning used
                                           31
above would also apply to defendant‟s RICO conviction. Although the federal
RICO count charged the Woodmans‟ murders as two of five alleged crimes
establishing a pattern of racketeering activity (see 18 U.S.C. § 1961(5)), neither
RICO itself nor the indictment‟s RICO count required proof those murders were
committed by means of lying in wait. Under section 656, therefore, the prior
RICO conviction provided no defense to the California charges of murder by
means of lying in wait.
       B. Severance
       Defendant contends that the trial court abused its discretion when it denied
his various severance motions.
           1. Background
       The five defendants tried for the Woodman murders were divided into two
groups for trial. Stewart Woodman and Anthony Majoy were tried first, and then
defendant, Neil Woodman, and Robert Homick were tried together in the
proceeding before us. Defendant filed a pretrial motion to sever his trial from that
of his brother Robert Homick and Neil Woodman. Neil Woodman also sought to
sever the cases.
       In the trial court, defendant contended that severance was required because
the earlier severance of Stewart‟s trial from Neil‟s trial because they are brothers
was “law of the case,” also prohibiting the joint trial of himself and his brother; a
joint penalty phase trial would deny each Homick individual consideration; there
was a danger of inconsistent defenses; and the prosecution intended to introduce a
jailhouse letter from Neil to Stewart implicating defendant. Additionally, he
argued that, at a joint penalty phase trial, he would suffer in comparison to his
brother because most of the penalty phase evidence would be introduced only
against defendant. In a supplemental memorandum of points and authorities,


                                          32
defendant argued that any Aranda/Bruton issues should be resolved at the hearing
on the severance motion because they were relevant to whether the cases should
be severed. (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States
(1968) 391 U.S. 123 [a nontestifying codefendant‟s extrajudicial statement that
incriminates the other defendant is inadmissible].)
       At the hearing, the trial court indicated it would impanel two juries, one to
hear defendant‟s case and the other to hear the case against Neil Woodman and
Robert Homick. Its decision was based on its concern about the fairness of having
one jury decide the penalty for both Homicks. At that point, the prosecutor
informed the court that he would not seek the death penalty against Robert
Homick, thus “eliminat[ing] the need for two juries.” Nonetheless, both defendant
and Neil Woodman pressed for severance. The trial court denied the motion.
       During the trial, defendant renewed his motion for severance following the
opening statement by Robert Homick‟s counsel, on the “grounds of conflicting
defenses”; after the trial court ruled that Robert Homick‟s counsel could question
Art Taylor about his status as an FBI informant; after the trial court ruled that the
prosecution could ask FBI Agent Joseph Gersky whether he believed Michael
Dominguez was being truthful after a second interrogation where Dominguez
contradicted statements he had made in an earlier interrogation; and after the trial
court excluded evidence defendant wanted to present that Robert Homick had
threatened violence against a former employee of Stewart and Neil‟s.21

21     In his opening brief, defendant lists 16 evidentiary rulings that he asserts
demonstrate severance was warranted. As the Attorney General points out,
however, defendant did not renew his severance motions on 12 of these occasions.
Thus, to the extent he now claims that severance was warranted by these rulings,
he has forfeited the claims. (People v. Tafoya (2007) 42 Cal.4th 147, 163
[“[D]efendant has forfeited this issue on appeal because he failed to assert this

                                                           (footnote continued on next page)

                                          33
        Finally, defendant argued as a ground in his motion for a new trial the
court‟s denial of his pretrial severance motion. The motion was denied.
             2. Analysis
        “Our Legislature has expressed a preference for joint trials. [Citation.]
Section 1098 provides in pertinent part: „When two or more defendants are jointly
charged with any public offense, whether felony or misdemeanor, they must be
tried jointly, unless the court order[s] separate trials.‟ The court may, in its
discretion, order separate trials if, among other reasons, there is an incriminating
confession by one defendant that implicates a codefendant, or if the defendants
will present conflicting defenses. [Citations.] Additionally, severance may be
called for when „there is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence.‟ [Citations.] [¶] We review a trial
court‟s denial of a severance motion for abuse of discretion based on the facts as
they appeared when the court ruled on the motion. [Citation.] If we conclude the
trial court abused its discretion, reversal is required only if it is reasonably
probable that the defendant would have obtained a more favorable result at a
separate trial. [Citations.] If the court‟s joinder ruling was proper when it was
made, however, we may reverse a judgment only on a showing that joinder
„ “resulted in „gross unfairness‟ amounting to a denial of due process.” ‟
[Citation.]” (People v. Lewis (2008) 43 Cal.4th 415, 452.) Severance motions in

(footnote continued from previous page)

ground at the time his severance motion was heard by the trial court.”]; People v.
Ervin (2000) 22 Cal.4th 48, 68 [“If further developments occur during trial that a
defendant believes justify severance, he must renew his motion to sever.”].)
Defendant‟s assertion that further motions were futile is belied by the fact that he
did make further motions.



                                           34
capital cases generally receive heightened scrutiny for potential prejudice.
(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 43-44.)
       Defendant and his codefendants were “charged with having committed
„common crimes involving common events and victims,‟ ” presenting a
“ „ “classic case” ‟ for a joint trial.” (People v. Coffman and Marlow, supra, 34
Cal.4th at p. 40.) Nonetheless, defendant contends that severance was required.
       Defendant fails to adequately distinguish between his pretrial, trial, and
posttrial motions and his due process analysis. As distinct standards of review
apply to his various severance motions, however, we must parse his claim into its
distinct components.
       Two of the grounds in defendant‟s pretrial severance motion related to a
possible joint penalty-phase trial with his brother, Robert Homick, but once the
prosecution decided not to seek the death penalty against Robert, those arguments
were mooted. Defendant does not renew a third ground he advanced in his pretrial
motion—that an earlier ruling severing the trials of Stewart Woodman and Neil
Woodman was “law of the case” for purposes of the Homick brothers—and we do
not consider it. A fourth ground involving defendant‟s claim that the prosecution
intended to introduce a jailhouse letter from Neil to Stewart implicating defendant
is moot because the letter was not introduced at trial.
       Therefore, the only ground supporting defendant‟s pretrial motion still
viable is his claim of conflicting defenses. The premise of this claim was that his
codefendants, and particularly Robert Homick, would seek to introduce evidence
in support of their defenses that was prejudicial to him and would have been
inadmissible if he were tried separately. His pretrial motion did not point to any
specific evidence except the letter from Neil to Stewart, which was not ultimately
introduced. As to Robert Homick, he asserted only that Robert‟s counsel “will be
obligated to bring forth any evidence from prosecution witnesses that [defendant]
                                          35
planned and carried out the murder on his own. He will support this in part by
evidence which, if presented by the prosecution would constitute Aranda-Bruton
error.”
          In response, the prosecutor argued that, while he would seek admission of
statements that either came within the hearsay exception for coconspirator
statements or were not hearsay, he did so with the understanding that if “it‟s an
Aranda violation, then it will not be admissible . . . .” Defendant insisted that the
“Aranda-Bruton issues” be litigated before and not during trial. The trial court,
while expressing its preference for pretrial resolution of those issues, also
remarked “we don‟t have to resolve that today . . . .” The trial court failed to
explicitly rule on defendant‟s motion, and defendant did not press for a ruling or
make any further argument.
          Evidently, the trial court did not consider the possible introduction of the
defendants‟ extrajudicial statements implicating each other in the offenses a
sufficient ground for granting defendant‟s pretrial severance motion. Rather, the
trial court believed those issues could be litigated as they arose. The defense did
not demonstrate otherwise during the hearing. On this record, we conclude the
trial court did not abuse its discretion when it denied the pretrial motion.
          Defendant renewed his motion for severance on four occasions during the
trial. We review each ruling for abuse of discretion “on the facts as they appeared
at the time of the ruling.” (People v. Coffman and Marlow, supra, 34 Cal.4th at
p. 41.)
          Following the opening statement by Robert Homick‟s attorney, defendant
renewed his motion on the grounds of “conflicting defenses,” but made no further
comment or argument. The trial court responded: “ I did listen to all 37
statements [sic], and I heard nothing in them that is different than the court was
aware of before, and the motion is denied.” Defendant now contends the
                                            36
“unmistakable implication” of the opening statement was “that [defendant] was
guilty of conspiring with the Woodman brothers to murder their parents, and
anything Robert did that furthered the plot was done without knowledge of the
goal of the conspirators.” He cites specific remarks in the opening statement,
including counsel‟s statement that the jury should be careful to consider the
Homick brothers separately; that only defendant, and not Robert Homick, was
hired to provide security at the bar mitzvah of Neil Woodman‟s son and to bug the
office at Manchester Products; that statements by Stewart and Neil about their
“people in Las Vegas” applied only to defendant; and when Stewart and Neil
wanted their parents killed they turned to defendant, not Robert Homick.
       Severance is not required simply because one defendant in a joint trial
points the finger of blame at another. “ „ “Rather, to obtain severance on the
ground of conflicting defenses, it must be demonstrated that the conflict is so
prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably
infer that this conflict alone demonstrates that both are guilty.” ‟ [Citation.]
When, however, there exists sufficient independent evidence against the moving
defendant, it is not the conflict alone that demonstrates his or her guilt, and
antagonistic defenses do not compel severance.” (People v. Coffman and Marlow,
supra, 34 Cal.4th at p. 41.) The opening statement by Robert Homick‟s attorney
pointed out the difference between Robert‟s and defendant‟s ties to Stewart and
Neil but did not, in and of itself, rise to the level of antagonistic defenses requiring
separate trials. Moreover, as shown below, there was more than “sufficient
independent evidence” (ibid.) against defendant to make clear any conflict alone
did not demonstrate his guilt.
       Defendant next renewed his severance motion after the trial court ruled that
Robert Homick‟s attorney could question Art Taylor about the reason Taylor
became an FBI informant: Taylor believed defendant was using him to help
                                          37
distribute drugs. Acknowledging the possible prejudice to defendant, the court
instructed the jury that it “may not consider the testimony about [defendant‟s]
involvement in drugs, if they believe it, as character evidence or as evidence
indicating that he was a person likely to commit a crime.” Presuming, as we must,
that the jury followed the instruction, we conclude the trial court did not abuse its
discretion when it denied defendant‟s severance motion. (See People v. Avila
(2006) 38 Cal.4th 491, 575 [“[A]ssuming [codefendant‟s] extrajudicial statement
about defendant incriminated defendant, it did not prejudice defendant because the
court admonished the jury not to consider it for any purpose against defendant, and
we presume the jury followed the instruction.”].)
       Defendant next renewed his motion to sever during the testimony of FBI
Agent Joseph Gersky. Gersky was called by Robert Homick to testify that when
Gersky initially interviewed Michael Dominguez, Dominguez told him he did not
know who else had participated in the Woodman murders other than defendant.
Gersky disbelieved him. During a second interview, Dominguez told Gersky that
two other men had assisted defendant: Anthony Majoy and defendant‟s brother,
William Homick, also known as “Moke.” On cross-examination, the prosecutor
elicited testimony from Gersky that what Dominguez had actually told him during
the second interview was that Majoy and “Steve‟s brother” had participated in the
murders, without specifying whether it was William or Robert. The prosecutor,
over defendant‟s objection, was also permitted to ask Gersky whether he believed
Dominguez during the second interview; Gersky said he did.
       Defendant objected that the latter question allowed Gersky to vouch for
Dominguez‟s credibility not only on the specific subject of which brother assisted
defendant, but as to all of Dominguez‟s statements about defendant‟s participation
in the murders. Therefore, he “move[d] to sever.” Ultimately, the trial court


                                          38
restricted the prosecution to asking only whether Gersky believed Dominguez with
respect to his “Steve‟s brother” statement.
       On this record, we fail to see an abuse of discretion. The issue here was not
so much a conflict in defenses between the Homick brothers as it was an
evidentiary question about the extent to which the prosecution could elicit from a
defense witness testimony damaging to defendant. It was a minor dispute in a
lengthy trial that the trial court reasonably resolved by limiting the scope of the
prosecutor‟s questioning of Gersky.
       Finally, defendant renewed his motion to sever after the trial court excluded
evidence he wished to present that Robert Homick had, on Stewart Woodman‟s
behalf, threatened violence against a former employee of Stewart and Neil‟s,
Robert Richardson, who lived in Missouri. Defendant attempted to introduce this
evidence to rebut evidence that Robert Homick was subservient to his brother and
operated only at his direction. Defense counsel explained the Missouri evidence
would show “Robert had a mind of his own and would do things at the direction of
somebody else . . . specifically . . . Stewart Woodman.” When the trial court
excluded the evidence, defendant renewed his motion to sever. Defense counsel
argued that defendant was being denied the ability to present evidence that would
have been admissible at a separate trial. The trial court denied the motion.
       Defendant contends the denial of his severance motion constituted a denial
of his right to present a complete defense under the Sixth Amendment to the
United States Constitution.22 We find no abuse of the trial court‟s discretion. As


22     Below, we discuss in detail his claim that exclusion of this evidence was
error. The reasons we give for rejecting that claim—because, for example, the
proposed evidence was cumulative and would have lead to a minitrial on a
collateral issue—might well have applied even at a separate trial. (See pt. I.E.,

                                                           (footnote continued on next page)

                                          39
the trial court noted, there was other evidence that Robert Homick had engaged in
unlawful activities at the sole behest of Stewart Woodman, including committing
insurance fraud and threatening Jack Swartz, one of Manchester Products‟s
debtors. (See pt. I.F.1., post.)
        Defendant contends that, whether or not the trial court abused its discretion
in ruling on his motions at the time they were made, denial of severance resulted
in gross unfairness sufficient to constitute a denial of due process. (People v.
Letner and Tobin (2010) 50 Cal.4th 99, 150.)
        Defendant claims he was prejudiced by statements admitted against his
codefendants that would have been inadmissible against him in a separate trial; he
was prejudicially associated with his codefendants; there was a danger the jurors
were confused because of the amount of evidence admitted against his
codefendant, Neil Woodman, that would not have been admitted in a separate trial;
there were conflicting defenses; the existence of “complex evidentiary issues”
engendered by the joint trial consumed scarce judicial resources; and he was
denied specific trial rights, including his Sixth Amendment rights to present a
defense and to confront the witnesses against him. (People v. Boyde (1988) 46
Cal.3d 212, 232 [grounds justifying severance include (1) extrajudicial statement
by a codefendant; (2) prejudicial association; (3) likely confusion from evidence
on multiple counts; (4) conflicting defenses; (5) possibility of exonerating
testimony from a codefendant in a separate trial].)
        Defendant lists nine extrajudicial statements made by codefendants and
admitted by the trial court which he claims prejudiced him and amount to a

(footnote continued from previous page)

post.) The trial court acknowledged as much in comments it made after denying
the motion to sever.



                                          40
showing of gross unfairness. Three of the nine statements made no mention of
defendant at all but were admitted against Robert Homick or Neil Woodman.
Furthermore, the trial court gave a limiting instruction with respect to two of these
statements, specifically admonishing the jury the statements could not be
considered against defendant. We presume the jury understood and followed this
instruction. (People v. Avila, supra, 38 Cal.4th at p. 575.)
       Four of the statements were made by either Stewart or Neil about their
relationship with defendant: that he did collection work for them; that he was their
“man in Las Vegas” and “tougher” than the Mafia; that he could get anything of
an illegal nature done; and that he was a “heavy guy.” The first statement was
admitted under the coconspirator exception to the rule against hearsay (Evid.
Code, § 1223) against defendant as well as Neil Woodman, while the second
statement came in against all defendants as evidence of a conspiracy to murder
Gerald and Vera. As such, their admission would have been sought against
defendant in a separate trial where he would have faced the same conspiracy
charges.23
       The third statement came up in cross-examination as an example of how
Stewart mocked Neil‟s relationship with defendant. The fourth statement, as we
explain below (see pt. I.F.6., post), was clearly not intended to be a
characterization of defendant, but a comment on Neil‟s desire to be associated
with a “tough guy.” In any event, it does not amount to gross unfairness
constituting a due process violation.

23      Our conclusion is not dependent upon whether the statements were or were
not properly admitted—a question we take up below (see pt. I.F., post.) We are
here concerned simply with whether admission of the statements, whether
justifiably or in error, resulted in a due process violation.



                                          41
       Defendant also complains about the admission of another statement—
Robert Homick‟s statement that it was coincidental that he happened to be outside
on the Woodmans‟ street on their anniversary. Defendant asserts it undercut his
defense, which was to point the finger of blame at his brother, because otherwise
the evidence would have suggested Robert Homick was stalking the Woodmans
on that date. Any such effect was, at most, marginal (see pt. I.G., post), and it
does not rise to the level of conflict that would create a due process violation.
       Defendant contends he was prejudicially associated with his brother Robert
Homick, against whom the evidence was stronger, and with Neil Woodman,
because of the amount of evidence regarding Neil‟s hatred of his parents. “A
prejudicial association justifying severance will involve circumstances in which
the evidence regarding one defendant might make it likely the jury would convict
that defendant of the charges and, further, more likely find a codefendant guilty
based upon the relationship between the two rather than upon the evidence
separately implicating the codefendant.” (People v. Letner and Tobin, supra, 50
Cal.4th at p. 152.)
       Contrary to defendant‟s assertion, the evidence of his involvement in the
Woodman murders was much stronger than that implicating his brother, Robert
Homick. Evidence regarding Neil Woodman‟s hatred of his parents provided the
context and motive for defendant‟s participation and, as defendant concedes,
would have been admitted had defendant been tried alone. That it may have been,
as defendant contends, “less extensive” at a separate trial does not show defendant
was prejudiced as it was clear it was Neil Woodman who hated his parents and
wished them dead, not defendant.
       Defendant contends the joint trial created a danger of confusion from
evidence on multiple counts. (People v. Boyde, supra, 46 Cal.3d at p. 232.) As
defendant concedes, however, the counts would have been the same in a separate
                                          42
trial. He asserts the trial would have been shorter because the evidence presented
about Neil Woodman‟s hatred of his parents would have been less extensive. This
is speculative. In any event, defendant points to no authority that supports the
proposition that the length of a joint trial is a factor in a due process analysis.
       Defendant contends that severance was required because of conflicting
defenses presented by Robert Homick and himself.24 To justify severance “the
conflict between the defendants alone will demonstrate to the jury that they are
guilty. If, instead „there exists sufficient independent evidence against the moving
defendant, it is not the conflict alone that demonstrates his or her guilt, and
antagonistic defenses do not compel severance.‟ [Citations].” (People v. Letner
and Tobin, supra, 50 Cal.4th at p. 150.)
       Defendant put forth an alibi defense—that he was in Los Angeles to consult
a physician and not to kill the Woodmans—along with the suggestion Robert
Homick was more deeply involved with Stewart and Neil and thus the likelier
candidate for them to enlist to kill their parents. Robert Homick‟s defense was
that his participation in the murders was the result of defendant‟s lifelong
dominance over him and he did not necessary understand he was abetting murder.
Whatever degree of conflict existed between these defenses, the strength of the
independent evidence against defendant belies his claim that conflict alone
compelled severance.
       The independent evidence against defendant includes Stewart‟s testimony
that he and Neil hired defendant to kill their parents after defendant was

24     Although defendant also refers, in passing, to the possibility the jury was
“distracted with the need to simultaneously resolve the very different cases against
Neil Woodman and Robert Homick,” he does not demonstrate any conflict
between his defense and Neil Woodman‟s.



                                           43
recommended to Stewart by Joey Gambino; defendant‟s prior relationship with
Stewart and Neil; the fact that defendant was the common denominator with
respect to virtually every person who had any connection, however incidental, to
the crime; the extensive notes in defendant‟s own hand documenting his
connection to his codefendants and his lengthy surveillance of the victims; his
recruitment of his codefendants; his acquisition of walkie-talkies, ammunition, and
a weapon shortly before the murders; his trip to Los Angeles with Michael
Dominguez the day before the murder; his flight back to Las Vegas and his
attempt to obtain better walkie-talkies from Art Taylor; Dominguez‟s testimony
that defendant dropped him off near the victims‟ residence and told him to be on
the lookout for them; Rodger Backman‟s testimony that there were two men in the
ivy after the shooting; and defendant‟s departure with Dominguez from Los
Angeles the day after the murder. It was the weight of the evidence against
defendant, as to which he offered only weak and implausible defenses, and not
conflict with his brother‟s defense, that proved defendant‟s guilt. Accordingly, the
trial court‟s denial of his severance motions did not amount to a due process
violation.
       Defendant argues that the lengthy joint trial consumed “scarce judicial
resources.” But two or three separate trials, each one requiring many of the same
witnesses and the same exhibits would not have been more efficient. Defendant
also asserts that he was denied his Sixth Amendment right to present a complete
defense because of the exclusion of evidence of an incident where, allegedly,
Robert Homick threatened a former employee of Manchester Products at Stewart
Woodman‟s behest, and his right of confrontation due to the extrajudicial
statements of his codefendants. For reasons already set forth, we reject these
claims. In summary, in full recognition of the high degree of scrutiny required in


                                        44
a capital case (Williams v. Superior Court (1984) 36 Cal.3d 441, 454), our review
of the record leads us to reject defendant‟s due process claim.
       C. Impeachment of Michael Dominguez with Prior Inconsistent
          Statements
       The prosecution called defendant‟s confederate, Michael Dominguez, to
testify against him. Dominguez claimed that his prior statements admitting his
participation in the murders were lies he had been coerced into making by police
or prosecutors; asserted his lack of memory; spewed irrelevant information,
including information he had been admonished not to disclose; refused to answer
questions; and generally behaved in an uncooperative and childish manner.
Eventually, the trial court instructed the jury that Dominguez‟s silence was to be
deemed a negative answer to whatever question he had been asked, opening the
door to impeachment under the prior inconsistent statement exception to the rule
against hearsay. (Evid. Code, § 1235.) Dominguez was impeached by the
prosecutor, as well as by counsel for Robert Homick and for defendant, with
statements he had made in earlier court proceedings and to police. Defendant
complains that the trial court‟s handling of this difficult and defiant witness
violated various constitutional rights.25

25      We have recognized exceptions to the forfeiture doctrine with respect to
certain constitutional claims raised for the first time on appeal. (See People v.
Boyer (2006) 38 Cal.4th 412, 441, fn. 17; People v. Partida (2005) 37 Cal.4th 428,
433-439.) We entertain such claims only to the extent “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. . . . [¶] In [this] instance, of course,
rejection, on the merits, of a claim that the trial court erred on the issue actually
before that court necessarily leads to rejection of the newly applied constitutional
„gloss‟ as well. No separate constitutional discussion is required in such cases,
and we therefore provide none.” (Boyer, at p. 441, fn. 17.)


                                            45
           1. Background
       Michael Dominguez was already in custody in Nevada on unrelated charges
when defendant and the other codefendants were arrested. In this case,
Dominguez pleaded guilty to two counts of first degree murder and admitted the
special allegation that a principal was armed with a handgun. In exchange, the
prosecution dismissed two conspiracy counts against him and all special
circumstance allegations. Dominguez admitted he had been recruited by
defendant to take part in the killings; went through extensive planning and
preparation with defendant, Robert Homick, and Anthony Majoy; and received
$5,000 in payment for his participation. He agreed to testify against his
codefendants. He was advised that the prosecution expected his testimony to be
“truthful and honest and accurate.” He was warned that if the prosecutor
determined he had “lied in any material way or that [he] committ[ed] perjury when
[he testified], then all of our agreements will be declared null and void.” The
prosecution agreed that Dominguez would be sentenced on his Nevada charges
and on certain federal charges concurrently to whatever sentence he received in
this case. It was also represented that, after Dominguez had cleared up this case
and his federal cases, he would be housed “in an institution of [his] choice” to
keep him separate from his codefendants. Dominguez was ultimately sentenced to
two concurrent terms of 25 years to life on the murder counts.
       There were three preliminary hearings in this case. Dominguez testified at
the first, involving all defendants, and all defendants were held to answer.
However, the Court of Appeal ordered the trial court to grant defendant‟s motion
to dismiss the indictments under section 995 because the trial court had conducted
an in camera hearing outside the presence of the defense. Dominguez testified at
the second preliminary hearing, but defendant was not a part of that proceeding
because he was in custody in Nevada on unrelated charges. A third preliminary

                                         46
hearing was conducted, involving defendant alone, but Dominguez refused to
testify at this proceeding. His testimony from the first preliminary hearing was
read into evidence. Previously, Dominguez had refused to testify at the federal
trial of defendant and his codefendants. Subsequently, he refused to testify at the
separate state trial of Stewart Woodman and Anthony Majoy.
       On November 3, 1992, shortly after trial began, defendant filed a motion to
preclude the use of Dominguez‟s testimony from the first preliminary hearing. At
the hearing on that motion, Robert Homick‟s counsel argued that Dominguez‟s
testimony should be excluded because the terms of Dominguez‟s plea agreement
compelled him to testify he was not the shooter, whether or not that was true, in
violation of People v. Medina (1974) 41 Cal.App.3d 438. Defendant joined in this
argument. The court denied the motion.
       Dominguez was called to the stand by the prosecution on Friday,
November 13, 1992. The prosecutor began by asking Dominguez whether his plea
was free and voluntary. Dominguez responded, “[T]hat was nothing but lies.”
The prosecutor was permitted to impeach Dominguez with the plea transcript.
The prosecutor then turned to Dominguez‟s statement to police and asked him
whether he remembered talking to the investigators on this case, Detectives Holder
and Crotsley. Dominguez replied, “I was physically forced into it, that‟s right.”
Over defendant‟s objection, the prosecutor was permitted to impeach Dominguez
with the transcript of Dominguez‟s videotaped statement to police.
       As the prosecutor‟s examination continued, Dominguez claimed
forgetfulness and asserted that his prior statements about the murders had been
coerced and that they were lies or mere repetitions of what he had been told to say
by police, prosecutors, or his former attorney. The prosecutor continued to
impeach Dominguez with the transcripts of the preliminary hearings and his
statement to police.
                                         47
       To impeach Dominguez‟s claim that the police had coerced his statement,
the prosecutor asked to play for the jury the videotape of the interrogation. The
tape of the police interview was played for jury at the conclusion of the
prosecutor‟s examination of Dominguez. The court instructed the jury that the
purpose of playing the tape was to determine whether Dominguez had been
coerced and if it impeached Dominguez “in any respect.”
       Notwithstanding Dominguez‟s refusal to answer questions, the trial court
declined to find him unavailable. The court explained: “He‟s not unwilling to
speak. He is just refusing to answer questions that are put to him on the subject
that the People want to talk about. [¶] But he has a good deal to say. He is
present, sworn and available. I can‟t find him unavailable under these
circumstances.”
       Under questioning by the prosecutor, Dominguez continued to refuse to
answer questions. On questioning by Robert Homick‟s lawyer, Dominguez stated
the prosecution had not lived up to its part of the plea agreement, but when asked
for details provided none, except to say he had believed he would get out of prison
on parole in about 12 years and was unhappy with the plea agreement. He also
volunteered information about a series of polygraph examinations he claimed he
had been forced to take until he produced answers acceptable to the prosecution,
despite having been admonished by the court not to mention such tests.
       Later, Dominguez again referred to polygraph tests, leading the court to
instruct the jury that there was no issue of polygraph tests in the case and to
disregard any such references. Outside the presence of the jury, the court told
Dominguez he had no right to refuse to answer questions and would be held in
contempt for every question he refused to answer. The court instructed the jury
that Dominguez had no privilege to refuse to answer questions, that his “refusal to
answer questions is tantamount to answering, „No‟ . . . and that Mr. Dominguez
                                          48
may be impeached then, by his prior testimony.” The court repeated its instruction
that any reference to polygraph tests was to be disregarded.
       The prosecutor continued his direct examination, followed by cross-
examination by counsel for Robert Homick and for defendant. Dominguez
continued his disruptive pattern of interjecting irrelevancies, referring to polygraph
tests, claiming lack of memory, sitting mute, and once in a while providing a
responsive answer.
           2. Analysis
       Defendant argues that the trial court abused its discretion when it allowed
Dominguez to be impeached with prior inconsistent statements under Evidence
Code section 1235 upon his refusal to answer questions. The Attorney General
argues that defendant forfeited this issue because he failed to object on grounds
that Evidence Code section 1235 does not apply to a witness who responds to
questioning by remaining silent. It appears the Attorney General is correct. This
specific objection was not made at trial.
       Defendant argues such an objection would have been futile in view of the
trial court‟s denial of other defense objections and mistrial motions made during
Dominguez‟s testimony. The argument is unpersuasive. We cannot presume that,
because the court denied some other objections made on different grounds, it
would necessarily have denied the specific objection at issue here. Defendant also
maintains that the constitutional claims he presents on appeal incorporate the
objection he failed to make below. But he did not raise most of those
constitutional objections either, and he cannot bootstrap the current claim on their
backs simply because, in some limited circumstances, we might entertain
constitutional claims not raised below. Finally, he directs us to a page in the
transcript involving discussion of a jury instruction regarding Dominguez‟s refusal


                                            49
to testify, but defense counsel‟s only comment was to renew a motion for a
mistrial on grounds he does not explain. Thus, the claim is forfeited.
       The argument also lacks merit. “We review the trial court‟s rulings on the
admission of evidence for abuse of discretion. . . . [¶] „A statement by a witness
that is inconsistent with his or her trial testimony is admissible to establish the
truth of the matter asserted in the statement under the conditions set forth in
Evidence Code sections 1235 and 770.‟ [Citation.] „The “fundamental
requirement” of section 1235 is that the statement in fact be inconsistent with the
witness‟s trial testimony.‟ [Citation.] „ “Inconsistency in effect, rather than
contradiction in express terms, is the test for admitting a witness‟[s] prior
statement . . . .” ‟ [Citation.]” (People v. Cowan (2010) 50 Cal.4th 401, 462, fn.
omitted.)26 Thus, for example, “ „[w]hen a witness‟s claim of lack of memory
amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as
there is a reasonable basis in the record for concluding that the witness‟s “I don‟t
remember” statements are evasive and untruthful, admission of his or her prior
statements is proper. [Citation.]‟ ” (People v. Ledesma (2006) 39 Cal.4th 641,
711.) Similarly, under the circumstances of a particular case, a witness‟s refusal to
answer may be materially inconsistent with prior statements, exposing the witness



26      Evidence Code section 1235 provides: “Evidence of a statement made by a
witness is not made inadmissible by the hearsay rule if the statement is
inconsistent with his testimony at the hearing and is offered in compliance with
Section 770.” Evidence Code section 770 provides: “Unless the interests of
justice otherwise require, extrinsic evidence of a statement made by a witness that
is inconsistent with any part of his testimony at the hearing shall be excluded
unless: [¶] (a) The witness was so examined while testifying as to give him an
opportunity to explain or to deny the statement; or [¶] (b) The witness has not been
excused from giving further testimony in the action.”



                                          50
to impeachment under Evidence Code section 1235. (In re Deon D. (1989) 208
Cal.App.3d 953, 961.)
       In Deon, the witness “selectively answered” some questions regarding his
participation in a gang rape “and blatantly refused to answer any question he did
not want to answer.” (In re Deon D., supra, 208 Cal.App.3d at p. 959.) The Court
of Appeal, citing People v. Green (1971) 3 Cal.3d 981, held: “[W]e see no reason
to treat Tyrone‟s blatant refusal to answer specific questions posed by the
prosecutor any differently than the Green court treated Porter‟s evasive answers
and supposed lapses of memory which stemmed from a desire not to testify. We
conclude that under the circumstances of this case the trial court properly
concluded that Tyrone‟s in-court testimony, as well as his refusal to answer
questions, was materially inconsistent with his statement” to police incriminating
the defendant. (Deon, at p. 962.)
       Deon applies here. This is not a case where a witness took the stand and
refused to testify at all, thus providing no basis for the trial court to find
inconsistency in effect. (See, e.g., People v. Rios (1985) 163 Cal.App.3d 852,
860-861, 864 [Where one witness testified only to his name and the other to his
name and age “there is no „express testimony‟ at all from which to infer or deduce
implied inconsistency.”].) Nor, as defendant maintains, is this a case where
“nothing specific could be implied from [Dominguez‟s] silence.” From the very
outset of his testimony, Dominguez repudiated earlier statements in which he had
incriminated himself and defendant in the murders. It soon became obvious that
his lapses of memory were feigned, particularly given his repeated refusal to
refresh his recollection by examining the relevant document where he had made




                                           51
the statement he claimed not to recall. His refusal to answer questions was simply
another tactic in his strategy of denying his prior statements about the crimes.27
       In these circumstance, we conclude (1) Dominguez‟s refusal to answer
questions was part of his pattern of either repudiating his prior statements as lies or
as coerced, or pretending not to remember them, and (2) the trial court did not
abuse its discretion by deeming his intermittent refusal to answer questions to be
inconsistent in effect with prior statements.28
       Defendant asserts that even if the trial court did not err by permitting the
prosecutor to impeach Dominguez with prior inconsistent statements, it should
have stricken all of Dominguez‟s testimony after he repeatedly refused to answer
questions during cross-examination by defendant‟s attorney, because Dominguez‟s
silence violated defendant‟s confrontation rights.
       “[T]he federal Constitution guarantees an opportunity for effective cross-
examination, not a cross-examination that is as effective as a defendant might
prefer.” (People v. Carter (2005) 36 Cal.4th 1114, 1172, citing United States v.

27     Defendant maintains that Dominguez‟s motive in remaining silent was self-
serving rather than to benefit defendant. His motive is irrelevant. The question is
simply whether his silence was inconsistent in effect with his earlier statements.
28      Finding no error, we need not address defendant‟s contention that there was
no basis for finding Dominguez unavailable for purposes of admitting his prior
testimony, since this argument goes to defendant‟s prejudice analysis. We also
reject defendant‟s claim that, by making the implied finding Dominguez‟s silence
was inconsistent in effect with his prior statements, thus permitting impeachment
under Evidence Code section 1235, the trial court usurped the jury‟s factfinding
function. Admission of inconsistent statements under Evidence Code section 1235
necessarily requires a trial court to make a preliminary finding of inconsistency,
otherwise such statements would never be admissible. This case is no more an
invasion of the jury‟s ultimate factfinding function than a case where the trial
court determines an “I don‟t remember” answer is sufficiently inconsistent in
effect to permit impeachment with a prior inconsistent statement.



                                          52
Owens (1988) 484 U.S. 554, 559.) As was true of the witness in People v. Perez
(2000) 82 Cal.App.4th 760, 766, who feigned forgetfulness and was impeached
with her statements to the police, Dominguez “testified at length at trial and was
subjected to lengthy cross-examination” by both defendant‟s counsel and Robert
Homick‟s counsel. While his refusal to answer defendant‟s counsel‟s questions
“narrowed the practical scope of cross-examination, [his] presence at trial as a
testifying witness gave the jury the opportunity to assess [his] demeanor and
whether any credibility should be given to [his] testimony or [his] prior
statements. This was all the constitutional right to confrontation required.” (Ibid.)
Moreover, Dominguez was called by the prosecution and, notwithstanding
defendant‟s assertion to the contrary, to the extent that his behavior on the stand
reflected poorly on his credibility, it benefited defendant. Finally, defendant does
not persuasively explain how Dominguez‟s silence during cross-examination
specifically prejudiced his defense. His general claim—“cross-examination was
thwarted in any meaningful sense”—falls short of providing a basis for reversible
error. (Vaughn v. Jonas (1948) 31 Cal.2d 586, 601 [“The burden is on the
appellant in every case affirmatively to show error and to show further that the
error is prejudicial . . .”].)
        Next, defendant asserts the trial court‟s error of permitting impeachment of
Dominguez in the face of his silence was exacerbated by Dominguez‟s repeated
references to polygraph tests. First, as there was no error, there was no
exacerbation of it. Moreover, it is evident from the transcript that these references
were simply more of Dominguez‟s childish antics. We doubt the jury would have
given the references any weight even had the trial court not specifically instructed
the jury to disregard them. The jury was so instructed, and we presume that it
understood and followed that instruction. (People v. Avila, supra, 38 Cal.4th at
p. 575.)
                                         53
       Defendant also contends that the trial court‟s error was exacerbated when
the prosecutor was permitted to play the videotape of Dominguez‟s police
statement to the jury. Defendant concedes that he failed to object on this ground,
forfeiting his claim. In any event, the court did not err in permitting the prosecutor
to play the videotape to refute Dominguez‟s claim that he was coerced into
making the statement or for its impeachment value as an inconsistent statement, in
light of his denials, evasions, feigned forgetfulness, and calculated refusal to
answer questions.
       Defendant asserts the court erred in allowing the playing of the entire tape
because Dominguez did not deny everything he had said during the interview.
Dominguez‟s claim that he was coerced was not limited to certain portions of his
police statement and justified playing the entire tape. Additionally, the trial court
instructed the jury to “determine whether, if at all, it impeaches Mr. Dominguez in
any respect,” thus allowing the jury to determine which parts, if any, of the
videotaped statement were inconsistent with Dominguez‟s trial testimony.
Finally, defendant complains that the trial court erred by allowing the prosecutor
to play the tape during his closing argument. Once again, defendant did not
object, thus forfeiting the issue. In any event, as the Attorney General points out,
the prosecutor is entitled to refer to the evidence in his summation.
       D. Conditions of Michael Dominguez’s Plea Agreement with
          Respect to His Testimony
       Defendant contends that Dominguez‟s testimony was tainted because his
plea agreement required him to testify in a manner consistent with his statements
to police, whether or not those statements were true.
       “ „[A] defendant is denied a fair trial if the prosecution‟s case depends
substantially upon accomplice testimony and the accomplice witness is placed,
either by the prosecution or the court, under a strong compulsion to testify in a

                                          54
particular fashion.‟ (People v. Medina[, supra,] 41 Cal.App.3d 438, 455 [116
Cal.Rptr. 133].) Thus, when the accomplice is granted immunity subject to the
condition that his testimony substantially conform to an earlier statement given to
police [citation], or that his testimony result in the defendant‟s conviction (People
v. Green (1951) 102 Cal.App.2d 831, 837-839 [228 P.2d 867]), the accomplice‟s
testimony is „tainted beyond redemption‟ [citation] and its admission denies the
defendant a fair trial. On the other hand, although there is a certain degree of
compulsion inherent in any plea agreement or grant of immunity, it is clear that an
agreement requiring only that the witness testify fully and truthfully is valid.”
(People v. Allen (1986) 42 Cal.3d 1222, 1251-1252, fn. omitted.) “[U]nless the
bargain is expressly contingent on the witness sticking to a particular version, the
principles of Medina, supra, 41 Cal.[App.]3d 438, and Green, supra, 102
Cal.App.[2d] 831, are not violated.” (People v. Garrison (1989) 47 Cal.3d 746,
771; see People v. Reyes (2008) 165 Cal.App.4th 426, 435 [“an agreement that
binds the witness only to testify truthfully, and not in a prearranged fashion,
cannot be deemed invalid.”].) These principles are violated only when the
agreement requires the witness to testify to prior statements “regardless of their
truth,” but not when the truthfulness of those statements is the mutually shared
understanding of the witness and the prosecution as the basis for the plea bargain.
(People v. Boyer, supra, 38 Cal.4th at p. 456.)
       Dominguez‟s plea agreement did not require he testify in conformity with
his statement to police, but only that he testify in a “truthful and honest and
accurate” manner. Defendant focuses on the condition that if Dominguez was
discovered to have lied or committed perjury the agreement would be void.
Defendant claims this condition was Medina error because any material deviation
would necessarily violate one or the other of these possible abrogating conditions.
The language defendant cites from the agreement simply spells out the
                                          55
consequences present in every plea agreement conditioned on the witness
testifying truthfully; it does not amount to Medina error.29
       Defendant claims that Dominguez‟s agreement was conditioned on his not
being the shooter. No such condition was put on the record in the plea agreement
proceedings. Rather, prior to his second interview with Las Vegas police,
Dominguez‟s then lawyer stated it was “the understanding between” the attorney
and representatives from the Las Vegas police department and the district
attorney‟s office that Dominguez‟s possible release on parole “assume[s] he is
completely honest, forth right [sic],” testified in California and Nevada, “and is
not in fact the shooter in any of those murders. That is not a binding agreement,
that is just an understanding we have.” This preliminary understanding,
nonbinding even at the time it was expressed, does not supplant or supplement the
actual terms of the later agreement. (People v. Badgett (1995) 10 Cal.4th 330, 358
[preliminary discussion of consistency of witness‟s testimony was not contained in
the later immunity agreement: “It is the latter agreement, of course, that is
determinative of defendants‟ claim.”].) In any event, even if there were an
understanding by the prosecution that Dominguez was not the shooter, this would
not have invalidated the agreement.30 (People v. Gurule (2002) 28 Cal.4th 557,
615-616.)

29      Of course, we should also point out that Dominguez did not feel
constrained by this agreement when he repudiated his statement to police and his
prior testimony. Under these circumstances, what possible injury defendant could
be asserting as a result of the alleged error is difficult to see.
30    Defendant apparently assumes that the prosecution could not, in good faith,
have believed Dominguez was not the shooter. He bases this assumption on
evidence that Rodger Backman‟s description of the person he saw fleeing the
garage where the shooting occurred matched Dominguez. Defendant ignores
Backman‟s further, adamant testimony that he was “absolutely sure” there were

                                                           (footnote continued on next page)

                                         56
        E. Evidentiary Claims Involving Robert Homick’s Defense
        Robert Homick‟s defense to the charges against him was succinctly
summarized by his attorney in his closing argument: “Robert Homick did certain
things at the request of his brother [defendant] but he did not know that those
things were ultimately going to help in a murder” because “Steven Homick was
the leader, Bob was the follower. Steven Homick ordered, and Bob complied
without challenge.” Defendant advances a series of claims in which he contends
that the trial court‟s evidentiary rulings with respect to Robert Homick‟s defense
prejudiced him.
             1. The “Missouri incident”
        Stewart Woodman testified he specifically told defendant he did not want
Robert Homick involved in the plot to kill his parents because he believed Robert
Homick was a “klutz” and “I didn‟t want anything [that could] jeopardize my life
in Bob‟s hands.” To counter this testimony and show that Stewart had used
Robert Homick for illegal activities, defendant repeatedly sought to introduce
evidence of what the parties called the “Missouri incident.”
        In 1983, Robert Homick, at the behest of Stewart Woodman, allegedly
threw a can of oil through the window of a residence in which Robert Richardson,
a former employee of Manchester Industries, was living in Missouri. He allegedly
followed that up with a phone call threatening Richardson that the next object
thrown through his window would be a bomb.


(footnote continued from previous page)

two people running from the garage—the person he saw and another person he
heard but could not see. Given this and the weight of the evidence indicating that
defendant was the ringleader in the conspiracy to kill Gerald and Vera Woodman,
the prosecutors could have reasonably believed that Dominguez was not the
shooter.



                                          57
       Defendant sought to use this evidence during the defense‟s cross-
examination of Stewart Woodman to impeach Stewart‟s testimony that he did not
want Robert Homick involved in the murder conspiracy because of his ineptitude.
The court rejected the argument, ruling the Missouri incident was inadmissible
character evidence against Robert Homick and that this outweighed any
impeachment value as to Stewart‟s credibility and would divert the trial to a
collateral issue. The court cited evidence that Robert Homick had conspired with
Stewart Woodman to commit insurance fraud by taking and destroying two
vehicles for which Stewart then filed insurance claims and that Robert had made a
threat of violence against the owner of a business called Soft Lite, remarking that
the Missouri evidence would be cumulative.
       Although the trial court did not specifically cite Evidence Code section 352,
its ruling clearly rested on that provision. The court weighed the “marginal” or
“slim” relevance of the evidence against its prejudicial effect as impermissible
character evidence against Robert Homick; found it was cumulative on the point
for which defendant wished to introduce it, to impeach Stewart Woodman‟s
testimony that he did not want Robert Homick involved in the murders because of
his ineptitude; and also concluded that admission of the evidence would lead to an
undue consumption of time on a collateral issue—whether the threat to Richardson
was made by Robert Homick or a third party.
       Evidence Code section 352 “is not limited by its terms to disputes by
opposing parties; it may become applicable to parties on the same side of an action
when their interests are adverse to each other.” (People v. Ainsworth (1988) 45
Cal.3d 984, 1007, fn. 10.) “Although we recognize that a criminal defendant has a
constitutional right to present all relevant evidence of significant probative value
in his favor [citations], „[t]his does not mean that an unlimited inquiry may be
made into collateral matters; the proffered evidence must have more than “slight-
                                         58
relevancy” to the issues presented.‟ [Citation.]” (People v. Jennings (1991) 53
Cal.3d 334, 372.) “Moreover, this court will not disturb a trial court‟s exercise of
discretion under Evidence Code section 352 unless it is shown the trial court
exercised its discretion „ “in an arbitrary, capricious or patently absurd manner.” ‟
[Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 948.)
       We find no abuse of discretion here. Contrary to defendant‟s claim, the
trial court never found the Missouri incident to be of significant probative value.
It characterized the incident‟s relevance as “marginal” and “slim,”
characterizations it never repudiated even when it briefly considered admitting the
evidence. The trial court‟s concern that the evidence would be viewed as evidence
of the bad character of Robert Homick, reflecting a propensity to commit crimes,
was well founded; such evidence is ordinarily inadmissible because it is
prejudicial. (Evid. Code, § 1101, subd. (a); People v. Falsetta (1999) 21 Cal.4th
903, 916.) The court also reasonably concluded that the evidence was also
cumulative in light of the evidence of the Soft Lite incident and the insurance
fraud schemes. In this connection, we reject defendant‟s assertion that the
Missouri incident evidence was substantially more probative of the point he was
trying to make about the relationship between Stewart Woodman and Robert
Homick than evidence of these other incidents because, unlike them, evidence of
the Missouri incident was “indisputable.”31 The Missouri incident evidence was
subject to questions about whether Robert Homick or a third party committed the

31      Thus, the case before us is distinguishable from People v. Reeder (1978) 82
Cal.App.3d 543, where the defendant‟s evidence of the codefendant‟s misconduct
against the defendant and his family would have shown that the defendant disliked
the codefendant and would not have sold drugs with him. That evidence was
significantly probative on the issue on which the defendant sought to introduce it.
(Id. at pp. 550, 553.) The circumstances of the case before us are quite different.



                                         59
actions against Richardson. For this reason, the trial court also reasonably
determined that the evidence would result in an undue consumption of time on a
collateral issue—whether the actions against Richardson were done by Robert
Homick or a third party.
           2. Art Taylor’s FBI informant status
       Over defendant‟s objection, counsel for Robert Homick was allowed to
question defendant‟s erstwhile friend, Art Taylor, about his work as a paid FBI
informant. Taylor testified he had gone to the FBI because he was upset that
defendant had been using him to help distribute drugs. Robert Homick‟s counsel
sought to impeach Taylor by suggesting his motivation for becoming an informant
was to enlist the FBI‟s help in removing tax liens from his business. The trial
court allowed the evidence but instructed the jury, both after Taylor‟s testimony
and at the close of the guilt phase, that evidence regarding defendant‟s alleged
drug dealing was to be considered only as it affected Taylor‟s credibility and not
as evidence of defendant‟s bad character.
       Defendant contends the trial court erred by allowing Taylor to be
questioned about his motivation for becoming an FBI informant in a manner that
disclosed his belief that defendant was a drug dealer. He maintains the limiting
instructions were inadequate to dispel any prejudice.
       We find no abuse of discretion. Taylor‟s status as a paid FBI informant
was relevant to his credibility, a point acknowledged by defendant‟s own trial
attorney, who simply wanted to avoid disclosure of the fact that Taylor was
informing on defendant. Equally relevant to Taylor‟s credibility was whether he
had become an informant because, as he claimed, he was upset that defendant had
involved him in drug distribution or for other reasons unrelated to defendant‟s
alleged drug dealing, e.g., to get tax liens removed from his business or to make


                                         60
money. Taylor‟s motive, may, for the jury, have spelled the difference between
being civic minded and self-interested. Therefore, the court did not abuse its
discretion by allowing questioning on that point for the limited purpose of
providing information to the jury with which to fully assess Taylor‟s credibility.
       The trial court‟s repeated admonitions to the jury that the evidence could be
used not as evidence of defendant‟s character or propensity, but only on the issue
of Taylor‟s credibility, cured any potential prejudice to defendant. We reject as
entirely speculative defendant‟s assertion that these limiting instructions were
inadequate. “Any prejudice that the challenged information may have threatened
must be deemed to have been prevented by the court‟s limiting instruction to the
jury. We presume that jurors comprehend and accept the court‟s directions.
[Citation.] We can, of course, do nothing else. The crucial assumption underlying
our constitutional system of trial by jury is that jurors generally understand and
faithfully follow instructions.” (People v. Mickey (1991) 54 Cal.3d 612, 689,
fn. 17.)
           3. Judge Stromwall’s testimony
       The prosecution presented evidence that the day before the murders,
defendant, accompanied by Michael Dominguez, visited a lawyer named Max
Herman, from whom defendant may have obtained a gun. To bolster his point that
defendant used people without disclosing his purpose, Robert Homick presented
the testimony of retired Superior Court Judge Clarence Stromwall, a longtime
friend of Herman with whom he had worked when they were both members of the
Los Angeles Police Department. Homick hoped to show that even Herman, who
Stromwall agreed was “a streetwise person,” could be duped by defendant into
helping him engage in illegal activity. Defendant‟s counsel objected. He argued




                                         61
the evidence was being used to show defendant‟s bad character “for deception and
deceit.” The trial court overruled the objection.
       Defendant contends the Stromwall testimony constituted impermissible
character evidence. (Evid. Code, § 1101, subd. (a).) Specifically, he asserts “it
was improper to admit Judge Stromwall‟s opinion of Max Herman‟s character trait
of honesty . . . to prove . . . that Max Herman did not give a gun to [defendant] . . .
with knowledge that the gun was going to be used in a crime.”
       Defendant‟s objection to Stromwall‟s testimony in the trial court, however,
was not that it showed Herman‟s specific conduct in conformity to his character
trait for honesty, but that it showed defendant‟s bad character as deceitful and
manipulative. Therefore, defendant has forfeited the claim he now attempts to
advance on appeal. (Evid. Code, § 353; People v. Ramos (1997) 15 Cal.4th 1133,
1171.) In any event, the claim lacks merit. It is clear from the record that the
purpose of the evidence was to show defendant manipulated people for purposes
of which they might not have been entirely aware, and not to prove that Herman
acted in conformity with a particular character trait. To the extent defendant‟s
complaint is that the trial court abused its discretion by admitting the evidence
under Evidence Code section 352, we find no abuse where, as the court noted, the
evidence was strongly relevant to Robert Homick‟s defense as compared to any
prejudice to defendant.
           4. Helen Copitka’s Testimony
       Robert Homick called his and defendant‟s sister, Helen Copitka, to testify
about the childhood dynamics within their family and specifically defendant‟s
domineering relationship with his younger brother. Defendant objected that the
testimony was inadmissible character evidence and, because Copitka had had few
interactions with her brothers in adulthood, her testimony would be stale. The


                                          62
court overruled the objections, finding, as to the latter contention, that Copitka‟s
lack of adult interactions with her brothers went to the weight, not the
admissibility, of her testimony. The trial court also rejected defendant‟s request to
impeach Copitka‟s testimony with evidence of the Missouri incident.
       Defendant contends that Copitka‟s testimony was of little relevance
because of her limited interactions with her adult brothers; that it was more
prejudicial to defendant than probative; that Robert Homick‟s defense—that he
simply followed defendant‟s orders, unaware of defendant‟s purpose—was
without support in the evidence; and that, if testimony about the brothers‟
leader/follower relationship was relevant, the trial court should have allowed
defendant to present the Missouri incident evidence. His contentions are
meritless.
       Copitka‟s testimony about defendant‟s dominance in his relationship with
his brother, established when both were children, was clearly relevant to Robert
Homick‟s defense that he carried out defendant‟s instructions in the instant case
without necessarily understanding their purpose. Her limited interaction with her
brothers as adults and, thus, her opportunity to observe their adult relationship,
went to the weight, not the admissibility, of her testimony. “Relevant evidence is
evidence „having any tendency in reason to prove or disprove any disputed fact
that is of consequence to the determination of the action.‟ (Evid. Code, § 210,
italics added.) The evidence need not be dispositive of the disputed fact.” (People
v. Richardson (2008) 43 Cal.4th 959, 1002.) Defendant‟s assertion that there was
no evidence to support Robert Homick‟s defense, and thus no basis for Copitka‟s
testimony, is puzzling, to say the least, given defendant‟s objections to some of the
evidence presented in support of that defense. That defendant found his brother‟s
defense implausible—as apparently did the jury—does not mean there was no
evidentiary basis for it. Finally, we have already concluded that the trial court
                                          63
properly excluded the Missouri incident evidence under Evidence Code section
352.
           5. References to Las Vegas triple murder investigation
       During the presentation of Robert Homick‟s defense, Detective Holder, one
of the investigating officers in this case, testified that no deal had been made with
Michael Dominguez when he was interviewed in March 1986, first by Holder and
his partner Detective Crotsley and then by members of the Las Vegas police
department. Counsel for Robert Homick was then permitted to play the tape of the
Las Vegas police department interview, at which Holder was also present. A
comment was made at the beginning of the tape that the Las Vegas police were
investigating a triple murder. Dominguez‟s attorney then spoke of a tentative plea
agreement with the Los Angeles police department. Confronted with the tape,
Holder acknowledged his recollection about whether a deal had been reached was
incorrect. Subsequently, when the prosecutor cross-examined Holder, further
reference was made to a “triple homicide” the Las Vegas police had been
investigating at the time of the interviews.32
       Defendant moved for a mistrial, arguing that the jury would have inferred
defendant had something to do with the triple murders. The court denied the
motion, remarking, “I see nothing in that that would even, under rank speculation,
tie that in to any defendant in this case.” Defendant argues the jury must




32      The triple murders at issue were the Tipton murders of which defendant
was convicted in Nevada. Before Robert Homick was allowed to question Holder
about the Dominguez interviews, the trial court explicitly directed the prosecution
not to refer to the homicides as the “Tipton murders” or to mention defendant in
connection with them.



                                          64
inevitably have connected him to the triple murder investigation mentioned during
Holder‟s testimony. We agree with the trial court that the argument is speculative.
            Finally, having rejected defendant‟s various individual claims of error, we
necessarily reject his claim that the cumulative prejudicial effect of the errors
requires reversal. (People v. Panah (2005) 35 Cal.4th 395, 479-480.)
            F. Coconspirator Statements
            Defendant contends that the trial court erroneously admitted statements by
his confederates under the coconspirator exception to the rule against hearsay.
(Evid. Code, § 1223 [“Evidence of a statement offered against a party is not made
inadmissible by the hearsay rule if: [¶] (a) The statement was made by the
declarant while participating in a conspiracy to commit a crime . . . and in
furtherance of the objective of that conspiracy; [and] [¶] (b) The statement was
made prior to or during the time that the party was participating in that conspiracy
. . .”].)
                1. Soft Lite incident
            The prosecution introduced evidence that, at Stewart Woodman‟s behest,
Robert Homick went to Soft Lite, a business owned by Jack Swartz, and
threatened him over money Soft Lite owed to Manchester Products. The evidence
came in through the testimony of Swartz‟s daughter, Tracy Swartz Hebard. Just
before she testified, defendant‟s counsel objected to her testimony because
“there‟s no showing that [the Soft Lite incident] is part of any conspiracy dealing
with the death[s] of Gerald and Vera Woodman.” The court rejected the
argument, ruling that the evidence was relevant to demonstrate the relationship
between the defendants “during the years leading up to the 1985 murder[s].”
Defendant‟s counsel asked for an instruction to limit the evidence to Robert




                                             65
Homick. The court agreed to listen to the evidence and “if it is apparent that it
bears no relationship to [defendant] I will so instruct the jury.”
       Defendant contends the evidence should have been excluded as irrelevant
and prejudicial. While he concedes the evidence was more harmful to his brother,
he argues he suffered “some prejudice” because there was “an inevitable
tendency” for evidence harmful to one of them to be “considered by the jury as
harmful to both.” He also complains that the court failed to give the limiting
instruction he had earlier requested, thus compounding any prejudice, although he
acknowledges such prejudice alone “may not have been sufficient to require
reversal of the judgment against” him.
       Defendant has lumped this claim into his general claim that the trial court
misapplied the coconspirator hearsay exception, even though no party made a
hearsay objection to this particular evidence. Accordingly, any hearsay claim is
forfeited.
       We reject on its merits defendant‟s claim that the evidence was irrelevant.
“Conspiracy requires two or more persons agreeing to commit a crime, along with
the commission of an overt act, by at least one of these parties, in furtherance of
the conspiracy. (People v. Swain (1996) 12 Cal.4th 593, 600 [49 Cal.Rptr.2d 390,
909 P.2d 994; see §§ 182, subd. (a)(1), 184.) A conspiracy requires (1) the intent
to agree, and (2) the intent to commit the underlying substantive offense.” (People
v. Bogan (2007) 152 Cal.App.4th 1070, 1074.) “ „The punishable act, or the very
crux, of a criminal conspiracy is the evil or corrupt agreement.‟ ” (People v.
Alleyne (2000) 82 Cal.App.4th 1256, 1262.)
       If the agreement between the conspirators is the crux of criminal
conspiracy, then the existence and nature of the relationship among the
conspirators is undoubtedly relevant to whether such agreement was formed,
particularly since such agreement must often be proved circumstantially. “ „The
                                          66
existence of a conspiracy may be inferred from the conduct, relationship, interests,
and activities of the alleged conspirators before and during the alleged
conspiracy.‟ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135, italics added.)
Thus, the trial court did not abuse its discretion when it admitted Hebard‟s
testimony as relevant to establish the relationship between Robert Homick and
Stewart Woodman.
       Nor did the trial court abuse its discretion when it found that the evidence
was more probative than prejudicial. The court characterized Robert Homick‟s
threat as “a lot like puffing” and unlikely to have been taken at face value by the
jury. If, for this reason, the testimony was minimally prejudicial to Robert
Homick, then, necessarily, it was not prejudicial at all to defendant who was not
involved in the incident and whose name did not surface during Hebard‟s
testimony. Regarding defendant‟s complaint about the court‟s failure to give a
limiting instruction, defendant‟s failure to press the court for a ruling once Hebard
gave her testimony forfeits any claim of error. (People v. Rhodes (1989) 212
Cal.App.3d 541, 554.) In any event, defendant was not prejudiced by the trial
court‟s failure to give such an instruction. The incident, on its face, simply had
nothing to do with him, which the jury would have understood even without an
instruction to that effect.
            2. Statements made by Stewart and Neil about defendant
       Over defendant‟s objection, the trial court permitted two former employees
of Manchester Products to testify to statements made by Stewart and Neil about
defendant on grounds they were made during a time the conspiracy was in
existence. Cathy Clemente testified that, sometime in March or April of 1983, the
brothers had a meeting with defendant after which Stewart described defendant as
“his man in Vegas” and added that, if anything needed doing, defendant “was the


                                         67
man to do it.” Neil told her that defendant was “tougher” than the Mafia. Richard
Wilson testified that on many occasions Neil had told him defendant “could get
anything done of an illegal nature upon request.” In his in limine testimony,
though not in his trial testimony, Wilson identified the timeframe of these
statements as 1984 and 1985.
       “Hearsay evidence is of course generally inadmissible. (Evid. Code,
§ 1200.) Hearsay statements by coconspirators, however, may nonetheless be
admitted against a party if, at the threshold, the offering party presents
„independent evidence to establish prima facie the existence of . . . [a] conspiracy.‟
[Citations.] Once independent proof of a conspiracy has been shown, three
preliminary facts must be established: „(1) that the declarant was participating in a
conspiracy at the time of the declaration; (2) that the declaration was in
furtherance of the objective of that conspiracy; and (3) that at the time of the
declaration the party against whom the evidence is offered was participating or
would later participate in the conspiracy.‟ [Citation.]” (People v. Hardy (1992) 2
Cal.4th 86, 139.)
       Defendant contends, correctly, that Stewart‟s and Neil‟s statements to
Clemente took place before the conspiracy to kill Gerald and Vera was formed and
were therefore inadmissible under the coconspirator exception. The trial court
concluded the conspiracy was formed no earlier than the fall of 1983 when, as
Stewart testified at the federal trial, Joey Gambino suggested he speak to
defendant about Stewart‟s problem with his father, whereas Clemente testified the
statements to her were made in March or April 1983. Thus, the trial court erred
when it admitted Clemente‟s testimony under the coconspirator statement
exception because the foundational requirements—“[t]he statement was made by
the declarant while participating in a conspiracy to commit a crime . . . and in
furtherance of the objective of that conspiracy” (Evid. Code, § 1223, subd. (a))—
                                          68
were not met. Nevertheless we conclude any error in the admission of Clemente‟s
brief testimony was harmless in light of the strong evidence of defendant‟s guilt.
(People v. Watson (1956) 46 Cal.2d 818.)
       Defendant concedes Neil Woodman‟s comment to Richard Wilson was
made after the conspiracy came into existence, but argues it was not in furtherance
of that conspiracy. As the Attorney General asserts, the trial court found
otherwise; that finding binds us only if supported by substantial evidence. (People
v. Roberts (1992) 2 Cal.4th 271, 303-304.) The court cited no such evidence, and
we find none. There is no apparent connection between Neil‟s statement to
Wilson about defendant‟s ability to commit illegal acts and the specific objective
of the conspiracy to kill Gerald and Vera. Neil was not enlisting Wilson‟s
assistance nor attempting to procure his silence; he seems simply to have been
bragging about his connection to a dangerous man. (See id. at p. 304
[coconspirator‟s remark to third parties that he was going with defendant to the
prison yard the next morning to resolve a dispute with the victim was not in
furtherance of the conspiracy to assault the victim where “Menefield was not
asking Rooks or Long for help”].) Again, however, we find this fleeting comment
nonprejudicial in light of the strong evidence of defendant‟s guilt.
           3. Neil Woodman’s comments on a magazine article about
              hiring a hit man
       Gloria Karns, Stewart and Neil‟s aunt, testified that while waiting for a
deposition at her attorney‟s office in connection with her lawsuit against the
brothers, Neil flipped through a magazine and came across an article entitled “This
Gun for Hire.” He remarked to his attorney, loudly enough for Karns to hear,
“When somebody annoys you, you can look in a magazine [and] find someone to
stop them annoying you.” At an in limine hearing, defendant argued that even if
the testimony was admissible against Neil, it was inadmissible against defendant

                                         69
and should be excluded. Alternatively, he argued the court should give an
instruction limiting the jury‟s consideration of the testimony to Neil. The
prosecutor opposed any limiting instruction on the ground that the statement, made
in 1984, constituted proof of the existence of the conspiracy to murder Gerald and
Vera. The trial court agreed and declined to give a limiting instruction. Defendant
maintains the trial court erred because the statement was not made in furtherance
of the conspiracy.
         Assuming the testimony should have been excluded or a limiting
instruction given, defendant was not prejudiced. Neil‟s comment, made in the
midst of an acrimonious legal dispute with his aunt, was clearly directed at her,
was unrelated to the conspiracy to murder his parents, and did not name defendant,
expressly or by implication.
             4. Stewart’s and Neil’s comments to Jack Ridout
         Jack Ridout, a business associate of Stewart and Neil‟s, testified about two
conversations with the brothers. In one, Stewart told Ridout he used defendant for
collections. He said he had sent defendant to take care of someone in Florida with
whom the company was having problems getting paid and “they got paid right
away.” In the other, when Ridout complained about a custody dispute with his ex-
wife, Neil suggested that “he could have her hit, and all problems would be over
with.”
         We need not resolve whether admission of Stewart‟s comment was error,
because any error was harmless. Other testimony established that Stewart and
Neil employed defendant for various jobs, including providing security and
installing listening devices. The additional testimony that defendant was also
employed to do collections was cumulative and insignificant in light of the strong
evidence of his guilt.


                                          70
         As to Neil‟s statement, the trial court gave a limiting instruction expressly
informing the jury it was not to consider the statement against defendant. We
presume the jury understood and followed the instruction. (People v. Avila, supra,
38 Cal.4th at p. 575.) Defendant complains that the limiting instruction was given
long after the testimony and this diluted its effect. “[T]he trial court is not obliged
to give limiting instructions the moment they are requested or when the limited
evidence is presented; subsequent instruction can be sufficient in a proper case.”
(People v. Dennis (1998) 17 Cal.4th 468, 534.) We perceive no abuse of
discretion here. Defendant also suggests the instruction was inadequate.33 We
disagree and, in any event, defendant failed to suggest a different instruction be
given.
             5. Neil Woodman’s postarrest call to Steven Strawn
         Steven Strawn, Manchester Products‟s former controller, testified that after
his arrest Neil Woodman called him from jail and asked him to destroy business
cards located beneath Neil‟s desk; two of the cards belonged to defendant.
Defendant objected that Neil‟s statement inculpated him in violation of the
Aranda-Bruton rule. (People v. Aranda, supra, 63 Cal.2d 518; Bruton v. United
States, supra, 391 U.S. 123 [a nontestifying codefendant‟s extrajudicial statement
that incriminates himself or herself and the other defendant is inadmissible].) The
trial court concluded that any potential prejudice to defendant could be cured by a


33     The jury was instructed in pertinent part: “With respect to the 2 statements
that were testified to by Mr. Ridout, one statement that Neil Woodman could have
Mr. Ridout‟s ex-wife hit . . . these statements were admitted in evidence against
Neil Woodman only, and they are not admitted against Robert Homick, or Steven
Homick. [¶] Whether the statements were in fact made by Neil Woodman, and the
weight, if any, to be given them, are matters for the jury to decide. However, they
are not to be considered by you as evidence against Steven or Robert Homick.”



                                           71
limiting instruction. It instructed the jury: “[E]vidence concerning Neil
Woodman‟s telephone instructions to Steven Strawn, if believed by you, is to be
considered only as it applies to Neil Woodman. It may not be considered in any
fashion with respect to Steve Homick.” Defendant contends the limiting
instruction was inadequate.
       “Aranda and Bruton stand for the proposition that a „nontestifying
codefendant‟s extrajudicial self-incriminating statement that inculpates the other
defendant is generally unreliable and hence inadmissible as violative of that
defendant‟s right of confrontation and cross-examination, even if a limiting
instruction is given.‟ [Citation].” (People v. Jennings (2010) 50 Cal.4th 616,
652.)34 The United States Supreme Court “limited the scope of the Bruton rule in
Richardson v. Marsh (1987) 481 U.S. 200 [95 L.Ed.2d 176, 107 S.Ct. 1702] . . . .
The court explained that Bruton recognized a narrow exception to the general rule
that juries are presumed to follow limiting instructions, and this narrow exception
should not apply to confessions that are not incriminating on their face, but
become so only when linked with other evidence introduced at trial. (Richardson,
supra, at pp. 206-207.) That is because, „[w]here the necessity of such linkage is
involved, it is a less valid generalization that the jury will not likely obey the
instruction to disregard the evidence.‟ (Id. at p. 208.)” (People v. Lewis, supra, 43
Cal.4th at p. 454; see People v. Fletcher, supra, 13 Cal.4th at pp. 463-464
[Richardson limits application of Bruton exception to facially incriminating
confessions of codefendant at a joint trial].)

34      To the extent Aranda “require[d] the exclusion of relevant evidence that
need not be excluded under federal constitutional law, it was abrogated in 1982 by
the „truth-in-evidence‟ provision of Proposition 8 (Cal. Const., art. I, § 28, subd.
(d)).” (People v. Fletcher (1996) 13 Cal.4th 451, 465.)



                                           72
       Neil‟s statement to Strawn was not a confession, much less one that facially
incriminated defendant. Its incriminatory effect on defendant depended entirely
on its linkage to other evidence. As the trial court aptly noted, this was not a
Bruton/Aranda issue “in a true sense,” and any possible prejudice to defendant
could be dispelled by a limiting instruction. (Richardson v. Marsh, supra, 481
U.S. at p. 206 [“Ordinarily, a witness whose testimony is introduced at a joint trial
is not considered to be a witness „against‟ a defendant if the jury is instructed to
consider that testimony only against a codefendant.”].)
           6. The “heavy guy” comment
       During defense counsel‟s cross-examination of Steven Strawn, Strawn
testified that Stewart had ridiculed Neil‟s friendship with defendant. On redirect
examination, Strawn explained that Stewart thought “Neil seeing [defendant] as a,
quote, heavy guy went beyond the limits when Neil would use this in
conversations with other people . . . .” Defense counsel objected that the “heavy
guy” characterization violated the court‟s earlier ruling prohibiting the prosecutor
from eliciting such testimony from Strawn. The court observed the comment “just
sort of came out of left field.” Neil‟s counsel observed, “It came in as innocuously
as possible and it was gone.” Although he concedes the error was “relatively
minor,” defendant renews his objection to bolster his claim that the cumulative
prejudice from all the evidentiary errors raised in this part requires reversal. There
was no error here. The prosecutor did not solicit this testimony, nor did the court
permit it. It slipped out of the witness in passing. Defendant could have, but did




                                          73
not, request an admonition to the jury to disregard the phrase, probably because an
admonition would simply have called attention to the innocuous remark.35
       G. Other Claims of Evidentiary Error
           1. Art Taylor’s testimony that defendant habitually carried a revolver
       The defense sought to preclude testimony by Art Taylor that he had seen
defendant carrying a revolver. The prosecutor argued Taylor‟s testimony would
be relevant to anticipated testimony by another witness, Robert Kelly. Kelly, who
heard the shooting, believed the weapon used was a revolver, based, apparently,
on his knowledge of firearms. The trial court overruled the objection. Taylor
testified briefly that defendant usually carried a briefcase and among its contents
was a silver revolver. Robert Kelly did not testify about the type of weapon he
thought was used in the shooting.
       Later, however, evidence was presented that Michael Dominguez saw a
silver revolver in the gun case defendant had obtained from Max Herman. In
closing argument, the prosecutor suggested this revolver might have been the


35      Here, as elsewhere, defendant asserts the cumulative effect of prejudice
from the erroneous admission of the evidence requires reversal. Where we have
identified an error, we have concluded there was no prejudice. We conclude this
is true whether the claims of prejudice are viewed individually or in the aggregate.
This was not a close case. There was direct testimony from Stewart Woodman
that he and his brother hired defendant to kill their parents. This testimony was
corroborated by ample evidence that defendant personally stalked the victims and
gathered confederates to help him accomplish the crime. Against this
overwhelming evidence, defendant offered a weak alibi defense and attempted to
point the finger of blame at his brother, who the evidence strongly indicated was
defendant‟s pawn. The occasional evidentiary error defendant points to could not
have had a prejudicial impact sufficient to require reversal. (See Evid. Code,
§ 353, subd. (b) [no reversal for erroneous admission of evidence unless “[t]he
court which passes upon the effect of the error or errors is of the opinion . . . that
the error or errors complained of resulted in a miscarriage of justice.”].)



                                          74
murder weapon. When counsel for Robert Homick directly argued that it was the
murder weapon, the court interrupted his argument and instructed the jury that,
while it could draw reasonable inferences from the evidence, “I don‟t think there‟s
been evidence tying a particular weapon to being the murder weapon.”
       Defendant contends the trial court erred by permitting Taylor to testify to
defendant‟s habitual possession of a weapon, citing People v. Riser (1956) 47
Cal.2d 566. In Riser, we held: “When the prosecution relies, . . . on a specific
type of weapon, it is error to admit evidence that other weapons were found in [the
defendant‟s] possession, for such evidence tends to show, not that he committed
the crime, but only that he is the sort of person who carries deadly weapons.” (Id.
at p. 577.) On the other hand, “[w]e have also held that when weapons are
otherwise relevant to the crime‟s commission, but are not the actual murder
weapons, they may still be admissible.” (People v. Cox (2003) 30 Cal.4th 916,
956.) For example, in People v. Carpenter (1999) 21 Cal.4th 1016, 1052, we held
the trial court did not abuse its discretion by allowing a witness to testify the
defendant had told her he kept a gun in his van. “Although the witnesses did not
establish the gun necessarily was the murder weapon, it might have been. . . . The
evidence was thus relevant and admissible as circumstantial evidence that [the
defendant] committed the charged offenses.” (Ibid.; see also People v. Neely
(1993) 6 Cal.4th 877, 896 [counsel not ineffective for failing to object to
admission of rifle and ammunition found in defendant‟s truck shortly after
commission of crime where “there was no direct evidence as to the fatal shooting




                                          75
that would render this evidence irrelevant to establish facts material to proof of the
charged offenses”].)36
       Here, the prosecutor‟s offer of proof in support of Taylor‟s testimony was
that the weapon defendant habitually carried may have been the same type of
weapon used in the shooting. As the trial court observed, such evidence was
“circumstantial evidence the jury can use to determine whether the case is proven
that this defendant is connected to the murder.” The court acknowledged the
testimony was prejudicial but nonetheless, by overruling defendant‟s objection,
implicitly found the testimony was more probative than prejudicial. We cannot
conclude that the court abused its discretion in admitting the testimony. (People v.
Cox, supra, 30 Cal.4th at p. 955.)
       Defendant maintains the prosecutor ultimately pointed to another
revolver—that obtained by defendant from Max Herman—as the murder weapon.
As noted, however, the prosecutor‟s argument was not so direct, and the trial court
specifically instructed the jury that no particular weapon had been identified as the

36     Defendant argues that defendants are held to a higher standard of relevance
when attempting to introduce reasonable doubt evidence than is the prosecution
when it offers weapons evidence. He cites People v. Hall (1986) 41 Cal.3d 826,
which involves a defendant‟s tender of third party culpability evidence. In Hall,
we overruled earlier authority that had held such evidence was inadmissible absent
a threshold showing of substantial proof of probability because that standard was
too onerous. (Id. at pp. 832-834.) While we acknowledged some outer limits to
guide the trial court‟s exercise of discretion—“direct or circumstantial evidence
linking the third person to the actual perpetration of the crime” (id. at p. 833)—we
also observed that whether such evidence was admissible “will always turn on the
facts of the case” (id. at p. 834). The same is true of weapons evidence because
(1) some degree of connection between the weapon and the crime must be shown
before it is admissible, but (2) this determination turns on the facts of the
individual case. Therefore, we reject defendant‟s suggestion that different rules
apply to the defense as opposed to the prosecution regarding the admission of this
evidence.



                                         76
murder weapon, while leaving the jury free to draw reasonable inferences. Even
had the prosecutor ultimately argued the gun obtained from Herman was the
murder weapon, the effect would have been to render Taylor‟s testimony
irrelevant; the trial court‟s ruling would still have been correct based on the offer
of proof made at the time of its ruling. Moreover, defendant could have, but did
not, request that Taylor‟s testimony be stricken or otherwise renew his objection.
           2. Stewart Woodman’s testimony regarding Robert Homick’s
              presence outside Gerald and Vera’s apartment building
       Defendant sought to exclude testimony by Stewart Woodman that Robert
Homick had told him it was a coincidence he was parked outside Gerald and
Vera‟s apartment building for several hours on June 22, 1985, Gerald and Vera‟s
anniversary. While defendant‟s counsel conceded the statement was admissible
against Robert Homick, he argued it was harmful to defendant, who planned to
argue, in essence, that Robert was engaged in a plot to kill the victims on June 22,
when defendant was not in Los Angeles. The trial court declined to exclude the
testimony. Defense counsel again sought to exclude the testimony after Stewart
had taken the stand. In response, the prosecutor argued: “My position is this is
incriminating against Bob Homick because it shows there was a pattern of
surveilling the victims in this case.” Defense counsel offered to stipulate to Robert
Homick‟s statement he was at the scene on June 22, as well as before and after
that date. The trial court again overruled the objection to the testimony.
       Defendant contends admission of the testimony was error. Not so. The
testimony was admissible against Robert Homick to show he had been surveilling
the victims. Robert Homick‟s claim to Stewart Woodman that it was simply a
coincidence he had been outside the building did not fatally undermine
defendant‟s assertion that his brother, and not he, was the designated hit man.
Defendant was free to attack Robert Homick‟s truthfulness on this point. Nor was

                                          77
the prosecution obligated to accept defendant‟s tender of a stipulation. “ „[T]he
general rule is that the prosecution in a criminal case cannot be compelled to
accept a stipulation if the effect would be to deprive the state‟s case of its
persuasiveness and forcefulness.‟ ” (People v. Arias (1996) 13 Cal.4th 92, 131.)
Defendant also complains that a limiting instruction was not given with respect to
this evidence but, as he did not request such an instruction, his complaint fails.
(See People v. Daniels (1991) 52 Cal.3d 815, 883-884.) Accordingly, we
conclude the trial court did not abuse its discretion in admitting this fleeting
testimony.
             3. FBI Agent Joseph Gersky’s testimony that he believed Michael
                Dominguez and Gersky’s characterization of defendant as
                “notorious”
       Robert Homick called FBI Agent Joseph Gersky to testify that when he
initially interviewed Michael Dominguez, Dominguez told him he did not know
who else had participated in the Woodman murders.37 Gersky testified that, an
hour or so later, he again interrogated Dominguez because he did not believe him.
In the second interview, Dominguez told Gersky two other men had assisted
defendant, Anthony Majoy and defendant‟s brother, William, also known as
“Moke.” On cross-examination, the prosecutor elicited testimony from Gersky
that what Dominguez had actually said during the second interview was that
Majoy and “Steve‟s brother” had participated in the murders, without specifying
which brother. Over defendant‟s objection, the prosecutor was also allowed to ask
Gersky if he believed Dominguez. Gersky said he did.



37    Gersky was also a polygraph examiner who evidently gave Dominguez a
polygraph test.



                                          78
       Defendant contends the trial court erred by permitting Gersky to testify that
he believed Dominguez after the second interrogation. “Even assuming these
opinions were improperly admitted (see People v. Melton (1988) 44 Cal.3d 713,
744 [244 Cal.Rptr. 867, 750 P.2d 741] [opinion testimony from a witness with no
personal knowledge of the events regarding the veracity of another witness‟s
statements regarding those events is inadmissible because such testimony is
speculative]; but see People v. Padilla (1995) 11 Cal.4th 891, 946-947 [47
Cal.Rptr.2d 426, 906 P.2d 388] [declining to decide whether this aspect of Melton
survived Prop. 8]), we nonetheless conclude that any [error] . . . was not
prejudicial.” (People v. Riggs (2008) 44 Cal.4th 248, 300.) Gersky‟s brief
testimony involved a subject—defendant and his brother‟s participation in the
murders—as to which there was ample evidence.38 Neither the court nor the
prosecutor drew any further attention to Gersky‟s testimony, and the jury was
instructed that it alone was to determine witness credibility. We presume the jury
followed this instruction. (See Riggs, at pp. 300-301 [where the jury was
instructed it was to determine the credibility of witnesses, any error in an officer‟s
testimony about defendant‟s veracity was harmless].)



38      Defendant maintains that Gersky‟s opinion about Dominguez‟s credibility
was based on the polygraph examination Gersky administered to him. He
complains about not being able to question Gersky about the results of that
examination. Such results are inadmissible. (Evid. Code, § 351.1.) Moreover, the
basis for Gersky‟s opinion that Dominguez was being truthful when he said
defendant and one of his brothers had participated in the offense is unimportant in
light of the overwhelming evidence that otherwise established this point. Indeed,
Gersky‟s opinion of Dominguez‟s credibility was itself insignificant given the
jury‟s ability to observe Dominguez‟s demeanor. As the trial court aptly
remarked, “the jury‟s determination about the credibility of Michael Dominguez is
not going to depend on whether this witness believed him or not.”



                                          79
       During redirect examination by counsel for Robert Homick, Gersky was
asked whether he was aware defendant was arrested on March 11, 1986. He
replied: “Well, I knew Steven Homick had been arrested, because he was a
notorious person.” Defendant‟s counsel quickly moved to strike that response.
His motion was granted, and the court instructed the jury to disregard the remark.
He also sought a mistrial, which the court denied. Defendant contends, in effect,
that the court should have granted his mistrial motion because striking the remark
was insufficient to dispel the prejudice to defendant. We do not agree. The
comment was made in passing, the court‟s response was instantaneous, and we
presume the jury followed its instruction to disregard the remark.
           4. Michael Dominguez’s testimony that he believed defendant
              intended to kill Gerald and Vera Woodman
       To impeach Michael Dominguez‟s testimony that his statement to police
had been coerced, the prosecution was allowed to play the videotape of the
interrogation. On the tape, Dominguez said he believed defendant had planned to
kill the victims, even though defendant had told him only a robbery was planned.
Defense counsel objected to evidence of Dominguez‟s “belief that . . . these people
were going to get shot based on being with [defendant] and what [defendant] had
done,” and Dominguez‟s interpretation of defendant‟s use of the phrase “to catch
up with them,” as meaning “[t]o kill [the victims].” The trial court overruled the
objection, concluding the statement would impeach any claim by Dominguez that
he did not know there would be a murder. The court also observed that
Dominguez‟s belief that a murder was planned was an opinion not based on
anything defendant had said to him.
       Defendant argues that Dominguez‟s statement did not impeach his trial
testimony because Dominguez did not testify he believed defendant intended only
a robbery and not a murder. Rather, Dominguez testified he was not in Los

                                        80
Angeles at all, implying he had no knowledge of any crime.39 Defendant asserts
further that Dominguez‟s opinion about what defendant intended was irrelevant to
any issue in the case.
       The statements at issue tended generally to impeach Dominguez‟s denial
that he was involved in any crime by demonstrating an awareness on his part that
some crime against the victims was planned. Moreover, as the Attorney General
points out, Dominguez‟s belief appears to have been based on his observations of
defendant‟s planning activity—his attempt to acquire an apartment in a nearby
building and his long-term surveillance of the victims—and not on any admission
by defendant or on Dominguez‟s assessment of defendant‟s character.
Accordingly, we find no abuse of discretion.
       Defendant suggests the cumulative prejudice from the evidentiary rulings
discussed above requires reversal. As we have found either no error or no
prejudice, we also conclude he was not cumulatively prejudiced.
       H. Denial of Defendant’s Motion to Reopen and Present Evidence
          After All Sides Had Rested
       After all sides had rested, but before closing arguments began, defendant‟s
lawyers met with the court in an ex parte session. They claimed that a gun
recovered by police from Robert Homick‟s residence, which police had test-fired
and determined was not the murder weapon, was, according to defendant, the
same gun he had acquired from Max Herman.40 Herman‟s description of the gun


39   When asked why defendant wanted him to come to Los Angeles,
Dominguez testified he did not recall being in Los Angeles.
40     Counsel acknowledged there was no evidence, other than defendant‟s
claim, that the weapon retrieved from Robert Homick‟s apartment was the weapon
defendant obtained from Herman. Herman died before trial.



                                        81
to police, defendant‟s counsel asserted, fit the description of the gun seized from
Robert Homick‟s apartment and the serial number of the two guns matched.
         The defense wanted to reopen to ask the detectives whether they had asked
Herman if he still had the serial number of the weapon he gave defendant, so it
could be compared with the number of the gun seized from Robert‟s apartment, or
if they had shown Herman the seized weapon and asked him if it was the gun he
had given to defendant.
         Alternatively, the defense proposed a stipulation that stated, in part:
“Detectives Crotsley & Holder did not ask Mr. Herman for the serial number &
never showed him the .357 magnum [recovered from Robert Homick‟s apartment]
to see if he could identify it as the gun he had given [defendant].” After
considerable discussion, the trial court concluded the proffered evidence was not
“sufficiently significant to do anything more about it, other than to leave the
evidence in the state it‟s in.” It denied defendant‟s requests to reopen for a
stipulation or a mistrial.
         A “motion to reopen [is] one addressed to the [trial] court‟s sound
discretion.” (People v. McNeal (2009) 46 Cal.4th 1183, 1202.) In determining
whether an abuse of discretion occurred, the reviewing court considers four
factors: “ „(1) the stage the proceedings had reached when the motion was made;
(2) the defendant‟s diligence (or lack thereof) in presenting the new evidence;
(3) the prospect that the jury would accord the new evidence undue emphasis; and
(4) the significance of the evidence.‟ ” (People v. Jones (2003) 30 Cal.4th 1084,
1110.)
         The court found the proffered evidence—that is, defendant‟s desire to
question the investigating detectives about whether they had talked to Herman
about the serial number of the gun he had given defendant and had shown him the
test-fired gun for comparison—“[in]sufficiently significant” to warrant reopening.
                                            82
This finding corresponds to the fourth factor of our abuse of discretion analysis. If
the trial court was correct regarding the insignificance of the evidence, it could not
have abused its discretion by denying defendant‟s motion to reopen and present it.
       Only defendant‟s unsworn statement to his lawyers that the gun seized from
Robert Homick‟s apartment was the same gun Max Herman had given him
directly connected the two weapons. Herman‟s statement to police did not
establish the connection. Herman merely supplied a description of a gun similar to
the gun seized from the apartment. There was no evidence the serial number of
the gun he gave defendant matched the serial number of the gun seized from the
apartment.
       At most, then, the only evidence potentially favorable to his case defendant
could have presented on this point was that the investigating detectives (1) did not
ask Herman whether he had kept the serial number of the gun he gave defendant
and (2) did not show him a gun seized during a police search and ask him if he
could identify it as the weapon he gave defendant. If, to the contrary, the
detectives testified they did ask Herman about these matters, that response would
have indicated Herman did not know the serial number and/or did not recognize
the seized weapon because, had he done either, the police would certainly have
included that information in their reports. In either scenario, the testimony would
not have materially assisted the defense. We agree with the trial court that the
proffered evidence was insufficiently significant to warrant reopening the
evidence.
       Based on our analysis of the value of the proffered evidence, we also
conclude the trial court did not abuse its discretion when it denied defendant‟s
motion for a mistrial. (People v. Avila, supra, 38 Cal.4th at p. 573.) For the same
reason, we reject defendant‟s claim that he was entitled to lesser relief, in the form
of a stipulation.
                                          83
       I. The Trial Court’s Statement About the Federal Trial
       At the outset of the trial, the court directed counsel to instruct their
witnesses not to mention whether they had testified in defendant‟s federal trial.
During cross-examination of Art Taylor by counsel for Robert Homick, Taylor
twice mentioned he had testified at that trial. After his testimony, defendant‟s
counsel briefly moved for a mistrial. The motion was summarily denied.
       About two months after this brief exchange, before Stewart Woodman took
the stand, the trial court distributed to counsel a “proposed statement” it wanted to
give the jury providing background about Stewart Woodman, including
information about the federal case. Defendant‟s counsel‟s sole input was to object
to the statement that Anthony Majoy had been tried along with Stewart Woodman.
Just before Stewart Woodman testified, the trial court reminded counsel about its
intention to “give [the jury] an instruction” in advance of his testimony and asked
counsel “to be prepared to tell me if you have any modifications to my proposed
instruction to them.” When court reconvened, the trial court pressed for any
additional modifications to “the statement that I am going to read to the jury.”
Defendant‟s counsel offered none.
       When the jury returned to the courtroom, the trial court read the following
statement: “The next witness who is going to be called to testify for the
prosecution is Mr. Stewart Woodman. [¶] Mr. Woodman is presently in custody
and he‟ll be brought to court accompanied by marshals. [¶] Before he testifies, I
want to give you some information about some background on this case. [¶] After
the defendants were arrested for the murders charged in this case, a severance was
ordered by the court. The trial of Stewart Woodman was severed from the trial of
the three defendants who are presently on trial here. He was tried before a jury
and in 1989 and 1990 and was convicted of the murders. [¶] Before the
commencement of the penalty phase of that trial, Stewart Woodman entered into

                                           84
an agreement with the prosecution whereby he promised to testify against the
remaining defendants in this trial and the prosecution agreed not to seek the death
penalty against him but to accede to his being sentenced to life in prison without
the possibility of parole. [¶] Thereafter, federal authorities filed charges against all
the defendants charging them with interstate transportation to commit these same
murders which is a federal offense. [¶] Stewart Woodman entered into an
agreement with the federal authorities in that case. He was allowed to plead guilty
to the federal charges in exchange for his testimony against the remaining
defendants in the federal court. [¶] All defendants were tried in federal court in
1991 and Stewart Woodman testified against them in those proceedings.”
       Defendant complains that the court erred in giving this statement because it
implied he had been convicted of the federal charges. The Attorney General
responds that defendant forfeited his claim regarding the statement because he
failed to object on this ground. Defendant asserts no objection was necessary,
citing language from section 1259: “The appellate court may also review any
instruction given, refused or modified, even though no objection was made thereto
in the lower court, if the substantial rights of the defendant were affected thereby.”
       We agree the claim is forfeited. Defendant‟s counsel not only failed to
raise this concern when the trial court first proposed its statement, counsel
remained silent even when the court itself raised the question of whether it should
have included a specific directive to the jury not to concern itself with the results
of the federal trial. Nor did counsel speak up when, just before Stewart Woodman
testified, the trial court again solicited comments. Moreover, contrary to the
position he takes now, defendant‟s trial counsel did not make a global objection to
any statement regarding the federal trial when he sought a mistrial after Art Taylor
inadvertently referred to his testimony at that trial. The two events were entirely
unrelated, and counsel made no statement at the earlier proceedings, two months
                                          85
before Stewart Woodman testified, that could in any way be construed as an
objection to the court‟s later statement. Nor does section 1259 help defendant.
That section applies to instructions, but the court‟s statement was not an
instruction. (See Black‟s Law Dict. (9th ed. 2009) p. 935 [a jury instruction is “[a]
direction or guideline that a judge gives a jury concerning the law of the case”].)
The court‟s statement did not direct the jury on any legal point, it merely provided
background information about a witness. As such, it was more in the nature of a
stipulation drafted by the court and accepted by counsel.
       Accordingly, defendant has forfeited any objection to the court‟s statement.
Even had he not, we would reject his claim on the merits. Nothing in the
statement suggested the outcome of the federal proceedings with respect to
defendant. Defendant‟s claim that the instruction unmistakably implied to the jury
he was convicted and thus “diminished [their] feelings of responsibility” is wholly
speculative and without support in the record.
       J. Cumulative Prejudice from Guilt Phase Errors
       Defendant contends that the cumulative prejudice arising from guilt phase
errors requires reversal. “Defendant has demonstrated few errors, and we have
found each error or possible error to be harmless when considered separately.
Considering them together, we likewise conclude that their cumulative effect does
not warrant reversal of the judgment.” (People v. Bolden (2002) 29 Cal.4th 515,
567-568.)
II. PENALTY PHASE ISSUES
       A. Limitations on Voir Dire
       Defendant contends the trial court restricted voir dire on the subject of the
Tipton murders, thus denying him an impartial penalty juror. His specific
complaint involves the questioning of a single prospective juror, J.R., who was


                                         86
excused via a peremptory challenge by the prosecutor, but he asserts the restriction
the trial court placed on his voir dire of J.R. regarding the Tipton murders
prevented him from asking any other prospective jurors about the subject of
additional murders and their effect on whether they would vote for death.
       J.R. wrote on his questionnaire that “the death penalty is justified for
certain kinds of murder.” The trial court questioned him about that response,
stating, “I‟m getting the impression from you that if you get [to the penalty phase]
and you have a first-degree, premeditated, coldblooded killing, or two of them,
that you think that that ought to be the death penalty.” J.R. replied, “it would
depend on the person‟s background, like if it is the first time he ever did anything
wrong. Maybe life without possibility of parole would be sufficient.” J.R. then
volunteered, “But if it‟s continuous.” The court asked a clarifying question: “A
series of murders in the past would make a difference to you?” J.R. replied,
“Right.” The court pressed: “So if you heard that this person had not committed
any crimes before, that is something you would take into consideration as a
mitigating factor.” Again, J.R. answered, “Right.”41
       Before he began his questioning of J.R., defendant‟s counsel sought a
sidebar conference and expressed his concern that J.R., who had lived in Las
Vegas during defendant‟s trial for the Tipton murders, may have heard about that
trial. Because the Tipton murders would be introduced by the prosecution during
the penalty phase, defendant‟s counsel asked the court to “follow up on that issue,
also.” The court asked J.R. whether he knew anything about the Tipton murder

41     In this case, pursuant to Hovey v. Superior Court (1980) 28 Cal.3d 1,
prospective jurors were individually questioned outside the presence of other
prospective jurors, first by the trial court and then by the parties, after which the
court entertained challenges for cause.



                                          87
trial or remembered seeing the names of any of the defendants in connection with
that trial. J.R. said he had not.
       When it was his turn to voir dire J.R., defendant‟s counsel gave J.R. a
hypothetical crime that closely tracked the facts of the Woodman murders and
asked J.R. if he could conceive of voting for any punishment other than death.
J.R. replied that he could consider voting for life without the possibility of parole.
Defendant‟s counsel then asked, “If you were to add to that evidence you heard
during the penalty phase, heard evidence about the person and heard evidence that
convinced you that the same person had committed four other—.” The prosecutor
objected that the question called for “[p]rejudging the evidence.” The objection
was sustained. Defendant‟s counsel asked, “You heard evidence in the penalty
phase that convinced you that this person had committed a number—.” This drew
the same objection.
       At the bench, the prosecutor argued that the question defendant‟s counsel
was attempting to ask—about the Tipton murders of which defendant had been
convicted after the Woodman shootings—called for prejudging the evidence.
Defendant‟s counsel replied, “What I‟m trying to do is basically indicate the
scenario where the aggravating circumstances are multiple murder . . . and if he
could consider any other penalty . . . than death in that situation.” The court
responded, “Well, the problem is that when we get to factors in aggravation and
factors in mitigation, if you start listing the ones that are actually going to be
presented in this case, I don‟t see how you can avoid asking a juror to prejudge the
evidence and to tell you in advance how he‟s going to vote on that case.” The trial
court sustained the objection. The court pointed out, however, that based on J.R.‟s
answers to its questions, he had indicated that if a person had committed additional
murders “that would weigh in favor of the death penalty for him and so you just
make your call based on that.”
                                           88
       Accordingly, when voir dire resumed, defendant‟s counsel asked J.R.
whether “the one thing that would weigh on your mind and be a consideration
against imposing the death penalty would be if the person had never previously
committed this type of crime.” J.R. responded, “Right.”
       Later, the court denied both defendant‟s and the prosecutor‟s challenges for
cause to J.R. The prosecutor exercised a peremptory challenge to excuse J.R.
       Defendant argues the trial court‟s voir dire ruling is akin to the one we
deemed reversible error in People v. Cash (2002) 28 Cal.4th 703. “In Cash, the
defendant was convicted of one count each of murder in the course of robbery and
attempted murder. During the penalty phase, the prosecution presented evidence
that the defendant killed his elderly grandparents when he was 17 years old. The
jury returned a verdict of death. (Id. at pp. 714, 717.) On appeal, the defendant
claimed the court erred by refusing to allow defense counsel to ask prospective
jurors whether they would automatically vote for death if the defendant had
previously committed another murder. During jury selection, the court had
imposed a blanket rule restricting voir dire solely to the facts appearing on the face
of the charging document. (Id. at p. 719.) We concluded that the court erred . . .
for two reasons. First, a trial court cannot absolutely bar mention of any fact or
circumstance solely because it is not expressly pleaded in the charging document.
(Id. at p. 722.) Second, and relevant to the evidence in that particular case, a prior
murder was „a general fact or circumstance that . . . could cause some jurors
invariably to vote for the death penalty, regardless of the strength of the mitigating
circumstances . . . .‟ (Id. at p. 721.)” (People v. Solomon (2010) 49 Cal.4th 792,
839-840.)
       Defendant contends that, as in Cash, the trial court erroneously issued a
blanket prohibition against any mention of additional murders. Not so. In this
case defense counsel did not seek to ask globally of all prospective jurors whether
                                          89
the fact defendant had committed the Tipton murders in addition to the Woodman
murders would affect their ability to consider both life without the possibility of
parole and the death penalty. Thus, unlike Cash, “the trial court did not
categorically prohibit inquiry into the effect on prospective jurors of the other
murders,” but “merely cautioned [defendant‟s] counsel not to recite specific
evidence expected to come before the jury in order to induce the juror to commit
to voting in a particular way.” (People v. Coffman and Marlow, supra, 34 Cal.4th
at p. 47.) J.R. himself did not sit on defendant‟s jury, eliminating any prejudice
even were we to assume voir dire was improperly limited as to him. (People v.
Roldan (2005) 35 Cal.4th 646, 692.)
       Nonetheless, defendant asserts that the trial court‟s ruling as to J.R.
prevented him from asking any other juror about the issue of additional murders.
The specific circumstances surrounding the voir dire of J.R. on this point belie this
claim. The question about the Tipton murders came up during J.R.‟s voir dire
because of a combination of circumstances that were particular to him—the fact
that he had lived in Las Vegas during defendant‟s trial for those murders and his
answers to the court‟s questions about the impact that other killings would have on
his ability to consider both penalties.
       Defendant fails to cite another instance where this issue arose in connection
with the questioning of any other prospective jurors, that is, where defendant was
prohibited from addressing the impact of the commission of multiple murders on a
prospective juror‟s ability to consider both penalties. Rather, as the Attorney
General points out, defendant was allowed to explore this general subject with
other prospective jurors who raised concerns about whether they could consider
life without the possibility of parole for serial killers or mass murderers. For
example, defense counsel questioned a juror who had indicated on her
questionnaire that life without the possibility of parole was not appropriate “for
                                          90
serial killers and mass murderers” but might be “for some people who have made
for some reason bad decisions once” in their lives. Counsel asked: “[A]re you
saying that there are certain instances where you would not consider life without
parole in deciding on a punishment for someone?” and whether the prospective
juror was thinking about a particular case. The juror answered that she did not
recall exactly the case that had inspired her answer but remembered it was “some
serial killer who got life in prison and to me I thought that that was, for the
taxpayers, to have to pay them for the rest of his life was wrong.” Another
prospective juror told the court that in the case of “a serial killer who has
committed several crimes” it “would be probably best for all simply to sentence
him to death.” Defense counsel asked him whether his response indicated that
there were situations where he would automatically impose the death penalty. The
prospective juror said, “No, never.” Defense counsel also asked two other jurors a
question expressly prohibited in Cash about whether there were additional
circumstances or facts that the prospective jurors would want to hear about before
they could vote for life.
       These exchanges illustrate that despite the court‟s ruling on Prospective
Juror J.R., who did not serve on the jury, defense counsel was generally able to
investigate whether prospective jurors harbored biases regarding multiple killings
that might lead them to vote automatically for death. There is no reason to
believe—and defendant fails to show anywhere in the record—that had any other
prospective juror registered qualms about sentencing to life a defendant who had
committed murders other than those charged, defendant would not have been
allowed to generally inquire into that subject. His claim that defense counsel was
chilled from introducing the subject himself in a general fashion by the trial
court‟s ruling with respect to J.R. is speculation unsupported by the record.


                                          91
       Accordingly, we reject defendant‟s assertion that reversal is required based
on the trial court‟s ruling with respect to the questioning of Prospective Juror J.R.
       B. Issues Related to Admission of Defendant’s Convictions for the
          Tipton Murders Under Section 190.3, Factor (b)
       As part of its presentation of the Tipton murders, the prosecution was
allowed to introduce documentary evidence of defendant‟s convictions for the
murders. Because the Tipton murders occurred after the Woodman murders, the
record of defendant‟s convictions was admitted under section 190.3, factor (b)
(other violent criminal activity) rather than factor (c) (prior felony conviction.)42
Defendant contends the convictions were inadmissible hearsay for purposes of
proving other violent criminal activity. He also contends the trial court erred by
denying him a hearing to challenge the constitutional validity of the Tipton murder
convictions based on ineffective assistance of Nevada counsel.
           1. Defendant’s convictions as inadmissible hearsay for purposes of
              proving section 190.3, factor (b) and related claims
       Defendant claims the trial court erred when it denied his motion to exclude
evidence of the Nevada convictions for purposes of proving factor (b) of section
190.3 because the convictions were hearsay and also more prejudicial than
probative under Evidence Code section 352. He also claims the trial court
committed instructional error with respect to the evidence of the convictions.
       A prior felony conviction for a violent crime is “admissible under section
190.3, factor (b) as proof of criminal activity by” the defendant. (People v. Hinton


42      Section 190.3, factor (b) permits the trier of fact, in determining the
penalty, to consider “[t]he presence or absence of criminal activity by the
defendant which involved the use or attempted use of force or violence or the
express or implied threat to use force or violence.” Factor (c) permits the trier of
fact to consider “[t]he presence or absence of any prior felony conviction.”



                                          92
(2006) 37 Cal.4th 839, 910; People v. Ochoa (2001) 26 Cal.4th 398, 457 [“We
have observed a prior felony conviction for a violent crime could fulfill both
section 190.3 factors (b) (violent criminal activity) and (c) (prior felony
conviction).”]; People v. Ray (1996) 13 Cal.4th 313, 369 (conc. opn. of George,
C. J.) [“[T]he prosecution may rely upon a prior conviction of a crime involving
the use or threat of force or violence to establish the presence of criminal activity
involving the use or threat of force or violence for purposes of section 190.3,
factor (b).”].) Therefore, the trial court did not err by admitting the Nevada
convictions as evidence in support of factor (b).43
       Defendant also contends the Nevada convictions should have been
excluded as more prejudicial than probative under Evidence Code section 352. He
asserts the convictions had little or no probative value “because the jury had no
conceivable way to determine the appropriate weight that should be attached to the
evidence.” The test for relevance is not how the trier of fact weighs a particular
piece of evidence but whether the evidence has “any tendency in reason to prove
or disprove any disputed fact that is of consequence to the determination of the
action.” (Evid. Code, § 210.) The Nevada convictions were unassailably
probative of defendant‟s participation in the violent criminal activity underlying
the convictions.
       As for prejudice, “[e]vidence is prejudicial within the meaning of Evidence
Code section 352 if it „ “uniquely tends to evoke an emotional bias against a party


43     The principle was first advanced in Chief Justice George‟s concurring
opinion in Ray, in which a majority of the court concurred. (People v. Ray, supra,
13 Cal.4th at p. 369 (conc. opn. of George, C. J.).) Defendant goes on at some
length questioning the validity of the analysis and conclusion of that opinion. We
are unconvinced by his arguments and decline to overrule Ray or its progeny.



                                          93
as an individual” ‟ [citation] or if it would cause the jury to „ “ „prejudg[e]‟ a
person or cause on the basis of extraneous factors” ‟ [citation].” (People v.
Cowan, supra, 50 Cal.4th at p. 475.) The prosecution called numerous witnesses
to prove defendant murdered Bobbie Jean Tipton, her maid Marie Bullock, and
James Myers, a delivery man who had the misfortune of being at the Tipton
residence when defendant arrived. That evidence tended to show the callous and
mercenary nature of the crimes. For example, Timothy Catt testified that
defendant told him, about Bobbie Jean Tipton, “I shot her in the head. I offed her
in the head. I dusted her. Wasted her.” Catt and other witnesses testified that
defendant was motivated by the desire to steal Tipton‟s jewelry. Given the
quantity and type of evidence the jury heard, we are not persuaded that the cold
record of defendant‟s convictions was likely to evoke the unique species of bias
against him that is the concern of Evidence Code section 352 or to lead the jury to
convict him based on extraneous factors.
       Defendant next contends the trial court erred by failing to sua sponte
instruct the jury regarding the weight to be given to the evidence of his
convictions. The trial court was under no sua sponte duty to give a special
instruction telling the jury what weight should be given to a single piece of
evidence. Indeed, such an instruction might have been an improper pinpoint
instruction. “A trial court must instruct on the law applicable to the facts of the
case. [Citation.] In addition, a defendant has a right to an instruction that
pinpoints the theory of the defense. [Citation.] The court must, however, refuse
an argumentative instruction, that is, an instruction „of such a character as to invite
the jury to draw inferences favorable to one of the parties from specified items of
evidence.‟ ” (People v. Mincey (1992) 2 Cal.4th 408, 437.)
       Moreover, the premise of defendant‟s argument—that unless instructed the
jury may have found the convictions dispositive—is entirely speculative. The jury
                                           94
was instructed that, before it could consider the Tipton murders as a factor in
aggravation, it must find beyond a reasonable doubt that defendant committed the
crimes. The prosecution presented a panoply of witnesses on this point, and in the
prosecutor‟s extensive review of the evidence during his closing argument, he
mentioned the Nevada convictions only twice and in passing. Thus, no particular
emphasis was given to this evidence and nothing in the record suggests the jury
gave dispositive or even significant weight to the record of defendant‟s
convictions as opposed to the underlying conduct.
       Finally, defendant contends the trial court erred when it rejected his
proposed instruction that lack of a prior felony conviction was a mitigating factor,
and that defendant had no such convictions. Instead, the trial court modified the
standard instruction, CALJIC No. 8.85, to address the absence of any prior
convictions: “You shall consider, take into account, and be guided by the
following factors, if applicable: [¶] . . . [¶] C. The absence of any prior felony
conviction, other than the crimes for which defendant has been tried in the present
proceedings.” In closing arguments, both the prosecutor and defense counsel
noted that the absence of any prior convictions was a factor in mitigation. The
trial court‟s instruction was correct. It did not err by denying defendant‟s special
instruction. (People v. Hillhouse (2002) 27 Cal.4th 469, 509 [court need not
instruct which of the section 190.3 factors could be aggravating and which only
mitigating: “The aggravating or mitigating nature of the factors is self-evident
within the context of each case.”].)
           2. Denial of defendant’s ineffective assistance of counsel
              challenge to the constitutionality of the Tipton convictions
       Just before the penalty phase trial began, defense counsel requested a
continuance of about a week for a hearing on whether his Nevada counsel
rendered ineffective assistance in the Tipton murders trial. The court denied the

                                         95
request but agreed to consider a written motion based on the Nevada trial
transcripts. After further discussion of the delays this would entail, defense
counsel offered to submit a declaration setting forth the grounds for the ineffective
assistance claims to be filed under seal. He explained: “The reason I am doing it
that way is if the court feels I have not made a prima facie showing, that should be
the end of it. If the court feels, based on a prima facie showing we are entitled to a
hearing that would be an adversarial hearing.” The court agreed: “As a threshold
issue, I will look at it in camera, and if it appears to be something the People need
to address, then—all right.”
       The following day the trial court ruled on the motion to exclude the Nevada
convictions based on defendant‟s claim of ineffective assistance. “I read the
opinion of the Nevada Supreme Court. I read [defense counsel‟s] declaration and
I read some portions of the more detailed factual summary contained in the
appellant‟s opening brief. [¶] I have considered all that and the motion is denied.”
There was no further discussion of the issue at that point.
       During the prosecution‟s case, defense counsel requested permission to call
expert witnesses to testify about Nevada counsel‟s representation of defendant.
The court denied the request based on its earlier finding that defendant had failed
to present a “ threshold basis for questioning the competence of [Nevada]
counsel.”
       The issue surfaced one last time in defendant‟s new trial motion.
Defendant asserted: “The trial court erred when it refused to allow the defense to
present evidence to the jury that the Tipton convictions were obtained in violation
of defendant‟s fundamental constitutional right to due process and effective
assistance of counsel.”
       In denying the new trial motion on this ground, the court stated: “[A]ll the
cases cited by the defendant in support of the court‟s duty to inquire into the
                                         96
constitutional validity of a prior . . . are cases where the defendant‟s prior was
based on a guilty plea, the validity of which raises legal issues for the court.
[¶] Here the validity of the conviction which was suffered following a jury trial
was explored during the penalty phase when all the evidence surrounding the
convictions was offered to the jury. [¶] The conviction admitted had been
affirmed by the Nevada Supreme Court. This court declined an invitation to
revisit the issues that had been resolved by the Nevada Supreme Court and the
defendant‟s motion for a new trial is denied.”
       Defendant asserts he was entitled to an evidentiary hearing on his challenge
to the constitutionality of the Nevada convictions based on a claim of ineffective
assistance of counsel. For this proposition he relies on People v. Coffey (1967) 67
Cal.2d 204, People v. Sumstine (1984) 36 Cal.3d 909, Curl v. Superior Court
(1990) 51 Cal.3d 1292, and People v. Horton (1995) 11 Cal.4th 106. Coffey and
Sumstine “establish the procedures for raising a collateral attack on a prior
conviction by a defendant whose sentence is subject to enhancement because of
the prior conviction.” (Horton, at p. 1129.) In Curl and Horton, we held that
those procedures were applicable in a capital case to challenge the constitutional
validity of a prior murder conviction alleged as a prior-murder special
circumstance. (Curl, at p. 1296; Horton, at pp. 1139-1140.)
       The Attorney General contends that the right to challenge the
constitutionality of a prior conviction does not include a claim of ineffective
assistance of counsel. He relies on Garcia v. Superior Court (1997) 14 Cal.4th
953, a noncapital case in which we so held. We explained: “Compelling a trial
court in a current prosecution to adjudicate this type of challenge to a prior
conviction generally would require the court to review the entirety of the record of
the earlier criminal proceedings, as well as matters outside the record, imposing an


                                          97
intolerable burden upon the orderly administration of the criminal justice system.”
(Garcia, at p. 956.)
       We need not decide whether Garcia applies to capital cases for two
reasons. First, the trial court in this case did entertain defendant‟s ineffective
assistance challenge to the constitutionality of the Nevada convictions, and it
concluded his failure to make out a prima facie case obviated the need for further
hearing. Defense counsel not only acquiesced in this procedure, he suggested it.
The procedure was also consistent with case law: “[W]hen a defendant seeks to
collaterally attack the validity of a prior conviction underlying a prior-murder
special circumstance, he must first allege facts sufficient to justify a hearing on his
motion to strike the special circumstance—i.e., „allege actual denial of his
constitutional rights.‟ (People v. Sumstine, supra, 36 Cal.3d at p. 922.) The court
shall thereupon conduct an evidentiary hearing in the manner set forth in Coffey
and Sumstine.” (Curl v. Superior Court, supra, 51 Cal.3d at p. 1306, italics added;
see People v. Coffey, supra, 67 Cal.2d at p. 215 [“the issue must be raised by
means of allegations which, if true, would render the prior conviction devoid of
constitutional support.”].) Defendant having, in the trial court‟s view, failed to
make this threshold showing, was not entitled to an evidentiary hearing.44

44      Defendant disputes the trial court‟s finding that he failed to make out a
prima facie case of ineffective assistance of counsel. A claim of ineffective
assistances requires the defendant to establish “(1) that counsel‟s representation
fell below an objective standard of reasonableness; and (2) that there is a
reasonable probability that, but for counsel‟s unprofessional errors, a
determination more favorable to defendant would have resulted. [Citations.] If
the defendant makes an insufficient showing on either one of these components,
the ineffective assistance claim fails.” (People v. Rodrigues, supra, 8 Cal.4th at
p. 1126.)
        Defendant‟s ineffective assistance claim asserted that Nevada counsel
failed to call certain witnesses, either through negligence or because Nevada

                                                            (footnote continued on next page)

                                          98
        Second, the validity of the prior convictions in this case involved an
evidentiary issue—whether defendant had engaged in prior violent activity—not
its validity as a sentence enhancement or a special circumstance. Therefore, even
were we to assume the Nevada convictions were admitted in error, the error would
be prejudicial only if it resulted in a “miscarriage of justice.” (Evid. Code, § 353.)
Here, any error was harmless. As we have observed, the documentary evidence of
the convictions was neither the most important nor the most compelling part of the
prosecution‟s section 190.3, factor (b) evidence, as demonstrated, for example, by
the prosecutor‟s brief reference to it. Even had the court excluded that evidence, it
is not reasonably possible defendant would have obtained a more favorable result
at the penalty phase. (People v. Mickey, supra, 54 Cal.3d at p. 703.)
        The issue next arose when defendant sought to present expert testimony
regarding Nevada counsel‟s alleged ineffective assistance. Preliminarily,
defendant fails to present any support for the proposition that, where the


(footnote continued from previous page)

prosecutors failed to provide counsel with information about those witnesses.
Two of those witnesses—Art Taylor and FBI Agent Livingston—assertedly would
have supported defendant‟s alibi defense regarding his whereabouts at the time of
the Tipton murders. As defendant concedes, however, the Nevada jury heard
other testimony on this issue.
       The testimony of two other witnesses—Raymond Jackson and James
Hampton—would have gone to third party culpability. As the prosecutor pointed
out, however, there was already such evidence in the record. A third witness,
Manuel Corriera, would have testified that Michael Dominguez told the witness
that he—Dominguez—and another man, Danielson, and not defendant, committed
the Tipton murders. As defense counsel acknowledged, Nevada counsel was
unaware of Corriera at the time of defendant‟s trial. The trial court concluded that
defendant had not made a prima facie case of ineffective assistance or, if he had,
he had failed to show prejudice. Based on our review of the equivocal,
cumulative, and weak nature of the evidence, we cannot say the trial court erred.



                                          99
constitutionality of a prior conviction is challenged, defendant is entitled to have
the jury determine the challenge. Rather, as he acknowledges, such challenges are
ordinarily determined by the trial court. (Curl v. Superior Court, supra, 51 Cal.3d
at pp. 1301-1302.)
       In any event, defendant was able to put before the jury the issue of whether
he had been fairly convicted in Nevada. The defense called every witness it
asserted had not been called during the Nevada trial, including Raymond Jackson,
James Hampton, Manuel Correira, Art Taylor, and FBI Agent Livingston. In
closing argument, defense counsel pointed out that Nevada counsel had not called
these witnesses. He argued that Nevada counsel‟s omission constituted inadequate
representation, declaring that defendant had been “wrongly convicted” and the
Nevada trial was “a travesty of justice.” Defendant fails to demonstrate he
suffered any prejudice because the trial court declined to allow him to call a
lawyer expert, whose testimony would undoubtedly have been controverted by
prosecution experts, on the issue of ineffective assistance. (Evid. Code, § 354; see
People v. Fudge (1994) 7 Cal.4th 1075, 1103 [“[E]xcluding defense evidence on a
minor or subsidiary point does not impair an accused‟s due process right to present
a defense.”].)
       Finally, defendant contends the trial court erroneously denied his new trial
motion on the ground he had been denied a hearing on the constitutionality of the
Nevada convictions. He argues the trial court improperly relied on the
circumstance that those convictions had been affirmed by the Nevada Supreme
Court, apparently suggesting that the trial court failed to exercise its discretion in
ruling on the motion.
       “On appeal, a trial court‟s ruling on a motion for new trial is reviewed
under a deferential abuse of discretion standard. [Citation.] Its ruling will not be
disturbed unless defendant establishes „a “manifest and unmistakable abuse of
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discretion.” ‟ ” (People v. Hoyos (2007) 41 Cal.4th 872, 917, fn. 27.) While the
trial court did refer to the Nevada Supreme Court‟s affirmance of defendant‟s
convictions for the Tipton murders, the court also noted, “[T]he validity of the
conviction which was suffered following a jury trial was explored during the
penalty phase when all the evidence surrounding the convictions was offered to
the jury.” From this remark, it appears the trial court believed defendant had been
given an opportunity to present the claim he had been unjustly convicted in
Nevada because of the inadequate representation by his lawyers who failed to call
critical witnesses, and a new trial was not justified on this ground. We find no
abuse of discretion.
       C. Instruction on Mitigation Factors
       Defendant contends the trial court‟s instruction regarding mitigating factors
erroneously imposed a burden of proof on the defense. Not so. The trial court
instructed the jury with a modified version of CALJIC No. 8.87. The first five
paragraphs of the instruction referred to evidence of the Tipton murders. The third
paragraph stated: “Before a juror may consider any of such criminal acts as an
aggravating circumstance in this case, a juror must first be satisfied beyond a
reasonable doubt that the defendant did, in fact, commit such criminal acts.” This
was followed by: “A juror may not consider any evidence of any other criminal
acts or activity as an aggravating circumstance. [¶] It is not necessary for all jurors
to agree. If any juror is convinced beyond a reasonable doubt that such criminal
activity occurred, that juror may consider that activity as a factor in aggravation.
If the juror is not so convinced, that juror must not consider the evidence for that
purpose.” The final paragraph applied the principle that unanimity was not
required for circumstances in aggravation to circumstances in mitigation as well:
“Likewise, it is not necessary for all jurors to agree as to the existence of any


                                         101
factor in mitigation. If any juror is convinced that such factor exists, that juror
may consider that factor in mitigation in determining the appropriate punishment.”
(Italics added.)
       Defendant contends the use of the word “convinced” in the latter
instruction could have been understood by the jurors as requiring the defense to
prove the mitigating factor. He asserts further that the juxtaposition of this
paragraph with earlier paragraphs referring to the prosecution‟s burden of proving
beyond a reasonable doubt that defendant committed the Tipton murders could
have led jurors to believe the same standard applied to proof of factors in
mitigation. Defendant had offered a special instruction that would have stated a
mitigating circumstance need not be proved beyond a reasonable doubt; the trial
court rejected it.
       The inclusion of the burden of proof language in the paragraph discussing
the factor in aggravation, juxtaposed against its omission in the paragraph
discussing mitigation factors, clearly implied that the burden of proof applied only
to the former, not the latter. Moreover, it is also clear that the purpose of the last
paragraph, fairly read, was to inform jurors that, just as they need not unanimously
agree on factors in aggravation, they need not unanimously agree on factors in
mitigation. Defendant‟s reading of the instruction is strained, “and no reasonable
juror would so interpret the instruction.” (People v. Wharton (1991) 53 Cal.3d
522, 574.) Finally, defendant was not entitled to his proposed instruction. (People
v. Kraft (2000) 23 Cal.4th 978, 1077.)
       D. Removal of a Juror During Deliberations
       Defendant contends the trial court improperly dismissed a juror during
penalty deliberations after the court determined she was incapable of performing
her duties as a juror in a capital case based on a note she sent to the court.


                                          102
Defendant also argues the replacement of the juror resulted in a coerced penalty
verdict and diminished the jury‟s sense of responsibility for the verdict. Lastly,
defendant contends the trial court erred when it denied his new trial motion based
on the removal of the juror.
       Penalty phase deliberations began on June 2, 1993. On June 4, the jury
foreman sent the court a note indicating the jury was deadlocked. The jurors were
brought into the courtroom where the foreman gave the court the numerical
breakdown of the five ballots that had been taken to that point; from an initial vote
of seven to five, to a final vote of 11 to one. After some further discussion, the
court instructed the jury to resume deliberations.
       Later that day, the trial court received a note from Juror No. 8. The note
stated: “When I was questioned about the Death Penalty at the very beginning of
this trial I stated that I believed that I could vote for the Death Penalty under
special circumstances. I believe that the Death Penalty should be imposed if:
(1) a child is involved [¶] (2) torture of an adult [¶] rape of an adult. [¶] Since
none of these factors were involved I cannot vote for the Death Penalty for Steven
Homick. That is the reason for the deadlock.”
       Concerned that the note was inconsistent with answers the juror had given
during voir dire, the court, over defendant‟s objection, called her into the
courtroom. The court explained to the juror that, having read her note, it wished to
asked her some questions “to get a better understanding of what your position is,”
because her voir dire responses “seem to me, different from what you have written
in this note.”
       The court reminded the juror that, when asked a hypothetical question by
defense counsel containing the circumstances surrounding the Woodman murders,
she had said she could consider both the death penalty and life without the
possibility of parole in such a case. The court read her a question posed by the
                                          103
prosecutor who, after telling the juror there were no children involved in the case,
asked, “[D]o you feel you still could think about the death penalty in a case where
there were no children as victims, but adult victims?” The court read her answer:
“Yes.” The court read the prosecutor‟s followup question and the juror‟s
response: “So in your mind the death penalty would be appropriate even in cases
where children were not involved, is that right? [¶] And you said, oh, yes.”
       The court then read back the juror‟s note and asked whether her voir dire
responses and the note “seem the same to you?” The juror replied: “Yes they
seem the same to me. I have also had 9 months to think about it, too. I think that
had a lot to with it. [¶] When [the prosecutor] asked me about that, I answered
yes, I thought I could, and I did. I thought about it, and I thought, one of the
instructions was that if I didn‟t feel that the crime was bad enough to merit the
death penalty then I could vote for life imprisonment.” The court responded,
“Absolutely.”
       The juror continued, evidently referring to her fellow jurors, “Apparently
they feel that I either did not understand the questions in the beginning—but I told
them I said, they asked me about children, and I said if a child was involved, I
thought the death penalty could be incurred; and if—what I guess I didn‟t say, if
there was—whether torture or rape was involved. I guess I never mentioned that
. . . . [¶] . . . [¶] So I could still find the death penalty, as far as an adult is
concerned . . . if an adult was tortured, if an adult was raped, I could find the death
sentence for that. But—and it‟s not just this factor, Your Honor. There are
several other factors involved.”
       The court said, “You don‟t need to explain. I am not asking you to explain
or justify your position. . . . [¶] My concern was simply this note seemed to say, I
have always said I could only do it in a case, for example with a child, or rape, or
torture. And that seemed different from what you had said at the beginning.” The
                                            104
juror responded, “I don‟t feel that it is.” The court asked her whether, when she
said she could consider the death penalty in response to defense counsel‟s
hypothetical, “that was true?” The juror said, “Yes.” The court continued: “You
could consider it, but you concluded that that‟s not how you want to vote, but
when you said before you could consider, that was a true statement?” The juror
replied, “Yes.”
       At sidebar, defense counsel took the position that “what this juror is saying
is, in this case I don‟t believe the crime is such that I want to impose death.” The
court indicated it was inclined to agree with defense counsel, but recessed for the
weekend without ruling. After the recess, the prosecutor sought the juror‟s
removal, arguing her note established she was substantially impaired from
performing her duties under Wainwright v. Witt (1985) 469 U.S. 412.
       Ultimately, the court agreed with the prosecutor: “My attention continues
to return to the note written by [Juror No. 8]. This note is clear, it‟s specific and
it‟s unambiguous, unlike her answers to the court‟s questions on Friday afternoon.
[¶] I believe the sequence of events is she wrote this note, which clearly reflects
her views, and then she heard her voir dire answers, which I read to her on Friday,
then she attempted to reconcile the [two]. [¶] And my continuing difficulty with
the language of her note is based on the fact that it does appear to expressly state
that she cannot fairly deliberate on the issue of penalty in this case, because she
has a specific agenda. And that agenda, had she expressed it to the court and the
attorneys during the initial voir dire, would have disqualified her from service in
this trial. [¶] The law supports the position of the district attorney that it is
irrelevant that she is saying it now, rather than then. The effect is the same. She is
not qualified to sit as a juror in a capital case.”
       The court continued: “The greatest difficulty imposed by the facts of this
case arises from the court‟s knowledge of the numerical division of this jury‟s
                                           105
vote,” observing, “had I been unaware of the jury‟s numerical division, I would
not have hesitated. I would have simply removed this juror and found she was
impaired under Witt versus Wainwright without hesitation.” On that ground, the
juror was excused. Defendant moved for a mistrial, which the court denied. The
court also denied the defense request to pose two further questions to the juror.45
       After the juror was excused, the court instructed the remaining jurors:
“Juror Number 8 has been removed from the jury by the court, and an alternate
substituted. She was removed because of the contents of the note she wrote to the
court in which she made it clear that she could not follow the court‟s instruction
with respect to considering both possible penalties in this case. [¶] It is important
that you understand that she was not removed from this jury because of her refusal
to vote for the death penalty, but because of her refusal to consider the death
penalty in the type of case under consideration.” After an alternate was seated, the
court further instructed the jury to disregard its previous deliberations and begin
anew. The following day the jury reached a verdict.
       In his new trial motion, defendant argued as one ground for granting the
motion the removal of Juror No. 8, who submitted a declaration in support of the
motion. In her declaration she stated: “In no way was I saying in the note nor in
court that I believed I could only vote for the death penalty in a case involving
rape, torture, or a child,” and provided other reasons she would not have imposed




45     The first question would have asked: “On Friday, you said that if an adult
was tortured or raped you could vote for the death sentence. You said that was
one factor, and there were several other factors involved. What were these several
other factors?” The second would have asked, “Are you saying that the only time
you could vote for death on an adult is if he was tortured or raped?”



                                         106
the death penalty that she would have shared with the court, had she been allowed
to do so. The motion was denied.
       “The trial court may discharge a juror for good cause at any time, including
during deliberations, if the court finds that the juror is unable to perform his or her
duty. (§ 1089.) „When a court is informed of allegations which, if proven true,
would constitute good cause for a juror‟s removal, a hearing is required.
[Citations.]‟ [Citation.] . . . „Grounds for investigation or discharge of a juror
may be established by his statements or conduct, including events which occur
during jury deliberations and are reported by fellow panelists. [Citations.]‟
[Citation.] [¶] „A sitting juror‟s actual bias, which would have supported a
challenge for cause, renders him “unable to perform his duty” and thus subject to
discharge and substitution . . . .‟ [Citation.] Specifically, in the death penalty
context, we have explained that „[a] juror may be disqualified for bias, and thus
discharged, from a capital case if his views on capital punishment “would „prevent
or substantially impair the performance of his duties as a juror in accordance with
his instructions and his oath.‟ ” [Citations.]‟ ” (People v. Lomax (2010) 49
Cal.4th 530, 588-589.)
       While removal of a juror is committed to the discretion of the trial court,
upon review, the juror‟s disqualification must appear on the record as a
demonstrable reality. “The demonstrable reality test entails a more comprehensive
and less deferential review” than substantial evidence review. “It requires a
showing that the court as trier of fact did rely on evidence that, in light of the
entire record, supports its conclusion that bias was established. It is important to
make clear that a reviewing court does not reweigh the evidence under either test.
Under the demonstrable reality standard, however, the reviewing court must be
confident that the trial court‟s conclusion is manifestly supported by evidence on


                                          107
which the court actually relied.” (People v. Barnwell (2007) 41 Cal.4th 1038,
1052-1053.)
        Defendant argues the juror‟s removal was improper because there was no
indication from other jurors that she was unwilling to deliberate. That argument
misapprehends the basis on which the trial court removed the juror, which was not
because she refused to deliberate, but because her views on capital punishment
prevented or substantially impaired her ability to perform her duties. (Wainwright
v. Witt, supra, 469 U.S. at p. 424.) Here, Juror No. 8‟s note explaining the jury‟s
impasse explicitly stated that she could apply the death penalty in only three
circumstances—a child victim or an adult victim who had been raped or tortured.
Since “none of these factors were involved [in this case] I cannot vote for the
Death Penalty for [defendant].” (Italics added.) As the court observed, the note
was “clear . . . specific and . . . unambiguous,” and the views she expressed in it,
had they been revealed during voir dire, “would have disqualified her from service
in this trial.”
        Defendant contends the juror‟s responses in her original voir dire
examination and to the court‟s questioning during the penalty phase “made clear
she could consider death” in the present case. Defendant also points out the trial
court did not find the juror was being untruthful. Fairly considered, however, the
record supports the trial court‟s conclusion that the note reflected the juror‟s actual
views, which she struggled to reconcile with her voir dire responses only after
being confronted with them. The views she expressed in her note were patently
inconsistent with those she gave in response to voir dire. On voir dire she said she
could consider both penalties in a hypothetical case identical to the case before
her, but her note explicitly stated that, because there were no child victims or adult
victims who had been raped or tortured, “I cannot vote for the Death Penalty for
[defendant].” (Italics added.)
                                         108
       Moreover, even while maintaining her earlier voir dire responses were
compatible with her note, the juror‟s responses to the court actually reinforced the
sentiments she had expressed in the note. When she was discussing her
difficulties with her fellow jurors, who apparently felt she had misunderstood the
questions asked of her on voir dire, she said she told them: “. . . I said, they asked
me about children, and I said if a child was involved, I thought the death penalty
could be incurred . . . what I guess I didn‟t say . . . was . . . whether torture or rape
was involved . . . . [¶] . . . [¶] So I could still find the death penalty, as far as an
adult is concerned . . . if an adult was tortured, if an adult was raped, I could find
the death sentence for that.” Her explanation suggests Juror No. 8 told her fellow
jurors that in her recollection of voir dire she had said she could impose the death
penalty only if a child victim was involved. Her further comment implied she had
either failed on voir dire or failed to tell her fellow jurors about the only other two
categories where she could apply the death penalty. This statement is consistent
with the position she took in her note.
       Defendant seizes upon the juror‟s further statement—“But . . . it‟s not just
this factor, Your Honor. There are several other factors involved.” He claims the
court erroneously cut her off before she could discuss those “other factors,” which
would have revealed that her refusal to vote for the death penalty was based on her
evaluation of the evidence presented at the penalty phase. But the juror had
already said she would not vote for death in this case because it did not involve a
child victim or adult victims who had been raped or tortured. That she could have
cited other reasons does not change the fact that her refusal was also categorical.
The court did not err by refusing either to delve into those other reasons or




                                           109
permitting defense counsel to do so when he sought to ask her additional
questions.46
       In this connection, we also reject defendant‟s claim that the trial court
abused its discretion when it denied his new trial motion on the ground the juror
was improperly removed. Defendant claims that the basis of the court‟s ruling
was its erroneous conclusion that the declaration, which detailed Juror No. 8‟s
reasons for not voting for the death penalty, constituted deliberative processes
which the court declined to invade. The crux of the juror‟s declaration, however,
was her attempted disavowal of her note (“In no way was I saying in the note nor
in court that I believed I could only vote for the death penalty in a case involving
rape, torture, or a child”). Implicit in its denial of the motion was the court‟s
rejection of this statement as not credible. We find no abuse of discretion in the
denial of the motion on this ground. (People v. Hoyos, supra, 41 Cal.4th at p. 917,
fn. 27.)
       Next, defendant contends the trial court‟s replacement of Juror No. 8,
knowing the numerical breakdown had been 11 to one in favor of the death
penalty, coerced a death verdict. For this proposition, he cites Brasfield v. United
States (1926) 272 U.S. 448. In Brasfield, the United States Supreme Court held it


46      Defendant asserts the trial court‟s ruling was inconsistent with its finding
that the juror was not lying and that its ultimate ruling contradicted the comments
it had made after questioning the juror three days earlier. This misreads the
record. The fact the juror may have sincerely believed that her note was consistent
with her voir dire answers does not make it so. Further, the trial court in no way
tentatively ruled in defendant‟s favor after questioning the juror; rather, the court
specifically reserved making a ruling until the following Monday. Thus, there is
no inconsistency between the court‟s remarks after questioning the juror and its
ultimate ruling, which it made after conducting its own research, considering the
prosecutor‟s points and authorities, and reflecting further on the matter.


                                         110
was reversible error for a trial court, faced with a deadlocked jury, to inquire into
its numerical division because “in general [the] tendency [of such inquiry] is
coercive.” (Id. at p. 450.)
       As defendant concedes, California does not follow the Brasfield rule.
(People v. Johnson (1992) 3 Cal.4th 1183, 1254 [declining to follow Brasfield and
noting “our many decisions allowing inquiry into a jury‟s numerical split”].)
Nonetheless, defendant contends replacing Juror No. 8 under the circumstances of
this case did have a coercive effect on the jury.
       We reject his claim. As defendant concedes, the foreman volunteered the
jury‟s numerical split without inquiry or prompting by the trial court. Once Juror
No. 8 was dismissed, the trial court specifically instructed the remaining jurors
that her removal was due to her inability to follow the court‟s instruction to
consider both possible penalties and not “because of her refusal to vote for the
death penalty.” The court also instructed the reconstituted jury that it was to
disregard its previous deliberations and begin anew. We must presume the jurors
followed the court‟s instructions. (People v. Johnson, supra, 3 Cal.4th at p. 1254.)
       Finally, defendant contends the trial court‟s removal of Juror No. 8
communicated to the remaining jurors the court‟s belief that the death penalty was
appropriate in this case, thus diminishing the jury‟s sense of responsibility for its
verdict. For this proposition, defendant relies on Caldwell v. Mississippi (1985)
472 U.S. 320.
       In Caldwell, “a plurality of the Supreme Court held „it is constitutionally
impermissible to rest a death sentence on a determination made by a sentencer
who has been led to believe that the responsibility for determining the
appropriateness of the defendant‟s death rests elsewhere.‟ [Citation.]
[¶] Subsequently, however, the Supreme Court has recognized that Caldwell‟s
holding may be narrower . . . . „. . . Thus, “[t]o establish a Caldwell violation, a
                                         111
defendant necessarily must show that the remarks to the jury improperly described
the role assigned to the jury by local law.” ‟ [Citations.]” (People v. Murtishaw
(2011) 51 Cal.4th 574, 592.) “Caldwell error occurs when the jury has been
„affirmatively misled . . . regarding its role in the sentencing process so as to
diminish its sense of responsibility.‟ ” (People v. Osband (1996) 13 Cal.4th 622,
694.)
        Here, the trial court said nothing to the jury that could be interpreted as
communicating its views about the penalty issue so as to lessen the jury‟s sense of
responsibility for the verdict. To the contrary, the trial court‟s instruction to the
reconstituted jury before sending it out to resume deliberations contained the
following admonitions: “I have not intended by anything I have said or done, or
by any ruling I have made, to intimate or suggest to you what you should believe
to be the facts, that I believe or disbelieve any witness, or that you should reach a
particular verdict. [¶] If anything I have said or done seems to so indicate, you
will disregard it and form your own conclusions.” We must presume the jury
heard, understood, and followed this instruction. (People v. Avila, supra, 38
Cal.4th at p. 575.)
        E. Challenges to the Death Penalty Statute Based on Constitutional
           Considerations and International Law
        Defendant advances a number of challenges to the death penalty statute and
its use based on constitutional provisions and international law. We have
repeatedly rejected these claims and do so again.
        We again therefore conclude that:
        (1) “[T]he statute is not unconstitutional because it does not contain a
requirement that the jury be given burden of proof or standard of proof
instructions for finding aggravating and mitigating circumstances in reaching a
penalty determination, other than other crimes evidence, and specifically that all

                                          112
aggravating factors must be proved beyond a reasonable doubt, or that such factors
must outweigh factors in mitigation beyond a reasonable doubt, or that death must
be found to be an appropriate penalty beyond a reasonable doubt [citation] . . . .”
(People v. Panah, supra, 35 Cal.4th at p. 499.) “Nothing in Cunningham v.
California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856], Apprendi v.
New Jersey[ (2000)] 530 U.S. 466, or Ring v. Arizona, supra, 536 U.S. 584,
affects our conclusions in these regards.” (People v. Loker (2008) 44 Cal.4th 691,
755.)
        (2) “The failure of the court‟s instruction to require specific written
findings by the jury with regard to the aggravating factors found and considered in
returning a death sentence did not violate defendant‟s constitutional rights to
meaningful appellate review and equal protection of the law.” (People v. Parson
(2008) 44 Cal.4th 332, 370.)
        (3) “ „California homicide law and the special circumstances listed in
section 190.2 adequately narrow the class of murderers eligible for the death
penalty . . . .‟ [Citation.]” (People v. Riggs, supra, 44 Cal.4th at p. 329.)
        (4) “The absence of intercase proportionality review does not violate the
Eighth and Fourteenth Amendments to the United States Constitution.” (People v.
Whisenhunt (2008) 44 Cal.4th 174, 227.) “We do provide intracase
proportionality review. Defendant does not specifically request such review, but
given the crime . . . , it is inconceivable that it would aid him.” (People v.
Valencia (2008) 43 Cal.4th 268, 310-311, parentheses omitted.)
        (5) The jury was not instructed with section 190.3, factors (d) (the crime
was committed “under the influence of extreme mental or emotional disturbance”)
or (g) (“defendant acted under extreme duress or under the substantial domination
of another person”) and, therefore, defendant has no standing to complain about
the use of the words “extreme” and “substantial” in those factors. In any event,
                                          113
we have previously rejected such challenges. (People v. Hartsch (2010) 49
Cal.4th 472, 516.)
       (6) “[T]he phrase „whether or not‟ in section 190.3, factors (d) through (h)
and (j)” does not allow “the absence of a mitigating factor to be considered as an
aggravating circumstance . . . .” (People v. Page (2008) 44 Cal.4th 1, 61.)
       (7) “Defendant argues that the death penalty in California violates the
California Constitution and the Eighth and Fourteenth Amendments to the United
States Constitution because it is imposed arbitrarily and capriciously depending on
the county in which the case is prosecuted. [¶] We have repeatedly rejected
substantially similar claims, concluding over 20 years ago that „prosecutorial
discretion to select those eligible cases in which the death penalty will actually be
sought does not . . . offend principles of equal protection, due process, or cruel
and/or unusual punishment.‟ [Citations.] [¶] Defendant, however, urges this court
to reexamine our decisions in prior cases in light of the United States Supreme
Court‟s voting rights decision in Bush v. Gore (2000) 531 U.S. 98 [148 L.Ed.2d
388, 121 S.Ct. 525], which, he asserts, requires uniformity among California‟s 58
counties for prosecutorial standards for seeking the death penalty. But as the high
court explained, its consideration of the equal protection challenge to Florida‟s
voting recount process was „limited to the present circumstances, for the problem
of equal protection in election processes generally presents many complexities.‟
(Id. at p. 109, italics added.) That case, therefore, does not warrant our revisiting
our prior holdings on the instant issue. [Citation.]” (People v. Vines (2011) 51
Cal.4th 830, 889-890.)
       (8) Defendant contends the delay in processing his appeal violates the
Eighth and Fourteenth Amendments to the United States Constitution. Not so.
“One under judgment of death does not suffer cruel and unusual punishment by
the inherent delays in resolving his appeal. If the appeal results in reversal of the
                                         114
death judgment, he has suffered no conceivable prejudice, while, if the judgment
is affirmed, the delay has prolonged his life.” (People v. San Nicolas (2004) 34
Cal.4th 614, 677; see People v. Panah, supra, 35 Cal.4th at p. 500.)
         (9) “The sentencing guidelines set forth in section 190.3 sufficiently
narrow the class of homicide offenders who are eligible for the death penalty.
[Citations.]” (People v. Williams (2008) 43 Cal.4th 584, 648.)
         (10) The death penalty statute is not deficient because it does not require
that the jury be instructed on the presumption of life, nor was there any error
because the jury was not so instructed. (People v. Young (2005) 34 Cal.4th 1149,
1233.)
         (11) “We similarly reject defendant‟s claims that the state and federal
Constitutions are violated by the alleged influence of political pressure on this
court in determining capital appeals. There is no basis for this claim and we have
previously rejected it.” (People v. Samuels (2005) 36 Cal.4th 96, 138.)
         (12) Defendant contends that violations of his constitutional rights also
violate international law. However, as the predicate for his claim—that his
constitutional rights were violated—is erroneous, so too, then, is the conclusion he
draws regarding international law. To the extent he challenges the death penalty
itself as violative of international norms, we again reject this claim as we have
done repeatedly and consistently in other cases. (People v. Hartsch, supra, 49
Cal.4th at p. 516; People v. Panah, supra, 35 Cal.4th at pp. 500-501.)
         (13) Since we have rejected these individual challenges raised above, there
is no cumulative effect of deficiencies in the statute or its operation that requires
our further review.




                                          115
       F. Cumulative Impact of Guilt and Penalty Phase Error
       Defendant contends that any guilt phase errors must be assessed in terms of
their prejudicial effect at the penalty phase and any penalty phase errors must be
deemed substantial. We have found either no error or, assuming error, no
prejudice, either individually or in the aggregate for purposes of the guilt phase.
We conclude further that neither individually nor in the aggregate were they
prejudicial to defendant at the penalty phase.
                                    DISPOSITION
       The judgment is affirmed.
                                                  WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
LIU, J.




                                         116
                   DISSENTING OPINION BY KENNARD, J.

       Following a bizarre plot hatched in Las Vegas, Nevada, defendant and five
others (two of them sons of the victims) carried out the September 1985 murders
of Vera and Gerald Woodman in Los Angeles, California. In a federal prosecution
against defendant based on these killings, a jury in January 1991 convicted him of
murder for hire, for which he was sentenced to life imprisonment.1 Thereafter, in
October 1991, defendant unsuccessfully requested the Los Angeles County
Superior Court to dismiss the murder charges then pending against him in this
case. Defendant asserted that California Penal Code section 656‟s prohibition
against double jeopardy precluded the California prosecution because it was
founded upon the same act (the Woodman murders) that was the basis of his
earlier conviction in federal court. (Further undesignated statutory references are
to the Penal Code.)
       The majority upholds the trial court‟s rejection of defendant‟s claim, and it
affirms defendant‟s capital murder convictions. I disagree and would reverse the
trial court‟s judgment.
       In the section that follows, I briefly discuss the double jeopardy clause of
the Fifth Amendment to the United States Constitution and then California‟s
statutory double jeopardy provision, which affords greater protection than that

1      The federal law‟s murder-for-hire statute under which defendant was convicted
imposes life imprisonment when a defendant “travels . . . in interstate . . . commerce . . .
with intent that a murder be committed in violation of the laws of any State . . . as
consideration for the receipt of . . . anything of pecuniary value . . . and if death results.”
(18 U.S.C. former § 1952A.)


                                               1
contained in the Fifth Amendment. Thereafter, in part II, I apply the California
statute to this case.
                                           I
         The federal Constitution‟s Fifth Amendment, adopted in 1791, prohibits
placing a criminal defendant “twice . . . in jeopardy” for the same crime. (U.S.
Const., 5th Amend.) This clause “ „ “protects against a second prosecution for the
same offense after acquittal” ‟ ” as well as “ „ “after conviction.” ‟ ” (Ohio v.
Johnson (1984) 467 U.S. 493, 498.) As the high court has explained, the bar
against double jeopardy seeks to ensure that the government “does not make
repeated attempts to convict an individual, thereby exposing him to continued
embarrassment, anxiety, and expense, while increasing the risk of,” among other
things, “an impermissibly enhanced sentence.” (Id. at pp. 498-499.) But federal
law does not preclude successive prosecutions for the same criminal conduct when
brought by this nation‟s separate sovereigns, namely, the United States
government and a state‟s government. (Abbate v. United States (1959) 359 U.S.
187, 194-195; Bartkus v. Illinois (1959) 359 U.S. 121, 136; see Department of
Revenue of Montana v. Kurth Ranch (1994) 511 U.S. 767, 782, fn. 22 [the federal
Constitution “does not prohibit successive prosecutions by different sovereigns”].)
Any state is free, however, to craft its own law expanding double jeopardy
protections beyond those afforded by the federal Constitution. (People v.
Comingore (1977) 20 Cal.3d 142, 145 (Comingore); People v. Belcher (1974) 11
Cal.3d 91, 97 (Belcher).) California did so in 1872 by a legislative enactment that
precludes successive prosecutions by different sovereigns, and that is still the law
today.
         The California statute at issue, section 656, provides: “Whenever on the
trial of an accused person it appears that upon a criminal prosecution under the
laws of the United States, [or] another state . . . based upon an act or omission in
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respect to which he is on trial, he has been acquitted or convicted, it is a sufficient
defense.” On point here are two decisions by this court.
       In Belcher, this court held in 1974 that after a federal court acquittal for
assaulting a federal officer in California, the State of California‟s prosecution of
the defendant for the same assault on the same person violated section 656‟s
double jeopardy prohibition. (Belcher, supra, 11 Cal.3d at p. 99.) And three years
later, in Comingore, this court held that a “joyriding” conviction in the State of
Oregon based on the defendant‟s unlawful taking of a car in California and driving
it to Oregon barred California from thereafter charging the defendant with theft
and unlawful driving of a vehicle, as that was the same criminal conduct involved
in the Oregon prosecution. (Comingore, supra, 20 Cal.3d at pp. 144, 148-149.)
       As construed by this court, the essence of California‟s statutory double
jeopardy prohibition is this: A California prosecution is barred if “all the acts
constituting the offense in this state were necessary to prove the offense in the
prior [federal or out-of-state] prosecution” (Belcher, supra, 11 Cal.3d at p. 99); but
if the California crime “involves an element not present in the prior prosecution,”
a California prosecution is not barred (ibid.).
       With this statutory background in mind, I now turn to this case.
                                           II
       Defendant‟s murder-for-hire conviction in federal court for the killings of
Vera and Gerald Woodman came after a federal indictment alleging that he had
“travel[ed] in interstate commerce” between Nevada and California, with the
intent to commit murder “in violation of the Penal Code of California” for “the
receipt . . . of money” and “result[ing]” in “the deaths of Vera and Gerald
Woodman.” After that federal conviction, the Los Angeles County District
Attorney prosecuted defendant for the same two murders. Defendant contends, as
he did in the trial court, that because he had already been convicted in federal
                                                3
court for killing the Woodmans, the California prosecution violated section 656‟s
double jeopardy prohibition. I agree.
       The majority, however, rejects defendant‟s claim, because, unlike the
preceding murder-for-hire federal prosecution, the California murder charges
against defendant included a lying-in-wait special-circumstance allegation
(§ 190.2, subd. (a)(15)). (Maj. opn., ante, at p. 27.) The majority is wrong: The
California prosecution‟s allegation of a lying-in-wait special circumstance as to
each of the murder counts did not somehow transform each murder count into
some different crime with an element not at issue in the earlier federal proceeding
so as to allow the California prosecution to avoid application of section 656‟s
prohibition against putting a criminal defendant twice in jeopardy. My reasoning
follows.
       In California, a conviction for first degree murder is generally punishable
by “imprisonment in the state prison for a term of 25 years to life.” (§ 190.) Only
if at least one special circumstance allegation is found to be true may a punishment
of either death or life in prison without the possibility of parole be imposed.
(§ 190.2, subd. (a).) The special circumstance statute simply “ „sets forth an
alternate penalty‟ ” for the underlying murder. (People v. Jones (2009) 47 Cal.4th
566, 576; People v. Jefferson (1999) 21 Cal.4th 86, 101.) Rather than being “a
complete offense in itself” or a “greater degree” of the murder charge, a special
circumstance allegation is nothing more than an “appendage” to that charge.
(People v. Anderson (2009) 47 Cal.4th 92, 115; People v. Bright (1996) 12 Cal.4th
652, 661.)
       This court‟s decisional law that the special circumstance statute is a penalty
provision (People v. Anderson, supra, 47 Cal.4th at pp. 119-120) reflects the
California statutory requirement that when a murder prosecution includes a special
circumstance allegation, “[t]he question of the defendant‟s guilt shall be first
                                              4
determined” (§ 190.1, subd. (a)); only after a conviction of murder is the truth of
the special circumstance allegation to be determined (ibid.; People v. Bacigalupo
(1993) 6 Cal.4th 457, 467). Here, when the question of defendant‟s guilt of the
murders of Vera and Gerald Woodman was put before the jury in the California
proceeding, defendant had already been found guilty in federal court of
committing those same murders. Prosecuting defendant twice — first in federal
court, then in a California court — for those very same killings, violated
California‟s statutory prohibition against twice putting a defendant in jeopardy for
the same criminal conduct. (§ 656.) Therefore, the trial court should have granted
defendant‟s motion to dismiss the murder charges against him, and I would
reverse that court‟s judgment.


                                                 KENNARD, 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. Homick
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S044592
Date Filed: December 3, 2012
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Florence-Marie Cooper

__________________________________________________________________________________

Counsel:

Mark E. Cutler, 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, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Victoria B. Wilson, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark E. Cutler
Post Office box 172
Cool, CA 95614-0172
(530) 885-7718

Victoria B. Wilson
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2357
