        IN THE SUPREME COURT OF
               CALIFORNIA

                       THE PEOPLE,
                  Plaintiff and Respondent,
                              v.
                  LEE SAMUEL CAPERS,
                  Defendant and Appellant.

                          S146939

           San Bernardino County Superior Court
                        FBA06284



                       August 8, 2019

Justice Chin authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Cuéllar, Kruger, and Groban concurred.
                      PEOPLE v. CAPERS
                            S146939


                Opinion of the Court by Chin, J.



      A San Bernardino County jury found defendant Lee
Samuel Capers guilty of the first degree murders of Nathaniel
Young and Consuelo Patrida Young. (Pen. Code, § 187, subd.
(a).)1 As relevant here, the jury found true multiple murder,
robbery-murder, and burglary-murder special circumstances.
(§§ 190.2, subds. (a)(3), (a)(17), & (a)(17)(G).) The jury found
defendant guilty of two counts of second degree robbery (§ 211),
arson of property (§ 451, subd. (d)), and felon in possession of a
dagger in a penal institution (§ 4502, subd. (a)). The jury found
defendant personally used a deadly weapon—a handgun—
within the meaning of section 12022.53, subd. (b). The jury
separately tried and found defendant’s five prior section 211
robbery convictions to be true.

      After a penalty trial, the jury returned a verdict of death.2
The court denied the automatic motion to modify the verdict and
imposed a judgment of death. (§ 190.4, subd. (e).) This appeal

1
     All statutory references are to the Penal Code unless
otherwise stated.
2
     As to the noncapital count of being a felon in possession of
a dagger, defendant was sentenced to 25 years to life. The court
stayed the sentences on the remaining noncapital counts.


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                    Opinion of the Court by Chin, J.



is automatic. (§ 1239, subd. (b).) We affirm the judgment in its
entirety.

                           I. The Facts
      A. Guilt Phase
            1. Overview
      The evidence showed that on Monday, November 9, 1998,
defendant and three accomplices entered the Barstow T-shirt
shop owned by married couple Nathaniel and Consuelo Young,
robbed the store, shot and killed Nathaniel, and raped and beat
Consuelo before killing her. They then set fire to both victims’
bodies.

      Defendant cross-examined prosecution witnesses, but
presented no evidence of his own.
            2. Prosecution Evidence
      Nathaniel and Consuelo, who had been married for seven
years, opened a T-shirt store in Barstow called “T’s Galore ’N
More” in 1998. Consuelo typically managed the store because
Nathaniel worked on the Marine Logistics Base nearby.

      Ramon Tirado lived behind the T-shirt shop and had
known defendant and defendant’s half-brother Anthony
Leatham for years. Leatham and two other individuals
inquired about the Barstow T-shirt shop that the Youngs
owned. He asked Tirado to join them in robbing the store.
Tirado declined.




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     On Monday November 9, 1998, Nathaniel did not arrive
for his scheduled shift at the base; he had never missed work
without first calling.    After he missed work the next day,
Margaret Carter, the base’s comptroller, became concerned. She
called his home and left a message on his answering machine.
She then asked a superior what to do about her concern. He told
her to call the Barstow Police Department and request a welfare
check, which she did.

     At the same time Margaret called the Barstow police, two
of Nathaniel’s colleagues at the base, Loretta Becknall and
Nancy Derryberry, went to the T-shirt store to check on him.
They could not see inside the store because soot covered the
windows. The colleagues notified Margaret that there might
have been a fire at the store. Margaret again called Barstow
police and also spoke to Bonnie Hulse, an investigative assistant
for the Criminal Investigation Division of the Marine Corps.
Margaret was told to call the Provost Marshal, who had
jurisdiction over the military base. The Provost Marshal’s Office
notified the Barstow Fire Department.

     On    Tuesday,      November      10,   1998,    Barstow   Fire
Department personnel inspected the victims’ T-shirt store for
signs of a fire. Salvatore Carrao, the Barstow Fire Department
Division Chief, and Fire Engineer Steve Ross noticed heavy
black soot on the inside of the store windows. They checked the
front door, but it did not open. They checked the back door,



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which was unlocked, and Carrao opened it to look inside. He
immediately saw two corpses and concluded there had been a
fire inside. He closed the door, called law enforcement, and
secured the store.

      Law enforcement soon arrived. Barstow Police Sergeant
Andrew Espinoza and criminalist Randy Beasley entered the
building. There they found five .45-caliber bullets and only one
bullet casing. They also found a trash can that contained blood,
water, and a bloody mop. Taken together, Beasley believed
these items strongly suggested that someone had attempted to
clean up a crime scene. Beasley found a pair of women’s panties
in a toilet that had been cut straight across, from one leg hole to
the other. Beasley also found a wallet and a purse next to each
other. The wallet, which belonged to Nathaniel, contained no
money or credit cards. Consuelo’s purse also contained a wallet,
which, like Nathaniel’s held no money.             One of the bodies,
tentatively identified as Nathaniel’s, was stained with blood,
and duct tape had been wrapped around its throat and neck.
The body was partially burned.

      Fire inspection specialist Rita Gay was also on the scene.
She believed the fire to have been a “slow burn” that did not
immediately flame up but smoldered for a long time.              Gay
observed soot on the furnishings and floor. She saw the two
victims on the floor. The male victim lay prone and had golf
clubs laying across his back.           The female victim was more



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severely burned, such that the left side of her body had been
largely consumed by fire. Gay detected the odor of gasoline in
close proximity to the bodies. Gay did not examine either victim,
but concluded that each had been separately set on fire.

      Law enforcement personnel identified the second body as
likely belonging to Consuelo.         Her body had been largely
consumed by the fire; much of her remains consisted of ashes
and bones. They also discovered a large amount of blood and
two metal golf clubs covered in blood. They noticed human hair
on the golf clubs and deemed it to have come from Consuelo’s
head because she had wavy hair while Nathaniel’s was more
tightly curled.    Catherine Wojcik, a sheriff’s department
criminalist, later compared the hairs found at the crime scene
with the hair of both victims. Wojcik determined that the two
hairs found on the golf club were similar to samples of
Consuelo’s hair, though she could not say definitively that they
came from Consuelo. She determined Nathaniel was not the
source of the two hairs.

      Arson investigators later concluded the perpetrators had
started two fires, each originating on the body of the two victims.
A thick greasy substance was observed on the floor adjacent to
the bodies; investigators concluded it might have been the
victims’ melted body fat.




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     Charlene Garcia, Nathaniel’s daughter, cleaned out the T-
shirt store. She informed the police that Nathaniel’s gun was
the only item she found missing.

     Forensic pathologist and deputy medical examiner Dr.
Steven Trenkle performed autopsies on both bodies. He testified
that Nathaniel had been shot at least four times, and that his
body contained eight entrance and exit wounds and had been
moderately charred by fire. One bullet had cut through the
brain stem and lodged in the base of the skull, and another went
through the neck and severed the first cervical vertebrae
underneath the skull. None of the injuries were consistent with
having been struck with a metal golf club.           Dr. Trenkle
concluded Nathaniel died as a result of multiple gunshot
wounds to the head, neck, and chest.

     Dr. Trenkle explained that Consuelo had suffered
extensive blunt force trauma and that her body had been
significantly burned. As noted, much of her body had been
consumed in the fire. The blunt force trauma had shattered the
skull and facial bones. Dr. Trenkle concluded Consuelo died as
a result of multiple blunt force head injuries. He could not be
certain whether Consuelo was alive when her body was burned.

     On November 15, 1998, Barstow Police Officer John
Cordero notified Barstow Police Detective Leo Griego that
defendant wished to speak with Griego about the T-shirt store
murders.   Griego spoke with defendant, first at defendant’s


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                    Opinion of the Court by Chin, J.



residence and later at the Barstow Police Department.
Defendant denied involvement in the murders, but said he knew
two of the people involved.

     Lisa Martin became acquainted with defendant a month
after the murders. She let defendant stay at her home. During
his stay, defendant mentioned four or five times how he killed a
man and woman in Barstow.              Defendant described how he
personally shot the man, poured gasoline on both victims, and
lit them on fire.   He told Lisa that the woman begged and
screamed for her life and that he thought it was funny. He also
told her that he committed the crimes with his younger half-
brother, Antonio Leatham (whom he called “Eagle”).           Lisa
testified that defendant kept the lighter he used to set the
victims on fire and showed no remorse for killing them.
Leatham also came to Lisa’s house at one point and defendant
mentioned the murders in front of him. Blake Martin-Ramirez,
Lisa’s 14-year-old son, testified that he heard defendant
describe his role in killing the victims and taking their sports
car. About a week after defendant told Lisa about the murders,
she called defendant’s mother and told her to move him out of
the apartment.

     Griego’s investigation focused on defendant and Leatham
as suspects. In January 1999, Griego questioned defendant,
who was incarcerated at Chino State Prison. Defendant again
denied involvement in the crimes.



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                  Opinion of the Court by Chin, J.



     In December 1999, Griego collected defendant’s biological
samples so they could be compared to DNA samples obtained
from evidence collected at the crime scene.           All the DNA
collected at the crime scene was matched to either Consuelo or
Nathaniel.

     Although defendant had denied involvement in the crimes
and only talked about who he thought might have committed
the T-shirt store murders, his version of events surrounding the
murders changed when he met with detectives Steve Shumway
and Ronald Sanfilipo on January 5, 2001.             The interview,
conducted at the Riverside Police Department, came about
because defendant’s cellmate in Riverside County Jail told
authorities that defendant had discussed a Barstow double-
murder where the victims had been burned. Griego watched on
a video monitor in an adjoining room. After being read and
waiving his Miranda3 rights, defendant explained he had asked
to speak to them about the murders because it was “something
that ha[d] been weighing [him] down.”4

     After a half-hour’s conversation, Griego entered the
interview room.   Defendant again was read and waived his
Miranda rights, and he and Griego discussed the crimes for 45

3
      Miranda v. Arizona (1966) 184 U.S. 436 (Miranda).
4
      These interviews, in redacted form, were played for the
jury during trial and entered into evidence as exhibits. (Exh.
78A-83A.) The jury was also provided with transcripts of the
redacted recordings. (Exh. 78B-83B.)


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                   Opinion of the Court by Chin, J.



minutes to an hour. Defendant was then transported to the
Barstow Police Department where detectives Griego and Keith
Libby conducted an interview.             During that interview,
defendant, who was 24 years old (and nicknamed “Oso”) at the
time of the murders, explained that he committed the crimes
with 15-year-old Carlos Loomis (whom he called “Bam-Bam”),
22-year-old Ruben Romero (whom he called “Wino”), and
“another guy ” (whom he sometimes called “the other juvenile”
or “a 14-year-old kid.”    Defendant consistently asserted the
fourth perpetrator was not his half-brother Leatham.5 He said
Loomis and Romero offered him “an ounce of dope and money if
he agreed to act as a lookout” during a robbery. Defendant said
he agreed to be a lookout because “he was real bad on dope.”
Defendant maintained that Romero was in charge, and while
they were all waiting around before the robbery, defendant went
to Barstow Liquor and purchased a 40-ounce beer, half of which
he drank immediately. Once the robbery commenced, Loomis


5
      Apparently, the police knew that Loomis brought a stolen
vehicle to the area, and that Romero had committed a robbery
at the Downtown Motel, directly across from the Young’s store.
Detectives Griego and Espinoza contacted Loomis on February
6, 2001, at the former California Youth Authority facility in Paso
Robles, California, and Romero on February 9, 2001, at
Ironwood State Prison in Blythe, California. Loomis told Griego
that he knew nothing about the Young murders. Griego found
two rolls of duct tape at Loomis’s house, but the tape did not
match the duct tape found at the T-shirt store. Neither Loomis
nor Romero nor Leatham was charged with the Young robbery
and murders.


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                   Opinion of the Court by Chin, J.



and Romero verbally and physically abused the victims and
“took the couple out of [defendant’s] line of sight.” About 10 or
15 minutes later, defendant heard gunshots.           Loomis and
Romero jumped into a blue or white Camaro and told defendant
that they were headed to a Motel 6. Defendant then went back
to his mother’s house.

      Detective Libby then told defendant that telling only “a
little bit of the truth” would not be good for him, and that it
would be best if he told the “whole truth.” Libby also said that
if defendant wanted him to believe that Leatham was not
involved in the murders, he would have to convince him that
he was telling them the “complete truth.” Defendant then
admitted that he entered the store and forced Consuelo and
Nathaniel through the store’s back door. Defendant claimed
that Loomis hit Consuelo with a stick-like object several times.
During the beating, Consuelo was pleading: “Stop please.
Don’t hurt us. Don’t hurt us.” According to defendant, Romero
shot Consuelo before Loomis raped her while she was barely
moving and forced Nathaniel to watch. Defendant said that
during the rape, Consuelo had screamed “for a little while.”
During this same interview, defendant said that he beat
Nathaniel a number of times after Nathaniel yelled and
screamed to protect his wife.

      Defendant also said that Romero then shot a .45-caliber
firearm with a taped-up handle an unspecified number of times,



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                   Opinion of the Court by Chin, J.



but defendant did not say whom he shot, or how he came into
possession of the gun. He said, “I know my guns . . . I’ve been
messing with guns for a long time, [so I] knew the caliber . . .
right off the top.” Defendant also said, “I didn’t pull the trigger;
I didn’t rape nobody; I didn’t set nobody on fire.” After the rape,
beating, and shooting, defendant said either Romero or Loomis
used gasoline and a lighter to set the bodies on fire. When
asked, defendant said he could not recall anyone cleaning up the
crime scene. He also said that someone, probably Loomis, had
gathered up the .45-caliber shell casings.

      After completing the robbery and murders, defendant said
he and the other perpetrators stole a Camaro parked at the store
and drove it to a nearby Motel 6, where they went their separate
ways. At the end of the interview, defendant agreed to walk the
detectives through the crime scene.

      The next day, officers taped defendant’s reenactment of
the crimes at the T-shirt store. Defendant reiterated what he
told officers during the interviews the day before and again
admitted to beating Nathaniel.          At the conclusion of the
reenactment, defendant said, “I’m just as guilty as the man who
pulled the trigger and the man who started the fire.” Defendant
said he felt bad for the victims, that “it wasn’t supposed to
happen that way to them, you know, but that still isn’t going to
change the fact that I was actually involved here and it’s not
going to change the fact, yes, I’m expecting a conviction out of



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                   Opinion of the Court by Chin, J.



this and whatever I receive, I deserve, that’s it. That’s all I got
to say.” Two weeks later, Griego contacted Leatham to speak
with him about the murders before transporting Leatham to the
Riverside Police Department so that he could speak with
defendant before his arraignment on an unrelated offense.

      During a subsequent interview on January 25, 2001,
defendant took full responsibility for the crimes. Defendant
assured detectives that he was now confessing because he
wanted to come clean. He admitted that the crimes happened
quickly and that he fired the fatal shots. He subsequently
disposed of the murder weapon and the shell casings near
some railroad tracks. However, he said Loomis poured the
gasoline on the victims, and Romero lit them on fire. He also
claimed Leatham stayed outside during the murders and did
not do anything. He then stated: “But just so you know, get
my little brother involved with this, you know, putting him in
custody, you know, I mean, where does [Loomis] and [Romero]
fall into this? You know what I mean. It seems like this is just
a conspiracy against me and him. Me and my brother you
know?” After defendant was asked why he wanted to “take the
rap” for everyone, defendant replied, “Just charge me with
everything, you know what I mean?” He could not remember
who he shot, but he did remember that he shot three rounds.
He did not want to tell detectives where he got the gun, fearing
that his “whole family would be in jeopardy and everything you
know what I mean?”

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                   Opinion of the Court by Chin, J.



        Detectives Griego and Espinoza interviewed defendant
one last time at North Kern State Prison on April 16, 2002.
Defendant said he met with the group to plan the robbery.
During the robbery, defendant took $100 in cash and the keys to
the Camaro from Nathaniel’s pocket. He also stole Consuelo’s
wedding ring, trading it for “dope.” Since Nathaniel continued
yelling during the robbery, the group bound him with duct tape.
Defendant then poured gasoline on the victims to scare them
into giving him their money. Defendant changed his story to say
that Romero then shot the victims, but defendant used a lighter
to set them on fire. He said he dropped a match on them but it
“didn’t ignite.” When asked who started the fire, defendant said,
“somebody else could have . . . hit them with a match or
something, I don’t know. I do remember that when I dropped
that match it did not go up.”         He said he did not want to
implicate anyone else because he “can’t really identify the
individuals with me.” He also said he did not feel bad for the
victims and their families because he was “gonna have to do
prison time.”

        Detective Dennis Florence testified that a shoot-out
involving a man named Jerry Corhn occurred in March 2002.
Corhn fired on officers as they pursued him following an
attempted narcotics transaction at a restaurant in Barstow.
Corhn ultimately died from a self-inflicted gunshot wound to the
head.    Ballistics testing showed that the .45-caliber firearm
recovered from Corhn’s vehicle matched bullet casings recovered

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                   Opinion of the Court by Chin, J.



from the T-shirt store murders. When Griego showed defendant
a photo lineup that included a picture of Corhn, defendant
pointed to Corhn’s picture and said he knew him because Corhn
had purchased a firearm from him when he was staying in
Barstow.
           3. Defense Evidence
      Defendant did not testify at trial, nor did he present any
evidence. He did attempt to call one witness, Amber Renteria-
Kelsey, but she successfully invoked her Fifth Amendment right
against self-incrimination, and the court excused her.
      B. Penalty Phase

      Lisa Martin and her mother, Penny Bartis, testified that
on January 4, 2000, a month after he moved out of Martin’s
home, defendant returned with two other men and committed a
home invasion robbery. Defendant knocked on the door. When
Bartis answered, defendant burst into the house.         His two
accomplices followed and took the victims to a back bedroom.
Defendant was armed and threatened to kill Martin and her
family. He then stole money and personal property. Martin
testified that the robbery lasted several hours, and defendant
and his accomplices stole $6,000 cash as well as jewelry,
expensive vases, a safe, and important papers.            Martin
explained that after the robbery defendant called her and told
her that her son, who was also present during the robbery, was
being watched. She subsequently took her son out of school.
Bartis testified that after the robbery, she received four or five

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                   Opinion of the Court by Chin, J.



phone calls from defendant asking for Martin. Martin fled to
Colorado, leaving her son with Bartis.

     Misty Sedillo testified that in 1993, when she was 16 years
old, she rode with defendant in a car. Defendant and his friends
wanted to shoot at a house, but Misty asked them not to because
her brother was playing in the front yard. Later during the ride,
defendant pointed a gun at Misty’s head.

     In September 2002, a deputy sheriff found a homemade
shank in defendant’s jail cell. Defendant said he feared for his
life and that he would not hesitate to use the shank and would
make another.     He also admitted that for two months he
smuggled the shank into court because he planned to stab one
of the witnesses who was testifying against him.          Another
deputy sheriff found a letter defendant tried to mail to elected
District Attorney Michael Ramos.          In the letter, defendant
advised the prosecution to give him the death penalty or else
there will be “a lot of blood” on the “County’s hands.” The
prosecution also presented evidence of defendant’s 1994 felony
conviction for receiving stolen property.

     Charlene Garcia, Nathanial’s daughter and Consuelo’s
stepdaughter, testified that her parents’ murder had a
significant negative impact on her and her family.

     Defendant presented the testimony of Albert Capers, his
biological grandfather. Capers stated that he and his wife
adopted and raised defendant, whom they loved.


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                    Opinion of the Court by Chin, J.


                        II. DISCUSSION
     A. Issues Regarding Guilt
           1. Alleged Lack of Independent Evidence
     Defendant initially contends that his statements to law
enforcement about his involvement in the T-shirt store crimes
were so inconsistent and contradictory that they could not serve
as corroboration of one another. He does not challenge the
admission of his statements on Miranda grounds. However, he
contends that because there was no physical evidence or
eyewitness testimony to corroborate the trustworthiness of any
one of his various confessions, his conviction must be reversed.
Defendant relies on the federal common law corroboration rule
intended to prevent errors in convictions based on a witnesses’
untrue statement alone. (Opper v. United States (1954) 348 U.S.
84, 93.)    If applied here, the rule means that defendant’s
admissions or confessions may not serve as the basis for his
conviction absent “substantial independent evidence which
would tend to establish the trustworthiness of the [admissions
or confessions].” (Ibid.) However, as part of the federal common
law, we are not bound to follow the federal corroboration rule.

     Some state courts follow the federal corroboration rule
(see, e.g., Armstrong v. State (Alaska 1972) 502 P.2d 440, 447),
but California does not. We instead apply the corpus delicti rule,
which originally required independent proof of an actual crime
before extrajudicial admissions could be admitted as evidence.
(See People v. Alvarez (2002) 27 Cal.4th 1161, 1169-1170


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(Alvarez).) The rule derives from California common law. (Id.
at p. 1173.)

      In 1982, Proposition 8 abrogated much of the corpus delicti
requirement when it added the Right to Truth-in-Evidence
provision to article I of the California Constitution. (Cal. Const.,
art. I, § 28, subd. (d), added by initiative, Primary Elec. (Jun. 8,
1982), commonly known as Prop. 8 (section 28(d).)6 As Alvarez
observed, with certain exceptions, Proposition 8 abolished “all
state law restrictions on the admissibility of relevant evidence,
necessarily including the prong of the corpus delicti rule that
bars introduction of an accused’s out-or-court statements absent
independent proof a crime was committed.” (Alvarez, supra, 27
Cal.4th at p. 1179; see People v. Ray (1996) 13 Cal.4th 313, 341.)
We cautioned that the pre-2008 version of “section 28(d) did not
eliminate the independent-proof rule insofar as that rule
prohibits conviction where the only evidence that the crime was
committed is the defendant’s own statements outside of court.”
(Alvarez, supra, 27 Cal.4th at p. 1180.)          We noted that the
amount of independent evidence required is not great and may
be circumstantial with only “ ‘a slight or prima facie showing’ ”
that permits “an inference of injury, loss, or harm from a
criminal agency, after which the defendant’s statements may be


6
      Subdivision (d) of section 28 of article I of the California
Constitution was redesignated to be subdivision (f)(2) by voter
initiative in 2008. (Prop. 9, as approved by voters, Gen. Elec.
(Nov. 5, 2008).)


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considered to strengthen the case on all issues.” (Id. at p. 1181.)
Alvarez made it clear, however, that the pre-2008 version of
“section 28(d) did not affect the rule to the extent it (1) requires
an instruction to the jury that no person may be convicted
absent evidence of the crime independent of his or her out-of-
court statements or (2) allows the defendant, on appeal, directly
to attack the sufficiency of the prosecution’s independent
showing.” (Alvarez, supra, 27 Cal.4th at p. 1180.)

      Even though the prosecution need satisfy only one prong
of section 28(d)’s post-Proposition 8 requirement, both prongs of
original section 28(d) were met here. Specifically, the record
shows that the trial court instructed with CALJIC No. 2.72,
which informed the jury that defendant’s statements to law
enforcement must be supported by independent evidence: “No
person may be convicted of a criminal offense unless there is
some proof of each element of the crime independent of any
confession or admission made by him outside of this trial. [¶]
The identity of the person who is alleged to have committed a
crime is not an element of the crime nor is the degree of the
crime. The identity or degree of the crime may be established
by a confession or admission. [¶] The corpus delicti of a felony-
based circumstance need not be proved independently of a
defendant’s extrajudicial statement.” Indeed, defendant’s words
alone may establish the degree of his crime or his identity as the
perpetrator. (People v. Valencia (2008) 43 Cal.4th 268, 297;
People v. Ledesma (2006) 39 Cal.4th 641, 721.) The jury was

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also instructed that it was the exclusive judge of the truth of
defendant’s confessions and admissions; the instruction defined
both a confession and an admission and instructed that the jury
should view any such statements with caution.

     The People’s showing of a criminal act, independent of
defendant’s statements, satisfies the corpus delicti rule. Here,
there was substantial independent evidence of “injury, loss, or
harm by a criminal agency.” (Alvarez, supra, 27 Cal.4th at p.
1171.) Defendant told law enforcement that he fired the fatal
shots that killed one of the victims, hid the .45-caliber gun and
bullet casings, poured gasoline on the victims, and lit them on
fire. Much of the physical evidence corroborates defendant’s
statements, including the victims’ burnt bodies, .45-caliber
bullets and one bullet casing recovered at the scene of the
murders, and the ample physical evidence that the victims were
beaten before they were killed. As noted, the autopsy concluded
Nathaniel died from gunshot wounds and that Consuelo died
from blunt force head injuries.

     Defendant, however, contends that his well-documented
drug and alcohol abuse render all his recollections fatally
suspect. Defendant advances a related argument, namely, that
his statements were so contradictory, and his history of drug
and alcohol abuse, including during the day of the crimes, is so
clear, that none of his statements is trustworthy enough to
even warrant corroboration. He notes he gave 10 separate



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statements to authorities. He recounts that in his first
statements to Griego, he denied all involvement in the crimes.
Later he claimed only to be a lookout. Still later, he confessed
to pouring gasoline on the victims. Similarly, his description of
the perpetrators changed over time and was thus unreliable.

     Defendant claims that statements of someone with his
history of substance abuse, who admitted to being under the
influence of drugs and alcohol at the time of the event in
question, do not even evidence minimal indicia of reliability and
trustworthiness. Additionally, defendant asserts that when he
spoke to law enforcement in 2001, he was on “psychotopic [sic]
medication.”

     Defendant also contends that his most inculpatory
statements to law enforcement were effectively coerced, and
thus even less trustworthy than some of his earlier statements
because he was threatened with his half-brother’s incarceration
if he did not tell them what they wanted to hear. Additionally,
he claims that his statements to Martin and Bartis lacked
trustworthiness because they were biased against him because
he robbed them.

     Contrary to defendant’s argument, considerations of
trustworthiness, whether based on his ability to recall or on
other factors, are the exclusive province of the jury. (People v.
Anderson (2018) 5 Cal.5th 372, 404.) Thus, allowing the jury to




                                 20
                         PEOPLE v. CAPERS
                    Opinion of the Court by Chin, J.



judge the relevant evidence did not violate defendant’s due
process rights. (People v. Lopez (2018) 5 Cal.5th 339, 353-354.)

     Initially, we note that defendant presents no evidence that
investigators either tainted the evidence or coerced defendant’s
inculpatory statements. Rather, the jury was presented with
ample    evidence     corroborating       defendant’s   inculpatory
statements. In addition to the physical evidence that matched
defendant’s statements, the jury heard Griego testify that law
enforcement purposefully withheld from the public certain
information about the crimes—e.g., the caliber of the firearm
used, that Nathaniel’s cause of death was by a firearm, and that
Nathaniel had been bound with duct tape.                Defendant’s
statements contained this same information. Defendant also
admitted that he and the others stole Consuelo’s Camaro and
drove it to a nearby Motel 6. As already noted, the car was found
in a Motel 6 parking lot about two miles from the crime scene.
In addition, Tirado testified that a week before the murders
defendant and his brother spoke with him about robbing the
victims’ T-shirt shop, and Leatham asked if Tirado wanted to
participate in the robbery, but Tirado declined. Although Tirado
stated at one point that it was Leatham who did most of the
talking about planning to rob the T-shirt store, his statement
was consistent with defendant’s admission that he and his
cohorts planned the robbery.




                                  21
                          PEOPLE v. CAPERS
                    Opinion of the Court by Chin, J.



      We conclude the corpus delicti rule was satisfied here and
that the jury properly considered all of defendant’s independent
statements regarding his participation in the robbery and
murders.     To the extent there was inconsistency among
defendant’s various statements, the court properly left it to the
jury to decide the veracity of each statement.           This is true
whether defendant characterizes some of his statements as
voluntary, internalized (from a susceptible or weak defendant),
compliant    (occurring     during     police   interrogation),   false
confessions—or as the product of a memory rendered unreliable
by years of substance abuse, by sleep deprivation, or by
psychotropic drugs.       Similarly, we find, despite defendant’s
argument to the contrary, that his statements contained
sufficient indicia of reliability to satisfy what we have described
as the Eighth Amendment’s “heightened reliability standards
for both guilt and penalty determinations in capital cases.”
(People v. Cudjo (1993) 6 Cal.4th 585, 623.)
           2. Alleged Due Process Denial

                  a. Background

      The prosecution’s trial theory was that four people were
involved in the T-shirt store murders: Defendant, Loomis,
Romero, and defendant’s half-brother, Leatham. The
prosecution’s case was that defendant’s videotaped confessions
supported the theory that defendant was the principal actor
who had robbed and set fire to the victims.



                                  22
                          PEOPLE v. CAPERS
                     Opinion of the Court by Chin, J.



         To support his defense that he was not responsible for
robbing, shooting or burning the victims, defendant sought to
present the testimony of Amber Renteria-Kelsey (Renteria) who
made two statements to Griego (one on May 26, 1999, and one
on October 5, 1999) that she had overheard Loomis admit to
another gang member nicknamed “Midget” that he and Romero
were involved in robbing and burning down the victims’ T-shirt
store.

         On November 1, 1999, Barstow Police Department
received two handwritten letters addressed to Griego from
Renteria, asserting that “there was no truth” to the statements
she made to the detective during their May 26 and October 5,
1999 interviews. The letters did not mention the names of the
perpetrators, or specifically describe the crime. They merely
stated that Renteria “was pretty much scared because I had
already told you one thing and didn’t know how to tell you the
truth” but she could not go on lying “about this situation.”
Another letter was sent to Griego in October 2003, in which
Renteria again retracted her statements implicating both men,
claiming she was on drugs when she made them, “not in [her]
right state of mind,” and the statements were not true. She told
the detective that “What I told you at first about the two people,
Bam-Bam [Loomis] and Wino [Romero] is not true.”

         During the trial’s guilt phase and outside the presence of
the jury, defense counsel stated that he intended to call Renteria



                                   23
                        PEOPLE v. CAPERS
                   Opinion of the Court by Chin, J.



as a defense witness. Renteria was in custody for an unrelated
case and was present in court. The court appointed supervising
deputy public defender Mark Shoup to represent Renteria and
to determine if her testimony might tend to incriminate her such
that she might assert her Fifth Amendment right to remain
silent.   Later, when the court asked if Renteria’s testimony
might expose her to criminal prosecution, Shoup stated that
Renteria could be charged with committing a misdemeanor
offense for falsely reporting criminal offenses to a peace officer.
(See § 148.5 [falsely reporting criminal offenses to a peace officer
is misdemeanor offense].)7 Counsel advised Renteria to assert
her Fifth Amendment privilege. The court then noted that the
prosecution could offer Renteria transactional immunity.
However, the prosecutor indicated that the People were not
willing to provide immunity in the case.              The court upheld
Renteria’s privilege invocation after concluding that it could not
“force her to make statements that may tend to incriminate her.”
The court ruled that defendant could not call Renteria as a
witness. It explained that its ruling was tentative and that it
would allow defense counsel to present points and authorities to
support defendant’s argument. The court noted that it would



7
      Initially, Shoup stated that false reporting could be a
crime under section 148, which actually makes it a crime to
verbally resist arrest; but the court understood him to mean
Renteria could be charged under section 148.5 for giving a false
report to a police officer.


                                 24
                          PEOPLE v. CAPERS
                   Opinion of the Court by Chin, J.



reopen the issue if it found “something different as far as the
testimony of Renteria.”

      During a subsequent discussion outside the presence of
the jury, Shoup conceded that Renteria had no basis to assert
her   Fifth   Amendment      privilege     for   the   section    148.5
misdemeanor offense of making the false police report to Griego
because the one-year statute of limitations for that offense had
run. When the court asked the prosecutor for his view whether
there was a felony statute that applied to Renteria’s statements,
the prosecutor stated that he did not know, but that Renteria
might be liable as an accessory under section 32. The court
responded:    “I don’t know how realistic [sic] she can be an
accessory . . . if her initial statement to [Griego] was that
something that pointed suspicion at somebody else.               I don’t
know.” Defendant’s counsel then asserted that Renteria did not
have a valid privilege.

      Later, the prosecutor told the court that he had spoken to
Shoup, and based on that conversation, he believed Renteria
would be susceptible to a section 32 charge if her intent was to
protect Loomis. He also noted that he was not sure of her intent
because he had never spoken with her. Shoup agreed with the
prosecutor’s section 32 evaluation and noted that Renteria had
exposure to the criminal statute because her last contact with
Griego was in October 2003, and that if it was determined she
lied in 2003, the three-year statute of limitations for a violation



                                 25
                        PEOPLE v. CAPERS
                   Opinion of the Court by Chin, J.



of section 32 had yet to run.         Defense counsel argued that
Renteria’s statement implicating Loomis and Romero would
exonerate defendant. When the court asked the prosecutor to
explain how Renteria could make a false statement and still be
criminally liable for a section 32 violation, the prosecutor
hypothesized: “She could have made up that first statement,
but still know that he was involved. If she overheard another
conversation that she never told Griego about, and then [lied] to
Griego when she talked to him in 2003 to protect Loomis,” then
she could be liable as an accessory under section 32.

     Shoup later interjected, “Just so the record’s clear here,
the only statements that I see that Amber Renteria [attributes]
to Bam-Bam [Loomis] is that Bam-Bam said that he had to get
out of town because he and his homie, Wino [Romero], had
robbed a place on Main Street and the place burned down. And
then, Renteria told me that Bam-Bam had also said that he had
to burn the place to get rid of evidence. Those are the only
statements that I am aware of. There is nothing in that that
exonerates this defendant.”

     Before the commencement of the penalty phase, Renteria
again testified under oath, outside the presence of the jury. She
repeated her invocation of her Fifth Amendment privilege. The
court stated that it would grant Renteria immunity if it had the
power to do so in order to resolve the matter, and again asked
the prosecutor if his office would grant the witness immunity.



                                 26
                        PEOPLE v. CAPERS
                   Opinion of the Court by Chin, J.



The prosecutor declined, explaining, “If we believe that Renteria
had any credibility whatsoever, we would have used [her]
statement to file on Carlos Loomis murder charges. We did not
do that.   We believe she has no credibility at all.      That’s
important to put on the record.” The court observed that the
case was different from cases in which false testimony led to an
erroneous conviction. (See e.g., Chambers v. Mississippi (1973)
410 U.S. 284, 298.) The court then upheld Renteria’s Fifth
Amendment privilege and dismissed her as a defense witness.
It concluded that the three-year statute of limitations for a
violation of section 32 had not expired, and that Renteria was
potentially exposed to criminal prosecution under section 32 for
her statements to Griego that she recanted. During the penalty
phase, the court similarly ruled that it would not allow the
defense to call Renteria.

                 b. Discussion

     Defendant asserts that Renteria’s refusal to testify and
thereby admit she lied to Griego about defendant’s involvement
in the T-shirt store murders denied him his due process right to
present a defense under the Sixth Amendment. We disagree.

     The state and federal constitutions provide that a criminal
defendant has the right “to have compulsory process for
obtaining witnesses in his favor.” (U.S. Const., 6th Amend.; Cal.
Const. art. I, § 15.) The federal compulsory process right is “so
fundamental and essential to a fair trial that it is incorporated


                                 27
                         PEOPLE v. CAPERS
                    Opinion of the Court by Chin, J.



in the Due Process Clause of the Fourteenth Amendment,”
making it applicable to the states. (Washington v. Texas (1967)
388 U.S. 14, 17-18 (Washington).) Under federal law, a denial
of the right to present a defense occurs when the exclusion of the
evidence infringes “upon a weighty interest of the accused.”
(United States v. Schaefer (1988) 523 U.S. 303, 308.) A weighty
interest of the defendant is infringed when “[t]he exclusions of
evidence . . . significantly undermined fundamental elements of
the accused’s defense.” (Id. at p. 315.)

      Our state compulsory process right “is independently
guaranteed by the California Constitution” under article 1,
section 15, and is “deemed to be at least as broad and
fundamental as the federal” right.          (In re Martin (1987) 44
Cal.3d 1, 30 (Martin).) The government violates a defendant’s
constitutional right to compulsory process when it interferes
with the exercise of a defendant’s right to present witnesses on
his own behalf.        (Ibid.)    A defendant establishes such
interference when he or she demonstrates the prosecution
intimidated defense witnesses by telling them they could be
prosecuted for any crimes they revealed during their testimony.
(Ibid.) Defendant must also demonstrate the misconduct was a
substantial cause of his witness’s refusal to testify. (Id. at p. 31.)
Defendant additionally “must show at least a reasonable
possibility that the witness could have given testimony that
would have been both material and favorable.” (Id. at p. 32.) If



                                  28
                        PEOPLE v. CAPERS
                   Opinion of the Court by Chin, J.



a defendant successfully sustains his burden of demonstrating
prejudice, the verdict must be reversed. (Id. at p. 51.)

      In Martin, we held that the defendant successfully
demonstrated a compulsory process violation. (Martin, supra,
44 Cal.3d at p. 42.) There, the prosecutor committed prejudicial
misconduct when he informed the defense witness’s attorney
that if the defense witness testified, he would not get immunity
and would be prosecuted if he implicated himself in a crime or
committed perjury. (Id. at pp. 36-37, 40.) We found substantial
causation between the misconduct and the defendant’s inability
to present witnesses on his own behalf because the witness
stated he decided to assert his Fifth Amendment right to remain
silent after he learned the prosecutor would not grant him
immunity and he had an encounter with a district attorney
investigator who threatened arrest and got “ ‘in his face.’ ” (Id.
at p. 37.)   Martin also held the testimony was reasonably
“ ‘material and favorable’ ” because the witness’s statements
contradicted the testimony of another witness adverse to the
defendant. (Id. at p. 42.)

      Defendant claims the prosecutor committed prejudicial
misconduct when he told Shoup that Renteria could be charged
as an accessory under section 32, and that he would not grant
Renteria immunity from prosecution on the ground that her
statements and retractions were not credible. (See ante, at p.
26; Martin, supra, 44 Cal.3d at pp. 37.) Defendant would have



                                 29
                        PEOPLE v. CAPERS
                   Opinion of the Court by Chin, J.



us find prejudice because Renteria’s proposed testimony was
material and favorable to the defense because (1) her testimony
would have exonerated him, and (2) the prosecutor’s actions
were a substantial factor in causing Renteria to invoke her Fifth
Amendment privilege.

      We find no constitutional violation or prosecutorial
misconduct. It was Shoup who initially told the court that his
client was exposed to potential misdemeanor criminal liability.
The prosecutor told the court that Shoup was in the best position
to determine any potential criminal liability. He also agreed
with Shoup that Renteria had exposure to criminal liability.
Later, in answer to a question from the court, the prosecutor
opined that Renteria would be exposed to criminal liability
under a different statute (§ 32) than that initially identified by
Shoup. Shoup agreed with the prosecutor’s assertion. There is
also no indication that the prosecutor committed misconduct
when he refused to grant the witness immunity. He explained
to the court that Renteria had no credibility as a witness. As he
pointed out, if she had any credibility, the District Attorney
would also have charged Loomis with the murders.

      In contrast to the trial court in Martin, the court here did
not deny defendant the right to “put on the stand a witness who
was physically . . . capable of testifying . . . and whose testimony
would have been relevant and material to the defense.”
(Washington, supra, 388 U.S. at p. 23.) Renteria’s testimony



                                 30
                        PEOPLE v. CAPERS
                   Opinion of the Court by Chin, J.



would not have exonerated defendant, or been material to his
defense, either by tending to prove he did not commit the crimes
charged or by diminishing his involvement. In fact, Renteria’s
proposed testimony would have reiterated the prosecution’s
theory, based in part on defendant’s admissions, that defendant
committed the crimes with Loomis and Romero. Even if her
statement had been admitted, she could have been impeached
with her subsequent recantation and comments that she was on
drugs when she implicated Loomis and Romero in the murders.
Renteria’s decision not to testify, upheld by the court, did not
deny defendant the right to present a defense.
         3. Alleged Fifth Amendment Privilege

      Apart from asserting a compulsory process violation,
defendant also claims the court erred in granting Renteria’s
Fifth Amendment privilege because the statute of limitations to
charge her had run on any violation of section 32 before she was
to be called as a witness. Defendant asserts that the statute of
limitations started running on a section 32 violation in October
1999, when Renteria sent her first retraction letter to the police
and not when she retracted her inconsistent statements in
October 2003.

      The Attorney General responds that defendant forfeited
this argument because he did not raise it in the trial court.
Defendant effectively concedes he never raised the claim in the
trial court but contends he did not forfeit his claim because it is



                                 31
                        PEOPLE v. CAPERS
                   Opinion of the Court by Chin, J.



based on “undisputed facts” contained in one of Griego’s reports
that states: “Renteria later (on 10-29-99) sent me a letter at the
Barstow Police Department ‘retracting’ her statements.” (See
Williams v. Mariposa County Unified School District (1978) 82
Cal.App.3d 843, 850 [if facts supporting new contention on
appeal are undisputed, court may entertain the contention as a
question of law on those facts].) Defendant also contends that
although defense counsel might have been aware of Renteria’s
1999 retraction letter and yet failed to raise it as a defense to
her exposure to criminal liability, the prosecution team,
including Griego, “had an independent duty to make sure that
the trial court was made aware of Renteria’s earlier retraction.”
Defendant’s claims fail.     Even if we were to assume that
Renteria’s testimony would have assisted defendant’s defense,
and that he did not forfeit his claim regarding the 1999
retraction letter, he has stated no constitutional or prosecutorial
violations.

      The standards governing defendant’s contention that the
court erred in granting Renteria’s Fifth Amendment assertion
are well established. The Fifth Amendment privilege provides
that “[n]o person . . . shall be compelled in any criminal case to
be a witness against himself.” (U.S. Const., 5th Amend.; Cal.
Const., art. I, § 15.) The high court has held that the privilege
“marks an important advance in the development of our liberty.”
(Kastigar v. United States (1972) 406 U.S. 441, 444.) It “must
be accorded liberal construction in favor of the right it was

                                 32
                        PEOPLE v. CAPERS
                   Opinion of the Court by Chin, J.



intended to secure.” (Hoffman v. United States (1951) 341 U.S.
479, 486 (Hoffman).)     Recognizing that the trial court must
determine whether there is reasonable cause for the privilege to
extend to the witness, Hoffman left it to the court to determine
whether the witness’s “silence is justified.” (Ibid.) Hoffman
instructed: “To sustain the privilege, it need only be evident
from the implications of the question, in the setting in which it
is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous
because injurious disclosure could result. The trial judge in
appraising the claim ‘must be governed as much by his personal
perception of the peculiarities of the case as by the facts actually
in evidence.’ ” (Id. at pp. 486-487.) Our state jurisprudence
incorporates the broad Hoffman standard. (See People v. Seijas
(2005) 36 Cal.4th 291, 304 (Seijas).)

      Our Evidence Code implements the privilege as follows:
“Whenever the proffered evidence is claimed to be privileged
under Section 940 [privilege against self-incrimination], the
person claiming the privilege has the burden of showing that the
proffered evidence might tend to incriminate him; and the
proffered evidence is inadmissible unless it clearly appears to
the court that the proffered evidence cannot possibly have a
tendency to incriminate the person claiming the privilege.”
(Evid. Code, § 404.)




                                 33
                        PEOPLE v. CAPERS
                   Opinion of the Court by Chin, J.



      We conclude that the federal and state constitutions
supported the trial court’s decision to grant Renteria her Fifth
Amendment privilege whether or not the court was aware of the
1999 retraction letter that Renteria had sent to Griego. (See
Seijas, supra, 36 Cal.4th at p. 304.) On review of a witness’s
successfully invoking the Fifth Amendment privilege, we look
only to see whether it is evident from the “implications of the
question, in the setting in which it is asked, that a responsive
answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure
could result.” (Hoffman, supra, 341 U.S. at pp. 486-487.) In fact,
a trial court may deny Fifth Amendment privilege only if it is
“ ‘perfectly clear, from a careful consideration of all the
circumstances in the case, that the witness is mistaken, and
that the answer[s] cannot possibly have such tendency’ to
incriminate.”   (Id. at p. 488, italics omitted.)       Our state
jurisprudence is equally strong in its protection of the right and
holds that the Fifth Amendment does not allow “the court to
assess the likelihood of an actual prosecution in deciding
whether to permit the privilege.” (Seijas, supra, 36 Cal.4th at
p. 305; see Evid. Code, § 404.)

      Renteria and her counsel could reasonably have concluded
that Renteria would be subject to criminal prosecution under
section 32 for her statements to Griego about what she
overheard if compelled to testify. Section 32 subjects a person
to criminal liability for aiding a principal in avoiding conviction

                                  34
                         PEOPLE v. CAPERS
                    Opinion of the Court by Chin, J.



or punishment for a crime. Renteria’s inconsistent statements
could have a tendency to incriminate her because it is possible
they could have supported a charge that she sought to help
Loomis and Romero in avoiding prosecution of the crimes at
issue. (See § 32; Evid. Code, § 404.) We find the court did not
err when it granted Renteria her Fifth Amendment privilege.
(Hoffman, supra, 34 U.S. at p. 488.)

      We also find that the prosecution did not engage in
misconduct in failing to raise Renteria’s 1999 retraction earlier
during the trial court’s colloquy about Renteria’s asserted Fifth
Amendment privilege.        We have held that “[a] prosecutor’s
conduct violates the federal Constitution when it infects the
trial with such unfairness as to make the resulting conviction a
denial of due process. Conduct by a prosecutor that does not rise
to this level nevertheless violates California law if it involves the
use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.” (People v. Whalen (2013)
56 Cal.4th 1, 52.) Even though the statute of limitations had
passed on Renteria’s initial alleged lie to Detective Griego in
1999, it had not passed when she allegedly lied in her second
retraction letter of 2003. Here, there is no indication that the
prosecutor’s conduct rendered the trial so unfair as to deny
defendant due process, or that his silence on the issue misled
the court in order to persuade it in violation of California law.
(Ibid.)   The prosecutor thoroughly discussed the effect of
Renteria’s 2003 statement with the court in the presence of

                                  35
                        PEOPLE v. CAPERS
                   Opinion of the Court by Chin, J.



defendant’s counsel as well as Renteria’s counsel, as discussed
ante, at pages 25 to 26. Additionally, the prosecution’s theory
was based on defendant’s own statements that he had
committed the crimes with Loomis and Romero. There is simply
no indication that awareness of the 1999 retraction letter would
have changed the court’s decision to grant Renteria’s right to
silence or would have otherwise infected the trial with such
unfairness that defendant’s conviction amounted to a denial of
due process.
     B. Issues Regarding Penalty
         1. Constitutionality of California’s Death Penalty
            Statute

     Defendant asserts numerous challenges to California’s
death penalty law that we have repeatedly rejected.           We
reiterate our previous decisions.

               a. Whether Penal Code section 190.2 is
     impermissibly broad

     Defendant asks that we reconsider our well-established
holding that “special circumstances listed in section 190.2 that
render a murderer eligible for the death penalty, which include
felony murder and lying in wait, are not so numerous and
broadly interpreted that they fail to narrow the class of death-
eligible first degree murderers as required by the Eighth and
Fourteenth Amendments.” (People v. Brooks (2017) 3 Cal.5th 1,
114-115; see ibid. [upholding the current version of section 190.2
which is very similar to version defendant was convicted under];

                                 36
                          PEOPLE v. CAPERS
                     Opinion of the Court by Chin, J.



People v. Stanley (1995) 10 Cal.4th 764, 842-843.) We decline to
do so.

                    b. Whether Penal Code section 190.3 is
         arbitrary and capricious

         We have repeatedly rejected the claim that section 190.3,
factor (a), which requires the jury to consider as evidence in
aggravation the circumstances of the capital crime, arbitrarily
and capriciously imposes the death penalty under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution. (See Brooks, supra, 3 Cal.5th at p. 115.)
We decline defendant’s request to review our prior holdings.

                    c. Whether unanimous jury findings are
              required

         As we have many times held, “[t]he jury’s reliance on
unadjudicated criminal activity as a factor in aggravation under
section 190.3, factor (b), without any requirement that the jury
unanimously find that the activity was proved beyond a
reasonable doubt, does not deprive a defendant of any federal
constitutional rights, including the Sixth Amendment right to
trial by jury and the Fourteenth Amendment right to due
process.” (Brooks, supra, 3 Cal.5th at p. 115.) We have also held
that the federal Constitution does not require unanimous jury
findings for imposing the death sentence, nor must the jury
agree on the existence on any one aggravating factor. (People v.
Hamilton (2009) 45 Cal.4th 863, 960.) Defendant contends that


                                   37
                         PEOPLE v. CAPERS
                    Opinion of the Court by Chin, J.



we must reconsider these holdings and others, including People
v. Prieto (2003) 30 Cal.4th 226, 263 (Prieto), in light of Ring v.
Arizona (2002) 536 U.S. 584, 602 (Ring), which followed Blakely
v. Washington (2004) 542 U.S. 296, 303-205 (and Apprendi v.
New Jersey (2000) 530 U.S. 466, 490), to hold that any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum, other than the fact of a prior conviction,
must be submitted to a jury and proved beyond a reasonable
doubt before its decision that death is the appropriate sentence.

        Defendant makes the same argument as the defendant
made in Prieto, that Ring undermines our previous holdings
that:     “(1) the jury need not find that the aggravating
circumstances outweigh the mitigating circumstances beyond a
reasonable doubt; (2) the jury need not find each aggravating
factor beyond a reasonable doubt; (3) juror unanimity on the
aggravating factors is not necessary; and (4) written findings are
not required.” (Prieto, supra, 30 Cal.4th at p. 275.) As we
explained in Prieto, the jury’s penalty determination is
normative, not factual, and is “analogous to a sentencing court’s
traditionally discretionary decision to impose one prison
sentence rather than another.” (Ibid.)

        Defendant also asserts that the high court’s decision in
Hurst v. Florida (2016) 577 U.S. ___ [193 L.Ed 2d 504, 136 S.Ct.
626] (Hurst), which invalidated Florida’s capital sentencing
scheme, also invalidates California’s capital sentencing scheme.



                                  38
                        PEOPLE v. CAPERS
                   Opinion of the Court by Chin, J.



Like Ring, Hurst requires a jury to find each fact necessary to
impose the death sentence. (Ibid.) Further, defendant claims
that Hurst makes it clear that our sentencing determination
violates the Sixth Amendment because it collapses “the
weighing finding and the sentence-selection decision into one
determination    and   labeling        it   ‘normative’     rather   than
factfinding” by a jury beyond a reasonable doubt. It does not.
(People v. Rangel (2016) 62 Cal.4th 1192, 1235 & fn. 16.) Our
cases have consistently rejected similar arguments. (Ibid.) The
California sentencing scheme is materially different from that
in Florida, which, in contrast to our death penalty statutes,
mandates that the trial court alone must find that sufficient
aggravating     circumstances          outweigh       the     mitigating
circumstances. (Hurst, supra, 577 U.S. ___ [136 S.Ct. at p. 622];
see Fla. Stat. § 775.082(1).) Once the jury renders a verdict of
death, “our system provides for an automatic motion to modify
or reduce this verdict to that of life imprisonment without the
possibility of parole. (Pen. Code, § 190.4.) At the point the court
rules on this motion, the jury ‘has returned a verdict or finding
imposing the death penalty.’ ” (Rangel, supra, 62 Cal.4th at p.
1235, fn. 16.) We do not find that Hurst in any way undermines
our previous rulings upholding the constitutionality of our death
penalty scheme. (See People v. Becerrada (2017) 2 Cal.5th 1009,
1038; see also People v. Brown (1985) 40 Cal. 3d 512, 541 [jury
may reject death sentence even after it has found aggravation
outweighs mitigation].)


                                  39
                         PEOPLE v. CAPERS
                    Opinion of the Court by Chin, J.



                   d. Validity of California’s Death Penalty Jury
              Instructions

                         i. Reasonable doubt

     Defendant contends that the trial court erred when it did
not instruct the jury that the prosecution bore the burden of
proof. He argues that his “jury should have been instructed that
the State had the burden of persuasion regarding the existence
of any factor in aggravation, whether aggravating factors
outweighed mitigating factors, and the appropriateness of the
death penalty, and that it was presumed that life without parole
was an appropriate sentence.” Alternatively, defendant asserts
that if there is no burden of proof, the jury should have been
informed that the prosecution has no burden of proof in capital
sentencing.

     We have never held that the Sixth and Fourteenth
Amendments require a jury instruction regarding the burden of
proof in capital sentencing. (See People v. Williams (1988) 44
Cal.3d 883, 960.) As the Attorney General observes, the only
burden of proof applicable at the penalty phase “relates to
aggravating evidence of other crimes under factor (b) [People v.
Foster (2010) 50 Cal.4th 1301, 1364], and aggravating evidence
of prior convictions under factor (c). (See Williams, supra, 49
Cal.4th at p. 459.)” Otherwise, our cases do not require that a
burden of proof be applied to aggravating evidence. (See People
v. Lewis (2009) 46 Cal.4th 1255, 1319.)


                                  40
                        PEOPLE v. CAPERS
                   Opinion of the Court by Chin, J.


                        ii. Unanimous agreement on
             aggravating factors

     Defendant contends the trial court violated his rights
under the Sixth, Eighth, and Fourteenth Amendments when it
failed to instruct the jury that it must unanimously agree on the
same factors in aggravation. We have “consistently held that
unanimity with respect to aggravating factors is not required by
statute or as a constitutional procedural safeguard.” (People v.
Taylor (1990) 52 Cal.3d 719, 749 (Taylor).)

     The same is true for prior unadjudicated criminal activity.
We have repeatedly rejected claims that the jury’s findings of
prior unadjudicated crimes must be unanimous in relation to
evidence admitted under section 190.3, factor (b). (People v.
Foster (2010) 50 Cal.4th 1301, 1364-1365.)

                        iii. Alleged vague instructions

     Contrary to defendant’s assertion, California’s death
penalty jury instructions are not unconstitutionally vague,
because they provide that a jury “must be persuaded that the
aggravating circumstances are so substantial in comparison
with the mitigating circumstances that it warrants death
instead of life without parole.” (CALJIC No. 8.88, italics added.)
The “ ‘so substantial’ ” language does not violate the Eighth and
Fourteenth Amendments. (People v. Ghobrial (2018) 5 Cal.5th
250, 292.)




                                 41
                        PEOPLE v. CAPERS
                   Opinion of the Court by Chin, J.



                        iv. Requiring written findings

      We also decline defendant’s request that we reconsider our
prior holdings that do not require jurors to submit written
findings during a capital case’s penalty phase. (Taylor, supra,
52 Cal.3d at p. 749.)

                        v. Converse principle instruction

      Contrary to defendant’s view, it is unnecessary for the
trial court to instruct the jury that if it determines mitigation
outweighs aggravation, it must return a verdict of life without
the possibility of parole. (People v. Kopatz (2015) 61 Cal.4th 62,
95 (Kopatz).)

                        vi. Jury Unanimity on mitigation

      We continue to reject the contention raised here that a
jury must be instructed regarding the standard of proof and the
lack of a need for jury unanimity as to mitigating circumstances.
(Kopatz, supra, 61 Cal.4th at p. 95, citing People v. Streeter
(2012) 54 Cal.4th 205, 268.)

                        vii. Presumption of life instruction

      Consistent with our cases, we affirm the view that the trial
court, contrary to defendant’s argument, is not required to
instruct the jury that the law favors a presumption of life in the
penalty phase. (See People v. Arias (1996) 13 Cal.4th 92, 190.)




                                 42
                           PEOPLE v. CAPERS
                      Opinion of the Court by Chin, J.



                           viii.    Failure to delete inapplicable
        sentencing factors

        As we held in People v. Cook (2006) 39 Cal.4th 566, 618,
“[th]e trial court has no obligation to delete from CALJIC No.
8.85 inapplicable mitigating factors.” We decline to reconsider
our decision as defendant requests.

                             ix. Failure to instruct that statutory
        mitigating factors are relevant solely as potential
        mitigators

        We also decline to reconsider our conclusion that the jury
need not be advised which sentencing factors in CALJIC No.
8.85 are aggravating and which are mitigating. As we have
held, the court does not need to define the statutory factors
because the “nature of those factors is self-evident within the
context of each case.” (People v. Hillhouse (2002) 27 Cal.4th 469,
509.)

                     e. Inter-case Proportionality Review

        As we have stated before, neither California’s death
penalty law nor the federal and state constitutions require inter-
case proportionality review. (People v. Virgin (2011) 51 Cal.4th
1210, 1289-1290; People v. Hillhouse (2002) 27 Cal.4th 469, 511.)




                                    43
                         PEOPLE v. CAPERS
                    Opinion of the Court by Chin, J.


                 f. Equal Protection and California’s Capital
      Sentencing Scheme

      Consistent with our precedent, California’s capital
sentencing scheme does not, as defendant contends, violate the
Equal Protection Clause of the federal Constitution because
capital defendants and noncapital defendants “are not similarly
situated.”    (People v. Williams (2013) 58 Cal.4th 197, 295.)
Consequently, it is permissible for noncapital defendants to
have more procedural protections than capital defendants.

                  g. International Law

      Contrary to defendant’s contention, international law does
not prohibit application of the death penalty in the United
States.     Although the United States is a signatory to the
International Covenant on Civil and Political Rights, “it signed
the treaty on the express condition ‘[t]hat the United States
reserves the right, subject to its Constitutional constraints, to
impose capital punishment on any person (other than a
pregnant woman) duly convicted under existing or future laws’ ”
allowing capital punishment.        (People v. Thompson (2016) 1
Cal.5th 1043, 1130, citing People v. Brown (2004) 33 Cal.4th 382,
403-404.)
          2. Alleged Cumulative Error

      Defendant     contends      the    alleged       errors   at   trial
cumulatively make his trial unfair and hence resulted in a
miscarriage of justice, violating due process.



                                  44
                         PEOPLE v. CAPERS
                    Opinion of the Court by Chin, J.



      Cumulative error is present when the combined effect of
the trial court’s errors is prejudicial or harmful to the defendant.
(People v. Winbush (2017) 2 Cal.5th 402, 487; People v. Hinton
(2006) 37 Cal.4th 839, 897, 913.)          Although a defendant is
entitled to a fair trial, he or she is not entitled to “a perfect one.”
(People v. Cunningham (2001) 25 Cal.4th 926, 1009.)                Even
though the cumulative error rule recognizes the value in the
efficient administration of justice, it does not elevate it above the
protection of individual rights.       (People v. Cuccia (2002) 97
Cal.App.4th 785, 795.)

      We    conclude    that    defendant      has     not   established
cumulative error. There are no errors to aggregate. The corpus
delicti rule was vindicated, and Renteria’s failure to testify did
not represent a compulsory process violation. The court also did
not err prejudicially in sustaining Renteria’s Fifth Amendment
privilege. Renteria’s proposed testimony had no tendency in fact
to lessen defendant’s criminal culpability and the jury heard
overwhelming evidence of defendant’s guilt.




                                  45
                       PEOPLE v. CAPERS
                  Opinion of the Court by Chin, J.


                     III. CONCLUSION
      For the foregoing reasons, we affirm the judgment in its
entirety.
                                                     CHIN, J.
We Concur:

CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.




                                46
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Capers
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S146939
Date Filed: August 8, 2019
__________________________________________________________________________________

Court: Superior
County: San Bernardino
Judge: John M. Tomberlin

__________________________________________________________________________________

Counsel:

Michael J. Hersek and Mary K. McComb, State Public Defenders, under appointments by the Supreme
Court, and Peter R. Silten, Deputy State Public Defender, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens, Robin Urbanski and Donald W.
Ostertag, Deputy Attorney General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Peter R. Silten
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607
(510) 267-3300

Donald W. Ostertag
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9557
