Filed 7/1/13




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                                  )
                                             )
           Plaintiff and Respondent,         )
                                             )                S091915
           v.                                )
                                             )                Los Angeles County
DANIEL NUNEZ and WILLIAM TUPUA SATELE, )                      Super. Ct. No. NA039358
                                             )
           Defendants and Appellants.        )
____________________________________________ )



      A jury convicted defendants Daniel Nunez and William Tupua Satele of the
first degree murders of Renesha Ann Fuller and Edward Robinson. (Pen. Code,1
§§ 187, subd. (a), 189.) The jury also found true special circumstance allegations
of multiple murder (§ 190.2, subd. (a)(3)), and sentence enhancement allegations
that defendants committed the murders to benefit a criminal street gang and used
firearms to commit them. (§§ 186.22, subd. (b)(1), 12022.53, subd. (d).) Special
circumstance allegations that defendants intentionally killed the victims because of
their race (§ 190.2, subd. (a)(16)) were found not true, as were enhancement
allegations that defendants committed the murders in concert because of the
victims‘ race (§ 422.75, former subd. (c), now subd. (b)). At the penalty phase,
the jury returned death verdicts, and the trial court entered judgments of death.
This appeal is automatic. (Cal. Const., art. VI, § 11(a); § 1239, subd. (b).) For the

1     All further undesignated statutory references are to the Penal Code.



                                          1
reasons that follow, we vacate the true findings for the street gang and firearms
use enhancements, as well as one multiple-murder special-circumstance finding
for each defendant, and otherwise affirm the judgments.
                            I. FACTUAL BACKGROUND

       A. Guilt Phase

            1. Prosecution evidence
     On October 29, 1998, at about 11:00 p.m., a Black couple, Edward Robinson
and his girlfriend Renesha Ann Fuller, were shot and killed outside Robinson‘s
townhouse at 254th Street and Frampton Avenue in Harbor City. Robinson‘s
sister heard the shots, looked out her second-story window, and saw a big, older
model car with horizontal tail lights driving away. Four shell casings were found
at the scene. An autopsy revealed that Robinson was shot three or four times.
Fuller was shot twice, but one of the bullets may have first traveled through
Robinson.
     Ernie Vasquez, who was in the area that night, testified that even though few
cars were on the road the night of October 29, 1998, on several occasions during a
period of 15 to 20 minutes he saw an older Buick Regal or similar model sedan,
burgundy or dull red in color, driving near the area of the murders. The car, which
contained three or four people Vasquez did not know, had horizontal tail lights.
Vasquez later identified Juan Carlos Caballero as the driver. (Caballero was
murdered shortly after the murders in this case.) Persons resembling defendant
Satele (also known as ―Wilbone‖) and defendant Nunez (also known as ―Speedy‖)
were, respectively, in the front passenger seat and backseat of the vehicle. After
about 11:00 p.m., while Vasquez was parked in a hotel driveway, he heard shots,
ducked down, and then drove away. After driving for about a minute, he saw a




                                         2
body lying in the road, and stopped to assist the victim, who he later learned was
Robinson.
     Around midnight that same night, about an hour after Robinson and Fuller
were murdered, Joshua Contreras met both defendants and Caballero at a
neighborhood park. Defendants and Contreras were members of the West Side
Wilmas gang. Contreras heard defendant Satele say, ―We were out looking for
niggers,‖ and heard Satele or Nunez say, ―I think we hit one of ‘em.‖
     The next evening, Contreras was at a friend‘s house with several people,
including both defendants. Satele appeared nervous, and told Contreras that the
murders of the ―Black guy and Black girl‖ that he had shot were ―in the news.‖
Satele told Contreras ―he was driving right there in Harbor City and he saw a
Black guy or Black girl hugging or kissing or something and he just shot them.‖
     Later that night around 3:40 a.m., Los Angeles Police Officers Adam
Greenburg and Vinh Nguyen were in a marked police when they saw a car, later
identified as a four-door Chrysler, driving with its headlights off. The Chrysler
pulled over to the curb. As the officers pulled in front of the Chrysler and
activated their car‘s emergency lights, three occupants fled the Chrysler. (At trial,
Officer Greenburg identified defendant Nunez as the person who had been driving
and defendant Satele as the person who had been seated in the front passenger
seat.) The police pursued Satele and arrested him. On the Chrysler‘s driver‘s seat
was a white baseball cap with the word ―west‖ on the front and the name
―Speedy‖ on the back. Between the driver‘s and passenger seats was a large
semiautomatic Norinco Mak-90, an AK-47-type assault rifle. The rifle was
identified as the murder weapon through ballistics testing. A magazine attached to
the weapon contained 26 live rounds of jacketed hollow-point cartridges; the
magazine was capable of carrying 30 rounds.



                                          3
     Joshua Contreras, who had joined the West Side Wilmas gang shortly before
the two murders, told police that both defendants were ―riders‖ — persons who
―kill[ed] their enemies‖ — and that they had an AK-47 rifle they called
―Monster.‖ Contreras saw defendant Satele put the AK-47 into the ―car that
Speedy [defendant Nunez] had‖ shortly before defendant Satele was arrested. (At
trial, Contreras denied or claimed not to remember his statements to police, and
those statements were introduced as prior inconsistent statements.)
     On December 3, 1998, several weeks after the two murders, Ernie Vasquez
and defendant Satele were in a cell in a Los Angeles County jail. When Satele
heard that Vasquez was from Harbor City, he asked if Vasquez had heard about
the killings there. When Vasquez said, ―I think so, yes‖ or ―something . . . to that
nature,‖ Satele said, ―Well, we did that,‖ or possibly ―I did that,‖ adding, ―I AK‘d
them,‖ or ―We AK‘d them.‖ Vasquez mentioned these statements to police
officers on January 6, 1999, after his fingerprint had been found on victim Fuller‘s
car. At Vasquez‘s request, he was then transferred to the Lynwood jail, which was
closer to his home.
     On January 7, 1999, defendant Nunez, who was a trusty at Lynwood jail,
approached Vasquez. Nunez asked if Vasquez was from Harbor City, and
Vasquez said, ―Yes.‖ Nunez said he had killed ―those niggers . . . in your
neighborhood.‖ Nunez mentioned that he had been driving down the street when
one of the victims ―looked at him wrong,‖ so Nunez ―turned back around and
blasted‖ the victim.
     On February 9, 1999, Los Angeles Police Detective Robert Dinlocker
showed both defendants a photograph of the four-door Chrysler in which they
were seen on the night after the murders, and asked them if that car was used in
the homicide. Two days later, defendants were falsely told they were going to be
booked on murder charges; while being transported together to and from the

                                          4
courthouse their conversations were recorded. Defendant Satele said: ―I not even
really sweating it dog, because all that shit that they got, that shit‘s wrong. . . . But
if them mother fuckers would have shown me the car that we fuckin‘ actually did
that shit in, fuck, I‘d be stressing like a mother fucker.‖
     At defendants‘ murder trial, Ruby Feliciano testified that she owned the four-
door Chrysler in which defendants were seen on the night after the murders. A
week earlier, she had taken the car to defendant Nunez for repairs, and he had
promised to return the car that evening. He did not do so, and a week later she
saw a woman driving her car. When she later told Nunez she was going to report
her car as stolen, he threatened her life. After the car was impounded by police
shortly after the two murders, Feliciano received a telephone call from Nunez‘s
girlfriend; Nunez, who was in jail, was also on the line. During this three-way
conversation, Nunez asked Feliciano to change what she had told the detectives,
and his girlfriend asked Feliciano to say that she had spoken to Nunez and his
girlfriend at a certain time on the night police recovered the car, and that Nunez
had been home at the time.
     The prosecution presented evidence of defendant Nunez‘s animus against
Blacks. Esther Collins, who is Black, testified that in September 1997, defendant
Nunez, who was intoxicated, came up to her in her garage, and calling her a
―nigger,‖ asked for money or drugs. When Collins said she had none, Nunez
again called her a ―nigger‖ and spat on her. He then hit Collins in the mouth with
a hard object, fracturing her jaw, and said, ―[n]igger, get up nigger.‖ Collins‘s
husband, who is also Black, came out to the garage with a ―pop gun‖ in an effort
to scare Nunez off. Nunez laughed at him, threw ―the word ‗nigger‘ around,‖ and
left. Collins, who was afraid of the West Side Wilmas gang (of which Nunez was
a member), did not report the incident to the police that day because she did not



                                           5
want trouble. When Collins later reported the assault, she did not mention that
Nunez was drunk.
     At the time Collins testified against defendants, she was incarcerated. She
testified that on one occasion when she and defendant Nunez were on the bus from
jail to court, he said, ―Are you testifying? Don‘t testify. Something like that.‖
Nunez also asked, ―Where is your son? Is he in custody?‖ Collins denied she was
personally afraid to testify, but said she feared reprisal against her son, who was
also in prison, because ―[i]t‘s a black and racial thing in jail.‖ Los Angeles
District Attorney‘s Office Investigator John Neff testified he had spoken to Collins
the week before her testimony. Collins told him she was afraid to testify because,
while on the transportation bus, ―one of the defendants had made a veiled threat by
asking how her son was,‖ and then saying, ― ‗You‘re not going to testify, are
you?‘ ‖
     The prosecution presented evidence that West Side Wilmas gang members
other than defendants had committed crimes. Detective Dinlocker testified that
Ruben Figueroa and Brian Dominic Martinez were West Side Wilmas gang
members, and the prosecution introduced records of Martinez‘s conviction for
assault with a firearm and Figueroa‘s convictions for murder and assault with a
deadly weapon.
     Los Angeles Police Officer Julie Rodriguez testified as an expert on the West
Side Wilmas gang. She said the gang‘s primary activities are ―anything that‘s
going to benefit the gang,‖ including narcotic sales and murder. ―Associates‖ of
the gang are younger boys who are ―trying to prove themselves,‖ and ―hang out
with the gang members,‖ but who ―aren‘t quite yet‖ gang members. The area of
the two murders was not claimed by the West Side Wilmas but by rival gangs.
According to Rodriguez, murdering a Black couple with no gang ties would cause
defendants to ―move . . . up in the gang.‖ In her view, if defendants here murdered

                                          6
Robinson and Fuller (a Black couple with no gang ties), they did so with the
specific intent to promote, further or assist in the criminal activity of West Side
Wilmas.
     Los Angeles County Deputy Sheriff Scott Chapman, who was assigned to the
gang unit at the Men‘s Central Jail, testified that while rival gang members in the
street will attack each other, ―[o]nce they come into county jail it becomes a race
issue . . . [and] [t]hey bond together to protect themselves.‖ Hispanic gangs
sometimes include persons who, like defendant Satele, are of Samoan descent.

           2. Defense evidence

               a. Defendant Nunez
     Yolanda Guaca, defendant Nunez‘s girlfriend and the mother of his two
children, testified that Nunez was at home with her from about 9:00 or 10:00 p.m.
on October 29, 1998 (the night of the murders), until the next morning. Guaca‘s
mother Sandra Lopez gave similar testimony. Lopez, who lived with defendant
Nunez and Guaca, said that the only way in and out of their home was through the
front door. Because the front screen door was damaged, once everyone was home
she ordinarily tied a string to it in such a manner that the door could not be entered
from the outside unless a person inside the house opened it. When she awoke on
the morning of October 30, the string had not been disturbed.
     Defendant Nunez testified that he was born in National City and was 24
years old. Between the ages of 10 and 12 he stole bicycles for the West Side
Wilmas. When he was ―[m]aybe 12‖ years old he became a member of the gang
and began selling rock cocaine and sometimes marijuana. Between the ages of 14
and 20 he was incarcerated for auto theft and selling cocaine. While incarcerated
he and three other inmates assaulted two other Latino gang members.




                                          7
     After his release at age 20, defendant Nunez moved into the Norwalk home
his mother shared with her husband, defendant‘s younger sister, and his younger
brother. He worked in a warehouse for several months, but he had difficulty
getting a ride to work and did not know how to take the bus. He was accepted at
Cerritos College, but left the area before the semester began.
     Defendant Nunez left his mother‘s home after two months because he did not
want to interfere with his mother‘s life. His father, who lived in San Diego, had
not helped in raising him, and he did not want to ask his father for anything. He
returned to Wilmington and to the West Side Wilmas gang because he ―didn‘t
know anything else‖ to do and did not want to ask for help. He lost his
identification documentation, which impeded the few efforts he made to find a job.
He started selling crack cocaine and methamphetamine. Between the time of his
release at age 20 and his arrest in November 1998 shortly after the two murders
here, Nunez had three additional convictions, apparently for gun possession and
drug sales or possession. He said: ―Practically everything I did was against the
law. I wasn‘t living right.‖
     On the night of the two murders, Yolanda Guaca picked defendant Nunez up
about 9:00 p.m. They bought takeout food and went home, and defendant went to
bed. He woke once during the night to speak with a visitor, went back to sleep,
and then woke up again in the morning. On cross-examination, he conceded that
he sometimes left in the middle of the night without Yolanda‘s knowledge. He
denied meeting Joshua Contreras at a park a half-hour after the murders, and
denied that he had ever been a jail trusty.
     Defendant Nunez said that Ruby Feliciano rented her car to him in exchange
for drugs. When he was arrested in November 1998 shortly after the two murders,
he thought he was being charged with stealing her car. He asked Yolanda to call
Feliciano and ask her to tell the police ―the truth,‖ which was that he had not

                                          8
stolen her car. He ―sort of threatened‖ Feliciano, telling her that if she visited, she
should bring the money she owed him.
     Defendant Nunez admitted assaulting Esther Collins. He said that he had
been drunk and had hit Collins with a small, hard handball because she had not
paid a debt. He had ―no excuse‖ for hitting her, but he denied that he hit her
because she was Black.
     On cross-examination, the prosecutor introduced defendant Nunez‘s
statements during a December 1998 interview with detectives. In the interview,
Nunez was asked if he had a history of ―hating Black people.‖ He replied, ―I don‘t
hate them. I believe in segregation, but I mean, why would I go and shots [sic]
any Black person, there is a lot of them in Wilmington.‖ He also said, ―I can‘t
stand how they get loud. . . . I just believe in segregation. I don‘t like them [too]
much by me, that‘s what I‘m saying. Why I would go all the way to Harbor City
to just shoot a Black person?‖ The prosecutor played a segment of the February
11, 1999, tape recording of both defendants‘ conversation in the jail van
transporting them to court (see pp. 4-5, ante), in which Nunez said he wanted ―no
Black people, woods straight woods.‖ After listening to this segment, Nunez
testified that the term ―woods‖ means ―White people.‖ He said he and defendant
Satele did not discuss the murders in the van.
     Jacqueline Oree testified that her 16-year-old twin sons, Jayson and Jonathan
Brooks, who are Black, were friends with both defendants for about six years
when Oree lived in Wilmington, and that defendant Nunez came over two or three
times a week. Defendant Satele watched her house while she was on vacation,
never spoke derogatorily about Black persons or used the word ―nigger,‖ and
never harmed her sons physically or emotionally. Oree‘s two sons were involved
with the West Side Wilmas gang, an activity she did not approve of. Oree moved
out of the West Side Wilmas‘s territory in August 1999.

                                           9
     Jayson Brooks, Oree‘s son, testified that he had known both defendants for
about three or four years, that all three of them were in the West Side Wilmas
gang, and they spent their time doing recreational activities such as playing
basketball, swimming, and having barbecues.
     Byron Wilson, who had been convicted of murder and sentenced to death,
testified that he knew defendant Nunez in jail from September 1999 to April 2000.
For most of this period, defendant Nunez was a jail trusty. Wilson never heard
him use ―the N-word.‖
     Vondrea Williams, who was in custody awaiting trial on charges of
aggravated mayhem and assault with a deadly weapon, testified that he had met
defendant Nunez in jail about eight or nine months earlier. Williams and Nunez
were jail trusties, and the two alternated shifts. Williams, a Black man, said that
Nunez showed no prejudice and treated Black inmates with respect.
     Jesus Esparza, who was in jail while awaiting trial on an attempted murder
charge, testified that he had been in a cell next to Nunez‘s for several weeks. He
never heard Nunez refer to Blacks in disparaging terms, nor were there any
incidents between Nunez and any Black inmate. On one occasion in December
1999, when the cells were going to be searched, Esparza threw a four-foot-long
hard object made from tightly wrapped paper out of his cell into the hall. The
guards assumed the object belonged to defendant Nunez, even though Esparza
claimed it was his. Nunez stood silent, and was punished with 20 days in the
―hole,‖ a place Esparza described as ―sort of‖ like solitary confinement.
     David Butler, a firearms examiner, retired Los Angeles police officer, and
―distinguished member‖ of the Association of Firearm and Toolmark Examiners,
testified that the casings found at the murder scene bore marks consistent with
having been fired from the gun found in the car in which defendants were riding
the night after the two murders. The magazine attached to this gun held 30

                                         10
rounds. The bullets contained steel penetrators, and were originally designed to
penetrate light armor on military vehicles. In Butler‘s view, the shooter was fairly
stationary when the shooting occurred. He could not tell whether the shooter fired
from inside a car, but if so, the car was stopped at the time of the gun‘s discharge.

               b. Defendant Satele
     Lawrence Kelly testified that he had been a member of the West Side
Wilmas for 12 to 13 years. The gang had between 30 to 40 active members. One
way the gang made money was by selling narcotics; some gang members may also
have committed robbery and assault with a deadly weapon, but the gang did not do
drive-by shootings. A gang member who testified against another gang member
would be ―beat up‖ or even killed.
     At about midnight on the night of the murders (committed around
11:00 p.m.), Kelly met defendant Satele at a park playground. Also present were
defendant Nunez, Joshua Contreras, and Juan Carlos Caballero. Kelly was at the
park for ―a minute or two,‖ and then walked with defendant Satele to the nearby
home of Kelly‘s girlfriend. Contrary to what Contreras told the police, Kelly did
not hear defendant Satele say, ―We were out looking for niggers,‖ nor did he hear
either defendant say, ―I think we got one.‖ At this time, Kelly owned a 1980
brown Buick Regal. (As previously mentioned, prosecution witness Ernie
Vasquez testified that on the night of the murders he saw an older Buick Regal or
similar model sedan driving near the area of the murders, and that persons
resembling Nunez and Satele were passengers in the car.)
     Kelly identified exhibit No. 48, the murder weapon, as a gun to which
everyone in the West Side Wilmas gang had access, adding that the gun was used
to protect gang members engaged in drug transactions.




                                         11
     Kelly had known defendant Satele for about two years and had never heard
defendant Satele ―use the ‗N‘ word‖ or display disrespect for Black persons.
     Kelly knew Joshua Contreras (a prosecution witness), and saw him nearly
every day during 1998, the year of the two murders here. On most occasions,
Contreras was under the influence of crystal methamphetamine and ―[v]ery
paranoid.‖ Kelly explained: ―He would think people were after him or what not
or saying things. His mind was just playing tricks on him and stuff.‖
     Richard Satele, defendant Satele‘s father, testified that his son had never
exhibited racial bias and had been taught to ―respect all races and all people.‖
     Darnell Demery, the husband of defendant Satele‘s cousin, testified that he
had never heard Satele say anything derogatory about Blacks or ―use the ‗N‘
word,‖ nor had he seen Satele being verbally or physically aggressive. Satele did
not have a bad temper and got ―along with everybody.‖ Demery was not aware
that Satele was involved with the West Side Wilmas gang.
     Willy Guillory, a teacher at defendant Satele‘s high school and a longtime
family friend, testified that Satele caused no problems at school, had never
referred to Black persons as ―niggers,‖ and had never behaved ―against any racial
component in our society.‖
     The parties stipulated that, if called to testify, Los Angeles Police Officer
Simmons would testify that she had interviewed murder victim Edward
Robinson‘s sister on October 29, 1998, at the scene of the shooting, and that her
report stated that the sister had said: ―We were all inside my apartment playing
cards, it was time for [murder victim Fuller] to go home. My brother walked her
outside to her car. I went outside on my patio that overlooked the street, to ask my
brother if he locked the front door. . . . Before I had a chance to ask him anything,
I heard about seven shots or more. Then I saw a small gray-colored car driving
down the street.‖

                                         12
     Dr. Lewis Yablonski, a gang expert, testified that to familiarize himself with
the West Side Wilmas gang, he had interviewed four members – defendant Satele,
Lawrence Kelly, and Jayson and Jonathan Brooks. Dr. Yablonski was of the view
that defendant Satele had no ―special hostility towards Black people.‖
     According to Dr. Yablonski: ―[W]hen a gang member is in jail, there is an
issue of survival. Consequently, he may . . . brag a lot to indicate he‘s bad.‖
People in custody, Dr. Yablonski said, brag about crimes they did not commit to
gain a reputation. If defendant Satele, while in jail, told a rival gang member of
Hispanic descent, ―We did a shooting,‖ this would mean he was trying to impress
the other person with the fact that his gang was tough and violent, and to warn the
other person to leave him alone. The word ―we‖ in this context would not
necessarily mean the person making the statement was involved in the crime, but
rather would refer to the gang‘s activity, much as one might say of one‘s
basketball team, ―We beat Indianapolis.‖ If an inmate was bragging about
something he personally did, he would be more likely to say ―I‖ than ―we,‖ but if
one inmate said ―we‖ committed a double murder, and another inmate said ―I‖
committed the same murder, the pronoun used would not necessarily be significant
in ascertaining who committed the crime.

           3. Rebuttal evidence
     Glenn Phillips testified that in November 1999, defense witness Lawrence
Kelly visited Phillips‘s home in Redondo Beach, where Kelly spoke to Warren
Battle, who was Black and worked for Phillips. Kelly asked if Battle would like to
―make a hundred bucks to do a job for him.‖ Battle replied, ―Yes, of course‖ and
Kelly then said he needed Battle ―to testify we get along with Black people.‖
     Los Angeles County Deputy Sheriff Larry Arias testified that on November
9, 1999, he was escorting a Black inmate named Keys in the Men‘s Central Jail.



                                         13
Keys, who was ―waist chained‖ and could not raise his hands to his face, was
punched in the face by defendant Satele and fell to the ground. Keys had not
provoked the attack.
     Los Angeles County Deputy Sheriff John Kepley testified that on December
2, 1999, he conducted a random search of a module in the Men‘s Central Jail.
Each cell housed one inmate. While standing in front of cell 14, he saw an inmate
in cell 16 walk up to the gate, look down the row, and throw the ―shaft‖ of a
―spear‖ into the area in front of the cell. Jail records showed that defendant Nunez
was assigned to cell 16. Kepley did not recall any inmate claiming responsibility
for throwing out the object.

       B. Penalty Phase

           1. Prosecution evidence
     The prosecution presented victim impact testimony and evidence of
defendant Nunez‘s jail misconduct.
     Testifying about 21-year-old murder victim Renesha Ann Fuller were
Roberta Hollis (Renesha‘s mother) and Simon Hollis (Renesha‘s stepfather).
(Because each victim has the same surname as several of the penalty phase
witnesses, we refer to the victims and witnesses by their first names in this portion
of the opinion.) Roberta provided transportation to persons with AIDS, and Simon
was an Inglewood police officer. Roberta described Renesha as quiet, sweet, and
innocent: a ―mother‘s . . . dream in a child.‖ After Renesha‘s murder, Roberta
missed six months of work.
     Roberta and Simon testified that Renesha did well in school, and had just
started her first year of college when she was killed. She worked as a teacher‘s
aide at a school for students who had ―dropped out of school and had hard times.‖
After the murder, Renesha‘s students started a college scholarship in her name.



                                         14
     Testifying about 22-year-old murder victim Edward Robinson were Leandrea
Fields-Robinson (Edward‘s stepmother), Albert Robinson (Edward‘s father), Rosa
Robinson Morris (Edward‘s sister), and Renesha Robinson (Edward‘s niece).
Leandrea, a former teacher and counselor, was an administrator for the Los
Angeles Unified School District. Albert was in the construction industry, and
specialized in installing tennis courts. After Edward‘s mother died in childbirth,
Leandrea raised Edward from the time he was three months old.
     Murder victim Edward was close to his father, and Leandrea said the two
would talk for hours ―about being a man and doing the right thing.‖ Edward
attended Harbor City College, and worked part-time for his father to help pay for
school. Edward led a prayer group at church, was the church drummer, and was
the kind of person ―that any mother or father would love to have to call their son.‖
His father recalled that ―a lot of young people his age . . . said because of him they
turned their lives around and started going to church and studying the Bible.‖
Edward was taught to respect women, and it was reflective of his character that he
was walking Renesha to her car on the night they were murdered.
     Los Angeles County Deputy Sheriff Randall Shickler testified that on August
17, 1999, he and another deputy transported defendant Nunez from court back to
jail. Nunez was in the front section of the bus with about 12 other inmates, and
one of his hands was handcuffed to a chain. Shickler heard a ratcheting sound and
saw that Nunez, no longer handcuffed, was standing over another inmate. He
refused orders to recuff, laughed, and began doing jumping jacks to demonstrate to
Shickler that he was free. After the bus reached the jail, when other deputies who
had been called out to assist were visible from inside the bus, Nunez put his
handcuffs back on. The officers determined that the handcuffs of about 10
inmates on the bus had been altered.



                                         15
     Los Angeles County Deputy Sheriff Lisa Estes testified that on one occasion
in the middle of trial she searched defendant Nunez after he arrived from jail and
before he appeared in court. She found a razor blade in a Bible Nunez was
carrying.
     Los Angeles County Deputy Sheriff Ronald Baltierra testified that on May 8,
2000, he saw another deputy search defendant Nunez before a court appearance.
In Nunez‘s mouth, the deputy found a heavy-duty staple, which in Baltierra‘s
opinion could be used to unlock handcuffs.

            2. Defense evidence

               a. Defendant Nunez
     Jorge Flores, defendant Nunez‘s father, testified that he and Betty Nunez,
defendant Nunez‘s mother, lived together while she was pregnant with defendant
Nunez. After he was born they continued to see each other for a couple of years.
Jorge had seen defendant Nunez about ―seven times.‖ He did not counsel and
guide him as he was growing up. The last time he had seen defendant Nunez was
in 1980 or 1981, when Jorge borrowed a car from the family and never returned it.
After about 1984, when he married, he was under the impression that Betty did not
want her family to give him any information about defendant Nunez‘s location,
and wanted Jorge to stay away from him. He regretted not being there for
defendant Nunez and guiding him.
     Antonio Nunez, defendant Nunez‘s uncle, testified that Betty Nunez was his
half sister. Their mother had a drinking problem. Antonio was 13 or 14 years old
and Betty was about 18 years old when defendant Nunez was born. At the time,
Betty was homeless and stayed with various relatives and friends, including
Antonio‘s family; she was inexperienced at caring for an infant. Her resources
were extremely limited, and often when Betty was at Antonio‘s home there was no



                                        16
food or clean diapers for defendant Nunez. Betty was an emotionally distant
mother.
     About a year after defendant Nunez was born, Antonio left school to support
the family. He eventually bought a house in Wilmington, and Nunez (who was
eight or nine years old) and Betty lived with him. Antonio worked long hours, and
Betty worked at night, so Nunez was left unsupervised. Nunez was excited when
he did well in Little League, and Antonio regretted not going to more of his games
or understanding its importance to him. Nunez was jealous of Antonio‘s wife
when Antonio got married. When Nunez was between 12 and 14 years old, the
police raided Antonio‘s house looking for gang members. As a result, Antonio
became concerned for his family‘s safety and asked Betty and Nunez to move out.
     Yolanda Guaca, defendant Nunez‘s girlfriend and the mother of his two
young sons, said she loved him and did not want to see him executed.
     Dr. Saul Niedorf, a psychiatrist and pediatrician, testified that he had
interviewed defendant Nunez, and had also spoken with his mother, his uncle
Antonio, two of his aunts, and Yolanda Guaca. He had reviewed Antonio Nunez‘s
trial testimony and at least some of defendant Nunez‘s records from the former
California Youth Authority. He did not administer any tests, but he considered it
likely that defendant Nunez could read at a high school level.
     Dr. Niedorf noted defendant Nunez‘s lack of bonding with his mother, and
said defendant‘s uncle Antonio was his first consistent bond. As a result of
Antonio‘s influence, Nunez was later a tender and caring father. When Nunez was
about 10 or 11, he lost this consistent attachment because Antonio became
invested in married life. Nunez looked for teenage boys to be attached to, and
found this attachment in gang members. In Dr. Niedorf‘s view, defendant was
compulsive and obsessive, and methodically and loyally worked at his ―job‖ of
selling drugs. He participated in a work program while incarcerated as a teenager,

                                         17
and Dr. Niedorf noted that there are work programs in the California prison
system.
       In Dr. Niedorf‘s opinion, defendant Nunez was ―relatively free of explosive
irrational behavior[],‖ and thought before he did things unless he was provoked.
Dr. Niedorf viewed his acts of misconduct in jail as acts of defiance that
developed his self-esteem. They were not based on a desire to escape, although
that desire was there, nor were they explosive or aggressive. He agreed, however,
with the prosecutor that such misconduct ―can create an explosive situation,‖ and
that ―going to a rival gang territory with a loaded assault rifle . . . with armor-
piercing bullets and driving around in that area and looking to kill someone‖ was
aggressive. In Dr. Niedorf‘s view, defendant Nunez ―believe[d] he did not kill‖
and ―grieve[d] that there were victims in this crime, who, as he would put it, were
innocent.‖

                b. Defendant Satele
       Testifying on defendant Satele‘s behalf were his parents, Richard and Esther
Satele. Richard was 26 years old and Esther was 20 years old when Satele was
born, which occurred four or five months after Richard and Esther were married.
Richard worked long hours at two jobs during their first two years of marriage,
and started to drink. They had physical fights in Satele‘s presence. When Satele
was two or three years old, Esther left. Richard quit his night job and moved in
with his parents in Carson, who helped to raise Satele until he was about 12 years
old.
       When Richard was not at work, he tried to spend as much time with
defendant Satele as he could. Satele was active in sports, and Richard attended
every sports practice and took time off from work to attend the games. Every year




                                           18
from the time Satele was five years old they vacationed in places like Samoa,
Hawaii, or Palm Springs.
     Esther visited her son once or twice a year when he was between the ages of
two and a half and five, and about once a month after that. When defendant Satele
was about seven or eight years old, he visited Esther on weekends. Every time she
brought Satele back to Richard‘s house he was in tears and wanted to stay with
her. Esther did not have her own home, but lived with her sister, and she did not
think that environment would be best for her son. When Satele was 11 or 12 years
old, Esther returned to live with him and his father. She was never involved with
Satele‘s education, and she did not meet his teachers or attend school functions.
     When defendant Satele was about 12 years old, Richard bought a house in
Redondo Beach. Satele was unhappy that he had to change schools. He was
caught ―tagging‖ (spray painting graffiti) at the school and was suspended.
Richard typically disciplined Satele by slapping or using a belt, and on this
occasion he ―gave him a good beating‖ with a belt. Satele was caught tagging
again a couple of months later, and told the school he did not want to go home
because his father would beat him. The school contacted child protective services,
which told Richard that corporal punishment was against the law and he could be
prosecuted if another incident occurred. Richard turned to other forms of
discipline, such as denying privileges, but ―troubles just kept on increasing.‖
     Defendant Satele ran away on one occasion for a weekend, and on another
occasion for a week, and Richard did not know where he was during those times.
Richard asked Satele what they could do to stop this activity, and Satele said he
wanted to return to Carson and live with his grandparents. Richard allowed him to
do so, and every day he drove his son to school in Carson. Satele ran away from
his grandparents‘ house as well, and began cutting classes. He received A‘s and



                                         19
B‘s in classes he liked, such as math, and D‘s and F‘s in classes he disliked, such
as English.
     When defendant Satele was about 15, he was caught tagging again. Because
of his previous offenses, he was incarcerated for three months in juvenile camp.
Richard and Esther visited him every weekend. After leaving camp, he seemed to
communicate more openly with his parents, and was interested in graduating from
high school and possibly playing football.
     When defendant Satele was 16, the police found him carrying a gun. He was
placed in a military boot camp for about four months, and Richard said he
received ―rav[e] reviews.‖ Satele acknowledged that he needed discipline and did
well in that environment. He was about 17 years old when he was released, and
expressed a desire to graduate from school and ―do good.‖ He took night classes
in addition to his regular school schedule so he could catch up. Six months later,
when he was still 17 years old, he left home and dropped out of continuation
school. Richard eventually found him in Wilmington. Although he knew how to
contact Satele if he needed to, he left his son alone to fend for himself.
     Looking back on defendant Satele‘s life, Esther believed she had failed him
―constantly‖ as a mother. Richard asked the families of Renesha and Edward to
forgive his son and asked the jury to spare his life.
     Dr. Samuel Miles, a psychiatrist, testified that he interviewed defendant
Satele three times and also interviewed Satele‘s parents. Esther and Richard split
up and reconciled many times, and Satele‘s lack of consistent interaction with
them, according to Dr. Miles, significantly affected the development of his
identity. Satele‘s first memory was of riding a skateboard at about the age of 11;
although he also recalled events between the ages of two and six, Dr. Miles could
not be certain these were not ―indirect memor[ies]‖ related to Satele by another
individual.

                                          20
     In Dr. Miles‘s view, being in a gang provided defendant Satele a consistent
environment where he was accepted, which he could not get at home. Richard‘s
physical punishment of Satele alienated Satele, and left Richard with no effective
form of discipline when he stopped using it. Although Satele was 20 years old
when Dr. Miles first interviewed him, ―emotionally he was more like 12.‖
Dr. Miles acknowledged that despite Satele‘s emotional immaturity, he knew the
difference between right and wrong.
     Dr. Miles administered the Minnesota Multiphasic Personality Inventory to
defendant Satele; the results were ―highly pathological,‖ showing someone in
turmoil who had identity problems and might be psychotic. He asked for
additional testing of Satele by a psychologist, on which Satele scored in the
borderline range in intelligence, but not low enough to be considered mentally
retarded. On the Wide Range Achievement Test, Satele scored ―in the average
range for someone who is in high school,‖ and reported he took no special classes
for the learning disabled. Satele gave few responses on the Rorschach inkblot test,
which can occur when a person is ―overwhelmed by [the ink blots] and excited or
very guarded.‖ His responses on the ―Milikin clinical, multi-axle test‖ (sic: most
likely the Millon Clinical Multiaxial Inventory) showed ―some turmoil and a
history of some problems with the law.‖
     According to Dr. Miles, defendant Satele did not have hallucinations.
Dr. Miles believed that at times Satele may have experienced paranoid delusions,
but Satele denied doing so. Satele said he generally became ―paranoid when he
was up a lot and on . . . amphetamine.‖ He told Dr. Miles he drank heavily and
used methamphetamine four or five days at a time. According to Dr. Miles, an
individual who has experienced paranoia while using amphetamine is more likely
to become paranoid when using the drug again. Satele said that around the time of
the murders he was ―loaded‖ and had not slept for several days.

                                          21
     Dr. Miles concluded that defendant Satele lost control when he was agitated,
was impulsive and aggressive, and had turmoil, identity problems, paranoia, low
self-esteem, and ―fragility.‖ The combined effect of these circumstances left
Satele with ―less than the average amount of control over impulsiveness,‖ ―prone
to undue influence[] from others,‖ and more of a follower than a leader. They also
made him subject to substance abuse, and when abusing substances to have
―periodically bad experiences‖ that made him react to others in a hostile fashion.
Dr. Miles diagnosed Satele with amphetamine abuse, alcohol abuse, probable
psychosis not otherwise specified, and borderline personality disorder.
                                  II. DISCUSSION

       A. Pretrial Issues

           1. Excusal of prospective juror based on her death penalty views

               a. Factual background
     On her juror questionnaire, in response to the question ―In what ways, if any,
might your religious views affect your service as a juror in this case,‖ Prospective
Juror No. 2066 wrote: ―I would not send any person to death. The Bible say[s]
thou shalt not kill.‖ In response to the question ―Would you, because of any views
that you may have concerning capital punishment, refuse to find the defendant
guilty of first degree murder, even though you personally believe the defendant to
be guilty of first degree murder, just to prevent the penalty phase from taking
place‖ she wrote, ―I don‘t know yet.‖ When asked whether, because of her views
on capital punishment, she would refuse to find a special circumstance true, even
though she personally believed it to be true, ―just to prevent the penalty phase
from taking place,‖ she said, ―No.‖
     When asked on the questionnaire whether she would ―automatically refuse to
vote in favor of the penalty of death and automatically vote for a penalty of life


                                         22
imprisonment without the possibility of parole,‖ Prospective Juror No. 2066 wrote
―Yes.‖ Asked if she would change her answer to this question if she was
instructed and ordered by the court that she must consider and weigh the
aggravating and mitigating factors regarding the facts of the crime and the
background and character of the defendant before voting on the issue of penalty,
she wrote, ―I might.‖ In response to the question ―Could you set aside your own
personal feelings regarding what the law ought to be and follow the law as the
court explains it to you‖ she wrote, ―I don‘t know if I could.‖ Asked to describe
her ―general feelings about the death penalty,‖ she wrote, ―I don‘t feel at ease with
it.‖ When asked to identify the statement ―that best describes your views on the
death penalty,‖ she selected, ―While I am strongly opposed to the death penalty, I
do believe there are rare cases where a death sentence should be imposed for a
deliberate murder.‖ When asked, ―Can you fairly and impartially listen and weigh
the evidence, set aside any moral, religious, or personal views and/or beliefs you
may have about the death penalty to render a verdict in accordance with law‖ she
wrote, ―I don‘t know.‖
     On voir dire, the trial court asked Prospective Juror No. 2066 what she meant
by her response of ―I don‘t know yet‖ to the question asking whether her views on
capital punishment would cause her to find a defendant not guilty of first degree
murder, even if she personally believed him to be guilty, to prevent the penalty
phase from taking place. She replied: ―Undecided. I would kind of make it
lenient.‖ The court later asked, ―[I]f you were to sit as a juror in a case in which
the death penalty is sought, and you get to the penalty phase, . . . would you be
able, upon consideration of any aggravating and mitigating factors, to impose the
death penalty if you feel it is warranted? Would you be able to vote for it, in other
words?‖ She replied: ―I probably would be hesitant. I wouldn‘t want to vote for
. . . the death penalty.‖

                                          23
     The prosecutor then said to Prospective Juror No. 2066, ―I think that
coincides with your answer . . . where you said, ‗I don‘t feel at ease with it.‘ ‖ She
replied, ―Right.‖ The prosecutor began, ―I take it that it‘s such a difficult decision
for you —‖ Prospective Juror No. 2066 interrupted to say, ―Yes, it is.‖ The
prosecutor continued ―— that you could not vote for the death penalty?‖ She said,
―Yes.‖
     Defendant Nunez‘s counsel asked, ―Is it correct that after you hear all of the
evidence you will follow the instructions on the law and do what the law requires
you to do in this state based upon how you find the facts to be?‖ Prospective Juror
No. 2066 replied, ―I‘ll do my best, yes.‖
     The trial court asked Prospective Juror No. 2066 whether she would
automatically exclude the possibility of voting to impose the death penalty if she
concluded the facts of the case warranted such a penalty. She replied, ―If there
were other alternatives, I would probably . . . look at those first before choosing
the death penalty.‖ The court stated there would be only two choices at any
penalty phase, and asked, ―Would you weigh the evidence to decide which
alternative between the two you should choose?‖ Prospective Juror No. 2066
replied, ―Yes.‖ The court subsequently asked, ―And if the evidence on the
aggravation and mitigation warrants that the . . . death penalty should be imposed,
would you be able to vote for death, knowing there is a possibility that you could
choose life without possibility of parole?‖ She replied, ―Yes.‖
     The prosecutor explained to Prospective Juror No. 2066 again that her two
choices at the penalty phase were voting for the death penalty or for life
imprisonment without the possibility of parole, and inquired whether she would
―automatically vote for the life in prison sentence.‖ Prospective Juror No. 2066
said, ―Yes.‖ The prosecutor asked, ―Even if I put on a bunch of aggravating



                                            24
factors about various things, would you still vote for that life sentence?‖ She
replied, ―Yes, I think I would.‖
     Defendant Nunez‘s counsel asked, ―Can you conceive of a crime so heinous
that you would ever vote for death?‖ Prospective Juror No. 2066 responded, ―No,
I don‘t think so.‖ Counsel subsequently asked, ―If . . . you see there are only two
alternatives, he goes to prison . . . for the rest of their natural life, or they go up to
prison to be killed; are you saying you could never, ever, no matter what it was,
say, ‗Well, I will vote for death?‘ ‖ She replied, ―Yes, I‘m saying that right now.‖
Counsel asked, ―You didn‘t say that a minute ago?‖ She said, ―Maybe the
question was presented to me a little different.‖
     The trial court asked, ―Do you believe that a case could be so bad that you
would vote for death?‖ Prospective Juror No. 2066 replied, ―I believe a case could
be that bad, but I still wouldn‘t want to vote the death penalty.‖ The court
subsequently asked, ―Is it you couldn‘t or you don‘t want to, or both?‖ She
replied, ―Both.‖
     Defendant Satele‘s counsel asked, ―[I]f you made up your mind that the
decision you made up was the prosecution has established to you a belief this
person is a really bad person and that person deserves the death penalty, could you
do it?‖ Prospective Juror No. 2066 replied, ―It would be hard for me.‖ Counsel
said: ―I understand. It‘s hard for everybody. That is [a] tough decision. Could
you?‖ She replied, ―I don‘t know if I could.‖
     The prosecutor challenged Prospective Juror No. 2066 for cause. The trial
court sustained the challenge, stating: ―This court has examined the juror‘s state
of mind, particularly the demeanor in this case, and the reluctance of the
responses, and the equivocal responses that the juror has had, and the conflicting
responses that the juror has had. And this court makes the determination as to the
juror‘s state of mind, and she is incapable of imposing the death penalty. And the

                                            25
reason [is] . . . because of her reluctance to be able to do that when asked her the
leading question as to whether or not she could impose it under certain
circumstances she said, yes; but when asked if there‘s another choice, life
imprisonment, what would she do, she, without reluctance and without
equivocation, chose life imprisonment if there‘s a choice. Given that is the case,
and given her responses in the questionnaire, her demeanor in the court and her
state of mind as observed by this court, with multiple inferences that are given, the
court infers based upon her responses that she is not death qualified and excuses
her for cause.‖

                  b. Analysis
     Defendants contend that the trial court erroneously excused Prospective Juror
No. 2066 based on her views regarding the death penalty, in violation of their
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal
Constitution.
     The Attorney General argues that defendants have forfeited their arguments
based on the Fifth and Eighth Amendments because, at trial, they did not
challenge the trial court‘s excusal of Prospective Juror No. 2066 on these grounds,
although the Attorney General acknowledges that no objection was required to the
extent defendants‘ challenge is based on the Sixth and Fourteenth Amendments.
Under the law applicable at the time this case was tried, ―an appellate challenge to
a Witherspoon/Witt excusal is not forfeited by a failure to object at trial‖ (People
v. McKinnon (2011) 52 Cal.4th 610, 637; see Witherspoon v. Illinois (1968) 391
U.S. 510; Wainwright v. Witt (1985) 469 U.S. 412), although the forfeiture rule
applies to defendants who fail to object in cases tried after McKinnon became
final. (McKinnon, at p. 643.) The rule that no objection was necessary applies




                                          26
regardless of the constitutional provision on which the challenge is based. We
therefore address defendants‘ claims on the merits.
     ―The federal constitutional standard for dismissing a prospective juror for
cause based on his or her views of capital punishment is ‗ ―[w]hether the juror‘s
views would prevent or substantially impair the performance of his duties as a
juror in accordance with his instructions and his oath.‖ ‘ ‖ (People v. Friend
(2009) 47 Cal.4th 1, 56 (Friend), quoting Uttecht v. Brown (2007) 551 U.S. 1, 7.)
― ‗On appeal, we will uphold the trial court‘s ruling if it is fairly supported by the
record.‘ ‖ (People v. Barnett (1998) 17 Cal.4th 1044, 1114.) ―When the
prospective juror‘s answers on voir dire are conflicting or equivocal, the trial
court‘s findings as to the prospective juror‘s state of mind are binding . . . if
supported by substantial evidence.‖ (People v. Duenas (2012) 55 Cal.4th 1, 10.)
     Here, Prospective Juror No. 2066 equivocated and gave conflicting responses
to questions pertaining to her ability to follow the law concerning imposition of
the death penalty. On the one hand, she wrote on her juror questionnaire that she
―would not send any person to death‖ because ―[t]he Bible say[s] thou shalt not
kill,‖ and that she would refuse to vote in favor of the death penalty and would
automatically vote for a penalty of life imprisonment without the possibility of
parole because of her views concerning capital punishment. On voir dire, she
agreed with the prosecutor that she ―could not vote for the death penalty.‖ On the
other hand, Prospective Juror No. 2066 also answered ―yes,‖ when asked if she
would ―weigh the evidence to decide‖ whether to vote for death or life
imprisonment without the possibility of parole, and she said she would be ―able to
vote for death‖ if she concluded that ―the evidence on the aggravation and
mitigation warrants that the . . . death penalty should be imposed.‖
     The trial court was in a position, which we are not, to view Prospective Juror
No. 2066‘s demeanor, and its determination of her state of mind is binding.

                                           27
―Deference to the trial court is appropriate because it is in a position to assess the
demeanor of the venire, and of the individuals who compose it, a factor of critical
importance in assessing the attitude and qualifications of potential jurors.‖
(Uttecht v. Brown, supra, 551 U.S. at p. 9.) ―Hence, the trial judge may be left
with the ‗definite impression‘ that the person cannot impartially apply the law
even though, as is often true, [she] has not expressed [her] views with absolute
clarity.‖ (People v. DePriest (2007) 42 Cal.4th 1, 21.) Here, substantial evidence
supports the trial court‘s determination that Prospective Juror No. 2066‘s views on
the death penalty would prevent or substantially impair her ability to serve as a
juror.
     The cases on which defendants rely (People v. Heard (2003) 31 Cal.4th 946;
People v. Pearson (2012) 53 Cal.4th 306 (Pearson)) are inapposite. Unlike the
prospective juror wrongly excused in Heard, Prospective Juror No. 2066 did not
indicate on voir dire she ―was prepared to follow the law and had no
predisposition one way or the other as to imposition of the death penalty,‖ nor was
she generally ―clear in [her] declarations that [she] would attempt to fulfill [her]
responsibilities as a juror in accordance with the court‘s instructions and [her]
oath.‖ (Heard, at p. 967.)
     Defendant Nunez asserts it is significant that Pearson, supra, 53 Cal.4th 306,
involved the same trial judge as in this case. The trial here occurred before the
trial in Pearson. In Pearson, we concluded that the trial court erroneously
excused a prospective juror whose views on the death penalty in general were
―vague and largely unformed‖ (id. at p. 330), but who ―made no conflicting or
equivocal statements about her ability to vote for a death penalty in a factually
appropriate case‖ (ibid.). We observed that the trial court had misunderstood and
misapplied People v. Guzman (1988) 45 Cal.3d 915, 956 (Guzman) (overruled on
other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13),

                                          28
which held that a prospective juror‘s use of equivocal phrases such as ―I think‖ or
―I believe‖ when expressing an inability to vote for death did not preclude the trial
court from properly finding that the prospective juror‘s ability to follow the trial
court‘s instructions would be substantially impaired. The trial court in Pearson
erroneously stated that, under Guzman, it could excuse a prospective juror because
the prospective juror expressed equivocal views about capital punishment in
general. This view, we explained, was wrong. Guzman, we said, ―does not stand
for the idea that a person is substantially impaired for jury service in a capital case
because his or her ideas about the death penalty are indefinite, complicated or
subject to qualifications . . . .‖ (Pearson, at p. 331.)
     Here, defendant Nunez argues that certain comments by the trial court earlier
in the jury selection process reflect the same misunderstanding of the holding in
Guzman, supra, 45 Cal.3d at page 956, that it expressed during the trial of
Pearson. Whether or not Nunez is correct, the court‘s explanation for excusing
Prospective Juror No. 2066 does not reflect that misunderstanding. Unlike the
prospective juror wrongly excused in Pearson, Prospective Juror No. 2066 did not
merely express equivocal views about the death penalty in general; rather, she
made ―conflicting or equivocal statements about her ability to vote for a death
penalty in a factually appropriate case.‖ (Pearson, supra, 53 Cal.4th at p. 330,
italics added.) Based on those responses, the trial court found that Prospective
Juror No. 2066 ―is incapable of imposing the death penalty.‖ This finding was
tantamount to a finding that her views about the death penalty would
― ‗ ―substantially impair‖ ‘ ‖ her ability to perform her duties as a juror. (Friend,
supra, 47 Cal.4th at p. 56.) Because substantial evidence supports that finding, the
trial court properly excused Prospective Juror No. 2066 for cause.




                                           29
           2. Denial of defense challenge for cause
     Defendants contend that the trial court erred in denying their challenge for
cause to Prospective Juror No. 8971, who was later sworn as an alternate juror and
eventually served on the penalty jury.2 Defendants forfeited this claim because
defendants did not use an available peremptory challenge to remove Prospective
Juror No. 8971. ― ‗As a general rule, a party may not complain on appeal of an
allegedly erroneous denial of a challenge for cause because the party need not
tolerate having the prospective juror serve on the jury; a litigant retains the power
to remove the juror by exercising a peremptory challenge. Thus, to preserve this
claim for appeal we require . . . that a litigant actually exercise a peremptory
challenge and remove the prospective juror in question.‘ ‖ (People v. Jones
(2012) 54 Cal.4th 1, 45.) Defendants failed to do so, and cannot now complain
about the trial court‘s asserted error.

       B. Guilt Phase Issues

           1. Challenge to impeachment of Lawrence Kelly

                a. Factual background
     Lawrence Kelly testified on behalf of defendant Satele that he had been a
member of the West Side Wilmas gang for 12 to 13 years, that he had known


2     In this and certain other appellate claims defendants contend the asserted
error infringed upon their constitutional rights. In those instances where they did
not present constitutional theories below, ―it appears that either (1) the appellate
claim is one that required no objection to preserve it, or (2) the new arguments are
based on factual or legal standards no different from those the trial court was
asked to apply, but raise the additional legal consequence of violating the
Constitution‖ (People v. Loker (2008) 44 Cal.4th 691, 704, fn. 7), and to that
extent their new constitutional arguments are not forfeited on appeal (ibid.). ―No
separate constitutional discussion is required, or provided, when rejection of a
claim on the merits necessarily leads to rejection of any constitutional theory or
‗gloss‘ raised for the first time here.‖ (Ibid.)



                                          30
defendant Satele for about two years, and that he had never heard Satele ―use the
‗N‘ word‖ or display disrespect for Black persons. This testimony contradicted
evidence introduced by the prosecution that Satele had referred to Blacks as
―niggers.‖ Kelly also testified that he was present with both defendants at a park
playground about midnight on the night of the murders, and he did not hear
defendant Satele say, ―We were out looking for niggers,‖ or either defendant say,
―I think we got one.‖ This contradicted the prosecution‘s evidence that defendants
made these statements.
     On cross-examination, Kelly denied that while at the house of Glenn Phillips,
Kelly had offered a Black person $100 either to testify that West Side Wilmas and
―African Americans get along,‖ or to say, ―We get along.‖
     When the prosecutor called Glenn Phillips to testify on rebuttal, defendant
Nunez objected under Evidence Code section 352, and defendant Satele objected
that the testimony was irrelevant. Outside the jury‘s presence, the trial court held
a hearing, at which Phillips testified that in November 1999, Lawrence Kelly
visited Phillips‘s home, where he spoke to Warren Battle, a Black man who
worked for Phillips. Kelly asked Battle if he wanted to ―make a hundred bucks,‖
explaining that he needed Battle to testify that ―we get along with Black people.‖
Kelly did not say who he meant by the word ―we,‖ but Phillips assumed he was
referring to the West Side Wilmas gang.
     The prosecutor offered Phillips‘s testimony for the purpose of impeaching
Kelly, who had denied offering anyone money to testify. The trial court precluded
the prosecutor from asking Phillips whom he thought Kelly was referring to when
Kelly used the word ―we,‖ but it allowed the remainder of the testimony, finding
that it directly controverted Kelly‘s testimony, and that its probative value
outweighed its prejudicial effect. Phillips then testified before the jury regarding



                                         31
Kelly‘s statement. His testimony was consistent with his testimony at the
hearing. (See p. 13, ante.)

                b. Analysis
     Defendants contend the trial court should have sustained their objection to
the impeaching testimony by witness Phillips, described above in part II.B.1.a.
We disagree.
     ―Rebuttal evidence is relevant and thus admissible if it ‗tend[s] to disprove a
fact of consequence on which the defendant has introduced evidence.‘ [Citation.]
The trial court is vested with broad discretion in determining the admissibility of
evidence in rebuttal.‖ (People v. Clark (2011) 52 Cal.4th 856, 936; see People v.
Mills (2010) 48 Cal.4th 158, 195 [the trial court has ―broad power to control the
presentation of proposed impeachment evidence‖].) Here, as the trial court
observed, Phillips‘s testimony directly contradicted Kelly‘s testimony on the issue
of whether Kelly had attempted to bribe a witness ―to testify we get along with
Black people,‖ and hence was relevant to assessing Kelly‘s credibility as a
witness. (See People v. Millwee (1998) 18 Cal.4th 96, 128 [evidence bearing on a
witness‘s credibility is proper rebuttal].) The trial court therefore did not abuse its
discretion in admitting the testimony.
     Defendants point out that the prosecution made no showing that they
authorized or encouraged Kelly to try to influence a witness, and hence the
evidence could not be used to demonstrate their consciousness of guilt. But the
evidence was not introduced to show defendants‘ consciousness of guilt, but to
impeach Kelly‘s credibility. Defendants argue that Phillips‘s testimony was
unduly prejudicial because there was ―a high likelihood that the jury [would]
misuse the evidence‖ to ―infer consciousness of guilt.‖ Not so. No evidence
connected defendants to Kelly‘s bribery attempt, and the jury was instructed that



                                          32
―[i]f you find that an[] effort to procure false or fabricated evidence was made by
another person for the defendant‘s benefit, you may not consider that effort as
tending to show[] the defendant‘s consciousness of guilt unless you also find that
the defendant authorized that effort.‖
     Defendants point out that Kelly‘s testimony that he had never offered money
to Battle to testify for the defense was first elicited by the prosecution on cross-
examination; Kelly had not testified about that subject on direct examination. The
prosecution, defendants contend, used its cross-examination questions to Kelly for
the purpose of creating the necessity for witness Phillips‘s testimony impeaching
Kelly. The trial court, they assert, should have forestalled this tactical maneuver
by excluding Phillips‘s testimony. Even if we assume for the sake of argument
that defendants‘ objection at trial was adequate to preserve this claim, it lacks
merit. The prosecutor was free to explore on cross-examination whether Kelly
had attempted to bribe a witness because such evidence was relevant to Kelly‘s
credibility. Once Kelly denied the event, Phillips‘s testimony was admissible to
impeach Kelly. Although defendants are correct that Phillips‘s testimony would
not generally have been admissible if Kelly had admitted that the bribery attempt
conversation had occurred, that does not mean Kelly‘s attempted bribe was a
collateral issue.
     Defendants assert that in closing argument, the prosecutor misstated the
purpose for which the trial court had admitted Phillips‘s impeaching testimony,
thereby increasing the likelihood that the testimony would confuse the jury. The
prosecutor argued: ―Glenn Phillips was called to show you that . . . [Kelly]
offered an African-American a hundred dollars to say we get along. Is [Kelly] a
witness . . . you are going to believe in this courtroom? Somebody that . . . would
go to the extent of going up to [an] African-American and say if you go into court
and say something for us. Mr. Phillips has no axe to grind in here. . . . [Kelly] is

                                          33
the person who hangs around Glenn Phillips [and] . . . offered a hundred dollars to
a witness to lie in this case. What does that tell you about [Kelly], and his
testimony here?‖ The prosecutor also argued, ―I‘ve already spoken about the fact
that [Phillips] said [Kelly] bribed an individual with [a] hundred bucks to come in
here and lie.‖
     Defendants did not object to the prosecutor‘s argument at the penalty phase
or seek an admonition, and no exception to the general rule requiring an objection
and request for admonition is applicable. The claim is therefore forfeited. (People
v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).) It also lacks merit.
Defendants point out that in the argument quoted above, the prosecutor claimed
that Kelly had tried to bribe a witness. But, defendants assert, Phillips‘s testimony
was admitted only to impeach Kelly‘s testimony, not to show that an attempted
bribe occurred. The prosecutor‘s argument, they reason, most likely caused the
jury to draw the improper inference that defendants had asked Kelly to offer the
bribe.
     We see nothing improper in the prosecutor‘s argument, nor is there a
reasonable likelihood that it would have caused the jury to draw the improper
inference described above. While the prosecutor was not entitled to invite the jury
to infer that defendants were responsible for Kelly‘s bribery attempt, nothing in
the prosecutor‘s challenged comments asked the jury to draw such an inference.
Thus, contrary to defendants‘ contention, the prosecutor‘s argument was not
confusing, did not ask the jury to draw improper inferences, and did not increase
the likelihood that they would be prejudiced by Phillips‘s testimony.




                                         34
           2. Challenge to evidence on rebuttal that defendant Satele hit an
              inmate

               a. Factual background
     During the defense case, Darnell Demery, the husband of defendant Satele‘s
cousin, testified that he had never heard Satele say anything derogatory about
Black persons or ―use the ‗N‘ word.‖ Nor had he seen Satele being aggressive,
argumentative, or physical with anyone. Satele, Demery claimed, did not have a
bad temper and got ―along with everybody.‖
     At sidebar, the prosecutor sought the trial court‘s permission to ask Demery
if he was aware that defendant Satele had attacked other inmates in jail when those
inmates were restrained, and whether those incidents would affect his opinion of
Satele. Satele‘s counsel appeared to note that one victim was Black and the other
Asian. The trial court precluded this line of cross-examination, finding its
―probative value outweighed by the prejudicial effect.‖
     After this ruling, three defense witnesses testified that defendant Satele was
not prejudiced against Blacks. Satele‘s father testified that his son had never
exhibited racial bias and had been taught to ―respect all races and all people.‖
Dr. Lewis Yablonski, the gang expert who had interviewed Satele and several
other West Side Wilmas gang members, testified that he did not detect any racial
animus, and was of the view that Satele had no ―special hostility towards Black
people.‖ And Willy Guillory, a teacher at Satele‘s high school and a longtime
family friend, testified that Satele caused no problems at school, had never
referred to Black persons as ―niggers,‖ and had never behaved ―against any racial
component in our society.‖
     At the end of Guillory‘s testimony on direct examination, the prosecutor
again sought to introduce evidence that defendant Satele had assaulted handcuffed
inmates on two occasions. He argued that these attacks showed racial animus and


                                         35
that Satele had opened the door to the testimony. The trial court allowed the
inquiry. The prosecutor then asked Guillory if his opinion that Satele treated
people of other races appropriately would change if he knew that Satele, while in
jail, had punched a handcuffed Black inmate in the face. Guillory said he would
―find that highly unusual.‖ The prosecutor then asked, ―What happens if I also
told you‖ that Satele had slugged an inmate who was handcuffed to another
inmate. Guillory responded, ―I would say it‘s . . . not the young man I knew . . . in
high school.‖
     On rebuttal, the prosecution called Deputy Larry Arias, who testified that on
November 9, 1999, he was escorting a Black inmate named Keys in the Men‘s
Central Jail. Keys was ―waist chained‖ and could not raise his hands to his face.
Defendant Satele punched Keys in the face, and Keys fell to the ground. Keys had
not provoked the attack. In Deputy Arias‘s opinion, Satele would improve his
standing within the Hispanic gangs in jail by attacking a Black man.

                b. Analysis
     Defendant Satele contends that Deputy Arias‘s testimony should have been
presented in the prosecution‘s case-in-chief, and was therefore improper rebuttal.
He did not raise this objection at trial, and the claim is therefore forfeited on
appeal. (See People v. Williams (1976) 16 Cal.3d 663, 667, fn. 4 [―It is the
general rule . . . that questions relating to the admissibility of evidence will not be
reviewed on appeal absent a specific and timely objection at trial on the ground
sought to be urged on appeal‖].)
     On the merits, it is improper for a prosecutor to withhold ―crucial evidence
properly belonging in the case-in-chief‖ (Friend, supra, 47 Cal.4th at p. 44; see
also People v. Carter (1957) 48 Cal.2d 737, 753), and to present it in rebuttal to
take unfair advantage of a defendant. Here, the information contained a special



                                          36
circumstance allegation that defendant Satele intentionally killed the victims
because of their race, and enhancement allegations that he committed the murders
in concert because of race, although the jury ultimately found the allegations not
true. (§ 190.2, subd. (a)(16), § 422.75, former subd. (c), now subd. (b).) Although
evidence that Satele had without apparent provocation assaulted a Black inmate
was relevant to these allegations, it cannot properly be characterized as ―crucial
evidence‖ on the issue of his racial animus. Moreover, any error in admitting
Deputy Arias‘s testimony on rebuttal was harmless under any standard, because
the jury found not true the hate crime special circumstances and the allegations
that Satele committed the murders in concert because of race.
     Defendant Satele contends that Deputy Arias‘s testimony that Satele attacked
a Black inmate had little probative value in rebutting testimony by defense
witnesses that he got along well with Blacks, because the prosecution offered no
evidence that the attack was racially motivated. By contrast, he argues, the
testimony was unduly prejudicial because it showed his commission of a crime
and tended to demonstrate his future dangerousness. Thus, he reasons, the trial
court should have sustained his objection to the testimony on the ground that its
potential prejudicial effect outweighed its probative value. (Evid. Code, § 352.)
We disagree. Deputy Arias testified that Satele, without warning and completely
without provocation, attacked a defenseless Black inmate. Because the attack
resembled the murders with which defendants were charged, which also occurred
in an unprovoked attack on defenseless Black victims, the jury could infer that it
was racially motivated. The prejudicial effect of the assault, in which the inmate
was apparently not seriously hurt, was minimal when contrasted to the murders
with which Satele was charged. Thus, the trial court did not abuse its broad
discretion under Evidence Code section 352 when it ruled that the probative value



                                         37
of Deputy Arias‘s testimony about the attack was not substantially outweighed by
its prejudicial effect.
     Defendant Satele contends that the trial court erred by failing to state that it
had weighed the probative value and prejudicial effect of Deputy Arias‘s
testimony when it overruled his objection to the evidence. He is wrong: A trial
court is not required to ― ‗expressly weigh prejudice against probative value or
even expressly state that it has done so, if the record as a whole shows the court
was aware of and performed its balancing function under Evidence Code section
352.‘ ‖ (People v. Lewis (2009) 46 Cal.4th 1255, 1285.) Here, the record shows
that the trial court properly performed this task. Indeed, the trial court had
previously precluded the prosecutor from asking Demery, the husband of
defendant Satele‘s cousin, about the incident on cross-examination in the defense
case because the court found its probative value was outweighed by its prejudice.
(See p. 35, ante.)

            3. Asserted prosecutorial misconduct
     Both defendants contend that the prosecutor committed misconduct during
closing argument.
     ―A prosecutor commits misconduct when his or her conduct either infects the
trial with such unfairness as to render the subsequent conviction a denial of due
process, or involves deceptive or reprehensible methods employed to persuade the
trier of fact.‖ (People v. Avila (2009) 46 Cal.4th 680, 711.) ―As a general rule a
defendant may not complain on appeal of prosecutorial misconduct unless in a
timely fashion—and on the same ground—the defendant made an assignment of
misconduct and requested that the jury be admonished to disregard the
impropriety.‖ (Samayoa, supra, 15 Cal.4th at p. 841.)




                                          38
                 a. Asserted vouching by the prosecutor
     Here, in closing argument to the jury, the prosecutor said: ―He [Ernie
Vasquez] identified Curly [Caballero] as the driver of that Buick. Isn‘t it amazing
that Curly just happened to be with Speedy and [Wilbone] earlier and it was
brought out that he was with them later, that Ernie Vasquez hit the nail on the
head? He identified Curly. What a coincidence. Because I guarantee that is the
truth. What he testified to was corroborated.‖ (Italics added.) Defendant Nunez
objected to the ―district attorney‘s guarantee that is the truth.‖ The trial court said:
―Your objection is improper argument. Please make a legal basis. Sustained.
Carry on.‖ Defendants did not request an admonition.
     In defendant Satele‘s closing argument, his counsel asserted that much of the
tape recording of defendants‘ conversation while they were being transported in
the van to and from court (see pp. 4-5, ante) was inaudible. In rebuttal, the
prosecutor said: ―[A]ll you have to do is listen to his own words. Listen to Daniel
Nunez‘[s] own words track 2 at 2250, you will hear[.] [D]efendant‘s counsel says
you can‘t hear this stuff on the CD. You will hear it. I will back up my words.
You will hear this. You will hear him say, I want Black and then he thinks a – no
Blacks. . . . What does that tell you about his feeling? We know what‘s going on
in this mind of his. They can‘t justify it. The only way they can justify it you
won‘t hear that on the CD. I will stake my reputation on it. You listen [to] that
tape, that CD at that point, and you will hear it.‖ (Italics added.) The trial court
sustained defendant Nunez‘s objection to the ―guarantee by the district attorney.‖
Defendants did not ask the court to admonish the jury to disregard the comment.
The prosecutor later said, ―[W]hen I was talking about the CD tape and transcript,
you listen to it. . . . I shouldn‘t say I sta[k]e my reputation. You be the judge[.]
[Y]ou . . . . [l]isten you . . . judge for yourself.‖




                                             39
     Defendants contend that the prosecutor‘s comments were misconduct
because he relied on his personal beliefs. (See People v. Medina (1995) 11
Cal.4th 694, 776 [―prosecutors should not purport to rely in jury argument on their
outside experience or personal beliefs based on facts not in evidence‖].)
Defendants failed to seek an admonition as to either statement, no exception to the
general rule requiring a request for admonition is applicable, and the claim is
therefore forfeited on appeal. (Samayoa, supra, 15 Cal.4th at p. 841.) Moreover,
the comments were not prejudicial: In both instances, the prosecutor explained
that the evidence in the record supported his view, the trial court sustained defense
objections to the challenged comments, and the prosecutor later told the jury as to
his argument about the CD, ―I shouldn‘t say I sta[k]e my reputation.‖

                b. Asserted inconsistent arguments
     Defendant Satele asserts the prosecutor committed misconduct when, after
arguing at the guilt phase that he did not know and had not proven who fired the
murder weapon, he argued at the penalty phase that defendant Satele was the
shooter. Satele claims that as ―a result of this shift in theory, the prosecutor used
facts to increase [Satele‘s] culpability without proving those facts first in the guilt
phase.‖
     At the guilt phase, the prosecutor said in closing argument to the jury: ―You
heard the testimony of Julie Rodriguez . . . [about] what they do when they
commit driveby murders like this. They have a driver, they have a shooter, and
they have people in the back to look for law enforcement, to look for
witnesses. . . . I will be the first one to tell you that I did not prove to you who the
actual shooter was. Whether it was defendant Nunez or defendant Satele. But you
know they were in the car. An[d] whether they‘re in the backseat, the front seat,
the driver‘s seat, all three of those individuals knew what was going down that day



                                           40
and participated in this murder.‖ The prosecutor later argued: ―What happened?
We know at that point the Buick Regal . . . is going southbound on Frampton.
Curly [Caballero] is driving — from the evidence, remember, Ernie [Vasquez]
thought [defendant Satele] was in the front passenger seat. . . . [T]he person in the
rear he thought looked like Speedy [defendant Nunez], or he resembled Speedy.
So let‘s go with it that way.‖
     At the penalty phase, the prosecutor in closing argument to the jury discussed
the mitigating factor described in section 190.3, factor (j), which allows a jury to
consider, in deciding whether to impose a sentence of death, ―[w]hether or not the
defendant was an accomplice to the offense and his participation in the
commission of the offense was relatively minor.‖ The prosecutor said: ―[W]hat
were the roles of the defendants in the murdering of Edward and Renesha? . . . .
Neither of these defendants . . . had a role which was minor. They were all major
participants in this crime. . . . You . . . remember Ms. Rodriguez told you what
happens in a driveby shooting.‖ He noted that Vasquez had testified the driver
was Caballero, and that as for the person in the passenger seat who was the
shooter, the prosecutor argued: ―The evidence . . . points to defendant Satele.‖
The prosecutor said that Contreras had heard defendant Satele say, ―I shot the
Black guy and that Black girl,‖ and reminded the jury of Vasquez‘s testimony that
the person in the passenger seat resembled Satele, and the person in the backseat
resembled defendant Nunez. The prosecutor then asserted that even if defendant
Nunez was in the backseat, his role as a lookout for the police and for any
witnesses was not minor.
     Defendant Satele did not object to the prosecutor‘s argument at the penalty
phase or seek an admonition, and no exception to the general rule requiring an
objection and admonition request is applicable. The claim is therefore forfeited.
(Samayoa, supra, 15 Cal.4th at p. 841.) It is also meritless because the arguments

                                         41
at the guilt and penalty phases were not inconsistent. Rather, at both phases of
trial the prosecutor observed that the evidence, although inconclusive, indicated
that defendant Satele was most likely the shooter. At the penalty phase the
prosecutor simply sought to persuade the jury that if it found defendant Nunez was
in the backseat of the vehicle, this did not mean his participation was minor within
the meaning of section 190.3, factor (j). No misconduct occurred.

           4. Challenge to gang enhancement instruction

                a. Factual background
     The prosecution alleged, as sentence enhancements to the murders charged in
counts 1 and 2 of the amended information, that defendants committed the
murders in violation of section 186.22‘s subdivision (b)(1) (section 186.22(b)(1),
sometimes referred to as the gang enhancement). The gang enhancement provides
for an increased sentence when the underlying felony was committed ―for the
benefit of, at the direction of, or in association with any criminal street gang, with
the specific intent to promote, further, or assist in any criminal conduct by gang
members.‖ (Ibid.)
     At trial, the prosecution presented evidence that West Side Wilmas gang
members other than defendants had committed crimes. Detective Dinlocker
testified that Ruben Figueroa and Brian Dominic Martinez were West Side
Wilmas gang members, and the prosecution introduced records of Martinez‘s
conviction for assault with a firearm and Figueroa‘s convictions for murder and
assault with a deadly weapon.
     During the guilt phase instruction conference, the trial court proposed to
instruct the jury with CALJIC No. 6.50, stating that this instruction concerned the
―gang crime.‖ CALJIC No. 6.50 does not describe the elements of the gang
enhancement with which defendants were charged, set forth in section



                                          42
186.22(b)(1); instead, it gives the elements of a crime described in section
186.22‘s subdivision (a) (hereafter the gang crime), which makes it a felony to
―actively participate[] in any criminal street gang with knowledge that its members
engage in or have engaged in a pattern of criminal gang activity.‖
     Defendant Satele‘s counsel said he did not object to the proposed instruction.
The prosecutor argued that the ―pattern of criminal gang activity‖ described in the
instruction should include what he referred to as Brian Dominic Martinez‘s
conviction for assault with a deadly weapon,3 and Ruben Figueroa‘s convictions
for murder and assault with a deadly weapon. In response, Nunez‘s counsel
unsuccessfully objected that the evidence did not show ―the necess[ary]
requirement[s],‖ presumably for the pattern of gang activity.
     When the trial court read CALJIC No. 6.50 to the jury, it began: ―Defendant
is accused in counts one and two of having violated section 186.22(a) of the Penal
Code, a crime. Every person who actively participates . . . is guilty of the
violation of Penal Code section 186.22(a), a crime.‖ The prosecutor asked, ―That
should be subdivision b, as in boy?‖ The court replied, ―I‘m sorry, subdivision b.‖
The court then repeated this portion of the instruction, inserting the letter ―(b)‖
instead of ―(a)‖ throughout.4 In the written instructions, which the jury received,
the ―(a)‖ in ―section 186.22, subdivision (a)‖ was replaced by hand with ―(b).‖

3     Martinez was actually convicted of assault with a firearm (§ 245, subd.
(a)(2)), not assault with a deadly weapon (§ 245, subd. (a)(1)).
4     The trial court instructed the jury: ―Defendant is accused in counts one and
two of having violated section 186[].22(b) of the Penal Code, a crime. Every
person who actively participates in any criminal street gang with knowledge that
the members are engaged in or have engaged in a pattern of criminal gang activity,
and who willfully promotes[,] furthers[,] or assists in any felonious criminal
conduct by members of that gang is guilty of the violation of Penal Code section
186.22(b[])[,] [a] crime. [¶] ‗Pattern of criminal gang activity‘ means the
commission of or attempted commission or solicitation of sustained juvenile
                                                            (footnote continued on next page)


                                          43
      In his closing argument, the prosecutor asserted: ―[T]here‘s an allegation
which we proved under 186.22 called a gang allegation, that this crime was
committed for the benefit of West Side Wilmas. And it was.‖ The prosecutor also
said that under the gang allegation he was required to prove several elements,
including a pattern of criminal gang activity. To do so, he relied on Figueroa‘s
murder and assault with a deadly weapon convictions, and Martinez‘s ―assault
with a firearm, which is a deadly weapon‖ conviction. He also asserted: ―The last
element of that gang allegation is that this crime was committed for the benefit of
that gang. You heard me question Julie Rodriguez. She testified it was, in her
opinion. You also can see it from People‘s 43 [which included a photograph of


(footnote continued from previous page)

petition for, or conviction of two or more of the following crimes, namely murder
and assault with [a] deadly weapon, provided at least one of those crimes occurred
after September 23, 1988, and the last of those crimes occurred within three years
after a prior offense, and the crimes are committed on separate occasions [or] by
two or more persons. [¶] ‗Criminal street gang‘ means any ongoing . . .
association or group of three or more persons[,] whether formal or informal,
having as one of [its] primary activities, 1. the commission of one or more . . . of
the following criminal acts, murder and assault with a deadly weapon; 2. having a
common name or common identifying sign or symbol; and 3. whose members
individually or collectively engage in or have engaged in a pattern of criminal
gang activity. [¶] Active participation means that the person, 1. must have a
current relationship with the criminal street gang that is more than in name only[,]
passive, inactive or purely technical, and 2. must devote all or a substantial part of
his time or efforts to the criminal street gang. [¶] Felonious criminal conduct
includes murder and assault with [a] deadly weapon. In order to prove this crime
each of the following elements must be proved: 1. A person actively and
currently participates in a criminal street gang; 2. The members of that gang
engage in or have engaged in a pattern of criminal gang activity; 3. That person
knew that the gang members engaged [in] or have engaged in a pattern of criminal
gang activity; and 4. That person aided and abetted a member of that gang in
committing the crimes of murder and assault with [a] deadly weapon.‖ (See
CALJIC No. 6.50 (6th ed. 1999 rev.).)



                                          44
graffiti] [and] from the actions of Wilbone against Mr. Keys that they did this to
promote their gang.‖ The jury found the gang enhancement allegations to be true.

                b. Analysis
     Defendants contend that the gang enhancement findings should be vacated
because the trial court committed prejudicial error by instructing the jury on the
elements of the gang crime (§ 186.22, subd. (a)) when they were charged with the
gang enhancement (§ 186.22(b)(1)). We agree.
     The trial court‘s instruction (see p. 43, fn. 4, ante) told the jury that the
charged gang enhancements (erroneously referred to by the instruction as
―crimes‖) contained four elements: ―1. A person actively and currently
participates in a criminal street gang; 2. The members of that gang engage in or
have engaged in a pattern of criminal gang activity; 3. That person knew that the
gang members engaged [in] or have engaged in a pattern of criminal gang activity;
and 4. That person aided and abetted a member of that gang in committing the
crimes of murder and assault with [a] deadly weapon.‖ This list omitted two
elements of the gang enhancements charged in the amended information. First,
the instruction did not tell the jury that to find the enhancements true, it must find
that defendants committed the murders ―for the benefit of, at the direction of, or in
association with any criminal street gang‖ (§ 186.22(b)(1)); second, the instruction
did not tell the jury that to find the enhancements true, it must find that defendants
committed the murders ―with the specific intent to promote, further, or assist in
any criminal conduct by gang members‖ (ibid.).
     The Attorney General claims that the jury was adequately instructed on the
elements of the gang enhancements. As explained below, her arguments are not
persuasive.




                                           45
     As to the element that the crimes charged were committed for the benefit of,
at the direction of, or in association with a criminal street gang, the Attorney
General notes that the instruction required that the jury find ―active participation‖
in a criminal street gang, which the instruction defined as ―a current relationship
with the criminal street gang that is more than in name only[,] passive, inactive or
purely technical,‖ in which the defendant devoted ―all or a substantial part of his
time or efforts‖ to the gang.5 She asserts that this portion of the instruction —
together with the reasonable doubt instruction and the instruction to consider the
instructions as a whole — required the jury ―to deduce that to find the gang
charges true, there had to be proof beyond a reasonable doubt that [defendants] . . .
committed the murders ‗in association with‘ their gang.‖ But there is a reasonable
likelihood that the jury would not have understood the instruction as requiring it to
make such a finding. The portion of the instruction concerning active
participation simply addresses a defendant‘s level of involvement with the street
gang, not whether the defendant committed the charged crimes for the benefit of,
at the direction of, or in association with a criminal street gang.
     The Attorney General asserts that the trial court‘s instruction said, in essence,
that the jury could consider proof that the defendants committed the charged
murders as evidence of a ―pattern of gang activity.‖ According to the Attorney
General, this portion of the instruction, considered in combination with the
reasonable doubt instruction, told the jury it could find the gang enhancements
true only if it found ―evidence beyond a reasonable doubt that the charged murders


5     After the trial in this case, we held that the language ―actively participates in
any criminal street gang‖ in section 186.22(a) means ―involvement with a criminal
street gang that is more than nominal or passive.‖ (People v. Castaneda (2000) 23
Cal.4th 743, 747.)



                                          46
were committed for the ‗benefit of, at the direction of, or in association with‘ the
defendant‘s gang.‖ This argument mischaracterizes the instruction. The portion
of the instruction mentioned by the Attorney General did not mention the charged
murders; rather, it told the jury it could consider ―murder and assault with [a]
deadly weapon‖ as evidence of a ― ‗pattern of criminal gang activity.‘ ‖ But the
prosecutor expressly relied on the convictions of Figueroa and Martinez for
murder and assault with a deadly weapon — and not the charged murders — to
show the requisite pattern of activity. Moreover, even if the jury understood this
portion of the instruction as referring to the charged murders as well as those
convictions, the instruction did not tell the jury that it must find that the charged
murders were gang related in order to find the enhancements true.
     The Attorney General argues that the trial court‘s instruction told the jury to
find each gang enhancement true only if the evidence showed ―beyond a
reasonable doubt that the defendant ‗aided and abetted‘ a fellow gang member in
committing the charged murder.‖ The Attorney General is incorrect. The court
instructed the jury that ―[i]n order to prove this crime‖ (by which the court meant
the gang enhancements), several elements ―must be proved,‖ one of which was
that a ―person aided and abetted a member of that gang in committing the crimes
of murder and assault with [a] deadly weapon.‖ The prosecutor expressly relied
on the convictions of Figueroa and Martinez for murder and assault with a deadly
weapon to show a pattern of criminal gang activity, and the phrase ―murder and
assault with [a] deadly weapon‖ was repeated throughout the instruction. There is
a reasonable likelihood that the jury interpreted this phrase as referring only to
those convictions; indeed, defendants were not charged with assault with a deadly
weapon. Nor is it dispositive that the prosecutor asserted ―[t]he last element of
that gang allegation is that this crime was committed for the benefit of that gang.‖
The court had already instructed the jury before closing argument that ―[i]f

                                          47
anything concerning the law said by the attorneys in their arguments or at any
other time during the trial conflicts with my instructions on the law, you must
follow my instructions.‖
     As to the specific intent element of section 186.22(b)(1) (that is, the
requirement that the prosecution prove that the charged crimes were committed
with the specific intent to promote, further, or assist in any criminal conduct by
gang members), the Attorney General contends this element was adequately
addressed when the trial court instructed the jury that the enhancement required
proof that a defendant ―willfully promote[d][,] further[ed][,] or assist[ed] in any
felonious criminal conduct by members of that gang.‖ (Italics added.) Although
the Attorney General acknowledges that ― ‗willfully‘ in a penal statute usually
defines a general criminal intent‖ (People v. Atkins (2001) 25 Cal.4th 76, 85), she
asserts that here ― ‗willfully‘ meant an intent to do a further act or achieve a future
consequence, i.e., promoting, furthering, or assisting felonious criminal conduct
by fellow gang members through active participation.‖ ―Active participation,‖ the
Attorney General continues, was defined as ―devot[ing] all or a substantial part of
[one‘s] time or efforts to the criminal street gang.‖ Thus, she contends, the court
―adequately instructed the jury that ‗willfully‘ meant an intent to do a further act
or achieve a future consequence beyond the charged murder, i.e., specific intent.‖
But the trial court here defined ―[f]elonious criminal conduct‖ as including
―murder and assault with [a] deadly weapon,‖ and there is a reasonable likelihood
the jury understood this language to refer to the convictions of Figueroa and
Martinez for murder and aggravated assault, not the murders charged in this case.
Thus, regardless of the meaning of the word ―willfully,‖ the court‘s instructions
did not require the jury to decide whether the murders charged in this case were
committed with the requisite specific intent.



                                          48
     The Attorney General asserts that the trial court‘s instruction told the jury
that ―there must be proof that the [defendant] ‗aided and abetted‘ a fellow gang
member in committing the murder,‖ and that the ―mental state required for
liability as an aider and abettor is ‗specific intent.‘ ‖ The Attorney General is
wrong. The court instructed the jury that the gang crime contained several
elements that ―must be proved,‖ one of which was that the defendant ―aided and
abetted a member of that gang in committing the crimes of murder and assault
with [a] deadly weapon.‖ As previously explained (see p. 47, ante), this language
appears to refer to the murder and assault with a deadly weapon convictions of
Figueroa and Martinez, not to the murders in this case. Thus, there is a reasonable
likelihood that the jury construed the instruction as not requiring it to find that
defendants committed the charged murders with the specific intent to promote,
further, or assist in any criminal conduct by gang members. (See People v.
Jennings (2010) 50 Cal.4th 616, 676-677 [evaluating trial court error in omitting
the actus reas requirement of the torture-murder special-circumstance by assessing
the instructions as a whole to determine ― ‗if there was a reasonable likelihood the
jury applied the challenged instruction in an impermissible manner‘ ‖].)
     We therefore conclude the trial court erred in instructing the jury on the gang
enhancement, and turn to the issue of prejudice, which is a question of state law.
(People v. Sengpadychith (2001) 26 Cal.4th 316, 320-321, 327.)6 To determine

6      Recently, in Alleyne v. United States (June 17, 2013, No. 11-9335) __ U.S.
__, __ [2013 U.S. Lexis 4543, at pp. *8-*9, *15-*16], the United States Supreme
Court held that the federal Constitution‘s Sixth Amendment entitles a defendant to
a jury trial, with a beyond-a-reasonable-doubt standard of proof, as to ―any fact
that increases the mandatory minimum‖ sentence for a crime. But because the
gang enhancements on which the trial court here misinstructed the jury did not
increase the mandatory minimum sentence for the murders committed by
defendants, Alleyne does not alter our conclusion that the court‘s instructional
                                                            (footnote continued on next page)


                                          49
whether the error was prejudicial under state law, we must assess whether it is
reasonably probable that a result more favorable to defendants would have been
reached had the jury been correctly instructed, examining the entire record,
― ‗including the facts and the instructions, the arguments of counsel, any
communications from the jury during deliberations, and the entire verdict.‘ ‖
(People v. Wims (1995) 10 Cal.4th 293, 315, overruled on other grounds in
Sengpadychith, supra, at p. 326, quoting People v. Guiton (1993) 4 Cal.4th 1116,
1130.)
      Here, the trial court did not instruct the jury on any element required under
section 186.22(b)(1). Thus, the jury was not instructed that to find the
enhancement allegations true, it must find that defendants committed the murders
―for the benefit of, at the direction of, or in association with any criminal street
gang‖ (§ 186.22(b)(1)). Nor was it instructed that it must find that defendants
committed the murders ―with the specific intent to promote, further, or assist in


(footnote continued from previous page)

error violated only state law. In October 1998, when the murders in this case were
committed, the finding of a gang enhancement as to a felony punishable by
imprisonment for life resulted in the defendant being ineligible for parole until
serving ―a minimum of 15 calendar years‖ in prison. (Former § 186.22,
subd. (b)(4); as amended by Stats. 1997, ch. 500, § 2, p. 3125.) By contrast, the
crime to which the gang enhancements apply here — first degree murder — was
punishable by death, by imprisonment for life without the possibility of parole, or
by a prison term of ―25 years to life‖ (§ 190, subd. (a)), for which the defendant
was ineligible for parole before serving a minimum of 25 years in prison (§ 190,
subd. (e); Stats. 1997, ch. 413, §§ 1, 4, pp. 2756, 2758, added by Prop. 222, as
approved by voters, Primary Elec. (June 2, 1998) eff. June 3, 1998). Thus, the
gang enhancement‘s mandatory minimum sentence of 15 years did not increase
the statutory minimum sentence for the murders. As a result, the trial court‘s
instructional error as to the gang enhancement did not violate defendants‘ Sixth
Amendment right to jury trial.



                                          50
any criminal conduct by gang members.‖ (Ibid.) Furthermore, as we have
explained, no other instruction addressed these elements.
       The most important difference between the gang enhancement alleged
against defendants and the gang crime on which they were instructed is that,
unlike the gang crime, the gang enhancement can be found true only if the
underlying felony to which the enhancement applies — here, the two murders
committed by defendants — is itself gang related. (See People v. Livingston
(2012) 53 Cal.4th 1145, 1170 [―[T]he enhancement applies ‗only if the crime is
―gang related.‖ ‘ [Citation.] ‗Not every crime committed by gang members is
related to a gang.‘ ‖].) Both defendants in this case were indisputably members of
a criminal street gang (the West Side Wilmas), but, as discussed below, the
evidence did not clearly show that the murders were gang related.
       The prosecution theorized that the murders were gang related because they
were racially motivated. Los Angeles Police Officer Julie Rodriguez, testifying as
a gang expert who specialized in the West Side Wilmas gang, explained that in her
opinion the West Side Wilmas ―don‘t care for African Americans living in‖ their
territory, and that ―they don‘t want any African Americans to share the
neighborhood with them.‖ Defendants, in her view, believed that ―eliminating
African Americans within their community‖ would ―better the gang,‖ which had
an ―unwritten rule‖ that gang members must take advantage of ―any opportunity
that they have . . . to attack an African American.‖
       The prosecution presented considerable evidence that the murders were
racially motivated: Prosecution witnesses testified that both defendants had
described the victims after the murders with words strongly suggesting prejudice
against African-Americans, and that shortly after the murders defendant Satele
said that defendants had been ―out looking for niggers.‖ The jury, however,
rejected the prosecution‘s theory of a racially motivated killing, because it found

                                         51
special circumstance allegations that defendants intentionally killed the victims
because of their race not to be true. By rejecting this theory, the jury implicitly
rejected the prosecution‘s theory — described in the previous paragraph — that
the killings were gang related because they were racially motivated.
       Prosecution witness Ernie Vasquez testified that defendant Nunez told him
that Nunez had been driving down the street when one of the victims ―looked at
him wrong,‖ so Nunez ―turned back around and blasted‖ the victim. This
testimony, if credited by the jury, could have caused it to conclude that the
murders were not gang-related, racially motivated killings. Thus, if the jury had
been properly instructed that it could find the gang enhancements true only if it
found that defendants committed the murders ―for the benefit of, at the direction
of, or in association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang members‖
(§ 186.22(b)(1)), the jury might well have found the gang enhancement allegations
not to be true.
       Because, for the reasons described above, there is ―serious doubt as to
whether the error has affected the result‖ (People v. Watson (1956) 46 Cal.2d 818,
837), the trial court‘s instructional error pertaining to the gang enhancement
allegations was prejudicial. We therefore vacate the gang enhancement findings
for each defendant.

           5. Challenge to firearm use enhancement true findings
     Defendants contend that we must vacate the jury‘s true findings on the
sentence enhancement allegations for personal firearm use, because those findings
depended on the jury first finding true the gang enhancement allegations, on which
the jury was erroneously instructed. (See pt. II.B.4, ante.) We agree.




                                          52
     As to each defendant, the amended information alleged firearm use
enhancements under former section 12022.53‘s subdivision (d) (section
12022.53(d)) for both murders.7 The trial court instructed the jury that the
―allegation pursuant to Penal Code section 12022.53(d) applies to any person
charged as a principal in the commission of an offense, when a violation of Penal
Code section 12022.53(d) and 186.22(b) are pled and proved.‖ During closing
argument to the jury, when discussing the firearm use allegations, the prosecutor
said: ―I told you . . . that I did not prove to you which of the two defendants
personally used a gun. So you‘re going to say, ‗I‘m going to find that allegation
not true, because [the prosecutor] did not prove who personally shot the gun.‘ But
if you look in that instruction . . . there‘s a paragraph that . . . says . . . that gang
members are vicariously liable. They are all liable for that personal use if that gun
has been intentionally discharged and proximately caused death and there is a
gang allegation that has been pled and proven. I‘ve told you I pled and proved

7      At the time of the murders, section 12022.53 provided in relevant part:
        ―(d) Notwithstanding any other provision of law, any person who is
convicted of a felony specified in subdivision (a) [murder is a specified
felony], . . ., and who in the commission of that felony intentionally and personally
discharged a firearm and proximately caused great bodily injury, . . . or death, to
any person other than an accomplice, shall be punished by a term of imprisonment
of 25 years to life in the state prison, which shall be imposed in addition and
consecutive to the punishment prescribed for that felony.
     ―(e)(1) The enhancements specified in this section shall apply to any person
charged as a principal in the commission of an offense that includes an allegation
pursuant to this section when a violation of both this section and subdivision (b) of
Section 186.22 are pled and proved.
      ―(2) An enhancement for participation in a criminal street gang pursuant to
Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1, shall not be
imposed on a person in addition to an enhancement imposed pursuant to this
subdivision, unless the person personally used or personally discharged a firearm
in the commission of the offense.‖ (As amended by Stats. 1998, ch. 936, § 19; see
id., §§ 19.5, 27, 36, pp. 6899-6900, 6919, 6922.)



                                            53
that, because I proved that Dominic Martinez, Ruben Figueroa — we had Julie
Rodriguez. So that gang allegation is proven. Because of that gang allegation,
they are both liable for that personal use of the gun. So I don‘t want that word
‗personal‘ to throw you off. When you go back there and it says, ‗We, the jury,
find the allegation that the defendants personally, intentionally used a firearm . . .
to be true or not true,‘ please circle the true.‖
     The trial court‘s instructions and the prosecutor‘s argument relieved the jury
of the obligation to determine who personally used the murder weapon if it found
true the gang enhancement allegations under section 186.22(b)(1). Although the
jury may have found that one or both defendants personally used the murder
weapon, the instructions permitted the jury to simply conclude that because it had
found the gang enhancement allegations to be true, it did not need to decide who
personally used the weapon; indeed, the prosecutor specifically urged the jury to
adopt this approach. Thus, we cannot tell whether the jury found the section
12022.53(d) allegations true because it found true the section 186.22(b)(1)
allegations (a legally invalid theory because the jury was misinstructed on the
elements of the gang enhancement allegations) or because it found that each
defendant personally shot the two victims (a legally valid theory). We therefore
vacate the firearm use findings as to both defendants. (See People v. Chun (2009)
45 Cal.4th 1172, 1203 [―to find the error harmless, a reviewing court must
conclude, beyond a reasonable doubt, that the jury based its verdict on a legally
valid theory‖]; People v. Green (1980) 27 Cal.3d 1, 69, 71, 74 [kidnapping
conviction reversed and special circumstance finding vacated when this court
could not tell whether the jury based its verdict on a legally invalid theory]; see
also People v. Guiton, supra, 4 Cal.4th at p. 1128 [―cases involving a ‗legally
inadequate theory‘ ‖ are ―subject to the rule generally requiring reversal‖].) As a
result, we need not address defendants‘ further arguments that the trial court

                                            54
misinstructed the jury on liability under section 12022.53(d), and that the jury‘s
findings on the firearm use allegations were factually inconsistent.

           6. Instruction on culpability of an aider and abettor
     The trial court instructed the jury: ―Persons who are involved in committing
a crime are referred to as principals in that crime. Each principal, regardless of the
extent or manner of participation is equally guilty. Principals include: those who
directly and actively commit the act constituting the crime, or those who aid and
abet the commission of the crime.‖ (Italics added; see CALJIC No. 3.00.)
     Relying on People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), and People v.
Concha (2009) 47 Cal.4th 653 (Concha), both defendants contend that the use of
the term ―equally guilty‖ in the trial court‘s instruction was erroneous because an
aider and abettor‘s culpability, although based on the acts of the principals, is also
based on the aider and abettor‘s own mental state. Therefore, they assert, the
culpability of an aider or abettor can sometimes be either greater or less than, but
not equal to, the culpability of the direct perpetrator, and the jury should have been
so instructed. Defendants are not entitled to reversal on this ground.
     In McCoy, supra, 25 Cal.4th at page 1120, we observed that by making
―aiders and abettors liable for their accomplices‘ actions as well as their own,‖ the
aider and abettor doctrine ―obviates the necessity to decide who was the aider and
abettor and who the direct perpetrator or to what extent each played which role.‖
We noted that ―outside of the natural and probable consequences doctrine, an aider
and abettor‘s mental state must be at least that required of the direct perpetrator.‖
(Id. at p. 1118.) When the crime is murder, McCoy said, the ―aider and abettor
must know and share the murderous intent of the actual perpetrator.‖ (Ibid.)
Because an aider and abettor‘s ―guilt is based on a combination of the direct
perpetrator‘s acts and the aider and abettor‘s own acts and own mental state‖ (id. at



                                          55
p. 1117), McCoy also held that ―sometimes‖ an ―aider and abettor may be guilty of
greater homicide-related offenses than those the actual perpetrator committed‖
because of ―defenses or extenuating circumstances . . . that are personal to the
actual perpetrator and do not apply to the aider and abettor.‖ (Id. at p. 1114.)8 In
Concha, two codefendants and an accomplice tried to murder a man during an
apparent robbery, and the man responded by killing the accomplice. (Concha,
supra, 47 Cal.4th at p. 658.) We held that each defendant could be liable for the
first degree murder of the accomplice under the ―provocative act murder doctrine‖
only ―if the defendant personally acted willfully, deliberately, and with
premeditation during the attempted murder.‖ (Ibid., italics added.)
     Here, however, neither defendant asserts a defense theory or points to
extenuating circumstances that might have led the jury to find that one defendant‘s
individual culpability was less than that of the other defendant, nor does the
evidence at trial suggest any such defense or circumstances. Rather, defendants
simply speculate that they ―may have had different levels of culpability.‖ Under
the circumstances, there is no reasonable likelihood that the jury was confused or
misled by the trial court‘s instruction that the aider and abettor and the direct
perpetrator were ―equally guilty.‖


8      Following our decision in McCoy, supra, 25 Cal.4th 1111, CALJIC No. 3.00
was modified for cases in which there is evidence that the guilt of the aider and
abettor might be different from that of the direct perpetrator. In those
circumstances, the current instruction substitutes the language ―guilty of a crime‖
for the language ―equally guilty,‖ and further provides: ―When the crime charged
is [either] [murder] [or] [attempted murder] . . . , the aider and abettor‘s guilt is
determined by the combined acts of all the participants as well as that person‘s
own mental state. If the aider and abettor‘s mental state is more culpable than that
of the actual perpetrator, that person‘s guilt may be greater than that of the actual
perpetrator. Similarly, the aider and abettor‘s guilt may be less than the
perpetrator‘s, if the aider and abettor has a less culpable mental state.‖ (Ibid.)



                                          56
           7. Challenge to multiple-murder special-circumstance instruction
     The trial court instructed the jury that if it found that either defendant was an
accomplice to the murders but was not the actual killer, or if it was unable to
decide whether a defendant was the actual killer or an aider and abettor, it could
not find the multiple-murder special-circumstance allegations true as to that
defendant unless he acted with either one of two mental states: (1) the ―defendant
with the intent to kill aided, abetted, counseled, commanded[,] induced, solicited,
requested, or assisted any actor in the commission of the murder in the first
degree‖ or (2) the defendant ―with reckless indifference to human life and as a
major participant aided, abetted, counseled, commanded, induced[,] solicited[,]
requested, or assisted in the commission of the crime of Penal Code section
190.2(a)(3) . . . which resulted in the death of a human being.‖ Both defendants
contend that the trial court prejudicially erred in giving the second portion of this
instruction because it permitted the jury to find the multiple-murder special-
circumstance allegations true as to a defendant who was not the actual killer
without finding that the defendant acted with the intent to kill.9 We agree that the

9     This was the instruction given by the trial court on the multiple-murder
special-circumstance allegations: ―If you find a defendant in this case guilty of
murder of the first degree, you must then determine if one or more of the
following special circumstances are true or not true . . . . Unless an intent to kill is
an[] element of a special circumstance, if you are satisfied beyond a reasonable
doubt that the defendant actually killed a human being, you need not find that the
defendant intended to kill in order to find the special circumstance to be true. If
you find that the defendant was not the actual killer of . . . a human being, or if
you are unable to decide whether the defendant [w]as the actual killer, or an aider
and abettor or co-conspirator, you cannot find the special circumstance to be true
as to that defendant unless . . . [you are] satisfied beyond a reasonable doubt that
such defendant with the intent to kill aided, abetted, counseled, commanded[,]
induced, solicited, requested, or assisted any actor in the commission of the
murder in the first degree, or with reckless indifference to human life and as a
major participant aided, abetted, counseled, commanded, induced[,] solicited[,]
                                                            (footnote continued on next page)


                                          57
trial court misinstructed the jury as to the intent requirement for aiders and
abettors, but we conclude the error was harmless.
      When there is evidence from which a jury could base its convictions for
multiple counts of murder on the theory that the defendant was guilty as an aider
and abettor, and not as the actual perpetrator, the trial court must instruct the jury
that to find true a multiple-murder special-circumstance allegation as to that
defendant, it must find that the defendant intended to kill the murder victims.
(§ 190.2, subds. (b)-(c); People v. Hardy (1992) 2 Cal.4th 86, 192 (Hardy).) A
murderer who was not the actual killer and who lacked the intent to kill, but acted
―with reckless indifference to human life and as a major participant,‖ can be
subject to a punishment of either death or life imprisonment without the possibility
of parole only when the prosecution alleges, as a special circumstance, that the
murder occurred in the commission of certain felonies specified in section 190.2‘s
subdivision (a)(17). (§ 190.2, subd. (d).) Contrary to the trial court‘s instruction
to the jury here, this rule does not apply to the multiple-murder special
circumstance. An erroneous instruction on the intent to kill element of a special
circumstance, however, ―does not require reversal if a reviewing court concludes
. . . that the error is harmless beyond a reasonable doubt.‖ (Hardy, at p. 192; see
People v. Garrison (1989) 47 Cal.3d 746, 789 (Garrison).) We so conclude here.




(footnote continued from previous page)

requested, or assisted in the commission of the crime of Penal Code section
190.2(a)(3) . . . which resulted in the death of a human being, namely Edward
Robinson and Renesha Ann Fuller. A defendant acts with reckless indifference to
human life when that defendant knows or is aware that his acts involve a grave
risk of death to an[] innocent human being.‖ (Italics added.)



                                          58
     In Hardy, supra, 2 Cal.4th 86, this court held that the trial court‘s failure to
instruct on the intent to kill element of the multiple-murder special-circumstance
allegation in that case was harmless because the court instructed the jury that if the
defendant was not the actual killer, ― ‗it must be proved beyond a reasonable doubt
that he intentionally aided [and] abetted . . . the actual killer in the commission of
the murder in the first degree.‘ ‖ (Id. at p. 192.) In addition, in Hardy, the jury
found true the financial-gain special-circumstance allegation, which expressly
required it to find the killing was intentional. We observed that ―in combination,
these instructions required the jury to find either that [the defendant] himself was
the actual killer, or that he intentionally aided the actual killer in an intentional
killing.‖ (Ibid.)
     Likewise in Garrison, supra, 47 Cal.3d 746, the trial court failed to instruct
the jury on the intent to kill requirement for a multiple-murder special-
circumstance finding as to an aider and abettor. (Id. at p. 789.) We held the error
was harmless because the jury also found true a witness-killing special-
circumstance allegation, which required a finding that the witness was killed
intentionally. (Id. at p. 790.) We also noted that the deficiencies in the aiding and
abetting instructions were ameliorated because the defendant at trial denied he in
any way aided in the killing, leaving ―no way for the jury to find that he ‗aided‘
the killing only ‗accidentally‘ or ‗unintentionally.‘ ‖ (Id. at p. 790; see id. at
pp. 776-777.)
     Here, as in Hardy, supra, 2 Cal.4th 86, and Garrison, supra, 47 Cal.3d 746,
the jury necessarily found under other properly given instructions that any
defendant that it convicted of murder on a theory of aiding and abetting possessed
the intent to kill. The instructions here permitted the jury to convict a defendant of
murder as an aider and abettor only if it found that the defendant, ―with knowledge
of the unlawful purpose of the perpetrator‖ (i.e., to kill the victims), and ―with the

                                           59
intent or purpose of committing or encouraging or facilitating the commission of
the crime‖ (i.e., the killing of the victims), ―by act or advice aid[ed], promote[ed],
encourage[d] or instigate[d] the commission of the crime.‖ The trial court further
instructed the jury that aiding and abetting liability was not demonstrated by
―[m]ere presence at the scene of the crime which does not itself assist the
commission of the crime,‖ or ―[m]ere knowledge . . . that a crime is being
committed and a failure to prevent it.‖ These instructions told the jury that an
aider and abettor‘s murder conviction could not be based on mere knowledge of
the perpetrator‘s intent to kill; rather, the jury was also required to find that the
aider and abettor shared that purpose or intent. (See People v. Beeman (1984) 35
Cal.3d 547, 560 [―an aider and abettor will ‗share‘ the perpetrator‘s specific intent
when he or she knows the full extent of the perpetrator‘s criminal purpose and
gives aid or encouragement with the intent or purpose of facilitating the
perpetrator‘s commission of the crime‖].)
     The evidence at trial demonstrated that murder victims Fuller and Robinson
suffered their fatal injuries when they were each hit by multiple shots fired in a
driveby shooting by a perpetrator using an AK-47-type assault rifle loaded with
armor-penetrating bullets. These circumstances demonstrate that the actual
perpetrator acted with the intent to kill, and did not kill accidentally or
inadvertently. As previously noted (see pp. 55-56, ante), defendants do not assert,
and the evidence at trial does not reveal, any defense or extenuating circumstances
that might have warranted a finding by the jury that one defendant‘s individual
culpability was less than that of the other defendant. On these facts, and given the
instructions described in the previous paragraph, the jury here must necessarily
have found that any defendant that it convicted of murder as an accomplice acted
with the intent to kill.



                                           60
           8. Trial court’s failure to instruct on its own motion on implied
              malice murder
     The trial court instructed the jury that to constitute murder a killing must be
unlawful and done with malice aforethought, and it defined both express and
implied malice. The court then instructed the jury on three forms of first degree
murder: premeditated and deliberate murder, murder by knowing use of armor-
penetrating ammunition, and murder by intentionally discharging a firearm from a
motor vehicle. The court further instructed the jury that ―murder of the second
degree is . . . the unlawful killing of a human being with malice aforethought . . . if
[the] perpetrator intended unlawfully to kill a human being but the evidence is
insufficient to prove deliberation and premeditation.‖
     Both defendants argue that, in addition to instructing the jury on one type of
second degree murder — an unlawful killing with intent to kill, but without
premeditation and deliberation — the trial court, on its own initiative, should also
have instructed on a second type of second degree murder — an unlawful killing
with implied malice. They point out that second degree murder is a lesser offense
necessarily included within the crime of murder, and that a trial court‘s obligation
to instruct on lesser included offenses includes the duty to instruct on every form
of the lesser included offense that is supported by substantial evidence. (People
v. Breverman (1998) 19 Cal.4th 142, 162 [―a trial court errs if it fails to instruct,
sua sponte, on all theories of a lesser included offense which find substantial
support in the evidence‖].) Here, they argue, there was substantial evidence that
they unlawfully killed victims Robinson and Fuller while acting with implied
malice, and the trial court therefore erred by failing to instruct on this type of
second degree murder.
     We find no error. When a defendant is charged with murder and the
prosecution proceeds on the theory that the killing was an intentional,



                                          61
premeditated killing, the trial court must instruct on an implied malice theory of
second degree murder only if the record contains evidence from which a
reasonable jury could conclude that the defendant killed without express malice,
but with implied malice. (People v. Bunyard (1988) 45 Cal.3d 1189, 1233.) Here,
the record contained no such evidence. The prosecution presented strong evidence
that both defendants acted with intent to kill, and therefore with express malice:
The victims were shot with armor-piercing shells fired from an assault-type rifle,
each victim was hit multiple times (although one shot may have hit both victims),
and each defendant made a statement after the murders that implied he had acted
with intent to kill. (See pt. II.B.7., ante.) Neither defendant presented evidence
that he acted with implied malice or any less culpable mental state; instead, each
presented evidence tending to show that he did not participate in the murders.
(See pt. I.A.2., ante.) Thus, the evidence showed that each defendant was guilty
of murder with express malice or not guilty at all, and the trial court therefore had
no duty to instruct on an implied malice theory of second degree murder.
     Both defendants here argue that in not instructing the jury on second degree
murder resulting from an unlawful killing by implied malice, the trial court
violated their right to due process under the federal Constitution‘s Fourteenth
Amendment by forcing the jury to make an ―all or nothing‖ choice between first
degree murder and acquittal. (See Beck v. Alabama (1980) 447 U.S. 625, 637;
People v. Benavides (2005) 35 Cal.4th 69, 103.) Not so. The jury was instructed
on another form of second degree murder — second degree murder resulting from
an unlawful killing by a perpetrator acting with intent to kill — and accordingly
did not have an all-or-nothing choice in evaluating defendants‘ culpability. (See
Schad v. Arizona (1991) 501 U.S. 624, 646-648 [second degree murder instruction
sufficient to ensure verdict‘s reliability]; Benavides, at p. 103.)



                                           62
           9. Refusal to give proposed defense instruction
     Defendants argue that the trial court erred by not instructing the jury:
―Merely being in the company of a person believed to have committed a felony is
not sufficient to sustain a guilty verdict.‖ We find no error. Declining defendants‘
request to give this instruction, the trial court instead instructed the jury that
―[m]ere presence at the scene of the crime which does not itself assist the
commission of the crime does not amount to aiding and abetting,‖ and that ―[m]ere
knowledge . . . that a crime is being committed and a failure to prevent it does
not . . . amount to aiding and abetting.‖ This instruction conveyed the essence of
the instruction proposed by defendants.

           10. Failure to give limiting instruction
     The trial court instructed the jury: ―If you find that a defendant attempted to
or did persuade a witness to testify falsely or attempted to or did fabricate
evidence to be produced at the trial, that conduct may be considered by you as a
circumstance tending to show a consciousness of guilt. However, that conduct is
not sufficient by itself to prove guilt and its weight and significance, if any, are for
you to decide.‖ (See CALJIC No. 2.04.) It also instructed: ―If you find that an[]
effort to procure false or fabricated evidence was made by another person for the
defendant‘s benefit, you may not consider that effort as tending to show[] the
defendant‘s consciousness of guilt unless you also find that the defendant
authorized that effort. If you find defendant authorized the effort, that conduct is
not sufficient by itself to prove guilt, and its weight and significance, if any, are
for you to decide.‖ (See CALJIC No. 2.05.)
     Defendant Satele objected to both instructions. Contending that the
prosecution had presented no evidence that he had tried to persuade a witness to
testify falsely or to fabricate evidence, he asked the trial court to modify CALJIC
No. 2.04 to state that it applied only to codefendant Nunez. The court refused.


                                           63
     Defendant Satele contends that the trial court erred by giving the two
instructions without the modification he requested. We disagree. The first
instruction merely told the jury that if it found that either defendant had tried,
successfully or unsuccessfully, to persuade a witness to testify falsely, or had tried
to fabricate evidence to be produced at trial, such conduct could indicate
consciousness of guilt but was itself insufficient to prove guilt, and the jury was
―to determine the weight and significance assigned to such behavior.‖ (People v.
Jackson (1996) 13 Cal.4th 1164, 1224.) Similarly, the second instruction
explained that the jury could not consider a third party‘s efforts to procure false
evidence as indicating a defendant‘s consciousness of guilt unless the jury also
found that the defendant had authorized that effort; it also clarified that such
authorization was insufficient to prove a defendant‘s guilt, but the jury was to
determine the weight and significance of the evidence. These instructions told the
jury to infer that a particular defendant had a consciousness of guilt only if that
defendant had engaged in the described conduct. Thus, if — as defendant Satele
contends — the prosecution presented no evidence that he tried to procure false
testimony or to fabricate evidence, and no evidence that he authorized anyone else
to do so, we presume that the jury concluded that the instructions did not apply to
him and it should not infer a consciousness of his guilt. (See Jackson, at p. 1225
[― ‗[A]t worst, there was no evidence to support the instruction and . . . it was
superfluous.‘ ‖].)

           11. Error in allowing jury to make special circumstance findings as to
               each count
     Defendants contend that the trial court erred in allowing the jury to make
multiple-murder special-circumstance findings as to each count of murder.
(§ 190.2, subd. (a)(3).) The Attorney General concedes the error. We agree, and




                                          64
vacate one multiple-murder special-circumstance finding for each defendant.
(Hardy, supra, 2 Cal.4th at pp. 191, 216.)

           12. Effect of erroneous guilt phase instructions and duplicative
               multiple-murder special-circumstance findings on judgments of
               death
     Defendants assert that the duplicative multiple-murder special-circumstance
findings, considered in conjunction with the trial court‘s instructional errors
pertaining to the gang enhancement (see part II.B.4., ante), the firearm use
enhancement (see part II.B.5., ante), and the multiple-murder special-circumstance
allegations (see part II.B.7., ante), affected the jury‘s penalty phase deliberations,
requiring reversal of the judgment of death. We disagree. These errors had no
effect on the admissibility of any evidence presented to the jury at either the guilt
or the penalty phase of trial, and hence do not require reversal of the judgment of
death. (See Brown v. Sanders (2006) 546 U.S. 212, 223-224; People v. Bonilla
(2007) 41 Cal.4th 313, 334 [second special circumstance ―was superfluous for
purposes of death eligibility and did not alter the universe of facts and
circumstances to which the jury could accord . . . weight‖]; People v. Marshall
(1996) 13 Cal.4th 799, 855 [―the jury‘s consideration of duplicative multiple-
murder special circumstances is harmless where, as here, the jury knows the
number of murders on which the special circumstances are based‖].)

           13. Jury’s alleged failure to find degree of crimes charged in murder
               counts 1 and 2
     Defendants contend that the jury failed to find the degree of the murders, and
that by operation of section 1157, both murders are therefore of the second degree.
We disagree.
     Section 1157 provides: ―Whenever a defendant is convicted of a crime or
attempt to commit a crime which is distinguished into degrees, the jury . . . must



                                          65
find the degree of the crime or attempted crime of which he is guilty. Upon the
failure of the jury . . . to so determine, the degree of the crime or attempted crime
of which the defendant is guilty, shall be deemed to be of the lesser degree.‖
Here, the jury‘s signed verdict forms found defendants ―guilty of the crime of
willful, deliberate, premeditated murder, in violation of section 187(a) of the Penal
Code‖ as to each charge of murder. Because each of these findings is equivalent
to a finding of first degree murder, section 1157 is not implicated. (People v. San
Nicolas (2004) 34 Cal.4th 614, 635 (San Nicolas) [holding that a signed verdict
form similar to the one used here was tantamount to a finding of first degree
murder].) We reject defendant Satele‘s invitation to revisit our conclusion in San
Nicolas.
     We further reject defendant Satele‘s contention that our reliance on San
Nicolas, supra, 34 Cal.4th at page 635, violates his right ―to due process of law . . .
and to be free of ex post facto application of the laws‖ because we decided San
Nicolas after he committed the murders. Because Satele challenges our retroactive
application of a judicial decision construing section 1157 and does not challenge
section 1157 itself, his claim is more properly characterized as invoking due
process, not the ex post facto clause. (People v. Brown (2004) 33 Cal.4th 382,
394.) In any event, application of our holding in San Nicolas to this case does not
violate Satele‘s rights under either provision because that holding did not attach
criminality to a prior act that was innocent when done, impose a greater
punishment for a crime than was prescribed at the time of its commission, or alter
the degree or measure of proof necessary to convict from that which was required
at the time a crime was committed. (Brown, at p. 394.)
     Defendant Satele summarily asserts that application of our holding in San
Nicolas, supra, 34 Cal.4th at page 635, to his case violates his right to equal
protection of the law. He offers no argument and cites no authority, however, in

                                          66
support of this claim, which we therefore reject. (See People v. Stanley (1995) 10
Cal.4th 764, 793 [reviewing court need not consider claim that is accompanied by
neither argument nor authority].)

           14. Claim that guilt and penalty verdicts were returned by a jury of
               fewer than 12 sworn jurors
     After 12 trial jurors were selected by the parties, the trial court administered
this statutorily required oath (Code Civ. Proc., § 232, subd. (b)): ―You, and each
of you, do understand and agree that you will well and truly try the cause now
pending before this court and render a true verdict according to the evidence
presented to you and the instructions of this court?‖ The jurors collectively
responded, ―I will.‖ Shortly thereafter, six alternate jurors were selected, and the
court inquired: ―You understand and agree that you will act as an alternate juror
in the case now pending before this court by listening to the evidence and
instructions of this court, and will act as a trial juror when called upon to do so?‖
The alternate jurors collectively responded, ―I will.‖ The jurors and alternate
jurors were then excused for the weekend, after which several persons, including
Juror No. 5, spoke to the court and counsel privately.
     The next Monday, the trial court excused Juror No. 5 for cause, and replaced
her with an alternate. The court then read the amended information, and told the
jury: ―Members and alternate members of the jury, you have been selected and
sworn as jurors and alternate jurors. I shall now instruct you as to your basic
functions, duty and conduct. At the conclusion of the case I will give you further
instructions on the law. . . . You must base the decision you make on the facts and
the law. First, you must determine the facts from the evidence received in the trial
and not from any other source. A ‗fact‘ is something proved by the evidence or by
stipulation. . . . Second, you must apply the law that I state to you to the facts as




                                          67
you determine them, and in this way arrive at your verdict and any findings you
are instructed to include in your verdict.‖
     During the jury‘s penalty phase deliberations, the trial court replaced Jurors
Nos. 9 and 10 with alternate jurors. At no time did the court administer to the
three alternate jurors who replaced Jurors Nos. 5, 9, and 10 the oath described in
Code of Civil Procedure section 232‘s subdivision (b), which it had administered
at the beginning of trial to the other sitting jurors.
     Both defendants argue that the guilt and penalty verdicts were returned by a
jury of fewer than 12 sworn jurors, because the three alternates who served on the
jury were never properly sworn as they did not take the same oath given to the
jurors already selected. Defendants rely on section 1089 and Code of Civil
Procedure section 234, each of which provides in relevant part, ―The alternate
jurors shall be seated so as to have equal power and facilities for seeing and
hearing the proceedings in the case, and shall take the same oath as the jurors
already selected . . . .‖ (Italics added.)
     We agree with defendants that the trial court erred in failing to administer the
proper oath to the alternate jurors when they were sworn, but we conclude there
was no prejudice. In the presence of the prospective jurors later chosen as
alternate jurors, the trial court administered the oath required by Code of Civil
Procedure section 232‘s subdivision (b) to the jurors who had been selected to
decide the case. A short time later, the alternate jurors took an oath that each of
them would ―act as an alternate juror in the case now pending before this court by
listening to the evidence and instructions of this court, and . . . act as a trial juror
when called upon to do so.‖ Because the alternates had heard the oath taken by
the 12 jurors selected to try the case, they were aware that to ―act as a trial juror
when called upon to do so‖ meant that they must comply with the oath set forth in
Code of Civil Procedure section 232‘s subdivision (b) — that is, to ―try the cause

                                             68
now pending before this court and render a true verdict according only to the
evidence presented to you and the instructions of this court.‖ The trial court
emphasized these principles in the opening instructions given to both the jurors
and the alternates, explaining that the jury must reach its verdict by determining
the facts from ―the evidence received in the trial and not from any other source,‖
and by applying the law as stated by the court to those facts. The error was
therefore harmless. (See People v. Carter (2005) 36 Cal.4th 1114, 1175-1176
[concluding there was no prejudice when the trial court erroneously failed to
administer the oath of truthfulness to certain prospective jurors before voir dire];
People v. Lewis (2001) 25 Cal.4th 610, 630.)

       C. Penalty Phase Issues

           1. Discharge of Juror No. 10

                a. Factual background
     On Thursday, June 29, 2000, during the jury‘s penalty phase deliberations,
the trial court received this note from the jury: ―We are at an impasse on the
verdict 10-2, what and how do we go on? Need answer ASAP.‖ About
35 minutes later, Juror No. 6, the foreperson, wrote the court another note saying:
―Jury member #10 . . . stated that she had confided with her friend and mother and
that they sided with her doubts — Possibly replacing her would be appropriate.‖
The next day, the court and counsel spoke with Juror No. 6. The court read the
notes from the day before out loud and asked Juror No. 6, ―[W]hen did you
discover that [Juror No. 10] had been talking to her mom?‖ Juror No. 6 replied,
―She admitted [it] to us right at the table.‖
     The trial court and counsel then questioned Juror No. 10, who said that after
the guilt phase deliberations she had ―confided with [her] friend and mother about
issues relating to this case.‖ The court asked whether the discussions happened in


                                           69
the penalty phase, and Juror No. 10 said, ―No.‖ The court asked, ―As you were
deliberating?‖ Juror No. 10 replied, ―No, it was after. It was the day that I turned
it in, and it didn‘t sit right with me.‖ The court then said: ―I just want to make
sure that because the jury‘s still what we call live and deliberating, I don‘t want
you to disclose anything relating to the deliberation process unless I instruct you to
do so.‖ The court asked if Juror No. 10 remembered when she had spoken to her
mother and to her friend. Juror No. 10 said that the conversations occurred two
days earlier on Wednesday evening, and lasted about five minutes with her friend,
and about a minute or two with her mother.
     The court asked Juror No. 10 if she had described to her mother the vote she
anticipated casting on the question of penalty. Juror No. 10 said she had not told
her mother, but as to her friend, she ―would have to say yes.‖ The court asked if
Juror No. 10 had told her friend ―what you‘re thinking about making —‖ Juror
No. 10 interrupted and said: ―No, no, no, no, no. We had already reached the
verdict. Wednesday night we had reached the verdict.‖ The court said:
―Obviously, there‘s no verdict because at this point in time there is no verdict
reached. So you‘re still deliberating, in other words?‖ Juror No. 10 replied,
―Yes.‖ The court said: ―You‘re still going through the process, and Thursday you
were going through the process as you were on Wednesday, and today you‘re
going through the process, right?‖ Juror No. 10 replied, ―Yes.‖
     Juror No. 10 said her friend had come over to see her on Wednesday night.
She explained: ―[The friend] saw that I was upset, and she asked me how was the
case going. I said oh, it‘s over with, you know. We‘re going to turn in the verdict
in the morning, and she said okay, well, you know, that‘s really good; and I said,
well, you know, I guess it is. It just all depends on how you look at it; and she
says as long as it sits right with you, that‘s all that matters; and from there — it
wasn‘t sitting right already when I got home.‖ Juror No. 10 did not tell her friend

                                          70
―what was not sitting right.‖ The friend asked what the jury had decided. When
Juror No. 10 said she could not discuss it, the friend asked, ― ‗well did you go
. . .,‘ ‖ and made gestures. (The record does not describe the gestures, but we infer
from the testimony that she made ―thumbs up‖ and ―thumbs down‖ motions.) The
trial court asked Juror No. 10, ―One way or the other?‖ Juror No. 10 responded:
―And when she went like this here (gesturing) and I just said yeah, to the one, and
she just said, ‗hmm, interesting,‘ ‖ and made a statement relating to views on the
death penalty.
     Also on Wednesday evening Juror No. 10 received a call from her mother.
At the end of the conversation, her mother asked, ― ‗So how is your case going?‘ ‖
Juror No. 10 said, ―You know what, it‘s done,‖ and her mother said, ― ‗Well,
good.‘ ‖ Her mother then mentioned a political topic, and Juror No. 10 said,
―Well . . . that has nothing to do with me . . . . I have some issues and some stuff
that I have to work out.‖ Her mother replied, ― ‗Well, just pray.‘ ‖ Juror No. 10
did not describe to her mother the ―issues‖ she had to ―work out.‖
     The prosecutor asked the trial court to excuse Juror No. 10. Defendant
Nunez‘s counsel asked the court to determine whether the jury had reached a
verdict on Wednesday night; he asserted that if a verdict had been reached, there
was no reason to excuse the juror. Defendant Satele‘s counsel also wanted to
know ―what was done Wednesday night,‖ and whether the court and counsel were
―under a misguided belief that they were deliberating yesterday.‖
     The trial court found that Juror No. 10 had committed misconduct and
discharged her. The court explained: ―The fact that the juror maybe believed that
there is a verdict, it is actually a taking of a vote. Jurors take several votes and
continue deliberating. The only time that they have a verdict is when they sign the
verdict form. The fact that they may have taken a vote, even if they‘re at an
impasse, [does] not mean there was a verdict. . . . [T]he only thing that she

                                           71
disclosed to the jurors, as I understand from her statement, is that she said she
confided in her mother and a friend. . . . [T]his court finds based upon the juror‘s
demeanor, and also based upon the juror‘s comments, that there is misconduct on
the juror‘s part . . . [and] grounds for substituting an alternate.‖

                b. Analysis
     Section 1089 ―authorizes the trial court to discharge a juror at any time
before or after the final submission of the case to the jury if, upon good cause, the
juror is ‗found to be unable to perform his or her duty.‘ ‖ (People v. Bennett
(2009) 45 Cal.4th 577, 621 (Bennett).) Whether to remove the juror is left to the
discretion of the trial court, whose decision for removal is reviewed by ―asking
whether the grounds for such removal appear in the record as a demonstrable
reality.‖ (People v. Thompson (2010) 49 Cal.4th 79, 137 (Thompson).)
     Here, Juror No. 10 admitted telling her close friend that the jury would return
a verdict the next morning, the nature of that verdict, and her unease with the
verdict, thus violating the court‘s admonition not to discuss the case with anyone
outside the jury room. This was misconduct. (People v. Ledesma (2006) 39
Cal.4th 641, 743 (Ledesma) [juror who discussed the case with his wife committed
deliberate misconduct].) After the juror‘s statements, the friend expressed her
views on the death penalty, the very decision the juror had to make in the case.
(See People v. Danks (2004) 32 Cal.4th 269, 309 (Danks) [juror who asked ―her
pastor about the Bible‘s stand on the very issue she was deliberating‖ committed
misconduct].) A ―judge may reasonably conclude that a juror who has violated
instructions to refrain from discussing the case . . . cannot be counted on to follow
instructions in the future‖ and is unable to perform her duty as a juror. (People v.
Daniels (1991) 52 Cal.3d 815, 865.) For these reasons, the trial court had good
cause to discharge Juror No. 10.



                                           72
           2. Discharge of Juror No. 9

               a. Factual background
     On June 20, 2000, during the evidentiary portion of the penalty phase, Juror
No. 9 telephoned the trial court that she was two months pregnant, had a medical
emergency, and was on her way to the hospital. Later that day, the court received
a note from Juror No. 9‘s physician stating that the juror was in severe pain with a
hemorrhagic cyst of the right ovary, that she had been prescribed bed rest, and that
she would be unable to participate in jury duty for the next 48 to 72 hours. That
afternoon, the court and counsel spoke with Juror No. 9‘s doctor. In the
physician‘s view, the juror would recover within 72 hours and could then return to
jury duty. The court then declared a recess until that time.
     On July 3, 2000, during penalty phase deliberations, the trial court read to
counsel a note from Juror No. 9 that was dated July 2 (a Sunday). The note stated:
―Your Honor, [¶] Respectfully, I am asking if I may be removed from this case. I
feel the high amount of stress this case created will be detrimental to the health of
my unborn child, as well as toward myself. Because I am considered high risk in
this pregnancy, I want to make sure I do everything possible to increase my
chances of being able to carry this baby full term. [¶] I wish to thank you for your
time, effort, and compassion in the rendering of your decision.‖ The court asked
counsel whether it should inquire into the matter. The prosecutor favored an
inquiry. Counsel for both defendants, however, objected to any inquiry into Juror
No. 9‘s ability to continue to serve because of her health.
     The trial court and counsel then talked to Juror No. 9. She confirmed
sending the note, and said she was three months pregnant. The court asked her
why she considered the case as potentially detrimental to her health. Juror No. 9
explained that two years before the trial she had had a miscarriage when she was
five months pregnant, at a time when she was under a lot of stress at work. When


                                         73
the court asked whether continued participation in deliberations would cause her
stress, Juror No. 9 replied, ―Yes, sir.‖ To the court‘s inquiry whether it had
―caused a great amount of stress,‖ Juror No. 9 replied, ―Yes, especially Friday.‖
The court asked, ―Do you believe that it would be in your best interests and the
best interests of your unborn child if you are excused from this case?‖ Juror No. 9
said, ―Yes, sir.‖ The court asked: ―Based on your . . . health and your health
history — would it . . . be your opinion that you would be unable to discharge and
perform your duty any further in this case and continue deliberating?‖ Juror No. 9
replied, ―Yes, sir.‖
     Defendant Nunez‘s counsel asked Juror No. 9, ―What happened on Friday?‖
She replied, ―Friday is when I began to feel the pains that I have felt in the past.‖
Nunez‘s counsel asked Juror No. 9 if she had ―seen a doctor since Friday?‖ She
said: ―I was trying to get in to see a doctor Friday afternoon and was unable to. So
if I can today, I‘m going to try to get in to see a doctor.‖
     After hearing argument, the court ruled: ―The court finds good cause to
excuse Juror No. 9. . . . [T]his court finds that this juror‘s unable to perform her
duty; and given that she . . . two years ago lost a child at five months because of
stress at work, and given the stress that this case has caused upon her throughout
this trial — she has suffered one hemorrhage, and now she is having pains again
starting Friday — to ask her to continue on to endanger her life and also the life of
her unborn child, if that is the ultimate risk . . . would be a high price to pay for
jury duty. . . . [T]he court finds good cause that this juror is unable to perform the
juror‘s duty because she‘s sick.‖ It then discharged Juror No. 9.

                b. Analysis
     Defendants fault the trial court for discharging Juror No. 9 for cause. We
perceive no error.



                                           74
     As noted above in part II.C.1.b., section 1089 ―authorizes the trial court to
discharge a juror at any time before or after the final submission of the case to the
jury if, upon good cause, the juror is ‗found to be unable to perform his or her
duty.‘ ‖ (Bennett, supra, 45 Cal.4th at p. 621.) ―Removal of a juror under section
1089 is committed to the discretion of the trial court, and we review such
decisions by asking whether the grounds for such removal appear in the record as
a demonstrable reality.‖ (Thompson, supra, 49 Cal.4th at p. 137.) Defendants
contend the record here shows no such demonstrable reality because Juror No. 9
did not persist in her efforts to see a doctor about her condition, and because the
trial court did not speak to Juror No. 9‘s doctor about the pain she was feeling.
They note that previously, when Juror No. 9 was forced to temporarily suspend
her jury service because of severe pain, her doctor had attributed the pain to a cyst,
not stress, and had told the court that Juror No. 9 could resume jury service after
three days of rest.
     Juror No. 9 had a high-risk pregnancy and was experiencing pain, and earlier
in the penalty phase she had experienced hemorrhaging that caused her doctor to
order her to go on bed rest and suspend her jury service for three days. She felt
stress from the jury deliberations, and a previous pregnancy had ended in a
miscarriage that occurred when she was under stress. Based on these
circumstances, the trial court had ample reason to discharge Juror No. 9. (See
Thompson, supra, 49 Cal.4th at p. 138 [trial-related stress can provide good cause
for discharging a juror]; People v. Collins (1976) 17 Cal.3d 687, 690-691, 696
(Collins) [juror properly discharged because of inability to cope with the
experience of being a juror]; People v. Fudge (1994) 7 Cal.4th 1075, 1099-1100
[juror properly discharged because of anxiety about new job].)




                                         75
           3. Failure to instruct jury to begin deliberations anew

                a. Factual background
     When the trial court first learned that Juror No. 9 was ill and might be unable
to return to jury service, it told the parties it was considering instructing the jury
with CALJIC No. 17.51, which directs the jury, following the replacement of a
juror with an alternate during deliberations, to ―set aside and disregard all past
deliberations and begin deliberating anew.‖ But when the court replaced Juror No.
10 with Alternate Juror No. 2, it instead instructed the jury, without objection,
solely in the language of CALJIC No. 17.51.1: ―Members of the jury, a juror has
been replaced by an alternate juror. The alternate juror was present during the
presentation of all the evidence, arguments of counsel, and reading of instructions
during the guilt phase of the trial. However, the alternate juror did not participate
in the jury deliberations which resulted in the verdicts and findings returned by
you to this point. For the purposes of this penalty phase of the trial, the alternate
juror must accept as having been proved beyond a reasonable doubt those guilty
verdicts and true findings rendered by the jury in the guilt phase of this trial. Your
function now is to determine along with the other jurors, in the light of the prior
verdict or verdicts and findings and the evidence and law, what penalty should be
imposed. Each of you must participate fully in the deliberations, including any
review as may be necessary of the evidence presented in the guilt phase of the
trial.‖ The court did not give CALJIC No. 17.51.
     When the trial court later replaced Juror No. 9 with Alternate Juror No. 4, it
again gave CALJIC No. 17.51.1, but not CALJIC No. 17.51. As before, there was
no objection. The record contains no explanation for the court‘s failure to give
CALJIC No. 17.51.
     After Juror No. 9 was replaced, the jury deliberated for about 50 minutes
before reaching a verdict of death as to both defendants.


                                           76
                b. Analysis
     Defendants contend that after replacing Jurors Nos. 9 and 10, the trial court
erred in failing to instruct the jury to disregard its previous penalty deliberations
and to begin deliberating anew. (See CALJIC No. 17.51.) They rely on Collins,
supra, 17 Cal.3d 687.
     In Collins, which was not a death penalty case, we held that ―substitution of
an alternate for an original juror is constitutionally permissible after deliberations
have begun‖ when ―good cause has been shown and the jury has been instructed to
begin deliberations anew.‖ (Collins, supra, 17 Cal.3d at p. 691.) We observed:
―The requirement that 12 persons reach a unanimous verdict is not met unless
those 12 reach their consensus through deliberations which are the common
experience of all of them. It is not enough that 12 jurors reach a unanimous
verdict if 1 juror has not had the benefit of the deliberations of the other 11.
Deliberations provide the jury with the opportunity to review the evidence in light
of the perception and memory of each member. Equally important in shaping a
member‘s viewpoint are the personal reactions and interactions as any individual
juror attempts to persuade others to accept his or her viewpoint. The result is a
balance easily upset if a new juror enters the decision-making process after the 11
others have commenced deliberations. The elements of number and unanimity
combine to form an essential element of unity in the verdict. By this we mean that
a defendant may not be convicted except by 12 jurors who have heard all the
evidence and argument and who together have deliberated to unanimity.‖ (Id. at
p. 693.) We therefore construed section 1089, which authorizes trial courts to
replace a sitting juror with an alternate, as requiring any court making such a
replacement to ―instruct the jury to set aside and disregard all past deliberations
and begin deliberating anew.‖ (Collins, at p. 694.) But we held that the trial




                                          77
court‘s erroneous failure to give such an instruction in Collins was harmless under
state law. (Id. at p. 697.)
     In People v. Fields (1983) 35 Cal.3d 329 (Fields), a capital case, the
defendant argued that the trial court violated his right to a jury that was a
representative cross-section of the community at the guilt phase of trial by
excusing for cause prospective jurors whose views about the death penalty made
them unable to sit as jurors at the penalty phase. In explaining why his claim
lacked merit, we discussed why such jurors could not routinely be allowed to serve
on the jury during the guilt phase, and replaced with alternates for the penalty
phase. (Id. at p. 351, fn. 9.) We observed: ―[A]n alternate joining the jury after it
had deliberated on the issues of guilt and special circumstances and reached a
verdict . . . would be joining a group which has already discussed and evaluated
the circumstances of the crime, the capacity of the defendant, and other issues
which bear both on guilt and on penalty. The resulting deliberations between old
members who have already considered the evidence and may have arrived at
tentative conclusions on some aspects of the case, and new members ignorant of
those discussions and conclusions, would depart from the requirement that jurors
‗reach their consensus through deliberations which are the common experience of
all of them‘ ‖ (Id. at p. 351, quoting Collins, supra, 17 Cal.3d at p. 693.)
     Despite this language in Fields, supra, 35 Cal.3d at page 351, we have
repeatedly held that a trial court need not give an instruction based on Collins,
supra, 17 Cal.3d 687, when an alternate juror is substituted at the penalty phase
before deliberations begin. (See, e.g., People v. Ashmus (1991) 54 Cal.3d 932,
1005.) But here, the jury‘s penalty phase deliberations had already begun when
Juror Nos. 9 and 10 were discharged; hence the instruction was required. (See
Ledesma, supra, 39 Cal.4th at p. 743 [discharge of juror after penalty deliberations



                                          78
had begun did not require discharge of the entire jury because the court instructed
the jury to disregard their past deliberations and begin deliberations anew].)
     We therefore consider whether the trial court‘s error in not instructing the
jury to set aside its previous deliberations and begin anew was prejudicial. Both
defendants contend this error violated their rights under the Sixth, Eighth, and
Fourteenth Amendments to the federal Constitution. In Collins, supra, 17 Cal.3d
at page 697, footnote 5, we held that such an error does not violate the federal
Constitution when it occurs at the guilt phase; here defendants offer no persuasive
argument why the result should be different when the error occurs at the penalty
phase. Therefore, our prejudice assessment applies the test for state law error at
the penalty phase of trial: Is there a ―reasonable possibility‖ that the error affected
the jury‘s penalty verdict? (People v. Fuiava (2012) 53 Cal.4th 622, 719.)
     In assessing prejudice, we note that each time the trial court replaced a sitting
juror with an alternate, it explained: ―Your function now is to determine along
with the other jurors, . . . what penalty should be imposed. Each of you must
participate fully in the deliberations, including any review as may be necessary of
the evidence presented in the guilt phase of the trial.‖ Although this instruction
did not expressly state that deliberations were to begin anew, its comment that
each juror must ―participate fully in the deliberations‖ implied that this was the
case. (See People v. Cain (1995) 10 Cal.4th 1, 66 [such language did not ―suggest
the substituted juror should play less than an equal role‖ in reviewing the guilt
phase evidence to assess the circumstances of the crime and the existence of
lingering doubt].)
     Furthermore, the Collins instruction plays a more limited role at the penalty
phase of trial than at the guilt phase. ―Unlike the guilt determination, ‗the
sentencing function is inherently moral and normative, not factual.‘ ‖ (People
v. Hawthorne (1992) 4 Cal.4th 43, 79.) Thus, a penalty phase juror properly

                                          79
considers ―personal religious, philosophical, or secular normative values‖ in
making a penalty determination. (Danks, supra, 32 Cal.4th at p. 311; People v.
Lewis (2001) 26 Cal.4th 334, 389-390 [jurors may rely ― ‗on their personal faith
and deeply-held beliefs when facing the awesome decision of whether to impose
the sentence of death on a fellow citizen‘ ‖].) The standard penalty phase
instructions emphasize the personal nature of the penalty decision. Jurors are
instructed, as they were in this case, that each juror is ―free to assign [whatever]
moral or sympathetic value‖ that juror deems ―appropriate to each and all of the
various factors‖ in aggravation and mitigation. (See CALJIC No. 8.88.) The
jurors in this case were also instructed that they could ―decide not to impose the
penalty of death by granting the defendant mercy, regardless of whether or not [the
defendant] deserves . . . sympathy.‖
     Although a juror‘s view regarding the weight of a particular aggravating or
mitigating factor, or the extension of mercy, may be informed by discussion with
other jurors, ultimately it is a profoundly personal decision qualitatively different
from the fact finding required by the jury in determining guilt for the charged
offenses, which was the situation we confronted in Collins, supra, 17 Cal.3d 687.
Moreover, unlike at the guilt phase, although a juror may be required to find some
facts at the penalty phase, a juror can consider an aggravating factor even if other
jurors do not agree it has been proven.
     For these reasons — the language of the instruction given, and the normative
context of the penalty phase deliberations — we conclude there was no reasonable
possibility that the outcome of the penalty phase was affected by the trial court‘s
failure to instruct the jury to set aside its prior deliberations when it replaced
Jurors Nos. 9 and 10 with alternate jurors.




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           4. Constitutionality of the death penalty statute
     Both defendants contend that the California death penalty law is
unconstitutional, asserting various claims we have repeatedly rejected in the past.
     Thus, we have said that ―the California death penalty statute is not
impermissibly broad, whether considered on its face or as interpreted by this
court.‖ (People v. Dykes (2009) 46 Cal.4th 731, 813 (Dykes).) We have further
―reject[ed] the claim that section 190.3, factor (a), on its face or as interpreted and
applied, permits arbitrary and capricious imposition of a sentence of death.‖
(Ibid.; see Tuilaepa v. California (1994) 512 U.S. 967, 975-976, 978.)
     Contrary to defendants‘ assertion, the death penalty statute contains adequate
safeguards to avoid arbitrary and capricious sentencing and does not deprive
defendants of the right to a jury trial, even though it does not require ―unanimity as
to the truth of aggravating circumstances, or findings beyond a reasonable doubt
that an aggravating circumstance (other than section 190.3, factor (b) or (c)
evidence) has been proved, that the aggravating factors outweighed the mitigating
factors, or that death is the appropriate sentence.‖ (People v. Lynch (2010) 50
Cal.4th 693, 766.) Nothing in Cunningham v. California (2007) 549 U.S. 270,
Blakely v. Washington (2004) 542 U.S. 296, Ring v. Arizona (2002) 536 U.S. 584,
or Apprendi v. New Jersey (2000) 530 U.S. 466, affects our conclusions in this
regard. (People v. Dement (2011) 53 Cal.4th 1, 55.)
     The federal Constitution does not require the jury to make ― ‗written findings
of the factors it finds in aggravation and mitigation.‘ ‖ (Dykes, supra, 46 Cal.4th
at p. 813.) At the penalty phase, the jury may properly consider a defendant‘s
unadjudicated criminal activity. (People v. Martinez (2010) 47 Cal.4th 911, 968.)
Use of the adjectives ―extreme‖ and ―substantial‖ in section 190.3, factors (d) and
(g) is constitutional. (People v. Valencia (2008) 43 Cal.4th 268, 311.)




                                          81
     ― ‗ ―[T]he statutory instruction to the jury to consider ‗whether or not‘ certain
mitigating factors were present did not impermissibly invite the jury to aggravate
the sentence upon the basis of nonexistent or irrational aggravating factors.
[Citations.]‖ ‘ ‖ (People v. Parson (2008) 44 Cal.4th 332, 369.) Moreover, here
the trial court instructed the jury: ―The permissible aggravating factors are limited
to those aggravating factors upon which you have been specifically instructed.
Therefore, the evidence which has been presented by the defense regarding the
defendant‘s background may only be considered by you as mitigating evidence.‖
     Intercase proportionality review is not constitutionally required. (People v.
Stevens (2007) 41 Cal.4th 182, 212 (Stevens); see Pulley v. Harris (1984) 465 U.S.
37, 50-51.) Moreover, ―capital and noncapital defendants are not similarly
situated and therefore may be treated differently without violating constitutional
guarantees of equal protection of the laws or due process of law.‖ (People v.
Manriquez (2005) 37 Cal.4th 547, 590.)
     Both defendants contend that their death sentences violate international law.
Here, there were no violations of state or federal law that preclude imposition of
the death penalty in this case, and defendants ―point[] to no authority that
‗prohibit[s] a sentence of death rendered in accordance with state and federal
constitutional and statutory requirements.‘ ‖ (Stevens, supra, 41 Cal.4th at p. 213.)

           5. Asserted cumulative error
     Defendants contend that even if the errors at trial are not individually
prejudicial, they were so prejudicial cumulatively that they require reversal of
defendants‘ murder convictions and the judgments of death. We have concluded
that the trial court committed instructional error pertaining to the street gang and
firearm use enhancement allegations that requires vacation of those findings, and
we have found that the duplicative multiple-murder special-circumstance findings



                                          82
must be vacated. We have also concluded that the court erred by failing to instruct
the jury on the intent to kill requirement for the multiple-murder special-
circumstance allegations when a defendant is an aider and abettor, by failing to
administer the oath required by Code of Civil Procedure section 232‘s subdivision
(b) to three jurors who were originally selected as alternates and later replaced
sitting jurors, and by failing to instruct the jury in the language of CALJIC No.
17.51 upon replacing two jurors during the jury‘s penalty phase deliberations.
These errors do not, whether considered individually or cumulatively, require
reversal of either the murder convictions or the judgments of death.
                                  III. DISPOSITION
     As to both defendants, we vacate the true findings on the allegations
pertaining to the street gang and firearm use enhancements, we vacate one
multiple-murder special-circumstance finding for each defendant, and we
otherwise affirm the judgments.


                                                 KENNARD, J.
WE CONCUR:

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




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

Name of Opinion People v. Nunez & Satele
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S091915
Date Filed: July 1, 2013
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Thomson T. Ong

__________________________________________________________________________________

Counsel:

Janyce Keiko Imata Blair, under appointment by the Supreme Court, for Defendant and Appellant David
Nunez.

David H. Goodwin, under appointment by the Supreme Court, for Defendant and Appellant William Tupua
Satele.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka and Lance E. Winters, Assistant Attorney General, Sharlene A.
Honnaka, Jaime L. Fuster and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Janyce Keiko Imata Blair
321 Richmond Street
El Segundo, CA 90245
(310) 606-9262

David H. Goodwin
P.O. Box 93579
Los Angeles, CA 90093-0579
(323) 666-9960

Carl N. Henry
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2055
