        IN THE SUPREME COURT OF
               CALIFORNIA

                       THE PEOPLE,
                  Plaintiff and Respondent,
                              v.
                  LOUIS MITCHELL, JR.,
                  Defendant and Appellant.

                           S147335

           San Bernardino County Superior Court
                       FSB051580



                        June 24, 2019

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

                            S147335

                Opinion of the Court by Liu, J.

       A jury in San Bernardino County convicted defendant
Louis Mitchell, Jr., of three counts of first degree murder of
Mario Lopez, Patrick Mawikere, and Susano Torres (Pen. Code,
§ 187, subd. (a); all undesignated references are to this code),
and three counts of first degree attempted murder of Juan
Bizzotto, Jerry Payan, and Armando Torres (§§ 664, 187,
subd. (a)), arising from two shootings committed by Mitchell on
August 8, 2005. The jury found true special circumstance
allegations that Mitchell committed multiple murders and the
enhancements that in each offense Mitchell personally and
intentionally discharged a firearm. (§§ 190.2, subd. (a)(3),
12022.53, subd. (d).) The jury returned a verdict of death. The
trial court then sentenced Mitchell to death for the three counts
of conviction of first degree murder and imposed an additional
sentence of 150 years to life in prison for the three counts of
conviction of first degree attempted murder and the firearm
enhancements. This appeal is automatic. (Cal. Const., art. VI,
§ 11; § 1239, subd. (b).) We affirm the judgment in all respects.




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                          I.     FACTS
     A. Guilt Phase
         1. Prosecution Evidence
            (a) Mitchell and Small’s Visit to Car Dealership
               on August 8, 2005
      In August of 2005, Mitchell and Dorene Small were living
together in an apartment in Rialto, along with Small’s five
children and three of Mitchell’s children. Small had recently
been in a car accident and received a settlement from her
insurance company. She intended to use the settlement
proceeds to buy another car.
      On August 8, 2005, after Small picked up the settlement
check from her insurance company, she and Mitchell went to
California Auto Specialist (CAS), a used car dealership in
Colton, to shop for a replacement vehicle. They arrived at CAS
between 10:00 and 10:30 in the morning in Small’s white
Chevrolet Lumina. Small testified that although she owned the
Lumina, it was often driven and used by Mitchell.
      At first, they were helped by CAS salesman Juan Bizzotto.
Because Bizzotto could not speak English well, he referred them
to his colleague, Mario Lopez. Ultimately, Lopez helped Small
complete paperwork to purchase a used Dodge Durango truck.
According to the testimony of another CAS salesman Jerry
Payan, it appeared that Mitchell tried to dissuade Small from
buying the Durango because he preferred a larger truck. But
Small did not like the bigger truck, and her poor credit status
prevented her from qualifying for the more expensive truck that
Mitchell preferred.
     Mitchell left CAS, leaving Small to finalize the car
purchase with Lopez on her own. There was conflicting
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testimony as to Mitchell’s demeanor when he left Small. Payan
recalled that Mitchell was angry with her over her choice.
Bizzotto, on the other hand, remembered Mitchell acting “fine”
during the deal, despite his disagreement with Small’s decision.
      Small then told Lopez that she needed to cash a check at
a bank in order to make the downpayment. Lopez agreed to
allow Small to drive the Durango to the bank, and Bizzotto
followed Small in a separate car. On the way back to the
dealership, the Durango broke down and could not be restarted.
They left the Durango on the side of the road for repairs, and
Bizzotto drove Small back to the dealership.
      Small testified that she was not upset about the
breakdown of the Durango, and Bizzotto confirmed in his
testimony that Small had reacted calmly. According to Bizzotto,
Small went ahead with the purchase of the Durango, even
though she had the right to back out of the deal. Small chose to
take a loaner car and allow the dealership to fix the Durango.
While still at the dealership, Small called home to tell her son
Kenrod Bell that she had bought a car but was not coming home
with it because it broke down.
       When Small arrived home, Mitchell was not there, and she
did not see her Chevy Lumina. Small noticed that Mitchell had
left his cell phone, which was unusual for him. Small then left
for work, arriving there around 2:30 p.m. But she left shortly
thereafter because she was not feeling well, and she returned
home around 4:00 p.m.
      Around 2:00 p.m., Mitchell called Christina Eyre, who at
the time of trial was Mitchell’s girlfriend. Eyre testified that she
and Mitchell had been in a relationship for about two years,
including the time that Mitchell was together with Small. Their
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conversation lasted less than five minutes. Mitchell mentioned
to Eyre that he and Small had been “screwed over” in a car deal;
according to Eyre, Mitchell did not say he was mad, but noted
that Small had insisted upon buying the defective Durango.
Eyre further stated that she heard Romen Williams, also known
as “Chrome,” and Small’s son Bell in the background.
            (b) Shooting at the Car Dealership
      Between 2:15 p.m. and 2:30 p.m. on August 8, 2005,
Payan, Lopez, and Patrick Mawikere were gathered at Payan’s
desk facing the window overlooking the car lot. They saw
Mitchell return to the dealership driving the same white
Lumina in which he and Small had arrived earlier that day.
Bizzotto, who was on his desk phone talking with his wife at the
time, also noticed Mitchell. Bizzotto saw that Mitchell was not
alone; he was accompanied in the Lumina by two other people.
Bizzotto described the two as African American men between 25
and 35 years of age; they remained in the car as Mitchell entered
the dealership.
      There were no customers in the dealership at the time.
Payan and Bizzotto both testified that they saw Lopez meet
Mitchell at the entrance of the dealership office. Mitchell
repeatedly asked Lopez where Small was. Lopez replied that
Small had left to go to work. Both Payan and Mawikere stood
up, intending to assist Lopez. Although Payan was not alarmed
by Mitchell’s behavior at this time, Bizzotto testified that
Mitchell was excited and angry, in contrast to his behavior
earlier that day.
     Payan then saw Mitchell pull a gun out of his pants pocket
and shoot Lopez. Payan testified that Mitchell was looking at
Payan while he shot Lopez. When Payan heard a second
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gunshot, he ran toward a window looking to escape. Because
Mitchell was standing in front of the only exit, Payan decided to
escape by jumping through the closed window. Before he
crashed through the window, Payan heard two or three more
gunshots and was shot in the right arm. Payan landed between
two large cars parked outside the office and crouched between
them. Mitchell pointed his gun outside the window and shot at
him. Payan heard one or two more gunshots, but he was not hit.
As he continued to crouch between the two cars, Payan heard
another series of gunshots coming from inside the dealership.
He also noticed that Mitchell’s white Lumina was in front of
him, with a man sitting in the front seat. Payan made eye
contact with him, and the man exited the Lumina. According to
Payan, the man was a tall, thin African American man, perhaps
18 or 19 years old. Payan saw that this man had his hand down
by his side, and it looked like he had a gun. Payan then ran
across the dealership lot and across the street, seeking help.
Payan ultimately caught the attention of an ambulance and was
given medical assistance on the street before being transported
to a hospital.
      Bizzotto testified that he saw Mitchell push Lopez back
from the front door of the dealership as Lopez was attempting
to escort him outside, pull out a gun, and shoot Lopez in the
abdomen. Bizzotto then saw Payan jump through a window
while Mitchell shot at Payan. When Mawikere tried to
intervene, Bizzotto saw Mitchell point his gun at Mawikere, and
Mawikere asked Mitchell not to shoot him. Mitchell then shot
Mawikere in the head and turned toward Bizzotto. Bizzotto
attempted to hide underneath his desk, and Mitchell started
shooting at him. Bizzotto was shot in the right arm and the
right thigh. Mitchell fired another seven times at Bizzotto,
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causing Bizzotto to suffer shrapnel wounds to his left leg. After
he heard two additional shots, the sound of the door opening,
and a car being driven away, Bizzotto emerged from underneath
his desk. He saw that Lopez was injured and told him to remain
calm.    He saw that Mawikere had been shot and was
unresponsive. Bizzotto instructed his wife, who was still on the
phone, to call 911. Bizzotto also called 911 himself.
      John Vasquez was driving by the dealership around 2:30
p.m., when he saw Bizzotto come out of the dealership with blood
running down his arm.          He testified that Bizzotto was
staggering and being assisted by another man who was holding
his arm up. Vasquez noticed a broken window and thought that
Bizzotto had fallen through it, so he stopped to offer help.
Bizzotto told Vasquez that he had been shot by two black men
and that he feared for his life.
      Responding to the 911 calls, officers from the Colton Police
Department arrived at CAS at approximately 2:45 p.m. They
found that a window in front of the dealership office had been
smashed, and there was a trail of blood outside the window
leading south toward the street. Officers encountered Bizzotto
outside the dealership and saw that he had been shot in the arm.
Bizzotto told them that the person responsible was a black man
who had been at the dealership earlier that day to buy a black
Durango. Inside the office of the dealership, officers found
Lopez lying on the floor on his back, near the front door. Lopez
was conscious and in pain from two gunshot wounds but able to
relate that a lone black man, who had arrived in a white 1997
Chevy Lumina, had shot him. The officers then found Mawikere
behind a desk, dead and facedown with a gunshot wound to the


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head. Lopez died later that night at the hospital as a result of
three gunshot wounds.
      The police interviewed Payan and Bizzotto at the hospital
where they were being treated for their injuries. Payan was
shown photo displays of two suspects. At first, Payan was
unable to cooperate because he was under the influence of
morphine.      Thereafter, Payan identified a photograph of
Mitchell as the shooter. Bizzotto was physically unable to talk
to the officer who visited him at the hospital. After his discharge
from the hospital, Bizzotto was shown a display of six
photographs and identified Mitchell’s photograph as the person
who shot him.
             (c) Shooting at the Yellows Apartment Complex
      The Yellows was the colloquial name given to an
apartment complex in San Bernardino. On August 8, 2005,
around 3:00 p.m, Armando Torres was at the complex visiting
his mother and his brother Susano Torres. Mitchell had
previously lived at the complex and still visited it frequently.
Armando and Susano knew Mitchell from around the complex
and had not had any problems with him.
     On his way to a friend’s apartment, Armando saw Susano
speaking to Rita Ochoa through the window of her apartment.
Armando told Susano that their mother was looking for him.
Armando then went to his friend’s apartment, where he smoked
methamphetamine.
     As Armando came out of his friend’s apartment, Mitchell
walked towards him and said, “Hey devil, let me talk to you,”
and repeatedly told Armando to “come here.” Armando had an
unusual tattoo of horns on his head. Armando testified that
Mitchell appeared to be upset. Armando asked what Mitchell
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wanted, and Mitchell demanded that Armando come to him.
Armando refused and Mitchell pulled out a gun and said, “You
fucked up.” Mitchell shot at Armando at least three times,
hitting him once in the leg as a woman managed to pull him
inside her apartment and call 911. Armando stated that he
heard more shots fired about 30 seconds later.
      Susano was joined by his friend Phillip Mancha, and they
were talking to Ochoa outside her window when they heard
shots. Mancha climbed through Ochoa’s window, and he and
Ochoa got down on the ground. Susano went to check what was
happening and encountered Mitchell.           According to the
testimony of another resident of the Yellows, Valerie
Hernandez, Mitchell shot Susano. He was with Romen
Williams, and one of them said something to the effect of “[f]uck
that. That’s what they get.” Hernandez could not see Mitchell’s
face because it was obscured by the leaves of a tree in her line of
sight, but she saw his body and a gun in his hand when the shots
were fired. Then after the shots were fired, she saw Mitchell
pull down the gun to his side and walk away between the
apartments toward the parking area. Mancha testified that he
heard Susano getting hit and yelling for help. Ochoa testified
that she looked outside and saw Susano on the ground bleeding
from the nose. The bullet passed through both of Susano’s
lungs, and he died shortly thereafter from internal bleeding.
Neither Ochoa nor Mancha identified Susano’s shooter.
      Just before 3:00 p.m., Rosalba Villaneda, Armando’s
sister-in-law and a resident of the Yellows, heard several
gunshots being fired. She testified that about five minutes later,
Mitchell walked by them with a gun in his right hand,
unaccompanied. Although Villaneda did not know him by name,

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she was familiar with Mitchell. Mitchell then entered a car on
the passenger side and left the area.
      Shortly thereafter, San Bernardino police officers arrived
at the Yellows to respond to the incident. Officer James Voss
saw a group of people by Torres, who was lying in a dirt area
with no pulse. Voss called for medical assistance. A resident of
the Yellows then directed Voss to her apartment, where he
found Armando on the floor.
             (d) Mitchell’s Arrest
      On the next day, August 9, 2005, Mitchell went to the Del
Mar apartment complex in San Bernardino. He was at Tracy
Ruff’s apartment, where he and another person were smoking
marijuana and cigarettes. Suddenly, Mitchell pulled out his gun
and fired it into the air six or seven times. Then Mitchell walked
out in front of the apartment complex, waving his gun in the air.
A nearby resident, Patricia Conger, saw Mitchell pointing his
gun at other cars, people, and houses. Around the same time,
another nearby resident, James Morrison, was outside his house
working on a car and heard several gunshots. He then saw
Mitchell waving a gun, so Morrison ran into his house.
      Ruff followed Mitchell to the street and saw Mitchell wave
his gun in the air and say, “I killed the devil.” Ruff told Mitchell
that the police were going to come and asked Mitchell to give
him the gun. Ruff returned to the apartments and hid the gun
in the tire well of a van in the rear parking structure.
     Officer Thomas Adams arrived on the scene, and Mitchell
immediately started yelling at him. Officer Adams testified that
he made numerous commands that Mitchell ignored. Instead of
complying, Mitchell kept approaching the officer and said, “My
gun is bigger than yours. Fuck it. I’ll just take your gun.”
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Officer Adams then shot Mitchell in the leg to stop him from
advancing.
      Officer Kevin Jeffery testified that Mitchell was agitated
when officers were handcuffing him and in the ambulance on
the way to the hospital. During this time, Mitchell told Officer
Joshua Cogswell that if he was going to die, the officer was going
to go with him. He also told Officer Jeffery, “God would not
judge him for killing the devil.”
             (e) Forensic Evidence
      Criminalist Heather Harlacker located one fired cartridge
case outside the CAS office building and 10 more fired cartridge
cases and bullet fragments inside the building. According to
Harlacker’s expert testimony, all 11 cartridge casings were from
the same nine-millimeter caliber gun. Seven cartridge casings,
all nine-millimeter casings of the same brand, and nine bullet
fragments were collected at the Yellows. At the Del Mar
complex crime scene, a forensic technician recovered a nine-
millimeter gun containing an empty magazine concealed in the
wheel well of a van, with Mitchell’s DNA on it. Criminalist Kerri
Heward concluded that six of the seven cartridge casings had
definitely been fired from the same nine-millimeter gun
retrieved, and the other cartridge probably was.             The
technician also recovered a second empty nine-millimeter
magazine inside the pocket of Mitchell’s pants. Furthermore,
Heward opined that the casings recovered from the car
dealership, the Yellows, and the Del Mar complex were all fired
from Mitchell’s gun.
         2. Defense Evidence
     The defense case focused on inconsistencies in the
witness’s testimony and the lack of scientific evidence. Defense
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counsel argued that Payan’s account of Lopez’s death conflicted
with the medical examiner’s findings. Counsel challenged the
credibility of Armando’s testimony on account of the fact that he
was under the influence of methamphetamine and his brother
was killed, and additionally pointed out inconsistencies in his
recitation of the facts. Counsel also challenged Hernandez’s
recitation of the facts as inconsistent. Finally, defense counsel
underscored that the bullets recovered from the victims could
not be matched to the casings at the crime scenes and to
Mitchell’s gun.
     B. Penalty Phase
         1. Prosecution Evidence in Aggravation
             (a) Criminal Activity Involving Force or Violence
                (1) July 10, 1998 Carjacking
      The prosecution presented evidence that Mitchell was
involved in a carjacking on July 10, 1998. Around 5:30 p.m. on
that day, Rebecca Davis and Lupe Chavez were parked at a store
in San Bernardino, talking to each other. Chavez was in the
driver’s seat, Davis was in the passenger seat, and Davis’s infant
daughter was sitting in between them. Davis noticed two black
males talking to each other. One of them approached the
driver’s side, and the other, Mitchell, approached the
passenger’s side of the car. The man on the driver’s side was
wearing brass knuckles and told Chavez to get out of the car.
When she refused, he pulled her out of the car and she fell to the
ground. Mitchell told Davis to get out and get her baby out of
the car, and she complied. The men then drove away in the car.
                (2) August 9, 2005 Firing of Gun
      The prosecution then presented evidence about the events
at the Del Mar complex on August 9, 2005. Around 3:00 p.m.,
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Mitchell was in the middle of 19th Street with a gun. Brenda
Wierenga and David Roark were in a car on the street at the
time. Wieranga saw Mitchell pointing a gun at her and ducked
under the steering wheel. Mitchell fired the empty gun five to
six times at the car’s passenger side where Roark was seated.
Mitchell made a number of threatening and racially charged
statements at Wieranga and Roark, such as: “Hey, anybody
want to come out here and fight me? We can get down right
now”; “All you whites and Mexicans stay inside”; and “Where is
all my n–––––?” As Wieranga drove the car away, Mitchell said,
“See y’all don’t want none.” Mitchell then pointed his gun at the
sky, took out the clip, and pointed it at his head and said, “See,
I’ll even shoot myself.” He also said to himself, “Go back inside.
You all need to go back inside. The devil is talking to me.”
      Armando DeSantiago, who worked for Federal Express,
was delivering a package on 19th Street when he heard
gunshots. He testified he saw Mitchell in the middle of the
street pointing his gun indiscriminately and yelling, “I’m the
devil. I’m going to shoot everybody. Just come out wherever you
are.” Mitchell saw DeSantiago, pointed the gun at him, said,
“I’m going to kill you” and to “get out of there”; Mitchell then
pulled the trigger three times from a short distance away. In
fear, DeSantiago hid behind his truck.
      Mitchell then went back inside the apartment complex
and came back out. He was followed by Ruff telling him to calm
down. Mitchell and Ruff struggled over the gun and finally
Mitchell gave it to him. When the officer arrived, Mitchell
walked toward the officer, pantomiming that he had a gun in his
hand and was firing it. Mitchell said to the officer, “Come on,
you’re a cop. You’re supposed to kill me.” Mitchell was arrested

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soon thereafter, and he told an officer to remove his handcuffs
and said he would “kick his ass.”
             (b) Victim Impact Evidence
                (1) Murder of Mario Lopez
      Rene Lopez, one of Mario Lopez’s four sons, testified about
his father. Rene described Mario as a caring, happy man. He
described Mario as “the best mechanic in the world. The best
father. The best grandfather.” Mario doted on his grandson and
loved spending the holidays with Rene’s family. He also loved
spending time with his wife Cecelia.
      Rene traveled to the hospital when he heard Mario was
shot and stayed with him until he died. Since his father’s death,
Rene said there are “times I lose myself” when he goes through
bouts of depression. Rene also misses the relationship his father
had with his son.
      Cecelia Lopez had been Mario’s partner for nine years.
She described Mario as a family man, always concerned about
his children and grandchildren. She described him as a
gentleman and very hardworking.
      Since his death, Cecelia had to sell their house, move in
with her daughter, and give up her two dogs. Cecelia said that
what she missed most about Mario was his presence, his caring,
and how he looked after her. For example, he used to remind
her to take her medication. Furthermore, she testified that her
medical problems have gotten worse since Mario was murdered
due to high blood pressure and anxiety.
      Payan had known Mario Lopez for over five years. He
described Mario as always concerned about everybody else. He


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missed Mario’s advice and encouragement, like when Mario
would tell him not to worry about the small things.
                 (2) Murder of Patrick Mawikere
      Several witnesses testified about the impact of Patrick
Mawikere’s murder on their lives. Patrick’s father, John
Mawikere, testified about his son. Patrick had an apartment
with his brother Sandy, but often visited his parents on his days
off. John testified that Patrick loved working and was very
generous with his money. Patrick had a lot of friends; more than
1,600 people attended his funeral. Patrick loved to take his
niece and nephew out. Patrick and his mother, Mary Mawikere,
were very close; they spoke every day. Mary had to go to
counseling to cope with Patrick’s death. Payan testified that he
had known Patrick for two years, and they became friends. He
said Patrick was raised very well by his parents, was hard
working, and had set a number of goals for himself.
                 (3) Attempted Murder of Jerry Payan
       Prior to being shot, Payan was a very active person. He
testified that he has lost some function in his right arm and is
still suffering from the injury to his knee. He testified that he
was frustrated and angry because he could no longer do things
like hug his wife, hold his children, and play sports with his son.
Payan’s wife, Doris Payan, described the changes in their
lifestyle since the shooting. Instead of spending days off taking
their son to the amusement park and doing other activities, they
spent that time going to therapy. She further testified that
Jerry was no longer the calm person he once was; he used to be
jovial and joke with people, but he became easily agitated. He
was also uneasy at home; he did not feel safe and often worried
that he would not be able to protect her if something happened.
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                (4) Attempted Murder of Juan Bizzotto
       When Bizzotto was shot, he had one-year-old twins. He
testified that the injury from his gunshot wound severely
limited the use of his right hand and arm such that he could no
longer lift his children or feed them with his right arm.
Furthermore, Bizzotto’s mental and emotional health was
adversely affected by the shooting. He testified that he had
trouble going out in public. Moreover, he was no longer able to
work.
                (5) Murder of Susano Torres and Attempted
                    Murder of Armando Torres
      Rafaela Navarete testified about her sons, Susano and
Armando Torres. She testified that Susano loved playing with
her grandchildren and that he helped watch them. She said
Susano was a happy child who loved to work with his hands; he
liked to take things apart and put them back together. Navarete
knew Mitchell, as he was friends with her children and would
come by and ask for them. She testified that Mitchell even
called her “mom.” She was angry at Mitchell and did not
understand why he killed Susano. As a result of the stress, she
had to go to the hospital. Navarete thereafter moved from the
Yellows complex. Following Susano’s death, she went to the
cemetery every day to visit him, where she cried and talked to
him.
      Sergio Quintero, Susano and Armando’s older brother,
also testified. At one point, Susano lived with Quintero in
Redlands before Susano moved in with their mother. Quintero
said Susano was his friend and they spent a lot of time hanging
out together.


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      Beatriz Lopez, Susano’s older sister, recalled that Susano
was a good child. Whenever she went to their mother’s house,
Susano was often playing with the kids. She recalled that when
she was cooking, Susano would come up from behind her, hug
her, and say, “I love you, sis.” She said that she misses
everything about Susano and that they had a great relationship.
She also testified that this last Christmas, her mother did not
want to be with the family and instead spent time alone in her
room.
      Armando Torres testified that he missed Susano’s smile,
how Susano used to treat him, and the time they spent hanging
out together. He said Susano was a nice person and a good kid.
Armando had not returned to the Yellows since the shootings
because he did not want to remember it. Armando testified that
when he thought about his brother, he used drugs to make his
thoughts go away.            After the shootings, Armando’s
methamphetamine use became worse; he testified that he kept
“messing up,” resulting in further arrests. Armando testified
that at the time of his testimony, he was in custody for criminal
charges relating to an assault, possession of drugs, and
possession of a firearm.
         2. Mitigation Evidence
            (a) Mitchell’s Family and Childhood
      Mitchell’s mother, Kathy Joiner, was 16 years old when
she married Mitchell’s father, Louis Mitchell, Sr. Mitchell, the
first of their three children together, was born in 1970.
Mitchell’s father returned from service in the Marines in 1971.
Mitchell’s parents had a tumultuous marriage and separated
three times before their divorce in 1975.


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      Mitchell and his younger brother, Dante Mitchell, were
ages six and five, respectively, when their father went to jail.
Mitchell’s uncle, John Mitchell, and his wife took Mitchell and
Dante in and cared for them. They stayed with John for about
four and a half months until the state placed them in the foster
system. John described Mitchell’s father as an “absentee dad,”
even to this day. John said that Mitchell’s parents were both
very young and inexperienced, and incapable of raising children.
Joiner testified that she failed her son as a mother.
       Dante Mitchell testified that when he was eight and
Mitchell was ten, they lived with a couple named Matty and Big
Jim until they moved back in with their father. Things began
to deteriorate from there, and at their father’s request, they
went back into foster care. They were then returned to their
mother in 1979 and, shortly thereafter, removed from her care
when she was arrested for alleged child abuse and neglect. The
last time Dante had seen Mitchell was on the morning of August
9, 2005. Mitchell came to Dante’s house in Los Angeles just
before Dante was leaving for work around 8:00 a.m. He told
Dante that he looked like Mitchell’s children and that he loved
him.
       Wendy Williams was Mitchell’s stepmother but had been
separated from Mitchell’s father for about 22 years. She
testified that Mitchell and Dante had lived with her and
Mitchell, Sr., on two occasions for relatively short periods of time
when they were younger. She further testified that Mitchell,
Sr., had poor parenting skills and that he did not interact with
any of his children. Williams last saw Mitchell when he was 17
years old.


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      Lashona Blue, with whom Mitchell has three children,
also testified. Their children were 11-year-old twins Hasan and
Amena, and eight-year-old Mustafa. Blue and Mitchell met in
1994 and lived together in Los Angeles for three to four years.
She testified that Mitchell loved their children, was a good
father, and never abused her in any way. Blue said she had
some great times with Mitchell and their children, and that he
was never vicious. She stated that her sons were having
problems and acting out because of their father’s situation.
      Mitchell’s daughter Amena testified that she loved her
father but knew he was in a lot of trouble. She promised she
would stay in touch with him and send him letters.
             (b) Mitchell’s Criminal and Mental Health History
      Mitchell was convicted in August 1988 for unlawfully
taking a motor vehicle and placed on felony probation. In
December 1989, he was convicted of possession of cocaine for
sale. He was arrested in March 1990 for possession of cocaine
and convicted in August 1990. Mitchell was arrested in August
1992, and ultimately convicted in November 1992 of possession
of cocaine base for sale. His probation for the carjacking offense
in 1988 was revoked, and he was sentenced to four years in
prison. In December 1996, Mitchell was convicted of possession
of marijuana for sale and granted probation. He was convicted
of possession of PCP in July 2000, sentenced to two years in
prison, and released in January 2002. Thereafter, he was
arrested again for possession of cocaine base for sale, convicted
in December 2002, and sentenced to prison for four years.
      Karen Hofmeister of the University of California, San
Diego psychiatry department interviewed Mitchell in June 2004
at the California Institute for Men, in advance of Mitchell being
                                 18
                      PEOPLE v. MITCHELL
                   Opinion of the Court by Liu, J.


paroled in order to gather information for the Parole Outpatient
Clinic. She wrote in her report that Mitchell appeared
depressed.
      While still incarcerated, Mitchell came under the care of
Dr. William Lawrence, who treated Mitchell for depression and
prescribed a number of medications for Mitchell while he was in
prison, including the antidepressant Wellbutrin. According to
Dr. Lawrence’s notes, there did not appear to be any change in
Mitchell’s mood or mental status from July 2004 to February
2005, and his medication did not change. The last time he saw
Mitchell was in March 2005; his mental status exam was,
according to Dr. Lawrence, “in essence, normal.” He had a
diagnosis of dysthymia, or persistent depressive disorder, and
was on the same dose of Wellbutrin.
      Dr. Nuingyu Kim, a psychiatrist for the Department of
Corrections and Rehabilitation, met with Mitchell on June 24,
2005, and Mitchell told him that he had stopped taking
Wellbutrin. Before the meeting, Dr. Kim read a brief summary
of his social background. It stated that Mitchell had a long
history of being institutionalized, abused as a child, and a long
history of substance abuse, including PCP. Dr. Kim was
concerned that Mitchell stopped taking his medication, but Dr.
Kim could not force Mitchell to take it. As a result, they agreed
that Mitchell would continue to see Dr. Kim once a month in
case he needed medication, but then Mitchell did not show up
for his next scheduled appointment.
      Parole Agent Steven Day supervised Mitchell for a short
period of time and said Mitchell appeared compliant with his
parole. He testified that during those three months or so,
Mitchell never tested positive for any kind of narcotics. The last

                                 19
                      PEOPLE v. MITCHELL
                   Opinion of the Court by Liu, J.


time he was tested was two to three days prior to his arrest for
the three murders.
            (c) Mitchell’s PCP Use
      After Mitchell’s encounter with the police on August 9,
2005, Dr. Jeff Grange treated Mitchell at the hospital for a
gunshot wound and psychiatric symptoms. Mitchell arrived in
an almost catatonic state and then later exhibited bizarre
behavior. Based on this and the events with the paramedics and
law enforcement, Mitchell was tested for drugs. A presumptive
urine test was positive for PCP and marijuana. It was Dr.
Grange’s opinion that Mitchell likely had PCP in his system and
that he exhibited behavior consistent with being on PCP. An
independent laboratory confirmed that Mitchell had PCP in his
system.
      Felix D’Amico testified as a drug recognition expert. He
said that symptoms of PCP appear almost immediately after
smoking it and usually peak two to three hours later. He further
noted that clinical symptoms continue for up to four to six hours
and that behavioral manifestations continue for up to 11 hours.
He noted that because PCP is stored in fatty cells and can be
released by adrenaline, behavioral manifestations can reoccur
even weeks later. Some of the behaviors he has observed in
people under the influence of PCP include being agitated or
excited, having hallucinations or delusions, and paranoia. Their
vital signs (pulse, body temperature, blood pressure) are
extremely high.       Other symptoms include abnormal eye
movements, blank stare, and inability to verbalize. He testified
that these symptoms tend to cycle, such that one moment the
individual will be calm and another moment something might
set them off. He noted that when PCP is used with marijuana,

                                 20
                      PEOPLE v. MITCHELL
                   Opinion of the Court by Liu, J.


a user may experience greater impairment in terms of
misperception of time, space, and distance, in addition to the
possible symptoms from the PCP. Based on his review, D’Amico
stated his opinion that Mitchell was under the influence of PCP
on August 9, 2005.
      Dr. Alan Abrams examined Mitchell and testified as an
expert on psychopharmacology. He also reviewed Mitchell’s
childhood school records and concluded they were consistent
with Mitchell growing up in a highly unstable, abusive, and
neglectful home. Mitchell and his siblings were in and out of
foster care and group homes because of their mother’s abuse and
neglect and their father’s inability to care for them. As a child,
Mitchell tested average to above average in intelligence, but his
academic performance was poor.
      Review of Mitchell’s health records disclosed that Mitchell
had a psychiatric diagnosis of dysthymia and was prescribed a
variety of antidepressants including Remeron, Paxil, Prozac,
and Wellbutrin. Dr. Abrams described dysthymic disorder as a
type of depression that people experience when they have been
unhappy their whole life, but not to the extremes of
contemplating suicide or the inability to get out of bed. People
so afflicted “have a lowgrade alienation feeling that something
is missing, joylessness.” He opined that it usually has to do with
genetic predisposition and problems in child rearing.
      Regarding PCP, Dr. Abrams said the drug is unlike almost
any other abused drug because it makes people catatonic,
insensible, and excitable. Dr. Abrams stated his opinion that
the level of Mitchell’s drug test administered at the time of his
arrest — PCP in the amount of 11 nanograms per milliliter —
indicated Mitchell most likely smoked a substantial amount of

                                 21
                         PEOPLE v. MITCHELL
                    Opinion of the Court by Liu, J.


PCP within the 24 to 72 hours before his arrest. Dr. Abrams
explained that Mitchell’s blood level of PCP and his irrational,
violent, senseless, and out-of-control behavior suggested that
after noon on August 8, 2005, Mitchell’s behavior was strongly
influenced by the effects of PCP. Dr. Abrams noted that one side
effect of PCP is that it prevents the formation of memories. Dr.
Abrams reported that Mitchell told him only that he “was
driving around that day” and that he could not remember any
involvement in the shootings. Dr. Abrams stated his view that
Mitchell was intoxicated at the time of the shootings, but
whether he acted with premeditation or malice “would be up for
grabs.”
                   II.    GUILT PHASE ISSUES
      A. CALJIC Nos. 8.71 and 8.72 Instructional Error
         1. Background
       Mitchell contends that his convictions for first degree
murder, with the special circumstance finding, should be
reversed because the jury was instructed incorrectly. Mitchell
was found death-eligible based on the multiple-murder special
circumstance, which required that he be convicted of at least one
first degree murder and one second degree murder in the same
proceeding. (§ 190.2, subd. (a)(3).) Mitchell was charged with
three murders during the two incidents — first the killing of
Lopez and Mawikere at CAS, and thereafter the killing of
Susano Torres at the Yellows. The prosecution proceeded solely
on the theory that all three homicides were premeditated and
deliberate first degree murder. That is the only theory of first
degree murder on which the jury was instructed.
      At the close of the guilt phase, the trial court gave the jury
instructions on voluntary manslaughter, first degree murder,
                                  22
                      PEOPLE v. MITCHELL
                   Opinion of the Court by Liu, J.


and second degree murder, as the various possible theories of
crimes that the evidence at trial supported. The trial court then
gave the jury the 1996 revised versions of CALJIC Nos. 8.71 and
8.72. These instructions concern how the jury is to proceed if it
finds reasonable doubt with respect to a greater offense.
      The given version of CALJIC No. 8.71 reads: “If you are
convinced beyond a reasonable doubt and unanimously agree
that the crime of murder has been committed by a defendant,
but you unanimously agree that you have a reasonable doubt
whether the murder was of the first or of the second degree, you
must give defendant the benefit of that doubt and return a
verdict fixing the murder as of the second degree.” The trial
court appears to have slightly misstated the language of
CALJIC No. 8.71 in its oral pronouncement by using the phrase
“but you unanimously agree and you have a reasonable doubt”
instead of “but you unanimously agree that you have a
reasonable doubt.” But there does not appear to be any
substantive difference between the two formulations that would
have affected the outcome. (See People v. Osband (1996) 13
Cal.4th 622, 717 [“as long as the court provides the jury with the
written instructions to take into the deliberation room, they
govern in any conflict with those delivered orally”].)
      The given version of CALJIC No. 8.72 reads: “If you are
convinced beyond a reasonable doubt and unanimously agree
that the killing was unlawful, but you unanimously agree that
you have a reasonable doubt whether the crime is murder or
manslaughter, you must give the defendant the benefit of that
doubt and find it to be manslaughter rather than murder.”
      Mitchell contends that the 1996 versions are flawed and
that these instructions lowered the prosecution’s burden of proof

                                 23
                       PEOPLE v. MITCHELL
                   Opinion of the Court by Liu, J.


and undermined the proof beyond a reasonable doubt standard,
thereby violating his state and federal constitutional rights.
Specifically, Mitchell observes that the versions of the
instructions required that in order for the jury to return a
verdict on the lesser charge, the jury must “unanimously agree
that [they] have a reasonable doubt” as to whether the
defendant was guilty of the greater charge or lesser charge.
Mitchell contends this conveyed to jurors who harbored
reasonable doubt that unless the doubt was shared by all of the
other jurors, the duty to give the benefit of the doubt did not
arise. As such, this conveyed to the jury that first degree murder
was the default finding and thus lowered the prosecution’s
burden of proof by reassigning the benefit of the doubt to the
prosecution.
         2. Analysis
       A claim of instructional error is reviewed de novo. (People
v. Cole (2004) 33 Cal.4th 1158, 1210.) An appellate court
reviews the wording of a jury instruction de novo and assesses
whether the instruction accurately states the law. (People v.
Posey (2004) 32 Cal.4th 193, 218.) In reviewing a claim of
instructional error, the court must consider whether there is a
reasonable likelihood that the trial court’s instructions caused
the jury to misapply the law in violation of the Constitution.
(Estelle v. McGuire (1991) 502 U.S. 62, 72 & fn. 4; People v.
Lucas (2014) 60 Cal.4th 153, 287.) The challenged instruction
is viewed “in the context of the instructions as a whole and the
trial record to determine whether there is a reasonable
likelihood the jury applied the instruction in an impermissible
manner.” (People v. Houston (2012) 54 Cal.4th 1186, 1229.)



                                 24
                        PEOPLE v. MITCHELL
                     Opinion of the Court by Liu, J.


       Preliminarily, because Mitchell failed to object below, his
state law claims asserting error on the instructions have been
forfeited. (See People v. Bolin (1998) 18 Cal.4th 297, 327.) But
failure to object to instructional error will not result in forfeiture
if the substantial rights of the defendant are affected. (§ 1259;
People v. Lucas (2014) 60 Cal.4th 153, 287.) Here, Mitchell
claims that the flawed instructions deprived him of due process,
and because this would affect his substantial rights if true, his
claim is not forfeited.
      In support of his claim, Mitchell cites People v. Moore
(2011) 51 Cal.4th 386, where we stated that “the better practice
is not to use the 1996 revised versions of CALJIC Nos. 8.71 and
8.72, as the instructions carry at least some potential for
confusing jurors about the role of their individual judgments in
deciding between first and second degree murder, and between
murder and manslaughter.” (Id. at p. 411.) However, we
expressly did not decide whether other jury instructions, such
as CALJIC No. 17.40, dispel any confusion that might arise from
CALJIC Nos. 8.71 and 8.72 because the jury in Moore had found
true     burglary-murder      and     robbery-murder     special
circumstances and thus had an alternative basis to find that the
defendant was guilty of first degree murder. (Moore, at p. 412.)
      In this case, unlike in Moore, the prosecution only relied
on the premeditation theory to prove the charge of first degree
murder against Mitchell. We hold that the instructions as a
whole made clear the role of the juror’s individual judgments in
deciding between first and second degree murder, and between
murder and manslaughter, thereby negating any potential
confusion arising from CALJIC Nos. 8.71 and 8.72.


                                   25
                       PEOPLE v. MITCHELL
                    Opinion of the Court by Liu, J.


       Mitchell’s principal complaint is that the instructions’
reference to unanimity confused jurors into thinking that even
if they had reasonable doubt as to the greater charge in the
instruction, they should defer to another juror’s finding of no
reasonable doubt. We rejected a similar argument in People v.
Salazar (2016) 63 Cal.4th 214, 246–248 (Salazar). The only
pertinent difference between Salazar and this case is that the
trial court in Salazar instructed the jury with CALJIC No. 17.10
and omitted CALJIC No. 2.61. But Salazar remains relevant
and instructive in its determination that “while we have
disapproved the unanimity terminology in the 1996 revised
versions of CALJIC Nos. 8.71 and 8.72 because of the potential
for confusion, the instructions were not erroneous in this case
when considered with the rest of the charge to the jury.” (Salazar,
at p. 248, italics added.) Mitchell contends that the instructions
conveyed that “[i]f just one juror was convinced the homicides
were the greater offense, then the other eleven jurors, who did
have doubt that it was murder or first degree murder, would
have no obligation to vote for the lesser offense.” However, the
jury was instructed with CALJIC No. 17.40, which made clear
that “[t]he People and the defendant are entitled to the
individual opinion of each of you. . . . Each of you must decide
the case for yourself, but do so only after discussing the evidence
and the instructions with your fellow jurors.” (Italics added.)
(See People v. Buenrostro (2018) 6 Cal.5th 367, 430 [“In the
scenario defendant envisions, a jury’s reasonable understanding
of the instructions as a whole would result in a hung jury, not a
directed verdict for first degree murder”].)
      Mitchell’s further arguments that CALJIC Nos. 8.71 and
8.72 improperly shifted the burden from the prosecution or set
first degree murder as the default finding are similarly
                                  26
                       PEOPLE v. MITCHELL
                    Opinion of the Court by Liu, J.


unavailing.    With regard to the prosecution’s burden of
persuasion, the jury was instructed with CALJIC No. 2.61,
which made clear that the prosecution must prove beyond a
reasonable doubt every element or charge against Mitchell.
Also, in addition to CALJIC Nos. 8.71 and 8.72, the jury was
instructed with CALJIC No. 8.74, which explains the
determinations that the jury must unanimously make in order
to render a guilty verdict for first degree murder: “Before you
may return a verdict in this case you must agree unanimously
not only as to whether the defendant is guilty or not guilty, but
also if you should find him guilty of an unlawful killing, you
must agree unanimously as to whether he is guilty of murder of
the first degree or murder of the second degree or voluntary
manslaughter.” This instruction makes clear that the jury must
unanimously find that the defendant was “guilty of murder of
the first degree or murder of the second degree or voluntary
manslaughter,” without preferring any of the options.
      Mitchell argues that these other instructions fail to rectify
the potential confusion because CALJIC Nos. 8.71 and 8.72 are
the more specific instructions and thus, insofar as there was an
inconsistency between CALJIC Nos. 8.71 and 8.72 and other
instructions, the jury would have applied CALJIC Nos. 8.71 and
8.72. This is mistaken. Although it is true that CALJIC
Nos. 8.71 and 8.72 are more specific in addressing the crimes
with which Mitchell was charged, they are not more specific
than CALJIC Nos. 17.40, 2.61, and 8.74 in addressing the
subject matter at issue.
      For each of the possible sources of confusion identified by
Mitchell in CALJIC Nos. 8.71 and 8.72, the other jury
instructions — CALJIC Nos. 17.40, 2.61, and 8.74 — addressed

                                  27
                      PEOPLE v. MITCHELL
                   Opinion of the Court by Liu, J.


those points more specifically: As to any potential confusion
about whether each juror was to exercise his or her individual
judgment or defer to another juror’s judgment on whether there
is reasonable doubt that Mitchell committed the greater crime,
CALJIC No. 17.40 made clear that jurors are required to
exercise their individual judgment in making this
determination. CALJIC No. 2.61 more specifically addressed
whether the prosecution bore the burden of proving the
elements of the greater crimes; it expressly stated that the
prosecution bears the burden to prove beyond a reasonable
doubt every element or charge against Mitchell. And CALJIC
No. 8.74 more specifically addressed whether the jury is to treat
first degree murder as the default finding; it explained that the
jury must be unanimous in deciding whether the defendant is
guilty of first degree murder, second degree murder, or
manslaughter, with no default among them. (See People v.
Gomez (2018) 6 Cal.5th 243, 302 [any juror confusion arising
from CALJIC No. 8.71 was remedied by CALJIC Nos. 17.40 and
8.74].)
      We find no error in the jury instructions because when
they are viewed as a whole, there is no reasonable likelihood
that they caused the jury to misapply the law in violation of the
Constitution.


     B. CALJIC No. 8.73.1 Instructional Error
         1. Background
      Mitchell next contends that the trial court erred in
refusing to instruct the jury pursuant to CALJIC No. 8.73.1. On
August 3, 2006, at the guilt phase jury instruction conference,
defense counsel requested that the trial court give CALJIC No.
                                 28
                       PEOPLE v. MITCHELL
                    Opinion of the Court by Liu, J.


8.73.1. That instruction states: “A hallucination is a perception
that has no objective reality. [¶] If the evidence establishes that
the perpetrator of an unlawful killing suffered from a
hallucination which contributed as a cause of the homicide, you
should consider that evidence solely on the issue of whether the
perpetrator killed with or without deliberation and
premeditation.” (CALJIC No. 8.73.1.)
       Without immediately deciding the question, the trial court
first noted that there was no medical evidence that Mitchell was
hallucinating, but that there was evidence that Mitchell was
“yelling about shooting the devil” and that Armando Torres had
tattoos of horns on his head. The prosecutor argued that
because Armando actually had horn tattoos, Mitchell’s
statements about shooting the devil were not hallucinations.
Defense counsel countered that despite the tattoos, Mitchell’s
statements about shooting the devil did not necessarily refer to
Torres. The prosecutor agreed that Mitchell may not have been
referring to Armando. The trial court then deferred deciding the
issue to hear counsel’s arguments on the applicability of People
v. Padilla (2002) 103 Cal.App.4th 675, a case cited in reference
to CALJIC No. 8.73.1.
      On August 7, 2006, when the trial court revisited the
issue, defense counsel informed the trial court that Mitchell had
instructed him “not to present a psychiatric defense or a drug
defense” at the guilt phase and that he had decided for tactical
reasons not to oppose his client’s decision. However, defense
counsel stated that he was still requesting that CALJIC No.
8.73.1 be given. The prosecutor maintained that the evidence
only arguably showed that Mitchell might have been under the
influence of some drug on August 9, 2005, the day after the

                                  29
                       PEOPLE v. MITCHELL
                    Opinion of the Court by Liu, J.


charged homicides. Thus, the prosecutor argued that the
instruction was irrelevant. The trial court agreed and refused
to give the instruction.
      Mitchell argues that there was evidence that he was
suffering from hallucinations during the shootings of August 8,
2005, evidenced by the fact that he called Armando “devil” and
that he was behaving erratically the next day, including making
statements that he had killed the devil. Accordingly, he claims
that the jury should have been instructed and consequently
could have determined that there was no deliberation or
premeditation in the homicides. Mitchell claims that the trial
court’s denial of his requested instruction violated state law and
his due process right to a fair trial and a meaningful opportunity
to present a defense.
         2. Analysis
      In general, a trial court must give a requested jury
instruction if there is substantial evidence in the record
supporting such an instruction. (See People v. Cunningham
(2001) 25 Cal.4th 926, 1008 [so holding with respect to
instructions on lesser included offenses].) “In determining
whether the evidence is sufficient to warrant a jury instruction,
the trial court does not determine the credibility of the defense
evidence, but only whether ‘there was evidence which, if
believed by the jury, was sufficient to raise a reasonable doubt.’ ”
(People v. Salas (2006) 37 Cal.4th 967, 982.) “On appeal, we
likewise ask only whether the requested instruction was
supported by substantial evidence — evidence that, if believed
by a rational jury, would have raised a reasonable doubt as to”
an element of the crime in question. (People v. Mentch (2008) 45
Cal.4th 274, 288.

                                  30
                       PEOPLE v. MITCHELL
                    Opinion of the Court by Liu, J.


      Here, there was not sufficient evidence to warrant the trial
court giving the requested instruction at the time of the request.
Mitchell points to only two facts that could support the
requested instruction: (1) that he called Armando Torres “devil”
before shooting him; and (2) that he was behaving erratically,
possibly under the influence of PCP, on the day after his
shooting sprees, including making statements that he had killed
the devil. Notably, at the guilt phase, counsel chose not to
present a psychiatric or drug defense and did not dispute the
trial court’s statement that there was no medical evidence of
hallucination.
      The fact that Mitchell called Armando “devil” does not
alone provide sufficient evidence that Mitchell was
hallucinating. In using the term “devil,” Mitchell may have been
referring to Armando because of his horn tattoos. Moreover,
although Armando initially testified on direct examination that
Mitchell had never called him the devil before, later on redirect
Armando stated that Mitchell “always” called him the devil
despite Armando telling him not to.
      Mitchell’s erratic behavior on the day after the shootings
also does not show he was suffering from hallucinations. Even
assuming Mitchell was under the influence of PCP on August 9,
2005, both parties agree that there is no medical evidence in the
record to indicate that he was under the influence on the day of
the shootings. Mitchell also presented no evidence that he had
suffered hallucinations during any prior use of PCP. Mitchell
notes he was “crazily” shooting his gun into the air, screaming
about killing the devil and being the devil, and saying that God
would not judge him for killing the devil. But Mitchell’s
indiscriminate shooting into the air does not imply he was

                                  31
                       PEOPLE v. MITCHELL
                    Opinion of the Court by Liu, J.


hallucinating, and his usage of the word “devil” does not imply
that he was in fact perceiving a “devil” as opposed to simply
referring to the concept or referring to Armando by a nickname.
      The cases Mitchell relies upon to support this claim
offered significantly more compelling evidence that a defendant
suffered from hallucinations, including medical evidence. (See
People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1444
[medical evidence showed defendant was diagnosed with major
depression with “psychotic features, including delusions,” and
defendant testified that he suffered specific hallucinations in
which he witnessed the victim transforming into the devil];
People v. Duckett (1984) 162 Cal.App.3d 1115, 1118 [medical
expert testified that defendant suffered from chronic paranoid
schizophrenia and that defendant experienced “ ‘command
hallucinations’ ” in an “acute phase” of his illness at the time of
the killing]; People v. Pennington (1967) 66 Cal.2d 508, 512
[medical expert testified, in the context of assessing defendant’s
competence for trial, that defendant was suffering from
hallucinations indicative of schizophrenia and stated that “he
had observed defendant go into a fit of ‘psychotic furor’ ”].)
       It is of course possible that Mitchell was hallucinating, but
a mere possibility is not enough. There must be substantial
evidence to warrant the instruction. In light of the absence of
evidentiary support for Mitchell’s argument, coupled with the
support for the alternative explanation, we believe no
reasonable jury would have credited Mitchell’s explanation. The
trial court’s refusal to instruct the jury with CALJIC No. 8.73.1
did not deny Mitchell his due process rights to a fair trial or a
meaningful opportunity to present a defense.


                                  32
                        PEOPLE v. MITCHELL
                    Opinion of the Court by Liu, J.


     C. Cumulative Error at the Guilt Phase
      Because we reject Mitchell’s claims of error at the guilt
phase, there is no cumulative error requiring reversal of his
convictions.
                 III.   PENALTY PHASE ISSUES
     A. CALJIC No. 2.20 Instructional Error
         1. Background
      Mitchell contends the trial court erred at the penalty
phase by failing to instruct the jury properly on witness
credibility. At the jury instructions hearing for the penalty
phase, the trial court discussed CALJIC No. 2.20, the jury
instruction addressing what jurors may consider in assessing
witness credibility. That pattern instruction says: “Every
person who testifies under oath [or affirmation] is a witness.
You are the sole judges of the believability of a witness and the
weight to be given the testimony of each witness. [¶] In
determining the believability of a witness you may consider
anything that has a tendency reasonably to prove or disprove
the truthfulness of the testimony of the witness, including but
not limited to any of the following: [¶] The extent of the
opportunity or ability of the witness to see or hear or otherwise
become aware of any matter about which the witness testified;
[¶] The ability of the witness to remember or to communicate
any matter about which the witness has testified; [¶] The
character and quality of that testimony; [¶] The demeanor and
manner of the witness while testifying; [¶] The existence or
nonexistence of a bias, interest, or other motive; [¶] The
existence or nonexistence of any fact testified to by the witness;
[¶] The attitude of the witness toward this action or toward the
giving of testimony[.][;] [¶] [A statement [previously] made by
                                  33
                       PEOPLE v. MITCHELL
                    Opinion of the Court by Liu, J.


the witness that is [consistent] [or] [inconsistent] with [his] [her]
testimony][.][;] [¶] [The character of the witness for honesty or
truthfulness or their opposites][;] [¶] [An admission by the
witness of untruthfulness][;] [¶] [The witness’ prior conviction of
a felony][;] [¶] [Past criminal conduct of a witness amounting to
a misdemeanor][;] [¶] [Whether the witness is testifying under
a grant of immunity].” (CALJIC No. 2.20.)
      The last six paragraphs of CALJIC No. 2.20 may be
omitted based on the evidence presented at trial. In discussion
with counsel, the trial court reviewed whether evidence
supported the inclusion of any of the six bracketed paragraphs
in the instruction. The trial court stated that “no witness had a
felony conviction,” defense counsel agreed, and the prosecutor
remained silent. As a result, the trial court fashioned an
instruction, ultimately delivered to the jury, which eliminated
the last six paragraphs of the pattern CALJIC No. 2.20
instruction, as well as the reference to “affirmation” in the
instruction’s introductory paragraph.
      It appears that the trial court and the parties failed to
recall that witness Armando Torres, who testified for the
prosecution at the guilt phase and would testify at the penalty
phase, had admitted that he had been convicted of felony
robbery. As a result, the penalty phase jury was not instructed
that a witness’s prior conviction of a felony bore on his
credibility, as set forth in CALJIC No. 2.20 and CALJIC
No. 2.23. Although the jury did receive the version of CALJIC
No. 2.20 containing the language pertaining to felony
convictions as well as CALJIC No. 2.23 at the guilt stage, the
jury was specifically instructed at the penalty phase to
disregard the guilt phase instructions.

                                  34
                       PEOPLE v. MITCHELL
                    Opinion of the Court by Liu, J.


      Consequently, Mitchell contends the incomplete
instructions denied his state and federal constitutional rights to
a fair penalty trial, due process, and a fair penalty
determination mandating the reversal of his death judgment.
We reject this claim, as the error in failing to reinstruct on
principles relating to evaluating the credibility of a witness in
the penalty phase was harmless beyond a reasonable doubt.
         2. Analysis
      “A trial court has a sua sponte duty to ‘instruct on general
principles of law that are closely and openly connected to the
facts and that are necessary for the jury’s understanding of the
case,’ including instructions relevant to evaluating the
credibility of witnesses.” (People v. Blacksher (2011) 52 Cal.4th
769,845–846; see also §§ 1093, subd. (t), 1127.) This duty
includes giving correct instructions regarding the credibility of
witnesses. As we have stated, “[T]he court should give the
substance of CALJIC No. 2.20 in every criminal case, although
it may omit factors that are inapplicable under the evidence.”
(People v. Horning (2004) 34 Cal.4th 871, 910.)
      As discussed, Mitchell’s counsel assented to the trial
court’s formulation of CALJIC No. 2.20, omitting the bracketed
language regarding a witness’s prior felony convictions.
Therefore, any claim of state law error has been forfeited and
has not been preserved for appeal. (People v. Bolin, supra, 18
Cal.4th at p. 328.) That said, under section 1259, a reviewing
court has the authority to review any question of law involving
an instruction if the defendant’s substantial rights were
affected, notwithstanding a failure to preserve the issue for
appeal. Thus, we will consider Mitchell’s claim that the


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                      PEOPLE v. MITCHELL
                   Opinion of the Court by Liu, J.


omission of the portion of CALJIC No. 2.20 was constitutional
error.
      Here, any error in the failure to instruct the jury on the
impact of a felony conviction on a witness’s credibility was
undoubtedly harmless beyond a reasonable doubt. The jury was
aware that Armando was a felon, as he testified at the guilt
phase that he had a prior felony conviction for robbery. The jury
was instructed that it could consider evidence from any phase of
the trial, and although the jury was not specifically instructed
about the impact of felony convictions on a witness’s credibility,
the jury was instructed that it could “consider anything that has
a tendency reasonably to prove or disprove the truthfulness of
the testimony of the witness.” Thus, the jury was well appraised
of Armando’s felony conviction and equipped to assess
Armando’s credibility in light of his criminal past.
      Moreover, the subject of Armando’s testimony at the
penalty phase was not controversial. Armando testified that he
liked his younger brother and missed him. He testified that
when he thinks about his brother, he uses drugs to make his
thoughts go away, that his methamphetamine use has gotten
worse, and that as a result he has ended up in custody. The jury
was also made aware that Armando was currently in custody
relating to charges involving great bodily injury, drugs, and a
firearm. The fact that Armando was a convicted felon at the
time of his testimony bore little relevance to the subject of his
testimony about how Susano’s murder had affected his life.
Furthermore, given what the jury knew about Armando’s drug
use and criminal behavior, the fact that his prior felony
conviction was not specifically called to the jury’s attention had
marginal relevance in negatively impacting Armando’s

                                 36
                      PEOPLE v. MITCHELL
                   Opinion of the Court by Liu, J.


credibility. Consequently, it is not reasonably possible that the
jury would not have returned a death verdict had it been
expressly told it could consider Armando’s felony conviction in
assessing his credibility.
     B. Constitutionality of California’s Death Penalty
        Statute
      Mitchell raises several constitutional challenges to
California’s death penalty scheme. We have rejected these
claims before, as follows, and we decline to revisit our prior
holdings:
      “The death penalty law adequately narrows the class of
death-eligible defendants.” (People v. Boyce (2014) 59 Cal.4th
672, 723; Salazar, supra, 63 Cal.4th at p. 255.)
      Consideration of the circumstances of the crime during the
penalty phase pursuant to section 190.3, factor (a), does not
result in an arbitrary and capricious application of the death
penalty and does not violate the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the federal Constitution. (People v.
Winbush (2017) 2 Cal.5th 402, 489 (Winbush); see also Tuilaepa
v. California (1994) 512 U.S. 967, 976 [§ 190.3, factor (a) does
not violate the Eighth Amendment and is not unconstitutionally
vague].)
      The jury need not make findings beyond a reasonable
doubt that aggravating factors were present (other than Penal
Code section 190.3, factor (b) or (c) evidence), that they
outweighed the mitigating factors, or the factors were
substantial enough to warrant a judgment of death under
Apprendi v. New Jersey (2000) 530 U.S. 466, Blakely v.
Washington (2004) 542 U.S. 296, Ring v. Arizona (2002) 530 U.S.
584, and Cunningham v. California (2007) 549 U.S. 270. (See
                                 37
                       PEOPLE v. MITCHELL
                    Opinion of the Court by Liu, J.


People v. Merriman (2014) 60 Cal.4th 1, 106; People v. Griffin
(2004) 33 Cal.4th 1015; People v. Blair (2005) 36 Cal.4th 686,
753.)
      The federal Constitution does not require the court to
instruct the jury that the prosecution has the burden of
persuasion regarding the existence of aggravating factors, nor is
the court required to instruct the jury that there is no applicable
burden of proof. (People v. Mendoza (2016) 62 Cal.4th 856, 916;
People v. Lenart (2004) 32 Cal.4th 1107, 1136–1137; People v.
Holt (1997) 15 Cal.4th 619, 682–684.)
      The jury is not required to unanimously find that certain
aggravating factors warrant the death penalty under the federal
Constitution, and the equal protection clause does not compel a
different result. (People v. Enraca (2012) 53 Cal.4th 735, 769;
People v. Casares (2016) 62 Cal.4th 808, 854.) The court is also
not required to instruct the jury that it need not unanimously
find particular facts in mitigation. (People v. Cage (2015) 62
Cal.4th 256, 293 (Cage).)
      CALJIC No. 8.88 does not improperly instruct the jury
that a verdict of death is required if the factors in aggravation
outweigh the factors in mitigation. (People v. Arias (1996) 13
Cal.4th 92, 170–171.)
      The use of adjectives like “extreme” and “substantial” in
the list of mitigating factors in section 190.3 does not act as a
barrier to the jury’s consideration of mitigating evidence in
violation of the federal Constitution. (People v. McKinnon
(2011) 52 Cal.4th 610, 692; People v. Avila (2006) 38 Cal.4th 491,
614–615.)
      The court’s use of CALJIC No. 8.88, which instructs that
jurors must be “persuaded that the aggravating circumstances
                                  38
                        PEOPLE v. MITCHELL
                     Opinion of the Court by Liu, J.


are so substantial in comparison with the mitigating
circumstances” to warrant a death judgment, is not
unconstitutionally vague, appropriately informs jurors, and
does not violate the Eighth and Fourteenth Amendments to the
federal Constitution. (People v. Landry (2016) 2 Cal.5th 52,
122–123 (Landry); People v. Williams (2016) 1 Cal.5th 1166,
1204–1205.)
        The trial court has no obligation to delete from CALJIC
No. 8.85 inapplicable mitigating factors, nor must it identify
which factors are aggravating and which are mitigating. (People
v. Cook (2006) 39 Cal.4th 566, 618; People v. Hillhouse (2002) 27
Cal.4th 469, 509 [“The aggravating or mitigating nature of the
factors is self-evident within the context of each case.”].) “We
again conclude that the instruction is ‘not unconstitutional for
failing to inform the jury that: (a) death must be the appropriate
penalty, not just a warranted penalty [citation]; (b) [a sentence
of life without the possibility of parole] is required, if it finds that
the mitigating circumstances outweigh those in aggravation
[citation] or that the aggravating circumstances do not outweigh
those in mitigation [citation]; (c) [a sentence of life without the
possibility of parole] may be imposed even if the aggravating
circumstances outweigh those in mitigation [citation]; (d)
neither party bears the burden of persuasion on the penalty
determination.’ ” (Landry, supra, 2 Cal.5th at p. 122.)
      “The impact of a defendant’s execution on his or her family
may not be considered by the jury in mitigation.” (People v.
Bennett (2009) 45 Cal.4th 577, 601; People v. Smithey (1999) 20
Cal.4th 936, 1000 [“ ‘Sympathy for a defendant’s family is not a
matter that a capital jury can consider in mitigation’ ”].)


                                   39
                         PEOPLE v. MITCHELL
                    Opinion of the Court by Liu, J.


        The trial court need not instruct the jury that life without
parole was presumed the appropriate sentence; “[t]here is no
requirement jurors be instructed there is a ‘ “ ‘presumption of
life’ ” ’ or that they should presume life imprisonment without
the possibility of parole is the appropriate sentence.” (People v.
Parker (2017) 2 Cal.5th 1184, 1233.) And “[j]urors need not
make written findings in determining penalty.” (People v.
Valdez (2012) 55 Cal.4th 82, 180.)
      The federal Constitution does not require intercase
proportionality review among capital cases. (Winbush, supra, 2
Cal.5th at p. 490; see Pulley v. Harris (1984) 465 U.S. 37, 50–
51.) “California’s death penalty law does not violate equal
protection by treating capital and noncapital defendants
differently.” (People v. Sánchez (2016) 63 Cal.4th 411, 488.)
California’s use of the death penalty does not violate
international law, the federal Constitution, or the Eighth
Amendment’s prohibition against cruel and unusual
punishment in light of “evolving standards of decency.” (Cage,
supra, 62 Cal.4th at p. 297; see People v. Zamudio (2008) 43
Cal.4th 327, 373.)
                   IV.    CUMULATIVE ERROR
      Because we have only found one error in the proceeding —
at the penalty phase regarding the trial court’s failure to
instruct the jury that a witness’s prior conviction of a felony bore
on his credibility — and because we have determined that the
error was harmless beyond a reasonable doubt, we find there is
no cumulative error requiring reversal of Mitchell’s convictions
or penalty of death.




                                  40
                    PEOPLE v. MITCHELL
                 Opinion of the Court by Liu, J.


                        CONCLUSION
    For the reasons above, we affirm the judgment.


                                                   LIU, J.


We Concur:
CANTIL-SAKAUYE, C.J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.




                               41
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Mitchell
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S147335
Date Filed: June 24, 2019
__________________________________________________________________________________

Court: Superior
County: San Bernardino
Judge: Brian S. McCarville

__________________________________________________________________________________

Counsel:

Michael J. Hersek and Mary K. McComb, State Public Defenders, under appointment by the Supreme
Court, Harry Gruber and Maria Morga, Deputy State Public Defenders, for Defendant and Appellant.


Kamala D. Harris and Xavier Becerra, Attorneys General, Julie L. Garland, Assistant Attorney General,
Holly D. Wilkens and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Maria Morga
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607-4139
(510) 267-3300

Kristen Kinnaird Chenelia
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 525-4232
