Filed 6/7/12




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                              S078027
           v.                        )
                                     )
HOWARD LARCELL STREETER,             )
                                     )                      San Bernardino County
           Defendant and Appellant.  )                     Super. Ct. No. FVA07519
____________________________________)


        A jury convicted defendant Howard Larcell Streeter of the first degree
murder of Yolanda Buttler. (Pen. Code, § 187.)1 It found true special-
circumstance allegations of lying in wait (§ 190.2, subd. (a)(15)) and the
intentional infliction of torture (§ 190.2, subd. (a)(18)). The trial court declared a
mistrial as to the penalty phase after the jury could not reach a verdict. At the
beginning of the penalty phase retrial, the trial court released the jury after
granting defendant‘s motion for a continuance. At the second penalty retrial, the
jury returned a verdict of death, and the trial court imposed that sentence. This
appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.




1      All further statutory references are to the Penal Code unless otherwise
indicated.



                                           1
                                      I. FACTS

         A. Guilt Phase

             1. The Prosecution‘s Case
         Defendant and Yolanda Buttler lived together for about five years in
Fontana. They lived with their child, ―Little Howie,‖ Yolanda‘s two older
children, Patrick and Lawanda, and Yolanda‘s niece, Shavonda.
         In December 1996, Yolanda told her siblings, Lucinda and Quentin Buttler,
that defendant was beating her and had pulled hair, and that she was afraid of him
and wanted to leave him. They agreed to help Yolanda secretly move out of her
home when defendant was at work. Quentin advised Yolanda to get a restraining
order.
         In early January 1997, Yolanda moved out with the children. Initially,
Yolanda went to her sister‘s house in Los Angeles, but then she decided to stay in
a motel for safety reasons. After a week‘s stay in the motel, Yolanda and the
children moved to an apartment in Victorville.
         On February 7, 1997, Yolanda applied for a restraining order against
defendant. In her declaration, she described an incident that had occurred on
December 30, 1996, during which defendant had pulled her braided extensions so
hard because she would not have sex with him that he pulled hair out of her head.
         In April 1997, defendant called Yolanda and convinced her to allow him to
see Little Howie. They met in a public area without incident. Afterwards,
defendant called frequently and tried to convince Yolanda to reconcile with him.
He wanted to see Little Howie again. Yolanda agreed to meet him at a Chuck E.
Cheese restaurant in Fontana.




                                          2
         On April 27, 1997, Yolanda drove to the restaurant with Patrick, Shavonda,
and Little Howie.2 Patrick accompanied his mother to protect her; Yolanda was
nervous that defendant had obtained their telephone number in the Victorville area
and had been calling them frequently in an attempt to get back together with her.3
When they arrived at the restaurant, defendant was waiting for them. He was
clapping his hands and appeared nervous. Patrick and Little Howie got out of the
car, while Yolanda and Shavonda stayed inside the car. Defendant grabbed Little
Howie and proceeded towards his car in the parking lot. Yolanda asked, ―Where
are you taking him?‖ Defendant replied that he was taking him and said not to
worry.
         Patrick stated that Yolanda followed defendant in her car, parked next to
defendant‘s car, and got out of her car. Yolanda and defendant began to argue.
Yolanda tried to take Little Howie out of defendant‘s car, but defendant pushed
her away. They began pushing each other. Defendant went to the trunk of his car
and retrieved a plastic container with gasoline in it. Seeing this, Yolanda ran back
towards her car. Defendant chased her and poured gasoline on the front of her car.
Yolanda was on the other side of the car and tried to run away, but defendant
caught up to her and poured gasoline on her.
         In the meantime, Shavonda — who was disabled and wore leg braces —
was still in the back seat of Yolanda‘s car. Patrick smelled gasoline and was
scared because he knew the car could catch on fire. He jumped inside the car,
drove it to the end of the parking lot, and ran back towards Yolanda and

2     At the time of trial (one and one-half years after the offenses), Patrick was
15 years old, Lawanda was 16 years old, Little Howie was six years old, and
Shavonda was eight years old.
3     A large part of Patrick‘s testimony was admitted by stipulation after he
became very emotional on the witness stand.



                                           3
defendant. When he got to them, Patrick saw that Yolanda and the plastic
container were on the ground and defendant was hitting Yolanda.
       Bystanders also witnessed the events. John Martinez was in the restaurant‘s
parking lot when he heard a woman yelling for help. A ―couple of‖ children were
nearby. Martinez heard defendant yelling and saw him beating Yolanda and
pulling her hair. Defendant struck Yolanda more than four times and slammed her
to the ground. He went to his car, took out what appeared to be a plastic antifreeze
container from the trunk, and poured gasoline from the container onto Yolanda‘s
car and then on her body. Martinez then saw Patrick drive Yolanda‘s car to
another area of the parking lot. Defendant dragged Yolanda back towards his car
―because he had nothing to light the lady with.‖ Martinez ran into a store next to
the restaurant and told the owner to call 911. When Martinez and the owner went
outside, Yolanda was already on fire and was burning from the top of her head to
her waist. People were throwing water on her and wrapping her in blankets.
       Anzerita Chonnay also saw the incident. She heard Yolanda and defendant
yelling at each other and saw defendant hitting and kicking Yolanda. Chonnay ran
inside a store to have someone call 911. When she returned outside, Chonnay saw
defendant retrieve a container from the trunk of his car and began pouring
something from it, while people were yelling at him. A man tried to intervene, but
defendant pushed him away. Chonnay then saw Yolanda ―on fire.‖ The flames
shot up ―real high.‖ Several people tried to extinguish the fire with their clothing.
While Yolanda was burning, Patrick watched as he held the two younger children.
       Edward Jasso was seated in his car in the restaurant‘s parking lot and saw
Yolanda and defendant in the parking lot. Jasso saw liquid being thrown. At first,
Jasso thought they were having a water fight, but then realized they were not
playing after he saw defendant push Yolanda to the ground. Defendant began
hitting and kicking Yolanda, and called her a ―fucking bitch.‖ Jasso got out of his

                                          4
car and told defendant to leave Yolanda alone. Defendant dragged Yolanda by her
hair towards his car, released her, went to his car, and took off his shirt. Dazed,
Yolanda began walking towards the Chuck E. Cheese restaurant. Jasso saw
defendant retrieve something from his car. Thinking that the item might be a gun
or knife, Jasso yelled for everyone to run. Defendant came towards Jasso and
Yolanda and was holding a cigarette lighter. Jasso tried to grab the lighter from
defendant, but his hand slipped off because defendant‘s arm was wet from
gasoline. Defendant caught up to Yolanda and lit the lighter while he was only
three to four inches away from her. Yolanda ―went up in flames‖ immediately.
When defendant lit the lighter, Jasso tried to grab him, but having accidentally
grabbed Yolanda instead, Jasso‘s arm also caught on fire. Defendant fled as Jasso
tried to extinguish the fire on his arm.
       Richard Humphreys saw people yelling at defendant, who was running
away from the scene. Humphreys got into his truck, followed defendant, and saw
him attempting to climb a fence. Humphreys ordered defendant to stop.
Defendant climbed down and began walking away. The police arrived and
arrested defendant. Defendant smelled very strongly of gasoline and appeared to
be under the influence of alcohol. However, defendant‘s blood sample, drawn at
5:39 p.m. that night, showed no signs of drugs or alcohol.4
       When the paramedics arrived, they saw Yolanda standing within arm‘s
reach of the children. She was calling to them and trying to grasp them. Yolanda
was crying, screaming, and in pain. Her clothing was black, burnt, and
smoldering, and had melted onto her skin. The paramedics tried to cool Yolanda
down with saline solution. During the ride to the hospital, Yolanda was crying


4      The 911 call reporting Yolanda on fire was received at 3:21 p.m.



                                           5
and screaming in pain, and repeatedly asked about her children. The paramedics
reassured her that the children were with the police. Because Yolanda‘s burns
were so deep and her skin was so thickened, the paramedics could not find or gain
access intravenously to a vein and were unable to administer pain medication to
Yolanda. Instead, they attempted to relieve her pain by pouring cold water on her
burns. While being transported, Yolanda grasped one of the paramedics, pulled
him close to her face, and begged, ―Just kill me. Please kill me.‖ Yolanda
endured the 20-minute ambulance ride without any pain medication.
       Yolanda was admitted to the hospital in critical condition. She suffered
extensive second and third degree burns from the waist up, including her entire
face, arms, front chest, and back. Yolanda sustained burns to 55 to 60 percent of
her body‘s surface. According to the pathologist, the extent of the pain suffered
from these burns could be extreme and severe. Her lungs were dense and swollen,
evidence of organ failure. Yolanda was treated in the hospital‘s burn unit for 10
days until her death. She died from pulmonary failure caused by the effects of
thermocutaneous burns.
       At the scene, the police found a clump of Yolanda‘s hair, one earring, and
the plastic container. Defendant‘s car was in the parking lot with a ―Club‖ locking
device on the steering wheel and the car‘s gas cap sitting on its bumper.
Defendant‘s shoes, the plastic container, and several items of Yolanda‘s clothing
tested positive for gasoline residue. No gasoline residue was found on defendant‘s
shorts, socks, or underwear, or on Yolanda‘s earrings or hair.
       Inside the glove compartment of defendant‘s car, the police found a note
written by defendant on the back of a smog certificate attached to a vehicle
registration form. The note read:
       ―to mom and pop, I hate to do you gys like this but I don‘t like liveing the
way I am so I don‘t know what to say but I love you both and I am very sorry to

                                         6
have to put you though this but my life is over I don‘t have any thing to live for
any more, I know it going to cost a lot to berrie me but I am sorry I hope you both
understand and I know what I did to Youlanda is worng but she don‘t dersive to
live like me. P.S. If you can get my son Baby Howie and raise him to the best of
your abbilty. Tell him his dady is sorry for what I did but I will alway love him
and to don‘t never fall in love with a women. Love alyaw Howie.‖ (Errors in
original.)
       A sheriff‘s detective from the arson squad and a captain from the fire
department conducted a joint investigation and concluded that gasoline had been
poured on Yolanda and ignited.

             2. The Defense Case
       Defendant‘s defense was that he caused Yolanda‘s death, but did not intend
to kill or torture her. Defendant claimed that he was so emotionally distraught,
upset, and angry at Yolanda for taking his son away from him, for being late that
afternoon, and for making him wait at the restaurant, that he was guilty of, at the
most, second degree murder or voluntary manslaughter when he poured gasoline
on Yolanda and ignited it.
       Defendant testified in his own defense. He stated that he and Yolanda had
lived together since 1991 and had had a loving relationship until 1996, when their
relationship began to fall apart. According to defendant, the strain was caused by
Yolanda‘s desire to buy a house, which defendant could not afford.
       Defendant stated that when he came home on January 4, 1997 about 4:00
p.m., he discovered that Yolanda had moved out with the children. She had given
no indication she was leaving and had taken some of the furniture and electronic
equipment. He was hurt and in shock. He called Yolanda‘s brother, Victor, who
claimed that he did not know her whereabouts. Defendant bought alcohol and



                                          7
rock cocaine, went back to his home, drank the alcohol and took the drugs until
10:00 or 11:00 p.m., and called Victor again. Victor told defendant to stop calling.
       Defendant then went to Victor‘s house to find Yolanda. When no one
answered the door, defendant broke Victor‘s wife‘s van window with a bat. He
then went to the house of another of Yolanda‘s brothers. When no one answered
the door, defendant yelled that he wanted his wife and kids back, threw a rock
through a window, and drove to Yolanda‘s sister‘s house. When her sister
Lucinda told defendant she did not know where Yolanda was, he warned that if
they tried to keep his family from him, something bad would happen to them.
       Defendant called Victor again the next day. This time, Victor said that
Yolanda and Little Howie were there, and that he could get his son. When
defendant arrived at Victor‘s house, Victor told him to put his gun down, although
defendant denied he had a gun. Victor kept stalling him. Suspecting that Yolanda
and his son were not there and that he was being set up, defendant decided to
leave. As he was driving away, he saw that police officers were parked around the
corner waiting for him. The officers stopped and arrested him, and took him to
jail. Defendant pleaded guilty to one count of assault with a deadly weapon and
was released from jail on February 28, 1997.
       Defendant then ―moved from place to place,‖ having lost his apartment
while he was in jail. Two weeks after his release, defendant‘s mechanic called and
demanded payment for servicing Yolanda‘s car. After defendant refused to pay
unless the mechanic told defendant where Yolanda was staying, the mechanic
provided Yolanda‘s telephone number. Defendant called Yolanda and said he
loved her and wanted her back. She refused to give him another chance.
Defendant called again that same night and told Yolanda he wanted to see the
children. Agreeing to meet with defendant at the Discovery Zone, Yolanda



                                         8
brought Little Howie and Shavonda and spent an hour and 45 minutes with him.
When defendant said he wanted to see them again, Yolanda told him to call.
       During the next several weeks, defendant repeatedly called Yolanda and
told her he wanted her back. When she refused, defendant warned that if she did
not return, he would do something to himself. They agreed to meet at a Chuck E.
Cheese restaurant at 4:00 p.m. on April 27, 1997. Defendant stated that he arrived
on time, and became angry and frustrated because he waited for Yolanda and the
children for 30 to 45 minutes. When Yolanda drove up, defendant took Little
Howie out of Yolanda‘s car, declared he was going to leave, placed Little Howie
inside his car, and got into the driver‘s seat. As he tried to remove the locking
device from the steering wheel, Yolanda began arguing with defendant about
taking Little Howie, and scratched and hit defendant. Defendant pushed her away
and got out of the car. They got into a ―scuffle.‖ Defendant stated that he took out
the container of gasoline that he normally kept in the trunk of his car for his
carburetor, but did not know why he took the container out. He was upset and in a
―rage‖ and remembered only ―bits and pieces‖ of the proceeding events, including
pouring gasoline on Yolanda and himself. Someone tried to grab him, and the
next thing he knew, they were both on fire.
       Defendant testified that he did not intend to set Yolanda on fire and kill her.
Regarding the note, defendant explained that it was a suicide note and his
statement he knew what he did to Yolanda was wrong was only a reference to the
December 30, 1996 incident, the subject of Yolanda‘s declaration for the
restraining order. Defendant claimed that, during that incident, they argued over
Yolanda‘s refusal to have sex with him and that he only pulled on Yolanda‘s
braided hair extensions so that she would come to bed. He denied raping her and
claimed he still loved her. Defendant further claimed that he did not intend to hurt
Yolanda. Instead, when he wrote that Yolanda did not deserve ―to live like me,‖

                                          9
he meant only that she did not deserve to live the lifestyle that he was living (i.e.,
drinking alcohol and taking drugs) and that she deserved a house, which he could
not afford. He intended to show the note to Yolanda in the hope she would feel
sorry for him and take him back. The note asked his parents to raise Little Howie
because defendant did not want him to be raised by a stepfather.
       On cross-examination, defendant admitted that although the note was dated
April 27, 1997, he wrote the note three to five days earlier when he was drinking.
Defendant claimed that he did not know how his gas cap got on the bumper, but
thought that he might have left it there when he put gasoline in his car in Los
Angeles before driving to the Chuck E. Cheese restaurant in Fontana. He denied
that he siphoned the gasoline from his fuel tank to put into the plastic antifreeze
container before Yolanda‘s arrival. Defendant denied that he planned to run away
from the scene and that he put the Club on his car to prevent its theft after he fled.
       On redirect examination, defendant testified that when he grabbed Little
Howie from Yolanda‘s car, his intent was to leave with the baby.

           3. Rebuttal
       Yolanda‘s children, Patrick and Lawanda, testified about their mother‘s and
defendant‘s relationship. Patrick stated that defendant was mean to Yolanda and
that Patrick went to Chuck E. Cheese so that nothing bad would happen. He did
not see defendant attempt to remove the Club from the steering wheel.
       Lawanda stated that she disliked defendant because he threatened Yolanda,
pushed her around, and threw things at her. Lawanda described the December 30,
1996 incident. She was awakened by her mother‘s screams. Lawanda saw
defendant pulling Yolanda‘s hair and dragging Shavonda by her leg braces, while
Little Howie watched. Defendant warned Lawanda that if she wanted to watch, he
would pull her mother‘s hair even harder. Defendant got on top of Yolanda and



                                          10
did ―something sexually‖ to Yolanda after she refused to have sex with him.
According to Lawanda, defendant ―tortured‖ Yolanda for hours and Yolanda
complained her head was sore the next day. Defendant would throw things
around and shove Yolanda around ―continually.‖ He behaved this way during the
last year of their relationship, and possibly even before.
       Yolanda‘s brother, Victor Buttler, testified that on January 4, 1997,
defendant pounded loudly on Victor‘s door around 3:00 or 4:00 a.m. He then
broke the window of Victor‘s wife‘s van. When Victor ran outside, he saw
defendant driving away. Victor called the police and filed a report. Later that
night, defendant called Victor, admitted he broke the van window, and warned that
people in the family would start ―dropping like flies‖ if Victor did not divulge
Yolanda‘s whereabouts. Defendant returned that night. As defendant was
walking towards Victor‘s front door, Victor saw him pull out a gun and
immediately closed the door. Defendant walked back to his car and drove away.
Over the next several weeks, defendant continued to call Victor often, threatening
to kill people in his family if he did not find out Yolanda‘s whereabouts.
       Yolanda‘s sister, Lucinda Buttler, testified that Yolanda spoke of leaving
defendant for two years. During the last year or two of their relationship, Yolanda
explained that defendant was abusive to her. Lucinda once saw defendant push
Yolanda out of their mother‘s house. Yolanda would often call Lucinda secretly
because defendant did not want the sisters to talk with or see each other.
       The day after Yolanda moved out, defendant went to Lucinda‘s house and
asked where Yolanda was. When Lucinda replied she did not know, defendant
warned that if Yolanda did not show up, he would start killing her family members
one by one. He told Lucinda what he had done to Victor so that she would take
his threats seriously.



                                          11
        B. Penalty Phase

             1. The Prosecution‘s Case
        Because the penalty phase was tried before a different jury than the guilt
phase, the prosecution presented much of the guilt phase evidence, relating to
defendant‘s history with Yolanda and the circumstances of the crime — at the
penalty phase. That evidence included defendant‘s abusive and controlling
behavior towards Yolanda, the December 30, 1996 incident, which was the subject
of Yolanda‘s restraining order, defendant‘s visits to the homes of Yolanda‘s
siblings after Yolanda left him, his threats to her siblings when he was trying to
locate Yolanda, and expert testimony on the burns suffered by Yolanda.
        Other evidence presented at the penalty phase included the testimony of
another of Yolanda‘s brothers and additional testimony by Yolanda‘s brother,
Victor. Rallin Buttler, another brother, testified that after Yolanda moved out,
defendant made threatening calls to Rallin and his mother, who lived in Rallin‘s
house. Defendant called Rallin‘s mother names and threatened to do bodily harm
to her and her family if she did not disclose Yolanda‘s whereabouts. Defendant
threatened to kill Rallin, to ―take‖ him and his entire family ―out‖ if they refused
to give the location of Yolanda, and to ―blow away‖ anyone who got in his way,
including Yolanda. Defendant said that when he found Yolanda, she was going to
regret it.
        Rallin testified that on January 4, 1997, he and his family were awakened
by a loud banging on the front door. Rallin heard the shattering of his front
window and saw defendant driving away in defendant‘s car. Rallin saw 10-15
dents in his front door that appeared to have been made by a gun.
        Victor Buttler testified that Yolanda told him she was afraid of defendant
and that he had threatened to kill her if she ever left him.




                                          12
       The prosecution also presented evidence that defendant had pleaded guilty
to felony assault with a deadly weapon (§ 245, subd. (a)(2)) on February 18, 1997
for the gun incident at Victor‘s house and had also been convicted of shooting at
an inhabited dwelling (§ 246) in 1982, a misdemeanor. On the felony assault
conviction, defendant was placed on probation. Regarding the conviction for
shooting at an inhabited dwelling, the prosecution presented evidence of the
underlying circumstances. Defendant had followed Paul Triplett, a man who was
dating the mother of one of defendant‘s children, and they got into a physical
altercation. After the fight, defendant fired a shotgun into the house Triplett had
entered. The shot shattered the window in a room in which an infant lay in a
bassinet. No one was hurt.
       The prosecution presented victim impact evidence, including the severe
emotional trauma Little Howie and the other children suffered and the behavioral
problems they were still exhibiting.

           2. The Defense Case
       Defendant presented testimony from his mother and a neighbor who
portrayed defendant as a devoted father, son, and boyfriend. Defendant‘s mother
testified that Little Howie did not experience traumatic shock from his mother‘s
death or act differently after she died.
       Defendant testified in detail about his loving relationship with Yolanda, his
desperation when she left him, his use of drugs and alcohol before the crime, and
his writing the suicide note as a ploy to get Yolanda back, not as an expression of
his intent to kill her. He denied that he threatened Yolanda‘s family members or
used a gun at her brothers‘ houses. As in the guilt phase, defendant testified in
detail about the events leading up to the murder, including his phone calls to
Yolanda, his prior meeting with Yolanda and the children, the fight between him



                                           13
and Yolanda at the Chuck E. Cheese in Fontana, and his lack of memory regarding
his pouring gasoline on Yolanda and setting her on fire. He denied that he
intended to kill or hurt Yolanda. Also, as in the guilt phase, defendant testified
that on December 30, 1996, he only pulled Yolanda‘s braided hair extensions so
that she would come to bed.
       Defendant explained that as expressed in his note to Yolanda, he intended
to kill himself, but had no idea how, though the possibility of a police chase or
police shooting occurred to him. He wanted to have someone else kill him
because he is Christian and wanted to go to heaven. He was sorry for what he had
done to Yolanda, but that because his life belongs to the Lord Jesus Christ and if
God gives him the opportunity, he will make it up by leading other inmates in the
right direction.

           3. Rebuttal
       The People‘s rebuttal consisted primarily of defendant‘s statements during
the booking process, and to three psychologists who examined him during the
pendency of the case.
       During the booking process, defendant made a spontaneous statement that
his ―ex-wife‖ had broken up with him in January, she had packed up the children
and moved to Victorville, she had ruined his life, and he wanted to ruin her life.
       In a statement to one of the psychologists, defendant admitted that he
threatened Yolanda‘s family. In statements to two psychologists, defendant
described how he had set Yolanda on fire. In one statement, defendant described
that he had splashed Yolanda with gasoline, but claimed that he lit the lighter only
to scare her. A bystander grabbed his hand, causing him to flick the lighter and
ignite the gasoline. In another statement, defendant stated that he and Yolanda
had argued over Little Howie and that Yolanda started scratching and hitting



                                         14
defendant. Defendant removed the gasoline from his car, doused her with it, then
lit a cigarette lighter, which led to her being burned.
                                  II. DISCUSSION

       A. Jury Selection Issue

           Peremptory Challenges
       Defendant claims that during voir dire of the penalty phase retrial, the
prosecutor improperly exercised peremptory challenges against three African-
American prospective jurors on the basis of race. (Batson v. Kentucky (1986) 476
U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) Defendant
is and the victim was African–American. The applicable law is well settled.
Under Wheeler, ― ‗[a] prosecutor's use of peremptory challenges to strike
prospective jurors on the basis of group bias—that is, bias against ―members of an
identifiable group distinguished on racial, religious, ethnic, or similar grounds —
violates the right of a criminal defendant to trial by a jury drawn from a
representative cross-section of the community under article I, section 16 of the
state Constitution. [Citations.]‘ ‖ (People v. Hawthorne (2009) 46 Cal.4th 67, 77-
78.) Such a practice also violates the defendant's right to equal protection under
the Fourteenth Amendment. (Batson, supra, 476 U.S. at p. 88; People v.
Hawthorne, supra, 46 Cal.4th at p. 78.)
       In ruling on a motion challenging the exercise of peremptory strikes, the
trial court follows a three-step procedure. ―First, the defendant must make out a
prima facie case ‗by showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose.‘ [Citations.] Second, once the defendant has
made out a prima facie case, the ‗burden shifts to the State to explain adequately
the racial exclusion‘ by offering permissible race-neutral justifications for the
strikes. [Citations.] Third, ‗[i]f a race-neutral explanation is tendered, the trial



                                          15
court must then decide . . . whether the opponent of the strike has proved
purposeful racial discrimination.‘ [Citation.]‖ (Johnson v. California (2005) 545
U.S. 162, 168, fn. omitted (Johnson).)
       Without objection from defense counsel, the prosecutor exercised his third
peremptory challenge to excuse Prospective Juror No. 3 and his fourth peremptory
challenge to excuse Prospective Juror No. 44. After the prosecutor used his fifth
and final challenge to excuse Prospective Juror No. 46, defense counsel made a
Wheeler/Batson motion because the prosecutor had excused three prospective
jurors who were African–American. At the time of the motion, seven African-
Americans had been called to the jury box. The prosecutor peremptorily excused
three of them, while the defense peremptorily excused two of them. Two African-
American prospective jurors remained in the jury box.
       In support of his motion, defendant argued that the prosecutor used his last
three peremptory challenges to ―systematically eliminat[e] Black jurors.‖ When
the trial court noted that the defense peremptorily challenged two African-
American prospective jurors, defense counsel explained that he was justified in
those excusals, and that they had come after the trial court denied his challenges to
them for cause. The trial court responded, ―I don‘t think there is any dispute that
you had a valid reason in your mind and your client‘s mind to excuse the two.
You did. That is not an issue, really.‖
       The prosecutor argued that defendant failed to make a prima facie showing
and offered to relate his concerns regarding Prospective Juror No. 44. The trial
court responded, ―If you wish.‖ The prosecutor commented that she had a BA in
sociology, and had ―done social work and nursing all of her life.‖ The prosecutor
further commented that her questionnaire answers indicated that although some
murders may be intentional, the fact they are committed by a person who is
temporarily insane or emotional might affect her decision regarding imposition of

                                          16
the death penalty. The prosecutor explained that ―given the facts of this particular
case, I don‘t think that juror could ever actually render the death verdict given
what we know to be the facts of our case.‖ The prosecutor also expressed concern
with Prospective Juror No. 44‘s demeanor, noting that she appeared to be distant
when the other prospective jurors responded to questions and appeared to be a
―loner,‖ which could lead to a hung jury.
       The prosecutor pointed out that he and defense counsel stipulated to several
excusals for cause, including two African-American prospective jurors who could
not be impartial, and that he argued vigorously to retain the two Black prospective
jurors that had been challenged by the defense for cause, but that the defense used
its peremptory challenges against them. The prosecutor asserted that he
challenged the African-American prospective jurors ―for reasons having nothing
to do with skin color.‖
       The trial court denied defendant‘s motion, finding there was an insufficient
showing of a prima facie case.
       Defendant argues that although the trial court did not state which standard it
was using, it presumptively used the wrong standard, i.e., whether defendant
established a ―strong likelihood‖ that a juror has been peremptorily challenged on
the basis of group bias. (Wheeler, supra, 22 Cal.3d at p. 280.) After the trial in
this case, the high court disapproved that standard for purposes of a defendant‘s
establishing a prima facie case. (Johnson, supra, 545 U.S. at pp. 166-168.) Under
Batson, the court stated that the prima facie burden is simply to ―produc[e]
evidence sufficient to permit the trial judge to draw an inference that
discrimination has occurred.‖ (Johnson, supra, 545 U.S. at p. 170.) In addition,
defendant claims that in finding no prima facie showing, the trial court relied on
irrelevant grounds.



                                         17
       Regardless of the standard or considerations used by the trial court, we
have reviewed the record independently (applying the high court‘s standard) to
resolve the legal question whether the record supports an inference that the
prosecutor excused a juror on the basis of race. (People v. Hawthorne, supra, 46
Cal.4th at p. 79.) We conclude that the record does not support such an inference.
       In establishing a prima facie showing, a defendant has the burden of
demonstrating that the facts and circumstances of the case raise an inference that
the prosecutor excluded prospective jurors based on race. (Batson, supra, 476
U.S. at p. 96.) Notably, defendant‘s only stated basis for establishing a prima
facie case at trial was that the prosecutor exercised three of five peremptory
challenges against African-American jurors. Defendant attempts to buttress that
stated basis by arguing on appeal that 28 percent of the prospective jurors called to
the jury box were African-American, while the prosecutor used a disproportionate
ratio of his strikes (60 percent) against African-Americans. However, defendant‘s
numerical showing falls short of a prima facie case. (People v. Clark (2011) 52
Cal.4th 856, 905 [no prima facie case where prosecutor challenged four of five
African-American prospective jurors ]; People v. Cornwell (2005) 37 Cal.4th 50,
70 [no prima facie case where prosecutor challenged one out of two African-
American prospective jurors]; People v. Yeoman (2003) 31 Cal.4th 93, 115 [prima
facie case not established by cursory reference to prosecutor‘s strike of three
prospective jurors by name, number, occupation and race]; People v. Farnum
(2002) 28 Cal.4th 107, 136-137 [prima facie case not established by asserting
prosecutor exercised four of five peremptory challenges against Black prospective
jurors]; People v. Adanandus (2007) 157 Cal.App.4th 496, 503-504 [no prima
facie case established by asserting prosecutor exercised three peremptory
challenges against Black prospective jurors].)



                                         18
         The totality of the relevant facts of voir dire refutes an inference of
discriminatory purpose. (People v. Clark, supra, 52 Cal.4th at p. 905; People v.
Gray (2005) 37 Cal.4th 168, 186.) Before he exercised a single peremptory
challenge against an African-American juror, the prosecutor accepted the jury four
times with up to three African-American prospective jurors seated in the jury box.
During the first three times, the prosecutor accepted the jury with two African-
American prospective jurors (Nos. 3 and 23) seated.
         Another African-American prospective juror (No. 35) came into the jury
box to replace an excused juror. Defense counsel challenged Prospective Juror
No. 35 for cause. The prosecutor opposed the challenge and questioned the juror
in an attempt to rehabilitate him. The trial court denied defendant‘s challenge for
cause.
         The prosecutor accepted the jury a fourth time with three African-American
prospective jurors (Nos. 3, 23, and 35) seated. At that point, defense counsel did
not peremptorily challenge Prospective Juror No. 35, but used his fifth peremptory
challenge against another prospective juror. That juror was replaced with
Prospective Juror No. 42, who was African-American. The prosecutor then used
his third peremptory challenge against Prospective Juror No. 3, which was his first
peremptory challenge against an African-American juror. Prospective Juror No. 3
was replaced with Prospective Juror No. 43, who was also African-American.
         Defense counsel challenged Prospective Juror No. 43 for cause. The
prosecutor opposed the challenge and questioned the juror in an attempt to
rehabilitate him. The trial court again denied defendant‘s challenge for cause.
         Defense counsel exercised his sixth peremptory challenge against
Prospective Juror No. 43, who was replaced by another African-American
prospective juror (44). The prosecutor exercised his fourth peremptory challenge
against Prospective Juror No. 44, which was his second peremptory challenge

                                            19
against an African-American juror. Prospective Juror No. 44 was replaced by
another African-American juror (No. 46), leaving four African-American jurors
seated in the jury box. After defense counsel exercised his seventh peremptory
challenge, the prosecutor accepted the jury a fifth time, with those four African-
American jurors (Nos. 23, 35, 42, and 46) seated. Defense counsel used his eighth
peremptory challenge against Prospective Juror No. 35. The prosecutor used his
fifth peremptory challenge against Prospective Juror No. 46, leaving two African-
American prospective jurors seated in the jury box (Nos. 23 and 42). Defendant
then made a Wheeler/Batson motion.
       After the trial court denied the motion, defense counsel exercised his ninth
and final peremptory challenge against Prospective Juror No. 42, his third
peremptory challenge against an African-American prospective juror. Prospective
Juror No. 23 was the only African-American juror who sat on the final penalty
phase jury.
       Thus, the record reflects that before defendant made the Wheeler/Batson
motion, the prosecutor accepted the jury five times with up to four African-
American prospective jurors seated in the jury box. The prosecutor accepted the
jury four times with Prospective Juror No. 3 seated and one time with Prospective
Juror No. 46 seated before finally excusing them. (People v. Clark, supra, 52
Cal.4th at p. 906 [no prima facie case where prosecutor passed two African-
American jurors during several rounds before finally excusing them].) The
prosecutor‘s acceptance of a panel including African-American prospective jurors,
while not conclusive, was ― ‗an indication of the prosecutor‘s good faith in
exercising his peremptories, and . . . an appropriate fact for the trial judge to
consider in ruling on a Wheeler objection . . . .‘ ‖ (People v. Hartsch (2010) 49
Cal.4th 472, 487.) The record also reflects that there was an African-American on
the jury panel ultimately sworn, and the prosecutor repeatedly passed that juror on

                                          20
his peremptory challenges. (People v. Clark, supra, 52 Cal.4th at p. 906; People
v. Cornwell, supra, 37 Cal.4th at p. 70; People v. Adanandus, supra, 157
Cal.App.4th at pp. 503-504.) It further reflects that after extensive questioning,
the prosecutor successfully rehabilitated two African-American jurors, Prospective
Jurors Nos. 35 and 43, staving off defense challenges for cause. The prosecutor‘s
desire to keep African-American jurors on the jury tended to show that the
prosecutor was motivated by the jurors‘ individual views instead of their race.
(People v. Hartsch, supra, 49 Cal.4th at p. 487.)
       Finally, the record of voir dire shows race-neutral reasons for the
prosecutor‘s excusals of Prospective Jurors Nos. 3, 44, and 46. Prospective Juror
No. 3 was a married, 27-year-old woman with two children who worked for the
San Bernardino County Department of Social Services as a social services
caseworker. On the questionnaire, she stated that she ―strongly disagreed‖ that
anyone who intentionally killed another person should get the death penalty. She
stated that if under certain circumstances, the person killed with ―good reason‖ he
or she ―should be punished, but not put to death.‖ She explained, ―[w]hen I say
good reason, I mean in their minds.‖ Prospective Juror No. 3 further stated that
―maybe‖ the death penalty was appropriate in cases where a person of sound mind
admits to death and commits willful acts of cruelty, such as execution-style or
gang murders.
       From Prospective Juror No. 3‘s responses, the prosecutor could have
reasonably been concerned with her emphasis on the killer‘s subjective
perspective, especially in a case such as this one, where the defense would be that
the defendant snapped under extreme emotional despair and did not intend to kill.
Her responses also indicated a willingness to impose the death penalty only under
very limited circumstances and if the defendant confessed, facts not present in this
case. As with Prospective Juror No. 44, the prosecutor could also have reasonably

                                         21
believed that as a social services caseworker, Prospective Juror No. 3 might be
more sympathetic to the defense. (People v. Clark, supra, 52 Cal.4th at p. 907
[peremptory challenge properly based on juror‘s experience in counseling or social
services]; People v. Landry (1996) 49 Cal.App.4th 785, 790-791 [peremptory
challenge properly based on juror‘s educational background and experience in
psychiatry or psychology].) )
       Prospective Juror No. 44 was a 63-year-old widow with grown children,
who worked for San Bernardino County as a supervising social worker. She
graduated from college with a BA in sociology and was a social worker for 30
years. On the questionnaire, she stated that she had served 30 days in custody for
committing credit card fraud 30 years earlier and had visited her husband in jail
for drunk driving. She indicated that her decision to impose the death penalty
might be affected where an intentional murder is ―so emotional,‖ or the person is
temporarily insane.
       Other than the prosecutor‘s concerns with the juror‘s demeanor, the record
supports his stated concerns regarding Prospective Juror No. 44‘s employment as a
social worker, and her unwillingness to impose the death penalty in cases such as
this one involving a defense centered on defendant‘s emotional instability.
       Prospective Juror No. 46 was a married, 44-year-old woman with three
children, who worked for the Los Angeles County Department of Public Health as
an eligibility worker and Medi-Cal liaison. On the questionnaire, she indicated
she had not thought much about the death penalty, could not think of a general
purpose it would serve, and believed that life imprisonment was a harsher penalty
than death. Prospective Juror No. 46 strongly disagreed that anyone who
intentionally kills another person should automatically get the death penalty.
When asked if she could impose the death penalty in an appropriate case, she
answered ―possibly.‖

                                         22
       From Prospective Juror No. 46‘s responses, the prosecutor could have
reasonably concluded that she was uncertain about her ability or willingness to
impose the death penalty, even in the most extreme cases. Also, as with
Prospective Jurors Nos. 3 and 44, the prosecutor could have reasonably been
concerned with Prospective Juror No. 46‘s employment in the social services field.
Thus, the record discloses race-neutral reasons for the excusals.5
       Because defendant failed to meet his burden of establishing a prima facie
case of group discrimination, the trial court correctly denied his Wheeler/Batson
motion.

       B. Pretrial Issues Regarding Penalty Phase

           1. Denial of Defendant‘s Marsden Motion
       Defendant claims that the trial court improperly denied his motion to
replace appointed counsel at the penalty phase retrial, resulting in a violation of his
federal and state constitutional rights. The trial court did not abuse its discretion
in denying defendant‘s motion.

                a. Facts
       On August 27, 1998, during jury selection for the guilt phase of trial,
defendant made his first motion to substitute Defense Counsel Robert Amador.
The trial court held a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118.

5      For the first time on appeal, defendant asks us to conduct a comparative
analysis regarding the prospective jurors‘ responses and the prosecutor‘s
questioning of them. Here, the trial court did not ask the prosecutor for his
reasons for the excusals or rule on the prosecutor‘s actual reasons for excusing
Prospective Juror No. 44. (See People v. Mills (2010) 48 Cal.4th 158, 174, fn. 3;
People v. Hawthorne, supra, 46 Cal.4th at p. 79, fn. 2.) Because the trial court
determined there was no showing of a prima facie case, we decline to conduct a
comparative juror analysis in this ― ‗first-stage‘ ‖ Wheeler/Batson case. (People v.
Hawthorne, supra, 46 Cal.4th at p. 80, fn. 3.)



                                          23
Defendant stated that, although counsel had been assigned at the beginning of the
case, defendant had not seen any police reports or documents and was unaware of
his defense. He believed that Amador was not prepared because he had not filed a
written response to one of the prosecution‘s motions, but had only responded
verbally. When defendant stated he believed counsel was not adequately
defending him, the trial court asked him to provide specific examples of what he
wanted Amador to do that he had not done. Defendant responded that the
prosecution‘s motions contained ―lies‖ and he wanted Amador to challenge the
truthfulness of the evidence. The court noted that defendant had not proffered any
facts to support his claim. It stated that defendant had not provided a reason for
relieving Amador, but appointed independent counsel to provide assistance to
defendant on the Marsden motion.
         On August 31, 1998, at the next hearing on the Marsden motion, Charles
Nacsin, who had been appointed to assist on the motion, announced that defendant
wanted to withdraw the motion. Defendant told the court that after speaking with
Amador, his concerns had been resolved and he understood what Amador was
doing.
         On September 21, 1998, the jury returned guilty verdicts and true findings
on the special circumstances. On October 14, 1998, the jury advised the court it
could not reach a verdict on the penalty; the trial court found the jury was
hopelessly deadlocked and declared a mistrial on the penalty phase of trial.
         On November 2, 1998, during jury selection for the first penalty phase
retrial, Defense Counsel Amador moved to be relieved as counsel.6 Amador

6     On November 25, 1998, the trial court discharged the jury after granting
defendant‘s motion for a continuance. Defendant‘s second penalty phase retrial
began on January 19, 1999.



                                          24
stated he was concerned that another attorney had been visiting defendant in jail,
that this would interfere with his representation of defendant, and that defendant
refused to provide Amador reasons for the visits. A jail log revealed that Attorney
David Karlson had visited defendant nine times from July 25, 1998 to October 28,
1998. Defendant denied that Karlson was interfering with Amador‘s
representation. He explained that Karlson had said there was nothing he could do
for defendant on his case until after the penalty phase ended. Defendant felt that
because Amador did not want to represent him, he too did not want Amador
representing him. Amador clarified that he was not currently asking to be
relieved, but that if Karlson‘s jail visits continued, he would ask to be relieved.
The court issued an order to show cause against Karlson and appointed Attorney
Nascin to consult with defendant regarding the need for a Marsden motion.
       On November 4, 1998, the trial court held a hearing regarding Attorney
Karlson‘s jail visits with defendant. Karlson testified that defendant asked to
speak with him after the jury hung on the penalty verdict. On October 28th,
Karlson visited defendant briefly and told him that because defendant was already
represented, he could not advise him on the case until after the trial and his
attorney-client relationship with Amador had ended. Karlson assured the court he
would follow its order barring any future contacts with defendant. Attorney
Nascin then requested a Marsden hearing; after talking with defendant, he felt that
there was a breakdown in the relationship between defendant and Amador.
       On the following day, the trial court held a Marsden hearing, with Nascin
representing defendant. Defendant initially testified that he had lost confidence in
Amador for two reasons. First, Amador had asked to be relieved as counsel.
Second, Amador had failed to respond to his requests during the guilt phase to
pursue other evidence and to ask witnesses certain questions. When asked about
his first Marsden motion, defendant explained that he had withdrawn the motion

                                          25
after Amador assured him things would be better and that ―he had stuff up his
sleeves he was going to bring out.‖ But, as the trial progressed, defendant felt that
Amador was not fighting for him and giving him ―100 percent,‖ and that he did
not receive a fair trial.
       Defendant testified that his feelings about Amador ―really changed‖ when
the trial court dismissed the jury after its penalty deadlock. He had questions on
what was going to happen next, but could not reach Amador by telephone.
Defendant was told that Amador had gone to Reno and would return the following
morning. But, Amador did not call or visit him during the two-week period after
the mistrial. Because he and his family were concerned about the future
proceedings, defendant contacted Karlson for information, but Karlson did not
provide any answers. Defendant stated that he lost confidence in Amador because
he felt that if Amador was professional and had been doing a good job, he would
not have been concerned about defendant‘s contacts with Karlson. Defendant also
questioned why Amador had advised him not to testify and why he told the court
of that advisement, even though defendant wanted to testify. Finally, defendant
stated he felt that there was no communication between him and Amador.
       Amador testified that on defendant‘s suggestion, the defense team spoke to
several witnesses. Because several of these witnesses had ―nothing good to say‖
about defendant, they determined that these witnesses would have caused more
harm to defendant‘s case. For example, one witness related that a few days before
he burned Yolanda, defendant wanted to borrow a handgun. Amador denied that
he told defendant that he had ―something up‖ his ―sleeve.‖
       Amador testified that because defendant did not want him as his lawyer and
did not like Amador, he felt uncomfortable and did not want to represent
defendant. Amador felt that their relationship had broken down and was
irreparably harmed. Because defendant refused to tell him why Attorney Karlson

                                         26
was visiting him so often, Amador felt that defendant was not candid and did not
cooperate with him. However, Amador believed that if defendant was counseled
to cooperate and communicate with him, Amador could still try the case. His
personal feelings would not detract from his professional representation of
defendant.
       On the adequacy of Amador‘s representation, the trial court found that
defendant‘s complaints about his failure to pursue certain matters and his
unpreparedness were not specific enough, and that counsel‘s advice to defendant
not to testify was an insufficient showing of ineffective representation. Regarding
Amador‘s failure to see defendant after the penalty mistrial, the court noted that
the quality of representation does not depend solely on the number of times a
defendant speaks with his attorney. It commented that throughout the proceedings
in this case, Amador conducted the defense appropriately, was prepared, and
argued persuasively. It saw nothing unfair about the trial. The court noted that
given the evidence and defendant‘s confession at the guilt phase, defendant could
not have expected a not guilty verdict. The court further noted that, at the first
penalty trial, Amador was able to convince a jury to hang on the verdict.
       The trial court found that ―what we have here, very unfortunately, is a
personal relationship that has broken down.‖ The court noted that Amador asked
to be relieved based only on his perception that defendant had been consulting
another attorney, who might have been ―second-guessing‖ Amador‘s
representation of defendant. The court further noted that defendant ―joined in‖
Amador‘s motion, but did not initiate the motion for relief. It was only at that
point that defendant lost confidence in Amador‘s ability to defend him.
       Despite their personal relationship, the trial court denied Amador‘s and
defendant‘s motions for relief of counsel because there was not an irreconcilable
conflict and there was no showing of ineffective representation. The court

                                          27
accepted Amador‘s representation that his personal feelings would not influence or
affect his ability to professionally represent defendant and advised defendant to
cooperate and communicate with his attorney.

                b. Discussion
       ―When a defendant seeks substitution of appointed counsel pursuant to
People v. Marsden, supra, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44, ‗the trial
court must permit the defendant to explain the basis of his contention and to relate
specific instances of inadequate performance. A defendant is entitled to relief if
the record clearly shows that the appointed counsel is not providing adequate
representation or that defendant and counsel have become embroiled in such an
irreconcilable conflict that ineffective representation is likely to result.‘ ‖ (People
v. Taylor (2010) 48 Cal.4th 574, 599.) ―A trial court should grant a defendant‘s
Marsden motion only when the defendant has made ‗a substantial showing that
failure to order substitution is likely to result in constitutionally inadequate
representation.‘ ‖ (People v. Hines (1997) 15 Cal.4th 997, 1025.)
       ―We review the denial of a Marsden motion for abuse of discretion.‖
(People v. Taylor, supra, 48 Cal.4th at p. 599.) ―Denial is not an abuse of
discretion ‗unless the defendant has shown that a failure to replace counsel would
substantially impair the defendant's right to assistance of counsel.‘ ‖ (Ibid.)
       We conclude that defendant has failed to establish that the trial court
abused its discretion in denying his Marsden motion.              Although defendant
emphasizes that Amador failed to communicate with him, defendant‘s testimony
reveals that this claim was based primarily on counsel‘s failure to speak with him
during the two-week period between the penalty phase mistrial and the motions for
relief of counsel.   Although not answered immediately, defendant‘s questions
about the upcoming proceedings presumably were answered later.                Similarly,



                                           28
defendant‘s lack of confidence in Amador was based primarily on counsel‘s
failure to communicate with defendant during that two-week period and on
counsel‘s request to be removed. However, as the trial court explained, ―the
number of times one sees his attorney, and the way in which one relates with his
attorney, does not sufficiently establish incompetence.‖      (See People v. Silva
(1988) 45 Cal.3d 604, 622.) After presiding over the guilt phase trial and the first
penalty phase trial, the court noted that counsel had performed adequately and
accepted counsel‘s representation he could continue to represent defendant
professionally. Although defendant now points to some of Amador‘s actions as
specific examples of a ―rather tepid‖ performance throughout the case, he failed to
raise those claims to the trial court. In any event, tactical disagreements between a
defendant and his attorney or a defendant‘s frustration with counsel are not
sufficient cause for substitution of counsel. (People v. Jackson (2009) 45 Cal.4th
662, 688; People v. Barnett (1998) 17 Cal.4th 1044, 1092.)
       On this record, the court reasonably concluded that defendant failed to
show counsel provided inadequate representation or that any conflict between
defendant and Amador was irreconcilable. There was no abuse of discretion.

           2. Absence of Defense Counsel and Presence of Substitute Attorney
               During Portion of Jury Selection At Penalty Phase Retrial
       Defendant claims that the absence of his attorney and the presence of
substitute counsel during the distribution of juror questionnaires and hardship
screening at the penalty phase retrial deprived him of his right to counsel under the
federal and state constitutions. He is wrong.
       On January 19, 1999, the first day of the second penalty phase retrial (third
penalty phase trial), Attorney Amador was not present in court because of illness.
Another attorney, Julian Ducre, was present to represent defendant during
Amador‘s absence. The trial court asked defendant if somebody spoke to him


                                         29
―about the situation with Mr. Amador.‖ Defendant replied yes. The court
explained that during the proceedings in Amador‘s absence and Ducre‘s presence,
―nothing will happen regarding the presentation of your case or the prosecution‘s
case except to explain to the jury the procedure and hand out the questionnaires
and have them returned on a later date.‖ When asked if he would consent to that
procedure, defendant replied yes.
       During Ducre‘s presence, three groups of prospective jurors were called
into the courtroom and sworn. The first group appeared on the morning of
January 19. The second group was brought in that afternoon, while the third group
came in on the following morning. During all three sessions, the trial court
introduced the parties, read the information, related that Attorney Ducre would be
sitting in that day because defendant‘s attorney, Amador, was ill, and explained
the proceeding was a penalty phase trial. It discussed the jury selection procedure
and schedule, including the fact that questionnaires would be distributed, and the
prospective jurors would be dismissed and ordered to return on February 1st with
the completed questionnaires. After the questionnaires were distributed, the court
explained the grounds for a hardship excusal. The court asked those prospective
jurors claiming hardship to stay and dismissed the other prospective jurors. After
questioning, the court dismissed those prospective jurors who had been excused by
stipulation.
       After the above proceedings, the trial court ordered the prosecutor to meet
with Amador to discuss the questionnaires and return to court on February 1. On
that date, Amador was present in court when the first group of prospective jurors
returned with their completed questionnaires.
       The Attorney General claims that defendant cannot challenge his attorney‘s
absence because he consented to Amador‘s absence and the substitution of
Attorney Ducre. Defendant responds that defendant agreed to have stand-in

                                        30
counsel only for the purpose of handing out the jury questionnaires and was not
advised that the court would be excusing prospective jurors for hardship in
Amador‘s absence. Defendant argues that, under these circumstances, he did not
waive his right to have his attorney present during the excusal proceedings.
Because we conclude that defendant was not deprived of his right to counsel, we
need not decide the waiver issue.
       On the merits, defendant contends that the absence of Amador during jury
selection proceedings constituted a ―structural error‖ that requires automatic
reversal of the judgment without reference to harmless error analysis. (Arizona v.
Fulminate (1991) 499 U.S. 279, 309.) Alternatively, he argues that Amador‘s
absence was a presumptively prejudicial violation of his right to counsel at a
critical stage of the proceedings. (Bell v. Cone (2002) 535 U.S. 685, 695-697;
United States v. Cronic (1984) 466 U.S. 648, 659.)
       ―A criminal defendant enjoys the right to counsel under both the state and
federal Constitutions (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, Gideon v.
Wainwright (1963) 372 U.S. 335, 339-345, People v. Koontz (2002) 27 Cal.4th
1041, 1069, 119 Cal.Rptr.2d 859, 46 P.3d 335.) A complete denial of counsel at a
critical stage of the proceedings, including during jury voir dire (Gomez v. United
States (1989) 490 U.S. 858, 873), gives rise to a presumption that the trial was
unfair. (Cronic, supra, 466 U.S. at p. 659). But when the defendant is represented
by counsel, the presumption of prejudice will only stand when counsel entirely
failed to subject the prosecution's case to meaningful adversarial testing. (Bell v.
Cone (2002) 535 U.S. 685, 695; Cronic, at p. 659.)‖ (People v. Benavides (2005)
35 Cal.4th 69, 86.)
       We reject defendant‘s claims for several reasons. First, because defendant
had an attorney representing him at all times during the jury selection proceedings,
there was not a complete denial of counsel, let alone ―structural error.‖ (People v.

                                         31
Benavides, supra, 35 Cal.4th at p. 86 [defense cocounsel‘s conducting of voir dire
in absence of lead counsel not a violation of right to counsel]; Carroll v. Renico
(6th Cir. 2007) 475 F.3d 708, 712-713.)
       Second, we question whether Amador‘s absence and Ducre‘s presence
occurred during a critical stage of the proceedings. Hardship screening of the jury
pool is not a critical stage of the proceedings. (People v. Ervin (2000) 22 Cal.4th
48, 72 [defendant had no absolute right to be present during hardship screening];
People v. Basuta (2001) 94 Cal.App.4th 370, 395-396 [jury commissioner‘s
screening of jury pool for financial hardship in absence of defense counsel or
defendant not constitutionally significant].) Here, the court‘s hardship screening
and distribution of juror questionnaires bore ― ‗no reasonable, substantial relation
to [defendant‘s] opportunity to defend the charges against him‘ ‖ (People v. Ervin,
supra, 22 Cal.4th at p. 74), nor was there even an opportunity for counsel to
subject the prosecution's case to meaningful adversarial testing during the
preliminary portion of the jury selection process. (Bell v. Cone, supra, 535 U.S. at
p. 695; United States v. Cronic, supra, 466 U.S. at p. 659.) Thus, defendant was
not presumptively prejudiced by Amador‘s absence.
       Moreover, defendant has failed to show he was actually prejudiced.
Defendant argues that Amador‘s presence was necessary because he ―had an
awareness of trial strategy and an understanding of the unique aspects of the case.‖
Hardship excusals ― ‗are to be granted only on a sufficient showing that the
individual circumstances of the prospective juror make it unreasonably difficult
for the person to serve or that hardship to the public will occur if the person must
serve in the particular case.‘ ‖ (People v. Tate (2010) 49 Cal.4th 635, 663.) The
propriety of a hardship excusal does not depend on the underlying facts of the
specific case, but rather on the juror‘s individual circumstances of hardship in



                                          32
serving on a jury in general. Thus, intimate knowledge of the case is not
necessary for counsel‘s effective representation during hardship excusals.
       Defendant contends that stand-in counsel failed to object to the trial court‘s
use of a more lenient standard for hardship excusals than designated in California
Rules of Court, rule 2.1008. For example, he argues that financial hardship
excusals were granted by the court or by stipulation without a showing that there
was an ―extreme‖ burden (Cal. Rules of Court, rule 2.1008(d)(3)) and were
granted to full-time students and those with planned vacations, criteria not
designated in the rules of court. However, as the Attorney General argues, even if
Attorney Amador had been present, the result would have been the same. As she
points out, in the first trial, Amador stipulated to the excusal of jurors who
requested a hardship dismissal on the same grounds defendant now claims were
too permissive. Moreover, there is no showing that any of the hardship excusals
were improper or an abuse of discretion. ―[R]ule 2.1008‘s strictures on the jury
commissioner‘s authority to issue hardship excusals do not necessarily apply to
hardship excusals granted by the trial court during voir dire.‖ (People v. Tate,
supra, 49 Cal.4th at p. 665, fn. 18.) Defendant has failed to show that any of those
excusals resulted in the seating of biased jurors or that the panel from which
persons were excused for hardship reasons was less than representative. (See
People v. Tate, supra, 49 Cal.4th at p. 663, fn. 16.)
       Finally, defendant argues that Attorney Ducre failed to object when the trial
court stated that because a previous jury had determined defendant‘s guilt and the
truth of the special circumstances, it ―will not be something that you will have to
concern yourself with.‖ He claims that he was prejudiced because the statement
undermined the concept of lingering doubt. As discussed below, the trial court‘s
statement was not incorrect. (See post, pp. 77-79.) Moreover, as the Attorney
General points out, it was likely that Amador himself would not have objected.

                                          33
Amador did not object when the trial court gave the same information to
prospective jurors before the start of the first penalty phase retrial.
       Accordingly, the presence of a substitute attorney during the preliminary
stage of jury selection was not a denial of defendant‘s right to counsel.

       C. Guilt Phase Issues

           1. Admission of Photographs, Expert Testimony About the Nature and
               Degree of the Victim‘s Burns, and Tape Recording of Victim in the
               Ambulance
       Defendant contends that the trial court committed prejudicial error by
admitting photographs of the victim‘s injuries, expert testimony about the nature
and extent of the burns she suffered, and a tape recording of Yolanda‘s screams in
the ambulance while she was transported to the hospital. He argues that admission
of this evidence, individually and collectively, violated California law and his
federal constitutional rights to a fair trial and a reliable, nonarbitrary adjudication
of all stages of a death penalty case. As explained below, the trial court properly
admitted the evidence.

                a. Photographs
       The prosecutor sought admission of five photographs of various parts of the
victim‘s body to show the burn injuries that she had sustained. He represented
that Dr. David Vannix, the prosecution‘s burn expert, chose the five photographs
as necessary to support his expert opinion. Defendant objected that the
photographs were irrelevant and tended to inflame the jury (People‘s Exhibits Nos.
8-12). The prosecutor argued that the photographs were relevant to establish
malice and on the issues relating to torture murder as well as the torture special
circumstance. The trial court admitted three of the five photographs (People's
Exhibits Nos. 8-10) to show the severity of the burns and the victim‘s pain and
suffering. It explained that the three admitted photographs showed different


                                           34
portions of the victim‘s body and thus, different areas of injury on the body.
Exhibit No. 8 showed the lower portion of the victim‘s front torso. Exhibit No. 9
showed the victim‘s back torso. Exhibit No. 10 showed the victim‘s front, her
upper torso and face. The court excluded exhibits Nos. 11 and 12 as cumulative
because they duplicated the areas of the body shown in exhibits Nos. 8-10.

               b. Expert Testimony
       Defendant moved to exclude admission of the expert testimony of Dr.
Vannix and other evidence relating to the victim‘s pain and suffering. Defense
counsel argued that the evidence was irrelevant to any disputed issue since he
admitted during opening statement that defendant had caused Yolanda‘s death and
that she suffered a horrible, painful death. Regarding Dr. Vannix‘s testimony,
defense counsel claimed the evidence was cumulative and not a proper subject for
expert testimony. The prosecutor argued that the evidence was probative on the
issues of malice and torture, and that the nature of the burns sustained by Yolanda
was beyond the experience and understanding of the jury. The trial court denied
defendant‘s motion, stating that the expert would assist the jury in determining the
type of pain and suffering one would endure with this type of burning.
       Deputy Medical Examiner Steven Trenkle testified that Yolanda‘s burns
were consistent with burns from a gasoline fire. She suffered extensive second
and third degree burns on her head behind her hairline, and on her entire face, the
front of her chest, both arms, her back, and the top of both thighs. The pain
inflicted from these types of burns could be severe and ―potentially extreme.‖
       Dr. Vannix, the medical director of the hospital and the victim‘s attending
surgeon at the hospital‘s burn center, testified that Yolanda was admitted to the
hospital in critical condition with life-threatening burn injuries. He explained how
first, second, and third degree burns differed in appearance and in the severity of



                                         35
pain. First degree burns involve redness of the skin and some pain, but do not
blister or peel. With second degree burns from heat or flame, there are blisters and
the skin usually appears red and is sometimes black from the ash or combustion.
Second degree burns involve injury to the deeper layer of dermis beyond the
epidermis. Third degree burns involve injury to the fatty tissue underlying the
skin. The skin is usually white and may or may not be blistered. Unlike first and
second degree burns, third degree burns ―denature the skin‘s protein structure‖; the
skin is not elastic, but is thick, and feels heavy and leathery.
       Dr. Vannix testified that because second degree burns cause injury to more
nerve endings in the dermis than the epidermis, they are significantly more painful
than first degree burns. With third degree burns, the burns may not be painful
initially, if none of the nerve endings survive. In that case, the painlessness may
be temporary until the nerve endings begin to regenerate. Within 24 hours,
someone with third degree burns feels the same or even worse pain than that
associated with a second degree burn. Such pain is extreme and ―is among the
most significant types of pain in human experience.‖
       Dr. Vannix further testified that the paramedics were unsuccessful in
administering pain medication to Yolanda. Because the burns were so deep and
the skin was so thickened, they were unable to find or gain access to a vein.
Jeffrey Boyles, a fireman who assisted in Yolanda‘s medical care during her
transportation to the hospital, testified that Yolanda was in tears and screaming
and went through the entire 20-minute ambulance trip without pain medication.
They tried to relieve the pain by pouring water over her burns.

                c. Ambulance Tape
       Defendant objected to the playing of a tape recording in which Yolanda
was heard screaming during the ambulance ride to the hospital. He argued that,



                                           36
under Evidence Code section 352, the evidence was cumulative and unfairly
prejudicial. Again, the prosecutor argued that the tape recording showed the
degree of pain suffered by Yolanda, which was relevant to the issues relating to
torture murder and to the torture special-circumstance allegation. The trial court
overruled the objection, finding that the evidence was relevant. It found that
although the tape recording was ―to some extent‖ cumulative, it was a ―different
type of evidence,‖ i.e., ―a presentation of what was going on at the time, rather
than somebody‘s verbal recitation of what they recall.‖ The court further
explained that it was relevant and material for the jury ―to actually hear from the
victim‘s own mouth expressions of the kind of pain that she was sensing as it goes
to the issues in the lawsuit.‖

                d. Analysis
       On appeal, defendant contends that admission of evidence of Yolanda‘s
pain and suffering was irrelevant, cumulative, more prejudicial than probative, and
violated his federal constitutional rights. Initially, we note that defendant did not
object at trial to the expert testimony and the introduction of the ambulance tape
on federal constitutional grounds. (People v. Heard (2003) 31 Cal.4th 946, 972,
fn. 12 [failure to raise federal constitutional objection in trial court forfeits
appellate claim].) To the extent his federal due process claim is merely a gloss on
his objections in the trial court, it is preserved. (People v. Partida (2005) 37
Cal.4th 428, 437-438.) However, his claims are without merit.
       We review for abuse of discretion a trial court‘s rulings on relevance and
admission or exclusion of evidence under Evidence Code section 352, including
photographic and tape-recording evidence. (People v. Hawthorne, supra, 46
Cal.4th at p. 103; People v. Cole (2004) 33 Cal.4th 1158, 1196, 1198.)




                                           37
       To prove torture murder, the prosecution must establish ― ‗a willful,
deliberate, and premeditated intent to cause extreme pain or suffering for the
purpose of revenge, extortion, persuasion, or another sadistic purpose.‘ ‖ (People
v. D‘Arcy (2010) 48 Cal.4th 257, 293.) To prove a torture-murder special
circumstance, the prosecution must show that defendant intended to kill and had a
torturous intent, i.e., an intent to cause extreme pain or suffering for the purpose of
revenge, extortion, persuasion, or another sadistic purpose. (People v. Elliot
(2005) 37 Cal.4th 453, 479.) The jury may infer the intent to inflict extreme pain
from the circumstances of the crime, the nature of the killing, and the condition of
the victim's body. (People v. Chatman (2006) 38 Cal.4th 344, 390.)
       People v. Cole, supra, 33 Cal.4th 1158, is on point. There, the defendant
poured gasoline on the victim and set her on fire. Like Yolanda, the victim in
Cole sustained burns over 50 percent of her body, died 10 days later from severe
respiratory problems, and had been in a violent, abusive relationship with her
killer. In Cole, we held that evidence of the victim‘s suffering — in the form of
expert testimony and photographs — was relevant to prove intent to inflict
extreme pain, required for both murder by torture and the torture-murder special
circumstance, and to prove the commission of an act calculated to cause extreme
pain, required for the torture-murder special circumstance. (People v. Cole, supra,
33 Cal.4th at pp. 1196-1199.)
       Defendant argues that Cole is distinguishable because it is a pre-Proposition
115 case, while this is a post-Proposition 115 case. He is correct that Proposition
115, effective June 6, 1990, eliminated ― ‗proof of the infliction of extreme
physical pain no matter how long its duration‘ ‖ as an element of the torture-
murder special circumstance. (People v. Cole, supra, 33 Cal.4th at p. 1197, fn. 7.)
Nevertheless, the evidence here, as in Cole, was relevant to prove intent to inflict
extreme pain. (See also People v. D‘Arcy, supra, 48 Cal.4th at pp. 298-299

                                          38
[photographs of burn victim relevant to prove intent to torture for torture murder];
People v. Whisenhunt (2008) 44 Cal.4th 174, 211-212 [same]; People v. Brasure
(2008) 42 Cal.4th 1037, 1054 [photographs of burn victim relevant to proof of
how, when, and where victim was tortured and murdered]; People v. Washington
(1969) 71 Cal.2d 1061, 1083.) Moreover, the evidence showed the manner in
which Yolanda was killed, which was relevant to the issue of intent to kill.
(People v. Ramirez (2006) 39 Cal.4th 398, 454.)
       As in Cole, we also find that the trial court did not abuse its broad
discretion in admitting the evidence under Evidence Code section 352. (People v.
Cole, supra, 33 Cal.4th at pp. 1197, 1199; see also People v. Whisenhunt, supra,
44 Cal.4th at p. 212.) Regarding the photographs, the court carefully reviewed
each photograph and admitted only those photographs that it determined not to be
cumulative. As for the expert testimony, the court impliedly found the evidence
was not cumulative and expressly found it was a proper subject for expert
testimony. The photographs were properly admitted to clarify the medical
testimony of Dr. Vannix. (People v. Ramirez, supra, 39 Cal.4th at p. 453; People
v. Brasure, supra, 42 Cal.4th at p. 1054; see People v. D‘Arcy, supra, 48 Cal.4th at
p. 299 [prosecution not obliged to prove how crime occurred solely from
testimony of live witnesses].) On the ambulance tape, the court expressly
determined that the evidence was not cumulative because it was the victim‘s
expression of pain and suffering at the time of the actual events.
       Although defendant offered to stipulate to the cause and manner of death,
he did not concede that he intended to inflict extreme physical pain on Yolanda.
In any event, the prosecution may not be compelled to accept a stipulation where
the effect would be to deprive the state‘s case of its persuasiveness and
forcefulness. (People v. Arias (1996) 13 Cal.4th 92, 131.)



                                         39
       Here, the evidence ―did no more than accurately portray the shocking
nature of the crimes. The jury can, and must, be shielded from depictions that
sensationalize an alleged crime, or are unnecessarily gruesome, but the jury cannot
be shielded from an accurate depiction of the charged crimes that does not
unnecessarily play upon the emotions of the jurors.‖ (People v. Ramirez, supra,
39 Cal.4th at p. 454; see also People v. Brasure, supra, 42 Cal.4th at p. 1054
[―challenged photographs simply showed what had been done to the victim
[doused with gasoline and burned]; the revulsion they induced is attributable to the
acts done, not to the photographs‖].) The record reflects that the trial court was
aware of its duty to weigh the evidence‘s prejudicial effect against its probative
value, and carefully did so. Because the evidence was properly admitted, we
necessarily reject defendant‘s constitutional claims. (People v. Cole, supra, 33
Cal.4th at p. 1197, fn. 8.)

           2. Admission of Yolanda‘s Declaration in Support of Temporary
               Restraining Order
       Defendant contends that the admission of Yolanda‘s declaration in support
of the temporary restraining order against him violated the confrontation clause of
the Sixth Amendment to the United States Constitution.
       At trial, the prosecution moved to admit Yolanda‘s declaration under
Evidence Code section 1370. The declaration stated:
       ―On December 30th, 1996, Howard went crazy. He took my braids and
wrapped them around his hand. He had a very very tight grip on them. He kept
pulling and pulling on my braids so hard he pulled my hair out of my head. When
I would scream he told me to shut up and put his hand on my neck.
       ―All of this because I wouldn‘t have sex with him. When my daughter
came to see what was happening he told her to leave, he said if she didn‘t leave
she could stand there and watch.


                                         40
       ―He would start drinking and get realy mean. He push me out the house
and lock the door. He would throw things at me. One time he held me down
because I wouldn‘t give him my bank card. He would push me around. He would
call me bitches and hores. One time we went to Knotts Berry Farm he told me if I
didn‘t leave with him, he would beat my ass and every one around us heard. Some
times he would make me give him my money and he would make me have sex
with him.‖ (Errors in original.)
       Defendant objected to the declaration‘s admission on the ground it would
violate the Evidence Code and the confrontation clause. The trial court granted
the prosecution‘s motion and admitted the declaration at both the guilt and penalty
phases of trial.
       At the time of trial, the admission of extrajudicial hearsay statements of
unavailable witnesses did not violate the confrontation clause if those statements
fell within a firmly rooted hearsay exception or contained particularized
guarantees of trustworthiness. (Ohio v. Roberts (1980) 448 U.S. 56, 66.) In
Crawford v. Washington (2004) 541 U.S. 36, the United States Supreme Court
overruled Roberts. It held that ―Where testimonial statements are at issue, . . . the
Sixth Amendment demands what the common law required; unavailability and a
prior opportunity for cross-examination.‖ (Crawford v. Washington, supra, 541
U.S. at p. 68.)
       The Attorney General concedes that the declaration‘s statements — made
under penalty of perjury and for the purpose of obtaining a judicial order against
defendant —are testimonial, and there is no indication defendant had an
opportunity to cross-examine Yolanda about these statements. Nevertheless, the
Attorney General argues that the statements were admissible under the rule of
forfeiture by wrongdoing. (Giles v. California (2008) 554 U.S. 353, 359-361
[forfeiture by wrongdoing not an exception to Sixth Amendment‘s right to

                                         41
confrontation unless defendant engaged in conduct designed to prevent absent
witness from testifying].) Defendant responds that the rule is inapplicable here
because defendant did not engage in conduct designed to prevent the witness from
testifying. We need not decide this question because any error in admitting the
declaration was harmless beyond a reasonable doubt. (Harrington v. California
(1969) 395 U.S. 250, 288.)
       First, the declaration‘s statements merely corroborated testimony presented
in the form of live witnesses. The prosecution presented extensive evidence of
defendant‘s violent, abusive relationship with Yolanda at both phases of trial.
       During the guilt and penalty phases, Yolanda‘s daughter, Lawanda, testified
about the December 30, 1996 event, but in greater detail. She described that on
that day, she was awoken by her mother‘s screams and saw defendant pulling on
Yolanda‘s hair and dragging Shavonda by her leg brace in the presence of Little
Howie. Defendant warned Lawanda that if she continued watching, he would pull
Yolanda‘s hair harder. Defendant got on top of Yolanda. Because defendant‘s
and Yolanda‘s pants were down, it appeared he was trying to do something
―sexually.‖ Defendant ―tortured‖ Yolanda for hours. The next day, Yolanda‘s
head was sore. Lawanda identified a photograph of her mother depicting the head
injuries she suffered that night. Lawanda stated that before this incident,
defendant continually threw things around the house, argued with and threatened
Yolanda, and pushed her around.
       Other witnesses provided further details about their relationship. During
the guilt and penalty phases, Yolanda‘s sister, Lucinda Buttler, testified that she
saw defendant push Yolanda out of the door when Yolanda did not want to leave
the house after her father‘s funeral and that Yolanda told her defendant was
abusive during the last year or two of their relationship. During the guilt phase,
Yolanda‘s brother, Quentin Buttler, testified that he saw and photographed

                                         42
Yolanda‘s head injuries in December 1996, which Yolanda attributed to
defendant. Yolanda told Quentin that she was scared and wanted to leave
defendant because he had been beating her. Quentin advised Yolanda to seek the
restraining order. There was also evidence that defendant was controlling. He
would not allow Yolanda to visit her siblings.
       Second, the declaration described events separate from the charged
incident. At the guilt phase, the trial court instructed the jury to consider the
contents of the declaration for the limited purpose of showing malice and intent at
the time he committed the charged crime. It further admonished the jury it was
not to consider that evidence as showing defendant was a bad person or of bad
character or was prone to commit acts of violence. Indeed, during the guilt phase
closing argument, the prosecutor advised the jury that ―we‘ve put on a lot of
evidence that may make the defendant sound like a bad guy. But you should not
think of him as a bad guy . . . or convict him because you may not like him, may
not think he‘s a good guy.‖
       Finally, the evidence of the murder was overwhelming. After discovering
that Yolanda had taken the children and left, defendant hunted her down; he went
from one member of her family to the next, and angrily threatened to kill them.
During the penalty phase, defendant stated that he wanted to ruin Yolanda‘s life
because she had ruined his life and that she would regret leaving him. He carried
out his threat in a horrific manner, first by pouring gasoline on Yolanda‘s car,
where her disabled young niece was trapped in the backseat and then by pouring
gasoline over Yolanda‘s body and setting her on fire in front of her children and
others. Moreover, the note in the glove compartment of defendant‘s car reflects
that defendant intended to kill Yolanda.
       Any error in admitting Yolanda‘s declaration was harmless beyond a
reasonable doubt.

                                           43
           3. Sufficiency of the Evidence
       Defendant contends the evidence, in several respects, was insufficient to
support the judgment. In reviewing a criminal conviction challenged as lacking
evidentiary support, ― ‗the court must review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of solid value—
such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.‘ [Citation.]‖ (People v. Hillhouse (2002) 27 Cal.4th 469, 496.)
The same standard of review applies to special-circumstance allegations. (People
v. Maury (2003) 30 Cal.4th 342, 396.) ―An appellate court must accept logical
inferences that the jury might have drawn from the evidence even if the court
would have concluded otherwise.‖ (People v. Combs (2004) 34 Cal.4th 821, 849.)

               a. First Degree Murder Conviction; Torture and Lying-in-wait
                   Special-circumstance Findings
       The prosecution tried the case and the trial court instructed on three theories
of first degree murder: (1) deliberate and premeditated murder; (2) torture murder;
and (3) murder by lying in wait. Defendant contends that the evidence was
insufficient to support the first degree murder conviction on any of these theories.
He makes the same contention as to the special-circumstance findings. For the
same reason, he also claims that the trial court improperly instructed the jury on
each of the three theories of first degree murder. As explained below, we
conclude that there was substantial evidence to support all three theories and the
special-circumstance findings. Because we conclude substantial evidence
supports a conviction of first degree murder based on theories of premeditation
and deliberation, torture murder, and lying-in-wait, we necessarily reject
defendant‘s additional claim that instructions on these theories were not justified
by the evidence.


                                         44
                    1) Deliberate, Premeditated Murder
       Defendant contends that the prosecution presented insufficient evidence of
premeditation and deliberation because none of the categories of evidence set forth
in People v. Anderson (1968) 70 Cal.2d 15 were met in this case. In Anderson, we
―identified three categories of evidence relevant to resolving the issue of
premeditation and deliberation: planning activity, motive, and manner of killing.‖
(People v. Bolin (1998) 18 Cal.4th 297, 331.) ―However, these factors are not
exclusive, nor are they invariably determinative.‖ (People v. Combs, supra, 34
Cal.4th at p. 850.) ― ‗Anderson was simply intended to guide an appellate court's
assessment whether the evidence supports an inference that the killing occurred as
the result of preexisting reflection rather than unconsidered or rash impulse.
[Citation.]‘ ‖ (People v. Bolin, supra, 18 Cal.4th at pp. 331-332.)
       As to planning and motive, defendant argues that although he was
distraught about his failed relationship with Yolanda, the evidence showed only
that he planned to meet with Yolanda, visit with his son, Little Howie, and try to
win her back. He contends it does not show that he intended to kill her. As to the
manner of killing, defendant argues that the evidence showed the killing was a
rash, impulsive explosion of violence brought on by his having to wait for
Yolanda, who was late. In so arguing, defendant primarily relies on his own
testimony, and asks us to reject any incriminating inferences that the jury could
have reasonably deduced from the prosecution‘s evidence.
       The evidence in all three categories was overwhelming. The prosecution‘s
evidence showed that defendant was controlling toward Yolanda, that he
repeatedly physically abused Yolanda, and that Yolanda was afraid of him to the
extent that she sought a restraining order against him and secretly left him and hid
in a hotel instead of staying at her sister‘s house. When he was trying to find
Yolanda and Little Howie, defendant went to the houses of Yolanda‘s siblings and


                                         45
broke the window of a van, and threatened to kill members of Yolanda‘s family if
they did not reveal her whereabouts. Victor Buttler testified that when defendant
came to his house, he had a gun. Thus, defendant was furious with Yolanda for
taking Little Howie and leaving, and was prepared to use violence to find her.
       Indeed, the evidence showed that defendant planned to use violence against
Yolanda. The police found a note written by defendant to his parents in the glove
compartment of his car. In the note, defendant apologized for his death and asked
his parents to raise his son, Little Howie, to tell him that he was ―sorry‖ for what
he did to Yolanda, and to warn him to ―never fall in love‖ with a woman. He
admitted that he knew what he did to Yolanda was wrong, but that she did not
deserve ―to live like me.‖
       As he testified at trial, defendant argues that the note was simply a suicide
note and that the reference to Yolanda did not mean that she did not deserve to
live, but that she did not deserve to live the same lifestyle as defendant. However,
the jury was entitled to reject defendant‘s explanation. Instead, it could have
reasonably understood the note as expressing his belief that Yolanda did not
deserve to live. In other words, it could have understood it as a murder-suicide
note. Given the note‘s many grammatical and spelling errors, the jury could have
reasonably believed that defendant omitted a comma and meant to state that
Yolanda did not deserve ―to live, like me.‖
       As he testified at trial, defendant also argues that the statement, ―I know
what I did to Yolanda is wrong‖ referred to the earlier December 30, 1996
incident, not to an intent to hurt Yolanda in the future. Although defendant
actually wrote the note several days earlier, the note was dated April 27, 1997, the
day defendant burned Yolanda. Thus, the jury could have reasonably concluded
that defendant intended the note to be discovered after he burned Yolanda, and



                                         46
after he and Yolanda were dead, and that was why defendant asked his parents to
care for Little Howie.
       Moreover, the jury could have reasonably concluded that defendant planned
the precise manner of killing. Defendant stated that he arrived on time at 4:00
p.m. to meet Yolanda and the children and became angry and frustrated because
they were late. However, the jury could have reasonably rejected his testimony
that they were late, since the 911 call reporting Yolanda on fire was received at
3:21 p.m. Yolanda‘s son, Patrick, stated that defendant appeared nervous as they
drove up to the Chuck E. Cheese restaurant. The police found that the gas cap
from defendant‘s car was on the car‘s bumper and that the car‘s steering wheel
was locked by a Club device. Thus, the jury could have reasonably concluded that
defendant came early, before Yolanda‘s arrival, and siphoned gasoline out of his
gas tank to fill the plastic container he intended to use to pour gasoline on
Yolanda. Further, it could have reasonably rejected defendant‘s testimony that he
only intended to take his son on a drive. Instead, it could have reasonably
concluded that defendant placed Little Howie in his car for his safety, so that he
could then beat and incapacitate Yolanda to enable him to pour gasoline on her
and her car, and set her on fire.
       Finally, the manner of killing itself demonstrates premeditation and
deliberation. The evidence revealed that defendant was still angry at Yolanda for
leaving him and taking his son. Edward Jasso testified that, while beating
Yolanda, defendant looked angry and called her a ―fucking bitch.‖ Moreover, the
evidence showed that defendant‘s acts occurred in stages. Defendant beat and
kicked Yolanda repeatedly, then stopped to retrieve the plastic container from his
car. He returned to Yolanda and poured gasoline on her. He dragged Yolanda to
his car, but then released her to retrieve a cigarette lighter from his car. He then
chased her and set her on fire. Thus, the jury could have reasonably concluded

                                          47
that defendant had many opportunities to consider and reflect on his actions, but
chose to continue with his plan to set Yolanda on fire and kill her. (See People v.
Mayfield (1997) 14 Cal.4th 668, 767 [premeditation and deliberation does not
require extended period of time; ― ‗[t]houghts may follow each other with great
rapidity and cold, calculated judgment may be arrived at quickly‘ ‖].) As the
prosecutor argued, no one intentionally throws gasoline on a person and sets them
on fire if he or she does not intend to kill that person.
       The evidence shows that defendant had a motive and committed the killing
in the manner he had planned. We find ample evidence of premeditation and
deliberation.

                    2) Torture Murder; Torture Special-circumstance Finding
       Defendant contends that the prosecution presented insufficient evidence to
support the first degree murder conviction based on a torture-murder theory and
the torture special-circumstance finding.
       First degree murder includes a murder perpetuated by means of torture.
(§ 189.) ― ‗The elements of torture murder are: (1) acts causing death that involve
a high degree of probability of the victim's death; and (2) a willful, deliberate, and
premeditated intent to cause extreme pain or suffering for the purpose of revenge,
extortion, persuasion, or another sadistic purpose.‘ [Citation.]‖ (People v.
D‘Arcy, supra, 48 Cal.4th at p. 293.) Murder by torture does not require that a
defendant have an intent to kill or that the victim be aware of the pain. (People v.
Cook (2004) 39 Cal.4th 566, 602.) The jury may infer the intent to inflict extreme
pain from the circumstances of the crime, the nature of the killing, and the
condition of the victim's body. (People v. Chatman, supra, 38 Cal.4th at p. 390.)
We also have ― ‗cautioned against giving undue weight to the severity of the
victim's wounds, as horrible wounds may be as consistent with a killing in the heat



                                           48
of passion, in an ―explosion of violence,‖ as with the intent to inflict cruel
suffering.‘ ‖ (People v. Cole, supra, 33 Cal.4th at pp. 1213-1214.)
       Defendant argues that the only reasonable interpretation of the evidence is
that the acts of pouring gasoline on Yolanda and setting her on fire was simply an
unplanned, impulsive explosion of violence resulting from a fight that spun out of
control. Again, defendant relies primarily on his own testimony at trial, while
ignoring the prosecution‘s evidence and the reasonable inferences to be drawn
therefrom. Given defendant‘s prior physical abuse of Yolanda, his attempts to
control her by preventing communication with her family, his anger with Yolanda
for leaving him and taking his child, and concealing her whereabouts, and the
repeated threats against Yolanda‘s family, the jury could have reasonably
concluded that when defendant intentionally set Yolanda on fire as he had
planned, he intended to cause Yolanda extreme pain and suffering as punishment
or for revenge. (See e.g., People v. Cole, supra, 33 Cal.4th at p. 1214 [torture-
murder conviction supported by evidence of prior tumultuous domestic
relationship, victim‘s plan to leave defendant, threats against victim, and manner
of killing victim by burning her with flammable liquid].) As the prosecutor
argued, someone who sets a person on fire with gasoline clearly intends to inflict
extreme and prolonged pain on that person. Moreover, after defendant set
Yolanda on fire, he fled from the scene and failed to aid in rescue attempts. (See
People v. Martinez (1952) 38 Cal.2d 556, 561 [defendant burned wife with
gasoline and failed to aid in and hindered rescue attempts].) Such evidence,
together with the resulting condition of Yolanda‘s body and her painful, prolonged
death 10 days later ―permitted an inference that defendant set [the victim] on fire
with the intent to inflict extreme pain for the purpose of revenge.‖ (People v.
D‘Arcy, supra, 48 Cal.4th at p. 294; see also People v. Whisenhunt, supra, 44
Cal.4th at p. 201 [victim‘s wounds inflicted by defendant‘s attack and

                                          49
incapacitation of victim, and methodical burn wounds inflicted with hot cooking
oil on victim‘s body supported jury‘s finding defendant had willful, deliberate, and
premeditated intent to cause extreme pain or suffering for sadistic purpose].) The
nature of Yolanda‘s wounds and the circumstances surrounding the killing provide
sufficient support for a first degree murder conviction premised on a torture-
murder theory. The jury could reasonably reject defendant‘s testimony to the
contrary.
       We further conclude sufficient evidence supported the jury‘s true finding
on the torture-murder special-circumstance allegation. The special circumstance
requires that a murder be ―intentional‖ and ―involv[e] the infliction of torture,‖
which includes a torturous intent. (§ 190.2, subd. (a)(18); People v. Whisenhunt,
supra, 44 Cal.4th at p. 202; People v. Elliot, supra, 37 Cal.4th at pp. 469, 479.)
As reflected above, the evidence supports the jury‘s conclusion that defendant
intended to kill Yolanda, and that the murder involved the infliction of torture.

                    3) Murder by Lying In Wait; Lying-in-wait Special-
                       circumstance Finding
       Defendant contends that the evidence was insufficient to support the lying-
in-wait special-circumstance finding because the murder was not committed
―while‖ lying in wait and his true concealed purpose was to take Yolanda‘s son
and not to murder her. He is wrong.
       At the time of defendant‘s crime, the special circumstance required that the
murder be committed ―while lying in wait.‖7 (§ 190.2, former subd. (a)(15);
People v. Lewis, supra, 43 Cal.4th at pp. 511-512.) Also, at that time, ―the

7       In March 2000, the language of the lying-in-wait special circumstance was
changed to delete the word ―while‖ and substitute the phrase ―by means of.‖
(Stats. 1998, ch. 629, § 2, p. 4165; see People v. Lewis (2008) 43 Cal.4th 415, 512,
fn. 25.)



                                         50
requirements of the lying-in-wait special circumstance were slightly different
from, and more stringent than, the requirements for lying-in-wait first degree
murder. [Citation.] Whereas lying-in-wait first degree murder required only that
the murder be perpetrated ‗by means of‘ lying in wait (§ 189), the lying-in-wait
special circumstance applied to murder committed ‗while lying in wait‘ (§ 190.2,
former subd. (a)(15), italics added).‖ (People v. Lewis, supra, 43 Cal.4th at pp.
511-512.) Further, the lying-in-wait special circumstance requires intent to kill,
while lying-in-wait murder requires only a wanton and reckless intent to inflict
injury likely to cause death. (People v. Moon (2005) 37 Cal.4th 1, 24, fn. 1.) As
shown below, because the evidence supports the special circumstance, it
necessarily supports the theory of lying-in-wait first degree murder.
       ― ‗ ―The lying-in-wait special circumstance requires ‗an intentional murder,
committed under circumstances which include (1) a concealment of purpose, (2) a
substantial period of watching and waiting for an opportune time to act, and (3)
immediately thereafter, a surprise attack on an unsuspecting victim from a position
of advantage . . . .‘ [Citations.] ‗The element of concealment is satisfied by a
showing ― ‗that a defendant's true intent and purpose were concealed by his
actions or conduct. It is not required that he be literally concealed from view
before he attacks the victim.‘ ‖ ‘ [Citation.]‖ [Citation.]‘ [Citation.]‖ (People v.
Combs, supra, 34 Cal.4th at p. 853.)
       First, the evidence established that defendant concealed his intent to kill
Yolanda. From the note to his parents, the jury could have reasonably concluded
that defendant intended to kill Yolanda. He concealed his purpose by luring
Yolanda to the restaurant under the pretext of an attempted reconciliation and a
familial visit. Patrick testified that defendant had been calling Yolanda, claiming
he wanted to reconcile with her. Defendant testified that he had convinced
Yolanda to bring the children to meet him once before, and that the meeting had

                                          51
occurred without incident. Defendant further testified that he told Yolanda he
wanted to get back together with her, and when she refused he told her he might
do something to himself. She then agreed to meet him at the Chuck E. Cheese
restaurant. (See People v. Sims (1993) 5 Cal.4th 405, 433 [defendant lured victim
to motel room on pretext of ordering pizza, concealing true intent to rob and
murder him].) Moreover, from the removed gas cap from defendant‘s car, the jury
could have reasonably concluded that defendant prepared the instruments of her
killing before Yolanda‘s arrival at the restaurant.
       Defendant claims that there is no evidence his concealed purpose was a
murderous one. Instead, he argues the evidence shows that his pretextual request
to see Yolanda concealed his true purpose of taking his son from her. Again,
defendant focuses solely on his own testimony. In contrast, the prosecution‘s
evidence revealed that before Yolanda arrived, defendant locked his steering
wheel, which was not conducive to a quick getaway with his son. Moreover,
defendant had the opportunity to leave after he secured Little Howie in his car, but
did not. Indeed, as the Attorney General points out, the defense did not even argue
to the jury that defendant‘s true concealed purpose was to take his son from
Yolanda. The evidence supports the jury‘s finding that defendant concealed his
intent to kill Yolanda.
       Second, the evidence showed that defendant engaged in a substantial period
of watching and waiting for an opportune time to act. ―Watchful‖ does not require
actual watching; it can include being ―alert and vigilant‖ in anticipation of the
victim‘s arrival to take him or her by surprise. (People v. Sims, supra, 5 Cal.4th at
p. 433.) The jury could have reasonably concluded that defendant was at the
restaurant long enough to secure his car with the Club locking device and remove
gasoline from his gas tank to fill up the plastic container in his trunk. Defendant
testified that he waited for Yolanda for 30 to 40 minutes. Although defendant

                                          52
testified that he and Yolanda planned to meet at 4:00 p.m., the 911 call reporting
Yolanda on fire was received at 3:21 p.m. The jury could have reasonably
concluded that if Yolanda was early for the meeting, defendant arrived even
earlier and waited to take her by surprise. According to Patrick, defendant was
clapping his hands and appeared nervous when they arrived at the restaurant.
Thus, the evidence reflects that defendant was waiting nervously for Yolanda‘s
arrival to set his deadly plan in motion.
       Finally, the evidence reflects that immediately after the period of watching
and waiting, defendant launched a surprise attack on the unsuspecting victim from
a position of advantage. Immediately after Yolanda‘s arrival, defendant grabbed
Little Howie and placed him in his car. From this evidence, the jury could have
reasonably inferred that defendant placed his son there for safety purposes, to
protect him from the fire defendant intended to start. When Yolanda attempted to
retrieve her son, she and defendant began to argue and push each other. Defendant
beat and kicked Yolanda and returned to his car to retrieve the gasoline, which he
then poured on Yolanda‘s car and on Yolanda. He then beat her again and
grabbed her by the hair and attempted to drag her back to his car to get something
with which to ignite the gasoline. Finally, defendant let Yolanda go and went to
his car for the lighter. Yolanda tried to get away, but defendant caught her and set
her on fire.
       Defendant argues that there was insufficient evidence the killing took place
―while lying in wait‖ (§ 190.2, former subd. (a)(15)), i.e., ― ‗during the period of
concealment and watchful waiting.‘ ‖ (People v. Lewis, supra, 43 Cal.4th at p.
512.) ―Although we have not defined the parameters of a murder committed
‗during the period of concealment and watchful waiting,‘ the language of
[CALJIC No. 8.81.15 (1989 rev.)] supplies meaning to that phrase. That
instruction stated: ‗Thus, for a killing to be perpetrated while lying in wait, both

                                            53
the concealment and watchful waiting as well as the killing must occur during the
same time period, or in an uninterrupted attack commencing no later than the
moment concealment ends. [¶] If there is a clear interruption separating the
period of lying in wait from the period during which the killing takes place, so that
there is neither an immediate killing nor a continuous flow of the uninterrupted
lethal events, the special circumstance is not proved.‘ ‖ (People v. Lewis, supra,
43 Cal.4th at p. 512.) Here, the trial court instructed the jury in the language of
CALJIC No. 8.81.15.
       Yolanda met with defendant under the belief he wanted a reconciliation and
to visit with Little Howie. Instead, defendant launched a surprise attack with the
intent to set her on fire. It began with the preparatory step of taking Little Howie
away from his mother, and was followed immediately with the beating of Yolanda
when she attempted to retrieve her son and the lethal acts of dousing Yolanda with
gasoline and igniting it. Although there were discrete events during which
defendant beat Yolanda, went to his car to retrieve gasoline and the lighter, and
poured gasoline on Yolanda and lit it, the time between each event took only
minutes or seconds. Thus, contrary to defendant‘s claim, ―no ‗cognizable
interruption‘ occurred between the period of watchful waiting and the
commencement of the murderous and continuous assault which ultimately caused
her death.‖ (People v. Morales (1989) 48 Cal.3d 527, 558; People v. Carpenter
(1997) 15 Cal.4th 312, 389 [end of lying in wait, attempted rape, and killing
occurred within minutes]); compare with People v. Lewis, supra, 43 Cal.4th at pp.
511, 514-515 [cognizable interruption occurred between period of watchful
waiting and killings, when defendant and accomplices kidnapped victims and
proceeded to drive them to ATM machines from which he withdrew their funds
before killing them]; Domino v. Superior Court (1982) 129 Cal.App.3d 1000,
1011-1012 [cognizable interruption when defendant killed victim hours after

                                          54
kidnapping that was preceded by period of lying in wait].) Moreover, the jury
could reasonably find no lapse in defendant‘s culpable mental state between the
homicide and the period of watchful waiting. (People v. Lewis, supra, 43 Cal.4th
at p. 514, quoting People v. Carpenter, supra, 15 Cal.4th at p. 389 [no cognizable
interruption where no lapse in defendant‘s culpable mental state].)
       Defendant argues that Yolanda was not surprised as evidenced by her
attempt to flee when defendant retrieved the plastic container. However, the
attack on her had already begun. Initially, on seeing defendant as planned and on
having had a prior, peaceful meeting with defendant, Yolanda would not
immediately have suspected she was in danger and could not have anticipated
defendant‘s deadly intentions. (See e.g., People v. Moon, supra, 37 Cal.4th at pp.
22, 24 [being well acquainted with defendant, victim would not immediately
suspect danger].) Also, because it appeared that the prior domestic assaults on
Yolanda occurred within the privacy of their home, the jury could reasonably infer
that she could not have anticipated that defendant would beat her in public and
certainly not set her on fire there. (See e.g., People v. Stevens (2007) 41 Cal.4th
182, 203 [defendant lured victim into vulnerable position by creating or exploiting
false sense of security].)
       Because we find that substantial evidence supports the lying-in-wait special
circumstance, we also conclude there was substantial evidence to support the
lying-in-wait theory of first degree murder.
       Defendant contends that if we conclude the evidence is sufficient to support
the lying-in-wait special-circumstance finding here, then the special circumstance
is unconstitutional as applied to this case. In essence, defendant argues that the
lying-in-wait special circumstance is too broad if the facts of this case fall within
it. ―That is simply another way to state his facial attack on the statute, which we
have rejected [below]. [Citation.]‖ (People v. Lewis, supra, 43 Cal.4th at p. 517.)

                                          55
            4. Unconstitutionality of the Torture Special-circumstance and Murder
                by Torture Instructions
       The trial court instructed the jury with CALJIC No. 8.81.18, directing that a
true finding as to the torture special circumstance required proof that defendant
intended to kill a human being; that defendant ―intended to inflict extreme cruel
physical pain and suffering upon a living human being for the purpose of revenge,
extortion, persuasion or for any sadistic purpose;‖ and that defendant ―did, in fact,
inflict extreme cruel physical pain and suffering upon a living human being no
matter how long its duration.‖
       Defendant contends that the language ―extreme cruel physical pain‖ and
―any sadistic purpose‖ renders the instruction unconstitutionally vague and
overbroad. He further claims that the trial court‘s giving of CALJIC No. 8.24,
which used similar language (―extreme and prolonged pain . . . for . . . any sadistic
purpose‖) regarding first degree murder by torture, is also too vague. We have
previously rejected such claims and do so again here. (People v. Whisenhunt,
supra, 44 Cal.4th at p. 223; People v. Cook, supra, 39 Cal.4th at p. 602; People v.
Chatman, supra, 38 Cal.4th at pp. 394-395; People v. Raley (1992) 2 Cal.4th 879,
898-902.)
       Defendant further claims that the giving of CALJIC No. 8.81.18 confused
the jury by stating that defendant must have inflicted pain, but the victim‘s
awareness of pain was not required. We have rejected this contention before and
continue to do so. (People v. Chatman, supra, 38 Cal.4th at p. 394; People v.
Cole, supra, 33 Cal.4th at p. 1228.) Moreover, although the instruction included
the requirement involving the infliction of extreme cruel physical pain on a living
victim, that requirement was eliminated by the enactment of Proposition 115 in
1990. (People v. Elliot, supra, 37 Cal.4th at pp. 453, 476-477.) Because the 1990
amendment governs this case, the required finding of an additional but



                                         56
unnecessary ―element‖ could redound only to defendant‘s benefit. (See People v.
Cole, supra, 33 Cal.4th at p. 1228.)
       Finally, contrary to defendant‘s claim, the special circumstance of
intentional murder involving the infliction of torture does not violate the Eighth
Amendment by failing to narrow the class of persons eligible for the death penalty.
(People v. Jennings (2010) 50 Cal.4th 616, 649; People v. Bemore (2000) 22
Cal.4th 809, 843; People Barnett (1998) 17 Cal.4th 1044, 1162-1163; see People
v. Davenport (1985) 41 Cal.3d 247, 271 [torture special circumstance
distinguished from murder by torture by requiring intent to kill].)

           5. Unconstitutionality of Lying-in-wait Special Circumstance and
               Instructions
       Defendant claims that CALJIC No. 8.81.15, the lying-in-wait special-
circumstance instruction given in this case, omitted key elements. First, he
contends that the standard instruction failed to explain to the jury that the
concealed purpose must be an intent to kill and that the watchful waiting had to be
for a time to launch a lethal attack. He argues that because the evidence supported
a finding that his true concealed intent was to take his son, the instructions would
have permitted the jury to find that the concealment and watchful waiting elements
were satisfied based only on such a nonlethal intent. He is wrong.
       CALJIC No. 8.81.15 instructed that ―for a killing to be perpetuated while
lying in wait‖: (1) the killing must be intentional and (2) ―both the concealment
and watchful waiting as well as the killing must occur during the same time
period, or in an uninterrupted attack commencing no later than the moment
concealment ends.‖ In addition, the instruction required an immediate killing or a
continuous flow of the uninterrupted lethal events from the period of lying in wait.
(Ibid.) Finally, the instruction stated that, ―[W]hen a defendant intentionally
murders another person, under circumstances which include (1) a concealment of


                                          57
purpose, (2) a substantial period of watching and waiting for an opportune time to
act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim
from a position of advantage, the special circumstance of murder while lying in
wait has been established.‖ (Ibid.) Because the instruction required an intentional
killing and an uninterrupted connection between the lethal acts and the period of
lying in wait, a reasonable jury would not have believed that the nonlethal act and
intent of taking Little Howie would have satisfied the requirements of
concealment of purpose and watchful waiting to act.
       Second, defendant contends that the special instructions given by the court
at the prosecutor‘s request, together with CALJIC No. 8.81.15, failed to instruct
on an intent to kill and eliminated the immediacy of attack requirement. Again, he
is wrong.
       The prosecutor requested three special instructions on lying in wait.
Although defendant objected to special instructions 1 and 3, the trial court gave all
three special instructions. Special instruction 1 emphasized that the special
circumstance of lying in wait — unlike lying-in-wait murder — required that the
killing be committed ―while‖ lying in wait. Elaborating on the distinction, special
instruction 3 explained: ―Use of the word ‗while‘ in the special circumstance of
lying in wait means that the killing must take place during the period of
concealment and watchful waiting or the lethal acts must begin at and flow
continuously from the moment the concealment and watchful waiting ends. If a
cognizable interruption separates the period of lying in wait from the period during
which the killing takes place, the special circumstance does not exist. A brief
interval of time between the killer‘s first appearance and the acts inflicted which
cause the killing do not necessarily negate a surprise attack, so long as there is a
continuous flow in the culpable state of mind between the period of watchful
waiting and the homicide.‖

                                          58
       Focusing on the last sentence of special instruction 3, defendant claims that
because ―it is not clear to what culpable state of mind the instruction refers,‖ the
jury ―could equate culpable mental state with one that is non-lethal or merely
deceitful,‖ i.e., that defendant‘s intent was to take his son from Yolanda by a ruse.
However, when considered with CALJIC No. 8.81.15, it is clear that the necessary
―culpable state of mind‖ was the intent to kill. Moreover, during closing
argument, the prosecutor emphasized the requirement of intent to kill. Thus, there
is no reasonable likelihood the jury misapplied the instruction in the manner
defendant claims. (People v. Huggins (2006) 38 Cal.4th 175, 192.)
       Defendant further claims that the last sentence of special instruction 3 told
the jury that ― ‗the continuous flow‘ only need be ‗the culpable state of mind‘
regardless of the actual events that had occurred‖ and that a continuous flow of
the lethal events was not required. Again, defendant focuses on an isolated
sentence rather than the full context. The first sentence of special instruction 3
told the jury that ―the lethal acts must begin at and flow continuously from the
moment the concealment and watchful waiting ends.‖ CALJIC No. 8.81.15 also
told the jury that ―If there is a clear interruption separating the period of lying in
wait from the period during which the killing takes place, so that there is neither
an immediate killing nor a continuous flow of the uninterrupted lethal events, the
special circumstance is not proved.‖ (Italics added.) The instruction further stated
that the surprise attack must occur immediately after the period of watching and
waiting. Considered as a whole, the instructions clearly conveyed the immediacy
requirement regarding the lethal acts.
       Finally, defendant contends that the lying-in-wait special circumstance is
unconstitutional because there is no meaningful distinction between the special
circumstance, and premeditated, deliberate murder and murder by means of lying
in wait. He also argues the special circumstance does not meaningfully

                                           59
distinguish death eligible defendants from those not death eligible. We have
rejected these contentions before and continue to do so. (People v. Stevens, supra,
41 Cal.4th at pp. 203-204; People v. Nakahara (2003) 30 Cal.4th 705, 721; People
v. Gutierrez (2009) 28 Cal.4th 1083, 1148-1149.)

           6. Unconstitutionality of Jury Instructions Assertedly Affecting
               Reasonable Doubt Standard
       Without objection, the trial court gave the standard instructions on (1)
circumstantial evidence (CALJIC Nos. 2.01 [sufficiency of circumstantial
evidence-generally], 2.02 [sufficiency of circumstantial evidence to prove specific
intent], 8.83 [sufficiency of circumstantial evidence to prove the special
circumstance], and 8.83.1 [sufficiency of circumstantial evidence to prove mental
state]); (2) the definition of reasonable doubt (CALJIC Nos. 2.90); (3) motive
(CALJIC Nos. 2.51); and (4) other general principles (CALJIC Nos. 1.00
[respective duties of judge and jury], 2.21.1 [discrepancies in testimony], 2.21.2
[witness willfully false], 2.22 [weighing conflicting testimony], 2.27 [sufficiency
of testimony of one witness], 8.20 [deliberate and premeditated murder]).
Defendant claims that those instructions, singly and collectively, impermissibly
diluted the reasonable doubt standard.
       We have repeatedly rejected the same challenges to all of these instructions.
(People v. Parson (2008) 44 Cal.4th 332, 358; People v. Whisenhunt, supra, 44
Cal.4th at pp. 220-221; People v. Howard (2008) 42 Cal.4th 1000, 1025-1026 &
fn. 14; People v. Kelly (2007) 42 Cal.4th 763, 792.) Each of these instructions ―
‗is unobjectionable when, as here, it is accompanied by the usual instructions on
reasonable doubt, the presumption of innocence, and the People‘s burden of
proof.‘ ‖ (People v. Kelly, supra, 42 Cal.4th at p. 792.)




                                         60
            7. Flight instruction
        The trial court instructed the jury, pursuant to CALJIC No. 2.52, that a
person‘s flight immediately after a crime, or after he or she is accused of a crime,
cannot alone establish guilt, but may be considered together with other proven
facts in deciding the defendant‘s guilt or innocence. Defendant does not contend
that the instruction was not supported by the evidence. Rather, he claims that the
giving of this instruction violated his constitutional rights because it unnecessarily
duplicated the circumstantial evidence instructions, was impermissibly
argumentative, and improperly permitted the jury to draw irrational inferences
concerning defendant‘s mental state before or during the killing.
        Contrary to defendant‘s claim, CALJIC No. 2.52 is not a duplicate
instruction. CALJIC Nos. 2.00, 2.01, and 2.02 instructed on the definition of
circumstantial evidence and its sufficiency in establishing facts to establish guilt.
On the other hand, CALJIC No. 2.52 was a cautionary instruction that benefitted
the defense by ―admonishing the jury to circumspection regarding evidence that
might otherwise be considered decisively inculpatory.‖ (People v. Jackson (1996)
13 Cal.4th 1164, 1224.)
        Regarding the remaining claims, we repeatedly have rejected these
challenges to the instruction. (People v. Loker (2008) 44 Cal.4th 691, 706-707;
People v. Howard, supra, 42 Cal.4th at p. 1021; People v. Morgan (2007) 42
Cal.4th 593, 621; People v. Zambrano (2007) 41 Cal.4th 1082, 1160; People v.
Thornton (2007) 41 Cal.4th 391, 438; People v. Jurado (2006) 38 Cal.4th 72, 125-
126.)

            8. Failure to instruct that jurors must agree unanimously on theory of
                first degree murder
        The trial court instructed the jury on first degree premeditated murder, first
degree murder by torture, and first degree murder perpetuated by means of lying in


                                          61
wait. The court did not instruct the jury that it must agree unanimously on a
theory of first degree murder to find him guilty of that charge. Defendant argues
that this instructional omission was prejudicial error. We rejected the identical
claim in People v. Cole, supra, 33 Cal.4th 1158, where the jury was instructed on
the same theories of first degree murder as in this case. (Id. at p. 1221; see also
People v. Whisenhunt, supra, 44 Cal.4th at p. 222.) In any event, the jury
unanimously found true the torture-murder and lying-in-wait special-circumstance
allegations. Therefore, the jury unanimously agreed that defendant committed the
crime of first degree murder on both theories of torture murder and lying-in-wait
murder. (People v. Moon, supra, 37 Cal.4th at p. 22; People v. Cole, supra, 33
Cal.4th at pp. 1226-1227; see People v. Hawthorne, supra, 46 Cal.4th at pp. 89-
90.)

       D. Penalty Phase Issues

           1. Failure to give CALJIC No. 8.88
       Defendant claims that the trial court‘s failure to instruct the jury on the
process of weighing the aggravating and mitigating factors to determine the
appropriate penalty, in the language of CALJIC No. 8.88, requires reversal of the
penalty judgment. We conclude that based on the whole record including the
instructions given, arguments of counsel, and the court‘s response to the jury‘s
note during deliberations, the failure to instruct on the procedure used in
determining penalty, though error, was harmless in this case.
       After defining the meaning of aggravating and mitigating factors,8 CALJIC
No. 8.88 instructs the jury on the procedure used in weighing the aggravating and

8      Because the words ―aggravating‖ and ―mitigating‖ are commonly
understood terms, a definitional instruction is not required. (People v. Brasure,
supra, 42 Cal.4th at p. 1066.)



                                          62
mitigating circumstances in determining the appropriate penalty. It states, in
relevant part:
       ―The weighing of aggravating and mitigating circumstances does not mean
a mere mechanical counting of factors on each side of an imaginary scale, or the
arbitrary assignment of weights to any of them. You are free to assign whatever
moral or sympathetic value you deem appropriate to each and all of the various
factors you are permitted to consider. In weighing the various circumstances, you
determine under the relevant evidence which penalty is justified and appropriate
by considering the totality of the aggravating circumstances with the totality of the
mitigating circumstances. To return a judgment of death, each of you must be
persuaded that the aggravating circumstances are so substantial in comparison
with the mitigating circumstances that it warrants death instead of life without
parole.‖
       It appears that the trial court intended to give CALJIC No. 8.88, but
inadvertently omitted part of the instruction, including the above paragraph. The
record indicates that the trial court meant to divide the instruction into two parts
and to give each part separately. It gave a modified version of the second part of
CALJIC No. 8.88 as the concluding instruction, but inexplicably failed to give the
first part of the instruction.9
       CALJIC No. 8.88 was drafted in response to People v. Brown (1985) 40
Cal.3d 512 (Brown). Former CALJIC No. 8.84.2 (the predecessor to CALJIC No.

9      The trial court instructed: ―You shall now retire and select one of your
number to act as foreperson. He or she will preside over your deliberations. In
order to make a determination as to the penalty, all twelve jurors must agree. As
soon as you have agreed upon a verdict so that, when polled, each may state
truthfully that the verdict expresses his or her vote, have it dated and signed by
your foreperson and then return it to this courtroom. Return any unsigned verdict
forms.‖



                                          63
8.88) instructed, in the unadorned language of section 190.3, that the jury ―shall‖
impose a sentence of death if it concludes that the aggravating circumstances
outweigh the mitigating circumstances. Conversely, it instructed that the jury
―shall‖ impose a sentence of confinement in state prison for life without possibility
of parole if it concludes that the aggravating circumstances do not outweigh the
mitigating circumstances. (People v. Myers (1987) 43 Cal.3d 250, 273; People v.
Allen (1986) 42 Cal.3d 1222, 1276.) In Brown, we held that an instruction using
this language could confuse and mislead the jury regarding the manner in which
penalty should be determined. (Brown, supra, 40 Cal.3d at p. 544, fn. 17.) ―One
danger is that the jury will perform the weighing process in a mechanical fashion
by comparing the number of factors in aggravation with the number in mitigation,
or by the arbitrary assignment of weights to the factors. [Citation.] The other
danger is that the jury will fail to understand that our statutory scheme does not
require any juror to vote for the death penalty unless, as a result of the weighing
process, the juror personally determines that death is the appropriate penalty under
all the circumstances. [Citations.]‖ (People v. Edelbacher (1989) 47 Cal.3d 983,
1035 (Edelbacher).)
       Regarding pre-Brown cases, in which the trial court instructed in the
unadorned language of section 190.3, we stated we would examine each prior case
―on its own merits to determine whether, in context, the sentencer may have been
misled to defendant‘s prejudice about the scope of its sentencing discretion under
the 1978 law.‖ (Brown, supra, 40 Cal.3d at p. 544, fn. 17.)
       Consequently, in such pre-Brown cases, we reviewed the whole record,
including the arguments of counsel, to determine whether instructing in the
unadorned statutory language and omitting clarifying language, may have mislead
the jury to defendant‘s prejudice concerning the proper scope of its sentencing
discretion. (See e.g., Edelbacher, supra, 47 Cal.3d at p. 1037; People v. Myers,

                                         64
supra, 43 Cal.3d at p. 275 (Myers); People v. Allen, supra, 42 Cal.3d at pp. 1277-
1280 (Allen).)
       In Allen, we held that it was not likely the jury was misled about the scope
of its sentencing discretion. In making that determination, we emphasized that the
prosecutor, during argument, did nothing to mislead the jury about the weighing
process and its weighing discretion, but that ―he in fact left it with the
understanding that the value to be assigned to the aggravating and mitigating
factors was a matter to be decided by each individual juror.‖ (Allen, supra, 42
Cal.3d at p. 1278.) Also, we noted that during argument, the prosecutor never
misled the jury about its sole responsibility of determining the appropriate penalty
based on its individualized weighing discretion, but instead focused on the
appropriateness of the death penalty under all the circumstances of the case. (Id.
at pp. 1278-1280.)
       In Myers, we held that it was unlikely the jury was misled regarding the
first source of potential confusion — the nature of the weighing process —
identified in Brown. We relied on the fact that the prosecutor and defense counsel
correctly argued that the jury was free to ― ‗attach whatever weight is appropriate‘
to each of the relevant factors.‖ (Myers, supra, 43 Cal.3d at p. 275.) Regarding
the second source of potential confusion — the discretionary nature of the penalty
determination — identified in Brown, we concluded that there ―seem[ed] no
question but that the jury may well have been misled to defendant‘s prejudice.‖
(Ibid.) We noted that the prosecutor incorrectly argued that the penalty
determination was simply a weighing process, that the determination of penalty
was mandatory based on whether the aggravating or mitigating circumstances
preponderated, and that when the weighing process was completed, the jury could
not return a penalty verdict based on its personal preference. (Ibid.) In reversing
the death judgment, we further noted that ―the prosecutor‘s characterization of the

                                          65
jury‘s function . . . was not refuted or corrected by the court‘s instructions.‖ (Id. at
p. 276.)
       As in Allen and Myers, the trial court in Edelbacher instructed in the
unadorned language of section 190.3. In determining whether there was
substantial danger that the jury was misled with respect to the two sources of
potential confusion identified in Brown, we looked to the instructions given, the
arguments of counsel, and the trial court‘s failure to instruct on crucial aspects of
the penalty process. (Edelbacher, supra, 47 Cal.3d at pp. 1036-1041.)
       Regarding the nature of the weighing process, we noted that the court gave
a supplemental explanatory instruction that told the jury it was not to determine
the ultimate punishment by simply counting the number of aggravating and
mitigating circumstances on each side, but to determine their weight by their
relative convincing force. On the other hand, the court refused to instruct that the
weight to be given any factor was to be decided by each juror individually. We
concluded that ―on the whole,‖ the arguments of counsel were ―not seriously
misleading‖ because the prosecutor and defense counsel correctly stated in
argument that the weighing process was qualitative and that the sheer number of
factors in aggravation or mitigation was not determinative. (Edelbacher, supra, 47
Cal.3d at p.1036.)
       Regarding the discretionary nature of the penalty determination within the
context of the weighing process, we noted that the trial court did not inform the
jury that its responsibility, based on its individualized weighing discretion, was to
determine the appropriate penalty or that the weight to be given any factor was to
be decided by each juror individually. (Edelbacher, supra, 47 Cal.3d at pp. 1036-
1037.) We stated that, ―The failure to give any sufficient clarifying instruction on
this crucial aspect of the penalty determination process requires us to examine the
whole record, including the arguments of counsel, to determine whether the jury

                                          66
may have been misled to defendant‘s prejudice concerning the proper scope of its
sentencing discretion.‖ (Edelbacher, supra, 47 Cal.3d at p. 1037.)
       We noted that during argument, the prosecutor repeatedly emphasized that
the determination was simply a weighing process and that a death sentence was
mandatory if aggravating circumstances preponderated, without reference to the
jury‘s view of the appropriateness of the penalty. Although defense counsel
stressed the individualized and moral or normative nature of the penalty decision
(Edelbacher, supra, 47 Cal.3d at pp. 1037-1040), we reasoned that ―[t]he
prosecutor and defense counsel, through their arguments, constructed starkly
different models of the sentencing process‖ and there was ―no way of knowing
which model the jurors adopted in reaching their penalty verdict.‖ (Id. at p. 1040.)
Thus, there was a substantial danger the jury was misled with respect to the proper
context of the weighing process and the discretionary nature of the penalty
determination. (Id. at p. 1036.)
       In People v. Brasure, supra, 42 Cal.4th 1037 (a post-Brown case), the trial
court substituted its own instruction for CALJIC No. 8.88. It told the jury it
― ‗shall impose a sentence of death if the jury concludes that the aggravating
circumstances outweigh the mitigating circumstances‘ ‖ and ―omitted the
language of CALJIC No. 8.88 providing that to return a death verdict each juror
‗must be persuaded that the aggravating circumstances are so substantial in
comparison with the mitigating circumstances that it warrants death instead of life
without parole.‘ ‖ (People v. Brasure, supra, 42 Cal.4th at pp. 1060-1061.)
       After considering the totality of the instructions and arguments, we
concluded that there was no reasonable likelihood the trial court's failure to
instruct as directed in Brown misled the jurors as to the scope of their sentencing
discretion or responsibility. (People v. Brasure, supra, 42 Cal.4th at pp. 1062,
1064-1065.)

                                         67
       Unlike the above cases, the trial court here did not give a confusing or
misleading instruction, but failed to instruct the jury at all on the procedure used in
determining penalty. (See Henderson v. Kibbe (1977) 431 U.S. 145, 155 [―[a]n
omission, or an incomplete instruction, is less likely to be prejudicial than a
misstatement of the law‖].) However, after considering the instructions given, the
arguments of counsel, and the court‘s response to the jury‘s note during
deliberations, we conclude that the court‘s failure to instruct in the pertinent
language of CALJIC No. 8.88 did not mislead the jury or leave it without adequate
guidance as to the scope of their sentencing discretion or responsibility. (People v.
Brasure, supra, 42 Cal.4th at pp. 1062, 1064-1065; cf. People v. Moon, supra, 37
Cal.4th at p. 39 [omission of evidentiary instructions at penalty phase, though
error, was harmless; defendant failed to demonstrate that instructions given, to a
reasonable likelihood, precluded jury from considering any constitutionally
relevant mitigating evidence].)
       Before the court instructed the jury, the parties gave their closing
arguments. Neither party objected to the opposing party‘s comments on the
procedure used in determining the appropriate penalty. During argument, the
prosecutor never suggested that the weighing process was a mechanical,
quantitative process, but instead told the jury it involved a qualitative process,
allowing each juror the choice to assign any moral or sympathetic value to each of
the factors. In this regard, the prosecutor argued:
       ―In this phase, you must consider any sympathetic aspect of the defendant‘s
character or anything else that he has coming to him for mitigation. You must
consider that and weigh it. That‘s only fair. So go ahead and do that.‖
       The prosecutor further stated:
       ―If [defendant] deserves any sympathy, again, then give it to him. If he is
sincere about finding God, then good for him. But what he has done is simply not

                                          68
sufficient to override — I‘m sorry — what he feels about sympathy is simply not
sufficient to override all this horrible stuff he‘s done here. The aggravating factors
clearly and substantially outweigh any of that.
       ―And none of you, in your jury questionnaires, said ‗Well, you know, I
don‘t care what a guy‘s done or how bad it is, as long as he says he‘s sorry. If he
says he‘s sorry, then I‘ll give him a pass. I‘ll let him have LWOP.‘ None of you
said that. And you shouldn‘t, of course. I mean, you take it into account, but
you‘re supposed to weigh it. If the aggravating circumstances outweighs
mitigating, that‘s what you do.
       ―His soul may belong to God, but under our law, his life belongs to the
State because of our system of justice, which requires that you weigh and consider
both. And if the aggravating substantially outweighs the mitigating, death penalty.
That‘s the way our law is. And that‘s what you must follow.‖
       Defense counsel reinforced that the weighing function was a qualitative
assessment, explaining: ―Now you are free to assign your own sympathetic or
moral value to each one of these factors. The law doesn‘t — doesn‘t require you
to set certain values. You do this on your own values.‖
       Moreover, unlike Myers and Edelbacher, the prosecutor never suggested
that a death sentence was mandatory if aggravating circumstances simply
preponderated, but instead conveyed that the penalty determination was
discretionary and rested on the jury‘s view of the appropriateness of the penalty.
He stated:
       ―In this case we‘re asking a very serious decision be made here. And I‘m
fully aware of how serious it is and what I‘m asking you to do. I‘m asking you to
give [defendant] the death penalty. And the way I‘m asking you to arrive at that
decision, which I believe to be the just decision, is to engage in a weighing
process.

                                         69
       ―The judge is going to instruct you that what you need to do is to weigh all
these various aggravating and mitigating factors that we kind of touched upon in
the first part of the trial. And the notion is that you must weigh all of this together.
And if the aggravating factors, particularly A, B, and C, which I‘ll get to in a
second, if they substantially outweigh the mitigating factors and you believe that‘s
the proper verdict, then you should vote for the death penalty. And that‘s what
we‘re asking you to do here.‖10 (Italics added.)
       As with the prosecutor, defense counsel reiterated the applicable standard
as set forth in CALIC No. 8.88. He told the jury that ―to return a judgment of
death, each of you must be persuaded that the aggravating circumstances . . . are
so substantial in comparison to the mitigating circumstances it warrants death
instead of life without possibility of parole. So the factors in aggravation have to
be so substantial in your mind in comparison to the mitigating factors that you are
going to kill this man.‖

10      Defendant claims that the prosecutor improperly argued that if the
aggravating circumstances outweighed the mitigating circumstances, death was
mandatory. He points to the following passage in which the prosecutor argued:
―The law says we give the death penalty where the aggravating factors
substantially outweigh the mitigating factors in a given case. That means there‘s a
line, a line you just don‘t cross. And if you cross that line, if you go over that line,
you go too far, then you‘ve done a crime that requires the death penalty. [¶] And
you need to ask yourselves and ask your hearts, is this the kind of crime that is so
heinous, so wicked, so mean spirited that it requires the death penalty? Even if
you find some sympathy for [defendant] for one reason or another, your job is to
act as the conscience of the community and to exercise your own conscience and
say, ‗I‘m sorry, [defendant]. I might feel sorry for you for this reason or that, but
you crossed the line, you went too far. You committed this most heinous of
murders.‖
        When taken in context, the prosecutor was simply arguing that once the
floor has been established, where the aggravating factors substantially outweigh
the mitigating ones, the death penalty was the appropriate penalty in light of the
circumstances of the crime.



                                          70
       Also, defense counsel clarified even further the individualized and moral or
normative nature of both the weighing process and the ultimate, penalty
determination. He emphasized that the jury could apply sympathy or moral values
to specifically designated factors, stating ―[y]ou could apply some value to it,
sympathy or moral value of your own. You own feelings, not somebody else‘s.‖
(Italics added.) Counsel further emphasized that the final decision regarding
penalty was an individual one: ―[y]ou have to decide whether or not he lives or
dies. That has to come from you. You have to apply your sympathetic and moral
values that you have on your own.‖
       Defense counsel concluded his argument with the final remarks:
       ―When you go back there and decide and think of this and look at this,
remember that the letter of the law allows you as an individual, as a person, to
decide whether or not you are going to accept a factor or you are going to apply
some less value to one factor than you will the other factor. That is you, as
individuals, must do that in your own conscience, your own way.
       ―We need each and every one of your decisions, your judgment. We need
for you to go in there and talk and discuss it with each other and not get angry with
each other, and discuss it with each other, so that you can come to a reasonable
verdict. Whatever the law requires. We need for you to listen to the others when
the others are against you or for the people that are against one or two persons.
Listen. The one or two persons, maybe they might have something to offer. But
whatever it is, we need each and every one of you individually to come up with a
decision.‖
       The trial court then instructed that the jury was to determine which penalty
to impose, death or confinement in the state prison for life without possibility of
parole, and that the ―law expressly states that it voices no opinion as to which
penalty is preferred.‖ It instructed, in the language of CALJIC No. 8.85, that ―[i]n

                                         71
determining which penalty is to be imposed on defendant, you shall consider all of
the evidence which has been received during any part of the trial of this case.‖
The court further enumerated various factors in aggravation and mitigation and
instructed that the jury ―shall consider, take into account and be guided by [those]
factors, if applicable.‖ (Ibid.) One of those factors told the jury to consider ―[a]ny
other circumstance which extenuates the gravity of the crime even though it is not
a legal excuse for the crime and any sympathetic or other aspect of the defendant‘s
character or record that the defendant offers as a basis for a sentence less than
death, whether or not related to the offense for which he is on trial.‖ (Ibid.; see
§ 190.3, factor (k).)
       Regarding another factor, other criminal activity involving the use of,
attempted use of, or threat to use force or violence (§ 190.3, factor (b)), the trial
court instructed in the language of CALJIC No. 8.87, that ―[i]t is not necessary for
all jurors to agree. If any individual juror is convinced beyond a reasonable doubt
that the criminal activity occurred, that juror may consider that activity as a fact in
aggravation. If a juror is not so convinced, that juror must not consider that
evidence for any purpose.‖ (Italics added.)
       The trial court further instructed that the People and the defendant ―have a
right to expect that you will . . . exercise your discretion conscientiously, and reach
a just verdict,‖ and ―are entitled to the individual opinion of each juror,‖ and that
―[e]ach of you must decide the case for yourself.‖
       Thus, the instructions informed the jurors that the penalty verdict was an
individual, discretionary decision, and that as to at least one factor, each juror was
to determine individually whether that factor was an aggravating circumstance.11

11     Defendant contends that the trial court erred in informing the jury there had
been a prior penalty phase trial because it was reasonably likely that the jurors
                                                             (footnote continued on next page)


                                           72
        Most telling were the events that occurred during deliberations. After
deliberating for approximately six and a half hours, the jury sent the following
note to the trial court:
        ―Assume the aggravating circumstances in the case, as stated in 8.85,
significantly outway [sic] the mitigating circumstances, may we still select life
without the possibility of parole?
        ―Is the opinion of the juror(s) that the circumstances presented in this case
do not meet the minimum standards for the sentence of death allowed as a
mitigating circumstance?‖
        The trial court responded: ―Under the law you are permitted to reach any
verdict you wish as to the appropriate penalty.‖
        The note‘s first question strongly indicates that despite the omission of the
portion of CALJIC No. 8.88 at issue, the jury understood its duty to engage in a
weighing process. It further indicates that the jury‘s deliberations were guided by
the ―so substantial‖ standard by which it was to weigh the aggravating and
mitigating circumstances. Indeed, because the word ―significantly‖ has a
qualitative connotation, the jury‘s use of that word further suggests it was aware of
the normative nature of the weighing process.
        Defense counsel did not object to the trial court‘s response, indicating
counsel believed it was a correct statement of the law. Although the trial court


(footnote continued from previous page)

would believe another jury would decide the penalty after them and thus, lessen
their sense of responsibility. During voir dire, the trial court informed the
prospective jurors about the prior penalty trial to determine whether they had been
exposed to any publicity about that trial. Because the court explained that a
decision had not been made at the previous penalty trial, defendant‘s supposition
appears unlikely.



                                          73
should have responded with the giving of CALJIC No. 8.88, nevertheless, it
reaffirmed that it was within the jury‘s discretion to arrive at the appropriate
penalty. The court‘s response correctly informed the jurors that even after they
engaged in the weighing process, they had the discretion to vote for life without
possibility of parole.
       Defendant argues that the note‘s second question shows that certain jurors
did not believe that death was the appropriate penalty, but were unsure whether
this merely constituted a mitigating circumstance that should be weighed against
aggravating circumstances or whether their belief that death was not the
appropriate penalty was sufficient to vote for life even if aggravation outweighed
mitigation. However, as the Attorney General argues, defendant reads too much
into the question. The note could also be interpreted as asking whether the
absence of an aggravating circumstance is a mitigating circumstance. (Cf. People
v. Jackson, supra, 45 Cal.4th at p. 695 [trial court not required to instruct that the
absence of a mitigating factor is not aggravating].)
       Twenty-two minutes after the trial court sent its response to the jury, the
jury sent another note stating, ―We cannot all come to a verdict. No unanimous
verdict.‖ The trial court informed the jurors that it would not be in session on
Friday or the following Monday and directed them to return the following Tuesday
after a four-day break. The jury resumed deliberations on Tuesday morning and
reached a verdict that afternoon.
       As the Attorney General argues, the jury‘s deadlock indicates that the jury
understood they could vote for life without parole even under the circumstances
presented in the note, i.e., where the aggravating circumstances substantially
outweighed the mitigating circumstances or as defendant argues, where one or
more jurors felt the case did not meet the minimum standards for death. The
jury‘s deadlock further shows that at least one juror chose to exercise his or her

                                          74
discretion to vote for life without parole, as permitted by the court‘s response to
the jury‘s note. It was only after further deliberations that the jury unanimously
agreed death was the appropriate verdict. When polled by the court, each juror
answered that the death verdict was his or her ―personal verdict.‖
       Accordingly, after considering the instructions given, the arguments of
counsel, the jury‘s note and the trial court‘s response, and the subsequent events
suggesting the jury was aware of its proper role in weighing the aggravating and
mitigating circumstances, we conclude that there was no reasonable likelihood the
trial court's failure to instruct in the relevant language of CALJIC No. 8.88 misled
the jurors or left them without adequate guidance as to the scope of their
sentencing discretion or responsibility.12

            2. Admission of Photographs and Tape Recording of Victim in the
                Ambulance
       Defendant claims that admission of two photographs showing injuries to
the victim and the tape recording of the victim‘s screams during the ambulance
ride to the hospital violated Evidence Code section 352 and his federal
constitutional rights. The trial court did not abuse its discretion in admitting the
evidence.

12     The trial court further erred in instructing, pursuant to CALJIC No. 1.00,
that ―[b]oth the People and the Defendant have a right to expect that you will
conscientiously consider and weigh the evidence, apply the law, and reach a just
verdict regardless of the consequences.‖ This instruction applies only to guilt and
should not be given in the penalty phase of trial because it has the potential to
diminish the jury‘s responsibility for the penalty decision. (People v. Ray (1996)
13 Cal.4th 313, 354; People v. Jennings (1988) 46 Cal.3d 963, 991.) For the same
reasons omission of CALJIC No. 8.88 was not prejudicial, there was no
reasonable likelihood the jurors would have understood that the single,
inapplicable phrase reduced their responsibility for choosing the appropriate
consequence of life without parole or death. (People v. Kipp (1998) 18 Cal.4th
349, 380; People v. Babbit (1988) 45 Cal.3d 660, 717-719.)



                                          75
       Before the penalty retrial, defense counsel moved to exclude photographs
of the victim‘s injuries and the ambulance recording as irrelevant. Counsel argued
that defendant had already been convicted of committing murder by torture at the
guilt phase and that the only purpose for admitting the photographs and ambulance
tape would be to inflame the jury. The prosecutor argued that the evidence was
relevant to show the circumstances of the crime (§ 190.3, factor (a)) and was
particularly important to the jury‘s understanding of the nature and extent of
Yolanda‘s injuries since this was not the same jury that had heard the guilt phase
evidence. The prosecutor further argued that the ambulance tape was relevant as
victim impact evidence. Defense counsel responded that the proffered evidence
did not show the circumstances of the crime, only occurrences ―after the fact.‖
The trial court admitted two of the photographs and the ambulance tape as factor
(a) evidence and as victim impact evidence. It expressly determined that the
probative value of the evidence outweighed its prejudicial effect.
       As stated previously, the photographs and ambulance tape were highly
relevant to the issues relating to torture murder and the torture special
circumstance. (See ante, at pp. 34-40.) Thus, the trial court correctly admitted the
evidence to show the circumstances of the crime (§ 190.3, factor (a)). Also, the
court properly admitted the evidence as victim impact evidence to show the
immediate impact of the crime on the victim and on the children who witnessed
their mother or aunt burning and in pain. (See People v. Hawthorne, supra, 46
Cal.4th at pp. 101-103.)
       Given the relevance of the photographs and the ambulance tape, the trial
court did not abuse its broad discretion in concluding the evidence was more
probative than prejudicial. (People v. Hawthorne, supra, 46 Cal.4th at p. 103.)
Having concluded there was no error and no prejudice, we also reject defendant‘s
federal constitutional claims. (Ibid.)

                                          76
             3. Lingering Doubt
         Defendant claims the trial court: (1) improperly instructed that the jury
must accept the previous jury‘s verdicts as having been proved beyond a
reasonable doubt and (2) improperly refused his proposed instructions on the
elements of the crimes and the concept of lingering doubt. He contends that his
federal and state constitutional rights were violated because the court‘s rulings
removed his lingering doubt defense from the jury‘s consideration. There was no
error.
         During the instructional conference, the trial court stated it intended to give
the prosecution‘s proposed instruction which stated: ―You must accept the
previous jury‘s verdicts as having been proved beyond a reasonable doubt.‖
Defendant asked the court to instruct on the elements of the offenses and special
circumstances, and on the concept of lingering doubt. The court refused to give
both requested instructions. It reasoned that those elements were not relevant
since the issue of defendant‘s guilt and the truth of the special circumstances had
already been determined by the previous jury. The court further reasoned that
lingering doubt was a proper subject for argument, but not for instruction and that
the proposed instruction was inappropriate because it was addressed to jurors who
voted for conviction at the guilt phase.
         The trial court properly instructed the jury that the penalty phase jury must
conclusively accept the previous guilt phase jury‘s findings on defendant‘s guilt
and on the truth of the special-circumstance allegations. (People v. Harrison
(2005) 35 Cal.4th 208, 256; see also People v. Gay (2008) 42 Cal.4th 1195, 1223
[defendant may not contest legality of prior guilt phase jury‘s adjudication of
guilt]); People v. DeSantis (1992) 2 Cal.4th 1198, 1237-1238 [same].) The court‘s
instruction did not remove the question of lingering doubt from the jury, but only
told it the truth: that in the penalty phase defendant‘s guilt was conclusively


                                           77
presumed as a matter of law. (People v. DeSantis, supra, 2 Cal.4th at p. 1238.)
Because the penalty jury could not relitigate defendant‘s guilt and the truth of the
special-circumstance allegations, the trial court correctly refused to instruct on the
elements of the offenses and special circumstances.
       Although it is proper for the penalty jury to consider lingering doubt, there
is no constitutional right to instructions on lingering doubt. (People v. Hamilton
(2009) 45 Cal.4th 863, 948; People v. Brown (2003) 31 Cal.4th 518, 567.) ―
‗Instructions to consider the circumstances of the crime (§ 190.3, factor (a)) and
any other circumstance extenuating the gravity of the crime (id., factor (k)),
together with defense argument highlighting the question of lingering or residual
doubt, suffice to properly put the question before the penalty jury.‘ ‖ (People v.
Hamilton, supra, 45 Cal.4th at p. 948.)
       The court here instructed the jury to consider the circumstances of the
crime and any other circumstances extenuating the gravity of the crime.
Defendant presented extensive evidence of lingering doubt as to his state of mind
at the time he committed the crime, which was the only disputed issue open to
lingering doubt. (Compare with People v. Gay, supra, 42 Cal.4th at pp. 1223-
1226 [prejudicial error to exclude lingering doubt evidence contesting defendant‘s
guilt as shooter when coupled with court‘s instruction to jury to disregard defense
counsel‘s opening statement that it would hear lingering doubt evidence and
instruction on conclusiveness of prior guilt jury‘s findings].) Defense counsel
extensively argued lingering doubt during opening and closing arguments, in
which he urged the jury to reconsider defendant‘s guilt and his state of mind.
Thus, contrary to defendant‘s claim, the trial court‘s rulings did not remove the
concept of lingering doubt from the jury‘s consideration.




                                          78
           4. CALJIC No. 8.87
       In connection with defendant‘s threats against the victim‘s siblings during
his search for his family, the trial court instructed the jury with CALJIC No. 8.87,
the standard instruction for considering other criminal activity under section 190.3,
factor (b). Defendant argues that the instruction‘s reference to ―the criminal act
which involved the express or implied use of force or violence or the threats of
force or violence‖ removed from the jury the issue whether defendant‘s acts
involved the use or threat of force or violence and improperly directed the jury to
find that the other crimes involved force or violence.
       Initially, we reject the Attorney General‘s argument that the issue is
forfeited because defendant failed to object at trial to the instruction. (People v.
D‘Arcy, supra, 48 Cal.4th at p. 302; People v. Gray (2005) 37 Cal.4th 168, 235.)
       On the merits, we have repeatedly rejected defendant‘s claim. CALJIC No.
8.87‘s ― ‗characterization of other crimes as involving express or implied use of
force or violence, or the threat thereof, is a legal question properly decided by the
court.‘ ‖ People v. Burney (2009) 47 Cal.4th 203, 259; People v. Loker, supra, 44
Cal.4th at p. 745.)

           5. Misdemeanor Conviction as an Aggravating Circumstance
       Defendant contends that the trial court committed prejudicial error in
instructing the jury it could consider his prior misdemeanor conviction under
section 190.3, factor (c). Although we agree that the instruction was error, we find
that it was not prejudicial.
       The jury was instructed that: ―Evidence has been introduced for the purpose
of showing that the defendant has been convicted of the crimes of assault with a
firearm, a violation of Penal Code section 245(a)(2), and shooting at an inhabited
dwelling, Penal Code section 246, a misdemeanor, prior to the offense of murder
in the first degree of which he has been found guilty in this case. [¶] Before you


                                          79
may consider any of such crimes as an aggravating circumstance in this case, you
must first be satisfied beyond a reasonable doubt that the defendant was, in fact,
convicted of the prior crimes.‖ (CALJIC No. 8.86.)
       A misdemeanor conviction may not be introduced in aggravation. (People
v. Osband (1996) 13 Cal.4th 622, 735; People v. Montiel (1993) 5 Cal.4th 877,
936.) Despite the erroneous instruction, the prosecutor and defense counsel,
during argument, correctly referred only to the prior felony assault conviction as
section 190.3, factor (c) evidence. Here, the error was harmless because the jury
could properly consider under section 190.3, factor (b), the violent criminal
conduct underlying the misdemeanor offense, i.e., shooting into a house with
adults and children inside. (People v. Bunyard (2009) 45 Cal.4th 836, 857
[§ 190.3, factor (b) applies to misdemeanor violent activity as well as felony
activity]; People v. Ashmus (1991) 54 Cal.3d 932, 983-984 [evidentiary and
instructional error allowing jury to consider subsequent felony conviction under
§ 190.3, factor (c) harmless; underlying violent criminal conduct properly
admitted under § 190.3, factor (b)].) The danger that the jury would assign
significant additional aggravating weight to the fact of conviction was minimal.
(People v. Montiel, supra, 5 Cal.4th at p. 936.)

           6. Challenges to the Death Penalty Law
       Defendant challenges California‘s death penalty law for reasons previously
rejected by this court in other cases. He raises no basis for reconsideration of
these rulings.
       ―Specifically, the death penalty law adequately narrows the class of death-
eligible defendants.‖ (People v. Hawthorne, supra, 46 Cal.4th at p. 104.) Section
190.3, factor (a), is not applied in such a ―wanton and freakish‖ manner that it
results in the arbitrary and capricious imposition of the death penalty in violation



                                         80
of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution. (People v. Mendoza (2011) 52 Cal.4th 1056, 1096.) ― ‗ ―The jury
need not make written findings, or achieve unanimity as to specific aggravating
circumstances, or find beyond a reasonable doubt that an aggravating
circumstance is proved (except for other crimes), that aggravating circumstances
outweigh mitigating circumstances, or that death is the appropriate penalty.
[Citations.] The death penalty statute is not unconstitutional for failing to provide
the jury with instructions of the burden of proof and standard of proof for finding
aggravating and mitigating circumstances in reaching a penalty determination.‖ ‘ ‖
(People v. Hawthorne, supra, 46 Cal.4th at p. 104.) Moreover, jury unanimity is
not required with regard to unadjudicated criminal activity. (People v. Dykes
(2009) 46 Cal.4th 731, 799.) The trial court was not required to instruct the jury
that there is no burden of proof at the penalty phase, and that the beyond-a-
reasonable-doubt standard and requirement of jury unanimity do not apply to
mitigating factors. (People v. Mendoza, supra, 52 Cal.4th at pp. 1096-1097.)
Defendant was not entitled to an instruction regarding a presumption of life.
(People v. McKinnon (2011) 52 Cal.4th 610, 698.) The use of such adjectives in
the sentencing factors statute as ―extreme‖ (§ 190.3, factors (d) & (g)), and
―substantial‖ (§ 190.3, factor (g)) is constitutional. (People v. Mendoza, supra, 52
Cal.4th at p. 1098.) A trial court is not required to delete inapplicable sentencing
factors or to instruct that statutory mitigating factors are relevant solely as
potential mitigators. (Id. at p.1097.) Intercase proportionality review is not
constitutionally required. (People v. McKinnon, supra, 52 Cal.4th at p. 698.)
Equal protection principles do not require the same procedural safeguards that
apply to sentencing determinations in noncapital trials. (People v. Clark, supra,
52 Cal.4th at p. 1008.) Finally, defendant‘s sentence does not violate international
law, ―as no authority ‗prohibit[s] a sentence of death rendered in accordance with

                                           81
state and federal constitutional and statutory requirements.‘ ‖ (People v.
McKinnon, supra, 52 Cal.4th at p. 698.)

           7. Cumulative Prejudice in Guilt and Penalty Phases
       Defendant contends that the cumulative prejudicial effect of the errors in
both the guilt and penalty phases mandates reversal of his conviction and sentence
of death. We have rejected nearly all of defendant‘s claims of error. Where we
have found error, we have determined defendant was not prejudiced. Whether
such claims are considered individually or together, we find no prejudicial error at
either phase of the proceedings.

                                   DISPOSITION

       We affirm the judgment.


                                                        CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, 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. Streeter
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

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Opinion No. S078027
Date Filed: June 7, 2012
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Court: Superior
County: San Bernardino
Judge: Bob N. Krug

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Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Andrew S. Love,
Deputy State Public Defender, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala G. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary S. Schons, Assistant Attorney General, Annie Featherman Fraser and Melissa
Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Andrew S. Love
Deputy State Public Defender
221 Main street, 10th Floor
San Francisco, CA 94105
(415) 904-5600

Melissa Mandel
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2211
