People v. Zambrano

July S035368. [No. 2007.] PEOPLE,

THE Plaintiff and Respondent, ZAMBRANO,

ENRIQUE Defendant and Appellant.

Counsel Court; Law Offices of R. under Supreme Robert Bryan, appointment Defendant and Jill Gilbert Pamala Sayasane Robert R. Bryan, Appellant. Jr., General, Brown, Robert R. Attorneys and Edmund G.

Bill Lockyer Bass, General, A. Assistant Anderson, Ronald Chief Assistant Attorney General, Attorneys and Martin S. Kaye, Deputy Ronald S. Matthias Attorney General, for Plaintiff Respondent.

Opinion crimes, three defendant with BAXTER, J. charged information An Code, 21a, (Pen. and Barbara Mishell §§ murders of Robert the attempted 187, 189). (§§ As to murder of Luis 187),1 Reyna and the first degree murders, bodily injury defendant inflicted great it was that alleged attempted 1203.075, (§ 12022.7) deadly weapon and used a (§§ dangerous murder, circumstance of (b)). alleged special to the the information subd. As 190.2, (a)(10)) allegations and included further (§ subd. witness killing the of (§ 1203.075) and committed bodily injury inflicted great 12022.1). (§ free on bail fense while defendant, a member indicated that evidence

The prosecution’s Mishells, Commission, a University bludgeoned Waterfront Berkeley wife, had made they he believed and his because California professor affair. The evidence his extramarital calls exposing anonymous telephone a fellow waterfront then shot fatally Reyna, that defendant further indicated him in the Mishell commissioner, testifying against from Reyna prevent matter. Mishells, He admitted but claimed provocation. attacking

Defendant that, admitted Defendant was an accident. death Reyna’s asserted are to the Penal Code. statutory unlabeled references All further homicide, dismembered, cover and scattered up Reyna’s decapitated, then fled to Mexico with his body, girlfriend. convicted defendant of all and found true all the jury charges

additional the information. After allegations hearing aggravating verdict, evidence at the returned a death mitigating penalty phase, which the trial court declined to This is automatic. We will modify. appeal affirm the in full. judgment

I. FACTS A. Guilt evidence

1. The Mishell assaults and their aftermath 31, 1988, On (Robert), Robert January Mishell an immunology professor Barbara, University California in and wife Berkeley a high-ranking technician who managed Robert’s were laboratory, brutally bludgeoned their home. Berkeley Robert sustained two skull fractures and 12 depressed recovered, head lacerations. His were injuries but he life-threatening, largely he suffered though could not continue memory problems, and took a teaching, retirement. He disability suffered from amnesia and did not posttraumatic remember that occurred everything before the assault. head,

Barbara received six distinct blows to the resulting compound skull fractures and brain Her rendered damage. injuries her severely trial, disabled. At the time permanently as a result of the to her damage brain, erratic, she remained behaviorally she still could not speak. evidence,

The trial defendant’s own including testimony, conclusively established defendant as the of the assaults. The perpetrator prosecution’s evidence was as follows:

Defendant, contractor, had done work remodeling on Mishells’ home. Robert and defendant shared an interest in but the had no Mishells computers, other social with defendant. knew of his relationship They nothing personal life. 1987, defendant, man,

In a married an July affair with Celebration began 1987, defendant, Oberman. In members of his September family, Oberman began receiving anonymous calls that the affair. telephone exposed Defendant was by the calls and someone was upset trying break suspected Nonetheless, he up marriage. continued to see Oberman.

Defendant told Luis a fellow member of the Reyna, Waterfront Berkeley Commission, others, said, about the calls. defendant he Among suspected who, claimed, wife was in love with him. Berkeley professor’s Ultimately, this the calls to had traced investigator indicated that a private defendant the authorities. take his information advised defendant to Reyna couple. “his once, however, the matter said he would handle defendant More than way.” a.m., 31, 1988, around 11:00 Sunday morning, January

On on the He and Robert chatted at the Mishell residence. unexpectedly appeared inside, deck, drank them. All three then went Barbara joined where pool defendant into coffee, Robert took and talked At some point, politics. trial, recalled that At Robert his new computer. room to demonstrate dining him, he had with brought next to a toolbox defendant was behind standing him. hours in bed several remembered was waking up

The next Robert thing He found her on He for his wife. looked bleeding. later. His head unconscious, floor, He called police. and unresponsive. kitchen bleeding, after Robert’s within minutes Emberton arrived Police Officer Berkeley Barbara was but able to speak. dazed and bleeding, call. Robert was floor, all around. Robert blood coagulated on the kitchen with unconscious to his injuries, of the events leading to Emberton his recollection recounted him. belt or toolbox with utility defendant had but did not mention that were fingerprints forced Defendant’s entry. house showed no signs kitchen, in the kitchen and on a book coffee in the mug found on a half-full the book the before. day Robert had room. dining purchased they 31. When January home on the night went to defendant’s Officers Mishells, he left the an assault against were investigating told him they return, had lawyer he said his call. his to make a telephone Upon room nonetheless, he had not been at claiming He him not to speak. spoke advised defendant to name a possible suspect, in two weeks. Asked the Mishell home said, whom, Mishells owed a defendant another contractor mentioned lot of money. that, after said defendant day, movements for

Asked to recount his a.m., Marina Berkeley he went to the at 11:00 his daughter off dropping Then, there. working who was to Dave Shelley, 11:30 and around spoke Defend- Bowl. said, home to watch Super he went to Reyna’s defendant athletic mentioned wearing, specifically he was described the clothes ant shoes. 11:30 a.m. between Marina sometime Berkeley did arrive at the

Defendant about defendant stayed to Shelley, 31. January According on and 12:30 p.m. Roberts, call and wrote a note to Chuck 45 minutes. He made a telephone an item. The note agenda Waterfront Commission’s about secretary, Berkeley written—noon. Defendant included a notation of the ostensible time it was note and send it to him. later called and asked to make a Shelley copy did so. Shelley he came to work the next day. According

Roberts found the note when before, Roberts, him To defendant never remorse or about Mishell Reyna, regret expressed with another assaults. Defendant said he was he was only sorry caught woman, and was just protecting family. the authorities that defendant had did not advise

Reyna immediately Moreover, he did with defendant’s confessed to him. initially comply request called him on 31. that he lie to the about when defendant police January fearful, confused, testified that he was distraught, Members of Reyna’s family in turmoil whether he tell what he knew. and about should 5, 1988, on a statement to the Ultimately, Reyna April gave taped police. Thereafter, defendant wrote Reyna Defendant was arrested two later. days assaults, about the letters from to lie for defendant Mishell jail, urging Reyna and to recant his statement. police

Defendant enlisted Oberman in efforts to his own defense team persuade At Oberman told a defense falsely his innocence. defendant’s request, on she met defendant at the Marina at 11:00 a.m. investigator Berkeley information, 31. She additional false gave investigator supplied January debt, defendant, thus had with defendant over and by Reyna angry a motive to fabricate defendant’s confession. Oberman also told the investiga- tor, deck that she was under defendant’s on again falsely, hiding February when defendant told he had assaulted the Mishells. Reyna supposedly who on Robert and Barbara after the

The surgeons operated, respectively, assaults both testified that the victims’ head were inflicted blunt injuries instrument like the head of a hammer. Reyna

2. The murder Luis its aftermath case, 15, 1988, he On defendant made bail in the Mishell assault July left his home July Reyna was released from On the custody. morning with defendant and was never seen alive. On again July for meeting and dismembered was found in an isolated location body Reyna’s decapitated near the Reservoir. Lafayette evidence linked defendant to death. sister Reyna’s Reyna’s

Overwhelming that, Reyna testified on the before his evening disappearance, Yolanda call, she overheard Reyna say received a call from defendant. During and intended to tell the truth. was not afraid of defendant late, he would be told say Reyna The next after work morning, calling defendant around the comer. who Reyna, his mother he was to meet going wallet, behind his car keys, did not own a then gun, departed, leaving contacted the automobile. He never returned. His family police. track was found at a Area Bay

Around 4:00 defendant’s p.m. July station, and its bench seat missing. Transit its interior bloodstained Rapid it had been hosed or washed in the track’s interior indicated Water residue the track the afternoon. had seen the bench seat in previous out. Oberman 20, a defendant handed Oberman together, On while were July they riding 21, making a did On after July and told her to throw it in sewer. She so. gun absence, flew to San Diego financial for an extended the couple arrangements entered Mexico. Meanwhile, 19, hills came a human a hiker in the July Lafayette upon hands, torso, 26, was human head and missing hand. On an unclothed July The torso was identi- found at a hills location. Lafayette positively separate the torso’s handless fied as and the severed hand matched Reyna’s, perfectly 28, ax, left arm. On items of an and a saw were found near clothing, July where the had lain. A witness who had done constmction work with body ax, as defendant’s. defendant identified the a somewhat rare type, An indicated that had been dead for several before autopsy Reyna days dismemberment, the body found. body Except decapitation showed no external or internal of human-inflicted trauma. A cause of signs the head and death could not be determined. Forensic opined experts blows, hands had been severed incisive and that to certain by damage sharp, of the severed bones was consistent with the use of a saw. skull,

In March a identified as was found near Reyna’s, positively later, Herrmann, where the had been discovered. Four Dr. body years neck vertebrae examined skull. He that the severed pathologist, opined had been cut either or more based on small in ridges sharp object, likely, bone, by saw. its lower skull showed no other Though missing jaw, trauma, such as a wound. sign gunshot

After defendant and in various locations in July Oberman stayed Mexico. obtained false In They they identification papers. September Thereafter, a residence in Mexico. Oberman returned to California. bought Palm She worked in La Jolla and to earn for their mutual money Springs support. Mexico, argued

In while on a visit to Oberman February surprise with defendant over his affair with another woman. During argument, killed was not Defendant sorry. confessed Reyna, recounted the He in his truck on the following: Reyna morning picked up 18, 1988, told again and drove to a hills. July Reyna park Reyna defendant he not recant his statement in the Mishell case. Reyna would police also called Oberman a whore. Defendant retrieved a from the toolbox gun seat, in the the rear of the vehicle and shot who was Reyna, sitting passenger in the temple. insistence, At her

In March Oberman returned to Palm Springs. 11, 1989, FBI arrested him there agents defendant followed. On September arrest, while he was with Oberman. his defendant said to driving Upon Oberman, “don’t tell them anything.” 6, 1992,

In a letter to Oberman from defendant said jail, July postmarked her, cover, he tell under he would what separate “expect[ed] [her] letter, remember” if she was called as a trial witness. A second postmarked date, in which a the same set forth a version of death Reyna’s Reyna pulled off a fatal head which went wound gun, during struggle, inflicting The letter recited because that had Reyna. dumped Reyna’s body him, and he both he and Oberman assumed the would never believe police letter, defendant fled needed time to consult with his lawyer. According death to forestall civil suits and because of threats from country he Defendant wrote further that to avoid a harsh Reyna family. hoped sentence in the Mishell case by claiming provocation. trial,

At Oberman insisted the letter’s recitations about death were Reyna’s false. She testified she had never discussed this version of events with defendant, it, or heard of until received the letter. she case

3. Defense Defendant testified in own He admitted bludgeoning his behalf. Mishells, stated that he lost blows on each. Defendant inflicting multiple admitted, at, that control when the Mishells but his accusations laughed they his affair. He said he were behind calls anonymous telephone exposing kitchen, a meat tenderizer in the Mishells’ used it as his weapon, picked up it, he then threw into San Francisco Defendant weighted, Bay. acknowledged alibi, incident, an lied to the about the to construct confessed police sought then recant the statement to the Reyna given Reyna, pressured Reyna police.

Defendant further conceded that he called on the Reyna evening July in that he met with on the died morning July Reyna Reyna he then dismembered But Reyna’s and that day, body. presence defendant denied Defendant claimed the murdering Reyna. following: drove in defendant’s truck to a waterfront Richmond. park During men conversation, door and tense defendant walked around to the passenger intoxicated, somewhat pointing gun it. who seemed opened Reyna, and the struggled, discharged. him. They weapon defendant, he checked of life and found signs

According Reyna blood, wound, none, he saw or visible bullet’s sign no though do, hours, to decide what to trying After around for several trajectory. driving Creek, then drove to the Lafayette in Walnut gun he of Reyna’s disposed evidence, a hacksaw not hills, body, using Reyna’s where he dismembered carwash, out, truck, at a inside and He rinsed the the remains. and scattered He evidence, bench seat. the truck’s including other items of then discarded him, and said, would believe he thought nobody because did these things, his attorneys. he needed time to consult said, to he decided on defendant July with his meeting lawyers

After lawsuits, civil family, potential death threats from Reyna’s flee because of denied Defendant charges. denied bail on homicide the fear he would be and he and he insisted with Reyna, the details of his encounter Oberman telling her he murdered Reyna. never told kill, fear, Reyna to and thus to he had no reason

Defendant also insisted to According in the Mishell assault case. witness him against a potential that, defendant, with a defense him in an interview his had advised attorney and his earlier statement to police, had recanted his investigator, Reyna discussion, Also, (See post.) the stand. could thus be credibility destroyed he had confided to vulnerable because defendant was suggested, Reyna homosexual, his to family he did not wish even defendant that he was a fact know. memory, Robert Mishell’s challenge

The defense witnesses to presented arrived at trial recollection that defendant with to Robert’s particularly respect armed (and was thus already the Mishell residence a toolbox carrying perhaps of assault). credibility The defense attacked with the used in weapon Yolanda, witnesses, sister by presenting Reyna family including Reyna’s with defendant and their dissatisfaction evidence of their extreme to hostility credibility The defense attacked Oberman’s case. police handling friend and Oberman’s former of Sue Ann Van through testimony Epps, by money that Oberman was motivated business Van asserted partner. Epps attention, death threats to Mexico because of had engineered flight collaborate on and had she and Van suggested Epps from Reyna family, about in Mexico. book Oberman’s experiences Reyna’s credibility impor- the defense to undermine Finally, sought case, no defendant had in order to suggest tance as a witness in the Mishell that, was although Reyna Detective Gustafson testified motive to kill Reyna. defendant’s informant search warrants for in two earlier a confidential had confessed revelation that defendant Reyna’s property, April the Mishell knew about already details to what the police him added only he forward because reluctant to come also said Reyna assaults. Gustafson with his wrestling loyalty claim and was of defendant’s veracity doubted to defendant.

Chuck Roberts testified that had also revealed Reyna defendant’s confes- him, sion to but was reluctant to the go because police friendship defendant and because defendant had told him in the that were not things past true. 13, 1988, that,

Defense investigator Cramer testified in an George April interview, statement, which occurred subsequent Reyna’s taped police recanted, context, that the had taken his out Reyna saying statement police and that did he not believe defendant’s confession was serious. According Cramer, Reyna wanted help by telling police everything he, counsel, knew. Cramer said that defense tried to with the Reyna speak after but she refused to see them. April B. Penalty evidence

1. Prosecution evidence three witnesses. Yolanda prosecution presented Reyna, phase sister, mother, the murder victim’s and Helen his testified about the Reyna, M., effect of his death on them. Alexandra defendant’s niece by marriage, recounted defendant’s sexual assault on her.

Alexandra testified as follows: old,

She the summer of when she was 15 with defend- spent years He ant’s contrived to drive her to the alone for her family. flight airport home. On the he asked her of a sexual nature. He way, personal questions van, in a deserted lot and enticed her into the rear of his where parked airport him, he kissed her and forced her head down onto his he When she bit penis. arms, her and stuffed a bandanna into her mouth. her slapped Restraining her, then her kill sodomized anus. He threatened to raped ejaculating her and her if she told He also told her she had family anyone. enjoyed comment, she because she knew Though hysterical, experience. accepted no better. home, letter, mailed, her

On she wrote never friend flight Margaret Yen, in which she said she the encounter and mentioned no force or enjoyed threats, but shame that the incident had occurred. She did not tell expressed later, until, her three She did mother months she discovered she was pregnant. the effect on her not the incident because she was afraid of report police Yen, she had still told her and other only therapist, grandparents. By close friends and members. In she told FBI who came family agents fugitive. her home in connection with defendant’s status as a wanted evidence 2. Defense

Margaret Yen testified that when Alexandra M. returned home from California in she told Yen she had consensual sex with her uncle in a hand, car at later, On other Yen stated airport. that several months when Alexandra was over her upset she told Yen she felt parents’ breakup, worthless, unloved and and had even been forced her uncle to have oral sex.

A number of witnesses testified to defendant’s positive qualities contributions, affairs, charm, including involvement community sense humor, diligence, intelligence, computer knowledge, concern helpfulness, trustworthiness, for family, and concern for human His efforts to equality. tutor fellow inmates while he inwas trial jail awaiting were noted. But some witnesses others, admitted he had a could be hard temper, and was capable And anything. some conceded there was much about defendant did they know, and that the trial had altered their of his There opinions honesty. was evidence that defendant held a contractor’s license with no record of disciplinary action.

No member of defendant’s testified in family his behalf. The defense evidence presented deceased, that his were parents and that he had asked that his children not be involved in the trial so as to them further spare pain.

Based on solely records, his review Enomoto, of defendant’s Jiro jail former Corrections, Director of that, the Department testified if incarcer- ated, defendant would be assigned to high-security housing, could be a constructive person. Enomoto conceded the security level of defendant’s housing could in the change future. He insisted that defendant’s numerous county incident jail concern, were reports minor and not a cause for serious he though admitted were they troubling.

II. DISCUSSION Jury selection issues A.

1. Wheeler/Batson claim venire, Sixty-eight members of the nine members including who identified African-Americans, themselves as survived for challenges cause. Thirty-nine of these qualified jurors were called into the prospective box to face jury peremptory challenges.

Selection of both and alternate regular was on jurors completed Thursday, excused, March The 1993. venire was remaining but the jurors empaneled were for trial the were not sworn. instructed to return formally They morning, March On that following Monday 1993. morning, Jurors, Or, filed a written “Motion to Reinstate Challenged Improperly Quash Venire.” Alternatively, Remaining to Dismiss Jurors and Empaneled v. Wheeler (1978) motion 22 Cal.3d 258 The violations of alleged [148 (Wheeler) Kentucky and Batson v. P.2d Cal.Rptr. 748] (Batson), the prosecutor 476 U.S. 79 L.Ed.2d 106 S.Ct. in that 1712] African- challenges excluding had for employed peremptory purpose Americans from the petit jury. asserted, had used five of the motion

Specifically, prosecutor T, Jurors Altie exercised excuse challenges Prospective peremptory S., B., W., and June one of identified Gregory W.—every James Debria called box—such that the jury regular jury African-Americans into African-American no The motion conceded that had members. empaneled alternate included African-American. four an jurors home, deferred, were sent and the statements were Opening jurors insisted, as in motion was on March 15 and Defense counsel argued 1993. motion, written that use of five of 15 peremptory the prosecutor’s established a to excuse all African-Americans from final challenges facie that the voir Observing case of intent. discriminatory prosecutor’s prima had that the dire centered around death counsel qualification, argued disputed issue, no views on that either orally extreme jurors expressed prospective or in their questionnaires. argument the defense’s statistical responded size, and that his because of small

misleading sample questioning demonstrated no intent to exclude them on jurors disputed prospective He all he had to on “the say basis of their race. indicated this was prima issue,” wished, if the he would discuss his individual reasons facie but court facie ruling each Without whether excusing juror. prima disputed made, said, “I well.” might had the court think you case been theoretically that all the excused were jurors The first conceded prosecutor a that he to make “more subtle judgment” but out had death-qualified, pointed the death As to individuals could actually impose penalty. whether these T., in the death that he “does not believe Altie observed prosecutor Yes, it, someone that my he said he could work with but judgment penalty. it the same consideration give does not believe in the death will penalty who is in favor to vote for the death as someone and is not as likely penalty is at neutral.” of it or least S., death not because said he excused Gregory prosecutor views, dire that he “had been he indicated in voir but because

penalty victim of circumstantial evidence a case when it seemed that he was guilty but, in fact he was not.” Because the instant case was based on largely evidence, circumstantial S. did not prosecutor explained, Gregory seem suitable prosecution juror. B., noted,

James the prosecutor would be a probably suitable in a juror However, observed, case. noncapital prosecutor notes indicate “my said that he would difficult have a [James B.] time for the death voting convictions,” because of penalty religious and “that his wife was extremely to the death opposed penalty.” excused,

Debria W. had been the prosecutor because she said explained, she “maybe” could the death but it impose should not be used penalty, as a last “except resort and unless she was sure.” This absolutely persuaded she prosecutor would not evaluate death life “even-handed[ly]” against without parole, thus was not a suitable juror. W.,

June said the prosecutor, “repeated many, times that she many fair,” could be sense, but answers, he could not get from her about her Moreover, death indicated, attitudes. “there was also a question two that understand, was asked that she did not and she answered incorrectly based on her and it understanding, was my while she feeling was a very [that] woman, nice an older that I did lady, not believe that she would in the end be able to vote for the death penalty.” motion, on the

Ruling the trial court first stated it not feel “[did] manner in which the were peremptory challenges used created an inference that the prosecutor Therefore, had a discriminatory motive. I do not think there has been made a facie case.” prima

The court further indicated that “I remember these I particular people. notes; and, reviewed my I feel that frankly, has prosecutor] given [the satisfactory reason with reference to these particular were— people. They were at They best neutral to the death And if I were a penalty. I’d prosecutor, want more in people [j[] favor of it. of them Many did in the say only last resort could sure, do it they or if they’re which absolutely is not the burden of [j[] T.], One proof. juror, said he did not believe in it. [Altie [Gregory [f] S.] evidence, W.j again is worried about circumstantial is concerned [f] [Debria about the absolute which certainty, kind of bothered me. [§] [James B.] indicated it Now, would be difficult to apply. their color for a forgetting H] moment, any would knock those off. people [<J[][June W.] rather I’m not so sure equivocal. whether that’s her or that is in personality to the response But in questions. there’s a my opinion, valid basis for . . . [][] the exercise of a and I don’t peremptory, feel it was based on any type So, motive. discriminatory ... I will deny motion.” your [][] 1104 The defendant his challenge.

On renews Wheeler/Batson appeal, Wheeler,] use of law well settled. prosecutor’s is applicable “[Under [a] on the basis of jurors group strike challenges peremptory prospective is, of an identifiable on distinguished bias—that bias ‘members against group racial, ethnic, the of a criminal right or similar religious, grounds’—violates the a from a cross-section of jury defendant trial drawn representative I, the under article section 16 of state Constitution. community [Citations.] Batson,] also violates the defendant’s right equal practice [Under [s]uch under the Fourteenth Amendment. protection [Citations.] Batson “The United Court has reaffirmed that Supreme recently States the and trial courts use when handling states standard should procedure ‘First, must out a motions strikes. the defendant make challenging peremptory facie of the relevant facts rise showing totality gives case that the “by prima Second, to an inference of once discriminatory purpose.” [Citations.] case, has shifts to the State to made out a facie “burden prima race-neutral the racial exclusion” adequately by offering permissible explain Third, a race-neutral the strikes. justifications explanation for [Citations.] “[i]f tendered, . . . the trial court must then decide whether opponent ” has (People strike racial discrimination.” proved purposeful [Citation.]’ 467, 970, (2006) Lewis Oliver 39 Cal.4th 1008-1009 Cal.Rptr.3d [47 (2005) (Lewis Oliver), P.3d Johnson v. 140 quoting 775] California 162, 129, 2410].) U.S. 125 S.Ct. 545 168 L.Ed.2d [162 trial court’s on racial discrimination “We review the ruling purposeful uses evidence. It is presumed substantial [Citation.] in a manner. We defer the court’s constitutional challenges peremptory from excuses.’ As ‘bona fide reasons sham ability distinguish [Citation.] ‘a effort to evaluate court makes sincere and reasoned long offered, are to defer- its conclusions entitled nondiscriminatory justifications ” Oliver, 1009.)2 39 Cal.4th ence appeal.’ {Lewis above, court, reserving noted the trial after its decision expressly As established, the prosecutor’s case had been prima accepted whether facie individual jurors. Having to state reasons for excusing prospective offer that his actions rise gave the court ruled justifications, heard prosecutor’s motive, and facie case had discriminatory prima to no “inference” untimely no that Wheeler/Batson concern motion was because expressed The trial court challenges until after a final challenge to the use of was made prosecutor’s peremptory practice, jurors usual accepted though, in accordance with court’s had been even do argument on and we not address yet People appeal, been make no such sworn. People (See (2005) P.3d v. Roldan Cal.Rptr.3d 289] [27 35 Cal.4th point. 309,785 134,179 (Roldan); Thompson (1990) Cal.Rptr. P.2d compare People v. Cal.3d [266 51 P.3d v. McDermott 874] with 857] (McDermott).)

1105 thus not been After own the established. its recollections with comparing excusáis, stated for the the court further grounds challenged prosecutor’s concluded that the their given “satisfactory for prosecutor reason[s]” circumstances, dismissal. Under these the to hear the decision prosecutor’s case, did the it reasons not that court had found a facie nor did prima imply (1999) moot the 20 contrary (See court’s later determination. v. Welch People 701, 203, (Welch).)3 Cal.4th 746 P.2d Cal.Rptr.2d [85 754] However, our review court’s that to finding defendant failed establish a case is prima facie complicated by intervening legal develop- 162, ments. In California, Johnson v. the supra, 545 U.S. United States Court Supreme People (2003) reversed v. Johnson 30 Cal.4th 1302 [1 1, 270], Cal.Rptr.3d 71 P.3d wherein we confirmed that the established demonstrate, California standard which the strikes must opponent juror facie, a prima Wheeler/Batson violation—even if sometimes ex- previously “ as a ‘reasonable inference’ show that dis- pressed ”—was to purposeful Johnson, crimination was “more than not.” v. likely (People at 1312-1318.) The court made clear this standard pp. is too demand- high ing Batson, for federal said, constitutional Under the court the purposes. facie burden to prima is the simply “produc[e] evidence sufficient to permit trial to draw an discrimination judge (Johnson inference that has occurred.” v. California, supra, 170.) 545 U.S.

Despite instant court’s trial use of “inference” in its ruling, facie prima that word had been sometimes in California as shorthand employed for “more (See discussion, Hence, than likely ante.) not” standard. we be cannot sure court understood term in the sense later established by Johnson we cannot Accordingly, defer to trial court’s simply prima California. it, satisfied, facie ruling. To we would have to uphold be from our indepen- record, dent review of the that defendant insufficient evidence produced Bell, outset to an inference of permit discrimination. (E.g., supra, 40 Cal.4th 582, 597; (2006) v. Avila People 38 Cal.4th Cal.Rptr.3d [43 1076].) 133 P.3d discrimination, Even where the not prima trial court has found a facie case which would excusáis, require prosecutor for the challenged helpful, state reasons it is purposes review, appellate prosecutor’s explanation. encourage have the We therefore court stress, Wheeler/Batson counsel in all proceedings record make a full on the issue. We however, obliged that the prosecutor not is to state his reasons before the court has found time,

prima facie case. Until defendant carries burden to the sole establish an inference early stage, of discrimination. At this compelled provide information might employ (Cf. which argue then of a prima the existence facie case. v. Bell (Bell).) 151 P.3d 292] Moreover, prosecutor’s voluntary decision to facie prima state reasons advance of a ruling does not prima constitute an admission or concession that a facie case exists. alternative, assume, defendant did In the we without may deciding, first, facie, Batson and Wheeler to the satisfy by pointing the prima step to from the use of of 15 excuse challenges five prosecutor’s peremptory Wheeler, (See, called to the box. regular only e.g., African-Americans 258, 280.) his supra, 22 Cal.3d Because the voluntarily explained prosecutor dismissals, to and third steps we then the second may proceed directly Oliver, 970, 1010; (Lewis and Wheeler/Batson analysis. 39 Cal.4th 114 P.3d Ward 200-201 717].) find stated nondiscriminatory We do so here. We the prosecutor’s T., S., B., James reasons for Jurors Altie excusing Prospective Gregory W., Debria and June W. to be amply supported. indicated,

As asked to juror when in prosecutor questionnaire “I the death Altie T. feeling penalty, responded, describe his about general it.” that he was don’t believe in it I can work with He also indicated but he sure” how would the death and was “[mjoderately against” penalty “[n]ot if on ballot. vote the death were penalty dire, his feelings

On voir Altie T. indicated a conflict between strong quite he he the death and his duties as a While insisted could juror. against penalty case, with “if to” in one including only vote for death had an appropriate [he] witness, made clear that one murder victim was killed as a he who potential a in death because “I don’t think believe “basically penalty” [didn’t] it, his man’s He should be but life man should take another life. punished asked whether shouldn’t be taken.” Altie T. when affirmatively responded life,” i.e., to another think it’s for the state take man’s you wrong “therefore found, “that to do As the trial court morally wrong prosecutor it’s that.” ability of Altie T.’s and willingness had reason to be ample skeptical death, him and excuse on that basis.4 impose S., Gregory prosecutor the voir dire of Juror

During Prospective indirect, or circumstan- between direct evidence and the difference explained tial, if S. could death evidence. asked Gregory impose prosecutor evidence. in a case on circumstantial based primarily

Later, on S.’s disclosure his defense counsel about inquired Gregory victim of an attempted robbery that he himself been questionnaire asked if a Counsel a head when struck with injury pipe. which he suffered court a “vendetta or to come into with Gregory this caused S. experience “No, no, I don’t mainly S. responded: some kind of ax grind.” Gregory where—where there’s a lot been in a situation years ago because I’ve myself dire, significant Altie also disclosed he had questionnaire Both voir T. might it to hear hearing have made difficult witnesses. problem, which sometimes against being guilty

of circumstantial evidence laid me was viewed it, there when knew I couldn’t so I knew that I wasn’t and prove [are] I where a could seem to be but not. But didn’t guilty situations person [is] have a situation I into court it and the go where could system prove an mind thought whole bit. So I whether be keep open person’s—is basis, I’m this could until—until convinced.” On guilty decide that S.’s dissimilar reasonably Gregory personal experience, disclosed other make him reluctant by jurors, prospective might impose death, convict, or even to in a case where the murder evidence was largely circumstantial.

In juror his Juror James B. questionnaire, Prospective expressed neutrality dire, first, continued, about the death On he had voir at to insist no penalty. that would interfere with his feelings ability consider death penalty But when defense fairly. counsel asked if James B. any religious beliefs that affect in a decisionmaking death philosophical might ability situation, he “It penalty would be difficult for me because of responded, very my religious convictions to a death human really give sentence another being.”

Later, examined James B. about his disclosure that prosecutor prior recent murders in the had led to discussions with his reported newspapers wife and friends about whether could the death they actually impose penalty. The asked what prosecutor James B.’s wife held on that opinion subject. James B. wife would be able do it at She responded, “My not all. was woman, a very and she a really religious could out death sentence to give another human at being all.” him, James B. insisted his wife’s would not

Though views influence could prosecutor conclude that James B.’s own reasonably religion-based views, death reinforced his wife’s even penalty stronger scruples, pro-life would make him an unsuitable death case. prosecution juror penalty

In her juror Juror Debria W. described her questionnaire, Prospective “[njeutral.” about the death She philosophical opinion penalty explained that “if guilt,” evidence then death [strongly] “maybe” show[ed] would be penalty appropriate. dire, admitted, nervousness,

On voir W. and Debria considerable displayed, and defense counsel remarked that she She stated at shy. seemed various fair, that she be she death in points would that would consider open case, and that she could where the single-victim witness-killing impose death However, evidence of was circumstantial. when defense counsel asked if guilt W. Debria death she thought penalty society, served purpose like it’s justified.” “Not all the time I don’t feel—I don’t feel responded, stated, when it’s—that’s the Asked to Debria W. it’s—when explain, “Only know, mean, that she would have last resort I that’s it.” volunteered She you death; just to be sure”—before “I wouldn’t “absolutely sure”—“gut imposing hand, then On the other she she would yeah, agreed, death.” say guilt consider life without as an “definitely” parole option. W. meant asking by saying followed what Debria again prosecutor up, if a “last resort.” She that “all the evidence death explained on the death then that’s

weighed everything way out penalty, pointed (Italics added.) I would feel.” way basis, On that Debria W. reasonably this could conclude all, if at in the most would be inclined to the death impose penalty, only cases, life extreme she believed no evidence all favored without where Thus, indicated, would not weigh as he he could surmise she parole. the and evidence to determine whether balance fairly aggravating penalty factors death the made mitigating appropriate penalty. W.,

In Juror June the prosecutor his excusal of justifying Prospective that had insisted on occasions she acknowledged juror many this prospective in based on the evidence the fairly presented could weigh penalty options However, case. to certain and particular prosecutor pointed “incorrect[]” June W.’s death ambiguous ascertaining answers that him from prevented attitudes, that end” would but left him with the sense “in the she not penalty be able to vote for death. June W.’s have from

Beyond any may gleaned impressions prosecutor record— we cannot on cold demeanor—factors assess personality asked there his evaluation. In her when how is for support jury questionnaire, ballot, June she vote the death on the W. placed would if were penalty it, I could be jury answered that she “had about thought [but that] [o]n dire, followed (Italics added.) fair On voir defense counsel up in [judgment].” out the filling on this June W. if she had since asking thought, point, it the ballot how she vote “if California on might placed about questionnaire, “I feel that I there to be a death She penalty.” responded, ought [whether] that in my opinion wouldn’t have a for the death voting penalty problem if (Italics added.) when defense was the case." She then answered “[c]orrect” death “has a penalty asked this meant she agreed counsel whether have “an should in in criminal legitimate justice” option place a case.” deciding about her W. was evasive being answers could June suggest

These answers, her by and thus sought, death political penalty, position redirect all such on that her be a questions subject ability toward fair capital juror. However abstract, such rational a stance be in the it might could raise in the reasonably concerns mind whether June W. prosecutor’s it, was using consciously to mask a unconsciously, deeper antipathy basis, capital On he could decide punishment. she was a less than suitable prosecution juror.

For the first time on defendant asks us to appeal, compare the responses the 12 seated provided by none of whom regular jurors, were African- American, with those given by excused African-American prospective jurors, and cited when justifying disputed challenges. insists, Such a comparison, defendant the prosecutor’s stated reasons exposes sham, because the jurors seated disclosed death views substantially T., S., B., W., similar those expressed by Altie Gregory James Debria June W.

We had declined to previously engage for the comparative juror analysis first time on such appeal, deeming analysis unreliable evaluating prosecutor’s reasons excusing minority prospective jurors. (E.g., People Box (2000) Cal.4th (Box); 5 P.3d [99 130] v. Johnson (1989) 47 Cal.3d 1220-1221 Cal.Rptr. [255 1047].) However, 767 P.2d in Miller-El v. Dretke 545 U.S. 231 (Miller-El), L.Ed.2d case, S.Ct. a federal 2317] habeas corpus the United States Court conducted a Supreme comparative juror analysis examine the veracity stated prosecutor’s race-neutral reasons for the excusáis, no challenged though analysis such had been sought or performed in lower courts. court observed that a prosecutor’s proffered “[i]f reason for a striking black panelist just well to an applies otherwise-similar serve, nonblack who is to permitted that is evidence tending prove (Id. purposeful discrimination be considered at Batson’s third step.” 241.) p.

Assuming, without that deciding, we must undertake juror comparative Oliver, (Lewis here and analysis 1017), we conclude that a such fails to indicate comparison the prosecutor engaged purposeful discrimination. Though they views, did obviously not hold extreme the seated jurors expressed attitudes more favorable to significantly than prosecution the African-American prospective jurors he excused.

Thus, in his Juror B. questionnaire, Stewart indicated he believed the death “is an penalty for if appropriate punishment special circumstance crimes and it decides fits He the crime.” also he was reported “[mjoderately in it, favor” of the death had no penalty, religious scruples and would against vote the death on the ballot because “I believe it penalty is appropriate “[f]or” and for some crimes serve aas deterrent for some may criminals.” dire, with the that he was familiar term On voir Stewart B. indicated circumstance,” mur- reserved for violent it was thought particularly “special murders, a special did not realize witness was killing ders and peace-officer circumstance, assumed, “it included that category, but if statute this [was] he he vote for life Asked defense counsel if understood must appropriate.” Stewart B. some equal, expressed and bad in defendant’s life were good if reservations, and one guilt that found both indicating point, [having that “[a]t think,” circumstances], tilts the other I would way more it kind of special or “careful,” “once kind of the scales balancing the need be you’re despite Indeed, said, he tell now I’m you right “I would have to probably justice.” “I the death penalty.” toward death penalty” support preinclined meant was comfortable that the death penalty Stewart B. professed that, need measures for exactly “you appropriate because appropriate no the death He indicated he would have difficulty imposing crime.” also on the basis of after found circumstances having guilt penalty special evidence, of trial out that the issues at the phases circumstantial two pointing were different. a lot about Tina B. that she had not thought

In her Juror said questionnaire, measure not sure how. she would vote on a ballot and was capital punishment issue, here for reason.” It but believed the death “is addressing penalty that hard, death she how she felt about the say penalty, was professed, “[n]ot about indicated she had no reservations religious evidence.” She knowing capital punishment. dire, vote she still not sure how she would

On voir Tina B. said measure, did information. enough because she not have death ballot penalty However, here the death saying when asked what she meant by reason, who B. “reason” was all “bad” people Tina explained the. . such as wrong earth . . but doing anything “cannot live on this without sort,” molestation, child anything murder over and over—. . . When defense use when it comes that.” that “we should death penalty] [the attitudes since more about her thought counsel whether she inquired said, . I have. . . “Actually, Tina B. yes, her completing juror questionnaire, it, here, . . to use are that it is and . we’re supposed additional My thoughts evidence, choice, on the I would.” if had to make a and I depending case, said, Tina B. witness-killing death in a Asked if she would impose case,” “No, thus that she would suggesting have to the whole I’d hear circumstantial- automatically do so. Asked about the death penalty of case, he’d have to be “[o]bviously pretty guilty she that evidence replied her, to the requisite if circumstantial evidence convinced but everything,” “I I death believed defendant deserved the penalty, that degree proof, for it. would” be able vote

In her Juror Sharon B. that she indicated believed death questionnaire, evidence,” was for certain on penalty crimes “based was necessary in favor” of the death “[m]oderately religious had no penalty, against scruples it, but was sure” how she would vote aon ballot measure. Responding “[n]ot to the whether her death views had changed question penalty substantially stated, recent she “If I years, my way emotions out think keep [and] are the logically my feelings same.” dire, comment,

In voir counsel defense followed on this latter if up asking it meant her thoughts changed day day from how she felt depending about a issue or particular case. She that she had agreed, extreme explaining television, emotional reactions “horrible” crimes she saw on but “then it, if on, know, sit and think you about then it . . . depends what you type evidence is to me.” She given insisted she could follow the instruc- penalty tions and both weigh available based on the punishments aggravating evidence. mitigating

Sharon B. indicated she was still not sure how she would vote aon ballot measure, think I each individual case needs to be taken into “[b]ecause automatically consideration. I ... can’t just say the death somebody deserves (Italics added.) penalty.” Pressed to distinguish between the booth and voting duties, maintained, a juror’s she on the “I political that don’t question, [still] know how I feel” and had no feelings.” “definite Asked about her views on favorable,” life without she said she parole, was moderately “[p]robably which, she agreed, “was about the same as felt the death penalty.” [she on] she Finally, that she agreed unequivocally could death even if the impose evidence of guilt was circumstantial. primarily

Thus, the overall was of juror who had initial portrait strong reactions murders, against was aggravated inclined to favor the of both availability crimes, believed, end, death and life without parole selected in the consideration, each individual case careful logic based on required circumstances, evidence. Under these could conclude readily B. Sharon a fair who capital juror would death if she impose penalty it believed was warranted.

Juror Roberta C. left blank of her with dealing portion questionnaire dire, death “rush[ed],” On voir she penalty attitudes. that she felt explained the form was and she was off “lengthy,” “caught she had guard” by questions not previously pondered.

However, issue, asked court about her on this she feelings replied that her Catholic did not “teach to be in favor of the death religion but in myself deep my down heart I do believe in it.” capital punishment; her faith had her added.) given She admitted the conflict with Catholic (Italics weekend,” to have to dismiss the Catholic but “I think I’m going a “difficult Questioned subject by I feel.” further on from what just go principles teaching she could her church’s go against Roberta C. insisted prosecutor, think I’m the I don’t thought penalty, if she death was appropriate “[a]nd situation.” one that would fall in that only in a witness- consider the death

Roberta C. indicated she could penalty that this was the case that were the law.” When the court advised killing law, “[i]f When the asked what she said she could. “probably” prosecutor she answered, that. If that is I should “Maybe meant she rephrase “probably,” law, she indicated unequivo- I will have to follow the law.” Finally, then of circumstantial she could the death on basis cally penalty impose evidence. that, after some understandable indicated clearly

These responses quite of her resolved conflict in favor any soul Roberta C. had searching, religious could conclude readily in the death penalty. belief personal a juror, interfere with her duties as capital that her Catholic faith would not law, on the fairly and that she would deliberate that she would follow the issue penalty.5 “not indicated that she was op-

In Juror Suzanne H. her questionnaire, it, no against to the death had religious scruples in general penalty, posed” be an because she it should vote it on the ballot and would “[felt] “[f]or” the death about penalty Asked rate her “philosophical opinion” option.” favor,” out, scale, “[m]oderately in crossed a she first marked five-step and marked “[n]eutral.” dire, an She juror. H. the views of ideal capital

On voir Suzanne expressed abstract; nor the death she was “neither for against” penalty explained instead, said, in favor of death “In cases I’m much very she some [the be in favor.” She both thought some cases I would not penalty] [while] [i]n on the case and valid depending death and life without were options, parole evidence, did not think the facts as are.” She they and she would “accept victims, and she could in cases of murder death was only multiple appropriate I so directed by case witness-killing the death a “[i]f impose juror question queries on the about her failure answer C. was also examined Roberta member, she, had been acquaintance or or any family household naire about whether with, for, “PRIVATE” beside charged crime. Roberta C. had handwritten investigated a old, that, dire, years her was nine or 10 explained she when she questions. these On voir jail at Santa Rita police with officers stepbrother had been involved in shoot-out child, when she was episode, this which had occurred gone San She insisted that Quentin. juror. ability to sit as participation, would not affect her personal had no and in which she

the court.” She also indicated she could on death the basis of a impose circumstantial case. These no doubt guilt left that Suzanne H. could responses deliberate on the issue of fairly penalty.

In his Juror David H. questionnaire, colorfully when asked his responded general feelings on death that “I used to be it penalty, explaining against but now I feel a valid method of scum cleaning pond gene off [it is] He indicated he had no pool.” religious the death against penalty scruples ballot, would vote it on but nonetheless rated his “philosophical “[f]or” “[njeutral.” on as opinion” subject remark,

Asked on voir dire to explain scum” David H. indicated “pond bad, he meant that “someone who’s out and out would go out and murder that, again, and have no with I don’t problem see a in that point person Nonetheless, existing.” counsel, under intense defense questioning by he understood, indicated he and could abide by, his as a obligations penalty juror, and would consider life if without the “good” about parole defendant, “bad,” when compared against the was sufficient to warrant that David H. option. an provided obvious basis for the to surmise suitable, favorable, he would be a even in a prosecution juror case. capital Juror Judith H. in stated her questionnaire that she was “[mjoderately favor” the death had penalty, and no religious philosophical reservations about it. She indicated she would vote the death on the ballot penalty “[f]or” because she should be option available.” Asked to “believe[d] her explain general she feelings subject, wrote she felt there were some “probably cases where it beliefs, should be Her she imposed.” religious were explained, “that man should be for his sins he punished unless and restores repents caused,” losses it and was to restore life. She impossible expressed circumstances, view some should guilty “[u]nder forfeit his own person life others, as means of but in “the expiation,” death would not be appropriate.” dire,

On voir Judith H. confirmed these Asked if positions. court she case, could impose death an “I appropriate she believe in it” and replied, “I’d have to say When defense yes.” counsel about her inquired questionnaire said, “Well, statement that she was for the death moderately she I penalty, believe that it should exist.” She admitted she believe would anyone “[didn’t] death,” want to really condemn another human but that the being suggested hand, nature group decision reduced the risk of error. theOn other she that, said she understood as a she must make an juror, individual determina- tion. denied She that her religious beliefs the forfeiture of life required murder, case, expiation every insisted she could not but prejudge said she believed she could death in an impose case. She appropriate had “a strong nor life without but to neither death prefer parole, professed deferred to the innocent until otherwise.” She proven to presume preference in a case. witness-killing death was ever law when asked whether appropriate could to she said she “probably” In the prosecutor’s questions, response evidence, have to she “would though death a case of circumstantial impose that it’s warranted.” feel sum, and voir dire answers person

In Judith H.’s portrayed questionnaire was a valid that death penalty who believed on strongly religious grounds murders, to it where was able assess willing some punishment matter death were a categories eligibility that of accepted appropriate, hand, not indicated that she would they prejudge for the law. On the other death, cases, condemning understood the someone gravity individual On carefully. the evidence and choices weigh penalty and would therefore basis, be H. would an could conclude that Judith readily this prosecutor evenhanded, acceptable, juror. and therefore capital “[njeutral” on the K. rated herself as Sherry

In her Juror questionnaire, However, on the no religious scruples death she indicated she had penalty. on because the death the ballot “people issue and would vote penalty “[f]or” death her on the general feelings should have choices.” Asked describe wrote, I from the news indicate she “The cases that know about penalty, it was warranted.” dire, cases— K. indicated she was Sherry thinking high-profile

On voir Dahmer, cases in the news Charles Manson”—when she wrote of “Jeffrey she did not think seemed She also said where death penalty appropriate. a witness from testifying. death was for a murder single prevent warranted However, her clear that she was distinguishing political she made She that she would her duties as a juror. explained views from philosophical law,” law, I can still and abide agree by but “since it is the not “make such a that, even if added.) if she meant she (Italics it.” Asked by prosecutor law, if persuaded she could vote for death in such case with the disagreed she in mitigation, replied, circumstances those outweighed aggravating sir, “Yes, to ask if When court telling interrupted that’s what I’m you.” instructions, and required she would use the standard proof own, agreed she she “Absolutely.” Finally, of her she replied, one impose if that such case instructed death in a circumstantial-evidence could impose evidence. evidence was to direct equal answers, Sherry could infer that K. favored

From these cases, views in aside her personal certain and could put death penalty instructions, issue of under the law and to deliberate fairly, others for the basis, to be an juror she would acceptable appear On penalty. prosecution. her

In Juror Cecilia M. rated questionnaire, herself in favor” “[m]oderately of the death and stated she no She penalty, religious objections it. indicated she would vote the death because “I feel it penalty “[flor” [is] sometimes.” Asked to necessary general describe her about the death feelings wrote, she “I feel penalty, in some cases.” necessary [it] dire, On voir Cecilia M. she explained the death thought sometimes necessary because “some are crimes horrible that a person [so] deserves die.” She stated that she could “make choice” death between life and without in a case where a witness was killed to parole his prevent counsel, that, Under testimony. by defense she questioning admitted though she generally the death favored she had penalty, thought about whether it it, i.e., would be difficult actually “how I would feel about impose not,” if determining someone die should or and “if I just could do it.” morally theme, But when said, followed on the prosecutor same Cecilia M. up “Well, said, as I I’ve about it a thought lot since and I questionnaire; think I honestly could.” She she agreed could do so in a case involving circumstantial evidence.

These answers indicate that Cecilia generally M. believed in death penalty, had pondered the moral significance in personal involvement its but had imposition, decided her moral if ultimately were so qualms, any, strong as to hinder her ability deliberate a fairly as On penalty juror. this basis, the could well find prosecutor her as a acceptable juror.

In his Juror questionnaire, Manuel R. rated himself in favor” of “[s]trongly the death and indicated he penalty would vote the death penalty “[f]or” ballot. Asked to his explain general feelings about the death he penalty, wrote, “I have been always in favor of the death a penalty strong [as] never, deterrent to murder and violent crime. But I ever that thought situation would occur where I may have assist in the decision to implement it aas sentence.” Asked if he had religious or philosophical scruples against honest, death he penalty, responded, “To be I I don’t know. think I’d actually have to be in the situation before I’d know for sure.” dire,

On voir after the court’s hearing explanation guilt penalty Manuel process, R. told the court “the outline gave, that clarified you just lot,” he could now he had say feelings no that would prevent him from choosing between death and life without He this theme repeated parole. during whether, both counsel. questioning by When defense counsel asked the final stage, Manuel R. would be to make a willing penalty judgment without being affected or by any religious Manuel R. philosophical principle, “I think I could. replied, It’s our something I’ve—since instructions original now, I’ve thought about lot between then and think and I could I make that decision without being or—or tilted one or prejudiced way the other.” that, his ambivalence on question- R. further despite

Manuel explained naire, he “built-in religious he did not think had philosophical actually His to consider the death penalty. his concerning ability difference or bias” answer, said, coming simply he “was uncertain questionnaire [from] in advance this considered having in situation” without duty being put since, However, indicated, “I in about it thinking how he feel. might . and . . make I and . . . consider evidence believe could be objective being I was the correct decision without biased.” thought decision that if R. could asked Manuel again actually impose When the prosecutor Quentin and be taken to San that defendant would death penalty knowing “Yes, executed, indicated he R. I believe so.” He also Manuel responded, circumstantial vote for death in a case “certainly” involving primarily could instruct, if, equal weight court would such evidence was evidence direct evidence. sum, that Manuel R. favored the strongly could surmise

In uncertainty ability about momentary death faced principle, over, but, the matter concluded he was it after thinking impose personally, deliberations. that fairly during penalty and able to consider willing penalty Thus, juror. the assume he was an acceptable capital could readily prosecutor would vote the in that he questionnaire

Juror Brian S. stated his “[f]or” but over and life is all death on ballot person[’]s penalty “[b]ecause we still why would be cruel. That’s him die a slow life making prison] [in no religious He indicated he had leg.” when have broken they shoot horses and that his philosophical or the death against penalty, philosophical scruples about the feelings Asked to describe his general opinion “[n]eutral.” “then I the death justified death he stated that if evidence penalty, penalty, after I in the death all penalty only it on it. do believe go think must with been exhausted.” have appeals dire, death to willingness indicated his generally apply

On voir Brian S. confirmed, to He in as would it him. response law the court explain penalty court, under “the terms that he the death penalty from the supported questions that, both the Montana a correctional officer in He as explained permitted.” and had about thought seen conditions and federal he had systems, prison said, view, was “to go basic he his career. His throughout capital punishment I and the so jury, to make the determination with it. The judge supposed horses” remark in his question- He the “shoot have to it.” accept amplified shouldn’t be death why penalty] he saw “no reason by [the naire saying warranted, out,” confinement a lifetime of in preference carried where release, and no no goals, with no hope under conditions poor prison or society prison. chance contribute

When asked what he by meant in his prosecutor by rating questionnaire himself neutral on the death Brian S. said he believed that it penalty, “[i]f warrants death if the crime the death I penalty, warrants then penalty, didn’t, think I am for And it it. if then he I’m it.” That was against why, added, he had it written that should be all only after were imposed appeals exhausted; he with the that agreed he wanted to prosecutor’s suggestion sure was done He everything right.” “[m]ake insisted his rela- professional with had not caused tionships prisoners him to the death He oppose penalty. he could agreed death in a impose circumstantial-evidence case if such evidence was legally direct evidence. And he he “equal” indicated would consider, but not prejudge, the death where propriety one penalty was killed to person prevent testimony.

Nothing these statements Brian had suggests S. reservations about case, imposing of death in penalty an as determined appropriate under the terms of the death law and affirmed on penalty postconviction review. The had grounds to find him ample acceptable capital juror. W., Juror Christian

Finally, “[njeutral” in his rated himself questionnaire, death penalty indicated his views not changed substantially recent years, explaining “I’m an advocate of the death proponent hand, On the penalty.” other he he had no reported religious or philosophical reservations, remarking the facts and verdict warrant death “[i]f then so be it.” penalty, He also indicated would vote the death “[f]or” ballot, on the that it was a commenting deterrent” to “strong crime. Describing his general on the feelings subject, he said it “is a very difficult someone, but, toway action, punish if the facts aof case warrant that it then ais of our part judicial system that must be imposed.” dire,

On voir when the court asked Christian if heW. would have difficulty said, choosing it, between two he punishments, “On the face of no. Basically, my feeling[] is if the crime justifies death be then so penalty, [the] it, and if not—. . . .” counsel, In to from defense response he questions that, acknowledged now faced with possible for personal responsibility death, choosing between life and he realized he might not be as death pro as he had He said he penalty thought. had “relaxed a little bit” on the subject, less, know, and now understood his attitude to be “more or you people have to have their say front of the more so . . than . prejudging.” Nonetheless, indicated, he felt he could vote for either punishment. vote,”

Asked by if he similarly he could “make that thought answered, Christian W. I “As sit here I do if yes, the facts warrant it.” today, that he could do so in a case primarily He made clear supported evidence, killed to eliminate him and where one was person circumstantial a witness. from

Thus, views penalty ranging all the seated death jurors expressed indicated, reser- all without moderately Ultimately neutral to favorable. truly law, vation, circumstantial sentencing accept could they apply capital on the punishment, of defendant’s deliberate guilt, fairly proper evidence contrast, five case. three of the death an By choose the penalty appropriate retract, made, and did not jurors African-American excused prospective moral, it make or other that would religious, allusions to significant qualms personal them to death. A fourth recounted unique difficult for choose very evidence. circumstantial ability that might impair accept experience in a death her stand on the The fifth evaded about questions political about her actual ability that could give prosecutor pause manner ain case. deliberate fairly capital similar those no views so starkly seated

Certainly juror expressed record, of a cold as to face jurors of the excused prospective expose, Moreover, for the excusáis. in the stated reasons prosecutor’s any pretext the prosecutor, to no or trick questioning by defendant points disparate excusing while nonminority to create designed pretexts retaining panelists Miller-El, U.S. (See racial belonging minority group. those circumstances, 231, 260-263, to overturn 265.) we see no basis Under these nondiscriminatory that the stated prosecutor’s the trial court’s determination were jurors the five African-American prospective reasons for dismissing sincere, established. We therefore discrimination and that purposeful Wheeler/Batson claim. defendant’s reject

2. on voir dire Restriction had heard what asking jurors included a question The juror questionnaire defendant’s counsel proposed the case. During proceedings, about pretrial following it with the statement: “[Defend- this modify question by preceding Commissioner, ant,] attempted is accused of Waterfront Berkeley former 31, 1988, of University January beating in connection with the murder Berkeley in their and his wife while Robert Mishell California Professor home, Waterfront murdering Reyna, Berkeley He also of Luis accused [f] case, in Mishell on 1988. July and an witness the alleged Commissioner a short time in the hills Lafayette found dismembered Mr. was Reyna’s body after his disappearance.” punish- to their attitudes towards capital asked rate jurors

Another question The strongly against. favor to from in strongly ment a scale ranging on that, defense be answering jurors after this asked proposed question, modification, review the facts forth in the first then state and set explain “what if facts in change, any, view might produce] your philosophical [those of the death penalty.” that, received, the

Counsel in view of the case had the first argued publicity modification was relevant whether a motion of determining for change Moreover, venue should be filed. counsel urged, while the defense facts,” the “aware of court’s of concern about the second any prejudgment modification was to ascertain whether the appropriate gruesome particularly facts influence the might jurors’ attitudes. that,

The trial court explained as was its usual it would practice, apprise aloud, jurors of the facts prospective general by reading then paraphrasing, Also, said, the information. it court would allow voir counsel to dire “as in jurors pretrial publicity terms of the status of Mr. Mishell and his wife, home, him that the assault being occurred in their professor, [and] and the alleged murder victim were Waterfront Commis- Reyna] [defendant However, sioners.” the court rejected modifica- proposed questionnaire dismemberment,” tions. As to the “issue of the court explained, questioning jurors about prospective might how be affected of they by “method would, effect, killing” be them to asking the case. prejudge Thus, ruled, the court counsel could examine jurors about their orally ability to choose between life death if found true they the charges information—i.e., in the allegations that defendant attempted to murder Mishells, them, great inflicted bodily injury murdered Reyna Moreover, indicated, eliminate him as a witness in the Mishell case. the court assault, it would allow dire voir of location the status “[about] [and] victims]; and the Ibut will not of permit you [defendant into go issues, the factual but not to the including dismemberment.” limit[ed] trial, After the guilt counsel moved for further voir of again dire the jurors their concerning ability to choose between life and death light of evidence, evidence, the dismemberment particularly actually motion, that, view, heard. The court denied the in its the defense had noting conducted and exhaustive” voir dire. The court indicated that it “complete stood its against voir the facts pretrial ruling “arguing diring case.”

Defendant now claims the court’s refusal to allow questioning jurors whether about would they automatically death in dismem- impose light Sixth, berment evidence violated his under the rights Eighth, and Fourteenth Amendments and analogous of the California provisions Constitution. contention lacks merit.

1120 dire ... to contain voir trial court has ‘considerable discretion

“[T]he This extends to process limits’ discretion within reasonable [citations]. Illinois v. by Witherspoon (1968) established voir dire death-qualification v. Witt Wainwright 776, [(1985)] L.Ed.2d 88 S.Ct. 391 U.S. 510 [20 1770] 841, on voir Limitations 412 L.Ed.2d 105 S.Ct. 469 U.S. 844]. [Citation.] [83 (People v. to dire are review for abuse discretion. subject [Citation.]” 377, 900, Jenkins P.2d 22 997 (2000) Cal.4th 990 Cal.Rptr.2d 1044] [95 (Jenkins).) occasions,

Moreover, no right as we have said many “[defendant ha[s] to jurors prejudge to that prospective ask specific questions invite[] evidence mitigating issue based on a of the summary aggravating penalty 545, 703, v. Cash (People 50 P.3d (2002) 28 Cal.4th Cal.Rptr.2d 721-722 [122 Sanders (People v. (1995) case to educate as to the facts of the 332]), jury 751, 475, 420]), or instruct P.2d to 11 Cal.4th 538-539 905 Cal.Rptr.2d [46 932, v. Ashmus (People (1991) 54 Cal.3d 959 in matters of law [2 v. Burgener 833, (People 112, (2003) Cal.4th 214]).” P.2d 29 820 Cal.Rptr.2d v.Mason e.g., People 747, also, 52 1]; (1991) 62 P.3d see Cal.Rptr.2d [129 (Mason).) 166, 909, P.2d Cal.Rptr. Cal.3d 939-941 950] [277 . . . voir dire seeks to Witherspoon-Witt have We explained “[t]he about punishment the views of the prospective jurors capital determine only whether, knowing is directed to without in the abstract .... The inquiry case, determina- penalty of the has an mind’ on juror ‘open specifics (People Clark P.2d (1990) v. 50 Cal.3d Cal.Rptr. tion.” [268 Mason, we 127], omitted.) In facts there alluding presented, citations neutrality toward “[m]any general capital punishment said that whose persons details of gruesome sit if with jurors might, them to as qualifies presented case, automatically, if likely, would they conclude multiple-murder (Mason, 909, 940; see also supra, v. 52 Cal.3d vote for death.” Sanders, 539.) 11 Cal.4th “ hand, juror we indicated that because prospective the other have ‘[a]

On because of the death against penalty vote either for or who would invariably tried, be in the case being likely one or more circumstances present circumstances, and mitigating regard aggravating without the strength ” cause,’ “must the death challenge qualification process . subject . . facts general views applied death jurors’ probe ‘prospective ” case, charged.’ been expressly whether or not those facts [have] Earp 978 P.2d (People 15] (Earp).) that “death- dictates these competing principles

Reconciling hand, it must not On the one must two extremes. voir dire avoid qualification be so abstract that it fails to those whose death views identify jurors penalty would or the of as prevent substantially their duties impair performance hand, in the case tried. On it jurors being the other must not be so specific that it the to the based requires jurors issue on prospective prejudge penalty the summary of and to mitigating aggravating likely evidence be presented. case, In deciding where to strike the particular balance trial [Citation.] Cash, courts have considerable discretion. (People supra, [Citations.]” (Cash).) Cal.4th 721-722

In Cash—our of reversal a death for only failure to allow penalty judgment sufficient into death inquiry jurors’ attitudes about penalty particular facts—we stressed that the court had refused to allow defense counsel to ask . that could cause jurors about “a or . . prospective general fact circumstance some jurors invariably to vote the death the penalty, regardless strength for of the mitigating (Cash, 703, 721, supra, circumstances.” Cal.4th italics There, concluded, added.) we the fact the defendant had previously murdered his to be grandparents great “likely significance prospec- (Ibid.) tive jurors.” Roldan,

In Cal.4th the trial the evidence showed that defendant and an meet accomplice approached who were swap employees defendant, and collecting bundling day’s cash The receipts. brandishing firearm, ordered the not victims move.” When one “fucking potential flee, stated, victim tried to the defendant “I said don’t anybody fucking move.” He then pointed his weapon fleeing victim and pulled but trigger, gun misfired. After bags of robbers taking money, fled, Teal, chased, themselves but another meet swap one employee, caught, and held the The defendant told accomplice. Teal he would reappeared order, shoot unless Teal released the Teal threw accomplice. obeyed up hands, froze. fired several shots into thereupon rapid arm, Teal’s chest and him wounding fatally.

The trial court itself undertook the death qualification prospective jurors. It asked each whether he she panelist or would change any questionnaire answer, then four posed general about questions panelist’s ability deliberate fairly a death case. Defense counsel that the requested court further into inquire and voir dire questionnaire answers of two However, who sat on the persons ultimately counsel jury. never specified what additional questions information he desired. The denied the court request.

On we the defendant’s appeal, rejected claim the court erred. thereby We first observed that voir were requests dire supplementary sufficiently specific matter. also subject We dismissed purpose There, noted, we the defense had been denied defendant’s reliance Cash. the defendant’s murder attitudes toward juror prior opportunity probe italics, that this fact of his in added Cash’s statement grandparents—quoting, “ some vote the death invariably penalty, regardless ‘could cause to jurors for ” (Roldan, 35 Cal.4th supra, the the circumstances’ strength mitigating of of 646, 694.) contrast, Roldan, case identifies no fact about his we said in “defendant By , . . . . . facts in relevance to the murders in . Cash comparable prior There a reasonable were in juror. that could have even potentially prejudiced murders, crimes, victims,no no sex no child this case no sensational prior added, omitted.) citation (Roldan, torture.” 35 Cal.4th italics concluded, circumstances, we the trial court did not abuse its Under these in further disallowing questioning. discretion here, did We note at the the court not abuse its broad discretion.

Similarly the allowed to with several prospective jurors outset that defense was explore of of the case. included the Mishells’ status the circumstances These specific as of California academic University community, pros- members Mishells and inflicted ecution’s claims that defendant to murder the attempted them, the and murder victim Reyna on fact that defendant great bodily injury Commission, were both members of the Waterfront Berkeley prosecu- a witness in killed eliminate him as Reyna tion’s that defendant to allegation addition, to Mishell case. In defendant’s counsel were permitted assault heard, seen, read, and dire about what jurors they voir prospective instances, touched on the remembered about the case. In several such inquiry dismemberment issue. additional sought sole fact the defense unsuccessfully

The as which when found—was condition of the adult murder victim’s body inquiry—the one whose death penalty not one that could cause a reasonable juror—i.e., him or her to sit on a capital jury—invariably attitudes otherwise qualified death, evidence. No child strength mitigating vote for of of regardless Nor, victim, murder, to the extent were involved. sexual prior implications aroused, evidence that Reyna be would there be thereby emotions juror might 7 to ask did while The defendant wanted questions was dismembered alive.6 otherwise; indeed, for the no cause not indicate mentioned they particular in which was found. Reyna’s condition body Box, Cf., supra, (three-year-old boy along with e.g., 1178-1180 murdered Cal.4th mother; issue); (18-month- Earp, supra, adequately voir dire covered the issue). assault; adequately covered girl in of sexual voir dire old killed course forcible above, of cause of death. Prosecution witness noted there was no forensic indication As Reyna gunshot. an intentional Defendant her he killed with Oberman testified defendant told Reyna from hours after died an Reyna’s he removed head hands

insisted the stand that accidental bullet wound.

A juror normal could not fail be affected the condition in which found, body was of a Reyna’s by any brutal circumstance criminal dismemberment, itself, But the homicide. fact and of does so appear as to transform an potentially inflammatory death-qualified otherwise juror into one who could not deliberate on the issue of fairly penalty.

Moreover, insofar as the defense restrict examination to sought dismemberment, abstract issue was not entirely fair question posed learn, the context of case. circumstances this As later jurors would surrounding dismemberment were Reyna’s body hotly disputed. commit, urged that defendant used prosecution dismemberment or cover a coldblooded up, murder. But was a defendant’s version that after pulling defendant, on Reyna died gun a for the accidentally during struggle weapon, defendant, and that in acting a dismembered panic, Reyna’s body only delay its and identification discovery sought while legal Jurors’ help. attitudes toward the dismemberment thus well be might affected which version they believed.

Accordingly, were the defense allowed to broach the dismemberment issue dire, in voir could he should argue be strongly permitted all in more how explore detail react antici- prospective jurors might This, turn, evidence on that pated issue. in have to a could led lengthy of examination jurors about details of the prospective case. specific Given the trial court’s to restrict duty dire death-qualification voir within bounds, function, reasonable its in broad latitude out we carrying must therefore conclude the court did in below not abuse its discretion refusing inquiry sought. defendant No error occurred. pretrial Other or nontrial issues

B.

1. Denial venue change of selection, Prior to for a moved venue. change of Attached the motion were exhibits consisting of numerous articles from Area Bay on the newspapers Mishell and reporting Reyna cases defendant’s status 7, 1993, aas and accused in suspect both. At a on hearing January two submitted. videocassettes were also These recorded local television coverage cases, as well as a about segment them the national television show Wanted, America’s Most 20, 1988, which aired on November while defendant awas fugitive. crimes,

The denied court the motion. It including reasoned follows: murder, were serious—a factor of a capital favor venue weighing in a no than those common increasingly were more so change—but they hand, of Alameda County, On other society. population modem urban drawn, 1,300,000,” indicating was “roughly from which the venire would be diversity, size and county’s that a fair trial could be had. Given was not signifi- status of the victims and defendant community particularly cant; localized, defendant, if was himself any, the victims’ prominence, official, case had drawn low to them. The compared status city ended with defendant’s but most media coverage considerable publicity, earlier. In the court’s years more than two and one-half hearing, preliminary in a of this could be case County jury fair Alameda empaneled experience, kind.

However, it counsel to voir dire permit the court made clear that would case, be and their ability about their jurors knowledge prospective not base their decision “If I have at all that could feeling they fair. remote trial, I the information would solely, exclusively, peculiarly upon arise, [j[] I a venue issue will excuse that If we reach feel juror. point (Italics added.) I to renew their motion.” permit opportunity will counsel Defendant never did so.

Nonetheless, that his motion was errone- defendant venue urges appeal denied, trial, in an unfair thus violating and that the error resulted ously Fifth, Sixth, the and Fourteenth Amendments. As under the rights Eighth, forfeited, observe, renewed his the is because defendant never claim People the after dire was court’s despite explicit representa- motion voir complete, “ ‘[Wjhen initially a a trial court that it would entertain such renewal. tion must renew a defendant change prejudice, denies a of venue motion without ” the for appeal.’ motion after voir dire of the issue preserve the 132, 546, P.2d v. Hart 976 (People (1999) 20 Cal.4th 598 Cal.Rptr.2d 683] [85 635, (Hart), v. Williams (1997) 16 Cal.4th 654-655 People [66 quoting 573, 752].) P.2d Cal.Rptr.2d 941 event, law contention fails on the merits. “The applicable

In the the shows a must when granted settled. ‘A in venue be change trial be had. The court that a fair trial cannot otherwise reasonable likelihood offense, size of nature and of the gravity considers the typically victim, the nature and and the status of the defendant community, show that denial of the defendant must of the On publicity. appeal, extent a fair trial could (i.e., reasonably likely motion was error that it was venue made) error and that was be the time the motion not had at had). not in fact (i.e., a fair trial was that it reasonably likely prejudicial [is] facts where sup determination of relevant We will sustain court’s ultimate review the court’s evidence. We independently substantial ported ” (Hart, supra, an trial.’ likelihood of unfair determination of the reasonable

1125 195, 546, 598, v. Pride 224 quoting People (1992) 20 Cal.4th 3 Cal.4th [10 (Pride).) 636, P.2d 833 Cal.Rptr.2d 643] trial venue made. ruling

The court’s on the motion was not erroneous when “The offenses were serious and had attracted attention charged ‘However, media. case a this involves serious While every capital charge. venue, factor adds to a it not in motion does itself weight change require 546, (Hart, 20 murder supra, Cal.4th change.’ [rape-sodomy 598 [Citation.]” student; 15-year-old of school and oral of high rape, sodomy, copulation Welch, 701, supra, 20 Cal.4th murder victim’s see 15-year-old companion]; invasion; 744 murder of six Defendant occupants they slept].) [home unusually gruesome claims sensational nature of the crimes instant However, warranted the case. the facts were not so extreme as to moving mandate such a on that basis alone. step that, trial, parties with the court at the of agree below time defendant’s area, Alameda of well one population County, metropolitan exceeded Welch, 701, supra, 20 Cal.4th (See 744.)

million persons. As the trial court size and suggested, county’s weigh of diversity strongly against change We routinely venue. have refusals to venue from much smaller upheld change v. Vieira (E.g., (2005) counties. 280 Cal.Rptr.3d [25 (Vieira) P.3d of Stanislaus population County 990] (approxi [1990 Hart, 370,000) did favor of venue mately weigh change]; Cal.4th 598-599 of Riverside population County [1987 (approaching 900.000) did not change]; People Webb weigh favor venue Cal.4th (Webb) P.2d Luis 779] [San 200,000 trial) almost at time Obispo County (population was “moderately sized but not county,” isolated and small” kind “relatively where change- Pride, 195, of-venue motions have been 3 Cal.4th 224 granted]; [size and (estimated nature of Sacramento metropolitan County above population 875.000) venue”]; v. Howard a of “weighed heavily against change 1132, 268, (1992) 1 Cal.4th 1167 P.2d 824 Cal.Rptr.2d [5 1315] [Tulare 253,000 trial, with inhabitants at time “not County, of was a small commu “most recent venue nity”; successful motions have involved communities with smaller substantially populations”].) (1990

Defendant focuses on the of the City Berkeley size of population However, 102,724). he was overlooks the venire drawn at random above, from the entire As indicated the county. factor population weighed the need a against of venue. change status, own, the

Defendant claims victims’ as well as his prominent tipped Mishells, notes, the balance a toward of venue. The he change were respected of members the academic and a university community, Reyna was city 1126 also a suggests,

official. That defendant himself held public position, him, one it unconscionable that because would find against jurors worked the commit these community such and would afforded benefits privileges heinous crimes.

However, the wide in there is no evidence the Mishells had prominence and defend Reyna or community. Any prominence notoriety relevant public above, a own noted ant had attained confined their municipality—as was the venire would be drawn. small of the area from which relatively portion Moreover, was to that of his essentially defendant’s status community equal transient, outcast, a He not a friendless or despised victims. was newcomer community.” of a with and extensive ties the murdering “long accused victim 1, (2004) (Pe ople v. and Marlow [17 Coffman 710, Court Marlow); P.3d v. (Coffman Superior see Martinez 30] 502]; (1981) 629 P.2d Cal.Rptr. 29 Cal.3d 584-585 Frazier [174 486 P.2d Court Cal.3d 293-294 Superior Cal.Rptr. Thus, indicated, factor has little influence on 694].) as the trial court this venue was whether of change appropriate. the of media There was considerable degree publicity.

Defendant stresses the on local of assaults coverage, and some television coverage, newspaper Mishells, suffered, of Reyna, the injuries they disappearance remains, reaction, of his defendant’s and identification discovery family’s cases, his arrest was in both his own when status as suspect disappearance imminent, once he was and the of criminal charges apprehended. progress America’s Wanted devoted a segment While defendant was Most fugitive, case, Reyna of Mishell and crimes. reenactments including staged crimes, disclosed the brutal details of coverage But while the local families, the their victims and their reporting elicited effects factual, coverage The bulk of the local sensationalized. vast essentially events case—early was clustered around times significant summer late for the murder Reyna. for the Mishell assaults and defendant’s during recent substantial had occurred coverage preliminary most and one-half before years over two April hearing, May made, heard, and denied.8 motion to venue was change that, for local the fact neutral nature of the essentially reporting, plus The trial, weighs strongly it occurred well before defendant’s most part, 546, 600; also, e.g., see (Hart, a of venue. 20 Cal.4th supra, against change 8 most recent article cited defense counsel was by report in the San Francisco The 5, 1993, Examiner, days hearing. apparently This article January dated two before venue both the begin trial about to and included statements noted that defendant’s was and defense counsel.

1127 1211, 211, (1999) v. 21 Cal.4th 1251 People Hayes 989 P.2d Cal.Rptr.2d [91 found; and handless bodies almost in lapse three-year public- 645] [headless 468, 680, (1998) ity]; v. Dennis 17 Cal.4th 523-524 People Cal.Rptr.2d [71 old]; Pride, 950 P.2d of over three (Dennis) years publicity [bulk 1035] 195, crime; time 225 occurred near of publicity two-year [main venue]; hiatus before weighs trial of v. heavily against change People Edwards 787, 696, (1991) 54 Cal.3d 808 P.2d 819 Cal.Rptr.2d lapse [1 436] [16-month crime-engendered between and trial heavily against publicity weighs change venue]; 1195, 144, of v. Sully (1991) 53 Cal.3d People Cal.Rptr. [283 812 P.2d (Sully) of before trial [dissipation publicity months weighs 163] venue].) against of change

The Most America’s Wanted broadcast took a less neutral approach. program defendant in an portrayed unflattering social light, philanderer, climber and and it manipulator, staged reenactments in which he provided was identified as But this broadcast suspected aired on peipetrator. 20, 1988, Moreover, November over four before the trial. it years was seen so a of venue not nationally, change could be dilute its expected prejudicial effect. sum,

In the circumstances when the apparent venue issue was considered did not warrant a ruling of venue change The trial necessary. court’s refusal to such grant relief was erroneous when made.

Nor, in did retention of the case in hindsight, Alameda an County produce indicate, unfair trial. As the answers to the People juror questionnaires indicated that the vast of did not majority remember prospective jurors about the hearing case. Included in this anything were six members group case, the final Of the six jury. sitting who had heard of jurors two recalled no details. The four no remaining the case expressed difficulty judging fairly.

Jurors need not be totally of the facts and issues ignorant involved. It is sufficient if the can juror lay aside his impressions render a opinions verdict based on evidence (Irvin adduced in court. v. (1961) Dowd 717, 751, 366 U.S. 1639]; 722-723 L.Ed.2d 81 S.Ct. v. Fauber People [6 792, (1992) 249]; Cal.4th 831 P.2d People [9 Ainsworth (1988) Cal.3d 1017]; 755 P.2d Cal.Rptr. [248 v. Harris 28 Cal.3d 949-950 623 P.2d Cal.Rptr. 240].) Moreover,

Defendant did not challenge any sitting for cause. jurors them, he failed to pose against even peremptory challenges though ultimately exhausted 16 of his 20 allotted 12 on the only challenges, regular 1128 This and four on the alternates. is a indication the strong jurors

panel 468, fair, (Dennis, that the defense so concluded. 17 Cal.4th were and 324, 106, 524; (1991) 1 Cal.4th 821 P.2d v. Price 393 People Cal.Rptr.2d [3 815, (1991) (Price); v. Daniels 52 Cal.3d 853-854 People Cal.Rptr. [277 610] 122, decisive].)9 can On this 802 P.2d that this factor be [indicating 906] record, the to an trial. No we denial of venue led unfair say change cannot for on this is shown. ground basis reversal

2. Denial severance of trial denied motion to sever pretrial attempted The court defendant’s of the Mishells from the count murder involving charging murder counts error, asserts, The Defendant claims the trial court erred. he Reyna. thereby trial, trial, his and reliable violated due fair process, equal protection, Fifth, Sixth, Fourteenth Amend- Eighth, under the and adjudication rights However, ments, no and of the California Constitution. analogous provisions error occurred. concedes,

As matters were statuto Reyna Mishell 954; see, (§ e.g., the same class. for as offenses of rily eligible joinder 492, 954, (1990) v. 50 790 P.2d Miller Cal.3d 987 Cal.Rptr. 1289] [269 crimes against person, murder are both assaultive attempted [murder ” “ joinable by class’ made expressly and as such are ‘offenses of same discretion, of 954].) have interests statutory Trial courts nonetheless § where unfairly to sever otherwise counts would joinable joinder justice, (§ 954.) the defendant. prejudice abuse of discretion

We review the denial of severance under a deferential (1997) 14 Cal.4th Mayfield Cal.Rptr.2d standard. v. (People [60 are P.2d (Mayfield).) statutory requirements joinder Where 485] met, a clear demonstrate showing prejudice the defendant must make (2005) Stitely trial v. 35 Cal.4th (People that the court abused its discretion. Mayfield, supra, 108 P.3d (Stitely); Cal.Rptr.3d 182] [26 720; (2000) see also People p. 485, Mendoza (Mendoza).)

6 P.3d 150] trial we before the In examine record assessing potential prejudice, (1) are whether at the time of its relevant factors ruling. court trials, are some charges would be cross-admissible separate evidence H., that, dire, brief, on the during her voir Suzanne who sat reply In his defendant notes assaults and detailed recall of the circumstances the Mishell jury, quite indicated a H., challenge perempto for cause or Reyna. defendant did not Suzanne either murder But Hence, challenges. believed appears it defense rily, peremptory failed to exhaust fairly. judge the H.’s that she could case Suzanne assurances

1129 defendant, likely (3) inflame the a weak case has unusually jury against case, case, been with a or that the joined with another weak so total strong may (4) evidence alter outcome on or all unfairly some one charges, offense, of the is a of the charges converts the capital joinder charges Mendoza, supra, 130, 161; matter a 24 (E.g., into case. Cal.4th see capital Marshall People 1, 84, (1997) also v. 15 Cal.4th 27 P.2d 931 Cal.Rptr.2d [61 262]; Price, supra, 324, 388.) 1 Cal.4th (Stitely, Cross-admissibility ordinarily inference of dispels any prejudice. 531-532; supra, People 514, v. 1229, 35 Cal.4th (1997) 15 Cal.4th Bradford Mayfield, 145, (Bradford); supra, 1315-1316 939 P.2d Cal.Rptr.2d [65 259] 668, 721; Sandoval People 155, 14 Cal.4th v. 4 (1992) Cal.4th 173 [14 (Sandoval); 342, People v. Balderas (1985) 841 P.2d Cal.Rptr.2d 41 862] (Balderas).) 144, 184, Here, Cal.3d 171-172 P.2d 711 Cal.Rptr. [222 480] ruled, the trial court evidence of the Mishell assaults would have been in a trial cross-admissible of the murder order to separate charge, prove defendant’s motive killing for and to Reyna, establish help special circumstance that was murdered to Reyna eliminate him as a witness in the Moreover, Mishell case. it is that enough the assaults were admissible in the case; (E.g., People murder not “two-way” is v. cross-admissibility required. Cunningham 926, (2001) 291, 25 Cal.4th 519]; 986 25 P.3d Cal.Rptr.2d [108 People Cummings 1233, (1993) 796, v. 4 Cal.4th 1284 Cal.Rptr.2d [18 (Cummings).)10 850 P.2d 1]

Defendant that because is not a urges motive element of disputed murder, motive evidence not cross-admissible on the murder at charge However, issue here. we have held that other frequently evidence of offenses (Jenkins, supra, 900, 948; is cross-admissible to motive 22 Cal.4th prove see v. Arias People also (1996) 92, 770, 13 Cal.4th 127-128 Cal.Rptr.2d [51 (Arias); 1233, 1284; Price, Cummings, 4 Cal.4th supra, 923 P.2d supra, 980] 324, 1 388), Cal.4th and in particular a motive to kill to a witness prevent (Jenkins, supra, Moreover, from testifying 948). p. defendant overlooks was that his motive eliminate Reyna as a element witness disputed witness-killing special circumstance. 190.2, (§ subd. (a)(10).) that,

Defendant argues where the issue is other-crimes evidence identity, Code, (see 1101) admissible Evid. if only it demonstrates similar and highly § common distinctive marks But suggesting common common perpetrator. marks are not crucial where mere defendant committed a fact 10 115, Though this trial postdates adoption concerned Proposition we are not with 954.1, measure, that, section added providing to the Penal Code initiative severance, notwithstanding grant may section court statutory trial not where met, joinder requirements solely is ground joined are on the that evidence in cases cross-admissible. 1130 that he a motive to commit a later offense rise to an inference gives

prior 350]; Pertsoni (People (1985) Cal.Rptr. one. Cal.App.3d [218 Oliver, 970, 1001; Stitely, supra, Lewis and Cal.4th see 532; v. Barnett Cal.4th 384].) P.2d 954 that, for Defendant even if the of defendant’s suggests responsibility fact case, in the murder

the Mishell assaults would be cross-admissible Reyna evidence of the extent of Mishells’ not necessary prove was injuries more motive for and should have been excluded as killing Reyna, prejudicial observe, Code, However, (See 352.) than Evid. probative. People § Mishells, of and the seriousness of consequent the attack on gravity case, in that was relevant evidence liability the criminal defendant faced he had of defendant’s incentive to kill man to whom strength Reyna, that, Hence, the abuse in by ruling confessed. trial court did not its discretion trial, an it would admitted this evidence over Evidence a murder have separate Code 352 objection. section of the Mishell assault evidence in

Given the clear cross-admissibility case, cases have been murder no other factor indicates the should Reyna death but the Mishell carried the because Reyna charges penalty, severed. those regardless evidence would have been admissible support charges no additional in favor of joinder prejudice capital joinder, produced punish- assertion, Moreover, not serve to to defendant’s did joinder ment. contrary for the a case or cases. Evidence of defendant’s responsibility bolster weak conclusive, was evidence that murdered Mishell assaults virtually circumstantial, the denial extremely strong.11 Accordingly, was Reyna, though did not an abuse of the trial court’s discretion. of severance constitute conclude, reasons, that the trial all these we similarly appeal, For “ made, in ‘a hindsight, gross when did not produce, court’s ruling, proper a fair or due the defendant of trial process unfairness . . . such as to deprive 155, 174, (Sandoval, 4 Cal.4th quoting of law.’ [Citation.]” 1087]; P.2d see Johnson Cal.3d Cal.Rptr. claim must be Stitely, supra, 531.) Defendant’s severance rejected. above, Reyna people a the fact that told number As indicated this evidence included him, a that Reyna gave police that statement had admitted the Mishell assaults to defendant effect, testifying avoid pressure to recant his statement and Reyna that resisted defendant’s alive, case, again was Reyna meeting with defendant and never seen the Mishell that left for Reyna’s was at the scene where dismem a tool identified as defendant’s found isolated that discovered, Reyna’s country immediately after body fled the

bered disappearance.

3. Alleged discovery violation 12, 1993, On testimony after defendant’s commenced Monday, April that, and the had been dismissed announced day, for defense counsel on the his office had obtained sent previous Friday, letters 1989 by (Terri) defendant’s Terri. sheriff at the sister Zambrano North deputy trial, County jail, where defendant was housed and to the pending himself.

The letters were written in an with words and agitated style, many phrases underlined and Terri’s fear of capitalized They emphasis. expressed defendant and if asked she be notified his release was immediately letters, imminent. According to the Terri had obtained order restraining her, after he against defendant tried to and kill he had also tried to rape kill other of members the Zambrano to the The letter family. prosecutor further stated that defendant had been “bom insane” omitted), (capitalization that the condition was he that was “incurable and hereditary, untreatable” omitted), (capitalization that would not him or prison punish improve condition, and that kill again” & (capitalization, underscoring, “[would] exclamation if multiple points omitted) given life without parole.

Defense that urged counsel failure to the People’s disclose letter to the Brady Maryland (1963) 373 U.S. 83 prosecutor contravened v. L.Ed.2d [10 215, 83 S.Ct. (Brady). Counsel insisted the revelation of 1194] defendant’s mental Brady, was favorable problems and material within the meaning because it have an might investigation into mental spurred defenses. possible foreclosed, That was now strategy counsel because the urged, defense had stand, already defendant on the and Terri had since put died the letter was basis, written and On sent. this moved counsel for a mistrial. seen,

The prosecutor as follows: He had not and did responded not know of, the to him, letter sent He jail. had received the letter addressed to but little placed on it weight because of his serious doubts about the author’s event, state of mind. In any Terri’s letter was the kind of material he would over, include in that normally discovery, and was not turned then it was “[i]f an oversight. I turned I have everything that over to them to.” attempted [or]

The noted that still . prosecutor alive another sister . . remaining “[t]here that the defense hasn’t with I’ve been told and also brother spoken [a] indicated, Finally, prosecutor “I think counsel will that on agree [defense] I occasions have asked them or invited couple go them all the through files that I’ve make sure got that was turned over.” everything

The court observed an defense on the letter seemed basing insanity stretch, somewhat diminished of a while a defense was contradicted capacity 1132 intend kill Luis On this defendant’s he did not testimony Reyna. However, noted,

basis, defense was denied. the court the mistrial motion be to a it might could submit letter psychiatrist help could not the letter The court admonished that the use also phase. cross-examine defendant. failure to disclose On defendant contends the prosecutor’s appeal, both the letters was misconduct in violation of state prejudicial reciprocal et and the constitutional (§ obligation, statute federal discovery seq.), Brady, We favorable to the defense. materially under evidence suppress the claim.12 reject from sup

The federal due clause process prohibits prosecution to the The of disclosure duty evidence favorable accused. pressing materially faith, bad of whether the defense regardless or regardless good exists (United v. States Agurs (1976) U.S. has the materials. requested Brady, supra, 2392]; 87.) 373 U.S. L.Ed.2d S.Ct. [49 limited office actually is not to evidence the itself obligation prosecutor’s but “evidence known to others acting knows of includes possesses, (Kyles Whitley case, including in the behalf government’s police.” (Kyles).) 514 U.S. L.Ed.2d 115 S.Ct. 1555] Brady if the or hurts For evidence is favorable it defense helps purposes, (United States v. as a witness. by prosecution the prosecution, impeaching re In 667, 481, Bagley 3375]; (1985) U.S. 676 L.Ed.2d 105 S.Ct. see 473 [87 446, 527].) Sassounian 535, (1995) Cal.4th 544 887 P.2d 9 Cal.Rptr.2d [37 its would is material if there is a reasonable disclosure probability Evidence 668, Banks v. Dretke (2004) 540 699 (E.g., altered the trial result. U.S. have 1166, of 1256].) includes consideration L.Ed.2d 124 S.Ct. Materiality [157 the and trial strategies. effect of nondisclosure on defense investigations see In re Brown 682-683; (Bagley, supra, 17 887 (1998) Cal.4th at pp. 12 court, statutory In the trial he mentioned arguably Defendant has forfeited the state claim. statute, Brady, though long discovery postdates not the his motion only reciprocal Moreover, 115, the measure that enacted the statute. adoption Proposition of initiative these prosecution “informal to the for prior request” is no indication defendant made a there (either discovery) part general category of as the statute specifically or as of materials 1054.5, (b).) (§ requires. subd. motion, trial, and obtained a court However, nonstatutory before defendant made a formal order, discovery, including possession disclosure of material comprehensive “[a]ll guilt to the or personnel or which ... material defendant’s law enforcement is prosecution Moreover, innocence, to is difficult penalty.” or is relevant to the determination it otherwise specific items of which statutory request” procedures apply that the “informal conclude preliminary Because the neither nor has reason to know. party entitled disclosure knows difficult, we statutory compliance are thus close and assume of forfeiture and issues (See People Champion appeal. statutory claim preserved has (Champion).) Cal.Rptr.2d P.2d 93] fn. 6 [39 (Brown).) Because a constitutional P.2d 715] evidence was material these

violation occurs if the only suppressed standards, need for Brady is reversible without was satisfied finding 419, 435.) (Kyles, supra, further 514 U.S. harmless-error review. above, indicated statute discovery independently requires

As reciprocal defense, trial or soon as to the in advance of as disclose prosecution discovered, of the certain of evidence “in the prosecut- categories possession in the or ... to be ing attorney by] attorney prosecuting [known 1054.1.) (§ of the Evidence investigating agencies.” subject possession disclosure includes relevant real evidence seized or obtained as part “[a]ll (c)) and (id., “[a]ny of the of the offenses subd. investigation charged” cause, (id., (e)). must evidence” subd. Absent such evidence exculpatory good trial, be if discovered or disclosed least 30 before days immediately (§ 1054.7.) obtained of trial. within 30 days

It clear the statutory, committed no constitutional or lapse, with to Terri’s letter to the sheriff. The respect deputy prosecutor represented, contradiction, without that his office did not that letter and that he possess Hence, was unaware of its existence elsewhere. he had no statutory duty (§ 1054.1.) disclose it.

Moreover, the record does not show the sheriff’s office was an agency to the or constitutional disclosure. So far subject statutory duty appears, the sheriff was defendant’s not involved in the only jailer, investiga- tion or him. prosecution charges against Brady,

Under extends to evidence “known to the duty prosecutor’s 419, 437), (Kyles, supra, others on the behalf’ 514 U.S. acting government’s cannot be held for evidence in prosecution reasonably responsible “[b]ut of all those not involved in possession government agencies, including the or of the . . . investigation by case. prosecution possessed ‘[information an agency has no connection to the or investigation prosecution criminal the defendant is not the charge against by possessed prosecution team, and the does not the or to disclose have search for prosecutor duty 682, (In re Steele such (2004) material.’ 32 Cal.4th 697 [10 [Citation.]” Brown, 536, (Steele)’, 85 P.3d see also 17 Cal.4th Cal.Rptr.3d 444] “ ‘ “ 873, [Brady 879 concerns evidence duty possessed by ‘prosecu- ” ’ ” “ ‘ team,’ tion which includes “both investigative prosecutorial ’ ”].) personnel” statute refers to evidence Similarly, discovery only possessed reciprocal (§ 1054.1.) office and “the There investigating agencies.” prosecutor’s is no reason to assume the statutory assigns quoted phrase prosecutor broader to discover and disclose evidence in the hands of other duty agencies than do and its the letter to sheriff’s Brady Accordingly, deputy progeny. not or statutory was within constitutional disclosure requirements. in the letter to the favorable

Finally, nothing remotely deputy material to the defense. Defendant does not otherwise. seriously argue condition; letter did not allude to defendant’s mental it simply represented that he is a violent who attacked his own members in the family person past Hence, and would do so if free from incarceration. this letter was again to disclosure under either or the subject Brady exculpatory-evidence prong statute. discovery duties, Nor did the or statutory, violate disclosure constitutional prosecutor with to the letter sent to him. In the first while he conceded he respect place, item, have over” this he nonetheless might neglected agreed “tum[] letter was in his and he out that he had invited defense possession, pointed “on a ... all the files that I’ve go through got occasions couple counsel to make sure that was turned over.” everything

Defense counsel neither denied these invitations were made nor asserted came too late. He did not indicate that a examination of they timely failed to the letter. did he the files files had reveal Nor prosecutor’s suggest had been made available under circumstances that rendered examination or unfairly impracticable oppressive. not withhold favorable material

“Although prosecution may defense, from the neither does it have the to conduct duty evidence him. If the material evidence is in a investigation defendant’s [Citation.] the exercise through defendant’s or is available to possession due then ... the defendant has all that is to ensure fair diligence, necessary 1031, (2005) trial .. . .” 35 Cal.4th 1048-1049 (People [29 Salazar 16, added; 14], (2004) 112 P.3d italics see also v. Morrison Cal.Rptr.3d 568].) 101 P.3d [21 reason, observe, the Brady obligation For this as the People prosecutor’s circumstances, an file” under under be satisfied by “open policy, may, proper the case which defense counsel are free to examine all materials regarding (See v. Greene that are in the Strickler prosecutor’s possession. 263, 283, 1936]; also, e.g., U.S. fn. 23 L.Ed.2d S.Ct. see 15; 2006) Beers (1st Cir. 467 F.3d U.S. v. Morales-Rodriguez

U.S. v. course, 1304.) relies on (10th 1999) Cir. F.3d Of if the defense assume his files contain Brady, such a with comply may policy 23.) (Strickler, at fn. p. all the evidence he is to share. obligated to impose Concerns also arise if the used might prosecutor policy burdens on the defense. self-discovery or unduly oppressive impracticable above, But, raised this by those concerns are not for reasons detailed files, and would For all that the letter was in prosecutor’s record. appears, files examination of those revealed a by timely, practicable have been defendant fails invitations. Accordingly, to the prosecutor’s multiple pursuant no reason to assume Brady violation. Because we see to demonstrate we burdens on the statute discovery greater prosecutor, imposed reciprocal violation. as to defendant’s claim of statutory reach a similar conclusion that Terri’s letter to the was we are not Finally, persuaded failure to disclose it was Brady, material for or that any purposes conceded the letter’s for of state law.13 Defense counsel prejudicial purposes ,to would been an of defendant’s mental investigation value have only spur letter have denied Yet the claim that nondisclosure may problems. defenses is chance to successful mental investigate present and stretches credulity. speculative

Given the evidence that defendant had assaulted the savagely convincing Mishells, him, and had after it is difficult killing dismembered Reyna’s body a mental-condition did not otherwise occur imagine that strategy relevant, counsel. To the extent information counsel had family ample initiative, had on their own to obtain it. the defense opportunity, Though died, and Terri its already implemented guilt phase strategy, apparently revealed, the time the “bom letter was there seems no reason why insane” by earlier, this information was not available from Terri or other mem- family bers, as the of a defense reasonably diligent investigation. result

Moreover, rendered the letter’s even its exaggerated, hysterical, style Indeed, notion that the defense believed the letter credibility suspect. is credible new information about defendant’s mental condition provided that, belied the fact mental issues would have been by although independently 190.3, (d), (h), penalty phase (see (k)), although relevant factors § the court the letter to a told counsel could specifically they present psychia- use on the no sought trist issue counsel penalty, penalty phase continuance the issues raised the letter. And the defense explore no mental-condition at the evidence presented penalty phase. defendant’s there is little chance that evidence of fundamentally,

Most results. The guilt mental illness would have influenced either statute, why any reciprocal-discovery of the California appears No reason violation People such, standard set forth in subject appeal considered as is not to the harmless-error 243], (1956) only where it Watson P.2d and thus is a basis for reversal 46 Cal.2d 836 [299 standards, affected the trial result. We reasonably probable, by state-law that the omission v. Bohannon any contrary Cal.App.4th disapprove implication in Brady materiality standard to violations (appearing apply 805-807 [98 488] statute). reciprocal-discovery defendant, a contractor evidence made clear that successful actually presented affair, official, carried on extramarital then assaulted the and an public it. took elaborate Mishells because he them of Defendant exposing suspected to establish an alibi for the Mishell admitted his beatings. Having guilt steps admission to the Luis Reyna—an Reyna reported police—defendant statement, to recant his and to avoid Reyna police testifying against pressured defendant. efforts,

When resisted these defendant killed him to his Reyna prevent tools, beheaded, dismembered, his contractor’s defendant testimony. Using in an area under circumstances which— scattered isolated Reyna’s body even aside from defendant’s trial admissions—suggested hamper purpose With defendant then obtained body’s identification. his girlfriend’s help, documents, Mexico, false fled to and lived at there for identity large many States. From months before he was his return the United apprehended upon cell, his he continued his efforts to him. At the jail against suppress proof trial, old, niece was 15 he had his testified that when she years location, contrived to take her to an isolated where assaulted her. sexually rational, Thus, and ma- evidence portrayed calculating, circumstances, in the of venal Under these there is no ends. nipulative pursuit reasonable chance mental-condition defense would have succeeded in him, death judgment. or exonerating reducing culpability, preventing material, The claim of of evidence therefore fails. nondisclosure prejudicial C. Guilt trial issues evidentiary recovery evidence Mishells’ Neuropsychologist’s regarding

1. and prognoses who treated testimony by physicians prosecution presented aftermath of defendant’s assaults. This testimony

Mishells in immediate indicated, other Both victims suffered among things, following: multiple fractures, and both surgery injury-related, skull relieve depressed required on their brains. Barbara Mishell from life-threatening, emerged pressure in swallowing, her trauma-induced coma with right-side paralysis, difficulty read, write, time she and an she left the inability By hospital, speak. walk, talk, not or feed herself. It she would need still could appeared extensive rehabilitative her therapy, good. prognosis the court it understood the prosecu- defense counsel advised Subsequently, Price, tion intended to Dr. who supervised present neuropsychologist, and continued to treat them at both victims’ rehabilitative long-term therapy time concern the of trial. Counsel Dr. Price’s would testimony anticipated rehabilitative over the couple’s two or three since their release progress years from the (Evid. Counsel that such evidence was irrelevant hospital. objected Code, cumulative, 350) and in that medical witnesses had already §§ established the serious and extensive nature of the Mishells’ Counsel injuries. also asserted that this evidence should excluded be as more than prejudicial (Id., 352.) probative. § to the

Alluding that the complaint’s allegation Mishells suffered great (GBI), bodily injury that “I don’t think the prosecutor law responded met, ... we have to says as soon as the minimum burden for stop [GBI] and I think the has to right understand full scope [those] He injuries.” insisted that Dr. Price’s would differ from that testimony already because it would describe the presented, of the blows long-term impact inflicted. defendant had

The court advised the that “I think prosecutor trying say, [counsel is] does that intent kill help you prove or are Why premeditation, you [f] this?” The doing prosecutor again asserted that “I’m this to doing prove extent of the and to intent to kill and to show the full extent of prove [GBI] suffered, the injuries and I think the law entitles me to do that.” [Barbara] Suggesting evidence be “might able to show the issue murder,” mental necessary state in assault with a deadly weapon attempted the court overruled the but directed objection his keep brief. presentation

In his testimony, Dr. Price that Robert Mishell had reported largely function, regained but cognitive would have his career difficulty resuming as an immunology because he retained professor deficits in the areas of and visual memory spatial Dr. Price also discussed the character- functioning. istics of posttraumatic amnesia as they might to Robert’s recall of the apply events surrounding attacks. Dr. Price related that Barbara continued to exhibit emotional and behavioral related to brain instability as well damage, as profound aphasia—the inability to or understand He her speak said speech. prognosis the functional use of regaining was language poor.

On defendant claims Dr. appeal, Price’s was irrelevant to the testimony elements of the murder He it cumulative to attempted charges. urges was the extensive evidence about the nature and extent already produced Mishells’ served injuries, to inflame the and should have been only jury, asserts, excluded error, under Evidence Code section 352. The court’s Fifth, Sixth, violated his additionally rights under the and Fourteenth Eighth, Amendments.

The evidence was admitted. Information about the full extent of properly the Mishells’ conditions from the attacks resulting relevant and directly defendant, that he to the not conceded formally allegation, probative as it Nor was the evidence cumulative insofar inflicted GBI on the victims. effects of the Mishells’ injuries—-information focused on the long-term witnesses. other provided by prosecution below, were not observe that correctly they required

As the Mishells’ once injuries evidence of the full extent of to withhold the GBI had been allegation passed. minimum threshold necessary prove the most only need not the force of its case by presenting sap prosecution evidence, (E.g., even in the face of defense offer stipulate. antiseptic 252, v. Marks 197, People 72 P.3d (2003) 31 Cal.4th 226 Cal.Rptr.3d 1222] [2 1199; Pride, Box, supra, 195, 1153, 3 Cal.4th (Marks); 23 Cal.4th finder, fortiori, here, where, the fact must convince 243.) A prosecution doubt, the defendant has not of and allegations reasonable beyond charges conceded, evidence to sanitize case by only enough it need not its presenting meet bare legal sufficiency. Mishell, victims,

Moreover, and in Barbara evidence that the particular trauma, but substantial deficits long-term suffered not severe acute also only disabilities, attack was not unduly as the result of defendant’s vicious For this Code section 352. purpose, for Evidence prejudicial purposes (E.g., without to relevance. regard means inflammatory “prejudicial” uniquely 1100, 27, 33 P.3d v. People Kipp 1121 (2001) Cal.Rptr.2d [113 issues, and was related to the 450].) Dr. Price’s testimony logically of an testimony way, through expert nonsensational presented 352 broad discretion under section witness. The court acted well within its 345, v. Gurule (e.g., People (2002) 28 Cal.4th 654 Cal.Rptr.2d [123 879, 913) 9 Champion, supra, it ruled the 224]; Cal.4th when 51 P.3d evidence admissible. that, rules on an when the trial court

Defendant invokes the premise must show affirmatively 352 the record objection, Evidence Code section v. Mickey e.g., People (See, value. against probative court weighed prejudice (Mickey).)14 818 P.2d 656 (1991) 54 Cal.3d Cal.Rptr. 84] [286 this or trial court failed to satisfy requirement, Defendant insists the instant theory—that when it used a mistaken legal its discretion correctly, exercise assess the proba- mental state—to the evidence was relevant to his culpable the evidence. tive value of mani- the evidence was argument, merits of this the technical

Whatever admissible, by other reasons objection, presented over section festly course, against value—or weigh prejudice probative judge expressly “the trial need not Of 612, 656; (Mickey, supra, 54 Cal.3d done that he has so expressly [citation].” even state accord, 885 P.2d 887] Crittenden Cal.4th (Crittenden).) Indeed, to the under a trial court. correct analysis, value Dr. Price’s so exceeded its

probative testimony clearly prejudicial that the by excluding effect court well have abused its discretion might evidence. event,

In admission of the evidence was harmless any applicable standard. The heard conclusive evidence that defendant was the perpetra- Mishells, tor of a vicious assault against in which each suffered they case, head multiple life-threatening injuries Barbara’s to severe leading, brain from damage which she was to recover. Under these circum- unlikely stances, additional evidence deficits and confirming long-term couple’s not, doubt, disabilities could a reasonable have influenced the beyond guilt outcome. No basis for reversal is demonstrated. 2. Admission Robert testimony Mishell’s 31, Defendant claims Robert memory Mishell’s of the events of January 1988, disorder, both his head impaired by and his injuries preexisting bipolar Hence, was unreliable. defendant urges, Robert’s should have been testimony excluded under Evidence Code (evidence sections 702 of witness lacking personal inadmissible) (evidence is knowledge be excluded as may evidence, more than prejudicial probative). Admission of the defendant insists, Fifth, Sixth, violated his under the rights Eighth, and Fourteenth Amendments. recollection,

As evidence of Robert’s faulty defendant to points inconsis- times, tent details related Robert at by various in his including preliminary hearing testimony in his interviews with officers in the hours and police days notes, following assaults. most Perhaps significantly, Robert’s trial that defendant at testimony arrived the Mishell residence with a toolbox, thus attacks, he suggesting brought with him the used in the weapon was contradicted by what told the after hours the attacks. police

The claim is forfeited because defendant did not at trial object to Code, 353, (Evid. introduction of Robert’s v. (a); subd. People testimony. § 585, Cudjo (1993) 390, 6 Cal.4th 863 P.2d Cal.Rptr.2d [25 635] must At the trial].) raise claim of testimonial at [defendant incompetence preliminary hearing, defendant was to examine Robert on issue permitted examination, of his “competency” testify. Following preliminary court found Robert hearing from his knowl- “qualified testify personal Absent a or edge.” ruling that an to such stipulation objection testimony trial, would be deemed renewed at defendant’s failure to renew it means Clark, v. issue was not for appeal. (People supra, 50 Cal.3d at preserved trial, renewed]; 623-624 made in pp. [objection but not cf. prior 851, P.2d Pompa-Ortiz 27 Cal.3d 519 (1980) Cal.Rptr. 941] [165 for no basis hearing at right preliminary of substantial (Pompa-Ortiz) [denial trial].) fair following reversal of conviction appellate event, governing lacks merit. The principles In the claim are well lack of capacity of the witness’s grounds exclusion of testimony [law], except is to testify . . . current every person qualified settled. “Under Code, as a witness 700.) A is (Evid. disqualified statute. person by § provided or herself himself if he or she is ‘[i]ncapable expressing [understand only (id., 701, .), or is (a)(1) . . matter’ subd. ably] concerning § [testimonial] (id., . . . to tell the truth’ of a witness duty of understanding ‘[i]ncapable 543, v. Anderson (People Cal.4th 572-573 (a)(2) .).” subd. . . (Anderson), omitted.) are 575, These issues 22 P.3d italics 347] (Evid. the court .... to be determined exclusively “preliminary fact[s] .)” (Anderson, 573.) Code, (a) subd. . . . p. § to communicate is not entirely disqualified incapacity Even if a witness truth, or her on a testimony tell the duty understandably grasp matter is inadmissible particular knowledge if he or she lacks personal Code, (a).) The (Evid. capacity perceive subd. matter. subject § knowledge. within the issue of personal facts is subsumed recollect particular (Anderson, supra, cited.) and authorities But, (a)(2), knowl- subdivision personal under Evidence Code section events, and recollect particular edge, including capacity perceive to act as from fundamental capacity in a different manner determined “ if ‘only knowledge be excluded for lack of personal witness. Evidence may ” knowledge.’ has such find that reasonably no could jury witness] [the “ Thus, 573, (Anderson, supra, 543, omitted.) ‘if there is italics 25 Cal.4th issue], the events at and recollect evidence that the witness perceive [can left and does recollect in fact whether he perceived determination [or she] ” (Id. at 573-574, omitted.) italics to the trier of fact.’ pp. as a fundamentally disqualified claimed Robert was Defendant has never below, about Here, that Robert’s testimony he asserts only witness. as 1988, 31, because he lacked capacity was inadmissible of January events those events. and recall perceive could a rational jury from which evidence But the record contains ample the attacks and recollect and independently that Robert did perceive conclude circumstances, defendant as identified correctly and surrounding their account of trial, and entirely plausible a coherent At Robert gave assailant. evidence. events, consistent with physical account was which these cross-examination, that, an extensive During he admitted before and since the attacks, disorder, medication, he suffered from chronic controlled bipolar but denied that this condition affected his He conceded he had memory. attacks, suffered amnesia posttraumatic two weeks during following and other instances of were Yet the forgetfulness revealed. cross- lengthy examination, in which defense counsel took the witness an through exhaus- tive review his preliminary hearing testimony his several police statements, indicated minor variations in only these versions.

That Robert’s various accounts were inconsistent in some or that respects, revealed testimony lapses is no basis for a memory, determination he was unable to fundamentally or recollect the testimonial perceive events. (People Lewis 334, 272, 26 Cal.4th 28 P.3d Anderson, 34]; sum, supra, 574.) In there was no substantial basis for the exclusion of his It testimony. to the to decide up whether his (Lewis, Anderson, 358; recollections were accurate. supra, at p. 574.) No p. error occurred.

3. Admission “hacker” excerpt letter to from defendant’s Oberman her During for the testimony Celebration Oberman People, read to the jury, without letters, defense objection, passages from two marked previously identification exhibits 72 and People’s that defendant had written her from From jail. 4, 1989, exhibit postmarked December Oberman read: “ ‘If me, your friends attack tell them that like you your to be toy boys darkly hackers, handsome and murderers, charming dangerous, pirates, ” that I fit the bill.’ From 19, 1989, exhibit postmarked December “ Oberman read: I don’t ‘Sorry know more about kitchens. I do know about ” however; and hacking, I could hack a cart easily you to make pizzas.’

At the case, conclusion of the People’s on relevance objected grounds, and under Evidence letters, Code section to admission of these and in particular admission of the pages containing Oberman passages now read—pages marked for identification as exhibits 72-A and People’s 73-A, Counsel respectively. urged that the term in exhibit 72-A— “hacking” there used in connection with a cart—did making not to pizza any pertain issue, trial but was highly prejudicial given the facts of the case. As to exhibit 73-A, in which defendant “hacker[], said he “fit the murderer[], bill” as a pirateQ,” counsel asserted that even if [and] was not related to the “hacker[]” 72-A, cart” reference in “pizza exhibit its use next to the word “murderer[]” a produced effect far in prejudicial excess of its value. probative 72-A, The court ruled that exhibit the cart” would be “pizza passage, 352,” excluded there, “on in context, that the reference read in “hacking” However, not to the court admitted exhibit 73-A connected case. appeared i.e., murderer, hacker, a that “an that defendant was “a guilt,” as admission stuff,” “[tjhat’s in.” why going kind of it’s trial that “hacker” was

In his stated a testimony, “computer connotation, have but meant term” which had come to originally pejorative it but “a who would solve elegantly problem by hacking person find a He said that while he and Oberman to solution.” trying persistently Oberman, illiterate,” from were in Palm he had read to a “computer Springs, heroes,” result, come a book about “hackers” as and as a she had “computer call defendant “her little hacker.” to that, 73-A, the trial abused by

Defendant now exhibit court urges admitting court discretion under Evidence section 352. He asserts the trial its Code in “hacker” was used admitted though recognized exhibit even it that this insists, a murderous context. In the jury before particular, by placing term defendant’s as “hacker”—an for inflammatory self-reference purposes him his to a of this case—the court denied Amendment particular Eighth right reliable trial. capital outset, find no At the that the

We abuse of discretion. defendant mistaken use of trial court saw no sinister defendant’s “hacker” implication above, 73-A. On the as indicated while court considered contrary, exhibit innocent, exhibit 72-A was it ruled that the reference “hacking” probably 73-A could be considered an admission reference in “hacker” exhibit of guilt. this issue.

The court concluded that exhibit 73-A was probative properly was Though meaning perhaps open interpreta- disputed passage circumstances, tion, it was a sinister construction was reasonable. Under these (See, determination. e.g., for make Kraft (Kraft).) 5 P.3d Cal.4th 1032-1035 68] found, Nor, the evidence so uniquely trial court implicitly its unfair clearly outweighed its inflammatory potential prejudice Indeed, this letter by excerpt, value. admitting prosecution probative words. asked fact finder own bragging defendant’s simply interpret 73-A. admitting is no to conclude the trial court erred exhibit by There basis Moreover, standard. The any jurors error was harmless by applicable stand read them from witness heard already disputed passages, doubt, circumstances, a reasonable these beyond Oberman. Under evidence cannot have affected the guilt admission of exhibit 73-A into later basis for reversal appears. outcome. No 4. Hearsay objection Reyna tape recording 7, 1992, selection, On August the prior notified the prosecution 5, 1988, defense it intended to offer in evidence Luis Reyna’s April tape- interview, that, recorded interview with the In this police. stated Reyna during men, a conversation between the two defendant had admitted his responsibil- assaults; for the ity Mishell also Reyna indicated that defendant had at- to enlist in tempted Reyna’s an alibi for those help establishing offenses. admissible,

The notice asserted that the statement was as an excep rule, tion to the under hearsay Evidence Code section 1350. This statute case, provides hearsay in a exception, “serious for felony” properly memorialized, authenticated, trustworthy, corroborated statements made to a law enforcement officer aby declarant who thereafter became unavail because, evidence, able as a court witness clear and by convincing or she killed, behest, or with the kidnapped defendant’s or at his participation for the of purpose preventing defendant’s arrest or prosecution.15

Defendant moved in limine to exclude the that it did meet tape, urging of Evidence requirements Code section of the 1350—interpreted light federal confrontation clause’s ban on was more untrustworthy hearsay16—and Code, (Evid. than prejudicial 352). probative § 1350, 1985, (Stats. Evidence 2523), Code section enacted in 1985 p. ch. § provides in pertinent part: “(a) In a criminal proceeding charging felony, a serious evidence of a by statement made declarant is by not made hearsay inadmissible rule if the declarant is unavailable as witness, and all of the following are true: “(1) There convincing is clear and evidence that the unavailability declarant’s was know- ingly by, by, caused by aided or solicited party against whom the statement is offered for purpose preventing prosecution arrest or party by and is the result the death declarant, homicide or the kidnapping of the . . . [f] [f] “(3) The statement has recording been memorialized in a tape by made a law enforcement official, or in a written statement prepared by a law signed by enforcement official and official, declarant and notarized in presence of the law prior enforcement to the death or kidnapping of the declarant. “(4) The statement was made under circumstances which indicate its trustworthiness and inducement, threat, was not the promise, result of or coercion. “(5) The statement is relevant issues to be tried. “(6) The statement is corroborated other evidence which party tends to connect the against whom the statement is offered with the felony commission of the serious with which party charged. The corroboration merely is not sufficient if it shows commission of the offense or the circumstances thereof.” trial, Const., Amend., (U.S. At the time of defendant’s the federal confrontation clause 6th 3) accused, truth, cl. was preclude against deemed to the use a criminal of the out-of-court (1) statement of a declarant only unavailable for if the cross-examination statement did not fall firmly (2) within a hearsay rooted exception “particularized guarantees otherwise exhibit (Ohio (1980) 2531].) trustworthiness.” v. Roberts 448 U.S. L.Ed.2d 100 S.Ct. [65 Thereafter, Washington 541 U.S. 36 L.Ed.2d S.Ct. 1354] Crawford 1144 other the court denied the defense motion. Among things,

The court Evidence “corroboration” set forth in noted the correctly requirement as to the only charges section 1350 Mishell assaults—the only Code applied truth, and to subject statement was offered its was thus to which Reyna’s for Code, (see had reviewed 1200).17 rule After it confirming the Evid. hearsay § statement, the hearing and had read preliminary transcript taped “I am admit the statement the court ruled that recorded going transcript, evidence, clear convincing, 1350 the there is and ground under on [section] defendant the statement was caused the and [Reyna’s] unavailability by [that] the evidence.” which concerns the assault is corroborated by the state- Defendant renewed his objection prior prosecution’s opening ment, as clause as well invoking this time the confrontation explicitly midtrial, of before the introduction again Evidence Code section and in redactions for evidentiary the statement. certain other Subject taped reasons, The of Reyna’s these were overruled. objections again tape recording 5, 1988, statement, redacted, for as was the played jury. police April failed to satisfy defendant contends the again prosecution On appeal, Code for the of statement under Evidence Reyna’s admission prerequisites merit. section 1350. claim lacks issues, hearsay review those rulings, including involving

We evidentiary v. Waidla Cal.4th abuse of discretion. (E.g., for standard, the record (Waidla).) Under that 996 P.2d 46] its conclusion that the statement by supports considered trial court amply admissible under this statute. was that, ruling, first at the time of the court’s evidentiary

Defendant insists caused clear evidence defendant convincing knowingly there was not defendant’s arrest or prosecu- death for the of preventing Reyna’s purpose as a itself evidence of status Reyna’s But the statement taped tion.18 (Crawford), Roberts clause forbids high held that confrontation court overruled ” “ truth, use, of a declarant of made outside court for all ‘testimonial’ statements criminal opportunity had a appear prior witness unless the defendant who does not a trial statement, (Crawford, supra, 51.) knowingly A “recorded p. at cross-examine declarant. qualifies as testimonial under given response police questioning,” to structured Crawford. (Id. 4.) p. fn. charge below, murder Reyna’s taped statement was admissible As we discuss significant by Reyna, but as evidence he was truth of the assertions made for the case, defendant against attempted murder and that potential witness Mishell testimony. Reyna prevent to kill had a motive thus purpose preventing “for the of statutory phrase does not that the dispute Defendant Code, added) (Evid. (a)(1), italics prosecution subd. arrest or § defendant]” [the testimony against witness’s trial killings preventing potential purpose extends to in the Mishell assault case.19 significant, prosecution witness potential, Moreover, disclosed evidence that defendant knew preliminary hearing trial, testified, the threat There Yolanda sister as at posed by Reyna. Reyna’s the that before he told defendant on the night disappeared, Reyna telephone was he not afraid of defendant and intended him.20 testify against that,

There was after news day also evidence within a this strong receiving Reyna, from defendant killed him. At the Reyna’s preliminary hearing, trial, testified, Helen mother as that on the after his morning telephone defendant, home, conversation with left Reyna family with some trepida- tion, face, to meet defendant face and that never Other Reyna returned. witnesses recounted the after preliminary hearing discovery, Reyna’s days of disappearance, his and dismembered in an decapitated body isolated location, as well forensic evidence to the linking defendant physical homicide. This included that bloodstains on the testimony exterior interior of defendant’s abandoned truck included consistent samples with victim’s blood. circumstances,

Under these arose inference that defendant had strong murdered Reyna, and had done so to threatened prevent testimony Reyna would he The court give. trial was in clear and amply justified finding, by evidence, convincing that defendant caused this knowingly Reyna’s death for purpose.

Defendant also there were asserts insufficient indicia of trustworthiness surrounding Reyna’s statement either Evidence Code police satisfy section Indeed, out, the defendant. People point as the comments on the 1985 bill which became Evidence Code legislation section 1350 indicated that “the was by ‘motivated the “murdered dismissed, problem” charges witness . . . are every year serious lost or reduced because unavailability prosecution of who kidnapped by witnesses have been murdered or persons ” against they testify.’ whom Superior would Cal.App.4th Court 19 {Dalton 248], Research, Assem. quoting reading analysis Off. of 3d of Assem. (1985-1986 Sess.).) No. Reg. Bill concedes, must, Defendant also charges as he that the attempted murder in the case Mishell {Id., (d); were “serious purposes of Evidence section Pen. felonfies]” Code 1350. subd. Code, 1192.7, (c)(9).) § subd. 19Evidence requires Code section in asserted the recorded statement be facts however, by Otherwise, linking corroborated some other evidence to the crime. statute, aware, nothing in any principle precludes this or other of which we are consideration of police Reyna’s admissibility for the purpose determining statement itself foundational its hearsay objection. over that, Defendant makes much of the notion evidence based on the available when the court admissible, Reyna’s ruled statement testimony Reyna, defendant had no to fear reason from friend and colleague, Reyna attempted, erstwhile waterfront commission subsequently because 13, 1988, April in an with a investigator, police interview defense recant his statement. investigator hearing testified at preliminary any about this interview. But such inference conversation, belied telephone night Reyna was later which disappeared, before Reyna advised defendant he was not afraid of to tell him and intended the truth. (fn. post) We below argu- 1350 or the confrontation clause. discuss any be under federal Constitution. ment defendant understood advance may Evidence section evidence that the statement was For Code purposes very trustworthy strong. statement,

At the not in nor a Reyna time of his custody, suspect interview, crime, At but a citizen witness. the outset any police at the own will” and that the that he was station “of free agreed police [his] not “made or set conditions” any promises guarantees police [him] on his statement. indicated he and defendant were friends Reyna colleagues on the Waterfront Commission. Berkeley account his and encounters then detailed of conversations

Reyna gave over months calls anonymous telephone with defendant several about his defendant that a and wife were receiving, was his suspicions professor his his determination to handle the matter “his ultimate way,” responsible, Mishells, Reyna’s account of his attack on the and his efforts enlist help interviewer, Gustafson, an alibi. At one Detective constructing point, notes he had made of his contacts with consulting observed that Reyna defendant over this period. for lie what his colleague

The record disclosed no motive about Reyna Indeed, hearing had him. testimony and erstwhile friend told preliminary and defendant’s suggested mother sister that later resisted Reyna’s safety. efforts to dissuade him from concern for his testifying despite personal should have been deemed untrustwor- Reyna’s Defendant statement urges Reyna that hearing pro- because Gustafson testified thy preliminary statement, information, .that, no new to his at least vided significant prior affidavit, details, contained in sealed search warrant some a previously when the obtained a of the affidavit. Defendant become mecha public copy told Because the statement was thus admissible for all the defendant purposes cites, no confusion, of possibility juror or unfair is shown. prejudice, For reasons, similar there is no merit to defendant’s that the undue argument risk of confusion and should prejudice have led to exclusion of the statement under Evidence Code section 352.22

5. Admission photographs At the selection, conclusion of jury the court turned to the admission of evidence photographic the proffered by The prosecution. court first noted that 21 made, Insofar as may defendant be understood to have preserved, a confrontation argument statement, clause against Reyna’s admission of that claim extinguished, is the despite 36, clear (Crawford, supra, ante), 51; 16, testimonial nature of the statement 541 U.S. see fn. under the by doctrine of wrongdoing. forfeiture who obtains absence of a “[0]ne witness by wrongdoing (Davis right forfeits the Washington (2006) constitutional to confrontation.” 813, 224, 2266, 547 U.S. 2280]; 62; 833 Crawford, supra, L.Ed.2d 126 [165 S.Ct. see p. at People (2007) 833, v. Giles 40 433].) Cal.4th Cal.Rptr.3d 840-841 [55 P.3d At a hearing occurred, to determine by whether forfeiture wrongdoing preponderance has (Davis, Giles, evidence standard applies. 2280]; pp. p. 833-834 S.Ct. at see [126 also supra, at pp. 852-853.) evidence, The finding, by instant trial convincing court’s clear and defendant Reyna prevent murdered testimony more requirement. than satisfied this 22 For the first appeal, urges time on defendant that the Reyna’s erroneous admission of him, silence, statement forced in violation of his Fifth Amendment privilege testify in issue, court, rebuttal to the statement. This distinct constitutional not raised in the trial (People v. Partida forfeited. 765].) 122 P.3d event, merits, In it fails on the because admission of the statement was not error. had of various of Reyna’s submitted photographs parts it “culled dismembered The court indicated had body. photos] [these 352, the objected down ... to five.” Evidence Code section defense Citing inches, five—one, arm by two of the five seven an only remaining depicting hand, other, inches, minus a also five seven severed by depicting arm a match. hand held next to handless to demonstrate The ruled that the of the arm-hand could be matchup court photograph admitted, but reserved on the other The arm-hand photo. judgment disputed marked exhibit 59 and admitted in later as matchup photo People’s coroner, Dr. and a forensic anthropologist, evidence. Daugherty, matched the they Dr. each testified that exhibit 59 showed how Heglar, in hand to wrist similar cuts locations. The by comparing appropriate did not to which defendant had remaining introduce prosecution photo objected. also under Evidence Code section to exclude seven

Defendant sought, each, five different of Robert angles seven inches taken at photographs, beds, shaved, their heads with the and Barbara Mishell their hospital their three of Barbara pictures and stitches in visible. The gashes scalps unconscious, her showed her with a mouth. breathing apparatus apparently The trial court were relevant accepted People’s argument photos and were not cumulative injuries, to demonstrate extent Mishells’ It ruled admissible. were later They unduly inflammatory. photos 5. admitted in evidence exhibit The Mishells’ collectively physi- People’s cians exhibit 5 illustrate their about their treatment of the used testimony victims’ wounds. moved, under Evidence Code section to exclude

Finally, as a Mishell kitchen crime showing eight five-by-seven-inch photos scene, after the Mishells had been transported hospital. apparently on the bloody Several of the showed blood and photos spots footprints floor, on the blood quantity pooled kitchen one showed substantial stool; a black floor. overturned kitchen one showed robe One showed an floor; one showed blood on the Robert telephone strewn on the appar- used to call for assistance. ently to testimony

The that each would be relevant prosecutor urged picture assaults, that he had culled these about what on the morning happened more, reduce he them sized to their modestly from and that many kept on a nature. The motion was denied. The photos, displayed inflammatory board, 15. They admitted as exhibit collectively People’s subsequently were the kitchen and various witnesses to illustrate how were used various by the crimes. items it after evidentiary appeared

On contends that Evidence Code section 352 appeal, again 5, 15, neither the exclusion of exhibits because required People’s nature and extent of the Mishells’ nor the and dismember- identity injuries, Hence, ment of he were Reyna’s urges, were body, disputed. pictures irrelevant, error, asserts, and served to inflame the The violated only jury. trial, constitutional to due and a reliable adjudication fair rights process, fails, at all of a trial. The claim for no error occurred. stages capital Relevant evidence includes all “evidence . . . having any tendency reason to . . . fact is of to the any prove disputed consequence Code, (Evid. 210.) determination of the action.” otherwise “Except § statute, (Id., 351.) all by relevant evidence is admissible.” As the provided § illustrated the nature and extent of the Mishells’ People suggest, photos Mishells, the scene of the murderous assault on the and the condition injuries, found, of Reyna’s when that it had been dismembered and body indicating scattered human by hands to its identification. These details bore on hamper matters the to establish a reasonable doubt— prosecution obliged beyond homicide, that Reyna died the Mishells an suffered attack with intent, murderous and that sustained as a result. they great bodily injury Hence, the evidence had a in reason to material facts in the tendency prove case.

Though defendant these issues were not he never suggests disputed, had, or offered to of them. Even if he stipulated, stipulate, was not prosecution defense concessions as a sanitized required accept said, alternative to the full of its case. As we have presentation repeatedly need not prosecution details of the from the prove charges solely (Pride, 195, 243; v. Turner of live witnesses supra, testimony “ (1990) 50 887]) Cal.3d P.2d nor Cal.Rptr. ‘accept ” (Box, in lieu of evidence.’ supra, antiseptic stipulations photographic Pride, Crittenden, 1153, 1199, 243; Cal.4th supra, at p. supra, see also quoting 83, 133.) Cal.4th was entitled to see how the circum physical (Pride, stances of the crimes theories. at supra, supported prosecution’s 243; Turner, 706.) p. p. Nor was the trial court’s decision admit the an abuse of its photographs “

discretion under Evidence Code section 352. ‘The admission of photo . . . lies within the broad discretion of the trial court when a claim is graphs made that are The court’s they unduly gruesome inflammatory. [Citations.] of exercise that discretion will not be disturbed on unless the appeal probative value of the their effect. clearly outweighed by photographs prejudicial ” (People (2006) v. Cal.4th 453-454 39 Ramirez [Citations.]’ Crittenden, (Ramirez), supra, 9 P.3d Cal.4th 139 quoting 64] 83, 133-134.)

1150 above, each the trial court considered carefully proffered

As detailed found, to the condition in which Reyna’s body Sensitive photograph. court, motion, murder scene on its own excluded 10 of 15 photos in order to avoid undue cumulative submitted originally by prosecution of the Mishell effect. The also culled through many photos to illustrate his the minimum he deemed necessary crime scene present of the Mishells showed many case. The multiple-angle photos injured of their heads. All the proffered wounds had sustained on various they parts size, modest as normal to minimize snapshots, were in a presented pictures of There can be no doubt that all were aware acutely sensationalism. parties evidence.23 to refrain from unfairly inflammatory the duty presenting “ examined the are but They photo- We have photos. unpleasant, ‘[v]ictim ” (Ramirez, are disturbing. ... in murder cases always graphs [Citation.]’ Crittenden, 398, 454, 134.) Cal.4th Cal.4th quoting supra, supra, because the offenses charged “The at issue here are gruesome photographs than the shocking were but did no more gruesome, they accurately portray 454.) must be (Ramirez, jury nature of the crimes.” supra, p. protected crime, “but the cannot be shielded from sensationalized illustrations of that does not unnecessarily from an accurate crimes charged depiction 5, 15, {Ibid.) exhibits the emotions of the jurors.” People’s play upon admitted. line. The were properly did not cross the prohibited photographs evidence circumstance witness-killing special 6. Sufficiency of trial, defendant moved to strike the witness-murder special- Before to a only this circumstance allegation grounds applies circumstance special offense, one to whom the an to a eyewitness simply victim who was prior The trial court denied the defendant had made admissions. incriminating motion. a claim of insufficient defendant renews his argument

On appeal, Noting finding. evidence to the witness-murder special-circumstance support to the Mishell case was as recipient that Reyna’s only relationship admissions, was thus not a defendant claims incriminating Reyna defendant’s (italics added) as the circumstance requires. to a crime” special “witness 190.2, (a)(10).) (§ subd. concedes, contention. we have this rejected

As defendant precise 900, 1018; Cal.4th Jones (Jenkins, course, not, outweighs content their suggest pictures prejudicial whose We do sized, content modestly photos probative or that whose may value be admitted if probative large presented if form. We outweighs value are nonetheless inadmissible prejudicial their evidence inflammatory photographic effect of only that efforts to minimize note of the evidence. weighing prejudicial effect restricting photo’s pertinent size are

1151 Court 42, see Alvarado v. Superior 1165]; (2000) P.2d 550 917 Cal.Rptr.2d [54 v.Allen 149, 203]; People (1986) 5 P.3d [99 1236-1244, 115]; P.2d 1273-1274 Cal.3d Cal.Rptr. [232 705 P.2d Weidert Cal.3d People Cal.Rptr. Jones, 380].) In indicated that in the of “nothing language applicable we circumstance circumstance or in our decisions this special special applying confined to the killing that the circumstance is suggestion supports special in a of an other witness who ‘eyewitness,’ might testify opposed (Jones, 550.) criminal proceeding.” p.

Defendant asks that we reconsider this He advances no holding. compel- true on the reason to do so. The evidence witness- ling finding supports murder circumstance. special

D. Guilt trial misconduct issue: that witness prosecutor’s argument

misspoke above, As indicated defendant conceded that Luis died in his Reyna hills, he in the and that presence, Reyna’s body Lafayette dumped severed and scattered head and hands to or Reyna’s prevent delay body’s identification. The died. a Reyna issue was how As only disputed prosecution witness, Celebration Oberman said defendant told her he shot in the Reyna when insisted he would defendant in the Mishell temple Reyna testify against case. Defendant a off acciden- assault claimed which went Reyna gun, pulled in the head tally Defendant said he then checked ensuing struggle. Reyna’s neck, but saw no bullet Crime found no obvious investigators wound. evidence in or The gunshot skull torso. Reyna’s body’s decomposition determination of exact of death. forensic cause prevented Reyna’s At Dr. Dr. Daugherty, Heglar, request autopsy physician, forensic examined and neck vertebrae from anthropologist, photographed remains for the the cause of certain “decon- Reyna’s determining purpose struction” of these Dr. then for the about his bones. testified Heglar on this issue. opinions that,

Dr. first stated in “two areas” of interest to Dr. Heglar Daugherty, marks or saw invasion “incising saw event to be consistent with appeared bone.” (Italics added.) to illustrate then asked Dr. Heglar conclusions with four the witness had taken his examination during photos taken of the the fourth and fifth cervical vertebrae. On first photo, Dr. noted “a “anterior” front right,” Heglar deep squarish “superior then took indentation into the bone.” The following colloquy place: “[The C-4, four, of vertebra cervical is a much body deeper Lower on the witness]: shadow, line, narrower, but an but looks like a black looking, straight bone, . . . Q; invasion of And is that what refer to as you incised[l] [][] [f] A: Incised with or blunt (Italics added.) gunshot force.” the three other taken

Dr. out the same two marks in Heglar pointed photos, from different He then that the two invasion marks indi- angles. explained instruments, of two saw-like cated “the one different from maybe possibility 40-D, (Italics added.) the other.” Shown a saw marked as exhibit People’s indicated, Dr. based on measurements taken in his Heglar comparative close, identical, that its blade was a if not match for one of laboratory, pattern the two “incised (Italics added.) on to photos. Moving area[s]” hand, examination of the left arm and severed left Dr. Heglar comparative to have been incised in some indicated “that the surfaces there again appear manner, were their raised and lowered area to each other.” reciprocal by (Italics added.) The defense did not Dr. what Heglar clarify cross-examine “incise,” he meant the word in the “incised with by particularly phrase or blunt force.” gunshot

In his defense counsel stressed the absence of evidence closing argument, of a wound to skull. Counsel this was gunshot urged significant Reyna’s version, Oberman—i.e., because it refuted the as recounted prosecution’s by truck, of his came said retrieved from the back gun Indeed, door, to the counsel around shot in the head. passenger Reyna On “when intend to shoot that’s where shoot.” argued, you somebody, you hand, someone, to kill the other counsel “when don’t intend suggested, you off, like over a and it wrestling gun get doesn’t accidentally goes [the bullet] so well.” placed

Thus, asserted, of a to the neck would counsel evidence bullet wound wound, defendant’s claim that he saw no head and that the shooting support evidence, an accident. There such counsel was was proposed, pointing Dr. about “the incised fourth vertebra that he attributed Heglar’s testimony wound or to a gunshot wound.” (Italics added.) either to an incise rebuttal, he wanted to talk about In said prosecutor portion ended with the one little defense counsel’s “where argument piece [counsel] Dr. that was taken out of context.” This defense from testimony Heglar “what I call that has something nothing said was argument, prosecutor, It’s I call a because it’s an lawyer’s game attempt do with facts. what mistake, a by misstatement draw out of the that was a something transcript witness, added.) (Italics it to to confuse a clear issue.” using try . . . continued: “What the said quoted transcript regarding prosecutor blunt to the fourth vertebra was bullet or damage force[’] [‘]incised n incised intended to say very with bullet or blunt force. What Dr. Heglar [’] as to bullet or blunt (Italics added.) opposed clearly force.[’]” [‘]incised the time in the court- misstatements all Asserting “[s]imple happen room,” indicia that Dr. Heglar misspoken. offered several sense”; asserted, First, no the witness’s literal statement “made the prosecutor “ or cutting,” an Dr. knew that ‘incised’ means sharp expert, Heglar surely “narrow,” wound, a knife or a as “caused by “sharp,” “straight,” “deep” saw,” a bullet or rather than a or effect caused “smashing” “crushing” by bone,” a the other blunt force trauma. “When a knife or saw goes through said, incision, a or other blunt “it makes a clean bullet prosecutor sharp, . . it. A hammer is a blunt object. smashes through object.” this At defense counsel the objected grounds prosecutor’s argu- point, ment was “not based on I evidence.” The court that see in anything responded the that “the statements of the not by admonishing jury attorneys [are] evidence; evidence, base decision the the—what the you your upon evidence was.” The court then invited the to prosecutor proceed. on the theme of blunt versus the

Continuing sharp, prosecutor suggested that to take Dr. statement would make as much sense as Heglar’s literally someone was “cut with a say baseball bat” or “stabbed with hammer.” Moreover, out, the the overall context of Dr. prosecutor Heglar’s pointed was that the vertebral and the detachment of hand testimony the damage, arm, saws, from the were caused the motion of a saw or by reciprocating which defendant himself later confirmed he sever the head and hand used to from Reyna’s The that a bullet hole the neck body. argued through prosecutor would have left blood and soft-tissue not seen damage by investigators, and that defendant himself he checked said neck for but saw Reyna’s pulse, no wound. committed

On defendant insists the misconduct “by appeal, prosecutor urging crucial evidence testified to a state witness ignore by expert defense, which was favorable to the and to instead substitute his own unsworn such a contention was interpretation testimony.” Assuming defendant’s trial by argument preserved objection prosecutor’s evidence, not it fails on the merits.24 nonetheless supported Defendant no argu cites whatever authority against prosecutor’s defense, ment that his own or that the in its own argument, witness misspoke, taken the has witness’s out of context. On testimony contrary, prosecutors inferences have wide latitude to reasonable from the evidence draw presented 24 claim, As to at the prosecutorial this as well as the numerous claims of misconduct that, urges object, object penalty phase, adequately, defendant insofar as he failed to or to trial, during duty alleged had a control misconduct. It did sponte trial court sua 119, 386, 960]; (E.g., People (1997) v. Jones Cal.Rptr.2d not. 15 Cal.4th 181-182 931 P.2d [61 877, 705, People (1993) 1277].) v. Montiel Cal.Rptr.2d 5 Cal.4th 855 P.2d 914 [21 1154 trial, (such meaning and to refer to matters of common knowledge 172; Mendoza, 130, (1998) 24 Hill 17

words). Cal.4th v. (E.g., supra, People 656, 673]; P.2d v. Cal.4th 952 Williams Cal.Rptr.2d People [72 710].) (1997) 16 Cal.4th P.2d Cal.Rptr.2d [66 the evidence (e.g., could not misstate mischaracterize Hill, 800, 823; v. Avena 13 Cal.4th People 1000]), P.2d but he did not do so here. Nor mouth” as did he the evidence” or words in the witness’s “go beyond “put the defense suggests. conceding testimony sought Candidly inference, understood an from the argued commonly exploit, simply “incise,” remarks, and from of the word from Dr. overall meaning Heglar’s at this trial evidence in that the witness’s literal general, phraseology did his true Such an where argument, point express meaning. particular record, based on the is not improper. did Heglar

For the reasons that Dr. urged by argument prosecutor, force or wound” mean to “incised” with “blunt literally gunshot equate the evidence.25 It was to the was a reasonable interpretation up the jurors or The trial court made this clear by admonishing agree disagree. evidence, and that must decide they that the were not prosecutor’s arguments the case on the evidence itself. No misconduct occurred. committed misconduct by

Defendant also asserts the prosecutor disparag- and an defense counsel’s as a argument “lawyer’s game” attempt ing of context. Because confuse the the witness’s statement out jury by taking trial, failed to raise an where an admonition objection such harm, the claim forfeited on v. (E.g., People would have cured any appeal. 420, 913, 140 P.3d (2006) Cal.4th 952 Stanley Cal.Rptr.3d 39 [47 736] 112, 1149, (2005) 34 Cal.4th (Stanley); Cal.Rptr.3d v. 1188 People Young [24 946, McDermott, 1001.) 105 P.3d 28 Cal.4th (Young); 487] event, did not engage In there was no misconduct. The prosecutor a defense or fabricating forbidden tactics as defense counsel accusing such 514, 560; v. People 35 Cal.4th deceiving jury. (Stitely, supra, factually 840, 809, P.2d (2000) 22 Cal.4th 846 996 Bemore Cal.Rptr.2d 1152] [94 to describe defense counsel’s (Bemore).) language He used simply pungent tongue slip tactical effort to what the considered exploit witness. by People’s 25 sharp or as if with a knife or a definition of “incised” as “made with People The note 1142; (1976) (Quoting p. Third New Internal. Diet. clean and well defined.” Webster’s scalpel: also, (1985 ed.) sharp if with a Heritage p. Dict. 650 with e.g., see American [“[m]ade

instrument”].)

1155 at the solely comment was aimed persuasive It was clear the prosecutor’s We at counsel and not closing argument, personally. of defense counsel’s force (E.g., Stitely,supra, remarks. found no in similar prosecutorial have impropriety ” “ 514, for’ ‘falling] that should avoid Cal.4th [argument jurors 559-560 ” “ ” “ to allow de- ‘outrageous’ attempt counsel’s ‘ridiculous’ defense “ of second degree free” he was claiming guilty only fendant ‘walk’ 1196, 1215-1216 v. Gionis People murder]; (1995) Cal.Rptr.2d [40 of both defense counsel was out talking P.2d that [argument 1199] “ v. Breaux People ”]; and that this was ‘great lawyering’ sides of his mouth [argument 821 P.2d Cal.4th 306-307 585] [3 when neither the law nor students are to create confusion taught law Bell side, defense]; benefits the are on their because confusion facts P.2d [argument Cal.3d (1989) 49 Cal.Rptr. 129] ” “ “ ” in your eyes,’ is to ‘throw sand defense counsel’s job ‘confuse[]’ “ ”].) it’ job and that counsel ‘does a good Here, above, attack on counsel’s as in the cases cited we see no improper but on the merits of his trial tactics integrity, only arguments. was not argument prosecutor’s improper.

E. Guilt trial instructional issues

1. Reasonable doubt instruction instruction, A forth in CALJIC No. 2.90 standard reasonable doubt as set trial. (5th 1988), guilt ed. with certain modifications at defendant’s given constitutional to a rights jury Defendant claims the instruction violated his trial, trial, and fair and a reliable determination of guilt fundamentally evidence,” In that the “moral “moral urges penalty. particular, phrases instruction, conviction,” are and as contained in this certainty,” “abiding archaic, a modem and contradictory, incomprehensible jury.26 26 doubt as court modified the then standard instructional definition of reasonable (nonstandard brackets): not doubt is defined as follows: It is follows insertions in “Reasonable depending upon moral doubt, to human affairs possible everything relating mere because doubt, evidence is imaginary the word ‘moral’ here does open possible to some or [f] [Now words, mortal; evidence religiosity mean or The word ‘moral’ means in other truthfulness. again.] is defined as follows: It is not people.] let me start Reasonable doubt [f] [IQ [So from depending upon moral possible everything relating doubt because to human affairs and mere is, you mouth evidence that comes to people,] open is to some evidence^] [that from of comparison the entire possible imaginary or doubt. It is that state of the case which after they jurors that condition that all the evidence leaves the minds of the consideration of conviction, [jQ certainty, charge. say they abiding to a moral of the truth of cannot feel an which, excluding degree proof possibility all require The law does not demonstration of that of error, certainty, degree proof rarely possible. is Moral produces for such of of absolute abiding degree an conviction certainty only required, proof produces is is that of which which (Italics added.) unprejudiced in an mind.” 1156 instruction,

However, the United Court this despite States Supreme upheld (Victor v. Nebraska (1994) 511 1 concerns about its U.S. language Sandoval, 4 583, 155, 1239], 114 Cal.4th affg. L.Ed.2d S.Ct. [127 similar to those 185-186),27 and we have consistently rejected arguments 566, v. Cook (2006) Cal.4th (E.g., People defendant makes here. 601 39 [47 22, v. Robinson People (Cook); (2005) 37 Cal.4th 139 P.3d Cal.Rptr.3d 492] 760, (Robinson); v. 592, People Maury 124 P.3d 637 Cal.Rptr.3d 363] [36 342, 561, (Maury); (2003) Cal.4th 68 P.3d Cal.Rptr.2d [133 1] 598, 441, 28 P.3d v. Seaton (2001) People Cal.Rptr.2d [110 313, (Seaton); Ray (1996) 13 Cal.4th 346-347 People v. Cal.Rptr.2d [52 175] 846]; v. Davis (1995) 10 Cal.4th 520-521 People 914 P.2d [41 119]; Jennings P.2d 53 Cal.3d 1009].) do 385-386 807 P.2d We so again Cal.Rptr. instruction Witness-killing special-circumstance 2. erred defense refusing

Defendant court instruction urges by proffered witness, that a the witness-killing allega- for of purposes special-circumstance tion, accused, a crime by by must be someone who witnessed actually that, circumstance, “a witness to a later instructing purposes special crime does not an The contention lacks necessarily eyewitness.” require circum- witness-killing merit. As we have previously explained, special stance is not limited to eyewitnesses. statement Instruction regarding preoffense

3. of defendant’s motive (see 2.51) The trial court a standard instruction CALJIC No. gave general shown, but the (motive on motive is not an element and need not be presence innocence; absence motive tend to establish or may guilt instructed, evidence). of motive The court also weight exclusive judge (see 2.71), on admissions extrajudicial in standard form CALJIC No. which, defendant while not itself (an admission is a statement by when considered with other an tends acknowledgment guilt, prove guilt evidence; an the exclusive whether defendant made such the jury judge and, so, an if whether it is true in whole or in extrajudicial admission part; caution). defendant should be viewed with admission by 27 (6th 1996) modified eliminate references ed. has since been CALJIC No. 2.90 certainty.” “moral evidence” and “moral 28 court, by the trial as “evidence We note that the definition of “moral evidence” inserted generally explanation conforms to the historical people” people,” from or from the “mouth of Nebraska, supra, 1, 10-12, U.S. as Victor by majority in v. 511 phrase provided of that the cannot, nature, life, by testimony, by that its daily proven affairs of human evidence about the the court worsened by addition certainty. argue Defendant does not that this objective attain brief, merely urges that the addition did not cure constitutionally; reply in his he instruction in standard instruction. defects

1157 the trial court also an version gave adapted Over defense objection, 2.71.7, there evidence from which the jury might CALJIC No. was stating find “an of motive was made the defendant before by oral statement form, In this offense with which he is was committed.” standard charged further that the was the exclusive whether such judge instruction advised jury made, an should be a statement was and that evidence of such oral statement viewed with caution. below, CALJIC by

On as defendant the issue appeal, urges presented No. was instructions on motive 2.71.7 addressed adequately by general contends, case, admissions. As in his given extrajudicial instruction, CALJIC an cumulative to No. 2.71.7 was “pinpoint” improper above, described those “which undue to a vital gave emphasis part evidence. The was of fact that the told as matter purported essentially result, homicide accused had motive to commit the in As a issue.” argues, trial, he suffered due violations of his constitutional fair rights process, and a reliable verdict.

However, we have held that both Nos. 2.71 and 2.71.7 are CALJIC instructions, benefit, standard intended for the defendant’s which cautionary People v. Garceau (1993) must be sua where given 6 sponte applicable. (E.g., 664]; People Lang Cal.4th 862 P.2d [24 (Lang).) Cal.3d 782 P.2d As the Cal.Rptr. 627] note, 2.71.7, case, defendant does not that CALJIC argue No. as this given evidence.29 unsupported by

We have indicated that CALJIC No. 2.71 is broad to cover all enough Thus, out-of-court statements the defendant offered to prove guilt. when CALJIC No. 2.71.7 is not also defendant suffers no prejudice given. 991, 1021.) (Lang, supra, defendant does Cal.3d But this is not say when both are suffer error or the evidence. prejudice given, justified by Defendant’s claim that the instruction was biased in form also lacks merit. “fact,” Far from motive as a the instruction presenting merely predetermined stated that the find defendant such a motive and must jury “may” expressed view such with caution. No error occurred. any expression event,

In inclusion of CALJIC No. 2.71.7 the instructions was noted, effect harmless standard. As by any applicable principal supporting The most obvious evidence the instruction had to do with defendant’s motive statement, above, attempting police Reyna to kill the Mishells. In his as recounted indicated that, Mishells, against and his suspected professor before the assault defendant said he affair, anonymous telephone exposing wife were behind the calls defendant’s extramarital said, Reyna suggested when to the defendant police, defendant take his information occasion, way.” more than one that he would handle it “his behalf, on defendant’s that his inculpatory instruction was reemphasize, statements, as the if should be viewed with caution. Insofar extrajudicial any, evidence that had motives to commit instruction focused on defendant crimes, No. 2.71.7 cannot that evidence was CALJIC overwhelming. charged No basis have altered the views on the to defendant’s jury’s subject prejudice. for reversal appears. CALJIC No. 2.71

4. commenced, instructed, After the was but before deliberations jury guilt 2.71, the instruction defendant raised a concern about CALJIC No. general defendant, to the jury. admissions as read extrajudicial by regarding instruction, “not Defense counsel that the as suggested given, pinpoint view such because it failed to that the admonition to enough,” specify the defend- with caution did not of exculpatory statements apply portions read no ant’s statement. The trial court ruled that the instruction as required supplementation. court erred CALJIC No. 2.71 by

On defendant trial urges giving appeal, instruction’s “over because the could objection,” jury interpret defense with including definition of “admissions” to be viewed caution as exculpatory his of a defendant’s statement. The instruction unfairly compromised portions defense, asserts, because that defense was based on his own primarily a fair trial and a He claims violations of his constitutional rights testimony. reliable verdict. 2.71 in

We a similar to CALJIC No. rejected challenge As we (1991) 1 Cal.4th 103 820 P.2d Bacigalupo 559]. noted, instruction, whole, tell the jury considered as a “[does] . . . that not either distrust those of defendant’s statements portions [do] (Id. 129.) tend to show his acknowledge guilt.” p.

Moreover, his defense insofar as defendant claims the instruction hampered caution, assertion is his trial with testimony to view inviting jury by case, and modified in this merit. Both in standard form without patently admissions.30 only subject extrajudicial the instruction addresses be No. 2.71 admonishes the skeptical in CALJIC Nothing the defendant on the stand. No error occurred. by statements made made pertinent part: “An admission is statement given, provided As the instruction acknowledge guilt the crimes than at his trial which does not by itself his a defendant other guilt when prove which tends to is on trial but statement for which such (Italics added.) the evidence.” considered with the rest of

1159 2.01, 2.02, 2.06 Nos. CALJIC 5. 2.06, instructed, if the found jury No. that to CALJIC

The court pursuant evidence, this as a could consider jury defendant to suppress attempted for itself but must judge consciousness of guilt, circumstance to show tending CALJIC The court also gave of such evidence. weight significance 2.02, 2.01, regarding evidence generally, circumstantial Nos. regarding these other things, mental state. Among circumstantial evidence of specific to an inference of leading guilt that all circumstances instructions explained doubt; cannot that circumstantial evidence be reasonable must proved beyond with other rational unless it cannot be reconciled a conviction support evidence, conclusion; that, two reasonable interpretations between but that a reasonable with innocence must be accepted; one more consistent one. be over an unreasonable must interpretation accepted of all such instructions diluted presumption Defendant urges innocence, and created a manda reduced the burden of proof, prosecution’s his constitutional rights tory guilt, derogation conclusive presumption concedes, defendant we have to due and reliable As factfinding. process v. Jurado (2006) (E.g., People occasions. arguments many similar rejected (Jurado) 72, 319, 38 Cal.4th 131 P.3d 127 Cal.Rptr.3d 400] [CALJIC [41 1067, v. Guerra 2.01]; People (2006) No. 37 Cal.4th 1139-1140 [40 Robinson, 592, 118, [same]; 637 supra, P.3d 37 Cal.4th 129 Cal.Rptr.3d 321] 309, 513, v. Wilson [same]; People (2005) 36 Cal.4th Cal.Rptr.3d [30 Marlow, 1, 2.06]; 34 Cal.4th 114 P.3d No. 758] [CALJIC Coffman 2.01]; People [same]; No. Maury, supra, 30 Cal.4th [CALJIC (2002) 39 P.3d Hughes 27 Cal.4th 346-347 Cal.Rptr.2d 432] [116 v. Jackson [same]; 1223-1224 no 2.06].) compelling P.2d No. Defendant presents 1254] [CALJIC We find no error. reason to reconsider these authorities. instruction Flight

6. 1127c and CALJIC The trial court instructed the to section jury, pursuant crime, 2.52, after he is after a No. that a flight immediately person’s crime, be considered may cannot alone establish but guilt, accused of accused’s or innocence. guilt with other facts in together deciding proven because he admitted freely Defendant the instruction was urges improper, and degree all the the nature charges, only with identity respect disputing Because his flight following of the offenses as determined his mental state. issue, asserts, the the crimes had no to resolve logical tendency basis, infer, the most culpable instruction allowed the on an arbitrary This, state, violated guilt. argues, mental and thus the maximum degree to due his constitutional right process. outset,

We At the claim that he admitted he commit- disagree. defendant’s is, ted the against crimes Mishells and As to Reyna significant wrong. part, death, defendant Reyna’s testified that which went off Reyna pulled gun, discussion, (See ante.) accidentally during the In ensuing struggle. closing defense argument, counsel reminded the that defendant’s was jury testimony direct evidence of what only Counsel alluded to the happened Reyna. accidental, that the and therefore possibility killing urged jury defendant of crime that an acquit any against Reyna. jury was instructed crime, accidental is not a reasonable doubt on the issue killing any must be resolved defendant’s favor. instruction,

We have that the as the would understand explained flight jury it, does not address the defendant’s mental state at the time of the specific offenses, crime, or his of a but advises of guilt particular circumstances suggesting consciousness that he has committed some wrongdoing. 297, 412, (1998) Bolin (People v. 18 Cal.4th 327 P.2d 956 Cal.Rptr.2d [75 833, (Bolin); (1988) v. Crandell 46 Cal.3d People 871 Cal.Rptr. 374] [251 227, Thus, (Crandell).) 760 P.2d the flight instruction—amply supported 423] evidence of defendant’s sudden for Mexico within of departure days relevant Reyna’s issue whether defend disappearance—was manifestly ant held an honest belief that death was an accident for which he Reyna’s bore no criminal responsibility. event,

In we have that instruc repeatedly rejected argument tions on guilt, consciousness of instructions the defend including regarding crime, ant’s to draw flight following permit impermissible state, inferences about the defendant’s mental or are otherwise inappropriate state, Jurado, where mental is the identity, issue. principal disputed (E.g., 72, 125; 1, (2005) 38 Cal.4th v. Moon 37 Cal.4th 28 supra, People [32 894, (Moon); 117 P.3d Smithey (1999) Cal.Rptr.3d People 591] Bolin, 1171]; P.2d Cal.4th supra, [86 327; Crandell, 833, 871; 46 Cal.3d supra, v.Nicolaus 54 Cal.3d People said, 893].) 579-580 817 P.2d As we have even Cal.Rptr. where the defendant of a concedes some criminal aspect charge, prosecu case, tion is entitled to bolster its which defendant’s requires proof doubt, a reasonable evidence of the defendant’s guilt beyond by presenting Moon, 28; Nicolaus, at consciousness of guilt. (E.g., p. supra, 579-580.) No reason reconsider the soundness of these pp. appears decisions and conclusions. We find no error. issues trial misconduct Penalty

F. evidence discovery aggravating Notice and

1. 7, 1992, began, months before penalty phase August eight On evidence in aggrava- of intent to introduce filed their notice statutory sexual assault alleged included defendant’s (§ 190.3). tion The notice victim, niece, to a Alexandra M. It referred only “rape” his 15-year-old the defendant “all acts committed by that the would include but warned proof finding guilty.” or not resulted in they plea whether counsel, 1992, the defense prosecution Also in to August according in evidence regarding aggravation the defense with an offer of proof provided incident, this document still Proof). the Alexandra M. (Offer of As to details about the but it did additional mentioned only rape, provide the It that as a result of alleged rape, circumstances of the assault. also suicide, abortion, and had an and attempted Alexandra M. became pregnant, effect she feared the that never the crime to the because police she reported ever found out.31 on her if grandparents they a Phillips trial, 6, 1993, the the trial court ordered guilt

On to January prior incident, if the verdicts Alexandra M. to be held guilt as to the hearing32 the it to allow the defense to cross-examine made in order necessary, The court also instructed witness to the trial. complaining prior evidence” he the with “any corroborating the defense prosecutor provide meantime, who may in other witnesses including “[a]ny “would have” it, she have may have seen the extent of any any injuries police reports, treated, sustained,” and treatment she where she was hospital received. defense, received, turned over to the

In mid-April prosecutor send, assault, but did not a letter Alexandra M. wrote after immediately Yen, the encounter enjoyed her friend in which she said she Margaret fear. mentioned no force or 29, 1993, Phillips Alexandra M. indicated

At the held on hearing, April included her with a bandanna. assault Defendant had following: gagged evidence, F,” and, though not admitted marked as “Court Exhibit This document was a court jury. It bears Alexandra M. before was used defense counsel cross-examine below, writing both in January though represented defense counsel file-stamp date of mid-August it in orally, prosecution provided that the 1992. 423], suggested Phillips 711 P.2d we Cal.Rptr. 41 Cal.3d In 29 [222 should, inquiry prior to preliminary conduct a may, trial court and sometimes that each element of prove evidence to whether there is substantial penalty phase to determine (Id. 72-73, aggravation. pp. to introduce in activity” prosecution intends “other criminal 25.) fn. and forcible oral sodomy as well as Defendant threatened to copulation rape. kill Alexandra and various members of her if revealed the family she incident. She aborted her at Planned pregnancy Parenthood New York City. Yen, She revealed the assault to her her her ultimately parents, therapist, godfather, and several other close friends and members. In while family defendant was a she disclosed it FBI fugitive, who came to her agents At house. some her mother ato detective. In point, spoke Berkeley police conversations, details, their did not prior ask and she them provided fully only she had mentioned the morning, though gag two weeks earlier. information,

Based on the disclosed defendant moved in limine to newly others, exclude Alexandra M.’s testimony grounds, among pros- ecution had failed to fair notice and give discovery aggravating evidence. a continuance Alternatively, sought the new investigate information.

The motion was heard the after the Defense counsel day Phillips hearing. indicated that “I don’t think it’s controverted . . . that to even up yesterday, inwas of of evidence that had to prosecutor] possession only one piece [the case”—i.e., do with this the Yen letter delivered to the defense two Margaret weeks earlier. The without from defense prosecutor represented, objection counsel, that he had the defense with the provided information about where it, abortion took as soon as the defense and that there were no place requested known, on the incident. The confirmed he had not police reports prosecutor to the Phillips of other witnesses or evi- prior hearing, any corroborating dence. The court to exclude evidence of agreed Alexandra’s attempted suicide, but otherwise denied the motion. trial,

At the Alexandra in ensuing M. testified basic conformity with her at statements the The defense cross-examined her Phillips hearing. Yen, about the unmailed letter to out how her trial pointed testimony differed from the facts recited in the Offer of trial Proof. Alexandra insisted at that, 1992, in she had told the of the threats her July prosecutor family—a fact not mentioned in the Offer of Proof—but the parties ultimately stipulated the before that she did not disclose either the oral sodomy or the threats her and her until the of the against copulation, family, day Phillips hearing.

On defendant renews his that the violated his argument appeal, prosecutor notice and to the discovery obligations by failing Phillips provide, prior the new details Alexandra M. disclosed in the hearing, hearing—in particular, the and forcible oral and the of the sodomy identities copulation, persons Alexandra had told of the assault. Defendant cites the court’s order of evidence the turn all corroborating that the over prosecutor

January had, U.S. under Brady, supra, well as the duty, as prosecutor prosecutor’s (§ et criminal statute 1054.1 seq.), and the California discovery disclose evidence.33 exculpatory above,

However, of the recounted did know prosecutor witnesses, crimes, until Alexandra M. sex or of the corroborating additional discovery them at the The court’s Phillips hearing. January disclosed it evidence corroborating order to turn over obliged only prosecution have” then Under California hearing. “would between Phillips statute, made criminal disclosure of covered information should be discovery trial, but is event if provided “immediately” within 30 days timely 1054.7.) it. and its (§ Brady after the becomes aware of progeny prosecution or actually do not disclosure information before require prosecution it. constructively possesses duty

Defendant had a and constitutional statutory suggests sooner, to know this because Alexandra M. was intended information 1054.1, disclosure, Not so. is if subject witness. Under section evidence all, to the extent it is “in the only prosecuting attorney possession to be in by possession investigating agen- [known him] [actual] Constitution, disclosure, cies.” Under the if at subject federal evidence all, team,” i.e., to the extent those only actually possessed “prosecution government agencies criminal such as assisting investigation, (Steele, 697; police. Kyles, Cal.4th see U.S. supra, 437.) “ out, obtain,

The no and disclose all general duty ‘has to seek prosecution that might evidence be beneficial to the defense.’ v. Panah (People [Citation.]” 672, 395, (2005) (Panah)) 107 35 Cal.4th 460 P.3d Cal.Rptr.3d 790] [25 Thus, need not a it extract all from citizen who possible information private in order to disclose it the defense.34 potential witness prosecution 33 argues aggravating required as notice of evidence specifically Insofar defendant that the insufficient, (§ 190.3) by The penalty the death statute was the claim lacks merit. section 190.3 notice, 7, 1992, August surrounding that evidence” rape filed on referenced the and warned “all presented. particular presented aggravation would be Notice that a crime will be incident that all of course conduct part should alert defense counsel crimes committed as the same of offered, (People Farnam substantially will with 28 complies be thus section 190.3. Hart, (Farnam); supra, Cal.4th 47 P.3d Cal.4th 988] 639.) any rape performed that unlawful sex act particular, In notice of informs defense (Pride, supra, 259.) the same occasion will be introduced. 3 Cal.4th not stipulated prosecutor “practice” at trial usual of parties The that followed his crimes on them. No questioning perpetrated sexual assault victims about the details of the suggests deliberately delayed asking detailed prosecutor evidence Alexandra M. Panah, (See 460.) questions avoiding discovery. for the purpose demonstrate, Defendant also fails to of Brady and the criminal purposes 1054.1, (§ statute discovery (e)), subd. that the failed to disclose prosecution exculpatory over, evidence. The received, did turn prosecution as soon it record, only arguably evidence in the unmailed exculpatory Alexandra’s disclosure, letter to Yen. Margaret Alexandra M.’s at the Phillips hearing, of the additional sex forcible acts committed defendant was certainly not And the record exculpatory. contains no evidence that whom persons Alexandra revealed Yen, she told about the assault—other than who did for the testify defense—would have information provided to impeach Alexandra or otherwise undermine the case. prosecution’s

Insofar as the court’s January 1993 order discovery required prosecutor evidence, to turn over it corroborating is difficult to how see omission trial, At prejudicial. no People presented witnesses or corroborating sum, evidence. In no misconduct or occurred.35 prejudice 2. Cross-examination prison expert of defense Enomoto, Jiro a former Corrections, Director of the testified Department that, for the records, defense based on defendant’s he would pretrial jail risk to pose safety staff or prison inmates if sentenced to life without parole. cross-examination, On elicited the prosecutor witness’s admissions that he testified for frequently issues, criminal defendants on prison-adjustment had done so three or perhaps four times in the past year. asked, fact, then “In a few weeks ago you testified across

the hall in the case gentleman was convicted of four separate murders and six murders that he attempted would well to life adjust prison also; correct; is that correct?” The witness “That’s responded, Defend- yes.” ant did not object.

Defendant now insists the prosecutor’s question unfairly impugned the witness’s and thus credibility, a reliable compromised determina penalty tion in violation of the Amendment. The Eighth absence of a trial objection, claim, urges In a related the trial court erred when it denied him a trial investigate continuance to Phillips hearing. and confront the new information disclosed at the (Jenkins, 900, 1029, supra, We review 1037.) such decisions for abuse of discretion. 22 Cal.4th noted, Here the agreed, court and defense counsel that the defense had years known for two that Alexandra Phillips potential M. was a aggravating Eight witness. months before the hearing, timely, defense had received a statutory aggravating sufficient notice of evidence and, counsel, according to defense had also received the Offer of Proof. The prosecutor defense, represented, essentially dispute without from the given discovery that he had to the ante.) discussion, (See circumstances, reasoned, ability. best of his Under these the court ample defense had had time investigation to conduct its own in the interim. We see no abuse of ruling. discretion in this

where an harm, admonition would have cured forfeits the claim. The any contention lacks merit in event. any in cases expert’s testimony prior “[A]n (Price, similar issues involving legitimate of cross-examination.” subject 324, 457.) differences in the facts Despite arguable cases, two involved they “similar issues” of the views on expert’s prison The adjustment. was entitled prosecutor in the bias witness expose by showing to advocate for propensity criminal defendants even in extreme cases. No misconduct occurred.

3. Alleged “vouching” above, trial, As noted Alexandra M. testified at as at the Phillips hearing, that defendant’s sexual assault included and oral sodomy as well copulation bandanna, that he rape, her with a gagged and that he threatened to kill her, members of her family, and then if she told anyone about the incident. She Yen, acknowledged unsent letter to Margaret which she wrote that she enjoyed sex and mentioned no force or threats. Smudges on the letter, said, she were from “my crying.” She admitted she did not disclose incident to other than “anybody mother and [her], some close to people [her] friends,” and did not it to law report enforcement officer until when she mentioned it to an FBI agent.

As in the Phillips hearing, defense counsel cross-examined Alexandra at some about length details of her trial that were not included testimony in the Offer of Proof. Counsel particularly sought to determine what details she had told the prosecutor, and when. She indicated she to the spoke prosecutor by phone thereafter, July 1992 and several times that he asked . . “just . what had basically and that she happened,” told him the “basic facts” correspond- to her ing She testimony. agreed Offer of Proof “capture[d] essence” of what she told the him, she prosecutor, though insisted she did tell in July 1992, of defendant’s threats her against and her She also family. agreed she had told the “like prosecutor two weeks about the ago” bandanna used as a gag. witness,

As a defense Yen testified to her conversation with Alexandra M. after the shortly conversation, assault. recounted, In this Yen Alexandra did not seem consensual, characterized the upset, encounter as and described it as “the seduction of a young girl an older man.”

In a stipulation later read to the jury, as follows: The parties agreed first prosecutor Then, to Alexandra spoke M. in July 1992. and in subsequent conversations, she mentioned not only rape, or oral sodomy copulation. Phillips hearing), Only (the April day did she mention threats by defendant against herself and her did family. 1166 his

believe he asked her whether she was as was any questions beyond raped, in sexual assault cases. practice com-

In his defense argument, closing penalty prosecutor anticipated M.’s ments about the between the Offer of Proof and Alexandra discrepancies not to concerned about trial He asked the “be testimony. jury I’m sure counsel will talk about which legal document [defense] a When I sexual assault was described [only] rape. spoke [Alexandra M.] her her on I didn’t into detail with her and ask with the phone, go questions it necessary; each detail of the incident. I didn’t think was about individual to a and I didn’t think it was to do that woman who traumatized proper had, to stranger. she to make her discuss those details on the a way phone to It is women to refer cover all the incidents of common for to rape [][] to the lack of in that sexual assault. If want blame someone for details you document, blame me. Don’t blame Alexandra.” M. wrote she

The also Alexandra hypothesized why prosecutor consensual, sex, Yen it was and did not the incident to told enjoyed report letter Citing both Alexandra’s “tearstained” airplane authorities sooner. statement, Yen, her later in a conversation with that defendant and second said, worthless, “It’s took of her because she was advantage case have feelings common for a woman in this to very girl guilt even done And it well wrong. may very shame she’s though nothing ...[][] she that Alexandra was so traumatized what her that by be happened it took her time to be able to say, couldn’t admit at first what so happened, her Defendant no admit and realize what uncle had done her.” raised objection. vouch-

On defendant contends this constituted argument improper appeal, claims, defendant wrongly for Alexandra M.’s ing credibility. prosecutor, her and assurances when bolstered with his testimony personal knowledge Alexandra, he did not to his contact stated or did “why alluded with telephone her,” him, her, blame not discuss certain with and asked things insists, Furthermore, “un- defendant the prosecutor gave any discrepancies. evidence, trial about the common expert qualified opinion,” supported understand, accept, report effects of trauma on victim’s rape ability result, As a he suffered violations urges, what to her. happened confrontation, trial, federal to due fair rights constitutional process, from and freedom cruel legal jury, representation, impartial adequate 6th, Const., 5th, Amends.) 8th & 14th (U.S. unusual punishment. outset, trial raise a vouching objection

At the defendant’s failure to v. Cal.4th Frye claim on appeal. (People forfeits [77 (1995) Medina Cal.4th (Frye); People P.2d Cal.Rptr.2d 183] (Medina).) P.2d 756-757 2] The claim also fails on the merits. Impermissible occurs vouching “where the prosecutor places behind a prestige government witness through personal assurances the witness’s or that infor veracity suggests mation not to the presented jury witness’s (People supports testimony.” Fierro 173, 1 Cal.4th 821 P.2d 1302] (Fierro).) But “so as a long prosecutor’s assurances ... are based on the ‘facts of therefrom, record and the inferences drawn reasonably [the] rather belief,’ than any purported personal or knowledge comments cannot be [his] characterized 971; improper vouching.” (Frye, supra, 18 Cal.4th see Medina, also 757.)

Such is the case here. The prosecutor’s references to his contact telephone M., with Alexandra and his stated reasons for not questioning her about the assault, details of the are either amply supported directly, reasonable by inference, from the trial evidence. The read to the stipulation indicated that the prosecutor first to Alexandra in spoke one July month before Proof, filing Offer of that in this and conversations she subsequent mentioned only that it was rape, “his practice” sexual subject assault victims to detailed questioning. Alexandra confirmed that she first with the spoke “on the him phone” July told “basic” facts of the incident at that time. Jurors could infer readily that the prosecutor’s restrained questioning in sex “practice” assault cases stemmed from his sensitivity to the victim’s traumatized state.

Nor was the prosecutor obliged to present trauma rape before expert suggesting that feelings confusion and unwarranted shame have might caused Alexandra M. to be uncertain about whether the sexual encounter with consensual, defendant was and to delay incident. reporting There was substantial evidence that she was confused and ashamed as a result of the assault. She testified she was “hysterically crying” after the immediately incident, even though defendant told her she had enjoyed experience, she knew no better.

Alexandra further testified that she remained hysterical as she boarded the home, plane and that she cried during flight as she drafted a letter about letter, episode Yen. In Margaret evidence, this which was admitted in sex, Alexandra said she “enjoyed” but [her]self,” also that she “hate[d] that Yen would want probably more to do with nothing her “now that I have shamed myself and my and that “I can family,” never look at aunt or my my cousins again.” Alexandra,

According she was a “basket case” the three months during between the assault and the of her discovery pregnancy. then did she tell Only mother, her detail,” without “go[ing] into and she still the matter secret kept from other family members. statement, witness,

Yen, defense recounted Alexandra’s as a testifying incident, own after it must have been caused her months tell Yen could from the conversation Alexandra worthlessness. assault, FBI her the when the contacted years “some shame.” Six after feeling status, Alexandra had told in connection with defendant’s still family fugitive that, was friends. Alexandra stated even she recently, close and only family would her to the assault because of the effect it have on reluctant about testify who was ill. grandfather, an inference that Alexandra M.

This evidence readily permitted assault, traumatized, confused, and ashamed about defendant’s unjustifiably No this have influenced her reluctance to matter. report and that might occurred.36 vouching improper

4. Biblical references admon- argument, the midst lengthy penalty prosecutor In of his phase were the ones statutory ished the that the factors jury aggravating only consider, he to subject could but said about the speak briefly “want[ed] or feel an there is who have a may may of case religion anybody problem Bible not be that.” While from the could by quotes impediment principled cautioned, ... to that the used in he he offered them show aggravation, “only of time been considered death has from penalty beginning repeatedly for and murderers.” just proper punishment man, blood (“whoever sheds the of Genesis verse 6

Quoting chapter shed, man”), [Hjis God make image shall his be for in did man blood for “The first is that punish- said this stood two concepts: capital prosecutor life, of human necessary sanctity for is ment murderers preserve life, sanctity to do it.” The of it is man’s being obligation second forbid, demands, continued, death for not but does prosecutor murder, that of life not that taking “means is because a lesser penalty serious an offense.” a similar with other attributed biblically quotes

The followed death”; not man shall be “You shall put theme: “He who strikes a fatally die, who he shall of murderer deserves make for soul reparations for argument prosecutor vouched reject merits defendant’s We also on its the word to refer by asserting “common[ly]” “rape” use credibility M.’s that women Alexandra known to the prosecutor, This was an insinuation that evidence generally. to sexual assaults not credible, testimony argument but an jury, made Alexandra’s trial more presented to the but themselves, claim everyday experience. jurors could evaluate this on a matter based understanding language it own common accept reject free to based on their and were usage. death”; mine, Lord”;

be I will saith the “The ruler put “Vengeance repay, God, he bears not the sword in vain for is a to execute revenger minister wrath him that doeth evil.” upon [ljadies

“That’s all I want on that he say subject, [g]entlemen,” concluded. Defendant did not object.

Defendant with his own responded references. Counsel noted that religious Abel, Cain, when slew did Cain God not kill but banished with a mark. him Counsel he urged was “not a although religious person,” particularly believed who death face jurors might day “memory’s one imposed accusing voice” “did asking, I do the He also tiiat wrong thing?” suggested “[ejvery with, Judaism, tenet that of faith I’m familiar philosophical Christianity, Buddhism, human, almost same the err is says thing. To to divine. forgive Man without at mercy is not man all.”

Defendant now insists the invocation of the prosecutor’s Bible religious the authority for death the undermined sense of penalty jurors’ penalty responsibility, them from discouraged individualized consideration giving result, to factors. mitigating As he he was denied his urges, Eighth Amendment to a right reliable penalty determination. outset,

At the defendant’s failure to at trial the forfeits claim on object Vieira, 298; 264, 35 supra, People Slaughter v. appeal. (E.g., (2002) Cal.4th 477, 1187, 27 Cal.4th 47 P.3d 1209 Cal.Rptr.2d (Slaughter); [120 262] v. Ervin 48, 623, People (2000) 22 Cal.4th 100 990 P.2d Cal.Rptr.2d [91 506] (Ervin).) event, In even if the prosecutor’s argument overstepped proper bounds, defendant fails to the show issue reversal of remarks warrant penalty judgment.

A cite prosecutor not the Bible or basis may as a to religion impose Ervin, 48, 100; the death v. supra, People Roybal 22 Cal.4th penalty. (E.g., 481, (1998) 487, Cal.4th v. 521]; 19 519-521 People 966 P.2d Cal.Rptr.2d [79 Wash (1993) 215, 421, 6 Cal.4th 260-261 861 P.2d Cal.Rptr.2d [24 1107] (Wash).) hand, On other we have it is not suggested impermissible otherwise, argue, for benefit of religious who fear that jurors might of the death not contravene application to secular law penalty according does v. 1005, biblical doctrine (e.g., People 14 (1997) Cal.4th 1063 [60 Bradford 544]; Arias, 225, 92, 180; v. 929 P.2d supra, Cal.Rptr.2d Cal.4th 1171, (1995) 800, Davenport 11 Cal.4th 906 P.2d 1068] or that (Davenport)), the Bible society’s shows historical acceptance 1268, (People Williams capital punishment 45 Cal.3d 1325 [248 834, 221]). 756 P.2d Cal.Rptr. This to cast his remarks sought accordingly.

However, he Though he did not confine himself to these themes. strictly he about allay religious misgivings propriety insisted sought only not that could jurors impose death did simply argue capital penalty, Instead, he asserted that offending without Bible’s punishment teachings. Bible, 6, it duty Genesis verse makes man’s chapter particularly life. that the that of human He penalty sanctity urged impose preserve action, have such demands it. We recently Bible but only permits or similar suggested arguments substantially assumed prosecutorial 264, 297-298; (Vieira, are Cal.4th supra, one at issue here improper. 1187, 1208-1210.) 27 Cal.4th supra, Slaughter, far, went too

But even if we assume this comments similarly prosecutor’s find, we no In Slaughter, as in Vieira and that defendant suffered prejudice. this “were of a we note that the biblical comments regard, prosecutor’s part longer aggravation focused factors argument upon properly Hence, 1210.) no there is (Slaughter, 27 Cal.4th mitigation.” supra, sense of responsibility likelihood biblical references diminished jury’s (Vieira, the court’s standard instructions. supra, displaced 297; Wash, 251.) That himself Cal.4th 6 Cal.4th supra, damage evidence he suffered no unfair religious invoked further principles Hence, (Ervin, 100.) at the reversal hands. prosecutor’s is not warranted. judgment penalty 5. lack illness Comments mental evidence regarding of the In factors mitigating applied, the midst of his no argument 190.3, i.e., (h) (§ (h)), factor whether the defend- discussed factor prosecutor the of his conduct or to conform ant’s capacity “appreciate criminality the was as a result of mental disease conduct to of law requirements impaired defect, he the [ejflfects or or intoxication.” In that told jury “you of regard, or have heard one shred of evidence from a or psychologist psychiatrist not of on the of impairment part member or mental anybody any family or of heard no evidence of mental disease effect any defendant. You defendant, intoxication, not Defendant did not from the not from anybody.” object.

Later, 190.3, i.e., (k)), there (k) (§ when factor factor whether discussing even circumstance which extenuates the of crime “[a]ny gravity other remarked, crime,” “No it is excuse for the legal not though prosecutor of or childhood. No evidence alcohol drug problems. evidence unhappy (Italics added.) defendant raised Again, No mental any problems.” evidence of no objection. because willfully jury, thus misled

Defendant claims prosecutor insane” mental illness—the “bom knew there was evidence of defendant’s (See letter he had Terri received from defendant’s sister Zambrano. discus- sion, asserts, ante.) The misconduct, violated his prosecutor’s determination, federal constitutional to a fair effective rights assis- penalty counsel, tance of freedom from cmel and unusual due punishment, process, Const., 5th, 6th, (U.S. Amends.) of the law. 14th 8th & equal protection The claim must be rejected.

Once defendant’s failure to at trial again, to the remarks now object v. Hinton forfeits the claim on challenged (E.g., (2006) appeal. (Hinton).) event, Cal.4th P.3d In any 981] observed, the prosecutor committed no misconduct. He merely accurately, that the had heard no evidence on subject. this While may record, general,. misstate . . on the may comment record as “[i]n [he] it Keenan stands.” (People actually 46 Cal.3d 509 [250 (Keenan).) 758 P.2d Cal.Rptr. 1081] trial,

Defendant obtained a copy the letter before the end of the guilt it, evidence, but did not to introduce related attempt mental at the trial. The penalty record contains no (See the omission. explanation Keenan, 478, 509.) 46 Cal.3d Defendant now suggests prosecutor’s it over delay turning him from prevented conducting timely investigation contained, had, event, it and the allegations letter’s author in any since 12, 1993, died. But defendant had the letter no later than when he April moved for mistrial on Brady grounds, failure citing prosecutor’s disclose it. defense not begin did its until case present penalty May 1993, almost three weeks later. mistrial,

When it denied a guilt the court said defendant was specifically free to submit the letter to a psychiatrist for whatever it be at the might help And, death, Terri phase. Zambrano’s there despite were indications that other members of defendant’s were still available to family provide information about his mental health. Yet counsel no continuance to sought the pursue matter.

The record thus no the provides ground conclude comment prosecutor’s Moreover, was unfair. the trial court a standard gave instruction that state circumstances, ments are by attorneys not evidence. the “Under we find no (Keenan, 478, of misconduct the sort defendant supra, 46 Cal.3d suggests.” 510, omitted.) fn.

6. Derogatory references defendant At a in his point closing penalty addressed argument, prosecutor issue whether defendant acted under “the “extreme duress” or substantial 1172 190.3, without (§ of (g)). argued,

domination another” factor prosecutor on because defendant “acted that there was no evidence of either objection, he for his evil reasons.” his own and did what did own Later, who leniency deserved no as one prosecutor urged breakdown or killed from an internal wrong, never before did anything Defendant, he “just opposite”; said the human weakness. prosecutor, even to the solving point killed to suit as a of his way problems, his purposes, out, blood, the of his friend. of in cold murder dismemberment carrying evil, Thus, is is and this man “this man prosecutor argued, especially weakness, [j[] This is human of the death deserving penalty. especially other evil. defendant is much more like the This is This gentlemen. ladies man, killer, does it himself.” end the hit the hired he except spectrum, later, into defendant was not forced Still stressed that prosecutor “[t]his This defendant had everything evil because of some environmental factor. evil, [ljadies him. [gjentlemen.” Finally, prosecu- He chose going lies, said, tor “All heard are and [gjentlemen. from defendant you [l]adies He one He is still the same dangerous has not bit over the years. changed he has been.” always sociopath misconduct, and committed

Defendant now urges “evil,” case, into defendant as branding injected personal opinions by result, insists, liar, he was constitu- a As a denied his and “sociopath.” tional to a fair and reliable determination. right comments, though of these prompt

Defendant failed object any the claim have cured harm. He has therefore forfeited any admonition would 614, (2004) Cal.4th 665-666 San Nicolas 34 People [21 v. (E.g., appeal. 509].) 101 P.3d Cal.Rptr.3d range There is a wide

His claim lacks merit in event. Ochoa at the (E.g., permissible argument penalty phase. (Ochoa).) Argument

Cal.4th P.2d 442] (Sandoval, the evidence. warranted may include epithets opprobrious have condoned 180.) Where are so we they supported, Cal.4th supra, the defendant’s nature of egregious wide to describe the range epithets Farnam, “mon (E.g., conduct. [defendant vicious, strous,” “cold-blooded,” is “horrifying” evidence and a “predator”; “ ”]; Thomas v. nightmare’ People and ‘more than worst your horrifying 489, 199, (Thomas) 828 P.2d (1992) 2 Cal.4th 537 101] [7 ” “” “ cancer,’ murderer, murderous is ‘mass ‘perverted rapist,’ [defendant “ 1249 ”]; Cal.3d Sully, supra, and cancer’ ‘walking depraved ” “ “mutation”].) crime, and ‘human monster’ defendant is facts [based Defendant brutally assaulted Mishells because he believed had they his extramarital affair. After exposed admitting this to his friend Reyna, murdered from Reyna prevent Reyna testifying to admission. Defend- ant then dismembered and scattered its identifica- Reyna’s body hamper “evil,” tion. The could prosecutor characterize these acts as and properly And, could brand defendant as “evil” for them. committing considering defendant was a successful and contractor official life whose its public began downward when he decided to spiral commit not adultery, prosecutor was amiss for that he suggesting “chose” his evil course.

Nor did the prosecutor mischaracterize the evidence by that defend- saying lies, ant told but nothing and a When a defendant’s sociopath. testimony contradicts evidence strong of his it is not guilt, to call him a improper v. Edelbacher liar. (People (1989) 47 Cal.3d Cal.Rptr. [254 ” “ “slick,” 766 P.2d ‘snake in the jungle,’ 1] [“ “tricky,” ‘pathological ” “ liar,’ and ‘one of the ”]; liars in the greatest Fresno history County’ Reyes 12 Cal.3d P.2d Cal.Rptr. 225].) And the label of who sociopath—someone acts without conscience or defendant, fit remorse—certainly based on the facts of his No crimes. misconduct occurred.

7. Comments on absence witnesses and family remorse evidence As witnesses, mitigating character defendant called who persons knew him contractor, in his adult life enthusiast, activist, as a computer community and No parent. members were family There was evidence presented. deceased, were and that parents he wished to his children spare involve- any trial, ment in the but that he had a and living brother sister.

In his closing argument, the prosecutor noted defendant’s omission to call witnesses, family childhood “I ask remarking, who you, really knows someone, friends, sisters, acquaintances family, brothers the people you grew with up your youth? They really you; know were they [f] called, [ljadies and [g]entlemen. You did not hear from them. You have yourself ask what that means and why that was.” The defense raised no objection.

On defendant urges the appeal, prosecutor’s argument unfairly placed himon kind pressure produce certain of mitigating evidence. The failure harm, to object, where an admonition would have cured any forfeits the point. The argument meritless event. The never suggested legal burden family members in He present mitigation. 1174 commented, call failure to logical as is on defendant’s

merely permitted, Dennis, 468, 549; Wash, 6 Cal.4th 17 Cal.4th (E.g., supra, supra, witnesses. 215, 262-263.) no felt remorse there was evidence defendant also prosecutor argued said, else can something you “There for his crimes. The prosecutor remorse, if deserves and that’s Is

consider to see the defendant sympathy, [f] remorse? or has expressed there evidence that the defendant has any repented submit, none, no at all I there has been evidence [g]entlemen, [l]adies 00 for he did to Luis has remorse what expressed that he ever ever repented, that he ever admitted the body, in the desecration of no evidence Reyna his for it.” or has responsibility truth of what he did to Luis ever Reyna accepted not object. Defendant did on his these remarks constituted comment

On defendant first claims appeal, Amendment of his Fifth failure to at the violation testify phase, penalty (1965) v. 380 U.S. 609 self-incrimination. right (Griffin against California 106, (1981) v. Smith 451 U.S. (Griffin);see Estelle L.Ed.2d 85 S.Ct. 1229] [14 Amend, 359, 454, at 101 S.Ct. privilege applies 462 L.Ed.2d 1866] [68 [5th his failure trial].) The claim was not forfeited sentencing phase capital not have cured the harm. because an admonition could object, urges, Bemore, 809, 854), his (but if supra, Even so see Griffin did not comment that defendant had claim on the merits. The prosecutor fails remorse; he said there was no simply failed to take stand express have remorse. We consistently evidence that defendant had ever expressed it under even where argument permissible Griffin, such phase found remorse express during to confess failing guilt faults the defendant 381, 455 (2002) Cal.4th testimony. People 29 guilt (E.g., Boyette phase Bemore, 809, 544, Cal.4th 58 22 (Boyette); P.3d Cal.Rptr.2d 391] [127 782, 854-855; 691 Cal.Rptr.2d Holt Cal.4th People v. [63 (Holt); (1996) 13 Cal.4th v. Osband People [55 P.2d 213] 640]; (1990) 52 Cal.3d P.2d v. Taylor 1142].) do again. We so 801 P.2d Cal.Rptr. implied argument improperly Defendant also argues prosecutor’s The claim is if he had remorse. expressed or only he deserved pity sympathy event, it lacks trial. In ground for failure object forfeited (italics added) the jury said that else” “something merit. The only prosecutor absent. He of remorse—was expression could consider sympathetically—an decide defendant could not or should not the jury never stated implied he had remorse. it found expressed deserved unless sympathy that the absence of argued contends the Finally, claim is forfeited Again was an factor. aggravating evidence sympathetic for failure to is and also meritless. The did not state or object, prosecutor that defendant’s failure to or show remorse in the wake of his imply express a crimes was factor in He that aggravation. urged only remorse was absent as factor. Such possible mitigating argument (Cook, permissible. supra, 566, 611; Jurado, 141; Mendoza, Cal.4th supra, misconduct 187.) Cal.4th No occurred.

8. that did not deserve Argument sympathy The devoted substantial prosecutor argument of his to the portions premise that the should not show defendant jury or Aside from the sympathy mercy. above, “no remorse” “[tjhere remarks detailed argued that was prosecutor no basis for or to show or mitigation based sympathy mercy upon evidence in this At presented you trial.” another he point, noted that defendant had asked for (k)” under “section sympathy death penalty 190.3, (§ statute (k); factor see 8.85) CALJIC No. because nothing there was asked, else in Then he mitigation. “What kinds of could things you consider under (k) as we’ve seen because there is else In nothing [factor] there.” this he regard, urged that might be for someone who sympathy appropriate abuse, been bom in a ghetto, or had suffered a broken home or childhood but defendant, was true “opposite” in an grew who intact up family Thus, insisted, beautiful home in Beach. Long the prosecutor defendant had no excuse what “absolutely for he’s done. And no he has right you ask for for what he’s sympathy done.”

The asked prosecutor rhetorically what evidence defendant offered to show he deserved or mercy, answered sympathy sarcastically alluding defendant’s in old and asked buildings,” many buildings “interest[] “[h]ow a human life.” “He asks equal for said the sympathy,” “but look at prosecutor, the viciousness of his attack on Robert and Barbara Mishell.” summation,

In asserted: prosecutor “The defendant asks you mercy. and I ask tell sympathy you to him no. He has right. no crimes he has committed go far beyond pale, are too horrible. He’s not entitled to I will tell sympathy as the mercy, you representing [f] California, of the State of if show him the same you and sympathy that mercy [M.], he showed to Alexandra the same that sympathy mercy Mishell, he showed to Robert and to Barbara same sympathy showed to Luis then I bewill satisfied and will be If Reyna, justice done. this do; defendant deserves then all sympathy, they we become defenseless us, against devour predators among they us.” Defendant this urges violated his argument Eighth Amendment right jury’s consideration all character and sympathetic evidence background Oklahoma Eddings less than death. (E.g., support proffered 869].) The gravamen 114-117 L.Ed.2d 102 S.Ct. U.S. to be that the told prosecutor improperly claim appears irrelevant, entitled legally and that defendant was evidence sympathy or mercy.37 to sympathy the he acknowledged no such assertion. On contrary,

The made prosecutor deciding the could consider in the and were factors mercy jury that sympathy evidence, if any, and he indicated that sympathetic appropriate punishment, However, he of factors. must be the evidence weighed against aggravating evidence, the the evidence in against aggravating when all urged, weighed was basis for or to show mitigation was and no mitigation “nothing,” “[t]here to based the evidence to upon presented or this defendant mercy sympathy added.) in this trial.” (Italics you i.e., theme, the same that this

All the cited defendant excerpts by pursued the basis of the evidence mercy defendant did not deserve or sympathy that defendant had The rhetorical assertions actually presented. prosecutor’s in terrible light the of his mercy no to “ask” “right” jury sympathy reasonably would not be crimes and the lack of evidence sympathetic and was mercy legally that consideration sympathy understood to mean Instead, foreclosed, they sug evidence was or that irrelevant. sympathetic of consider had not case deserving that defendant gested only presented Vieira, (E.g., supra, such arguments. ation on the issue. We have often upheld 464-465; Jones, Ochoa, 353, 264, 296; People 19 Cal.4th v. 35 Cal.4th supra, Arias, 119, 184—185; 176-177.) 13 Cal.4th We supra, do so again. that, as above, summation the the said his final

As noted prosecutor if would be satisfied showed jury People’s representative, victims. Defendant defendant showed his mercy the same sympathy misconduct, used his official position was in that the prosecutor contends this (See the verdict he was urging. for the to vouch personally appropriateness 6 P.3d (2000) 24 Ayala Cal.4th 193] [99 (1990) 52 Cal.3d Cal.Rptr. v. Benson (Ayala); People (Benson).) 802 P.2d 330] However, argument. prior to the commencement objection during this Defendant raised no arguing that arguments, prosecutor from closing prohibit he filed a written motion argument on confusing In of a by jury. the midst sympathy should be considered motion, prosecutor] “to an from request prohibiting [the said his was issue order counsel court, asking, you do that?” after “How can cannot jury sympathy.” consider The arguing the context, prosecutor was appears only to have meant the ruling In the court’s denied the motion. event, mercy. given In the firm evidence did not warrant sympathy or argue free motion, failing to the issue we conclude defendant did not forfeit preargument denial of the during argument objection itself.

renew his Here,

The claim is forfeited for failure to It also merit. object trial. lacks Benson, in Ayala no vouching occurred. improper “ stated ‘what was obvious and simply altogether unobjectionable—i.e., it was the that defendant’s crimes called for the ultimate People’s position Benson, 243, 288, (Ayala, supra, sanction.’ Cal.4th quoting [Citation.]” 754, 795.) supra, 52 Cal.3d No misconduct occurred. ” ” conscience, Appeals “community “collective

9. vengeance, and “social contract”

Most of the prosecutor’s closing some 33 penalty argument, covering an pages reporter’s transcript, persuade attempt balance of aggravating evidence warranted death mitigating penalty. however, At the conclusion of his argument, said he wanted prosecutor talk for a few minutes about the of “philosophy” capital punishment.

In this regard, the indicated the prosecutor that of the death purpose is collective penalty vengeance, defined as or retribution simply punishment He wrong. urged that such vengeance is vital the of expression community’s and that the outrage, vigor of values is society’s by nourished the use of criminal to justice system that reflect the impose punishments community’s “controlled He indignation.” asserted that of society incapable such imposing emasculated, where punishment warranted decadent and and that the serves as the in community’s conscience this implementing sanction.

The contract, also invoked John prosecutor Locke’s of the social concept each whereby individual surrenders the of in personal right vengeance favor of state-controlled retribution. The failure to the death jury’s implement contract, penalty, would violate argued, this for if were or unable society unwilling cases, to even the most drastic impose punishment appropriate individuals, having lost faith in state and justice to protection, might return vigilantism personal vengeance. However,

Defendant did not at object trial. he now claims the prosecutor’s the act the plea jurors as community’s conscience and that avengers, they collective and apply societal values rather than on a focusing case- the determination of specific diminished their appropriate punishment, per- sonal sense of sentencing responsibility, him of an deprived independent, individualized, determination, and constitutionally reliable viola- tion of the Eighth Amendment. harm,

Because an admonition would have cured any defendant’s failure event, below the object argument forfeits In it lacks merit. appeal. 1178 their jurors abrogate personal responsibility never invited the

prosecutor merely did he commit misconduct determine the Nor punishment. appropriate Illinois, 391 U.S. supra, v. accurately (Witherspoon by describing jurors, 510, 519-520), v. Lucero community (People as the conscience 871, (Lucero); P.3d 23 Cal.4th 248] [97 119, 185-186; Jones, Cal.3d Lang, supra, see also supra, justice system role in the criminal 1041) noting by jury’s important 173, 248, 1041; Fierro, 249). Cal.4th (Lang, supra, p. Furthermore, to a did not err some remarks by devoting prosecutor cases, in deserving that the death where argument imposed reasoned penalty, vengeance—i.e., punishment— is a form of retribution or community valid circumstances, state, of all its and on behalf exacted under controlled members, on behalf of retaliation. Retribution in lieu right personal includ- society’s is an of all community important punishments, purpose (1984) 468 U.S. death v. Florida (E.g., Spaziano ing penalty. 3154]; (a)(1) subd. 104 S.Ct. see also purpose L.Ed.2d § [“the was entitled for crime is And

of imprisonment punishment”].) intended, against as he argument, clearly possibility direct some about one or more harbored reservations jurors lingering capital punishment murdering.” State “equivalent references to commu cases have that suggested Our modem prosecutorial not misconduct if are they are nity vengeance, inflammatory, while potentially isolated, for advocating not form the basis brief and do principal 907; 839, Hinton, 11 Davenport, supra, supra, death (E.g., penalty. 262; 1222; 215, Wash, v. People Ghent Cal.4th Cal.4th about 1250].) P.2d Concern 43 Cal.3d Cal.Rptr. [239 (1970) 1 Floyd this traceable to extended comment on issue appears There we noted (Floyd). 464 P.2d Cal.3d 694 Cal.Rptr. 64] in has held that it is for this court never improper prosecutor “[although to to the death penalty in a trial ask the jury impose closing argument penalty contexts that we have stated in other of retribution or vengeance, reasons for its own scheme for is no in the [sentencing] punishment ‘There place (Id. at sake, or retribution.’ simply vengeance product [Citation.]” 721-722.) pp. court, i.e., that to earlier statement of this also another Floyd pointed

“ no longer fact retribution historically, have been the may ‘[w]hatever is thought of the criminal law the primary objective considered [citation] ” (Floyd, supra, abe consideration not even to by many proper [citations].’ discussion, (see 722.) Intervening changes philosophy penal Cal.3d concerns about and thus ameliorate ante) make these statements suspect, such argument. irrelevance of inflammatory prosecutorial Here, isolated, but comments were not brief or neither did prosecutor’s Moreover, they form the basis of his remarks were his principal argument. not did not seek to untethered inflammatory. invoke They passions, decisions, dissuade from individual but that the jurors making only to assert community, acting behalf those has the its injured, right express values the severest by imposing for the most crimes. punishment aggravated case, This was at was prosecutor pains suggest, one those such deserved severe No misconduct occurred. punishment.

10. “Future dangerousness” argument that, crimes, based on prosecutor argued defendant’s “there was every reason to believe will be as dangerous in as he on the street.” prison record, to the Alluding numerous incident in defendant’s reports jail includ- two ing fights, the noted prosecutor that defendant “couldn’t even keep Thus, asked, nose clean” in jail. prosecutor “How will he be in state where he prison,” would have no incentive behave. The prosecutor vein, continued in the “Would rhetorical-question asking, or inmate any guard [j[] be safe from this defendant? And if he does kill again what do prison, then, [ljadies we say and [g]entlemen? What do we to the that we say family, didn’t know how he was? . . . How victims many must there be before [f] [f] finally say we to this defendant enough?” Defendant did not object. Defendant now insists the prosecutor fears improperly played jury’s by speculating on his future thus dangerousness, him the reliable denying verdict guaranteed by Eighth Amendment. Defendant’s failure to claim, object trial forfeits the and it lacks merit in any event. concedes,

As defendant may present expert factor, evidence of future as an dangerousness but he aggravating may argue conduct, from record, the defendant’s indicated in past as the that the (E.g., Boyette, supra, 29 Cal.4th defendant be a will danger prison. 446; People Michaels (2002) 28 Cal.4th 540-541 Ervin, 48, 99; Thomas, supra, 1032]; P.3d supra, 22 Cal.4th 489, 537.) insists, however, Defendant that the “what if’ prosecutor’s ap went proach the evidence into the realm of beyond emotion. We find no The impropriety. was entitled to his prosecutor argument in colorful present e.g., Boyette, supra, (See, terms. at that p. [given strong likelihood “ defendant will kill again, have to ask do ‘[y]ou want to yourselves, you put Michaels, ”]; more families that?’ through at all ‘Just think of p. [“ generations the of that be will... to prisoners extreme exposed [defendant’s] . . . danger all the be guards who will to meet prison lucky enough [and] ”].) No misconduct occurred. [him]’ trial that had received Argument

11. fair defendant defendant, commented that the of his the prosecutor In course argument, with attorneys” criminal defense two by “experienced, topnotch represented trial imaginable” had had the “fairest the aid of a long-term investigator, for fairness and his the state throughout “a known judge before noted on The further prosecutor of the law death cases.” knowledge had been selection that the after a two-month going through process, jurors, Moreover, fairness and impartiality.” chosen because of “specifically [their] observed, all the witnesses the defendant had been able confront “had the and all present him and had against opportunity presented this,” said the behalf.” The result of “all evidence he wished on his the and charges doubt of beyond was that defendant was guilty prosecutor, did Defendant not object. deserved the death penalty. the argument contends this invoked wrongly prosecutor’s

Defendant now to vouch knowledge, and his and official prestige, purported expertise personal the the for the of defendant’s trial representation, reputation presid- quality jurors the of the trial ing process, thereby reassuring fairness judge, and unwarranted against arbitrary had received every defendant protection assertions, urges, The defendant of the death penalty. prosecutor’s imposition record, many in the and were in respects were not evidence by supported inaccurate, had no basis to to be who by jurors, but were likely accepted result, status. As evaluate their truth or because falsity, prosecutor’s insists, constitutional rights violations of his federal suffered trial, freedom from due fair an jury, process, equal protection, impartial 5th, 6th, Const., Amends.) & (U.S. 8th 14th cruel and unusual punishment. event, he the claim. In any failure trial forfeits object Defendant’s out, for reversal. As People point prosecutor’s demonstrates no basis record, observa- by jurors’ by personal comments were supported assertion, had the “fairest that defendant had global tions. The prosecutor’s by be understood as established only specific trial would imaginable,” could see that defendant was jurors factors then cited by prosecutor. described, jurors’ whom the court attorneys, two represented skilled, investigator The defense competent. presence, experienced, informed several The trial years. judge had worked on the case for testified he many time and had tried capital been the bench a long he had jurors in that area were and competence suggesting reputation cases—thus case, including his daily handling could observe jurors high—and with the lawyers. his interactions opposing extended selection process, an gone through also knew jurors they and if were fair they impartial. to determine

involving questions designed witnesses, could They see defense had numerous presented and had been sum, allowed to cross-examine witnesses. In reasonable prosecution jurors would understand the “fairest trial remark as prosecutor’s imaginable” simply an on matters argumentative gloss directly before them.

Defendant urges false in his prosecutor willfully statement that defendant had the and all evidence” he “opportunity” “any present wished. Defendant cites the effect of the late of Terri prosecutor’s disclosure Zambrano’s “bom insane” letter on the defense’s mental ability present seen, evidence. But as we have the record no gives indication the belated of letter—whatever acquisition caused the the defense delay—prevented available, from material introducing evidence. event, was, bottom,

In mere prosecutor’s argument puffery, would be recognized as readily such. This is so in especially light instruction, court, standard given by that statements are not by attorneys misconduct, evidence. There was no and no conceivable Defend- prejudice. ant’s claim must be rejected.

12. Cumulative prejudice misconduct from Defendant asserts he suffered cumulative prejudice from multiple instances of alleged misconduct in his closing penalty argument. But we have identified one such only instance of miscon- possible duct, the prosecutor’s ante), discussion, discussion (see of biblical themes error, that, have concluded if these remarks were harmless. We clearly therefore reject defendant’s claim of cumulative prejudice.

G. Penalty trial error issues

1. unadjudicated Admission M. Alexandra rape of of admission, evidence, Defendant urges that as aggravating unadjudi- cated sexual assault M. against Alexandra violated his federal constitutional rights to due process, equal fair and and a protection, impartial jury, reliable Const., 5th, (U.S. 6th, verdict. Amends.)38 8th & 14th He asserts that who jurors had found him guilty of offenses could not capital impartially crime, judge guilt the aggravating and that he was denied the protection of a unanimous verdict beyond reasonable doubt. We reject contention, we Stanley, as have times many before. (E.g., 38 Defendant penalty phase, moved limine to exclude the Alexandra M. incident from claiming, among things, unadjudicated activity other that the use aggravating criminal denied, evidence violates the federal Constitution. The accepted motion was but the court parties’ stipulation timely.” that this motion would be “continuing deemed 1182 Anderson, Jenkins, supra, 584—585; 543, supra,

913, 962; 22 795, Samayoa 900, 1054; v. People (1997) 15 Cal.4th 863 [64 Cal.4th Balderas, 144, supra, 400, 2]; 204—205.) 41 Cal.3d 938 P.2d Cal.Rptr.2d his due were rights Defendant also claims federal and state process in 1982 delay “prosecuting” virtue of the violated “preaccusation” But we have held consistently sexual assault on Alexandra M. activity criminal offer in the defendant’s violent aggravation may prosecution at the remote time time. Absent demonstrable prejudice, that occurred does the defendant’s due process, which that occurred not violate activity 93, v. Yeoman rights. (E.g., People trial, (2003) Cal.4th or fair trial 31 speedy People 186, 27 1166]; Koontz 72 P.3d Cal.Rptr.3d 136-138 [2 Anderson, supra, 335]; 25 P.3d 1088 46 Cal.Rptr.2d Cal.4th [119 543, 585-586; Medina, 772.) defend Though Cal.4th Cal.4th none nature of damaging he demonstrates except ant claims prejudice, The evidence was evidence. admissible.39

2. Denial allocution trial, defendant moved for permission At the outset the penalty i.e., to statement immune allocate before the make penalty jury, personal that, if stated permit- Counsel’s attached declaration from cross-examination. so, and value about the “constructive worth ted do defendant would speak activities as it the artistic vocational of his life even exist may prison,” bars, his to teach other behind might he wish undertake opportunity children, his his love for knowledge, inmates based on experience out the remainder of his life serving while promise good behavior “[h]is The motion was denied.40 prison.” allocution was error. The consequence,

Defendant now the denial of urges insists, to due process, a violation of his federal constitutional rights he 6th, Const., 5th, (U.S. &8th and a reliable verdict. protection, equal asserts, Amends.) he compared was treated unequally 14th In particular, defendants, sentencing. who have a of allocution at right do noncapital concedes, arguments. have similar repeatedly rejected As defendant we v. Carter (E.g., (2005) 36 Cal.4th Sixth, Fifth, claim that the court violated his There is no merit in defendant’s related instructing, on the rights by objection, over defense Fourteenth Amendment

Eighth, and the assault on Alexandra M. sodomy copulation and forcible oral related to elements of these entirely error evidence about premise it was to admit argument rests rejected The instruc insufficiently crimes. We have that contention. unadjudicated and noticed argument thus also fails. tional ruled on the automatic allocute to the trial court before it Defendant was later allowed to 190.4, (e) (section under section subdivision modification of the death verdict motion for discussion, post.) (See 190.4(e)). Lucero, 692, 717; People v. Clark 544]; (1993) 5 supra, P.3d 23 Cal.4th 117 950, 689, [summarily Cal.4th 1036-1037 857 P.2d Cal.Rptr.2d 1099] [22 Keenan, 511; 478, supra, 46 Cal.3d argument]; dismissing equal protection 867, 172, 755 P.2d People v. Robbins 45 Cal.3d (1988) 888-890 Cal.Rptr. [248 (Robbins).) 355]

We held that not have and sentences are generally noncapital capital (E.g., People v. Elliot situated for of similarly purposes equal protection. 453, 759, 968]; (2005) Cal.4th P.3d People 37 488 122 Cal.Rptr.3d [35 Williams, 1268, 1330.) supra, 45 Cal.3d With to allocution regard specifically, have have other explained we that sentencees no noncapital right express sentence, about take themselves the while defendants may appropriate capital (Robbins, 867, 889.) the stand and on that In supra, issue. 45 Cal.3d testify context, a of the latter allocution immune from right cross-examination the contravenes law’s the sentencer sentencing capital purpose provide (Keenan, with all relevant on information bearing appropriate penalty. 478, 511.) 46 Cal.3d supra,

Defendant that did urges because he not intend to in his discuss facts statement, cross-examination would be irrelevant. But his to behave promises and well be constructive in would be presence prison legitimate subject for cross-examination to their test based on conduct. Defend- sincerity past ant’s claim lacks merit.

H. Denial automatic motion death verdict of of modification 1993, 8, On trial court denied defendant’s automatic September motion (§ 190.4(e)). for modification of the death verdict ruling Defendant claims the in court all evidence. improper, disregarded mitigating Defendant did object below to of the court’s recitation of its any aspect reasons for the automatic modification motion. He has therefore denying Oliver, (Lewis 1064, and forfeited his claim. citing 39 Cal.4th v. Riel People (2000) 22 Cal.4th P.2d Cal.Rptr.2d [96 969] forfeiture rule on such motions [applying hearings following v. Hill finality (1992) of Cal.4th 959 839 P.2d 984]].) As we hereafter lacks explain, contention merit event. that, motion, 190.4(e)

Section “the shall requires ruling judge evidence, consider, account, review the take into be and guided by 190.3, circumstances referred to in aggravating mitigating [s]ection shall make a to whether the findings determination as and verdicts jury’s circumstances are aggravating outweigh mitigating circumstances to law or the evidence state on the record contrary judge shall presented. the reasons for his findings.”

“ an ‘On we on such subject ruling application independent appeal, fact; a determina resolves a mixed law question review: the decision course, de Of when kind is examined novo generally tion this [citation]. we review the trial court’s determination scrutiny, conduct such simply we record; we not make a de novo do considering after independently ” v. Carter (People determination penalty.’ 476], Mickey, 54 Cal.3d P.3d quoting 703-704.) its its statutory obligation.

The trial court began ruling by correctly stating evidence, the had the and carefully guilt penalty phase it reviewed Indicating of doubt the truth the guilt it was reasonable of court said satisfied beyond M. that Alexandra raped circumstance and findings, and special witness, aof killing the crime—the capital circumstances Assessing identifica- and dismemberment of corpse hamper and decapitation “heinous,” “a threat grave “totally court found them repulsive,” tion—the “base, committed who a man with antisocial by personality” to our society,” his conduct or the caused to innocent injury people.” had “little for regret in mitigation, it had factors The court indicated considered potential of the crime even which extenuate including “any gravity circumstances stated, it this the court excuse for the crime.” In legal regard, not though associates, his of “defendant’s testimony neighbors, had examined all co-workers,” as and of his prison adjustment expert, teachers and children’s his in civic organizations as the evidence of his participation well inmates, or in his character mitigating but found jail nothing assistance court, defendant’s back- On the said the background. contrary, privileged court, Indeed, said the mitigation. and adult success ground weighed against disregard any life with total defendant’s life “has been a of egocentricity and compassion,” it had “considered being.” Though sympathy human asserted, evidence, not sufficient in considerations are court “these light less than death.” not in serve as the basis a sentence or do way ruled, sum, all the evidence and by independent In the court “considering review, aggravation that the factors in assessment is the Court’s personal and further doubt those outweigh mitigation, all reasonable beyond is so substantial aggravation finds that the evidence of court independently that warrants death and the evidence of it mitigation when compared without life possibility parole.”

Thus, evidence and mitigating court considered all fully proffered On less than death. insufficient to warrant a sentence deemed it simply error review, to law the evidence. No is ruling contrary we cannot say occurred.

I. Challenges to scheme capital sentencing Fifth, Sixth, Defendant raises numerous under the challenges, Eighth, Amendments, Fourteenth the California scheme “as capital sentencing in his case. Some of the applied” issues are as claims of instruc- presented tional error. other In instances defendant that the suggests simply statutory itself, scheme sentencing the standard explicated by instructions given case, statute, Still unconstitutional. other claims attack the death penalty or the death in general, for reasons the instructions. penalty process beyond framed, As will no matter how these are appear, arguments rejected we have them. all of

Defendant urges trial court erred failing to instruct that the find, must (1) reasonable doubt beyond existence of each aggravating factor used to the death justify penalty, aggravation outweighed mitigation, (3) and that death was the He is mistaken. appropriate penalty. (People Boyer (2006) 412, v. 677, 38 Cal.4th 485 133 P.3d Cal.Rptr.3d [42 Jurado, (Boyer); 143; 72, supra, 38 Stitely, supra, Cal.4th Cal.4th 581] 35 514, 573; Panah, 395, supra, 499.) 35 Cal.4th erred,

Defendant contends trial court on similar constitutional grounds, by refusing his delete from requests the instructions those factors sentencing listed in section 190.3 that he deems to his inapplicable case, (offense (d) factors including committed under “extreme” mental or emotional disturbance), (f) (defendant’s belief in moral or ex justification (h) tenuation for conduct), (inability to criminality or conform appreciate conduct defect, law of because mental disease or or intoxication), (i) (defendant’s age crime) (defendant at time of and as (j) minor accom 190.3, (§ (f), where, plice). (d), (h), factors There is no such (j).) requirement here, as jury instructed to consider only “applicable” sentencing 412, 486; factors. (Boyer, supra, 38 Cal.4th People Gray (2005) see v. 37 168, 451, Cal.4th 236 (Gray); Maury, 118 P.3d supra, Cal.Rptr.3d 30 [33 496] 342, Cal.4th 439-440.) In we have clear made defendant’s particular, “is neither nor age is used aggravating ‘but in statute “as a mitigating, metonym age-related matter or suggested evidence common by ’ ” (Mendoza, 130, supra, experience.” 190.) 24 Cal.4th Defendant finds constitutional error in the court’s designate failure to which factors are aggravating which are There was no such mitigating. 412, 486; 168, obligation. (Boyer, supra, Gray, 38 Cal.4th supra, 37 Cal.4th 236; 978, Kraft, 23 supra, 1078-1079.) Cal.4th

The sentencing statute and instructions in and the general, mitigating factors not (Young, are 34 supra, particular, vague. unconstitutionally 1186 1149, 1226; Lucero, 692, 741; v. Freeman supra, 23 Cal.4th

Cal.4th 249]; Webb, 558, supra, 6 450, 882 P.2d (1994) 8 Cal.4th 525 Cal.Rptr.2d [34 494, 535.) Cal.4th (People factors. not make written findings aggravating

The need jury 126]; Kraft, P.3d Marlow Cal.4th 96 978, 1078; Bemore, 859.) supra, 22 Cal.4th supra, 23 Cal.4th not to find mitigating be that it does have The need not instructed (Roldan, supra, doubt. factors reasonable unanimously beyond 741; 466.) Boyette, supra, Cal.4th believed” “moral” in “reasonably sentencing such as Use descriptors 190.3, (§ believed” in (f) (f) “reasonably factor factor [whether conduct]) sentencing factor for his “substantial” “moral justification” (id., factor under “substantial domination” of defendant acted (g) (g) [whether to the consider- another]) are as to erect barriers vague impermissible not so 395, 500; (Panah, Boyette, Cal.4th evidence. mitigating ation 381, 467.) supra, Cal.4th not deficient constitutionally standard instructions are sentencing

The that jurors compre- fail to define they mitigation. insofar presumption is assertions the contrary hend the instructions not rebutted by empirical and has not been record part present based on research 701, 772-773; (Welch, see 20 Cal.4th supra, cross-examination. subject Holt, 619, 702.) supra, also 15 Cal.4th death-eligible the class of

The death statute narrows adequately penalty 287, (2006) Cal.Rptr.3d 40 Cal.4th 339 (People Williams murderers. v. [52 Marks, 197, statute 268, 47]; 237.) Nor is the supra, 31 Cal.4th 148 P.3d discretion, within its param- it invalid insofar as allows facially prosecutors eters, the death will and will not seek they the cases in which decide v. 264, 304; (Vieira, Lucas (1995) 12 Cal.4th People Cal.4th supra, 35 penalty. Keenan, 478, 525, 373]; 46 supra, 415, Cal.3d 907 P.2d 477 Cal.Rptr.2d [48 505-507.) it require compara- insofar as does not statute is not unconstitutional Oliver, (Lewis supra, and

tive, intercase, 39 Cal.4th review. proportionality 913, Jablonski 1067; 966; (2006) 37 People v. 970, supra, 39 Cal.4th Stanley, Panah, supra, 35 774, 98, 938]; Cal.4th 126 P.3d Cal.4th Cal.Rptr.3d [38 intracase review in 395, we 500.) deny Defendant claims also proportionality cases, do to determine we undertake he is mistaken. request, but capital Upon “ ‘is dispropor- sentence so “grossly defendant’s death whether particular unusual constitute cruel or as to tionate” to the offenses committed] [he ” I, under article section 17 of the California punishment Constitution.’ 966, Arias, 92, Cal.4th (Stanley, supra, 39 13 Cal.4th quoting supra, 193.)

Defendant contends his death sentence was to his grossly disproportionate individual we but the claim. He was a culpability, reject successful contractor and Mishell, official public who assaulted Robert and brutally Barbara disabilities, both with leaving because he permanent they believed his affair. exposed extramarital After this assault friend admitting to his and official, fellow Luis he murdered Reyna, Reyna prevent Reyna’s testimony matter, him in the against then and Mishell decapitated Reyna’s dismembered it body dumped in remote location in order body’s hamper circumstances, identification. Under these defendant’s death sentence is not “so his offenses and to disproportionate personal those culpability offenses as to the conscience’ or fundamental notions of £shock[] £offend[] ” 913, 967, human dignity.’ (Stanley, supra, 39 Cal.4th v. quoting People (1992) Livaditis 2 Cal.4th 297].) 831 P.2d Cal.Rptr.2d [9 Defendant that the urges out his death delay carrying sentence is cruel and/or unusual punishment violation of the federal and state Constitutions. But we have held that uniformly reasonable delays required by process of statutorily mandated review do not violate appellate these constitutional Panah, 395, 500; provisions. Ochoa, (E.g., supra, 35 Cal.4th Cal.4th supra, 19 353, 477-478.) is, se,

Finally, defendant that the death urges cruel unusual per punishment violative of the Eighth We Amendment. continue to reject such Moon, 1, 47-48; claims. (E.g., Staten Cal.4th (Staten).) 11 P.3d 968] J. Cumulativepenalty phase prejudice

Defendant claims cumulative from all prejudice alleged errors miscon- duct error, at the penalty We identified such have no and phase. only one misconduct, instance of possible biblical references. We have prosecutor’s further found that if misconduct occurred in this it respect, clearly Hence, harmless. defendant’s assertion cumulative must fail. prejudice K. Other issues

1. New trial motion others, 1181) Defendant moved a new (§ for trial on grounds, among he had been numerous trial court errors prejudiced by and prosecutorial (id., 5). subd. and trials the course of throughout guilt missteps on defense rulings included a list” asserted erroneous “laundry The motion misconduct, with no and and instances of objections, prosecutorial motions The trial court denied each individual claim. argument accompanying the motion. erred, his violating trial urges thereby rights

On court appeal, below, Fifth, Sixth, he Amendments. As Fourteenth Eighth, under the fashion, miscon- lists, error and some 30 instances alleged in conclusory on Others have raised substantive issues appeal. duct. Some been as separate, those, not, why no as to each argument and as defendant presents have erroneous or improper. cited instance was

“ ‘ “ rests completely motion for a new trial so ‘The determination of a be disturbed unless that its action will not within the court’s discretion ’ ”” (Staten, of discretion clearly appears.’ manifest and unmistakable abuse 618, 466, (1991) v. Cox Cal.3d 24 Cal.4th People supra, quoting test. 351].) Defendant fails to meet this P.2d Cal.Rptr. [280 error and of trial court all defendant’s claims rejected We have appellate therein, misconduct, for reversal of cumulatively, or singly no basis finding claims, as included those insofar guilt Accordingly, penalty judgments. disturbing no trial motion and form arguments, grounds new others, may be As to the claims raised perfunctorily trial court’s ruling. 15; fn. (Waidla, 22 Cal.4th basis. rejected 137, 214, 521].) P.2d fn. 19 Turner of discretion in no manifest and unmistakable abuse Defendant has shown No basis for reversal appears. trial court’s ruling. interest attorney

2. Alleged conflict of that adversely a conflict of interest his trial counsel had argues Defendant conflict, he on this bearing The information affected their performance. by read asserts, sentencing report was contained the probation and new trial hearing addressing sentencing at the combined judge posttrial insists, failing, erred sua sponte, the trial court issues. Accordingly, trial, new new to grant his motion for argue new counsel appoint trial because of the conflict. are these: facts claim pertinent

We find defendant’s unpersuasive. that, July on under oath defendant stated In his trial guilt testimony, went with Celebration he Luis died his Reyna presence, the after day Oberman with “had some attorney,” to with whom he discus- “[meet] [his] sions,” examination, then went home and to leave. Under direct he packed that, to as he had written Oberman in his letter from agreed truthfully jail 6, 1992, (1) decided to he that would July he leave because thought stop cases, (2) from Mishell and he arising civil suits did not expected Reyna bail, believe the would allow remain free him to on there had police been death threats from brothers. He also he Reyna’s indicated was then about thinking returning as soon as or “when I was next scheduled September to in court.” appear verdicts,

On May guilt following probation officer defendant interviewed of a sentencing purposes report regard- defendant, cited ing convictions. As noncapital states report interview, During his defendant following; accused Oberman and Alexandra M. his lying, claimed had attorneys not discredited fully either though witness “there was clear ammunition to do so.” Defendant then asked whether the officer to wanted hear what I feel were the “really mistakes made by What I should my attorneys? feel have been told the jury?” information, Defendant said he was to willing this because he impart believed it was and should have been to but important presented the jury, “your report to the court is have It will probably out. come out place brought [it] at some later time officer The that he appropriately.” was responded obliged the court provide with all information he deemed relevant. that, further indicates while report his version of the recounting Mishell and Reyna episodes information defendant (apparently including stated, thought was not to the sufficiently defendant as presented jury), trial, that he dismembered Reyna’s body its identification delay because “I needed time confer with about my [attorney] what happened.” defendant, he did his According consult “as soon as he was attorney able to see me.”

At that which meeting, included Oberman and the attorney’s investigator, claimed, The advice that “I told all of them what exactly happened. I was Tim given by was that I [Rien] [one of defendant’s trial attorneys] should out as get country quickly possible! see You that’s some of which information given. attorney never never tried to My Celebration Oberman when she testified that first time impeach she ever heard about I death was when told her while were Reyna’s we on a lying beach in All Mexico. Rien had to do was to investigator the stand put because, assume, but he refused I has ambitions to be and he judge has to maintain a clean record as an attorney (Italics order to achieve that!” added.) account, the

After his defendant broached again subject completing said, see, this isn’t things” “these from the He “You omitting report. really the time the to these It would bring things. just complicate my or place up assist with I assume that will need to me with my they attorneys. relationship to was states that this admonishment my appeals.” report response “[o]ur that should have uttered that he wanted anything kept never [defendant] from the Court.” confidential 8, 1993, to address hearing

On the court held combined September trial, (2) (1) for a new the motion for defendant’s motion pending pending verdict, (3) At automatic modification of the death noncapital sentencing. outset, defendant was allowed to make a to the court. lengthy statement trial, He his claim that there were witnesses at that lying conceding reiterated blaming “I was one. I misstated some truth the trial.” While various during case, for the result in his defendant directed system unjust components However, own even he mixed and criticism at his praise attorneys. though would his that had been told the officer’s include claim probation report to said country immediately, Rien had advised him leave the Attorney on that nothing subject.

After the new motion and the motion to the death modify trial denying verdict, read, time, it would to for the first court announced pause officer’s in order undertake report sentencing.41 probation noncapital so, the court not on Having allegations against done did comment defendant’s side, did for either as contained in Neither counsel attorney, report. id., (§ (b)(ii)(E); all had received advance subd. see though copies. sentences, (b).) former The court imposed noncapital pronounced subd. concluded judgment, proceedings. By

On defendant asserts appeal, following: advising crime of interstate murder foreign escape commit the additional flight (see in a 1073), 18 U.S.C. Rien himself dilemma. charges Attorney placed § show the true Rien’s trial to defendant him to reason duty required advice, consciousness of Yet to do guilt. defendant’s counsel’s not flight would Rien’s violation of the Rules Professional Conduct so own expose law (see [attorney rule 3-210 shall advise violation except upon invalid]). on faith The adverse affect of conflict belief law is good guilt judgments. counsel’s reversal of the performance requires the Sixth to effective assistance of counsel secured right “The I, article section 15 of the Amendment to the federal Constitution and indicated, to defer thereby proper procedure it adhered the rule that As court modify reading ruling the death probation report until after automatic motion 834,786 892]; P.2d (People v. Lewis Cal.Rptr. verdict. 50 Cal.3d 287 [266 Williams, 1268, 1329-1330.) supra, 45 Cal.3d

California Constitution includes the to right free from conflicts representation violation, interest. ... To establish a federal constitutional [Citation.] defendant who fails to at trial must show that an object actual conflict of interest affected his ‘adversely To lawyer’s performance.’ show [Citations.] Constitution, violation of the under our state corresponding right a defendant conflict, need demonstrate a only potential so as the record an long supports ‘informed that the speculation’ asserted conflict affected counsel’s adversely performance. (Frye, 998.) 18 Cal.4th supra, [Citations.]” aware, aware, “When a trial court is or should be of a conflict of possible interest between a counsel, criminal defendant and defense the court is to required into the inquire circumstances of the conflict and take possible whatever action bemay A appropriate. trial court’s failure to carry [Citation.] out its to duty conduct such an or to take action inquiry, based on the results of its denies the inquiry, defendant the right due process. (Frye, [Citation.]” 999.)

We do not these interpret to mean that the principles court must inquire conflict, into every claim of instance, however suspect unfounded. In this defendant’s unsworn him eleventh-hour assertion that his counsel advised was, terms, criminal engage flight blunt incredible. inherently his During extensive sworn which testimony, specifically included the of his subjects consultation with counsel and his reasons for he fleeing, did not mention it. Defendant’s unsworn accusation against counsel was made after the only guilt penalty verdicts had gone him. And against his statement to the officer probation was marked by hand, On the one he inconsistency. insisted that counsel’s advice to flee was should have heard something about. hand, On the other he that this same proposed information be omitted from the officer’s because the time report, was not yet right disclose it.

Though advised that his accusations would indeed be included in the defendant did report, not allude to them in his allocution subsequent, lengthy to the trial court—in which he addressed flaws in perceived his legal representation. allocution, In the course of his defendant he admitted was among witnesses who had lied at trial. The trial court obviously agreed with this assessment. In denying automatic motion to modify death verdict, the court that, declared itself satisfied beyond reasonable doubt contrary to trial defendant’s testimony, had murdered Luis Reyna prevent Reyna’s testimony. circumstances,

Under these credit, the trial court was not obliged or act investigate, defendant’s last-minute upon, effort to blame his on flight counsel, his rather than on his own consciousness of No error guilt. occurred. claim, an actual were we to credit to assume Even defendant’s interest, inference, fails to or even a conflict of defendant raise an potential counsel’s basis for informed that speculation, performance adversely otherwise, evidence of counsel’s affected. In arguing suggests advice, he did not reasons of if would have shown flee for venal presented, elsewhere, said, But defendant stand or own. has never observe, And, was the he fled. as the such counsel’s advice reason “that well the jurors by suggesting evidence have might prejudiced [defend- surrounding counsel found the events explanation own [of ant’s] [his] he advised to flee rather than Reyna’s so incredible that [defendant] death] sum, for it a In we find no basis reversal. present jury.” Missing 3. records of lost or

The notes certain in this case were proceedings reporters’ also to various conferences and Defendant unreported destroyed. points counsel, court and from the time of defendant’s among extending discussions trial, and the arrest in the Mishell case the guilt including preliminary through a denied him Defendant seeks new trial on these omissions grounds hearing. review, in violation due rights. a record for of his appellate process adequate 190.9, a violation of which re “An record is section incomplete case be record with a that all in a conducted quires proceedings capital Court, (See of and also Cal. Rules reporter present transcriptions prepared. 8.610].) 39.51(a)(2) rule section 190.9 is Although rule now [see [former] of of does reversal a violation its not mandatory, require provisions record not conviction unless the defendant can show ‘the appellate (Frye, review.’ meaningful supra, adequate permit appellate [Citation.]” Seaton, 598, Moreover, 894, 941; 699.) see also supra, Cal.4th are no reversal on appeal in the basis for irregularities hearing preliminary can unfairness in the resulting subsequent unless defendant demonstrate Crandell, 833, 855; trial. Cal.3d (See Pompa-Ortiz, supra, 46 Cal.3d 519, 529-530.) record settlement

As defendant fails to meet these tests. At a we explain, lead defense trial December and prosecutor conference on Rien, counsel, most to the nature of of agreed inconsequential as Timothy discussions, their recollections.42 these and the record supports available remainder, record suggests nothing to the the available strongly Even as trial, Golde, record presided died in October Judge who Judge urges that Golde’s Judge held Goodman. Defendant proceeding settlement before were such words qualified the fact that recollections sometimes unavailability, and counsel’s “believe,” reliability proceedings. of the settlement For “probably” as undermines below, we are explain persuaded. reasons we not Thus, there

affecting judgment occurred. is no basis validity conclude the record is inadequate.

The notes of number of court reporter’s 1988 municipal proceedings relating solely the Mishell assault case were At the record destroyed. settlement Rien both indicated knew proceeding, prosecutor they of the content these nothing Attorney Rien’s proceedings. predecessor, who Schnayerson, defendant at this had also represented early stage, pro- no fessed recall.

However, confirms, clerk’s transcript suggested settlement, routine, during record were ar- proceedings involving waiver, bail, raignment, time defendant’s motion and substitu- discovery, tion of counsel. Defendant demonstrates no realistic possibility prejudice from events these occurring during proceedings. to a relating

indicates that a defense motion for granted in submitted discovery part, in further part, continued for January on Defendant proceedings 1990. shows no realistic chance anything warranting reversal took during place this proceeding.

Defendant cites nine or the unreported conferences discussions during conference, record At the settlement preliminary hearing. trial counsel essen- agreed that tially all these unreported matters involved scheduling eviden- tiary issues to peculiar the itself. The preliminary hearing available record show, this supports determination. Defendant and our fails to careful review disclose, not does realistic chance that of any any these off-the-record discussions affected the of trial. (Pompa-Ortiz, supra, fairness subsequent Cal.3d 529.)

Defendant next number cites a of matters allegedly unreported pretrial record, court. Both settlement conference and the superior available record indicate that only these involved proceedings setting continua- tion of the trial date. There no hint of on controversy scheduling this any Hence, that might issue have affected defendant’s defendant does rights. show, reveal, and our careful review does not any realistic possibility defendant was failure to these oral on the prejudiced place proceedings record.43 17, 1990, In one August proceeding instance—an at which defendant’s motion for under section heard and order erroneously dismissal 995 was denied—the minute describes

proceeding unreported. brought as At the record settlement this was the court’s proceeding, discus- claims from the failure to number of Defendant prejudice report trial. In to unreported sions and conferences during points particular, dire, to the voir during jury insinuating they might discussions pertain (see dismissal of African-American prosecutor’s improper prospective jurors discussion, ante). does this Again, The record not bear out speculation. defendant demonstrates no realistic chance that these unreported are had a The cited instances validity judgment. matters on bearing as follows: 19, 1993, during there was an bench discussion January

On unreported cocounsel Traback’s voir dire Juror H. At Tracy defense of Prospective neither recalled the exact content of record settlement counsel proceeding, however, record, The that it ultimate discussion. makes clear had no this conference, Traback said following Immediately unreported importance. that it H. Tracy court concerned voir dire of scope open permissible later H.’s excusal for reasons unconnected stipulated Tracy The parties her a juror. qualifications 25, 1993, during

An bench occurred on January discussion unreported dire Juror M. At the record Traback’s voir examination Cecilia Prospective counsel the discussion concerned the agreed degree settlement proceeding, the case—a Traback could Cecilia M. about details of which question confirms this tactic the court not been record generally allowing. Cecilia that she might recollection. M. had disclosed on her questionnaire At the about the case. outset of Traback’s examination something know counsel’s made clear it would monitor carefully this court subject, she some of the Mishell Cecilia M. indicated remembered aspects questions. assaults, Traback then nothing approach but about murder. asked Reyna’s examination, discussion, an he resumed the bench. After off-the-record the its challenges, but on a different Without subject. exhausting peremptory is no M. as a member of the There regular defense Cecilia accepted jury. validity the discussion would affect the anything indication unreported the judgment. 25, 1993, discussion between

Later on an took January unreported place of Prospec- counsel and the court after the voir dire examination just defense counsel M. proceeding, Robert had At record settlement begun. tive Juror discussion, must have suggested but it did not recall precise subject matter, such scheduling, an as because insignificant prosecutor involved discussion, There no indication that the not asked was participate. record, in the reporter’s transcript prepared to be included attention. The court ordered February but that unreported proceeding an and this was done. Defendant also cites counsel proceeding, all trial proceeding pertain did not him at all. At record settlement case. The confirms counsel’s recollections. person involved another record agreed it whatever its had ultimate Insofar it concerned subject, importance. M., Robert it cannot been have material. As result of voir dire subsequent court, examination in he was excused for cause. open 27, 1993, On January there was an discussion between the court unreported and defense counsel in the voir dire examination of Juror early Prospective Tom N. At the record settlement counsel the discussion agreed proceeding, concerned or excuse of the no doubt “probably” scheduling juror, insignificant because the was not invited to The record prosecutor participate. discussion, does not disclose the but there is no indication it purpose N., was material. Insofar as it concerned Tom it cannot have been relevant. cause, Though survived a defense challenge he was not among whose prospective jurors names were drawn to face peremptory challenges. course, Of he did not sit on the final jury. 3, 1993,

On there February was a bench conference court and among counsel during voir dire examination of Juror Donald C. At Prospective the record settlement counsel recalled that the proceeding, prospective juror homicide, said he would just always vote for death in a child and defense counsel approached bench to determine whether he could explore recollection, further. The record does not confirm counsel’s but it does precise not matter. The off-the-record discussion occurred examination of during Donald C. about a article who had allowed newspaper concerning judge child molesters to Donald C. said plea bargain. the article had him and upset When, court, showed the courts were too lenient. the trial open judge article, disclosed he was the described jurist in the Donald C. conceded he instructions, have might difficulty following the court’s and would prefer be excused. By he was. stipulation, 11, 1993,

On there February was a bench conference court and among counsel during voir dire of Juror David H. At the Prospective record settlement proceeding, indicated he defense coun- “believe[d]” sel wanted clarification whether he or the court should examine David H. in a “somewhat sensitive area.” The record tends confirm this recollection. discussion, After the bench which occurred at defense cocounsel Traback’s Traback request, examined David H. about affiliations family organizational that David H. had deemed on his Both “private” questionnaire. parties H., David and he sat on the final accepted Defendant did not exhaust his jury. Hence, the peremptory challenges. discussion cannot have affected the valid- of the ity judgment. 4, 1993,

On March Traback a bench conference at the conclusion requested of the voir dire examination of Juror Diane M. At the Prospective record settlement the indicated proceeding, this discussion concerned a prosecutor the following of the as indicated by immediately dismissal juror, stipulated the recollection. events on the record. The record confirms during Defendant cites the additional following unreported proceedings realistic were they trial. he fails to demonstrate Again, any possibility the material to the validity judgment. court and counsel met “to discuss peremptory

On March the indicated this At the record settlement prosecutor challenges.” proceeding, random- (i.e., the county’s concerned discussions about how the “big spin” into the box to face peremptory draw for calling qualified jurors procedure demur. The Lead defense trial counsel Rien did not would work. challenges) counsel, the recollection. Defense record does not contradict prosecutor’s discussion, no to the objection procedure who were posed present no to infer defendant to select a final There is basis actually jury. employed the failure to this was prejudiced by report proceeding. 15, 1993, had been selected March who morning, jurors,

On Monday sworn, until into court and excused week but not were called yet previous resolution, on the argument to allow following Wednesday, apparently Then, Wheeler/Batson motion. of defendant’s intervening Tuesday, just-filed of Monday, about how to use remainder course of discussions a chambers if “could have a moment.” After defense counsel asked they just counsel, court discussions resumed in open conference court and among was at the afternoon session. The noon recess about matters to be addressed indicated he At the settlement prosecutor then called. record proceeding, “believe[dj” scheduling. concerned only chambers conference unreported casts doubt on counsel Rien in the record agreed. Nothing Lead defense trial recollection. this mutual 22, 1993, crime of the Mishell assault March before a just videotape

On asked to defense counsel Traback scene was to be jury, played court and After an conference among the bench briefly. unreported approach counsel, settlement At the record proceeding, the tape played. concerned the off-the-record discussion indicated he “believe[d]” could see the Lead defense the courtroom so defendant tape. how to arrange mutual recollec- The record tends to confirm this trial counsel Rien agreed. conference, could indicated he of the bench tion. At the conclusion turned further. No basis as it was not long screen so see videotape was material to the judgment. to infer the conference appears 22, 1993, cross-examine Traback sought defense cocounsel On March about a police report Police Berkeley Department Muller Inspector about Confusion arose the Mishell assault case. Muller had prepared February both dated 1988. there were two separate reports, whether an off-the-record discussion a bench conference. After Traback requested the counsel, Muller continued. At the cross-examination of court and among the confer- the said record settlement proceeding, prosecutor “believe[d]” referring and counsel were all that the witness ence ensure sought simply The record trial counsel Rien did not object. to the same Lead defense report. the is no basis to believe recollection. There tends to confirm the prosecutor’s to the discussion was significant judgment. 29, 1993, on the stand. The

On March Detective Gustafson was prosecutor containing have identification two cassettes asked to marked for tape Luis This was done. Reyna. recorded statement to Gustafson given by police the bench. After an unreported Lead defense counsel Rien asked to approach counsel, Gustafson tapes discussion court and Detective among played recalled that the At the record settlement jury. proceeding, prosecutor or after concerned would be before discussion whether tapes played the record Gustafson’s Rien in authenticating testimony. agreed. Nothing undermines mutual recollection. this witness, 1, 1993, Stockle, testified he had

On Detective April prosecution truck of defendant’s several engine days inspected compartment pickup murder, after and had noticed unusual. When something prosecutor noticed, the bench. asked what Stockle Rien and asked to objected approach An followed. Back chambers discussion court counsel unreported among court, hose, Stockle testified he noticed that there was a new radiator open in the which was disconnected. He said he found the old radiator hose clamp that he found cut hose driver’s side fender area of the also compartment, Rien ends in the back of the truck. At the record settlement proceeding, recalled the conference concerned whether Stockle could opine chambers agreed had occurred in the engine prosecutor tampering compartment. There no this recollection. Stockle did not such an with give opinion. conference affected the validity judgment. indication unreported testified, all witnesses had On after April guilt phase prosecution evidence, the court various had been moved into exhibits prosecution Rien he had a motion to asked lead defense counsel Rien whether present. witness indicated he asked “in chambers” that prosecution had previously Mexico,” “the arrest in Celebration Oberman be cautioned not to mention Mexico, The court “the the name of this Court.” jailing responded at the adhered to” that admonition. As indicated “[s]he result, matter, of this and the record settlement subject proceeding, thus were on the record. chambers discussion placed 7, 1993, for the of Detective Muller’s testimony On at the conclusion April defense, The court called 10-minute Rien asked to the bench. approach recess, and court and counsel retired to chambers. When proceedings open resumed, court the next defense witness was called. At the record settlement indicated, discussion, with to the chambers proceeding, prosecutor respect is a matter.” Rien did not The record scheduling disagree. gives “[t]hat no reason to doubt the recollection. prosecutor’s 15, 1993,

On court and counsel met “to discuss April jury proposed instructions.” At the record settlement indicated he proceeding, believed the court had matter on the record at a later time. placed subject 19, 1993, For the most the record this recollection. On part, supports April the court stated that it had submitted to counsel the instructions it just and asked if counsel had proposed give any objections. Objections, followed, on the arguments, rulings instructions proposed including discussion of instructions the defense that the court did not proposed intend to There is no basis give. to infer the included unreported proceedings additional matters of to the significance judgment.

We thus conclude defendant has failed to demonstrate that the record is review. No basis for reversal of the inadequate appellate judgment shown.

DISPOSITION guilt are affirmed. penalty judgments J., J., J., J., Chin, Moreno, J., C. George, Werdegar, and Corrigan, concurred. and Dissenting.

KENNARD, J., Concurring guilt defend phase At trial, ant’s found him of the murder of capital jury guilty first Luis degree with a circumstance was killed Reyna, finding special Reyna prevent witness; him from as a also found him testifying jury guilty murders of Robert and Barbara Mishell. I with the attempted majority’s agree affirmance of these convictions. however,

I with the affirmance of defendant’s sentence disagree, majority’s view, of death rendered at the In the trial court erred in my penalty phase. defense counsel’s to ask if would refusing request prospective jurors they the death in a case invariably involving dismemberment impose when, the murder A second error occurred body. closing argument victim’s at the from the Bible as penalty phase, prosecutor quoted passages defendant, for the death These errors undermin- authority penalty. prejudiced in the trial. confidence fairness of of defendant’s ing penalty phase capital Therefore, I would reverse the of death. judgment

I include in the trial, the trial court defense counsel asked Before that the murder victim jurors a statement prospective questionnaire would affect their them how it asking dismembered and a been question concern that death Counsel expressed view of the penalty.” “philosophical for death a “to vote juror “might impel” fact of the victim’s dismemberment be that might pre- other circumstances” mitigating without regard any told defense counsel The court sented. The trial court denied request. issues, including “to into of the factual go it would “not counsel permit” court “The only to the dismemberment.” The explained: but not limit[ed] know in voir dire” are those that the will be facts of the case permitted clear that the court court’s thus made it ruling “in the information.” The trial about dismemberment add the juror any questions would not questionnaire during such and that it would not allow defense counsel pursue questions made no mention counsel’s voir dire of jurors voir dire. Defense prospective of dismemberment. to the circumstances

At the of witnesses testified guilt phase, parade found, recovered, medi- were Reyna’s body which murder victim Luis parts how, examined, while taking and identified. Morrison described Kelly cally 18, 1988, on he saw July walk in a wooded area of Contra Costa County Johnson Ricky human hand the trail. Contra Costa Sheriff’s along Deputy office, it it coroner’s where county recovered the hand and delivered to the Schultz, Police a reserve officer with the Wayne Berkeley was fingerprinted. on an early morning dead” while smelling “something Department, reported area two later days on brush-covered jog July Returning 1988. road, hours, Schultz on the below something slope during daylight spotted Johnson that it was a naked When body. Deputy binoculars saw through On July it was its head and both hands. missing recovered body, concluded that a Burke of the Police Berkeley Department Dennis Sergeant matched a latent thumbprint from the thumb on the severed left hand print eight Some recovered from documents found among Reyna’s possessions. later, 17, 1989, down a deer McDonald was hiking months on March James its lower lacking a human skull trail in the same area when he came upon skin, flesh, or hair. The skull bore no traces jaw. found, E. 27, 1988, Louis was forensic pathologist

On before skull July the recovered left hand. of the and of body conducted an Daugherty autopsy from the but Daugherty cut” body, The wrists and head had been “completely of the body. left hand to the left forearm able to match the recovered Office, Hermann, Coroner’s with the Alameda County Paul a pathologist the neck suggested the severed testified that markings portion a forensic Heglar, with a small saw. Rodger head had been removed who in examined anthropologist August 1988 of the murder portions vertebra, victim’s third testified that vertebra exhibited portions marks,” incision marks “consistent with saw and that similar markings on the left forearm. appeared

Defendant’s own at the testimony guilt substantiated the phase findings witnesses. He admitted to the area expert driving with dead Reyna’s body on the seat next to him and it to make dismembering identification more hatchet, difficult. After an unsuccessful with a he took a hacksaw attempt toolbox, wrists; from his and severed both of hands at the he then Reyna’s held head with left hand Reyna’s and used his hand to right saw off the head.

II “A criminal defendant is entitled ato trial who are by jurors and impartial Const., Amends.; Const., (U.S. I, unbiased. & 16.)” 6th 14th Cal. art. § 646, v. Roldan 360, (People (2005) 35 Cal.4th 689 110 P.3d Cal.Rptr.3d [27 289].) To assure that selection includes impartiality, jury questioning in a “Voir dire jurors called voir dire. prospective process a critical plays function in the criminal defendant that assuring his Sixth Amendment right an will be voir dire the trial honored. Without an impartial adequate judge’s to remove responsibility who will not be able prospective jurors to follow the impartially court’s instructions and evaluate the evidence cannot v. United States 182, be fulfilled.” (Rosales-Lopez (1981) 451 U.S. 188 [68 22, 1629].) L.Ed.2d 101 S.Ct.

“The due clause of the process Fourteenth Amendment requires in a sentencing jury case to be to the same extent capital at impartial required v. Blair 686, guilt phase.” (People (2005) 36 Cal.4th 741 Cal.Rptr.3d [31 485, case, 1145].) 115 P.3d In a who “would capital prospective juror vote either for or the death invariably against because of one or more penalty tried, circumstances to be likely in the case present being without regard circumstances,” strength aggravating is not mitigating impartial 988, and must be excused for cause. (People Kirkpatrick (1994) v. 7 Cal.4th 818, accord, 248]; 1005 People v. 874 P.2d Cal.Rptr.2d [30 Coffman 1, (2004) 710, Marlow 30]; 34 Cal.4th 46-47 96 P.3d Cal.Rptr.3d [17 703, v. Cash (2002) People 28 Cal.4th 719-720 50 P.3d Cal.Rptr.2d [122 Ervin 332]; (2000) 22 v. Cal.4th Cal.Rptr.2d [91 v. 506]; People Earp P.2d 15].)

P.2d To determine voir dire whether are during prospective jurors sense, in this “either is entitled to ask impartial party prospective jurors bias, that are to determine if those harbor questions specific enough jurors evidence, fact some or circumstance shown the trial that would cause by after them to determine directing not to follow an instruction them Cash, at supra, v. (People evidence.” mitigating considering aggravating 720-721.) pp.

Here, was “a general by the murder victim’s dismemberment emotional from to elicit a likely strong response fact or circumstance” Cash, trial, 721.) Before defense 28 Cal.4th at (People p. jurors. a statement trial court to include in the jury questionnaire counsel asked the had been dismembered and that the murder victim telling jurors prospective view of them how it would affect their “philosophical question asking have revealed whether death Voir dire at the outset of trial would penalty.” cause vote any juror invariably this fact or circumstance” would “general evidence considering mitigating presented for the death without penalty, defendant. was not body

The insists that the dismemberment of victim’s majority invariably a circumstance “that could cause a reasonable . . . to vote for juror ante, death, of the of the evidence.” regardless strength mitigating (Maj. opn., 1122.) I The fact of dismemberment be of may great p. disagree. to a there are significance juror. Undoubtedly, jurors prospective prospective who consider the of a deceased to be extremely integrity body person torts rife relatives history brought by with lawsuits important. (See, of the bodies of their loved ones. alleging mishandling e.g., Christensen v. Court Superior (1991) 54 Cal.3d 868 820 Cal.Rptr.2d [2 181]; Conroy Regents University v. (2007) P.2d 151 of of California v. 661]; Aguirre-Alvarez Regents 132 Cal.App.4th Cal.Rptr.3d [59 of 580]; University (1998) 67 1058 Cal.Rptr.2d Cal.App.4th [79 of California Saari v. 82]; Jongordon Corp. (1992) 5 797 Cal.App.4th [7 Cohen v. Groman Inc. (1964) Mortuary, Cal.App.2d Cal.Rptr. [41 Thus, 481].) to ask the trial court here erred in not defense counsel permitting whether the murder victim’s dismemberment would jurors prospective affect their views on the choice of penalty. Roldan, People v. on asserts supra, majority

Relying was within its discretion. Roldan is not on As the trial court’s ruling point. observed, Roldan it the defense in that case failed to what identify topics wanted in the trial court’s of prospective explored supplemental questioning (Id. Moreover, an 693.) during at the murder in that case occurred jurors. p. (id. the manner 664), armed at and neither the circumstances nor robbery p. other armed were different from those committed killing during markedly robberies. here, about the circum- disagreed

The majority noting parties that if the the dismemberment of reasons Reyna’s body, stances surrounding trial court had the defense to about the permitted question jurors prospective dismemberment, fact of “the could he should be strongly argue prosecutor react to all in more detail how permitted explore jurors might prospective issue,” evidence which “could have led to a anticipated lengthy examination of about details of the case.” prospective jurors specific (Maj. ante, 1123.) at Not at all. Defense counsel here opn., p. sought only attitudes toward the of dismemberment in There explore juror subject general. when, where, was no need to mention the factual details about and how this dismemberment occurred.

Because trial court refused defense counsel’s request question dismemberment, about their views on the record jurors does not prospective reveal whether individuals who wound on the in serving up case “held this view that the death should be disqualifying on a defendant who had dismembered imposed invariably automatically” Cash, v. body. (People supra, 723.) his victim’s 28 Cal.4th at Therefore the p. harmless, error cannot be discounted as death reversal judgment (Morgan v. Illinois 504 U.S. L.Ed.2d compelled. Cash, 2222]; 723.) S.Ct. p. In at the cited the Bible as closing argument penalty phase, prosecutor He told the “The commandment authorizing capital jury: punishment. put murderers to death is universal.” And he Genesis verse 6: quoted chapter man, shed, “[Wjhoever sheds the blood of man his blood be for shall did man.” image God make then summarized two he in that verse: is that concepts perceived capital punishment “[F]irst life, murderers is of human and second necessary preserve sanctity man’s obligation Thus, (Italics added.) it is to do it.” being argued, “[o]nly life,” the severest of can underscore the of and severity taking punishments lesser means that the of life is not that serious “any taking imposing penalty view, an offense.” In the the biblical text meant that prosecutor’s quoted life,” the life of a murderer the value of he “[preserving compromises point reiterated in two “He said was these other biblical who fatally passages: (Exodus 21:12), strikes a man shall be to death” shall not put “[y]ou die, to and he make for the soul of murderer who deserves shall reparations v. Samuels People (Numbers 35:31). (See be to death” 36 Cal.4th put 105, 96, 133, fn. 6 113 P.3d biblical Cal.Rptr.3d passages [30 1125] [same essence, the here to the cited in In argument].) argued penalty the Bible not authorized but them to return a only that phase jurors required sentence, A verdict defendant at the of death. lesser against penalty phase asserted, the of life. was to shirk their value human obligation cheapen

1203 demands authorizes or to the that the Bible A argument prosecutor’s “ may that ‘such argument murder creates the risk the death for penalty . . for its verdict and . imply the sense of responsibility “diminish jury’s cases, the law in another, be in capital displacing law should higher applied ’ ” 287, (2002) 27 Cal.4th 389 instructions.” v. (People Hughes the court’s 432]; (1993) 6 Cal.4th P.3d see also v. Wash People 39 Cal.Rptr.2d [116 Samuels, 1107]; v. People supra, 861 P.2d Cal.Rptr.2d [24 134; (2002) 27 Cal.4th Slaughter Cal.4th at v. People p. Kennard, J.).) (dis. of 47 P.3d opn. 262] argument, here did not to the object

Because defense counsel prosecutor’s to claim that the comments defendant has forfeited right prosecutor’s consti But counsel’s failure to violated defendant’s object were misconduct. counsel have may tutional to the effective assistance of counsel. Defense right decided not to because he intended to to prosecutor’s object reply however, own; that is not a with a biblical of his argument argument in a tactical to As I failing object. explained previous legitimate purpose one argument answer dissenting opinion: improper impermissible “[I]t on the law to the case with another not based the facts or applicable not based on the facts or the law argument impermissible applicable at case. A the death is no more religious argument against acceptable favor of a case than a penalty phase capital religious argument death ... It follows that defense counsel’s decision to to the respond penalty. religious religious authority prosecutor’s argument relying opposing failure cannot be considered a tactical choice that would excuse his legitimate v. to the object prosecutor’s impermissible religious argument.” (People Kennard, Wash, (conc. J.), citations 6 Cal.4th at & dis. p. opn omitted; (conc. & see also Slaughter, supra, p. Kennard, J.).) dis. opn.

Here, the to biblical invited the authority penalty phase prosecutor’s appeal weigh their follow the trial court’s instructions to disregard jurors duty death or evidence in whether mitigating aggravating deciding penalty, biblical argument life without Accordingly, improper parole. prosecutor’s evidence well have one or more to overlook defense may jurors permitted death without weighing to vote for mitigation, causing juror jurors aggravation. evidence evidence in mitigating against prosecution’s Thus, on biblical authority prejudiced reliance prosecutor’s improper defendant.

I would reverse the of death in of the two errors: light judgment prejudicial discussed, the one and the other to defense counsel’s just pertaining request about their attitudes toward dismemberment of question prospective jurors the murder victim’s body. written notes but had never included defendant had matter, in this time. Given the note’s there was no reason to do so subject case. freshly Defendant arrived at home about 1:00 Reyna’s p.m. January boots. Defendant volunteered that he had off groomed wearing dropped marina, his then to his boat at the and to the marina office. daughter, gone it odd that defendant wore boots on his boat. Defendant did Reyna thought Bowl, watch the stay to but left after about 20 minutes. Super On saw a article about the Mishell assault. February Reyna newspaper home, that defendant had worked on the Mishells’ contacted Realizing Reyna defendant and told him about the article. Defendant said did not want talk, but that his was solved. problem On defendant asked to come to his house. February Reyna Despite reservations, deck, went. Defendant took onto the Reyna Reyna saying search, been there to and he just did not want to inside. police speak Defendant told Reyna He had to Mishells’ home on following: gone 31 to them about January confront calls. harassing telephone They at his accusations and said he do it. He then laughed could about nothing and beat the Mishells over the head. He took the picked up something unidentified with him and discarded it where it would never be weapon found. him, When said that the Mishells could defendant re- Reyna identify never or knew attacked them. they saw who Defendant asked sponded tell the defendant had him at a.m. on Reyna falsely 9:00 police telephoned 31. That at a made January evening, meeting, again commission this believed the assaults had occurred request, explaining police before 11:30 a.m.

Notes

notes that several transcript Reyna also from preliminary hearing Cramer, that defendant often teased investigator defense including persons, for not believe defendant’s claim of responsibility him he did necessarily the assaults. substance of what defendant had told But never varied from Reyna Moreover, about what he him. his before uncertainty, going police, information, do and his effort to convince Cramer should with subsequent context, his out of actually had taken statement reports newspaper to the his despite deep reliability. Reyna spoke police the statement’s support defendant, his his friendship conflict about public responsibility, doubt, his concern for his the benefit of the defendant willingness give own evidence thus safety. the trial court’s Ample supports implicit finding the statement was made under circumstances indicating its trustworthiness. that, time Finally, at the disputes evidentiary ruling, Reyna’s statement was corroborated other evidence linking defendant to the Mishell assaults. But such corroboration was in the present preliminary Mishell, who, trial, hearing testimony Robert as at defendant as implicated his attacker. The trial court’s on this finding issue was not an abuse of its discretion.21 Defendant argues, that he suffered confusingly, insofar as the prejudice have may considered Reyna’s statement both for its truth in the Mishell murder case and as attempted evidence of defendant’s motive to kill Reyna. But having surmounted the hurdle of Evidence Code section truth, statement was admissible character, for its its despite hearsay evidence of defendant’s for the attacks on responsibility the Mishells. With- rule, out regard to the case, it was hearsay also admissible in the murder truth, for its but to demonstrate defendant’s motive to kill as a Reyna him. potential witness against

notes reporter’s court on December municipal proceeding were also lost. At record settlement could proceeding, counsel recall what occurred on that occasion. The docket pertinent entry

Case Details

Case Name: People v. Zambrano

Court Name: California Supreme Court

Date Published: Jul 30, 2007

Citation: 63 Cal. Rptr. 3d 297

Docket Number: S035368

Court Abbreviation: Cal.