## IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE

, Plaintiff and Respondent

,

v. BYRON WILSON

, Defendant and Appellant

.

S087533

Los Angeles County Superior Court

BA164899

April 12 , 202 1

Justice Cuéllar authored the opinion of the Court, in which
Chief Justice Cantil

- Sakauye and Justices Corrigan, Liu, Kruger, Groban, and Krause * concurred.

________________________

* Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.1 PEOPLE v. WILSON

S087533

Opinion of the Court by Cu é llar , J.

This automatic appeal follows from defendants Byron Wilson’s and Aswad Pops ’s 1 2000 convictions and death
sentences for the murders of four men during the robbery of a Compton car wash

. Wilson was f ound guilty of four counts of
murder in violation of Pen al Code 2 section 187, subdivision (a), four counts of second degree robbery in violation of section 211

, and second degree commercial burglary in violation of section 459. The jury found true that Wilson was armed with, and personally and intentionally discharged

, a firearm causing great bodily injury with regard to three of the murders in violation of
section s 12022, subdivision (a)(1) and 12022.53, subdivisions (b)

– (d ) . The jury also found true the robbery

- murder, burglar y

murder, and multiple

- murder special circumstance s in violation of section 190.2, subdivision s (a)(3) and (a)(17) . The jury found Wilson had suffered a prior serious or violent felony conviction

1 Aswad Pops was pronounced dead at San Quentin State Prison on August 29, 2019. (California Department of Corrections and Rehabilitation, News Releases

< https://www.cdcr.ca.gov/news/2019/08/30/condemned

- inmates

death

- investigated

- as

- a

- suicide

- 2/ > [ as of Ap r

. 9
, 202 1 ]. All Internet citations in this opinion will be archived by year, docket number

, and case name at <http://www.courts.ca.gov/
38324.htm >.) The appeal was permanently abated as to Pops on February 11, 2020.

2 All further unspecified statutor y references are to the Penal Code.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

2 under section 667, subdivisions (a)(1) and (b) through (i). After a penalty trial , the jury returned a verdict of death.

Wilson contend s that several errors occurred during the guilt and penalty phases of his trial. Because we see no merit to any of his claims, we affirm the judgment.

I. F ACTUAL B ACKGROUND
A. Guilt Phase

1. Prosecution Case

a. Wheels ’N Stuff

On January 25, 1998, Super Bowl Sunday, Byron Wilson and Aswad Pops parked outside of the Wheels ’N Stuff car wash on Sportsman Drive in Compton. Christop her Williams and Charles “Spanky” Hurd operated the car wash , which had been open for several months

. Williams, Hurd, and other employees dealt marijuana
from the car wash , a fact about which Wilson was aware

. Williams testified that he and his coworker s “tend[ed] to smoke a lot of weed,” and the car wash customers “would want us to sell [them] some of the weed we were smoking and from time to
time we would.” A soda vending machine was located inside the
car wash , and sometimes marijuana was stored inside of it. The patrons and workers of the car wash , by and larg e, knew one another. Williams saw both patrons and workers of the car wash with large amounts of cash in their pockets. Williams
testified that the car wash had no official employees , and Williams did not keep financial records. Williams explained
that anyone who washed cars did so on a volunteer basis , and Williams made no money from car washing as Wheels ’N Stuff did not charge for washes, although donations were permitted. The business sporadically paid its w orkers, but they generallyPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

3 earned money in tips. 3 The $1,500 rent for the Wheels ’N Stuff
location was paid from marijuana proceeds.

b. Williams

Williams arrived at the car wash th e morning of January 25, 1998, intending to invite his friends to his home for a Super Bowl party, and to obtain marijuana to smoke. When he got out
of his truck

, he noticed a car parked directly beside the car wash with two people sitting low in the car’s front seats. Williams
went i nto the car wash , where h e saw Michael Hoard working
behind the counter , from whom he obtained a small bag of marijuana. He also s aw two acquaintances

, Shawn Potter and E.T., arriving as he was leaving

. As Williams was leaving he noticed the two people , both
B lack men , were still sitting in a car

— “probably an eighty something Honda”

— parked beside the car wash

. Because he routinely sold marijuana from the car wash , he assumed the two men were interested in buying some and asked them what they
needed . The passenger

— who Williams later identified as Pops

— replied they were interested in “sounds ,” which the driver

— later identified as Wilson

— confirmed; Williams directed them to a nearby store that sold car stereos.

Williams then left the Wheels ’N Stuff parking lot . Later that day he received a call at his home from a friend who told him, “ [H] ey man, as soon as you left the people you talked to went straigh t in there and killed every body .” Williams returned
to the car wash , which had already been cordoned off with police

3 The Wheels ’N Stuff owners permitted workers to retain tips for car washes, but asked that tips for larger services be shared with them.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

4 tape. From there, he was taken to the Compton P olice
D epartment and interviewed. He described the men he had seen sitting in the Ho nda e arlier , explaining that the driver had a lighter complexion than the passenger, and appeared to be a little older

. He believed both men had short hair, although he
described the driver as having worn a cap

.

c. Bowie Randy Bowie , who washed cars at the Wheels ’ N Stuff from time to time, walked to work the day of the shooting, arriving just as Williams was leaving. Bowie stopped to use the payphone right outside of the car wash

, which was where he first
saw the car parked next to the car wash

. The driver was about
six feet from where Bowie stood. Bowie identified the driver at
trial as Wilson. While on the payphone, the passenger of the car

— who Bowie identified at trial as Pops

— raise d what Bowie
believed was a TEC

- 9 semiautomatic handgun, point ed it at
him

, and t old him not to warn anyone. Pops then got out of the car, grabbed Bowie’s collar, thrust the gun beneath Bowie’s arm,
and used him as a shield. The driver got out of the car w hile brandishing a gun , which Bowie believed was a nine

- millimeter
or Glock and held it to Bowie’s back . The two men then marched
Bowie into the car wash

. While Bowie was held at gunpoint by the payphone

, Hurd drove up to the car wash. At the same time

, Jessie Dunn arrived in his own car, a n El Camino with chrome IROC rims. The
custom 3

- bar chrome IROC rims originally belonged to Hurd, who had them specially retrofitted for his El Camino. Because the rims were manufactured for use with a Camaro, Hurd had
new holes drilled into them and added distinctive hardware. Dunn bough t the El Camino from Hurd. Following the sale,PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

5 Dunn’s girlfriend, Kimberly Thomas, noticed an oxidation spot on one of the rims, and Dunn planned to have the rim re

- dipped in chrome to fix the imperfection.

Hurd and Dunn both entered the car wash build ing after Pops and Wilson marched Bowie inside. Once in the building, Pops and Wilson ordered everyone to get on the ground and not

move. The men inside the building after Bowie and his
assailants entered included Hurd and Dunn (who had walked in
after B owie)

, Potter and E.T. (who entered as Williams was leaving) , and Hoard (who had been inside all along)

. Bowie was
afraid that if he alerted Hurd and Dunn to Pops and Wilson’s presence, he would be shot.
Pops and Wilson asked those inside the car wash where the money and “shit” were kept. They searched inside of the building, walking to the opposite side of the building away from where Bowie lay on the ground. Hurd was the only other person
Bowie could see. Bowie heard a com motion, after which a room divider slid between him and the area where Wilson and Pops were searching. Seizing the opportunity, Bowie got up and r a n from the building; as he ran, he heard a number of gunshots.
Bowie hid for some time not knowing whether he was being pursued, and ultimately ran into a storage facility where he asked an employee to call the police. He said his shop had been robbed and his friends may have been shot. Bowie, shake n by the events, asked an employee of the storage facility t o drive him to his brother’s house. The employee agreed, and as they
drove they passed the car wash , where Bowie saw police arriving.

While head ing toward his brother’s house, Bowie saw his brother’s car turn into a parking lot, and Bowie asked the driverPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

6 to go there instead. Bowie, shaking so badly he could hardly stand, got into his brother’s car

. Now a passenger in his brother’s car, Bowie again drove past the Wheels ’ N Stu ff where
he saw the car wash taped off and a large crowd gathered. Bowie

was still very frightened

, and he did not want to stop or speak
with police . H e did not report that he witnessed the crime until the next day

. Bowie was interviewed by D etective Cat Chavers of the Compton Police Department . He told Detective Chavers about
what he had witnessed and gave descriptions of the Honda’s driver and passenger. He described the passenger as darker skinned than the driver, with braided hair curled up at the ends

. He believed the passenger was between 25 and 30 years old and described him as wearing dark clothing and having a TEC

- 9 gun with a long clip. Bowie describ ed the driver as lighter skinned and smaller than the passenger . Bowie “guess[ed] ” the driver ’s

age to be between 25 and 30; in fact, Wilson was 2 0 years old at the time of the shooting. Bowie told Detective Chavers he thought Wilson had a uniquely shaped mouth, and was able to identify Wilson on February 23, 1998

, from a photographic lineup based on what he described to be “the smirky grin on his
face.” 4

d. Brown Anthony Brown’s testimony from the preliminary hearing was read to the jury as Brown was unavailable for trial. Anthony Brown was a Wheels ’ N Stuff employee since its

4 Bowie testified that he told Detective Chavers that Wilson had a “funny sha ped mouth,” but admitted on cross

- examination that he did not recall whether he described Wilson’s mouth when giving his first statement, or only later.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

7 opening in 1997. T he morning of January 25, 1998 , Brown
arrived at the car wash in the late morning. Brown planned to attend a Super Bowl ’98 party with his friends and coworkers that day and planned to sell T

- shirts and wash cars to make

mone y before going to the party. As he was arriving to the car
wash , Brown saw a man driving Jess i e Dunn’s El Camino abruptly out of the parking lot, moving forward and backward, skidding the tires, and ultimately knocking over a gate on his way off of the pr operty

. The El Camino sported IROC rims. Brown did not know the man driving the El Camino but testified
that Wilson resembled the driver

. Brown was ultimately unable to positively identify the driver of the El Camino as Wilson.

As he saw the El Camino driving out of the parking lot

, Brown was also grabbing the T

- shirts he ’d planned to sell from
his own car. When he did so, h e saw Pops walk out of the car wash office through the front doors . Brown gestured to Pops as if to remark upon the ab surdity of the driver who had just
knocked over the car wash gate. Pops walked to the Honda that had been parked by the payphone, got in, pointed a TEC

- 9 at Brown, and fumbled with the weapon like he was trying to clear a jam. Brown tried to evade the we apon pointed at him by
crawl ing through his own car and exiting from the passenger
door

. Pops then drove out of the Wheels ’ N Stuff parking lot in
the Honda, traveling in the same direction the El Camino had

gone.
Brown went toward the car wash office and yelled into the building but did not enter . A man wearing a yellow shirt , who Brown identified as E.T., got up and ran toward him. E.T. told Brown that the men “shot everybody

. ” The four remaining men in the car wash, all of whom had been sh ot and killed, includ ed Hoard, Hurd, Potter, and Dunn. From his vantage point at thePEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

8 door, Brown could see Hurd’s body on the floor, and E.T. told
Brown that Hurd had been shot

. E.T. went on, “I don’t know why they didn’t kill me.” E.T. look ed for his c ar keys inside the building, but was unable to find them and asked Brown for a ride because he did “not want to be around this kind [of] mess when the police c [a] me.”

While E.T. was inside the building searching for his keys

, Potter’s mother, Georgetta Hoard

, 5 along with a friend, stopped by the car wash

. Brown told Georgetta she should not go into the building , and that E.T. told him it was “a terrible sight”
inside

. Brown and E.T. then left in Brown’s car.

Brown called his brother from the car to tell him what had happened, and Brown’s brother advised Brown and E.T. to return to the car wash . They did, and both men spoke with the police already on the scene. Police officers then took Brown and
E.T. to the station to be interviewed , where Brown d escribed Pops’ s height, age, and hairstyle. Officers observed that m otor oil and dirt stains covered E.T.’s yellow shirt.

e. Investigation Compton police office r Bettye Jones was one of the first responder s to the Wheels ’ N Stuff scene, where she saw two women standing outside

— Georgetta and her friend

— and
observed that one was crying hysterical ly

. Jones looked through
the front doors into the car wash , and saw a body lying on the
floor. Unsure if suspects remained in the building, s he placed Georgetta and her companion in a patrol car and entered the car wash with Of

ficer Larry Urrutia

. Initially, Jones and Urrutia

5 Georgetta Hoard will be referred to by first name to avoid confusion with victim Michael Hoard.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

9 saw three men

— Hurd, Potter, and Hoard, lying in the building

, “obviously dead.” They inspected the buildi ng further and found
one additional victim

— Dunn

— behind a car near the back of the building. After the officers secured the building , p aramedics
came in

, checked the pulse of the men on the floor

, and
de termined that all of them were deceased.

Jones noted there were blood puddles and a bloody
foot print on the floor and was careful to ensure that officers and paramedics did not step in the blood. A shelf had fallen inside
the car wash , and the contents were strewn on the floor. Jones
also observed that

, in the car wash parking lot, broken headlight fragments were on the ground near the gate . T he gate appeared scratched and had paint transfer damage

, suggesting it had been hit by a car

. Deputy Jeff Wa lley, a ballistics expert, collected evidence
at the scene. He recovered nine

- millimeter and .40 caliber
b ullets, bullet fragments, casings , and one live round

. Specifically, he found n ine .40 caliber Smith and Wesson cartridge casings, along with 10 exp ended .40 caliber bullets or bullet fragments. Walley determined , based on unique gun barrel and firing pin manufacturing processes, that a Glock semiautomatic pistol fired the .40 caliber bullets found at the

scene

. Walley also recovered f ive nine

- millimeter ex pended casings and one live nine

- millimeter round

. He determined
the se rounds could have been fired from one of several weapons, but the only weapon with both a barrel extension and

appearance different than other types of pistols, including the Glock used to fire the .40 caliber bullets, was an Intratec TEC

-PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

10 9

. 6 A nine

- millimeter casing found at the scene was dented

, suggesting the weapon jammed

, a malfunction in which the
ammunition does not work as expected and no bullet is fired

. Intratec firearms are not known to be high quality weapons and

are known to jam on occasion

. No ballistics evidence other than
from a nine

- millimeter and .40 caliber was found at the scene; Walley concluded only two w eapons were used at the scene : a Glock that fired .40 caliber bullets , and likely an Intratec TEC

9 with a barrel extension that fired the nine

- millimeter bullets.

T he Of fice of the Medical Examiner performed a utopsies
on the four victims t wo day s after the shooting s

. Deputy medical
examiner Christopher Rogers testified that each of the four
victims were shot in the ir heads. Hurd suffered one fatal gunshot wound to the back of his head, fired from a distance of
at least two feet. Potter suffered three gunshot wounds to the
back of his hea d , all of which were fatal. Potter was shot from a
distance of at least two feet. Hoard suffered three gunshot wounds to the back of his head, all of which were fatal. These
wounds were inflicted from a distan ce of at least two feet. Hoard
also suffered two nonfatal wounds to his hands from bullet fragments

. Dunn was shot five times , twice in his head, once under his arm, once in his shoulder, and once to his forearm.
The shots he suffered to his head were both fatal

. The shot to the area beneath his arm was fatal, as the bullet traveled through a vein next to his heart. The shot he suffered to his
shoulder was likely fatal. The shot to his forearm was potentially fatal. T he shots to Dunn’s head wer e fired from a range of less than two feet. The shots to Dunn’s shoulder,

6 Bowie believed the weapon pointed at him was a TEC

- 9 with a long clip , and Brown saw a TEC

- 9 pointed at him

.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

11 forearm, and arm were each fired from a distance of at least two
feet.
f. After the shooting On the evening of the shooting o ne of Pops’s relatives hosted a barbeque. Larry Barnes

— a friend of Pops and Wilson

— attended the barbeque, along with Wilson. While there, Pops’s brother, Aziz Harris, asked Barnes for assistance burning a stolen car. Barnes, Harris, and Pops’s girlfriend d rove in a Honda to an alley where they burned Dunn ’s stolen El Camino.
A nine

- millimeter Lorcin pistol was in t he filter, in an area located beneath the car’s carburetor lid

. The tires were in poor
condition and the El Camino had no radio.
On February 12, 1998, Detective Richard Conant of the Long Beach Police Department stopped Pops, who was driving
a Camaro with chrome rims. Detective Conant conducted the stop because he believed the rims matched the description of
those stolen from a car owned by one of the victims of the car wash murders. Pops’s Camaro was painted a light color . Three weeks before the stop, Barnes had joined Pops, Wilson, and others at a local bowling alley, where Barnes noted that Pops’s
Camaro had been fitted w ith rims that matched the car’s light paint color. The Camaro had different rims at the time of the February 12 , 1998 stop.
Wilson, Harris, and Barnes were passengers in Pops ’s car when it was stopped

. Wilson became verbally combative with detectives during the stop, angry that officer s were conducting safety pat downs. Officers arrested Barnes based upon an outstanding warrant , but did not arrest Pops, Wilson

, or Harris
at th at time.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

12 On February 22, 1998 , Bowie saw Pops at a gas station in Long Beach. Pops was driving a Camaro with IROC rims , and
Bowie believed the rims were the same as those that had been on Dunn’s car. As Pops left the gas station, Bowie paged
Detective Reynolds , and when they spoke Bowie urgently and fearfully and described what he had seen.

i. T he lineup s On February 11, 1998, Detective Reynolds showed Williams a mug book consisting of 20 photographs spread across five pages, none of which depicted Pops or Wilson, and Williams was unable to identify anyone. Reynolds showed the same mug book to Brown , who was also unable to identify anyone. On February 12, Reynolds showed Williams a single sheet containing six images

— a “six

- pack ”

— with none of the images depict ing Pops or Wilson

. Williams was unable to identify

any one , but he noted that the individual depicted in the number one position “almost” looked like one of the men who participated in the shooting. Reynolds showed that same six

pack to Brown, who similarly noted that the person in the number one position looked closest to the driver.
Eight days later

, Bowie participated in a photo lineup

. Reynolds showed Bowie a mug book consisting of 20 photographs spread across five pages , as well as a single six

pack

, none of which depicted Pops or Wilson

. Bowie was unable to identify any of the individuals pictured as those involved with
the murders

. Reynolds next showed two photographs to Bowie, who, upon seeing them, became angry and began crying. Pointing to one of the photographs, which depicted Pops, Bowie said, “That’s the motherfucker right there .” Reynolds did not show any photographs of Wilson to Bowie during this lineup

.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

13 On February 23, 1998, Reynolds prepared a second six

pack , this time containing a photograph of Wilson. Bowie looked

at the images and identified the person in the number two position

— Wilson

— as the Honda’s driver

. Bowie stated, “I know for sure that’s him, I know the shape of his mouth .” That same day, Reynolds showed Williams two different six

- packs, one of which contained a photo of Pops and the other a photo of
Wilson

. Williams was unable to i dentify anyone.

On February 24 , Brown participated in a photo lineup

, viewing a six

- pack containing an image of Wilson

. Brown was unable to identify Wilson, although he told Detective Reynolds that the person in the number two position

— Wilson

— looked like he had the same complexion as the man he saw driving Dunn’s El Camino. Brown was also unable to identify Pops from
the six

- pack containing his photo, and although Br own indicated that the photo of Pops was similar in appearance to one of the
assailants

, he said that the man he saw had a darker complexion
than the in dividual depicted

. Several months later, o n June 9 , 1998
, a live lineup was conducted at the Los Angel es County Jail. Reynolds testified
that Bowie , Brown, and Williams attended t he witness lineup

, and that they did not communicate with one another during the

process

. All three witnesses identified Pops. Bowie and
Williams identified Wilson as the driver

. Brown could not positively identify Wilson although he believed Wilson was the

person closest in appearance to the man he saw driving Dunn’s
El Camino. Brown wrote on his identification card that he “only
viewed [the suspect] from behind and [got] a quick view of [ his ]
face but [Wilson] fits best . . . .”PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

14 ii. The searches and arrests On March 5, 1998

, Reynolds obtained warrants to search
and arrest Pops and Wilson

. Wilson was arrested in his home,
where he was fo und lying on his couch with a shotgun. Officers
carried out the search warrants simultaneously, and during
the ir search of Wilson’s home

— where they found and arrested
Harris 7

— they discovered a live round of nine

- millimeter ammunition, a man’s wallet, a loaded .12 g au ge shotgun , a three

- ring binder

, and a blue pad of paper

. Officers found t he bullet beneath a couch cushion in Wilson’s home

, where they also located Wilson’s wallet

. 8 The wallet held, among other contents, a business card from a gun

store , which listed prices for .26 and .30 caliber Glock firearms, but not a .40 caliber Glock, the type used in the Wheels ’ N Stuff shooting. Walley , the ballistics expert, identified the bullet as one ejected from the same nine

- millimeter weapon that was used in the shooting. He testified the bullet could have been dropped in the home before or after the shooting.

The binder found in Wilson’s home contained a single newspaper clipping about the car wash murders . Officers fou nd no other newspapers or clippings in Wilson’s home. The blue pad of paper found on Wilson’s table contained pages depicting
various drawings and a list of names. According to Barnes ’s testimony , one of the drawing s was of Pops’s car with the
addition of IROC rims

, and it was labeled “the Monster Beefy

. ”
The re was also a drawing of street signs labeled “55th” and

7 Warrants for Harris’s and Barnes’s arrests were issued at the same time as the warrants for Pops and Wilson.

8 The wallet was identified as Wilson’s because it contained a video rental card and calling card in Wilson’s name.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

15 “Lime,” which was an intersection near Pops’s and Wilson’s
home s . Another drawing was a caricature of Pops labeled wi th his moniker, “Nut

, ” and with the word “Loco.” Another drawing
showed a tattooed arm firing a semiautomatic weapon; the tattoo said “Y.M.O.,” which stands for “Young Mafia Organization,” a group to which Wilson, Pops, Harris, and Barnes belonged. Pops was tattooed on his left and right forearms with the letters, “Y.M.O.” The pad of paper also held

a page list ing the various monikers of the individuals who spent
time with Pops and Wilson. 9
During the search of Pops’s home

— where Pops was
arrested

— a Camaro fitted with IROC rims was seized and taken to a tow yard

. The IROC rims on the car were the same as those that had been fitted on Dunn’s El Camino. Anthony
Bo o chee, who originally fit the rims on the El Camino, testified
that the IROC rims had been modified to fit that car by drilling larger holes to accommodate the necessary screws and C ragar lug s

. Boochee testified that the rims had been modified a second
time to fit a smaller wheel, but still utilized the C ra gar lug s originally placed on Dunn’s El Camino. Kimberly Thomas, Dunn’s girlfriend, testified she recognized the rims as having originally been placed on Dunn’s El Camino because there was an oxidation spot she recognized on one of the m.

2. Defense Case an d Rebuttal Evidence Although Williams initially told the prosecution he was “positive” “from a glance” and had “no doubt” regarding his

9 Pops’s moniker was listed as “Nut.” Wilson’s moniker was listed as “Bird.” Harris’s moniker was listed as “Scrap.” Barnes’s moniker was listed as “Smerf,” which he had tattooed across his stomach.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

16 preliminary hearing identification of Pops and Wilson, he later
admitted he “really did not get a good look at” one of the men. Williams explained that he has “a habit of not staring at people I don’t know so, yeah, I looked over towards them and mind my own business, then I would maybe look again.”
Williams had a conversation with the driver of the vehicle, who he described as having a lighter complexion than the

passenger

. At one point, Williams conceded during questioning that he became “confused about who was in the p assenger seat and the driver’s seat. It’s the only thing

— a small thing to be confused about; otherwise, those are the two people in the car. [¶] Now, right now, they almost lo o k similar so for me to know which one was driving and which one was in the passenger seat is hard for me but I do know those are the two people in the car, yes.” Williams also acknowledged that he lied several times while giving testimony during the preliminary hearing

, although this dishonesty related to what he kn e w about the sale of marijuana from the car wash

. Selling marijuana from Wheels

’ N Stuff violated the terms of his probation

. 10
Bowie’s testimony suffered from credibility concerns.
Bowie had numerous prior felony convictions, including battery against the mother of his child, robbery

, and burglar y

. Bowie
denied on direct examination that he had suffered an armed robbery conviction, although he acknowledged on cross

examination that he suffered a robbery conviction as a juvenile
in which a firearm was involved

. Bowie maintained that Wheels

’ N Stuff was a legitimate car wash business of which he was an

10 Williams was on probation at the time of the shooting, having suffered felony convictions for possession of marijuana with intent to sell and possession of stolen property.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

17 employee, and he was paid up to $300 per week , “assuming that [he] made that much,” to wash cars. Williams denied paying
Bowie regularly for his work

, t estifying he sporadically paid Bowie in small amounts if he was asked, and Bowie paid no
income tax

. Bowie claimed never to have seen marijuana being
sold from the Wheels ’ N Stuff . H is claim was undermined by
Williams ’s testimony that the building’s rent was paid from marijuana sale proceeds , and by t h e crime scene photographs

, which show ed marijuana and related drug paraphernalia visible in open locations

. Bowie also claimed he had never testified at
a trial ; this statement was impeached by a minute order from his own trial showing he testified , but he maintained he had not
recalled doing so as his trial had occurred fifteen years prior to Wilson’s trial

. When Bowie identified Wilson, he told Chavers he recalled
what the driver looked like because of “th e smirky grin on his face.” P olice graphic artist John Shannon testified Bowie’s description of the driver was not sufficiently specific to permit
him to create a sketch . He testified that Bowie did not say anything about Wilson’s mout h shape or a smirk

, only describing that the driver had a receding hairline

, tight eyes , or “something like that

. ” Shannon explained that when a suspect possessed some unusual feature, witnesses were usually able to
describe that detail to him

. Williams and Brown believed the
driver wore a cap with writing on it, while Bowie described the driver’s hairline. Wilson argued he did not have a receding
hairline in 1998, nor did his eyes appear “tight

. ”

Brown had testified that he saw the El Camino and the Honda leaving Wheels ’ N Stuff the morning of the shooting

. He began his employment with the car wash weeks after his release from county jail, where he was incarcerated after sufferingPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

18 felony convictions for conspiracy and telephone fraud in 1993

. Brown was unable to identify Wilson as the driver during the February 24, 1998 photographic lineup , and Wilson argues h e erroneously identified another man as someone who resembl ed
the driver

. Wilson presented evidence that he was not involved with burning the El Camino

. Joseph Black, a defense expert employed by one of the manufacturers of IROC rims, testified
that the rims on Dunn’s El Camino appeared consistent with a 1984 rim style, and were not the same style as the rims sold with
the 1988 Camaro. He testified that he did not believe IROC rims required modification to be fit on an El Camino.
With regard to the bi nder found in Wilson’s home , no evidence suggested that Wilson made any of the drawings or that he composed the list of Y.M.O. members

. No drawings of Wilson appeared in the binder.

None of the f

ingerpri nts collected from the car wash could
be traced to Pops or Wilson

. D eputy Public Defender Jeanmarie Klingenbeck, a close friend of Deputy Public Defender Cheryl Jones (Pops’s attorney)
attended the live lineup in June 1998. She sat a few rows behind
the three witnesses

— Bowie, Williams, and B r own

— who each

sat about six feet away from one another in a row of school desks with empty desks between them. Klingenbeck noticed the
witnesses motioning toward each other, “like kids would do when they were copying off papers.” Klingenbeck took note s once she noticed what she perceived as “unusual activity,” but
she did not inform the officers at the lineup about her
observations. Klingenbeck told Jones, her friend and fellow public defender

, about what she saw, and she provided aPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

19 statement to Jones a few months before trial . Klingenbeck
testified at trial as to her observations.
Deputy Sheriff William Gilbert of the Los Angeles County Sheriff’s Department supervised the June 9, 1998 live lineup,
and he testified regarding the procedures and safeguards in place. Gilbert described how witnesses are generally seated at

a lineup , explaining that because there are seven seats in a row,
three witnesses would be seated with two chairs between each

person. Witnesses are reminded “ that there is no t alking, communicating or looking around in any way, shape or form, [and they are instructed] to look straight ahead .” Gilbert testified that he monitored the lineup from a window in front of the stage , where he could see the lineup participants and the
wi tnesses in the gallery . If any witness communication had been observed, the lineup would have been cancelled. T he witnesses are illuminated by the light behind a two

- way mirror,
and the area where witnesses are seated is too dim to read a

newspaper. Attorneys attending the lineup are seated between six and eight rows behind the witnesses , and they are required to identify themselves , and to state why they’re att ending the lineup, before it begins

. Klingenbeck intimated she was an attorney related to the case, and Gilbert testified that if she had
indicated that she was merely accompan ying attorney Jones she
would have been asked to wait outside. The paperwork G ilbert completed in conjunction with the lineup notes no objections or incidents related to improper witness communication

.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

20 B. Penalty Phase

1. Prosecution Case
Hurd’s sister, Charmain e Hurd, testified about the toll his death took on his family, including his five children.
Wilson’s prior robbery conviction was admitted via stipulation

. Wilson ple a d ed guilty to a robbery in which he drove the getaway car while his accomplice robbed a 53

- year

- old
woman of cash from her Aid to Families with Dependent Children (“ AFDC ”) check by threatening to kill her companion

. Wilson was 18 years old at the time of that offense and was ordered to serve 120 days in county jail.

2. Def ense Case Marcellette James, an old family friend , began writing to Wilson following his incarceration. As a child, James found Wilson to be happy, smart, and perceptive. She believed he was fairly well supported by his family , particularly his dad, duri ng the years of his childhood during which the two were acquainted . During the first year of Wilson’s incarceration, James sent him dozens of letters, cards, and Christian pamphlets. The two spoke frequently on the telephone. James
and Wilson fell in lo ve through their correspondence and continued writing letters even after Wilson’s telephone privileges were re voked. James testified that Wilson’s being charged with murdering four people did not change her feelings
for him. James and Wilson did not speak about the murders,
but James believed Wilson to be innocent and considered him a “very mature man.” James testified she “matured spiritually” because of her relationship with Wilson and were he to receive the death penalty “ it could be killing a part of” her

.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

21 Wilson also presented evidence of his childhood and upbringing. Byron Paul Wilson, Sr., Wilson’s father, testified the family lived in Long Beach when Wilson was born , and Byron worked in housekeeping at Fairview Stat e Hospital at that time

. Byron was educated at a local community college and trade college, after which he gained employment at Univox doing technical troubleshooting work from 1983

– 1987

. Byron used alcohol and cocaine during this period. Wilson’s mothe r, Tonya Wilson, worked as a secretary in a school district around
this time , from 1982

– 1990

. Byron testified that during the period he was employed by Univox, Tonya also casually drank alcohol and used drugs, mainly marijuana

. Byron and T o nya’s marriage was initially “okay,” despite periods of infidelity. They moved to Avenal for Byron’s work in
1987 , and to Novato in 1989 when he became employed by San Quentin State Prison. Their drug use consistently increased as the years passed. Following another move for Byron’s job when Wilson was about 11, he began so cializing with Byron’s and
T o nya ’s friends, all of whom used drugs together. T o nya described the i r family as dysfunctional. When T o nya was under the influence of drugs “she became a changed person,” sometimes physically attacking Wilson and Byron.

T o nya oversaw Wilson’s education and spoke with his teachers when necessary. She testified that in elementary
school Wilson was a “class clown,” and he was placed in special
education classes. Wilson kept to himself with friends and peers, and when he tried to have friends over to his home Wilson
would become so withdrawn T o nya asked the child’s parent to
come and retrieve their child.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

22 The family moved to Los Angeles

, and although Wilson preferred living in small towns he eventually adjusted and grew
to like it

. Byron’s drug abuse worsened, and he resigned from his job due to his drug use and a back injury. He and T o nya separated, and the two divorced in 1997. T o nya’s mother died in 1997, and following that loss and a drug relapse, she was arrested and convicted of a felony. Byron and T o nya both lost
contact with Wilson while they lived in Los Angeles

. T o nya testified about an incid ent in Wilson’s childhood
when h e called 911 after she collapsed due to an ectopic

pregnancy. Byron testified that Wilson

— then age d seven or eight

— helped care for his mother when she was ill with cancer
and when she was injured in a car accident after having taken
PCP.
Despite their lack of contact, Byron testified that he did not want Wilson to be executed because Wilson was his only
child. T o nya te stified that she loved Wilson and did not want
him to receive the death penalty.
Wilson’s elementary school special education teacher, Barry Carlson, testified that Wilson suffered from attention
deficit disorder as a child. Wilson was capable of learning well when given individual attention and appeared happy in grad e school

— particularly when his teacher worked with him. He was easily distracted when left alone, and more hyperactive
than other children with the same diagnosis

. Dr. Efrain Beliz

, a clinical psychologist providing expert testimony for Wilson

, opined that it was likely he suffered from attention deficit hyperactive disorder (ADHD) in elementary and high school. Over the course of two days, Dr. Beliz
interviewed Wilson for 13 hours. Dr. Beliz explained thatPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

23 ADHD sufferers are impulsive and disruptive , and that children with ADHD face an increased risk of developing substance abuse issues. Because those suffering from ADHD possess poor social skills, Dr. Beliz opined they are vulnerable to social manipulation and gang involvement.

II. G UILT P HASE
A. Id entification of Wilson Was Proper
Wilson argues the trial court erred by denying a motion to suppress Bowie’s and Brown’s identification s of him

. 11 He alleges the identification procedures were unduly suggestive and the resulting identifications unreliab le, rendering their admissions violative of his rights under the D ue P rocess C lause to the United States Constitution. For the reasons that follow,

we conclude his claim lacks merit.

1. Background

a. Bowie’s Identification
While Bowie was using the payphone outside the Wheels

’ N Stuff on January 25, 1998 , he saw two men parked outside
the car wash . The passenger, Pops, pointed a semiauto matic handgun at Bowie, then got out of the car and held the gun against Bowie’s body. Bowie also saw the driver, whom he later
identified as Wilson, get out of the car and h o ld a gun against
Bowie’s back . Pops and Wilson marched Bowie into the car wash

, and the events of the shooting transpired

.

11 Bowie’s and Brown’s identifications, made in 1998, predate the enactment of section 859.7, which now mandates that law enforcement agencies adopt regulations for the administration of identification processes.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

24 Bowie went to the police station the day after the shootings

, and although he was unable to describe his assailants clearly enough for a sketch artist to produce a composite drawing , he told Chavers that the dr iver had a “funny shaped
mouth

. ” Bowie also said that he would be able to identify his assailants if he saw them again. Bowie participated in a photo graphic lineup on February 19, 1998

— less than one month after the shooting

— but was shown no photos of Wilson and did not identify any of the photos he was shown as being of
Wilson. 12 On February 23, 1998, Bowie returned to the police
station to view a differ ent photo lineup that did include a photo
of Wilson and of five other men

. Bowie identified Wilson as the Honda’s driver , saying , “I know for sure that’s him, I know the shape of his mouth.”

At a subsequent live lineup on June 9, 1998 , and at the prelim inary hearing, Bowie had no difficulty identifying Wilson

, highlighting the distinctive shape of Wilson’s mouth. Bowie
testified at the preliminary hearing that he had described Wilson’s smirk to police officers when he first spoke with them the day after the shooting . L ater , he was unable to recall whether he had told Chavers that Wilson had a unique mouth shape when he first gave a statement to her or only sometime
later

.

12 Bowie was able to identify Pops. Although Bowie was shown several photo array s

— four pages with five images each, one six

- pack, and two individual photographs, in that order

— he did not recall the order in which officers showed the photos to him. The photo of Pops was shown to Bowie last; it was one of the two photographs shown. We need not decide whether this procedure was suggestive to address Wilson’s claim of error.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

25 b. Brown’s Identification

Brown arrived at the car wash right after the shooti ng as Wilson and Pops were fleeing the scene. He saw a person he
described as a light

- skinned Black man driving Dunn’s El Camino out of the parking lot. Pops g ot into his car to leave the

scene , fleeing when the gun he fired at Brown jammed.
Brown part icipated in a photo lineup on February 11,
1998 , but none of the photos he was shown depicted Wilson, and he was not able to identify anyone. The next day he was shown
a different six

- pack, which also did not contain an image of
Wilson , but he pointed to a picture

, noting the person looked
closest to the El Camino driver

. On February 24, 1998, he participated in a third photo lineup

— this time including a photo of Wilson

— and although he did not identify Wilson

, he
noted Wilson had the same c omplexion as the man he saw driving the El Camino. At the live lineup on June 9, 1998

, Brown was unable to identify Wilson with certainty, writing on his identification card that he “only viewed [the suspect] from behind and [got] a quick view of [ his ] fa ce but [Wilson] fits
best

. . . .” Brown did not positively identify Wilson at the preliminary hearing, but testified that “[t]he light complected

guy ”

— Wilson

— “would probably best fit the description but I only seen [sic] him from the rear view and gl anced at the front
view.”

Wilson sought to ex clude evidence of Bowie’s and Brown’s pretrial identifications of him under Evidence Code section 402, arguing the procedures used by the police were unduly suggestive and the identifications tainted

. The trial court heard
the motion to exclude on March 19, 1999; Bowie appeared at the hearing, but Brown did not

. T he trial court ruled the proceduresPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

26 emplo yed in connection with Bowie’s identification were not suggestive and it permitted the introduction of Bowie’s
identification

. The trial court deferred ruling on the suggestiveness of Brown’s identification pending his appearance at the Evidence Code sect ion 402 hearing

. Brown’s appearance was never secured, and he did not testify at trial; the trial court
instead declared him unavailable and counsel read his preliminary hearing testimony to the jury.

2. Discussion Wilson claims his right to due process w as violated by the introduction of Brown’s and Bowie’s identifications. A violation occurs “ ‘ only if the identification procedure is “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” ’ ” ( People v. Sanchez (2019) 7 Cal.5th 14, 35.) If we determine the procedure was suggestive, no due process violation arises if “ ‘ “ the identification itself was nevertheless reliable under the totality of the
circumstances. ” ’ ” ( People v. Clark (2016) 63 Cal.4th 522, 5 5 6 ( Clark ) , quoting People v. Kennedy (2005) 36 Cal.4th 595, 608 ( Kennedy ) .) In assessing the totality of the circumstances, we consider “ ‘ such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of
time between the offens e and the identification. ’ [Citations.]

‘ Against these factors is to be weighed the corrupting effect of the suggestive identification itself. ’ [Citation.]” ( Sanchez

, at pp.
35

– 36.)PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

27 A defendant’s claim that an identification procedure was unduly suggestive i s a “mixed question of law and fact

. ” ( Clark

, supra , 63 Cal.4th at p. 557; see also Kennedy

, supra , 36 Cal.4th at p. 609.) This standard of review applies because “the facts are established, the law is und isputed, and the issue ” we must
resolve “ is whether the law as applied to the established facts is violated.” ( Kennedy

, supra , at p. 608.) We review the so

- called “historical facts,” those factual determinations that underpinned the trial court’s conclus ion that the identification procedure was or was not suggestive, “ under a deferential
standard

. ” ( Clark

, supra , at p. 557.) This standard acknowledges that the trial court may have made “credibility determinations,” that “contribute[d] to deciding the facts of what had already happened, [but] were not dispositive of the inquiry because the trial court did not have a ‘first

- person vantage’ ” to whatever “ facts occurred outside of court.” ( Kennedy

, supra , at p. 609.)

What Wilson argues is that Bowie’s id entification of his photograph was unduly suggestive because the six

- pack array shown to Bowie made Wilson appear distinct from the other five
individuals depicted

. As a result, Wilson claims

, the lineup was suggestive because his image stood out to Bowie . In particular,
Wilson contends Bowie found the shape of his mouth remarkable, and he argues no other person had a similar mouth shape

. Wilson argues there should have been “fillers” in the photo array ; that is, he claims the array should have included photographs of other individuals who shared the characteristic mouth shape Bowie found unique. Because Bowie believed Wilson to be the only individual in the array with the uniquely shaped mouth, he argues, the procedure was impermissibly suggestive.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

28 Wilson did not object on this basis before the trial court

, but claims he has not forfeited the argument because he joined Pops’s motion to exclude and the motion “cited the correct objection

. ” 13 Even if the a rgument is not forfeited ( People v.

13 The forfeiture issue in this case is somewhat tangled. Wilson joined Pops’s motion for an Evidence Code section 402 hearing. In that motion, Pops argued tha t the way Bowie was shown his photograph was unduly suggestive because law enforcement officials presented several photographic arrays to Bowie, and then showed him just two pictures, one of which was of Pops. Wilson joined Pops’s motion, and the prosecut ion’s response to Pops’s motion included an argument about the propriety of Bowie’s photographic identification of Wilson. At the hearing, immediately before Wilson examined Bowie, the prosecution informed the court it assumed Wilson was joining Pops’s mo tion. The trial court agreed, noting that the prosecution argued Bowie’s identification of Wilson was proper in its opposition. Wilson then briefly questioned Bowie about that identification. Pops made further argument to the court to exclude Bowie’s id entification, and Wilson “submitted.” Wilson claims the issue is not forfeited because the “ ‘court understood the issue presented.’ ” ( People v. Clark (2011) 52 Cal.4th 856, 966.) In People v. Cunningham (2001) 25 Cal.4th 926, 989, we held a suggestiveness claim was forfeited because defendant failed to object, but the first time suggestiveness was raised was in connection with a motion for judgment of acquittal. In finding the suggestiveness claim forfe ited in Cunningham , we cited Evidence Code section 353, which permits a court’s reversal based on erroneously admitted evidence only if the defendant moved to exclude the evidence or objected to its admission, and the reviewing court found the evidence sho uld have been excluded on the grounds stated in the objection, or admission constituted a miscarriage of justice. The only ground for exclusion of Bowie’s identification raised in Pops’s motion was based on the suggestiveness of Bowie being shown two phot os, one of which depicted Pops, after he was shown several multiple

- photo arrays. Arguably, no motion toPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

29 Cunningham

, supra , 25 Cal.4th at p

. 989), we conclude it lacks
merit

. In evaluating the suggestiveness of a photo array, we consider “whether anything caused defendant to ‘ stand out ’ from the others in a way that would suggest the witness should select
him. ” ( P

eople v. Carpenter (1997) 15 Cal.4th 312, 367.) Standing out requires more than the defendant potentially being a different race than others pictured or having a photo backgro und slightly different than other images in the array. ( Clark

, supra , 63 Cal.4th at pp. 556

– 558.) We have noted that identifying “apparent racial or ethnic identity is something that is harder to quantify and agree on.” ( I d

. at p. 557. ) In Clark

, t he defendant was a light

- skinned B lack man with a distinctively large mustache, and the other images in the six

pack showed men of a similar complexion but a potentially different race, all with similar facial hair. ( Ibid .) We concluded
in that case that nothing in the identification procedure made the witness select the defendant’s photograph from among the others, even accounting for the background tone and the potentially distinct races of those pictured. ( Id. at p. 557.) We acknowledged law enforcem ent faced a challenge in finding images similar to the defendant’s and met it as best they could

. Like the six

- pack shown to the witness in Clark , the images shown to Bowie all depicted men with similar complexions

. ( Clark

, supra , 63 Cal.4th at p. 557. ) Wilson ’s

exclude Bowie’s identification based on the suggestiveness of Wilson’s mouth shape was made, although the issue was addressed at the Evidence Code sec tion 402 hearing. Whether Wilson forfeited this issue is a close question, but even if his suggestiveness claim is forfeited, nothing prohibits us from considering the merits of the issue, and we elect to do so here. (See ibid .; People v. Medina (1995) 1 1 Cal.4th 694, 753.)PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

30 concern is not primarily with the race of the men depicted , but
with their facial expression; Wilson claims he was the only person smirking, and Bowie testified he knew Wilson by his

s mirky grin. Our review of the images does not reveal an ything unique about the mouth shape i n Wilson’s photo , nor does the shape of his mouth appear distinctive compared to the other photographs. Even if it had

, the identification was not unduly suggestive because nothing made defendant “ ‘stand out’ ” from
the other men depicted. ( People v. Carpenter

, supra , 15 Cal.4th at p. 367.) As i n Carpenter

, Wilson “ was neither the oldest nor the youngest of the [six

- pack] participants, neither the tallest nor the shortest, neither the heaviest nor the lightest

. ” ( Ibid .)

All of the men in defendant’s six

- pack were distinct in some respect from one another, with varying hairstyles and clothing , and each of the image backgrounds was somewhat
different . But “nothing in the lineup suggested that the witness
shou ld select defendant .” ( Peo ple v. Gonzalez ( 2006) 38 Cal.4th 932, 943 .) In Gonzalez , the defendant claimed his identification from a photo array in which he was the only person with a

“ ‘ droopy ’ ” eye, and whose photo had a discolored background

, was improper. ( Ibid. ) Witnesses had not previously described
the defendant as having a distinctive eye, nor did we find anything particularly unique about the defendant’s eye in the image. ( Ibid .) We held the identification was not unduly suggestive. Likewise, here, a lthough Bowie testified he was able to recognize Wilson by his smirk, there was nothing unique
about Wilson’s mouth readily visible in the image. ( Ibid .) To the extent Wilson’s mouth shape was distinct from the other individuals depicted, we have acknowledged all humans appear
somewhat different fr o m one another. ( People v. Lucas (2014)
60 Cal.4th 153, 237 ; see also People v. Carpenter

, supra , 15PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

31 Cal.4th at p. 367 [“Because human beings do not look exactly alike, differences are inevitable” ] .) B ecause nothing made
Wilson ’s im age stand out

, we conclude the identification was not impermissibly suggestive . ( Gonzalez , at p. 943; Carpenter , at p.
367 .)
Wilson also argues Brown’s identification w as unreliable

. To evaluate this argument , “we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances.” ( People v. Cunningham

, supra , 25 Cal.4th a t p. 989.) Because
we did not find the identification procedure unduly suggestive

, we turn next to whether the identification itself was reliable under a totality of the circumstances. We conclude that it was.
Brown did not positively identify Wilson during the photo lineup that contained his image , but said the image of Wilson most closely res embled the skin tone of the man who drove away in Dunn’s El Camino. Brown acknowledge d at that time he did not get a good look at the driver

. Brown had selected an image at a prior photo lineup, but the person selected was not Wilson. Following his tepid identification of a person who resembled the driver, Wilson

, in a photographic lineup, Brown briefly saw Wilson and Pops when he appeared for a continuance hearing in May. A month later , Brown participated in a live lineup . He did not positive ly identify Wilson, but indicated he most closely resembled the person Brown saw driving the El Camino, acknowledging he did not get a good look at the d river and saw
him from the back

. At the preliminary hearing, Brown again
noted that

— of the two defendants

— Wilson most closely resembled the El Camino driver, although he was unable to view that person from the front.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

32 Wilson argues that Brown’s photo i dentification was
unreliable because , after failing to select an image of Wilson during two photo lineups, his participation in a subsequent photo lineup implied to Brown that he failed to identify the proper suspect initially. W e have previously conclude d a witness viewing multiple photo lineups and making an identification each time was not the product of unduly suggestive procedure and conclude that is true here . (See, e.g., People v. Johnson (1992) 3 Cal.4th 1183, 1213

– 1218.) Brown
viewed several photographic lineups , did not positively identify Wilson in any of them

— although he twice noted images resembled the person he saw , one of which depicted Wilson

— and was given no indication that he failed select the correct image

. We conclude t he procedure used in the photographic lineup was not unduly suggestive and unnecessary.

Wilson also contends that the passage of time between the crime and his participation in the live lineup rendered it
unreliable. The Attorney General assumes for the sake of argument, as do we, that Brown’s brief sighting of Wilson at the continuance hearing rendered the subsequent live lineup

“ suggestive to some degree .” Even where an identification procedure is suggestive, we will find no due process violation if
it was reliable under a totality of the circumstances , as Brown’s
hesitant identification of Wilson was. ( Clark

, supra , 63 Cal.4th at p. 556.) Th e circumstances we evaluate include how well and attentively the witness viewed the suspect , the accuracy of a ny prior description, how much time passed between the offense and identification, and the witness’s degree of certainty

— all weighed against the “corrupting effect” of the identification

. ( People v. Sanchez

, supra , 7 Cal.5th at p. 36.)PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

33 Wi lson argues that the passage of several months between the crime and the live lineup rendered the identification
unreliable. Brown’s identifications at the live lineup and preliminary hearing were uncertain; in both instances he indicated that, of the ch oices available, Wilson most closely
resembled the man he saw because his complexion was closest

. Brown acknowledged he was unable to carefully observe the El Camino’s driver , and he provided no contemporaneous description of that person. Brown’s failure to definitively identify Wilson at the live lineup , even after seeing Wilson in person and in a photograph, indicates the procedure was not unduly suggestive. The reliability of Brown’s identification was

not undermined

. (See People v. Alexander (2010) 49 Cal.4th 873,
902 [witness’s failure to make in

- court identification of the defendant suggests that showing the witness photographs of the defendant the night before trial was not unduly suggestive ] .)
The passage of time between crime and identification, like the other circumstances, must be weighed against the damaging nature of the identification. ( Clark

, supra , 63 Cal.4th at p. 556; People v. Sanchez

, supra , 7 Cal.5th at pp. 35

– 36.) Here, the “corrupting effect” of the identificati on was minimal. ( Sanchez

, at p. 36.) Identifying Wilson a s the driver was not reliant on Brown’s testimony . His identifications were consistently
uncertain . If useful to any degree they bolstered the more definitive identifications provided by Bowi e, a nd of Williams

— who also positively identified Wilson as the driver during the live lineup

. Moreover, Brown’s identifications

— at the live lineup months after the crime, but also at the photographic lineup just weeks after it

— were consistently uncerta in and equivocal. Considering the totality of circumstances, wePEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

34 conclude Brown’s uncertain identification was reliable, and no violation of Wilson’s right to due process occurred

. B. Wilson’s Confrontation Right Was Not Violated by the Trial Court’s Admission of Brown’s Testimony Wilson argues his Sixth Amendment confrontation right was violated by the admission of Brown’s preliminary hearing testimony

. Wilson acknowledges he was ab le to cross

- examine
Brown ’s testimonial statements at the preliminary hearing

, but

argues Brown was not “ unavailable ” to testify at his trial as that term was understood by the f ramers of the federal Constitution

. Wilson further argues admission of Brown’s preliminary hearing testimony constituted error because the prosecution failed to exercise diligence in attempting to secure his testimony
at trial

. We conclude that Brown was “unavailable

, ” the prosecution exercised diligence in attempting to sec ure his testimony, and introduction of Brown’s preliminary hearing testimony did not violate Wilson’s confrontation right

.

1. Background Brown was initially a cooperative witness . He returned to the scene of the shooting

, spoke with police on several occasi ons , and participated in a live lineup

. He was subpoenaed to, and did, testify at the preliminary hearing on June 24, 1998. Nearly a year later, in March 1999, the prosecution alerted the court to a potential problem with securing Brown’s testimony at tr ial.
Brown had received a phone call from Tracy Batts, a man incarcerated on charges unrelated to this case

, who warned
Brown against testifying at trial

. T he prosecution subsequently learned that Batts orchestrated a witness killing in his own

case. The prosecution understood Brown took the threat seriously . Brown told prosecutors he would testify if he wasPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

35 “dragged into court

, ” but the prosecution believed it would be

a ble to secure his testimony with sufficient time to work with
him

. The prosecution requested that Brown attend a hearing in
March 1999 but did not believe his attendance could be secured so quickly. That proved prescient, and despite the prosecution’s
eff orts to secure his appearance, Brown did not attend the hearing. T he prosecution then subpoenaed Brown to appear for a hearing in May 1999

. Brown signed the subpoena but did not

appear , although he indicated he would meet with Detective
Frederick Reynolds

— a law enforcement contact with whom he had been in touch throughout the investigation

— shortly
thereafter. Brown did not attend that meeting.
Trial began on May 26, 1999, and on June 7, 199 9
, the prosecution sought

— and the court ordered

— a body
attachment for Brown with bail set at $50,000

. The prosecution noted that if it could not secure Brown’s presence at trial it would seek to introduce his preliminary hearing testimony. The

prosec ution made efforts

— detailed below

— to secure Brown’s testimony , and although Brown agreed to come to court he again failed to appear.
On June 17, 1999, the court held a hearing to address whether the prosecution had exercised due diligence in seeking Brown’s appearance at trial . Detective Reynolds testified about his efforts to secure Brown’s testimony, which included serving Brown with a subpoena at his workplace, Melvin Hoard’s autobody shop

, on May 20, 1999 . Detective Reynolds returned

to Melvin’s autobody shop the next day, and Brow n was not there. Melvin did not know where he was. Over the next few weeks, Detective Reynolds attempted to contact Brown at hisPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

36 last known address multiple times . He also s ought to contact
Brown at the home of his ex

- girlfriend, Nicole Washington

. Detective Reynolds spoke with Washington in June 1999, and
she claimed Brown had not been to her home for months, that
Brown would not tell Washington his address , noting he was

a fraid to appear in court.
During this period of time, Brown and Detective Reynolds spoke frequently by telephone, and despite Brown making plans

to meet Detective Reynolds on several occasions, he consistently failed to keep their appointments. Detective Reynolds searched
for arrest records for Brown and confirmed he had not been
arrested

. Neither Detective Reynolds nor the prosecution team checked local hospital records, voter registration

, or the post
office

. While Detective Reynolds investigated Brown’s last
known address

, employer , and frequent hangouts

, he and the prosecution team did not try to find Brown via public assistance

rosters

. Defense counsel urged the tri al court to conclude the prosecution had not exercised due diligence in seeking Brown’s appearance at trial. The trial court ruled otherwise, concluding
that Brown made “active efforts to avoid” Detective Reynolds

. The court ruled that h ad the prosecution team been able to make
contact with Brown on or after May 20, 1999 , efforts to secure a
bond or to arrest Brown would have occurred at that time. The trial court declared Brown unavailable and permitted his preliminary hearing testimony to be read to the jury.
Brown was not the only reluctant witness in this case. The prosecution believed that Barnes, a juvenile probationer, would be hesitant to testify and sought a bond to secure his appearance, arguing to the court it was likely Barnes w ouldPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

37 make himself scarce during the pendency of the trial. The court ordered the bond, Barnes failed to post it, and he was remanded to custody. Barnes did not testify at the preliminary hearing. The prosecution also sought to secure the appearance of a third reluctant witness who was subpoenaed and failed to appear at the preliminary hearing. As with Brown, the prosecution engaged in a multitude of efforts to secure the witness’s appearance, speaking to the witness’s family, associates, and generally s aturating the area over a “considerable” period of time. The prosecutor ultimately released the witness without bond, having decided not to use the witness’s testimony at trial.

2. Discussion

The C onfrontation C lauses of the state and federal Constitutions guarantee defendant s the right to confront the witnesses against them. (U.S. Const., 6th Amend.; Cal. Const., art. 1, § 15.) “ The right of confrontation ‘ seeks “ to ensure that
the defendant is able to conduct a ‘ personal examination and

cross

- examination of the witness

. ’ ” ’ ” ( People v. Herrera (2010) 49 Cal.4th 613, 620

– 621.) Via the confrontation right, a defendant is able to compel prosecution witnesses to a ppear before the jury so their credibility may be assessed. ( Id

. at p.
621

. )
Although the constitutional right of confrontation is important, it is not absolute. ( People v. Herrera
, supra , 49 Cal.4th at p. 621 .) If a witness is unavailable but had pre viously testified against the defendant and was subject to cross

examination at that time, that prior testimony may be admitted. ( Ibid ., citing Barber v. Page (1968) 390 U.S. 719, 722 ; People v.
Cromer (2001) 24 Cal.4th 889, 897.) Evidence Code section 1291 codifies this exception to the C onfrontation C lauses, stating,PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

38 “Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶]

. . . [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross

examine the declarant with an interest and motive similar to that which he has at the hearing.” (Evid. Code , § 1291, subds. (a), (a)(2).) We have held th is exception permit s an unavailable witness’s preliminary hearing testimony to be admitted at trial. ( Herrera, supra , at p. 621 ; People v. Seijas (2005) 36 Cal.4th 291, 303.)

Wilson argues the trial court erred by admitting Brown’s preliminary hearing testimony because he was not unavailable to testify at trial as that term was understood when the federal Confrontation Clause was drafted, and even under a modern interpretation of unavailabil ity the prosecution did not exercis e diligence in attempting to secure Brown’s presence at trial

. Wilson argues that b ecause Brown was not “dead, in extremis, [] detained by the defendant,” or outside the trial court’s jurisdiction, Brown’s preliminary he aring testimony should not
have been introduced. Wilson urges us to adopt the originalist interpretation of “unavailability” because the high court’s
decision in Crawford v. Washington (2004) 541 U.S. 36 , 68 ( Crawford ) commands conformity with the common law at the time of this nation’s founding

. In Crawford , the court underscored that “reliability of
evidence” is a goal embodied in the Confrontation Clause

. ( Crawford

, supra , 541 U.S. at p. 61.) One way reliability is
tested is “ in the crucible of cross

- examination. ” ( Ibid .) In acknowledging that “[r]eliability is an amorphous, if not entirely subjective, concept” ( i d . at p. 63) , t he court held that “[w] herePEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

39 testimonial evidence is at issue”

— as it is here

— “the Sixth
Amendment demands what the common law required: unavailability and a prior opportunity for cross

- examination” ( i d. at p. 68)

. Crawford did not define unavailability, but in a

pre

- Crawford decision, the court explained the “basic litmus of Sixth Amendment unavailability” a s follows: “ ‘[A] witness is not “unavailable” for purposes of the . . . exception to the confrontation requirement unless the prosecutorial authorities
have made a good

- faith effort to obtain his presence at trial.’ ” ( Ohio v. Roberts (1980) 448 U.S. 56, 74.) 14 Cali fornia law is in
accord. Evidence Code section 240 includes in its definition of

u navailability a witness who is “[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.” (Evid. Code, § 240, subd. (a)(5).)
We recently explained that prior testimony of an unavailable witness may be admitted if, at that prior hearing, “the defendant had the opportunity to cross

- examine the
witness

. . . . ” ( People v. Sánchez (2016) 63 Cal.4th 411, 440 ( Sánchez ).) The prosecution must demonstrate that “ the witness is unavailable and, additionally, that it made a ‘ good

faith effort ’ [citation] or, equivalently, exercised reasonable or
due di ligence to obtain the witness ’s presence at trial. ” ( Ibid .)

14 This aspect of the analysis in Ohio v. Roberts survive d Crawford

. (See, e.g., People v. Herrera

, supra , 49 Cal.4th at p. 622 [ implicitly acknowledging, in a post

- Crawford decision , that although Ohio v. Roberts was disapproved on other grounds by Crawford

, its analysis concerning “[t]he ultimate question [of] whether [a] witness is unavailable despite good

- faith efforts undertaken prior to trial to locate and present that witness” remain ed viable] .)PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

40 While d ue diligence lacks a precise definition, we have explained
that it “ ‘ “ connotes persevering application, untiring efforts in good earnest, [and] efforts of a substantial character. ” ’ ” ( Ibid .)
We eva luate whether the prosecution timely searched for the unavailable witness, whether the prosecution “competently explored” leads on the witness’s location, and the overall import of the unavailable witness’s testimony

. ( Ibid .) We review de

novo the trial court’s unavailability determination

, although we defer to the trial court’s determination of historical facts supported by substantial evidence. ( Ibid .)
Wilson argues the trial cour t erred by finding Brown
unavailable because the prosecution did not exercise good faith

or reasonable diligence in attempting to secure his trial testimony. We’re not persuaded

. The prosecution initially had no reason to suspect Brown wou ld be a reluctant or unavailable
witness

— he willingly participated in identification and preliminary hearing proceedings in June 1998. It was n ot until March 1999 that the prosecution understood Brown was apprehensive , and not until May 1999 that serious concerns began to arise about his participation in proceedings. On May 20, 1999, Brown was subpoenaed to appear at trial, but failed to do so. Detective Reynolds tried to contact Brown at Melvin Hoard’s body shop, where Brown worked, but fa iled in his efforts. Brown and Detective Reynolds spoke several times by telephone in May and June 1999 , and although Brown promised he would meet with Detective Reynolds t hose meetings did not

occur. During these calls, Brown consistently refused to rev eal
his address or permanent phone number. Detective Reynolds
visited Brown’s last known address three times , but a neighbor told Detective Reynolds that Brown had not been seen there for
about two months , and Brown’s ex

- girlfriend confirmed he hadPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

41 moved away to an unknown location after the shootings due to fear of testifying

. Brown’s ex

- girlfriend had received collect calls
from people looking for Brown.
Detective Reynolds visited Melvin Hoard’s shop a few
more times in June 1999

— once after Brown told him the two
could meet there

— but Brown was never there. Detective Reynolds visited another location where Brown was said to frequent, but he did not see Brown there. In mid

- June 1999,
after Brown failed to make it to a scheduled meeti ng with Detective Reynolds at the police station, Detective Reynolds confirmed Brown was not in custody. The se many efforts undertaken by Detective Reynolds on behalf of the prosecution are the very definition of “ ‘ “persevering application, untiring
eff orts in good earnest, [and] efforts of a substantial
character.” ’ ” ( S á nchez

, supra , 63 Cal.4th at p. 440.)
Wilson contends the prosecution could, and should, have
done more to find Brown , and suggests several avenues of inquiry about his whereabouts t hat were not pursued

. He argues, for example, that the prosecution could have che cked
with Brown’s relatives

, assign ed multiple investigators to the task of locating Brown, or sought records from the Department
of Motor Vehicles. Notwithstanding these possibilities , t he prosecution can be said to have “competently explored”
numerous leads , in a manner consistent with its responsibility
under the Confrontation Clause . ( S á nchez

, supra , 63 Cal.4th a t p. 440.) Wilson argues that the prosecution should have done more to secure Brown’s testimony

. He cites the prosecution’s
efforts in People v. Bunyard (2009) 45 Cal.4th 836 ( Bunyard ) as an example of what should have been done here, including : repeatedly seeking the witness out at his last known address, asking for information on his whereabouts from acquaintancesPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

42 and relatives, and returning to locations the witness was known
to fre quent. ( Id

. at p. 855. ) We held those efforts demonstrated diligence, and conclude here that the prosecution engaged in equivalently diligent efforts . ( Ibid .)
What the prosecution did here contrasts with cases where
courts have found deficiencies

— ca ses where review did not
reveal “adequate diligence, [and where] the efforts of the prosecutor or defense counsel have been perfunctory or obviously negligent. ” ( Bunyard

, supra , 45 Cal.4th at p. 855 .) In contrast, “diligence has been found when the prosecution’s efforts are timely, reasonably extensive and carried out over a reasonable period.” ( Id. at p. 856.) Detective Reynolds ’s efforts to secure Brown’s testimony once it became clear he would no longer cooperate spanned a month and included pur suit of multiple avenues of inquiry. T he efforts were far from perfunctory or negligent. Simply because Wilson suggests Detective Reynolds could have taken different steps does not
mean those he did take lacked diligence.

Wilson correctly notes we consi der the i mport of Brown’s testimony in evaluating the reasonableness of the prosecution’s
efforts. ( S á nchez

, supra , 63 Cal.4th at p. 440 .) While Brown’s testimony was helpful to the prosecution’s case , it was not
critical. Brown witnessed his coworker Dunn’s El Camino being hastily driven out of the Wheels ’ N Stuff parking lot the morning of the shooting, but he was not able to positively identify Wilson
as the driver of that car. Brown noted that Wilson looked like
the driver but acknowl edge d his uncertainty

. In contrast, B owie unequivocally identified Wilson as one of the two assailants.
Wilson argues we must also consider the fact that this is a capital case in our evaluation of the prosecution’s diligence. WePEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

43 have not previously he ld the nature of the charged offense is a factor in assessing diligence, but nevertheless conclude the prosecution’s efforts to secure Brown’s testimony were diligent despite the nature of the charged offenses. (See Cook v. McCune (10th Cir. 2003) 323 F.3 d 825, 835 [“[T]he more serious the crime for which the defendant is being tried, the greater the effort the government should put forth to produce the witness at trial ” ]; McCandless v. Vaughn (10th Cir. 1999) 172 F.3d 255, 266 [same].)
Federal authority a lso suggests that “a good measure of
reasonableness is to require the State to make the same sort of
effort to locate and secure the witness for trial that it would have made if it did not have the prior testimony available.” ( Cook v.
McCune

, supra , 323 F.3d at p. 836 .) In McCandless v. Vaughn

, supra , 172 F.3d at p age 269 , the court conclud ed a Confrontation
Clause violation arose when unduly minimal efforts were used to secure the presence of a witness at trial who had provided prior testimony whe n compared against what efforts would have
been undertaken to secure attendance by a witness who had not

. Here, the efforts to secure Brown’s testimony are not directly

compar able to the efforts undertaken with the two other
reluctant witnesses

. But they were sufficient

. The prosecution believed Barnes would be reluctant at the outset of proceedings and promptly sought a bond; Barnes was placed in custody after failing to post the bond, and he did not testify at the preliminary hearing. A third witness failed to appear at the preliminary hearing after being s ubpoenaed

, and t he prosecution visited the area where the witness was known to spend time, talking to the witness’s friends and family members on multiple occasions

. Ultimately

, the prosecution elected to proceed without that witness’s testimony. Compared against this third witness, t hePEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

44 prosecution expended greater efforts to locate Brown

— talking to friends and family, visiting his last known addresses and workplace on multiple occ asions, and searching arrest records

— and Brown had provided prior testimony. It is harder to compare the prosecution’s efforts to secure Brown’s testimony

a gainst the effort undertaken with Barnes, because the latter

was reluctant from the outset and a bond was immediately
issued

. This difference reflects Brown’s initial willingness to work with the prosecution, not that he provided prior testimony. In any event, we conclude the prosecution was reasonably diligent in its efforts to secure Brown’s testi mony.
C. Second Degree Murder Instructional Error Allegation

Wilson contends the trial court erred by failing to instruct the jury, sua sponte, on the lesser included offense of unpremeditated second degree murder. Because there was insufficient evidence to support that instruction, we conclude no
error occurred.

1. Background On the morning of the shooting , Wilson and Pops waited
in a car outside Wheels ’ N Stuff. Williams approached the car
and asked them wh at they needed. They told Williams they were looking for some “sounds,” but after being told they should go look elsewhere they remained in the car for some time. Bowie
arrive d at the car wash , and as he stopped to talk on a payphone before going inside Wilson and Pops forced him into the car wash at gunpoint , and ordered everyone inside to lay on the ground.
Wilson was heard asking for money and “shit

, ” presumably meaning drugs, and both he and Pops rummaged through the
car wash before shooting and killing four of the men inside.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

45 Wilson fled the scene in Dunn’s El Camino and Pops left in the
Honda in which the two men had arrived. When police arrived
at the car wash they found the victims’ pockets had been searched, and saw tha t empty boxes were scattered across the floor. Williams testified that from the pictures taken at the scene, there appeared to be far less marijuana in the shop following the shooting than there had been that morning.
The information charged Wilson wit h four counts of murder “with malice aforethought” in violation of section 187, subdivision (a). He was also charged with , and the jury found
true, multiple

- murder, burglary

- murder, and robbery

- murder special circumstances. Despite the charging language, the prosecutor only pursued a felony

- murder theory at trial, and the jury was only instructed on that theory.

2. Discussion

Wilson claims the trial court erred by failing to instruct the jury on nonpremeditated second degree murder. We review
such claims of error de novo. ( People v. Souza (2012) 54 Cal.4th 90, 113; People v. Licas (2007) 41 Cal.4th 362, 366.) “ ‘ “ ‘[I]t is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law
rel evant to the issues raised by the evidence.’ [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [c itation], but not when there is no evidence that the offense was less than that charged. [Citations.]” ’ ” ( People v. Valdez (2004) 32 Cal.4th 73, 115.)
To determine if a lesser offense is included in a greater offense, we consider whether the pleading charging thePEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

46 defendant described the offense in such a manner that the offender, if guilty, must necessarily have also committed the lesser crime. ( People v. Smith (2013) 57 Cal.4th 232, 240.)
There must be , at a minimum, substantial evidence demonstrating the lesser offense was committed. ( People v. Westerfield (2019) 6 Cal.5th 632, 718 ( Westerfield ) .) In general, “a trial court errs if it fails to instr uct, sua sponte, on all theories of a lesser included offense which finds substantial support in the evidence.” ( People v. Breverman (199 8 ) 19 Cal.4th 142, 162.) Substantial support requires introduction of “ ‘ “ ‘ “ evidence
sufficient to ‘ deserve consid eration by the jury, ’ that is, evidence that a reasonable jury could find persuasive.” ’ ” ’ [ Citation.]” ( Westerfield , at p. 718, quoting People v. Valdez

, supra , 32 Cal.4th at p. 116.)
Here, although Wilson was charged with four counts of murder “wit h malice aforethought

, ” the prosecutor exclusively pursued a felony

- murder theory, and the jury was only instructed on that theory. “[W]e have previously declined to address the question of whether second degree murder is a
lesser included offense of firs t degree felony murder.” ( Westerfield

, supra , 6 Cal.5th at p. 717.) Wilson argues that, because he was charged with first degree premeditated murder, second degree nonpremeditated murder

— i.e., “ ‘ “the unlawful killing of a human being with malice, but without the additional elements . . . that would support a conviction of first degree
murder” ’ ”

— is necessarily a lesser included offense. ( People v.
Banks (2014) 59 Cal.4th 111 3 , 1160 ( Banks ).) In Banks

, the defendant was charged with “willfully killing [the victim] with malice aforethought

. ” What we concluded is that “second degree murder was plainly a lesser included offense of felony murder as charged . . . .” ( Ibid .)PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

47 A s in Banks

, second degree mur der was “plainly” a lesser
included offense of the murder “ as charged

. ” ( Banks

, supra , 59 Cal.4th at p. 1160.) Nevertheless, we conclude the trial court’s decision to forgo a nonpremeditated second

- degree murder
instruction was proper

. “ ‘ “ [T] here is no evidence that the offense was less than that charged. [Citations.]” ’ ” ( People v. Valdez, supra, 32 Cal.4th 73, 115.) Wilson posits a version of events in which he and Pops went to the car wash to buy marijuana and an unexpected confrontation in side the building occurred, culminating in the shooting and deaths of four
individuals. That version is unsupported

. What the evidence demonstrated is that each of the murders occurred during a burglary or robbery ; indeed Wilson
was convicted of both offenses. There was scant evidence from which a reasonable jury could have concluded Wilson committed second degree murder, but not first degree murder. Wilson and Pops were armed

. T hey waited in their car for between 15 and
20 minutes , with Williams first spott ing them when he arrived
at the car wash , spending 15 minutes inside

, then approach ing
them to ask what they needed. After Williams spoke with P ops and Wilson , he put water in his radiator and left the car wash; they were still in their car at this point, suggesting they were
outside of the car wash for at least 15 to 20 minutes

. During their conversation with Williams, they declined his overture to sell them marijuana . They then led Bowie into the car wash at gunpoint demanding to know “where . . . the money and where . . . the shit” were kept. Finally, o n ce inside

, Wilson and Pops
forced those in the car wash to lie on the ground while Wilson and Pops searched through the building before sho oting the four
victims

. In light of these facts

, including the methodical,
execution

- style killings of the four victims, Wilson’s theory doesPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

48 not “support a secon d degree murder instruction, but merely points to evidence that there may have been a struggle, ” a fact not in dispute here. ( People v. Valdez

, supra , 3 2 Cal.4th at p. 116.) Indeed, Bowie testified there was “ a lot of ruckus

, ” “struggling or something

, ” and “a bunch of commotion

. ” Williams testified that there appeared to be far less marijuana in the shop following the shootings than what was present when he had been there earlier that morning. Boxes were found strewn about the car wash following the shooting, and Pops and
Wilson had searched the victims’ pockets. Wilson’s theory that the struggle resulted from a drug purchase gone wrong is purely speculative, which we have held “ ‘is an insufficient basis upon which to require the giving of an instruction on a lesser offense.’ ” ( Westerfield

, supra , 6 Cal.5th at p. 718.)
Both first and second degree murder require proof of an unlawful killing committed with malice aforethought, but only
the former requires evidence of willfulness, premeditation, and
deliberation. 15 ( People v. Ch iu (2014) 59 Cal.4th 155, 325.) Wilson and Pops brought weapons to the car wash , watched and waited, and eventually entered, stole marijuana and cash, and shot four people. Such evidence demonstrate s deliberation and premeditation. ( People v. Koontz (20 02) 27 Cal.4th 1041, 1081

– 1082.) On these facts, no reasonable jury could have concluded that Wilson acted without willfulness, premeditation, and
deliberation. T o the extent some evidence may exist to dispel a finding of premeditation and deliberation

— and there is none

15 “ ‘ “ Deliberation ” refers to careful weighing of considerations in forming a course of action; “ premeditation ” means thou ght over in advance. ’ ” ( People v. Brooks (2017) 3 Cal.5th 1, 58 .)PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

49 here

— we note t he “ ‘substantial evidence requirement is not satisfied by “ ‘any evidence . . . no matter how weak

, ’ ” but rather by evidence from which a reasonable jury could conclude “that the lesser offense, but not the greater , was committed.” ’ ” ( Banks

, supra , 59 Cal.4th at p p. 1160

– 1161, italics added.) On this evidence the jury could only conclude that first d egree murder was committed, whether under a premeditation or felony murder theory. Because no reasonable jury would have
been able to conclude that Wilson committed only the lesser offense of nonpremeditated second degree murder, the trial
court did not e rr by failing to instruct the jury on that offense. ( Westerfield

, supra , 6 Cal.5th at p. 717.)

Wilson claims the trial court’s failure to provide a second degree murder instruction runs afoul of the United States Supreme Court’s decision in Beck v. Al abama (1980) 447 U.S. 625, 638 ( Beck ). A trial court satisfies Beck when the jury is provided a noncapital third option beyond the “ ‘ all

- or

- nothing choice between capital murder and innocence. ’ ” ( Schad v.
Arizona (1991) 501 U.S. 624, 647.) W here subst antial evidence does not support an instruction on the lesser offense, Beck is not implicated. ( People v. Smith (2018) 4 Cal.5th 1134, 1167.) We have previously concluded no error under Beck flows from a trial court’s failure to provide a sua sponte seco nd degree murder instruction where substantial evidence would not support such an instruction and we affirm that holding here. ( Westerfield

, supra , 6 Cal.5th at pp. 717

– 718.)

D. Theft as Lesser Included Offense of Dunn Robbery

Wilson argues the trial court erred by failing to instruct the jury, sua sponte, on the lesser included offense of theft

.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

50 Although the issue is close

, we conclude no instruction on theft
was warranted.

Wilson was found guilty of robbing Dunn of his El Camino

car. He claims the intent to steal could have been formed after force was used in this case, warranting an instruction on the
lesser included theft offense. (See People v. Powell (2018) 6 Cal.5th 136, 165; People v. Breverman

, supra , 19 Cal.4th at p.
162 .) As Wi lson notes, theft is a lesser included offense of robbery if the intent to steal is formed “ after force was used. ” ( People v. Turner (1990) 50 Cal .3d 668, 688

. ) The Attorney General may be understood to argue that no instruction is warranted if the intent to steal preceded the use of force. But
this is not the correct standard. The obligation to instruct on a
lesser included offense arises whenever the evidence “ ‘ “raises a question as to whether all the elements o f the [greater] offense were present.” ’ ” ( People v. Valdez

, supra , 32 Cal.4th at p. 115.)
“T his substantial evidence requirement is not satisfied by ‘ “ any evidence . . . no matter how weak,” ’ but rather by evidence from which a jury composed of reasonable persons could conclude

‘ that the lesser offense, but not the greater, was committed.’ ” ( People v. Avila (2009) 46 Cal.4th 680, 705 , emphasis added.) Here, the obligation to instruct on theft would have arisen if a reasonable jury could have c onclude d that Wilson committed theft, but not robbery when he took the El Camino, i.e., if there were evidence from which a reasonable jury could conclude that
Wilson formed the intent to steal the El Camino after force was
used.

Wilson claims Brown saw someone driving the El Camino only after the car wash assault had concluded. From this evidence, he argues it is reasonable to surmise the intent to steal the El Camino was formulated only after the assault, as hePEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

51 wished to use the car a s a getaway vehicle. He argues this inference is particularly reasonable in light of the large number
of shots fired and the presence of witnesses. Wilson argues he could have anticipated a significant police response, and Bowie’s testimony that he heard sirens and saw police at the car wash quickly following the shooting confirm s that Wilson ’s concern
was well founded. Wilson further argue s that the decision to burn the car immediately following its use also suggests no intent could have been formed pri or to the violent act because there was no intent to sell it or its component parts.

Wilson ’s claim lacks merit . Here, little if any evidence suggest s Wilson “formed the intent to steal only after shooting” the victims. ( People v. Powell

, supra , 6 Cal. 5th at p. 165 ; see also People v. Valdez

, supra , 32 Cal.4th at p. 115 [“ ‘ “giving instructions on lesser included offenses [is warranted] when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]” ’ ”] .) Overwhelming evidence supports the
conclusion that Wilson and his accompli ce formed the intent to
steal the El Camino prior to entering the ca r wash

. Wilson waited in his car, armed, for some time before entering the building. The El Camino pulled into the Wheels ’ N Stuff parking
lot , at which point Wilson and Pops force d Bowie into the building at gunpoint . Once inside, they ensured Bowie’s silence until Dunn had entered the building, then demand ed the building’s occupants

— including Dunn

— lay on the ground . At this point they ask ed where the money and “shit” were kept

, shot the victims, took money and marijuana, and

— although it is not clear whether or how the keys to the El Camino were
obtained

— Wilson then stole the El Camino

. After the robbery,PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

52 Pops retained the El Camino’s rims , and installed them on his
Camaro

. Wilson argues there was no evide nce that Pops knew
about the El Camino or its rims prior to the incident at the car wash , and merely stole the car as a convenient getaway vehicle.
While it’s conceivable that Wilson and Pops decided to flee the scene in different cars and the El Camino’s theft was merely opportunistic

, at least t wo points undermine this theory

. First, even if Wilson and Pops did not know about the El Camino and its specialized rims before they drove to Wheels ’ N Stuff, a jury could easily conclude the intent to steal the car

—

once they were aware of it

— was formed prior to the murders

. A jury could so infer from how Pops used the rims after the shooting . The El Camino’s rims would not have fit most tires

, having bee n manufactured for use with a Camaro, and requiring special modification to be placed on an El Camino, as Dunn had
done

. The evidence suggested Pops was interested in obtaining
the rims

, as he immediately added them to his car , the only
other make of car on which the rims would have fit

. Moreover, Pops’ s Camaro already had custom rims that matched the car’s exterior paint color , suggesting he valued the IROC rims above those already on his car

. A drawing of Pops’s Camaro sporting the prized IROC rims was found in Wilson’s home after the
crime. This evidence suggests the car was taken not sim p ly as a convenient getaway , but because Pops and Wilson valued it

. Second, Wilson’s theory that the El Camino was stolen

o nly after the shootings for use as a getaway car also seems unlikely because Pops and Wilson arrived at the car wash in
their own car , obviating the need for a getaway vehicle. Further, we note the El Camino was not the only vehicle at the car wash;PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

53 Pops and Wilson rummaged through a car parked inside the car wash building but did not take that car

— for reasons the record
does not reflect. E.T., one of the men inside the car wash who was not shot, was unable to find his car keys after the violence
conclu ded and left the scene with Brown. Even if he possessed keys or access to multiple vehicles parked at the car wash, Pops
did not take leave the scene using one of those cars. Instead, he drove away in the same vehicle he brought to the car wash

. Surely Wilson could have done likewise. Accordingly, we conclude t he trial court properly did not provide an instruction
on the lesser included offense of theft. ( People v. Friend (2009)
47 Cal.4th 1, 52 [“There was no substantial evidence that
defendant formed an intent to steal only after he

. . . fatally [injured] the victim, and thus no factual predicate for instructing the jury on theft as a lesser included offense”].)

E. Guilt Phase Instructional Error Claims
Wilson contends the related jury inst ructions, CALJIC Nos. 2.01 and 8.83, undermined the requirement of proof beyond reasonable doubt because they “informed the jurors that if Wilson reasonably appeared to be guilty, they could find him guilty

— even if they entertained a reasonable doubt as to guilt.” We have previously rejected similar challenges to these instructions, and Wilson presents no persuasive reason to do otherwise here. ( People v. Frederickson (2020) 8 Cal.5th 963, 1019.)

Wilson also posits that four other instructions the jury received, CALJIC Nos. 2.21.2, 2.22, 2.27, and 2.51, “magnified the harm” caused by instructing the jury with CALJIC Nos. 2.01 and 8.83 because “the instructions implicitly replaced the ‘reasonable doubt’ standard with the ‘preponderance of evidence’PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

54 test, and violated the constitutional prohibition against convicting a capital defendant on any lesser standard of proof.” As Wilson acknowledges, we have previously rejected this argument, and he advances no persuasive reason to reconsider our prior rejection of substantially similar challenges to these instructions. Accordingly, we again conclude that CALJIC Nos. 2.21.2, 2.22, 2.27, and 2.51 do not undermine or dilute the reasonable doubt standard. ( People v. Beck and Cruz (2019) 8 Cal.5th 548, 653

– 654.)

F. Sufficiency of Evidence of Hurd Robbery

Wilson contends the trial court erred by failing to enter judgment of acquittal of the Hurd robbery because insufficient evidence supported his conviction for that offense. Following our independent review of the evidence, we agree with the trial court’s ruling

.

1. Background

Williams and Hurd , lifelong friends, co

- owned the Wheels

’ N Stuff car wash

. They had both suffered prior convictions of marijuana possession for sale. While washing cars was part of
the business conducted at Wheels ’ N Stuff , a major part of the business activities included selling marijuana. The building’s rent was paid from marijuana sale proceeds. Williams testified that marijuana was present at the business on a daily basis. The individuals who frequented the shop, both customers and

e mployees, tended to carry large amounts of money

— upwards of $10,000. When Wilson entered the Wheels ’ N Stuff on the day of the shooting, he demanded to know the location of money and “shit,” by which he presumably meant drugs.
Following presentation of the foregoing evidence during
the prosecution’s case

- in

- chief, Wilson unsuccessfully moved forPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

55 acqui ttal of the Hurd robbery charge under section 1118.1

, arguing the prosecution failed to present sufficient evidence to support a conviction.

2. Discussion

When a trial court rules on a motion for a judgment of acquittal under section 1118.1, the standard t he trial court must apply is the same as what the appellate court applies when reviewing the sufficiency of the evidence supporting conviction.
A section 1118.1 motion is used to cull the “ ‘ “ few instances in which the prosecution fails to make even a prima facie case. ” ’ ” ( People v. Dalton (2019) 7 Cal.5th 166, 249.) A court r esolv es a section 1118.1 motion by determining whether the prosecution presented sufficient evidence , measured from the moment the section 1118.1 motion is made, to permit the jury to resolve the issue. ( Ibid .) We review the trial court’s determination de novo. ( Ibid .)

Here is how r obbery

— the charged offense

— is define d: “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) Robbery requires the “specific intent to permanently deprive” the victim of his or her property. ( People v. Young (2005) 34 Cal.4th 1149, 1176.)

Wilson contends insufficient evidence supported the Hurd robbery charge because, while true that Hurd was a co

- owner of
the car wash business, there was no evidence that he was involved in the marijuana business. Wilson argues, in essence, that the marijuana enterprise was Williams’s business alone. This interpretation is not supported by the evidence. Williams testified that he and Hurd were lifelong friends who owned thePEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

56 Wheels ’ N Stuff together and paid rent on the building fro m proceeds of marijuana sales

. Both ha d been arrested for possession of marijuana for sale. It was well known that car wash employees

— including Hurd

— sold marijuana and tended to carry large amounts of cash. Wilson likely knew this, as he and Pops sought the location of money and “shit” immediately upon entering

. Wilson argues that this evidence was insufficient to support a robbery charge because Hurd was not part of the marijuana business, no money or drugs were stolen from him directly, and he suffered no deprivati on sufficient to constitute robbery. He also claims his motion for acquittal should have been granted because Hurd lacked constructive possession of the property

— that is, the money and drugs

— alleged to have
been taken from Wheels ’ N Stuff. We are unp ersuaded.
The element of possession under the robbery statute can
be established in multiple ways. Possession or direct physical control over an object will suffice but neither is essential. ( People v. Scott (2009) 45 Cal.4th 743, 749

– 750.) Constructive possession by an employee is also sufficient to establish the
element . ( Ibid .) In Scott, we explained that because anyone committing robbery in a business establishment w ould perceive an employee as capable of resisting, “all on

- duty employees have constructive possession of their employer’s property during a robbery .” ( Id . at p. 755.) A wrongdoer’s decision to threaten or use force against an employee “is not likely to turn on fine distinctions regarding a particular employee ’ s actual or implied authority

. ” ( Ibid .)

Whether the evidence supported Hurd’s constructive or
actual possession , it was sufficient for a jury to have concludedPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

57 Wilson intended to p ermanently deprive Hurd of money, marijuana, or both . (§ 211; People v. Dalton

, supra , 7 Cal.5th at p. 249.) The trial court concluded as much, stating the jury “could find a robbery of the people connected to the business based on the narcotics.” Our independent review leads us to the
same conclusion. ( Dalton

, at p. 249.) That a different trier of
fact could have concluded otherwise does not mean the verdict is not supported by the evidence. ( People v. Far nam (2002) 28 Cal.4th 107, 143.) We are not free to reform the verdict simply because another theory is plausible. ( People v. Jackson (2016) 1 Cal.5th 269, 345 [“ ‘If the circumstances reasonably justify the trier of fact’s findings, reversal of the judg ment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding’ ”].)
A reasonable jury could have infer red from the evidence presented

— and this jury did

— that Wilson intended to permanently deprive Hurd of his money, belongings, and marijuana. Because it appears the evidence was sufficient to substantiate a robbery conviction, we conclude the trial court committed no error in denying Wilson’s motion for ac quittal
under section 1118.1.

G. Prejudicial Hearsay Admission Allegation Wilson argues the trial court erred in admitting the pages of the writing tablet containing drawings and a list of names. He claims the documents were improperly authenticated and constituted hearsay, and their admission violated his confrontation rights. For the reasons that follow, we conclude Wilson’s claims lack merit.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

58 1. Background Following execution of a search warrant at Wilson’s home,
officers seized

— among other items

— a writing tablet containing several drawings and a list of names. The prosecution sought to introduce some of the documents,
includ ing : (1) a depiction of a firearm being fired; (2) a drawing
of a man holding a firearm with the words “Nut LOCO” at the top of the page; (3) a caricature

- style drawing of a muscled male standing at a street corner with street signs reading “55th” and “Lime,” the corner near Wilson’s home, the moniker “Nut” at the top of the page, and a drawing of a car with what appeared to be IROC rims labeled “THE MONSTER BEEFY”; (4) a drawing of a figure’s chest, right forearm tattooed with the letters “Y.M.O.

, ” and hand holding a firearm being fired; and (5) a list of 22 nicknames, including Pops, Wilson, and people who spent time
with them.
At a pretrial hearing held under Evidence Code section 402, the prosecutor presented evidence that the home from which the tablet was seized was Wilson’s residence

. He argued that the drawings and list were admissible as circumstantial evidence demonstrating that the drawings were prepared close in time to the shootings

, that they were found on Wilson’s kitchen table in plain view, and that they demonstrated a
relationsh ip between Pops and Wilson. Wilson argued the drawings and list constituted inadmissible hearsay, that they were incapable of authentication because they were found in a common area of his residence, and that there was no evidence he personally created th e documents. The trial court tentatively ruled the evidence was admissible as “relevant circumstantial
evidence o n motive

— the connection between the defendants and circumstantial evidence of the possession of the guns by thePEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

59 defendants

. . . . ” The cou rt affirmed its tentative ruling on June 7, 1999, clarifying the drawings and list would be admitted for the limited purposes of connecting Pops to Wilson’s residence where the items were seized, and to confirm the association between Pops and Wilson.

2. Di scussion

Wilson argues the trial court erred by admitting the drawings and list of names because they constituted improperly authenticated writings under Evidence Code sections 250 and 1401, and because they constituted inadmissible hearsay with no applicable exception j ustifying their admission . We conclude
Wilson ’s arguments lack merit.

Evidence Code section 250 defines a “ ‘writing’ ” to include “every . . . means of recording upon any tangible thing, any form of communication or representation, including letters, wor ds, pictures, . . . or combinations thereof, and any record thereby created, regardless of the manner in which the record has been
stored.” “ Authentication of a writing is required before it may be received in evidence.” (Evid. Code, § 1401, subd. (a).)

“ Authentication . . . means . . . the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is . . . .” (Evid. Code, § 1400.)

Wilson argues that the list and drawings were writings within the meaning of Evidence Code section 250 but were inadmissible because they were not properly authenticated. He argues there was no direct evidence the documents were authored by him, and neither the location in which they were found nor their accessibility was sufficient to prove ownership. We review a trial court’s determination that a document constitutes a writing and that it is properly authenticated underPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

60 the abuse of discretion standard. ( Peo ple v. Lucas (1995) 12
Cal .4th 415, 466; see People v. Guerra (2006) 37 Cal .4th 1067, 1113 [“The abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence”].) Under this standard, a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. ( People v. Guerra

, supra , at p

. 1113, citing People v. Rodriguez (1999) 20 Cal.4th 1, 9

– 10.)

A writing can be authenticated by circumstantial evidence and by its contents. ( People v. Skiles (2011) 51 Cal.4th 1178, 1187.) Wilson argues proof of authentication was flawed
because no evidence demonstrated that he brought the tablet into the residence or that it belonged to him, and nothing suggested that he authored the writings.

As Wilson concedes, however, authentication of a writing

can occur via numerous methods, including presentation of
circumstantial evidence, and by introducing evidence showing
where documents were found or by whom they were authored. Here, the trial court concluded that the list of names and drawings were properly authenticated by location, content, and
circumstantial evidence. The writing tablet was found in Wilson’s residen ce. The prosecution had two witnesses testify as to the contents of the drawings and the list. Tanesha Martin testified that she believed Pops was the man depicted in the drawing entitled “Nut LOCO” who was holding a gun. Martin
testified that the drawi ng entitled “Nut and the Monster Beefy”
looked a bit like Pops and his Camaro. Barnes also identified Pops as the male figure in the drawing entitled “Nut and the Monster Beefy.” Barnes additionally identified the car in thePEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

61 drawing as Pops’s Camaro with the IROC rims. Barnes identified the letters “Y.M.O.” on the drawing of the forearm shooting a gun to mean “Young Mafia Organization,” a group to which Barnes, Pops, Wilson, and Harris belonged. The parties stipulated that Pops had the letters “Y M O” ta ttooed on both of his forearms. As to the list of monikers, Barnes testified that the nickname “Nut” on the list was Pops, the nickname “Scrap” was Pops’s brother Harris, the nickname “Bird” was Wilson, and
the nickname “Sm e rf” was Barnes’s own nickname.
The trial court did not abuse its discretion by concluding the writings were adequately authenticated. The purpose for which any writing is admitted “ will determine what must be
shown for authentication .” ( People v. Goldsmith (2014) 59 Cal.4th 258, 2 67 .) A trier of fact must be able to determine that a writing is what it appears to be. ( Ibid .) “ ‘ As long as the evidence would support a finding of authenticity, the writing is
admissible. ’ ” ( Ibid. ) Here, t he location of the documents supported authentication: law enforcement officials found them in Wilson’s residence . The content of the documents also supported authentication: they referenced Wilson, Pops, and
other witnesses. Finally, Pops and Wilson w ere connected by
circumstantial evidence . In addition to the documents’ contents, Martin’s and Barnes’s testimony confirmed that the drawings depicted Pops, and the list referred to Pops, Wilson, Barnes, and Harris. (Evid. Code

, §§ 1400, 1410, 1421.) Ac cordingly, we
conclude the trial court did not err in finding the documents were properly authenticated.

Wilson next argues that the list of monikers and drawings
constituted inadmissible hearsay because they were admitted for, and the prosecution sought to rely on, the truth of their implied incriminatory propositions. Our review “focuses onPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

62 whether the documents supported the nonhearsay purposes identified by the court and whether those purposes were relevant to an actual issue in dispute.” ( People v. Bunyard (1988) 45 Cal .3d 1189, 1204, quoting People v. Armendariz (1984) 37 Cal .3d 573, 585.)

When an out

- of

- court statement is offered for any relevant purpose other than to prove the truth of the matter stated, the statement is not hearsay. ( People v. Armstrong (2019) 6 Cal.5th 735, 786.) Evidence is generally relevant if it “ ‘ tends “ logically, naturally, and by reasonable inference ” to establish material
facts such as identity, intent, or motive

. ’ ” ( People v. Riccardi (2012) 54 Cal.4th 758, 815, quoting People v. Garceau (1993) 6 Cal.4th 140, 177 .) Because otherwise relevant evidence not offered for its truth falls outside the hearsay rule entirely, the party offering that evidence is not required to demonstrate an

exc eption to the hearsay rule to justify its admission. ( People v. Dalto n , supra , 7 Cal.5th at p. 232.)
Here, the court initially identified the nonhearsay purposes for admitting the writings as connecting Pops to Wilson’s residence, associating Pops wit h Wilson, and associating both Pops and Wilson with Barnes and Harris to corroborate Barnes’s testimony regarding his relationships with Pops, Wilson, and Harris. The court later confirmed the drawings and list were admissible for the limited purposes of connecting Pops to Wilson’s home and to confirm their association. These nonhearsay purposes were relevant to establish identity

— that is, that the alleged shooters, Pops and Wilson, had a relationship to each other. The existence of this relationship a ided in demonstrating that the two men could have committed the crime together. What’s more , the documents were relevant to establish a connection between PopsPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

63 and Wilson’s residence because a nine

- millimeter cartridge expended from the same firearm used in the murders was found at Wilson’s residence. Barnes’s testimony identifying Pops and his car in the drawings

, as well as his testimony about the
monikers of all four men

, further corroborated these various connections and relationships. T hus , the trial court did not err by concluding the evidence supported the nonhearsay purposes for which it was admitted and those purposes were relevant to issues in dispute. 16 ( People v. Bunyard

, supra , 45 Cal. 3d at p. 1204.)

Wilson argues that our decis ion in People v. Lewis (2008) 43 Cal.4th 415 ( Lewis ) renders the evidence inadmissible. In Lewis, we held that caricature drawings found in the defendant’s residence depicting a sawed

- off shotgun were hearsay because they were offered for the truth of the assertion
that the defendant committed robberies with a sawed

- off shotgun. ( I

d. at p. 498.) We concluded that because no exception to the hearsay rule justified their introduction, the court erred by admitting them. ( Ibid .) The erroneous admissions,

16 Because the evidence was admitted for nonhearsay purposes, defendant’s argument that its admission constituted a violation of his confrontation rights is unavailing. “ Whether a chall enged statement is hearsay is always the threshold question. ” ( People v. Turner (2020 ) 10 Cal.5th 820, fn. 19.) “[T] he confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out

- of

- court analogs, in purpos e and form, of the testimony given by witnesses at trial. ” ( People v. Cage (2007) 40 Cal.4th 965, 984.) The evidence was neither hearsay nor testimonial; accordingly

, no violation of defendant’s confrontation rights could have occurred.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

64 h owever, did not prejudice the defendant because the drawings added “next to nothing to the evidence of defendant’s guilt of the
crimes

. . . .” ( I

d

. at p. 499. ) Lewis does not inform our analysis here because the list of names and the drawings found in Wilson’s home , unlike the drawing found in Lewis , were not offered for their truth. Had these names been offered to demonstrate that Pops possessed the weapon he was dep icted holding, our analysis m ight be different. But that is simply not the case; the list and drawings were instead offered for the nonhearsay purpose of identity, that is, establishing a relationship between Pops and Wilson, and connecting Pops to
Wilson ’s residence.
In any event, w ere we to have found error in the trial court’s admission of the list and drawings, it would have been harmless under any standard. ( Chapman v. Californi a (1967)
386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
Substantial evidence of Wilson’s guilt and the connection between Wilson and Pops was introduced , including the nine

millimeter round found in Wilson’s home that matched the expended casings found at the scene, evidence that Pops placed
onto his ca r the IROC rims from the El Camino Wilson stole

, Barnes’s testimony that he was friendly with Pops and Wilson,
and his testimony that he assisted with burning the El Camino following the murders. Like the drawing in Lewis , the writings
introduced here add ed “next to nothing to the evidence of [Wilson’s] guilt of the crimes.” ( Lewis
, supra , 43 Cal.4th at p.
49 9

. ) Any error in their admission would have been harmless.

I II

. J URY M ISCONDUCT
Wilson asserts the trial court erred by denying his motion
for new trial based on alleged juror misconduct

. He claims th atPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

65 Juror No. 9 committed misconduct by failing to disclose her prior jury service , and the court’s denial of his new trial motion based
on th at misconduct was error

. Wilson further alleges the trial court abused its discretion by failing to adequately investigate
claims of juror misconduct he raised in his new trial motion

, despite holding an evidentiary hearing to address those claims, by not calling more jurors to testify, not sufficiently questioning those who did, and not permitting defense counsel to examine the jurors. For the reasons that follow, we conclude t hese claims
lack merit.

A. Juror No. 9’s Recollection of Prior Death Penalty Jury Experience

1. Background

J uror No. 9, a 35

- year

- old law firm docket clerk, stated i n her jury questionnaire that she had served as a juror in a civil

matter in 1992 . She failed , inadvertently, to note her earlier experience as an alternate on a murder trial

. Question 40A asked prospective jurors to identify whether they had “ been a juror in the past,” and, if so, to list the year the trial occurred, whether it was civil or criminal, the nature of the charge, and
whether a verdict had been reached. Juror No. 9 listed a 1992 personal injury trial on which she had served as a juror but
listed no other cases.
During voir dire, Juror No. 9 was questioned exclusively about her views on, and abilit y to impose, the death penalty. She indicated she could impose the death penalty if appropriate
and would evaluate the evidence

— even if emotional

— before deciding upon the appropriate penalty. T he prospective juror in
the number 12 position, who was e xamined shortly before Juror
No. 9 , responded to questions about her prior service as anPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

66 alternate juror on a death penalty case. Later that afternoon, following a break and additional questioning, Pops and Wilson utilized a joint peremptory strike to excuse the prospective juror
in the number 12 position, which occurred in front of Juror No.
9. Juror No. 9 was empaneled and served on Wilson’s jury

. Following the death verdict, d efense counsel conducted interviews with jurors. In her interview, Juror No. 9 told
counsel she wanted to put the experience of serving as a juror
on Wilson’s case behind her “ because it seemed to be lingering

on and on, and she had been through this experience before

, ” having served on a death penalty case many years earlier. This conversation marked the first time she alerted anyone involved
with this case to the fact that she newly recalled her prior jury
service. In a phone call with defense counsel a few d ays later,
Juror No. 9 clarified she was as an alternate juror o n a murder trial, and that it may have been a juvenile, not capital, case

. Juror No. 9 said it was difficult to remember the details of the case because it had occurred some 15 years prior to Wilson’s
trial.
Defense counsel sought a court order of Juror No. 9’s jury
service records . The records indicated that between 1985 and
1999
, Juror No. 9 had served on two trials, a 1993 matter and Wilson’s trial

— consistent with her questionnaire responses. No records were maintained regarding jury service predating
1985 ; the murder trial on which Juror No. 9 served as an alternate took place in 1984.
Wilson moved for a new trial, arguing Juror No. 9 committed misconduct by intentionally concealing her p rior
service on a murder case. On March 24, 2000, the court conducted an evidentiary hearing regarding the alleged jurorPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

67 misconduct. 17 Juror No. 9 t estified that she had told defense counsel, during their post

- trial interview , that she had served on a prior death penalty case as an alternate juror. She did not
list her prior service in her juror questionnaire because she “had just forgotten about it.” She said the questionnaire was “lengthy” and she “was trying to get through it

, ” noting she simply did not recall her prior service when filling it out. She
also did not mention her prior service during voir dire

, although
she was not asked about it, despite a nother prospective juror
discuss ing their prior service as an alternate on a capital trial,
who was subsequently peremptorily excused. Juror No. 9
testified that she had remembered h er prior service “months

. . . or weeks into” Wilson’s trial, and certainly after the jury began hearing evidence

. When the court asked her why she did not report her prior service once she remembered it, she explained she “just really honestly didn’t think about it.”
Wilson’s attorney argued at the evidentiary hearing that Juror No. 9’s failure to disclose her prior service at any point
du ring the trial constituted “a concealment of a very material fact.” When the court pressed counsel on whether he was asserting Juror No. 9 had lied when she gave testimony before the court, Wilson’s coun sel clarified that he did not believe Juror
No. 9 wa s being untruthful, and his use of the word “concealment” was a “term of art .” The court found Juror No. 9 “very credible” and did not believe she “intentionally conceal ed anything .” The questionnaire’s phrasing regarding prior

17 Wilson’s counsel unsuccessfully sought the court’s permission to examine jurors, including Juror No. 9, at the hearings related to the alleged misconduct. The trial court ruled i t would be the exclusive questioning body, but requested “counsel . . . make any suggestions for the scope of the inquiry.”PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

68 service, the court noted, was not altogether clear as to whether
service as an alternate should have been included. 18

The court continued the matter to conduct further
research and heard argument again on April 7, 2000. Following that second hearing, the court denied the new tri al motion, reiterating its finding that Juror No. 9 was “credible .” T he court explained that Juror No. 9’s prior service was 15 or 16 years before Wilson’s trial

, it was unclear whether that service was on a juvenile matter or a death penalty matter, and in any event the fact she was an alternate made her service “a lot easier to forget” because she was not involved in rendering a verdict. Although Juror No. 9 recalled at some point during t he trial that she had this prior experience, the court concluded nothing in the questionnaire or the jury’s instructions would have alerted her that she was obliged to bring it up. Finally, the court concluded
that Juror No. 9’s inadvertent omission did n ot constitute actual
bias under In re Hamilton (1999) 20 Cal.4th 273. 19

2. Discussion Wilson argues Juror No. 9 committed misconduct by intentionally concealing her prior service on a murder trial’s

18 Specifically, the questionnaire stated: “If you have been a juror in the past, please provide the following information,” and listed categories including year of the case, whether it was civil or criminal, the charges (if criminal), the type of case (if civil), and whether a verdict was reached.

19 In In re Hamilton , we explained “ that an honest mistake on voir dire cannot dis turb a judgment in the absence of proof that the juror ’ s wrong or incomplete answer hid the juror ’ s actual bias. Moreover, the juror ’s good faith when answering voir dire questions is the most significant indicator that there was no bias. ” (

In re Hamilto n , supra , 20 Cal.4th at p. 300.)PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

69 jury once she remembered it during his trial. “The law

co ncerning juror concealment is settled.

. . . ‘ [An] accused

. . . has a constitutional right to a trial by impartial jurors. [Citations.]

“ ‘ “ The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to trial by jury guaranteed by the Constitution. ” ’ ” ’ ” ( In re Manriquez (2018) 5 Cal.5th 785, 797 ( Manriquez ) .) If a juror actively conceals
factual information or falsifies voir dire responses , the process of selecting jurors is undermine d. ( Ibid .) Wilson argu es Juror No. 9’s failure to list her prior jury service in the questionnaire,
disclos e it during voir dire, or

— in particular

— bring it to the
court’s attention once she remembered it

— constitute d
intentional concealment.
While intentionally concealin g juror information may be sufficient to demonstrate bias warranting disqualification, a juror’s “ ‘ inadvertent or unintentional failure [] to disclose ’ ” information is treated differently. ( People v. San Nicolas (2004) 34 Cal.4th 614, 644 ( San Nicolas ).) In the case of unintentional failure to disclose, the trial court evaluates whether a juror is so
biased that they cannot perform the duties required of them

. ( Ibid .) We accord deference to any credibility det ermination made by the trial court in its evaluation of concealment. ( Id . at p. 646.)
Wilson suggests that because Juror No. 9 executed her questionnaire under penalty of perjury

— which attaches serious consequences to lies and omissions, and because the questionnaire asked about her prior jury service, her failure to
disclose that prior service at any point in the trial constituted
concealment demonstrating bias. The trial court found Juror
No. 9 credible when she testified that she did not remember her prior jury service when completing her questionnaire orPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

70 responding during voir dire. It also found credible that she was
not aware she should alert the court when she recalled her prior
service mid

- trial. Wilson argues these credibility findings
should be discounted because the c onclusion was made with respect to whether she recalled her prior service at the time she completed the questionnaire, not as to whether s he was credible about why she failed to disclose it later. The record does not support this assertion

. A trial court has the discretion to determine whether a juror’s “ ‘ failure to disclose is intentional or unintentional ’ ” and
whether the juror is biase d. ( San Nicolas

, supra , 34 Cal.4th at p. 644.) Unless the record clearly demonstrates a juror’s bias, the trial judge is best situated to evaluate a juror’s intentions through the voir dire process. ( Ibid .) The court expressly asked why Juror No. 9 did not report her prior service to the court once she remembered it, and she responded that she simply did not
think to do so. The court found this testimony “very credible

, ”
and noted she was never instructed to bring to the court’s
attention something she remembered after completing her questionnaire or responding to voir dire

. We accord this credibility finding deference , as well . ( Ibid .)
Wilson argues that because Juror No. 9 failed to disclose her prior jury service, her inherently biased presence on the jury
constituted a structur al defect warranting reversal . He further contends that even if her failure to disclose her prior jury service only raised a presumption of prejudice, that presumption was not rebutted. Neither of these argumen ts is meritorious. While we have acknowledged that, “in a rare case, a court ultimately may determine that a juror’s innocent concealment masked a
substantial likelihood of actual bias

, ” Juror No. 9’s failure to disclose her prior service does not demonst rate such bias

.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

71 ( Manriquez
, supra , 5 Cal.5th at p. 798.) In Manriquez , a juror failed to disclose in her questionnaire the fact that she suffered physical and sexual abuse as a child, despite the questionnaire inquiring about whether prospective jurors had been the victim s of crimes. ( Manriquez
, supra , 5 Cal.5th at pp. 793

– 794.) After the trial, the juror voluntarily responded to a questionnaire, and
in it she disclosed her child hood abuse to explain why she found
the petitioner’s mi tigating evidence of abuse unpersuasive. ( Ibid .) She later attested that she did not conceal her abuse in filling out her jury questionnaire, but did not believe it was responsive to questions because she thought the questionnaire pertained exclusively t o her experiences as an adult. ( Id . at pp.
794

– 795.)
Following our order to show cause, the juror testified at a reference hearing that she had not thought the abuse or violence she suffered as a child was resp onsive to the questionnaire ’s inquiries about suffering violence or past criminal activity
because she was a child when it occurred and such abuse was relatively normalized during the era in which she was raised

. ( Manriquez
, supra , 5 Cal.5th at pp. 796, 801.) We concluded substantial evidence suppo rted the referee’s finding s that the juror’s nondisclosure was not intentional and did not indicate
bias ( i d. at pp. 809

– 810 ), and independently concluded that although it constituted misconduct to fail to complete the questionnaire accurately, the juror was not actually biased ( id

. at p. 819).

In San Nicolas , a juror failed to disclose in his questionnaire and during voir dire that he had suffered prior

a rrest s , had been falsely arrested, and had been the victim of a
violent crime as a child. ( San Nicolas

, supra , 34 Cal.4th at pp.
644

– 646.) The defendant moved for new trial on the grounds ofPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

72 juror misconduct , an evidentiary hearing followed , and the tria l
court conclu ded the juror’s failures to disclose the prior arrest s and false arrest were “inadvertent or unintentional, and there was no resulting bias

. ” ( Id. at p. 645 .) T his conclusion was supported by substantial evidence , as was the court’s conclusion that the juror’s failure to disclose his status as victim of a violent
crime was not deliberate and he was not biased. ( Id. at pp. 645, 648.)

W e likewise conclude here that Juror No. 9’s failure to disclose her prior jury s ervice on a murder trial, even if capital,
did not demonstrate bias , and no misconduct occurred

. Juror No. 3 had prior experience as a juror on a murder trial and Juror No. 2 had previously served on a jury in a drive

- by shooting case
with three victims. Wilson contends all jurors who had prior capital experience were excused from service via peremptory challenge

. W hether Juror No. 9 ’s undisclosed prior service was on a capital trial or a murder trial is beside the point ; when assessing whether it is substantially likely a juror was actually biased, our inquiry is “ ‘ not whether the juror would have been stricken by one of the parties, but whether the juror ’ s concealment (or nondisclosure) evidences bias. ’ ” ( Manriquez
, supra , 5 Cal.5th at p. 798.) Juror No. 9’s inadvertent nondisclosure of her prior jury service did not evidence bias, and the trial court’s denial of Wilson’s new trial motion was not

error

. B. Trial Court’s Alleged Failure to Investigate

Juror Misconduct

In addit ion to the misconduct alleged regarding Juror No. 9’s prior service, Wilson claims the trial court failed to conduct an adequate inquiry of alleged misconduct involving Juror Nos. 1, 6, 7, 10, 11, and 12 , and remand i s warranted to determinePEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

73 the extent of the possible misconduct. We conclude the court’s inquiry was adequate, and that the court did not abuse its
discretion by denying the motion for new trial based on alleged
misconduct.

1. Background Following the death verdict , Pops’ s attorney , Jones,
contacted jurors

. One of the jurors complained, and the court ordered counsel to stop contacting jurors. Before the no contact order was issued, defense counsel ’ s conversations with some jurors revealed a juror had discussed a publicized murder case
duri ng deliberations, which counsel contended constituted
misconduct. Defense counsel asked the court to lift the no

contact order, and the People opposed their motion but urged the court to question jurors under oath to bring swift resolution
to the miscondu ct allegation. The court did not lift the order,
but it called Juror No s . 6 and 7 to provide sworn testimony regarding attorney Jones’s ass ertion

. Juror No. 7 testified that the penalty vote for Wilson had been split nine to three, with nine jurors voting for death and
three for life. The court dismissed the jurors for a weekend, and

upon return ing they took an informal vote, reveal ing unanimity
in favor of death. Those who had voted for life shared why their votes had shifted, and Juror No. 7 testified that Juror No. 6 told
the others she had seen a news story over the weekend about a shooting in Atlanta that made her “take a closer look at the cas e that she was on ,” and “honestly in her min d” Wilson “deserve d the death penalty.” She had indicated when she voted for life
the week before that her vote had been wavering.

Juror No. 7 testified that he thought the jurors followed the instructions at all times, and that the discussion regardingPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

74 the Atlanta crime occurred only after the poll indicating the
verdict was unanimous had occurred. Juror No. 7 recalled that
Juror No. 12 had also voted for life the week before , believing it to be a harsh enough form of punishment, but Juror No. 7 also thought Juror No. 12 would vote with the majority. Juror No. 7 testified that all of the jurors, including Juror No. 12, exercised independent judgment in voting, rather than blindly following the majority ; Juror No. 12 actively deliberated and analyzed the
issues.

Juror No . 6 also testified . She confirmed a unanimous poll was taken after jurors returned from the weekend, and that

some of the jurors who formerly voted for life discussed why their votes had changed. She remembered addressing her changed vote, but she did no t recall exactly what she said, and
did not remember mentioning the Atlanta crime that day. She
testified that she had read an I nternet article and watch ed a

news program about the Atlanta shootings, and remembered that the jurors had a discussion about that crime generally , but
she did not know precisely when that conversation occurred

. When asked whether she was emotionally affected by the Atlanta shootings, Juror No. 6 testified that she was an emotional person and tended to dwell on things like the Atlanta shooting “ever y time something like that happens,” but that the emotional impact of that crime had dissipated for her before jurors completed the poll an d reached the ensuing penalty

v erdict.
After it heard testimony from Juror Nos. 6 and 7 and argument from the parties, the court sought testimony from
Juror No. 1 2, as well. Juror No. 12 confirmed that before the jurors departed for the weekend the vote had been nine to three,
and he was one of the three jurors who had voted for life. HePEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

75 believed the poll taken when jurors returned after the weekend
was still nine to three , and he said he would vote with the majority if 11 jurors voted for death. Juror No. 12 eventually changed his vote, but did so not simply to go along with the majority; he testified that the heinous nature of the crime and
his own “scr upulous[]” evaluat ion of witness testimony ultimately changed his mind. He did not recall which other jurors initially voted for life, except that they were both female. He did not recall a discussion regarding the Atlanta crimes and
testified that it was not a factor aff ecting his deliberative

process. After Juror No. 12 testified, defense counsel persisted in requesting the court grant the parties permission to contact jurors. The court ultimately agreed to send a letter to jurors asking if they would consent to conta ct, and following receipt of

consent from several jurors, the court continued the new trial motion to provide defense counsel an opportunity to contact those jurors who had responded. 20
Pops’s attorney, Jones
, contacted Juror No. 1 , who told her
that Juror No s . 6 and 12 had initially voted for life but their votes changed in the poll immediately following the jurors’
return from the weekend . Juror No. 1 told Jones that there was a conversation amongst jurors following the poll during which jurors discussed the Atlanta crimes . Juror No. 6 purportedly
said she believed she needed to put her sympathy for Wilson’s family aside after hearing news about the Atlanta crimes ; Juror No. 10 purportedly said his country of origin taught that “[i]f you

20 It was at this juncture that defense counsel spoke with Juror No. 9 and learned of her prior jury service, as previously addressed.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

76 kill s omeone, t he n you are killed”; Juror No s

. 10 and/or 11 purportedly asked the jurors why Pops and Wilson should s it in prison while they

— the citizens

— paid for it; a nd

, Juror No. 12 said he was “comfortable” with voting for life or for death. Jones reported that Juror No. 1 initially agreed to sign a declaration attesting to these impressions, but after relations between Jones and Juror No. 1 soured, Juror No. 1 ultimately indicated she did
not want to be contacte d again, and she did not sign a
declaration. Jones submitted a declaration attesting to her
conversation with Juror No. 1 regarding the juror’s conversation
with fellow jurors. The trial court declined to obtain Juror No. 1’s testimony, because “this jur or . . . is, obviously, very
reluctant

. ” The trial court also declined to call Juror Nos. 10 or

11 to testify because there was no evidence their alleged statements “were anything other than transitory comments in passing, provoking no discussion by other jurors.”
Pops ’s motion for new trial, joined by Wilson, argu ed that
Juror No. 12 committed misconduct by siding with the majority instead of weighing the evidence . In the alternative, they argued Juror No. 12 relied on evidence outside of the case, namely Juror No. 6’s statements concerning the Atlanta crim e

— which constituted misconduct because it violated his oath as a juror. They argued Juror No. 6 likewise committed misconduct by relying on information about the At lanta crime
to reach a verdict. Defense counsel objected to the court’s refusal to allow them to question the jurors, claiming the court’s questioning was leading and permitted the jurors to deny
misconduct.

The court conclude d Juror No. 6 had not delib erated over the weekend before her vote changed, and noted jurors necessarily thought about the case du ring their non

- deliberativePEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

77 time

. Wilson claims

— incorrectly

— that the court did not expressly rule on his motion for new trial, but at a hearing on
A pril 7, 2000

— during which Juror No. 9’s alleged misconduct
was addressed

— the court stated it was “prepared to deny all
the motions

. ” On that same day, the trial court denied the outstanding motions for new trial, including those related to Juror Nos. 6, 9, and 12.

2. Discussion

Wilson contends the trial court failed to adequately investigate his allegations of juror misconduct by not exercising its discretion to permit the parties to call and question jurors at the hearing s o n his motions for new trial

. We conclude this
claim lacks merit. A trial court has broad discretion to resolve
a motion for new trial . ( People v. Manibusan (2013) 58 Cal.4th 40, 52 ( Manibusan ) .) While “ a new trial may be warranted if a jury engages in misconduct that prevents impartial consideration of the case,” the trial court is obliged only “to

‘ “ ‘make whatever inquiry is reasonably necessary’ ” to resolve
the matter. ’ ” ( Peop le v. Mora and Rangel (2018) 5 Cal.5th 442,
517 ( Mora and Rangel ) .) When the allegations of misconduct are based on the hearsay assertions of counsel

— as with Jones’s declaration pertaining to Juror No. 1’s alleged statements

— we have held that evidence “ ‘ insufficient to establish an abuse of
discretion in either de nying the motion or declining to conduct an evidentiary hearing. ’ ” ( Ibid .)
The trial court fulfilled its obligation in this case by conducting several hearings to determine whether misconduct occurred. After hearing testimony from Juror Nos. 6, 7, and 12,
the trial court found no misconduct. It was under no obligation to obtain testimony from every juror, and no error resulted fromPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

78 its decision not to obtain testimony from Juror Nos. 1, 10, or 11.
As to Juror No. 1, the only basis to conduct a further inquiry was Jones’s statement regarding their phone conversation. This
evidence was hearsay; accordingly, no error followed from the trial court’s decision not to hold an evidentiary hearing or by denying the new trial motion. ( Mora and Rangel

, supra , 5 Cal.5th at p. 517.) We might likewise conclude no abuse of discretion resulted from the trial court’s conclusion that Juror
No. 6 di d not commit misconduct (see i bi d .), although that is not Wilson’s assertion.
Instead, Wilson claims the court erred by not adequately investigating the alleged misconduct. This assertion is both
unfounded

— the court conducted multiple evidentiary hearings

— and unavailing; the basis for the alleged misconduct related
to Juror No. 6 was a hearsay statement made by defense
counsel. We have made clear that “[a] court must hold an evidentiary hearing on alleged jury misconduct only when the
defendant shows ‘ a strong possibility that prejudicial
misconduct has occurred. Even upon such a showing, an evidentiary hear ing will generally be unnecessary unless the parties ’ evidence presents a material conflict that can only be resolved at such a hearing. ’ ” ( Manibusan

, supra , 58 Cal.4th at

p. 55.) No such conflict existed here. To the extent Wilson presented evidence intimating jurors were influenced by
matters outside the record , the court’s evidentiary hearing
resolved that concern

. “ As we have explained, deliberating jurors ‘may be particularly reluctant to express themselves freely in the jury room if their mental processes are subject to immediate judicial scrutiny. ’ ” ( Id. at p. 5 3 .) Once the trial

“ court is satisfied that the juror in question ‘ is participating in deliberations and has not expressed an intention to disregardPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

79 the court ’ s instructions or otherwise committed misconduct, ’ ”
the court is not obliged to conduct further inquiry. ( Ibid .) After conducting multiple hearings, the trial co urt was satisfied that the deliberations were not tainted by misconduct, and its denial
of Wilson’s new trial motion did not constitute an abuse of
discretion. ( Ibid .)
In an effort to avoid this conclusion, Wilson’s argument is
not that the denial of the new trial motion or failure to hold a hearing constituted an abuse of discretion, but rather that the court erred by failing to permit him to interview jurors . Wilson

asserts that “[t]he testimony of the jurors was a poor substitute
for the interviews the attorneys were asking to do” because the court’s hearings did not “clear up the facts” to his satisfaction. This argument lacks merit. Trial court s are under no obligation

to co nduct evidentiary hearings at all when the allegations of misconduct are based on hearsay, as was the case here, and are certainly not required to permit the parties

— rather than the

court

— to examine witnesses. ( Mora and Rangel

, supra , 5 Cal.5th at p. 517.)
To the extent Wilson is claiming error arose from the court’s refusal to grant him access to jurors outside of the

courtroom , the argument is even less persuasive ; such
int erviews would have, at best, resulted in unsworn hearsay

statements alleging misconduct occurred. Even if those statements had been obtained, the court would have committed no error in declining to do the very act that occurred here

— conduct an evidentiary hearing. (See Mora and Rangel

, supra , 5 Cal.5th at p. 517.) The court did conduct a hearing, and
determined no misconduct occurred. This decision was “ ‘ within the sound discretion of the trial court, ’ ” and the trial “ ‘ court d [ id ] not abuse its discretion simply because it fail [ed] toPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

80 investigate any and all new information

. . . ’ ” or allegations raised by Wilson

. ( Manibusan

, supra , 58 Cal.4th at p. 52.)

IV. P ENALTY P HASE
A. Constitutionality of California’s Death Penalty Statutory Scheme

Wilson raises several objections to the constitutionality of California’s death penalty scheme. W e decline to reconsider our existing precedent and reject these objections, on the merits, as
follows:

The special circumstances qualifying a defendant for the
deat h penalty, as set out in section 190.2, are not unconstitutionally overbroad , nor are they so numerous that the constitutionally required narrowing function cannot be performed . ( People v. Bell (2019) 7 Cal.5th 70, 130 ; People v.
Williams (2010) 49 Cal.4t h 405, 469.)
There is no basis in our precedent to conclude that a trier
of fact imposes the death penalty in an arbitrary or capricious
manner when the trier of fact considers the circumstances of the crime under section 190.3, factor (a)

. ( People v. Fayed (2020) 9 Cal.5th 147, 213.)
We have previously held that t he death penalty is not unconstitutional “ ‘ “ for failing to require proof beyond a reasonable doubt that aggravating factors exist, outweigh the mitigating factors, and render dea th the appropriate punishment. ” [Citation.] ’ ” ( People v. Henriquez (2017) 4 Cal.5th 1, 45.) W e also have consistently held the death penalty
does not constitute an increased sentence . ( People v. Scott (2015) 61 Cal.4th 363, 407.) And we have determined that t hese
conclusions are un altered by Apprendi v. New Jersey (2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, Blakely v.PEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

81 Washington (2004) 542 U.S. 296, or Cunningham v. California (2007) 549 U.S. 270. ( People v. Scott

, supra , 61 Cal .4th at p. 407.)

Defendant does not give us any reason to revisit these
issues or to find that California’s capital punishment scheme
violates the Eighth Amendment’s prohibition against cruel and unusual punishment, or the Fourteenth Amendment’s guarante e of due process does not require the jury find unanimously and beyond a reasonable doubt that aggravating factors outweigh mitigating factors. ( People v. Jones (2017) 3 Cal.5th 583, 618

– 619.) Nor does defendant give us any reason to depart from our prec edent holding that the death penalty statutory scheme is not rendered infirm under the federal
Constitution by failing to demand written findings or unanimity

as to the existence of particular aggravating factors

. ( People v. Lopez (2018) 5 Cal.5th 339, 370 ; People v. Silveria and Travis (2020) 10 Cal.5th 195, 326 .)
There is no requirement that the jury be instructed concerning burden of proof at the penalty phase, nor must it be instructed on a “ ‘ “ ‘ presumption of life ’ ” ’ ” to satisfy a defendant’s constitutional rights to due process, equal protection, a reliable determination of sentence, or freedom from
cruel and unusual punishment. ( People v. Fayed

, supra , 9 Cal.5th at p. 213.)

Nor does the use of unadjudicated offenses under section 190.3, factor (b) constitute a violation of due process principles. ( People v. Fayed

, supra , 9 Cal.5th at p. 214.) Section 190.3 ’s use
of the word “ ‘ extreme’

. . . in the list of mitigating factors

. . . does not act as a barrier to the jury ’ s consideration of mitigatingPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

82 evidence in violation of the federal Constitution.” ( People v.
Mitchell (2019) 7 Cal.5th 561, 588.)
The phrase “ ‘ “ ‘ so substantial ’ ” ’ ”

— when used to

compare mitigating and aggravating factors

— does not render
CALJIC No. 8.88 unconstitutional. ( People v. Landry (2016) 2 Cal.5th 52, 123.) Nor is the instruction “ ‘ “ unconstitutional for failing to inform the jury that : . . . death must be the appropriate penalty, not just a warranted penalty. ” ’ ” ( People v. Mitchell

, supra , 7 Cal.5th at p. 589.) Error does not “flow [] from a failure to instruct the jury that if mitigating factors outweigh aggravating factors, life is the a ppropriate sentence.” ( Mora and Rangel

, supra , 5 Cal.5th at p. 519.)
The trial court was not obliged to provide a jury instruction indicating it was a defendant’s burden to demonstrate factors in mitigation were present, nor did the court need to instruct the jury it was required to unanimously find any mitigating factor was present

. ( People v. Jones

, supra , 3 Cal.5th at p. 620.)

“The trial court has no obligation to delete from CALJIC No. 8.85 inapplicable mitigating factors.” ( People v. Mitchell

, supra , 7 Cal.5th at p. 589.) There is likewise no requirement

“ that the court designate which factors are aggravating or mitigating or ins truct the jury that certain factors are relevant only in mitigation.” ( People v. Winbush (201 7 ) 2 Cal.5th 402, 490.)
The federal Constitution does not require intercase proportionality review, assessing the relative culpability of a defendant’s case compa red to other murders. ( People v. Bell

, supra , 7 Cal.5th at p. 131.) “ ‘ The capital sentencing scheme does not violate equal protection by denying to capitalPEOPLE v. WILSON Opinion of the Court by Cuéllar, J.

83 defendants procedural safeguards that are available to noncapital defendants. ’ ” ( People v. Fred e rickson

, supra , 8 Cal.5th at p. 1027. ) Defendant does not present a persuasive argument that i nternational law prohibit s application of the death penalty in this case, or in the United States

. T h is country reserved the right to impose the death pena lty when it signed the International Covenant on Civil and Political Rights. ( People v. Capers (2019) 7 Cal.5th 989

, 1017.)

B

. Cumulative Error

Wilson contends the combined guilt and penalty phase errors require reversal of his conviction and death sentence, even if the errors are not prejudicial when considered individually. W e have found no error, so no prejudice can
accumulate.

V. D ISPOSITION

W e a ffirm the judgment. CUÉLLAR, J.

We Concur:

CANTIL

- SAKAUYE, C. J. CORRIGAN, J. LIU, J.
KRUGER , J.
GROBAN , J. KRAUSE, J. *

________________________

* Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Wilson

__________________________________________________________________

Procedural Posture (see XX below) Original Appeal XX Original Proceeding Review Granted (published) Review Granted (unpublished) Rehearing Granted

__________________________________________________________________ Opinion No. S087533 Date Filed: April 12, 2021

__________________________________________________________________
Court: Superior County: Los Angeles Judge: Curtis B. Rappe

__________________________________________________________________
Counsel:

Michael J. Hersek and Mary K. McComb, State Public Defenders

, under appointments by the Supreme Court, Joseph E. Chabot, Ryan R. Davis and Elias Batchelder, Deputy State Public Defenders, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters and James William Bilderback II, Assistant Attorneys General, Jaime L. Fuster and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.Counsel who argued in Supreme Court (not intended for

publication with opinion):

Ryan R. Davis Deputy State Public Defender 770 L St., Suite 1000 Sacramento, CA 95814

- 3362 (916) 322

- 2676

Douglas L. Wilson Deputy Attorney General 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 (213) 269

- 6184