Filed 7/2/15



## IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S051342
v. ) ) JOHN LEE CUNNINGHAM , ) ) San Bernardino County Defendant and Appellant. ) Super. Ct. No. RCR 22225

________________________________ ___ )

In a bench trial before the Superior Court of San Bernardino County, d efendant John Lee Cunningham was convicted of the first degree murder s of Wayne Sonke, David Smith, and Jose Silva. (Pen. Code, §§ 187, subd

. (a) , 1 89

. 1 ) The trial court found true the special circumst ance allegations that defendant committed multiple murder s and that
the murders of Sonke and Smith took place during the commission of a burglary and a robbery. ( § 190.2, subd

. ( a ) (3), (17 )(A) and 17(G).) The court also found defendant guilty of one count of second degree burglary ( § 459) , three counts of second degree robbery ( § 211 ), one count of arson ( § 451, subd

. (d) ), and one count of possession of a
firea rm by a felon (former § 12021, subd

. (a)) . The court further found true various

sen te n cing enhancement allegations

— that defendant personally used a firea rm in the commission of the murders, robberies , and burglar y (former § 12022.5, subd

. (a) ), had previously been convicted of various felonies ( § 667) , and had served prior prison terms
for felony convictions ( § 667.5 ).

1 All further statutory references are to the Penal Code, unless otherwise noted.2

A jury was sworn for the penalty phase and returned a verdict of death. After conducting an automatic review and declining defendant‘s request to modify the jury‘s
verdict ( § 190.4, subd

. (e)), the trial court sentenced him to death for the three first degree murders with special circumstances , as well as to a determinate term of 16 years for the remaining counts and allegations. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.
I. FACT S
A. The Guilt Phase
Defendant went to Surplus Office Sales (SOS ) in Ontario, California, around closing time on the afternoon of Saturday, June 27, 1992, and robbed the three remaining employees at gunpoint. He then bound the victims, herded them into a bat hroom, and shot them each at least once in the head. Afterward, he set fire to the building before fleeing the scene. He was arrested a month later while on the run from police. Defendant subsequently confessed to the murders, burglary, and robberies, a nd participated in a videotaped reenactment of the crimes. Waiving his right to a jury , defendant‘s bench trial extended over 10 non

contiguous court days. In addition to the prosecution‘s guilt phase evidence, the trial court considered the evidence pr esented at the preliminary hearing and at pretrial proceedings concerning defendant‘s motion to suppress his multiple confessions.

1. The prosecution’s case a) The crimes Around 4:00 p.m. on June 27, 1992, members of the Ontario Fire Department responding to a call at SOS found an inactive fire in the office portion of the building and three homicide victims in a hallway bathroom

. An autopsy revealed that SOS employee Jose Silva died from two gunshot wounds to the head , assistant manager David Smith3

died from multiple gunshot wounds to the head and neck , and store manager Wayne Sonke died from a single gunshot wound to the head . More than $ 1,00 0 in cash had been taken from the store‘s cash register and pett y cash box. Michael Ray, the owner of SOS , had employed defendant in the early and mid

1980s at two other businesses. About a month before the murders, Ray returned a phone call from defendant asking about work. Ray had not heard from him for three or four
years. Defendant also made unannounced visits to SOS on June 20 and 24, a week and a few days before the murders respectively. About 8:30 p.m. on the evening of the murders, defendant called SOS employee Evelyn Eriksen at home to ask how she was. Defendant told her he had been playing poker with some friends since about noon that day. Later , defendant took Alana Costello , his girlfriend at the time, to the movie s a nd a motel room. Costello was surprised because defendant was not steadily employed and had been under ―stress‖ trying to find enough money for them to move into a bigger apartment. That evening, defendant was

― much more clos e

- mouth ed‖ than usual and acting ―very stressed, very tense, very wrapped up in himself.‖ According to Costello , defendant generally was distant and removed, had difficulty sleeping, and would wake up in the middle of the night from bad
dreams

. He had borrowed her Ruger .22

- caliber semi

- automatic rifle and modified it by sawing off part of the stock and barrel

. A few days after the murders, Costello noticed the rifle was missing.

b) Defendant’s subsequent flight and capture On June 30, defendant called Diana Jamison, a former girlfriend. Jamison told defendant that his parole officer had come to her house looki ng for him. In a later telephone conversation, defendant told Jamison he was on the run because someone, perhaps the Mexican Mafia, was after him. Around the same time, defendant called Jamison upset and crying, saying ―something very terrible had happen ed‖ and he wanted4

to come back and ―do the right thing.‖ Jamison told defendant to turn himself in. According to Jamison, defendant had trouble sleeping; he would often wake up in the middle of the night in a cold sweat, and mentioned dreams of being tor tured by women and children from his time in Vietnam. Defendant had tried to seek counseling at a
veteran‘s center. On July 1, Costello received a telephone call from defendant asking her t o join him in Nevada. Meeting up at the Las Vegas airport , the two traveled by car to Atlantic City, New Jersey, then drove southwest through Arkansas before heading north. Along the way, defendant placed an Ohio license plate on the car and registered under false
names at motels. He never discussed why he had left California a nd when Costello
asked , he did not want to talk about it. After seeing how anxious defendant became when police cars passed them, she concluded that he was running from the law

. O n July 23 , law enforcement officers stopped defendant‘s car in Deadwood , South
Dakota after being advised he was in the region and wanted as a murder suspect.
Defendant and Costello were both taken into custody and defendant was arrested for violating his parole

. Police seized a Ruger .22

- caliber semi

- automatic rif le , a box

c ontaining 31 cartridges for a .22

- caliber long rifle , a nd a magazine loaded with 10
rounds of .22

- caliber ammunition.

c) Defendant’s statements to law enforcement officers and videotaped reenactment of the crimes Over the following two days, Ontario Police Department D etectives Gregory Nottingham and Pat Ortiz interrogated defendant fo ur times

. Each interrogation was audiotaped or videotaped. On each occasion, the recording equipment was in plain view.
At their first meeting the morning of July 24, after approximately six minutes of preliminary introductions and questions, Detective Nottingham read defendant his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 ( Miranda )

. After defendant
confirmed that he understood these rights, Nottingham proceeded to ask defendant about5

his relationships with Costello and Jamison, as well as about his military and employment background and his prior robbery arrest. In discussing these subjects, defendant
recounted wo rking for Michael Ray at a facility in Long Beach in 1979 and going to SOS in Ontario in early June 1992 to visit Eriksen and to look for a job

. Defendant then volunteered, ― I know what you guys are getting at

. . . . I also want you to know that the rea son why I‘m so calm is because I‘m where I belong.

. . . I know why you‘re here in my dreams and that‘s all.‖ When asked to clarify, defendant replied,

― You know as well as I do that I committed an armed robbery in Ontario ‖ at ―Mike‘ s company.‖ When asked for further clarification, defendant reiterated , ―I committed an armed robbery,‖ and asked , ―S hould I have somebody here talking for me, is this the way it‘ s supposed to be done?‖ Detective Nottingham reread defendant his Miranda ri ghts
and asked if he understood them. Defendant stated, ― I do understand. ‖ In response to the detectives‘ subsequent questions, defendant gave an occasionally rambling account of his activities on June 27 , describing how he chose to
rob SOS , how the rob bery, murders, and arson occurred, and his subsequent actions. He admitted entering SOS with the intention to steal money, binding the hands of the three victims with duct tape, returning to the bathroom to shoot them, and then using gasoline
to set the b uilding on fire. These confessions were interspersed with references to defendant‘s dreams, things he claimed to have done during his military service in Vietnam, and expressions of relief at being caught. The detectives interrogated defendant two more t imes the afternoon of July 24, and again the following morning. No additional Miranda advisements were given.
Defendant told the detectives he had altered two military personnel forms found in his car because he was looking for work and wanted to ― look [] better ‖ and ― cover ‖ for time
when he had been incarcerated. He also indicated he had ― ripped off a shipment ‖ as a narcotics courier and asked at one point to be placed in protective custody

. One of the6

detectives also made references to the victims ‘ fam ilies, stating that once lawyers got
invol ved in a case , it would get ―a lot more complicated

. ‖ Between July 27 and July 31, the detectives spoke with prosecutors working on
the case and played the interview tapes for them. Because the quality of the tapes was
poor , the prosecutors suggested a videotaped reenactment at the crime scene and t old the
detectives that the reenactment should be done before an arrest warrant was filed. On July 31, Wesley Lewis, a correctional sergeant at Folsom P rison wh ere defendant was being held on his parole violation , interviewed defendant to determine whether he would be willing to participate in the reenactment. Defendant indicated that he would be ―happy‖ to cooperate ―if it would get me out of here any sooner or quicker

. ‖ On August 2, defendant conducted a reenactment of the crime s, which two detectives observed and videotaped

. Defendant was advised of h is Miranda rights before starting the reenactment , and affirmed that he understood these rights and wished t o talk
to law enforcement officers

. In the video, defendant described how on the day of the murders he first went to SOS shortly after noon and st ayed for about a half

- hour talking with the three victims.
He then left and returned aft er 3:00 p.m. ―to ta ke all the money .

. . so I could leave the state.‖ He reentered SOS with the shortened .22

- caliber rifle concealed in a paper bag. At gunpoint, defendant ordered the three victims to follow him through the hallway to the front lobby , where he forced Sonke to give him the money from the cash regi ster. When defendant asked Sonke where the rest of the money was , Sonke indicated it

w as in an office down the hall . Defendant made all the victims go with him to that
location and Sonke opened a filing cabi net with some keys , but did not remove anything.
Defendant t ook the keys and made the victims enter the women‘s bathroom , where he told them to lie down on the floor and be quiet. He left all three victims with their hands
bound behind them with heavy du ty tape he had purchased weeks before, but also
claimed he had only planned the robbery earlier that day when he decided to return to7

SOS

. Defendant then took the money from the cash drawer in the filing cabinet, returned
to the bathroom , and shot the thr ee men

. R etriev ing a can of gasoline from his car , defendant went back inside to set fire to the building

. When he ree ntered the bathroom, Silva and Sonke were not moving but
Smith was attempting to break loose of his bonds. Defendant s hot Smith again , poured gasoline along the hallway , and ignited it with a match. He then removed a key from
inside the front door and exited , locking the door from the outside. He drove to a freeway overpass to watch the building for a minute or so until a fire truck arrived

.

2. The defense case In his opening argument during the guilt phase, defense counsel described defendant‘s experiences in Vietnam, stating that because of post traumatic stress disorder, there were periods in his life when defendant ― lost time. ‖ Wit h respect to the murders,

c ounsel claimed th ese were not crime s defendant w anted to commit, and that the only
way law enforcement officers were able to connect defendant to them was by virtue of defendant‘s cooperation

. Counsel cross

- examin ed prosecution witnesses, but presented no guilt phase witnesses or other evidence on defendant‘s behalf

. During closing argument, counsel contended defendant committed the charged
offenses because he was experiencing a buildup of pressure caused by a mix of helplessne ss and fear. In conclusion, counsel argued, ― from everything we know John Cunningham wished to take responsibility for this particular crime, and he did. ‖

B. The Penalty Phase Defendant‘s requests to absent himself from the penalty phase were denied. A jur y was selected and heard evidence for 34 court days over the course of five months. The prosecution presented testimony relating to the circumstances surrounding the crimes, the effect of the murders on those connected to the victims, and defendant‘s prio r felony convictions. Defendant presented extensive testimony to document his abusive8

childhood, his traumatic combat experiences in V ietnam, and the effects of post traumatic
stress disorder on Vietnam

- era veterans. He also presented testimony that a ttempted to discredit some of the prior crimes evidence.

1. The prosecution’s case in aggravation a) The circumstances surrounding the murders The prosecution presented the testimony of many of the same witnesses who testified during the preliminary hearing and the bench trial to demonstrate the circumstances surrounding the burglary, robberies, murders, and arson. A lso presented were the videotapes and transcripts of defendant‘s July 1992 interviews and August 1992 reenactment and stipulations regarding the co llection of crime scene evidence.

b) Prior crimes
O n April 24, 1976, Herta Gill was a cashier at the Vineland Drive

- In in the City of Industry, California , when at about 9:00 p.m., defendant robbed her at gunpoint of all the money in her register. He was ap prehended a short time later while in possess ion of a
firearm and the stolen cash

. After p lead ing guilty to felony robbery and admitt ing to personally using a handgun , defendant was sentenced to one year in county jail and then placed on probation.
O n April 5, 1982 , Michelle I. was 14 years old and alone at her home in La
Mirada , California, when defendant sex ually assaulted her. Defendant , then a family friend, entered the home on the pretense h is car had broken down , but after appearing to use the phone asked Michelle to give him a ―blow job.‖ When she refused, defendant
forced her onto her knees . When she began screaming, defendant struck her in the face
with a closed fist , threatened further physical violence if she continued to scream, and dragged her by the hair to the sofa, where he forced her to perform oral sex on him for approximately 10 minutes

. Before leaving, defendant said he had killed his ex

- wife and
her lover and warned he would ― come back ‖ to do the same to Michelle if she told9

anyone what had happened

. Michelle nonetheless reported the incident to her family and the police and testified at the subsequent trial. Defendant was convicted of felony forcible oral copulation with a minor and sentenced t o state prison. In April 1987, Samira S

. was 15 year s old and living with her mother and younger
sister in Paramount , California, when defendant, a family friend, mov ed in . W ithin two
or three weeks , he began fondling and kissing Samira when they were a lone. She would tell him to stop, but defendant would continue touching different parts of her body. Subsequently, defendant forced Samira to perform oral sex on him , slapp ing her when she did not perform to his satisfaction

. Samira thereafter engaged in oral sex with
defendant once or twice a week between April and September of 1987. If she resisted, defendant would get angry and slap her. Defendant repeatedly tried to convince Samira
to have sexual intercourse with him bu t she refused . Nevertheless, he would put Vaseline or baby oil on his penis and partially penetrate her vagina. Defendant a lso asked to take naked photographs of Samira , but she refused. Sometimes defendant would give Sa mira money and b uy her gifts . He also c aused her to be truant from her summer school

courses. In September or October of 1987, Samira told a friend from church and a school
counselor about defendant‘s sexual assaults. He was convicted of two counts of oral copulation with a minor and s entenced to state prison.

c) Victim impact evidence
T he prosecution introduced the testimony of family members of the victims who
testified about qualities of their loved one and how each learned about the murders. Jose Silva was the youngest of 10 childre n and was raised by his older sister Josefina after their mother died. He regularly attended family functions and had a one

- year

- old son at
the time of his death. David Smith had been married to his wife Mimi for 10 years when
he died and had a da ughter named Tiffany. His half brother described Smith as someone who loved the outdoors and as ―a very gentle soul.‖ Wayne Sonke had five adult10

children and five grandchildren at the time of his death. His daughter Lois Backe described being at her mother‘s h ouse waiting for Sonke to return home from work when the fire department called asking for Sonke and saying that the alarms had gone off at
SOS . After her father still had not returned or called home, Backe drove to SOS . A police officer on the scene told her there had been a triple homicide and asked Backe to describe her father. She later had to give the news of his murder to her youngest brother
and mother.

2. The defense’s case in mitigation a) Family and social histor y Ronald Forbush, a defense investigator , researched defendant‘s personal and social history and interviewed v arious relatives . Defendant‘s parents Vivian and Maurice Cunningham divorced when defendant was approximately two years old. Vivian had a prior marriage at age 14, two subsequent marriages , and apparently worked at some point as a prostitute

. Maurice subsequently remarried as well. As a result, defendant had two
older brothers, Sam and W.C. , and several half siblings and step brothers and step sis ters. At the time of the trial, defendant‘s parents were deceased, and his brother Sam w as in
Huntsville State Prison in Texas. Vivian‘s younger half sister Carolyn M

. testified that Vivian was dishonest ; at various times she had lied about a brother ha ving died, about being in a car accident, and about her middle son (W.C.) having died. Carolyn also recounted one evening when she was in seventh grade and Vivian and Maurice were living in the same house as the rest of the family when Carolyn awoke to fi nd Maurice sexually molesting her. Defendant‘s brother W.C. testified their mother and father both had problems with alcohol. One time, when W

. C . was under 10 years old, Vivian, intoxicated, called him
into her bedroom and sexually fondled him. After he left, she called the other two brothers into the room one by one

. Vivian‘s sexual abuse may have been recurring.11

Maurice and Gene Collins, a stepfather, physically abused the boys. One time, after a
violent confrontation with Collins in which Vivian stabbed him with a fork, she

a bandoned her three sons (then ages five, seven, and nine) for several weeks and they
were forced to steal food to survive . Eventually, the boys were placed in an orphanage for approximately a year. Later they we re flown to California to live with Maurice, his second wife Betty, and her children from a previous marriage. W

. C . believed that his father sexually abused his stepsister, although Maurice never molested W.C. or, to the best of W.C.‘s knowledge, defendan t or their brother Sam. One of defendant‘s stepbrothers testified that Maurice was a heavy drinker who
often became violent with Betty and the children. Maurice also sexually molested the stepbrother so often he ―couldn‘t count the times.‖ Once when he was in seventh grade, the stepbrother told his mother Betty about the molestation. She cried but never did anything to stop it. Diana Jamison, one of defendant‘s former girlfriends, testified she got the impression from defendant that his mother, Vivia n, was very promiscuous when he was a young boy and had many different men coming in and out of her life. Defendant also alluded to having been sexually molested by his father, but would not discuss any details
with Jamison.
Some of the sexual abuse deta iled by the above witnesses was confirmed or alluded to by defendant in his interviews with Thomas Williams , one of the defense‘s penalty phase psychologists.

b) Military background
After defendant graduated from high school, he enlisted in the United State s Army . According to relevant military files and records , defendant was court

- martialed
various times for being absent without leave (AWOL ) between May 1969 and March
1970

. In May 1970, defendant wa s sent to Vietnam for approximately 11 months where12

he w as promoted three times, ultimately to sergeant. As a result of his se rvice in the Vietnam War, defendant r eceived several commendations

. While in Vietnam, defendant engaged in reconnaissance missions with units that
would travel through the jungles for period s of five to 14 days scout ing and securing

areas believed to be infiltrated by the Viet Cong or North Vietnamese Army. The units set up claymore mines for mechanical ambushes and engaged in several firefights in which enemy troops or sy mpathizers were killed or captured . Defendant at one time operated in a ― free fire zone ,‖ mean ing that the soldiers had permission to kill any enemy combatants in that area. Sometimes a unit would happen upon empty enemy bunkers or mass enemy graves; oth er times it found ―blood trails‖ left by the enemy dragging their wounded or dead soldiers away from combat scenes . If a unit encountered an enemy village in an uncontrolled area not authorized for settlement, standard operating procedure was to evacuate the people and set the buildings on f ire. Once, defendant required medical attention due to heat exhaustion. Another time, he was hospitalized for
a malaria infection.
Nineteen veterans who served in defendant‘s reconnaissance platoon s testified
about their daily activities and various missions in Vietnam. Some of the veterans who
testified characterized defendant as a ― good soldier ‖ but also as a ― loner ‖ who generally kept to himself. Others did not specifically remember defendant. T hree veterans,
i ncluding one who allegedly knew defendant the best, for various reasons were unable to attend the trial and testify. Many of the veterans who testified suffered from p ost t raumatic s tress disorder (PTSD), flashbacks, depression , or other problems as a result of their service in Vietnam. These veterans explained they often had problems adjusting to life after Vietnam, and many of those adjustment problems remained with them throughout their lives

. They had trouble sleeping, were regularly afflicted by nightmares, and experienced problems with anxiety, hyper vigilance, and being easily startled by innocuous sounds (such as a car13

backfire or a motorcycle) or simple sights (like a tree stump). One witness compared the experience of s uffering from PTSD to ― carrying a demon around at times

. ‖ However,
none had committed any felonies or crimes of violence after they returned home.
Cross

- examination further revealed that o ther than the death of a medic from a mortar accident on base, t here were no casualties or fatalities in any of defendant‘s platoon s

. Defendant was never ca ptured or tortured by the enemy, and none of his unit s

ev er destroyed a village in a manner that kill ed women and children. Defendant did not participate in long

- range reconnaissance patrols or Special Forces. Although the reconnaissance platoon s rarely took prisoners , o n one occasion, defendant‘s unit took 30 to 50 prisoners , including women and children who were sympathetic to the enemy , but
none of the prisoner s were bound or mistreated in any way.
After Vietnam , defendant was stationed for the remainder of his three

- year tour at Fort Hood, Texas , where he was court

- martialed four d ifferent times for being AWOL

. Ultimately, he was demoted from his sergeant rank and honorably discharged as a private. c) Psychological evidence concerning post traumatic stress disorder
G. Robert Baker and Thomas Williams testified for the defense as experts on PTSD, among other topics

. Baker was a psychologist with the Departmen t of Veterans
A ffairs and clinical coordinator for the National Center for Post

- Traumatic Stress
Disorder

. Williams was a psychologist who specialized in working with trauma victims and training individuals involved in treating veterans. Both served in V ietnam in the Marines Corps. Baker and Williams described PTSD as a reaction to unusual and frightful events outside the normal range of human experiences, such as those experienced in war zones. The symptoms of PTSD include nightmares, intrusive and un wanted thoughts and images, flashbacks, avoidance and dissoc iative behaviors , depression, psychiatric14

numbing, social isolation, disassociation from and distrust of others, anxiety, sleep disorders, anger management problems, hypervigilance, adrenalin

- or sensation

- seeking behaviors, memory impairment, and concentration difficulties. Although there is no cure for PTSD, the symptoms can be treated and individuals can be taught how to manage
them.
Williams explained symptoms such as flashbacks or nightmares could happen at any time depending on the particular individual and his experien ces. However, certain
stimuli would be expected to trigger them. M ilitary training in particular sensitized
soldiers to various sti muli and caused them to react quickly to perceived danger. PTSD may also be retriggered by secondary traumatic experiences, or compounded by preceding ones. According to Baker, although soldiers suffering from PTSD might be expected to avoid events such as fireworks displays, which can trigger combat memories, they might still carry guns, which would likewise trigger combat memories, because guns were a source of protection. Recurrence of malaria symptoms also can act as a PTSD trigger, although malaria infections themselves, which were common in Vietnam, did not cause PTSD. Baker also explained the concept of ―survivor guilt‖ and how soldiers who suffered from PTSD often exaggerated their combat roles. Both experts explained how the Vietnam conflict pr esented unique difficulties for
many reasons

— m ost of the soldiers were very young, the war had no front lines, there were no clearly defined objectives other than killing people, it was often unclear who was the enemy, there were no safe areas in light of the guerrilla nature of the war , there was no winning strategy, the primary goal was survival, there was little unit cohesion because soldiers were constantly being replaced, the jungle environment made living conditions difficult, and neither the Vietname se civilian population nor the American public appreciated the soldiers. These factors made it more difficult to treat Vietnam War veterans suffering from PTSD. In particular, the social isolation Vietnam veterans felt upon returning home prevented them from seeking treatment. In defendant‘s case, the15

isolation was exacerbated because he did not have a loving and supportive family or religion to turn to upon his return. Present

- day treatments for PTSD, moreover, were not
availabl e to veterans in the ear ly 1970 s, as the disorder was not well understood at that
time

. Based on his review of defendant‘s records, Baker opined defendant was involved in the type of combat that could produce PTSD. However, he never met or evaluated
defendant for PTSD. Baker explained how individuals are screened for PTSD and the importance of confirming the truthfulness of reported personal histories in renderin g a diagnosis, as malingering

— feigni ng the symptoms of a disorder

— can apply to someone claiming to suffer from PTSD.
Williams positively diagnosed defendant as having PTSD. This diagnosis was based on his interviews of defendant for three days in May and June of 1995 , and his review of the videotapes of defendant‘s in terviews with the detectives and the reenactment, charts of the daily activities of defendant‘s Vietnam units, statements of family member s and the veterans who served with defendant, and the penalty phase testimony of various witnesses. Williams did not, however, meet with any of the
witnesses from the case.
In his interviews with Williams , defendant said when his mother abandoned him and his brothers, their electricity and water were turned off and they had to steal food to eat and use neighbors‘ swimm ing pools to bathe. Defendant further claimed he broke into other people‘s homes to observe what normal childhood and family life was like. He told Williams that he was isolated in the orphanage. He alluded to being sexually molested by his mother once, and told Williams th at he was once sexually fondled by his
father , had personally observed his father having sex with his half sister at least once , and ―quite frequently‖ heard his step brother screaming as Maurice sodomized him . Although
defendant refus ed to give details of the alleged molestation by his mother, saying ―he was going to take that to his grave,‖ Williams felt the brot her‘s reported sexual abuse by16

Vivian and the literature on sexual abuse

— which stated generally all the children are
sexuall y abused within a family that has sexual abuse

— c orroborated defendant‘s claim of abuse by his mother. Williams further not ed that observing sexual abuse could cause
PTSD. Williams opined defendant‘s PTSD was caused by childhood neglect and sexual abuse, as well as combat experiences in Vietnam. Defendant most likely developed
PTSD when he was about nine years old, and then was re traumatized in Vietnam, which
contributed to his then

- current PTSD. Although he believed defendant had PTSD when
he robbed Gi ll and committed the sexual offenses against Michelle I. and Samira S ., Williams could not say whether defendant was going through a dissociative episode when
he committed th ose offenses. William s conceded child molestation, robbery, and murder were not p art of the diagnostic criteria for PTSD. Although Williams found defendant to have an ―[i]nability to delay sexual gratification and generally poor sexual adjustment,‖ he did not consider defendant a pedophile or sex addict.
Defendant told Williams he h ad always had an active ―fantasy life,‖ had difficulty
at times distinguishing fantasy from reality , and relied on dreams for memory. When relating stories about Vietnam, defendant was not sure whether they really happened or
not. Williams believed this was dissociative behavior indicative of PTSD. It was clear to Williams defendant‘s Vietnam service was very important to him, ―a cornerstone in his
life. ‖ Williams acknowledged defendant made inaccurate or untrue claims about his military background and Vietnam experiences during the police interviews. He also was
aware defendant had altered a f orm regarding his military experience, listing training and awards he did not receive and operations in which he did not participate, and deleting
references to h is AWOLs. Williams agreed falsification of military records might indicate a ―factitious‖ PTSD disorder or malingering, and it was also possible defendant‘s false Vietnam stories were unrelated to PTSD and only ―embellishments of war stories.‖17

Based on his review of autopsy photographs and defendant‘s statements to law
enforcement officers , Williams opined defendant ―dissociated‖ at some point during the
SOS killings. As a result of this altered state of mind, although defendant knew robbery
was wrong a t the time, he did not ―really internally believe [] ‖ he had committed the murders until he participated in the reenactment. In support of this conclusion, Williams cited defendant‘s claim he felt like he was standing behind himself watching the crimes happen, his shooting the victims even though they were bound with tape and he already had the money, his viewing Smith as a threat when Smith broke his bonds, defendant‘s reference to ―the LT‖ or lieutenant instructing soldiers ―to always burn the village, never leave anyone behind, kill everyone,‖ and the physical distress defendant manifested in the video reenactment of the crime. Although defendant did not refer to his dreams during the reenactment as he had done in the first interview, Williams still f elt defendant was ―drifting‖ during the reenactment. Williams also related some of defendant‘s behaviors to experiences defendant had had in Vietnam, such as arming himself with a gun, using duct tape, and shooting the victims in the head even if they mig ht already have been dead. He conceded, however, a person who intentionally makes a decision to injure another or rob someone in order to take money would ―probably‖ not be acting due to PTSD.
Defendant also took a self

- administered and unsupervised tes t called the Dissociation Experience s Scale (DES). Based on the DES, Williams concluded defendant had a high level of dissociative experiences. Another self

- administered and unsupervised test, the Minnesota Multiph asic Personality Inventory 2 (MMPI

- 2 ),
i ndicated defendant was distrustful and moody, had poor social skills, and was not malingering. Two subscales within the MMPI

- 2 scored defendant positive for PTSD. However, defendant declined to answer five questions out of 568 , which prompted the testing service to stat e ―the pattern of his item omission should be carefully noted.‖18 d) Prior crimes Daniel and Olivia Negron knew Samira S . and her mother through church. W hile
defendant was residing in Samira ‘ s home, the Negrons attended social functions durin g which Samira sat on defendant‘s lap and appeared to be ―very flirtatious with‖ and ―coming on‖ to him in an inappropriate manner

. Damarie H

. , Samira ‘ s aunt, stayed at Samira ‘ s home for approximately six
months , during which time defendant was sleeping on the sofa

. Damarie noticed Samira did not shy away from the attention she received from defendant

. C oncerned about their relationship, she asked Samira if ― anything was going on ‖ with defendant

. Samira
became defensive , saying her mother was ―s tarting to get on her case about the same thing. ‖ Samira told her aunt defendant was ― very nice ‖ and she cared for him , and tried to imply there was something going on between defendant and her mother. According to
Damarie , Samira was not always truthful. Alth ough Samira bruised easily as a result of having lupus , Damarie did not recall seeing any bruises on her during the time defendant was staying with them. Deputy Sheriff Pierre Nadeau interviewed Samira in October 1987 . When asked
about bruising around h er eyes and swelling on the back of her head , Samira told Nadeau
she had been injured fighting with her mother

. When Deputy Sheriff Goran interviewed Samira, she never mentioned defendant had slapped her , but said she was afraid to say no

to defendant bec ause other men had previously slapped or beat her for refusing sex.
When Dr. Kerry English examined Samira, she also did not tell him that defendant had

s lapped her. Although she indicated defendant had twice a ttempted to have sexual
intercourse with her , she stated defendant stopped because it was painful for her.

3. The prosecution’s rebuttal in aggravation Detective Nottingham testified defendant told him during the Deadwood , South Dakota, interview that he had spent two years in Vietnam and served in the Special19

Forces. Nottingham further explained how he f ound the original and altered forms relating to defendant‘s military record

. II. DISCUSSION
A. Guilt Phase Issues
1. Pretrial shackling
Defendant claims he was denied his state and federal constitutional right s to due process and a fair trial when he was ― repeatedly and unnecessarily ‖ restrained during pretrial proceedings without an adequate showing of manifest need and without employing less restrictive alternatives. He argues th e shackling rendered his trial structurally unsound and resulted in prejudice. This claim is meritless.

a) Background
D uring the initial hearing on defendant‘s motion to suppress his statements to law
enforcement officers , defense counsel object ed to defendant‘s being shackled in the

courtroom

. T he trial court ordered defendant‘s waist chains removed and his han ds placed in regular handcuffs in front of his body

. A fter counsel continued to object to the
handcuffs , the prosecutor placed on the record various reas ons justifying the shackling , including that defendant was being tried for three capital murders and had specialized military training. The court ultimately ruled the ― limited restraints ‖ would remain for purposes of the current proceedings

. At the next hearing , defense counsel object ed to any shackling of defendant, indicating defendant would ―waive all appearances if he has to go through this shackling
business

. ‖ The court stated it was willing to order defendant not be restrained in the
courtroom and to be restrained only during trans i t in the public halls of the courthouse , a routine security measure in the San Bernardino courthouse not limited to defendant

. T he prosecutor concurred and t he court ordered defendant ― no t be shackled in the courtroom.‖20

Defendant subsequently filed a motion objecting to the use of restraints in the holding areas of the courthouse , where he might be kept for several hours before a court
appearance, and further requesting the case be transferred back to the Rancho Cucamonga courthouse, where the preliminary hearing had been held and where in

transit shackling apparently was not required

. T he trial court ultimately ordered that
defendant not be restrained in the holding facilities or the courtroom. However, it foun d
the standard procedure of shackling prisoners during public transit between the holding
cell and the courtroom to be a reasonable security precaution and denied without prejudice the request to transfer the case to Rancho Cucamonga

. Later, defendant ap peare d in court to personally waive his presence at that and all future pretrial hearings. Although his legs were shackled at the time, the court assured
defendant the shackles would be removed in the courtroom if he chose to participate in
the pro ceeding s. After defendant waived his presence , counsel asked he not be transported to court again until the penalty phase jury trial or transfer of the case to
Rancho Cucamonga

. The balance of pretrial proceedings as well as the guilt phase bench trial took pl ace in San Bernardino. Thereafter , defendant filed a written request to have the penalty phase tried in Rancho Cucamonga with jurors from its West End Judicial District. T he trial court denied the request in part, ordering that jury selection occur in Sa n Bernardino
but that the panel be drawn exclusively from the West E nd. Defendant was ordered to personally appear to address jury selection issues but his counsel objected, claiming that the court‘ s promises concerning shackling had not been kept and again objecting to the
in

- transit shackling. The court overruled the objection, finding it had accommodated
defendant throughout the proceedings. Subsequent pre

- penalty

- phase proceedings and the initial portion of jury selection (primarily hardship excusals and challenges for cause
based on the juror questionnaires) to ok place in San Bernardino, but the remainder of jury21

selection and the penalty phase trial took place in Rancho Cucamonga , after which there were no further shackling objections.

b) Ana lysis
N o defendant ―may be subjected, before conviction, to any more restraint than is necessary for his [ or her ] detention to answer the charge.‖ (§ 688.) However, an appellate court will not overturn a trial court‘s decision to restrain a defendant ― ab sent  ̳ a showing of a manifest abuse of discretion. ‘ ‖ ( People v. Wallace (2008) 44 Cal.4th 1032, 1050 ( Wallace ).)
The jurisprudence on shackling primarily concerns situations that might prejudice a jury. Such cases hold that under state law, in light o f the potential harm to the constitutional presumption of innocence and right to be present and participate in one‘s
defense , ―  ̳[ a ] defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury‘s presence , unless there is a showing of a man ifest need for
such restraints. ‘ ‖ ( Wallace , supra, 44 Cal. 4th at p. 1050 , quoting People v. Duran (1976) 16 Cal.3d 282, 290

– 291 ; see People v. Harrington (1871) 42 Cal. 165, 168

– 169;
see also Deck v. Missouri (2005) 544 U.S. 622, 624

. ) Defendant incorrectly assumes the propriety of shackling a defendant while in transit through the public hallways of a courthouse to attend a pretrial hearing , the factual scenario presented here, should be assessed under the same standa rd s used to determine
whether a defendant can be shackled while in the courtroom. Not so. The c onsiderations
of public safety and the need for restraints are different during prisoner transport than
when a defendant is seated in a secured courtroom

. We have long observed that a defendant may be restrained while in transit between a jail and the courtroom without reference to any particularized showing of need

. (See, e.g., People v. Ross (1967) 67 Cal.2d 64, 72 [― It was a reasonable practice for the sheriff to keep prisoners handcuffed while in transit, and the fact that the handcuffs were removed inside the courtroom rather22

than outside added to the security .‖]; People v. Metzger (1904) 143 Ca l . 447, 449 [ ―In many cases it is proper, and it is often necessary as a precaution, to manacle a prisoner to secure his safe conduct and guard against an escape while on the way from the jail to the
courtroom.‖ ]); see also People v. Hardy (1992) 2 Cal.4th 86, 180; accord, People v.
Jacobs (19 89) 210 Cal.App.3d 1 135, 1140

– 1141; People v. Du Bose (197 0) 10 Cal.App.3d 544, 549

– 550; U. S

. v. Leach (8th Cir. 1970) 429 F.2d 956, 962 .].) Accordingly, we see no abuse of discretion in the use o f physical r estraints during defendant‘s t ransit through the p ublic hallways of the San Bernardino courthouse without any particularized showing of need. The shackling was a reasonable and limited precaution taken to retain custody of an accused and was no more restraint than was necessary for his detention. The in

- tran sit physical restraints in no way affected the conduct or outcome of the trial, whether before judge or jury, nor did they impinge upon the presumption of innocence or defendant‘s right to present a defense. In his reply, defendant argues that given the necessity of shackling him for transport through the halls to his courtroom in San Bernardino, ―the unreasonable burden placed on this defendant should have been ameliorated by moving the proceeding to a different courtroom or to Rancho Cucamonga.‖ He cit es no authority to support this proposition, nor are we aware of any. As noted, d efendant‘s shackling for security during transport was a limited and reasonable imposition

. T he trial court was not required to

mov e the proceedings to a different courtroom or to the Rancho Cucamonga c ourthouse simply to obviate this precaution.

2. Waiver of the right to b e present at pretrial and guilt phase proceedings Defendant claims the trial court violated his state and federal constitutional rights to due process and a fair trial when it excused him from numerous pretrial proceedings and the guilt phase of his trial based on a waiver of his personal presence that allegedly was coerced by ―painful, excessive, and unnecessary shackling.‖ He additionally23

contends the tri al court violated sections 977 and 1043 by accepting involuntary waivers of his right to be personally present at the guilt phase of his capital murder trial without adequate justification.

a) Constitutional right to be present ―Under the Sixth Amendment, a defendant has the right to be personally present at any proceeding in which his appearance is necessary to prevent  ̳interference with [ his ] opportunity for effective cross

- examination.‘ [Citations.] Due process guarantees the right to be present at any  ̳stage

. . . that is critical to [the] outcome‘ and where the
defendant ‘ s  ̳presence would contribute to the fairness of the procedure.‘ ‖ ( People v.
Butler (2009) 46 Cal.4th 847, 861.) The state const itutional right to be present at trial , which is guaranteed by article I of the California Constitut ion, ―  ̳ is generally coextensive
with the federal due process right. ‘ ‖ ( Butler , at p. 861 .) A s a matter of both federal and state constitutional law, how ever, a defendant may validly waive his or her right to be present during a critical stage of the trial , provided the waiver is knowing, intelligent, and voluntary. ( People v. Moon (2005) 37 Cal.4th 1, 20

– 21 ( Moon ); People v. Jackson (1996) 13 Cal.4th 116 4, 1210 ( Jackson ) .)
Defendant premises his challeng e to the voluntariness of his right to be presen t waivers entirely on the argument that the waivers were induced a nd coerced by improper shackling . He contends he was forced to waive his presence ― simply because he could
not endure the effects of the wrist, waist and leg chains every day for more than eight
hours a day .‖ (Italics added.) The record demonstrates, however, that the trial court
relieved defendant of all physical restraints in the courtroom and holding cell prior to any evidentiary hearings or critical phases of the post arraignment proceedings. Thereafter,
defendant remained subjected to physical restraints only for the time it took to transport
him to and from the holding cell and the cour troom. Hav ing concluded that this limited
in

- transit shackling was not an abuse of the trial court‘s discretion, we further conclude24

the use of restraints in transit did not improperly coerce defendant to waive his presence
at the pretrial and guilt phase proceedings , particularly as the court permitted him to remain completely unrestrained in the courtroom

. An analogous situation was presented in People v. Price (1991) 1 Cal. 4th 324 ( Price ). After a hearing outside the presence of the jury during which the evidence
established the defendant had committed multiple acts and threats of violence against officers at the jail or while being transported to court , the court ordered he be secured to his chair in the courtroom by a single belly chain not visible to the jury . The defendant then stated ― he would rather be absent from the trial than appear before the jury in chains. The trial court allowed defendant to leave the courtroom and return to the jail, after informing defendant that his leaving would be c onstrued as a voluntary waiver of
presence. After giving the matter further thought, the court directed jail officers to bring defendant back to the courtroom, but defendant refused to dress in civilian clothing for the court appearance. The court then c oncluded that defendant had effectively waived his
presence. The remainder of the guilt phase proceeded in his absence. ‖ ( Id. at p p . 404

– 405.) On appeal, we found ― no constitutional infirmity in the trial court ‘ s decisions

. . . to accept defendant ‘ s act ions as a voluntary waiver and to proceed with the guilt phase in
defendant ‘ s absence. ‖ ( Price, supra , 1 Cal. 4th at p. 405.) Similarly here, we fin d no constitutional infirmity in defendant‘s waiver s of his right to be present at pretrial proceedings and the guilt phase, even assuming such waivers were motivated in part by
concerns about the in

- transit shackling that would have accompanied his appearing in

court. b) Statutory right to be present
The issue of s tatutory error is another matter . As we have p reviously acknowledged, ― defendant ‘ s statutory ability to waive his presence in a capital case is25

more circumscribed than the associated ability to waive his constitutional right. ‖ ( People
v. Rundle (2008) 43 Cal.4th 76 , 135 ( Rundle ); see also Jackson , supra , 13 Cal.4th at p. 1211.) Specifically, s ection 977 requires any defendant charged with a felony to ―be personally present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is ta ken before the trier of fact , and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be pe rsonally present, as provided by paragraph (2).‖ (§ 977, subd. (b)(1), italics added.) Section 1043 provides that a felony defendant ― shall be personally present at the trial ‖ ( id. , subd. (a)), but that the trial may continue in a defendant‘s absence if the defendant (1) persists in disruptive behavior after being warned ( id. , subd. (b)(1)); (2) is voluntarily absent in ―[a]ny prosecution for an offense which is not punishable by death ‖ ( id. , subd. (b)(2), italics added); or (3) has waived his rights ― in accordance with S ection 977 ‖ ( id. , subd. (d)). R ead together, the statutes provide that a capital defendant cannot voluntarily waive his right to be present during the proceedings listed in section 977, including those portions of the trial in which
evide nce is taken, and he may not be removed from the courtroom pursuant to s ection 1043 unless he has been disruptive or threatens to be disruptive.
D efendant correctly contends his absence during the guilt phase violated sections
977 and 1043. However, assuming defendant has not forfeited his claim of statutory

error by failing to raise it below (see Rundle, supra, 43 Cal.4th at p. 135), th e error does not warrant reversal of the judgment because it is not reasonably probable the result of
the trial woul d have been more favorable to defendant absent the error . ( See People v.
Weaver (2001) 26 Cal.4th 876, 968.) D efendant fails to explain how he could have effectively assisted counsel in subjecting the prosecution‘s case to meaningful adversarial
testin g. W e therefore conclude the violation s of sections 977 and 1043 w ere harmless. ( See, e.g., Moon, supra, 37 Cal.4th at p. 21

. )26

R elying upon Hicks v. Oklahoma (1980) 447 U.S. 343, 346, defendant also contends the statutory violation deprived him of his federal constitutional procedural due process rights because the ―arbitrary‖ violation of section 977 and section 1043 allegedly deprived him of a state

- created ―liberty interest‖ in the proper applicati on of state law

. We have previously rejected this exact argument

. (See Rundle , supra, 43 Cal.4th at p. 136.)
3. Waiver of the right to a guilt phase jury
Defendant claims the ―wanton infliction of pain‖ caused by the daily courthouse shackling not only coerced a waiver of his right to be present at the guilt phase, but also resulted in the involuntary waiver of his right to a jury trial at the guilt phase in order to avoid the alleged ―embarrassment and prejudice‖ attendant to being tried by a jury while he was not present. He argues the failure to obtain a knowing and intelligent waiver of his right to a jury trial violated his state and federal constitutional right to due process and requires the reversal of his conviction. As with his claim concerning the waiver of his right to be present, this claim is without merit. At a pretrial status conference, the prosecutor informed the court he had discussed
with defens e counsel the possibility of having a bench trial for the guilt phase

. Defense

c ounsel confirmed, stating ― I am inclined to agree to recommend to my client that if he ‘ s agreeable, the n we ‘ re agreeable to a court trial on the guilt phase [, although w ] e wou ld
still want a jury trial in the penalty phase .‖ At the next status conference, defense counsel confirmed defendant had filed a written waiver of his right to a jury trial of the guilt phase, stating, ―[W]e don‘t wish to have a jury decide [the issue of defendant‘s guilt or innocence,] just the court.‖ The court indicated a personal appearance by defendant was required for the waiver to be effective. Defendant subsequently appeared in person via closed

- circuit television to waive his right to a guilt p hase jury trial. In response to questioning by the court, defendant27

indicated he understood (1) he had an absolute right to a jury trial in both the guilt and penalty phases of his trial, (2) in a jury trial, if one of the 12 jurors was not convinced beyo nd a reasonable doubt that defendant was guilty, the jury could not return a guilty verdict, (3) if he waived his right to a jury trial, instead of 12 people deciding the issue of his guilt or innocence, the judge alone would make that decision, and (4) it could be easier for the prosecution to convince only one person, as opposed to 12, that defendant was guilty beyond a reasonable doubt. Defendant nevertheless stated he wished to waive his right to a jury trial for the guilt phase, confirming he had disc ussed the issue with his counsel, who concurred in the waiver. As relevant here, t he Sixth Amendment to the United States Constitution provides :

― I n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been
committed

. . . . ‖ (See also Cal. Const., art. I, § 16 (―T rial by jury is an inviolate r ight and
shall be secured to all .

. . .‖].) Although trial by jury is a fundamental constitutional right , a criminal defendant may waive the right

. ( See Adams v. U nited States (1942) 317 U.S. 269, 27 5; see also Cal. Const., art. I, § 16 .) However, ―[ a ] s with the waiver

. . . of several other constitutional rights

. . . long

. . . recognized as fundamental, [in order to be valid] a defendant ‘ s waiver of the right to jury trial must be knowing and intelligent, that is,  ̳ ―  ̳ made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it , ‘ ‖ ‘ as well as voluntary ,  ̳ ―  ̳ in the sense that it was the product of a free and deliberate choice rather than intimidati on, coercion, or deception.‘ ‖ ‘ ‖ ( People v. Collins (2001) 26 Cal. 4th 297 , 305.) The conclusion defendant‘ s waiver of a guilt phase jury was knowing, intelligent, and voluntary is supported by his clear express waiver, made in open court, with
counsel ‘ s consent and agreement , and after a full explanation from the court of the right

a nd the consequences of the waiver

. Conversely, the record does not support defendant‘s contention that his waiver was induced by the ―inhumane courtroom restraints in the San28

Bernardino County Courthouse.‖ Having been relieved of all physical restraints in the
courtroom and holdin g cell well before the guilt phase commenced, defendant would have been restrained during the trial only for the time it took to transport him to and from
the holding cell and the courtroom. Having concluded this limited in

- transit shackling
was not an ab use of the trial court‘s discretion and did not improperly coerce defendant to waive his right to be present, we further conclude it did not improperly coerce defendant‘s waiver of his right to a jury trial for the guilt phase, particularly as he was permi tted to remain completely unrestrained while in the courtroom

.

4. The guilt phase bench trial as tanta mount to a “slow plea of guilty ”
Defendant claims defense counsel failed to mount a defense at the guilt phase

— presenting no affirmative witnesses, eviden ce, or defenses and conceding defendant‘s guilt on all the charges

— and contends this failure was the ― functional equivalent of a slow plea of guilty ‖ that denied defendant his state and federal constitutional right s to enter a knowing and voluntary guilty plea following a full advisement of rights and express waiver of those rights

. Respondent argue s that defendant forfeited this claim by repeatedly rejecting the trial court‘s offers to set aside the guilt phase ver dict and grant him a new guilt phase trial with or without a jury, or, in the alternativ e, that defendant is barred from raising it under the doctrine of invited error. We need not decide the forfeiture and invited error issues, however, because even assu ming the claim has not been forfeited and is not barred, it lacks merit.
In In re Mosley (1970) 1 Cal.3d 91 3 , we stated that if a defendant‘s stipulation to
submit a case for decision on the basis of the transcripts of the preliminary hearing is, in
the circumstances of the particular case, ― tantamount to a plea of guilty, ‖ it must be accompanied by Boykin

- Tahl advice and waivers , that is, the advisement and e xpress personal waiver of three specific constitutional rights

— the rights to a jury trial, to

con front and cross

- examine witnesses, and against self

- incrimination

. ( Mosley , at p. 924 ;29

id. at p. 925 & p. 926, fn. 10; see Boykin v. Alabama (1969) 395 U.S. 238 ; In re Tahl (1969 ) 1 Cal.3d 122 .) The phrase ―  ̳ tantamount to a plea of guilty ‘ ‖ was used ― to explain [ the ] extension of the Boykin

- Tahl requirements to submissions in which the guilt of the defendant was apparent on the basis of the evidence presented at the preliminary hearing and in which conviction was a foregone conclusion if no defense was offered .‖ ( Bunnell v. Superior Court (1975) 13 Cal.3d 592, 602 ( Bunnell ) .) 2 We have further suggested that ― a  ̳ slow plea ‘ of guilty ‖ may occur where a defendant submit s the issue of his or her guilt of the charged offense on the basis of th e police repo rt ( In re Jennings (2004) 34 Cal. 4th 254 , 265, fn. 5) or ―other documentation‖ ( People v. Watson (2007) 42
Cal.4th 822 , 826, fn. 3 ) , or where a defendant in a capital case submits the issue of penalty on the transcript of prior proceedings ( People v. Robertson (1989) 48 Cal.3d 18 , 39 ( Robertson )).
In Rober t son , we explained that ―submission‖ within the meaning of the slow plea doctrine ― is defined by the rights a defendant surrenders .‖ ( Robertson , supra, 48 Cal. 3d at p. 40.) ―Although the parties may reserve the right to present additional evidence, t he essential components of a submission are waiver of a jury trial and, with respect to the witnesses who testified in the prior proceedings, waiver of the right to confrontation in the present proceeding

. [Citations.] When the submission is a  ̳ slow plea ‘ or  ̳t antamount to a plea of guilty, ‘ the defendant also gives up his privilege against self

- incrimination. ‖ ( I bi d. ; see Wright

, supra, 43 Cal.3d at p. 495 [― If the submission does not amount to a
slow plea of guilty, there is no involuntary confession of guilt.‖].) Defendant‘s stipulation to a bench trial for the guilt phase in this case was not tantamount to a plea of guilty. (See Robertson , supra, 48 Cal. 3d at p. 40; People v.

2 I n Bunnell , as a matter of judicial policy we mandated Boykin

- Tahl advisements and waivers in all cases submitted for decision on the basis of the transcript of the preliminary hearing . ( Bunnell , supra , 13 Cal.3d at p. 605.) But unless the submission
was tantamount to a plea of guilty, a Bunnell error requires reversal only if the error was prejudicial to the defendant. ( People v. Wright (1987) 43 Cal.3d 487 , 494

– 495 ( Wright ).)30

Hendricks (1987) 43 Cal.3d 584, 592

– 594 ; Wright , supra, 43 Cal.3d at p. 497

. ) Although
i n agreeing to the stipulation d efendant gave up his right to a jury trial, he was advised of and personally waived this right. In so stipulating he did not give up the right t o confront ation and cross

- examin ation or to remain silent . To the contrary, defendant enjoyed a full court trial during which he confronted , cross

- examined , and attempted to impeach the prosecution witnesses, and exercised his right against self

- incrimina tion by not taking the witness stand. Having fully exercised these rights , there was no need for defendant to waive them. Additionally, d efense counsel conceded neither guilt nor the necessary elements of the various offenses , but rather required the pro secution to prove every element of every crime through the testimony of 16 witnesses and attempted to raise reasonable doubt in various areas. As counsel stated in closing argument, although defendant may have wished to take responsibility for the crimes, ―failing a settlement that I can live with, as a lawyer I must contest the charges .‖

5. The admission of defendant’s statements to law enforcement officers and his videotaped reenactment
Defendant claims the trial court erred in admittin g in both the guil t and penalty phases of the trial the contents of his custodial interrogations and his videotaped
reenactment at the SOS s tore , in violation of his state and federal constitutional rights to
due process, to be free from self

- incrimination, and to be subjected to custodial interrogation only with the assistance of counsel. According to defendant, law enforcement officers deliberately violated Miranda, supra, 384 U.S. 436 , ignored an unambiguous request for counsel, and used a variety of coercive tacti cs that, when considered in their totality, demonstrate his statements were involuntary. He argues that as a result, the incriminating statements were the product of repeated and intentional violations of his rights under the Fifth, Sixth, and Fourteenth Amendments to the U nited
S tates Constitution and article I, section 15 of the California Constitution, and that the allegedly erroneous admission of the confessions was prejudicial.31

As discussed below, we conclude defendant understood the Miranda warning s he was given, validly waived his Fifth Amendment rig hts to remain silent and to an attorney,
and made uncoerced statement s to law enforcement officers. We therefore reject defendant‘s arguments regarding his taped statements and the video reenactment.

a) B ackground The prosecution first sought to introduce defendant‘s various interviews and the
video reenactment during the preliminary hearing . Defense counsel objected . At a hearing on the issue, a m agistrate j udge found the detectives did not violate Mira nda,

supra, 384 U.S. 436 , did not make any false statements inducing the confession s, and did

not improperly fail to clarify a request for counsel . The judge further concluded defendant was properly advised of and knew his rights, and the statements and the video

reenactment were made freely and voluntarily

. Before t he guilt phase, defense counsel moved to suppress the custodial

statements , any re sulting admissions, and the video reenactment. The trial court held an evidentiary hearing at which evidence was presented concerning defendant‘s previous interrogations by law enforcement officers in April 1982 and January 1988 in connection with charges of oral copulation with Michelle I . and child molestation of Samira S ., respectively

. In each instance, defendant was advised of his Miranda rights and asked if
he understood them, whether he wanted to talk about the case, and whether he wanted a lawyer; in each instance defendant agreed to talk to the officers without a lawyer and either wrote down his responses to the waiver questions or signed a waiver statement. Ontario Police Department detectives testified about an exchange that occurred during th e preliminary six minutes of their initial meeting with defendant in Deadwood,
South Dakota before they gave him the first Miranda warning. After introductions and general questions about defendant‘s welfare, defendant asked detectives whether his girlfri end, Costello , was in jail. Detective Ortiz responded, ―She‘s in our custody. She‘s32

safeguarded.‖ 3 When defendant claimed that Costello was ―not involved in any of this‖ and ―shouldn‘t be in custody,‖ the detectives responded, ―[T]hat‘s wha t we need to find out from you.

. . . And this is your opportunity, okay .

. . . We both have [the] suspicion

. . . that .

. . she didn‘t have nothing [ sic ] to do with anything that happened before .

. . you started running. But basically we wanted to find out from you.‖ The y also related
arriv ing at Folsom Prison to transport defendant to the video reenactment. The trial court additionally considered the preliminary hearing testimony of three law enf orcement officers who were involved in the traffic stop and arrest of defendant. Finally, several police officers testified concerning the department ‘s practice at the
time of defendant‘s interrogations of deliberately omit ting the ― express waiver ‖ questi on from Ontario Police Department form 4.17, from which Miranda advisements were read. That question asked whether, having the Miranda rights in mind, the suspect wished to
talk to about the case. The practice of omitting this question was based on polic e training, information gleaned from prosecutors, and confirmation from the cou rts indicating such waiver was unnecessary

. In October 1992, after defendant was interrogated, the San Bernardino County District Attorney‘ s O ffice issued a memorandum advising the d epartment to ask the express wai ver question in their interrogations

. With respect to the motion to suppress, the trial court found the detectives‘ comments during the first six minutes of the initial Deadwood interview , prior to giving a
Miranda admonition about Costello being ―in custody‖ and ―safeguarded,‖ to which defendant responded by protesting Costello‘s innocence , constituted psychological inducement or ―softening up‖ likely to evoke incriminating statements. Therefore, defendant‘s responses during that time had been obtained in violation of Miranda . As to
his later statements after the first Miranda admonition, the court found by a

3 It appears that Costel lo in fact was staying at a hotel with a law enforcement matron.33

preponderance of the evidence under the totality of the circumstances that defendant
unde rstood his constitutional rights , and his implied waiver of those rights ― was voluntary and was a result of his own desire to make statements ‖ and not t he product of the prior improper influences

. The trial court also found that: (1) defendant‘s
incrimin ating statements were not induced by improper police conduct; (2) there was no bad faith intent to violate his Miranda rights, as the detectives had a good faith belief that the practice of not obtaining an express waiver was lawful ; (3) defendant‘s ambigu ous comment about having ―someone here to talk for me‖ did not constitute an invocation of the right to counsel ; and (4) n o further Miranda advisements were required for the second, third and fourth Deadwood interviews because their purpose was merely to briefly c l arify matters covered in the first interrogation. With respect to the video reenactment, the court found (1) S ergeant Lewis ‘s inquiry at Folsom Prison concerning whether defendant was willing to cooperate with
autho rities in an ―ongoing investi gation of a murder in a warehouse‖ was not a custodial interrogation requiring a Miranda warning, and nothing Lewis said or did improperly induced defendant‘s agreement to cooperate; (2) later , more specific questioning by the detectives who went to the p r ison to retrieve defendant for the reenactment was improper
because an affirmative answer to the question whether defendant remained willing ― to reenact the crimes ,‖ in and of itself , would be incriminating , but this one question did not
influence defendan t‘s previous agreement to cooperate; and (3) the reenactment was validly conducted after a full Miranda advisement with an express waiver. Consequently, the court ruled defendant‘s multiple statements and confessions

wer e admissible in the prosecution‘s case

- in

- chief during both the guilt and penalty phase s of the trial , with the exception of the first six minutes of the initial interview and
the in

- prison que stioning of defendant specifically about reenacting the crimes.34 b) Analysis Defendant advances various arguments in support of the proposition the trial court erred in failing to suppress his statements to law enforcement officers and the video
reenactment as obtained in contravention of his constitutional right against compelled
self

- incrimination . None of these arguments are persuasive.

(1) Alleged deliberate violation of Miranda Defendant argues his custodial statements should have been suppressed because they were obtained after a deliberate violation of Miranda, supra, 384 U.S. 436 . This deliberate violation allegedly occurred when, during the first i nterview, Detectives Nottingham and Ortiz intentionally declined to seek an express waiver of defendant‘s right to silence after giving the Miranda advisement.
I n general, if a cu stodial suspect , having heard and understood a full explanation
of his or her Miranda rights, then makes an uncompelled and uncoerced decision to talk,
he or she has thereby knowingly, voluntarily, and intelligently waived them. ( Colorado v. Spring (1987) 479 U.S. 564, 574.) L aw enforcement officers are not required to obtain an express waiver of a suspect‘s Miranda rights prior to a custodial interview. ( See
North Carolina v. Butler (1979) 441 U.S. 369, 3 73 ( Butler ) [― An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to
establish waiver

. ‖].) Rather, a valid waiver of Miranda rights may , as here, be inferred from the defendant‘ s words and actions

. ( Butler , at p. 373

. ) As the detectives who interrogated defendant were not required to obtain an express waiver of the right to silence from him, the intentional failure to do so was not a de liberate Miranda violation requiring the suppression of his subsequent statements.

(2) Alleged coercion of defendant’s custodial statements Alternatively, defendant contends his incriminating custodial statements were involuntary in light of a combination of other factors, including his compromised mental35

state, the detectives‘ use of deception, and their implied promise to help his companion,
Costello.
The test for the voluntariness of a cu stodial statement is whether t he statement is

―  ̳the product of an essentially free and unconstrained choice‘ ‖ or whether the
defendant ‘ s ―  ̳will has been overborne and his capacity for self

- det ermination critically impaired‘ ‖ by coercion. ( Schneckloth v. Bustamonte (1973) 412 U.S. 218, 225.) N o single factor is dispositive ; ―rather courts consider the totality of [ the ] circumstances. ‖ ( People v. Williams (1997) 16 Cal.4th 635, 661 ( Williams ); see People v. Neal (2003) 31 Cal.4th 63, 79 ( Neal ) .) Relev ant considerations include ―  ̳the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its
contin uity‘ as well as  ̳the defendant‘ s maturity [citation]; education [citation]; physical
condition [citation]; and mental health.‘ ‖ ( Williams , at p. 660 ; see Neal , at p. 84 [appellate review entails ―  ̳ inquiry into all the circumstances, ‘ including  ̳ evaluation of [defendant‘s] age, experience, education, background, and intelligence ‘ ‖ ].)
―In assessing allegedly coercive police tactics,  ̳[t]he courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involunt ary and unreliable.‘ ‖ ( People v. Smit h (2007) 40 Cal.4th 483, 501; see, e.g., People v. Kendrick (1961) 56 Cal. 2d 71 , 84 ( Kendrick ) [―a confession has been held involuntary and inadmissible where it was
obtained as a result of .

. . such inducements as a promise to do for an accused all that
could be done [citation] or to protect the accused‘ s family from retaliation [citation] or a statement that if the accused confessed the punishment would be lighter [citation] or that
it would be better for him to confess [citation] or by threats to hold t he accused‘s mother‖].) Additionally, a l though coercive police conduct is a ne cessary predicate, such
conduct does not compel a finding that the resulting statement is involuntary. ( People v.
Jablonski (2006) 37 Cal.4th 774 , 814 ( Jablonski ).) A confession is involuntary only if36

the coercive police conduct at issue and the defendant ‘ s statement are causally related. ( Colorado v. Connelly (1986) 479 U.S. 157, 164, fn. 2, & 167; Jablonski , at p. 814 [The police misconduct ―  ̳must be .

. . the ―prox imate cause‖ of the statement in question, and not merely a cause in fact.‘ ‖]; see, e.g., People v. Guerra (2006) 37 Cal.4th 1067, 1095

– 1096 [the defendant‘s statements were not coerced by false threats of arrest; the sole cause appearing in the record fo r his cooperation during the interview was the desire to exculpate himself

]; Williams , supra, 16 Cal.4th at p. 661 [promises of leniency were ― not th e motivating cause of [ the ] defendant‘s admissions ‖ ]

. ) Here, even assuming, as the trial court found, the detectives engaged in improper ―softening up‖ at the outset of the first interview by claiming defendant‘s companion, Costello, was in custody and implying defendant could exonerate her by speaking to
them , the totality of the circumstances of the interrogation support the conclusion defendant‘s statements given after he was later advised of his Miranda rights were voluntary and not the product of psychological inducement. The detectives‘ comments
concerni ng Costello were relatively brief, lasting only three

- to

- four minutes of the preliminary six minutes of the interview and fell ― far short of a threat to arrest ‖ Costello
unless defendant confessed. ( Kendrick , supra , 56 Cal.2d at p. 86. ) Importantly, the comments were immediately followed by the first of two Miranda advisements given to defendant, following both of which defendant stated unequivocally he understood the rights read to him and continued to talk to the detectives and to answer their questions

. (C f. People v. Honeycutt (1977) 20 Cal .3d 150, 158, 160 [a half

- hour of ― clever softening

- up , . . . disparagement of the victim and ingratiating conversation‖ induced the defendant to agree to talk about the homicide well before being advised of his Mir anda rights]

. ) During the interview, defendant indicated several times that , for various personal reasons, he had decided beforehand to talk to the detectives about the case. Defendant‘s

pre

- interview decision is the sole reason appear ing in the record for his cooperation. It37

thus does not appear the detectives‘ alleged attempts at softening up defendant overcame his will to resist or his ability to freely determine whether he wanted to talk to the detectives, such that it could be sai d the short discussion regarding Costello was the proximate cause of defendant‘s later incriminating statements.
We further note n either the length nor phys ical circumstances of the interrogation appear to have been coercive ; the in itial interview was spr ead over a four

- hour period
with the detectives offering defendant both food and drink

. Nor was the tone of the questioning as evidenced in the transcript particularly harsh or accusatory

. Additionally, at the time of the interview, defendant was ―a man of mature years with an extensive criminal history.‖ ( Jablonski , supra, 37 Cal.4th at p. 81 5 .) In his 42 years, he had had extensive prior contacts with law enforcement and the criminal justice system, including having served two prior prison terms and one prior county jail term. In connection with his felony convictions, defendant twice had been interviewed by law enforcement officers, during which he was advised of and executed express written
waivers of his Miranda rights. Finally, with respect to de fendant‘s mental state, it does not appear the detectives exploited any psychiatric problems in order to produce the incriminating statements.
Before interviewing him, the detectives inquired about defendant‘s general welfare and
mental state , and in resp onse he expressed no concerns regarding his well

- being or treatment, stating he had slept 24 hours straight. Defendant nevertheless argues his soft

- spoken nature, various references to dreams and experiences in the Vietnam War, and ―consistently vague‖ re sponses demonstrate his fragile mental state during the interview. We disagree. A fair
assessment of th e interview in its entirety shows defendant responded to the detectives ‘ inquiries while exhibiting normal emotions to be expected of a murder suspect facing his accusers and reliving the details of a horrible crime. That a m urder suspec t is soft

- spoken
is less an indication of mental illness than an understandable and expected reaction of a38

person confronted with committing such horrendous c ri mes. Nor does the circumstance defendant may have dream ed about the homicides and the ir likely ramifications necessarily show the existence of mental defect . Although he became emotional at times, defendant also took considerable time to weigh his responses before answering the detectives‘ questions. Some answers may have required clarification, but they were generally responsive. We note the detectives believed the references to Vietnam were defendant‘s attempt to build a defense. Lastly, defendant‘s inc riminating statements were not rendered involuntary by any
mental disease or defect . Even if some of defendant‘s behavior was irrational or bizarre, there is no evidence his ― abilities to reason or comprehend or resist were in fact so
disabled that he was incapable of free or rational choice. ‖ ( In re Cameron (1968) 68
Cal.2d 487 , 498; see, e.g., People v. Frye (1998) 18 Cal .4th 894, 9 88 ( Frye ) [defendant‘s consumption of alcohol did not so impair his reasoning that ― he was incapable of freely
and rational ly choosing to waive his rights and speak with the officers ‖ ] ; People v. Mayfield (1993) 5 Cal.4th 142, 204 [ defendant , who throughout the lengthy interview sounded lucid, spoke clearly if somewhat slowly , and a t times ― engaged in animated, jocular, prideful, indignant or defiant conversation ‖ wi th the detectives, was not mentally impaired when h e made his audiotaped statement].)

(3) Failure to terminate the interrogation after defendant allegedly invoked his right to counsel
Defendant contends his incri minating statements should have been suppressed because detectives ignored an unambiguous request for an attorney. He claims he invoked his right to counsel during the first interview when he stated , ―I committed an armed robbery yes. Should I have someb ody here talking for me, is this the way it‘s supposed to be?‖ We conclude defendant‘s vague question did not qualify as an unequivocal inv ocation of the right to counsel requiring the cessation of questioning

.39

Once a defendant has waived his or her right to counsel, as defendant impliedly did at the outset of the interview, if that defendant has a change of heart and subsequently
invokes the right to counsel during questioning , officers must cease int errogation unless
the defen dant‘ s counsel is present or the defendant initiates further exchanges, communications, or conversations. ( See Edwards v. Arizona (1981) 451 U.S. 477, 484

– 485.) For a statement to qualify as an invocation of the right to an attorney, however, the
defenda nt ― mus t unambiguously request counsel

. . . . [ H ] e must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement t o be a request for an attorney.‖ ( Davis v.
United States (1994) 512 U.S. 452, 459 ( Davis ).) ―[A] reviewing court

— like the trial
court in the first instance

— must ask whether, in light of the circumstances, a reasonable
officer would have understood a defendant‘s reference to an attorney to be an

un equivocal and unambiguous request for counsel, without regard to the defendant‘ s subjective ability or capacity to articulate his or her desire for counsel, and with no further requirement imposed upon the officers to ask clarifying questions of the
defend ant. ‖ ( People v. Gonzalez (2005) 34 Cal.4th 1111, 1125 ( Gonzalez ); see People v.
Williams (2010) 49 Cal. 4th 405 , 428 [―[T] he question of ambiguity in an asserted invocation must include a consideration of the communicative aspect of the invocation

— what wo uld a listener understand to be the defendant‘ s meaning .‖].) Here, before the disputed exchange, defendant volunteered, ― I know what you guys are getting at

. . . . I also want you to know that the reason why I‘m so calm is because I‘m where I belong

. ‖ When asked to clarify what he meant , defendant replied,

― You know as well as I do that I committed an armed robbery in Ontario ‖ at ―Mike‘ s company.‖ When Detective Ortiz indicated he wanted additional clarification, defendant
reiterated , ―I committed an a rmed robbery yes,‖ and then asked , ―S hould I have somebody here talking for me, is this the way it‘ s supposed to be?‖ Far from unambiguously requesting counsel, defendant appeared to be expressing frustration at the40

detectives‘ attempts to clarify his ini tial statements regarding the armed robbery

. A t

most , a reasonable officer could have understood defendant‘s inquiry as an indication he might want an attorney , in which case the detectives still would not have been required to terminate the interrogation . (See Davis , s upra, 512 U.S. at p. 459 [ ―[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.‖ ].) Defendant complains the detectives should have asked questions to clarify whether he was invoking his right to counsel

. There is no requirement law enforcement officers interrupt an interrogation to ask clarifying questions following a suspect‘s ambiguous or equivocal responses that might or might not be const rued as an invocation of the right to an attorney

. ( Davis , s upra, 512 U.S. at pp. 461

– 462; see People v. Farnam (2002) 28 Cal.4th 107, 181 .) We again note defendant had extensive pri or contacts with the police, including two interviews in which he expressly waived his right to counsel. T he
detectives in this case ― could reasonab ly have assumed that defendant was c apable of making an unequivocal request for counsel if he so desired.‖ ( Gonzalez, supra, 34
Ca l .4th at p. 1127.) Moreover, after defendant‘s question and before the resumption of questioning, defendant was again advised of his Miranda rights, expressly s tated he
understood them , and continued to talk to the detectives rather than invoke his right to counsel or to silence. Later in the interview, d efendant specifically confirmed the intent to waive his right to counsel when he stated he did not want to fight the case , did not need a lawyer , did not ― believe in the routine of lawyers, or courts and all that ,‖ and did not feel a lawyer could do anything for him.
C onsidering the totality of the circumstances, ―[s] hould I have somebody here talking for me ‖ was not an unambiguous request for counsel requiring detectives to cease interrogating defendant. (See, e.g., Gonzalez, supra, 34 Cal .4th at p. 1126 [defendant‘ s conditional statement that he wanted a lawyer ― if he was going to be charged ‖ was not an41

inv ocation of right to counsel ]; People v. Crittenden (1994) 9 Cal.4th 83, 124, 128

– 131 ( Crittenden ) [defendant‘s query

— ―  ̳ D id you say I could have a lawyer? ‘ ‖

— w as a clarification of rights rather than an unambiguous invocation]; People v. Johnson (1993)
6 Ca l. 4th 1, 27 [defendant‘s statements that ―  ̳ Maybe I ought to talk to my lawyer, you might be bluffing, you might not have enough to charge murder ‘ ‖ and that his mother would secure ―  ̳ a high price [ d ] ‘ lawyer ‖ was not an invocation].)

(4) Failure to suppress the videotaped reenactment Finally, defendant raises vari ous additional challenges to the admission of the videotaped reenactment of the crimes. First, relying on People v. Bonillas (1989) 48
Cal .3d 757, and People v. Thompson (1980) 27 Cal.3d 303, defen dant claims the reenactment should have been suppressed because the dete ctives took advantage of a post arrest delay in his arraignment , suggesting had his arraignment not been delayed, counsel would have been appointed and likely would have advised defendant not to participate in the reenactment. Bonillas and Thompson , however, involved defendant s who had been arrested for the crimes that later form ed the basis for their arraignments

. ( See Bonillas , at p. 787; Thompson , at p. 328 .) In this case , defendant was arrested in
South Dakota and returned to Folsom Prison for a parole violation unrelated to the SOS
crimes. No arrest warrant for the SOS homicides had issued before the reenactment. Accordingly, Bonillas and Thompson are i napposite. In the alternative, defendant argues his Sixth Amendment right to counsel attached
when he became the focus of the SOS investigation and the delay violated his right to counsel regardless of the fact he was arrested and confined for a parole vio lation. However, ―[a] criminal defendant‘ s right to the assistance of counsel under the Sixth
Amendment does not exist until the s tate initiates adversary judicial criminal proceedings, such as by formal charge or indictment. ‖ ( People v. DePriest (2007) 42
Cal .4th 1, 33 ( DePriest ) ; see Frye , supra, 18 Ca l .4th at p. 987; see also People v.42

Huggins (2006) 38 Cal .4th 175, 244

– 245.) Moreover, the ― right to counsel is  ̳ offense specific ‘ ‖ and ― may be asserted only as to those offenses for which crimin al proceedings have formally begun. ‖ ( DePriest, supra, at p. 33; People v. Webb (1993) 6 C a l .4th 494, 527.) Before the reenactment, there were no adversarial judicial proceedings, formal charges , or indictment pending in connection with the SOS crimes. Thus, defendant‘s right to the assistance of counsel for those offenses had not attached at the time of the

reenactment. Defendant relies on Escobedo v. Illinois (1964) 378 U.S. 478, 490

– 491 to argue the right to counsel attached when he bec ame the focus of the detectives‘ investigation. Defendant‘s reliance on Escobedo is misplaced. As we have previously explained, the high court has made clear the right to counsel at issue there was related to the Fifth Amendment privilege against self

- in crimination and prophylactic measures available to suspects undergoing custodial inter rogation , and not the Sixth Amendment right to
counsel. ( DePriest, supra, 42 Cal.4th at p. 34, fn . 9 .) Moreover, the ―focus‖ rule defendant urges tha t might once have a pplied in the context of the right against self

incrimination , has since been repudiated

. ( See, e.g., Stansbury v. California (1994) 511
U.S. 318 , 326 .) Finally, defendant claims the reenactment should have been suppressed because his cooperation was improperly induced by Sergeant Lewis ‘s ― promise ‖ t hat he would be
transferred out of Folsom Prison. The record belies this claim

. As the trial court found, Lewis simply asked defendant whether he was willing to cooperate with an ongoing investigation and if so, detectives would be picking him up that weekend

. Despite defendant‘s concerns about being placed in administrative segregation and a high security unit, Lewis specifically testified that no promises concerning defendant‘s housing
situation at the prison were made to induce his cooperation. Additionally, any prior softening up regarding Costello that might have occurred during the initial interview was43

not a factor at t he time of the reenactment, as Costello had long been cleared of any suspected w rongdoing. The reenactment thus was properly admitted.

6. Cumulative prejudic e Defendant contends that even if the alleged errors at the guilt phase of the trial were individually harmless, they were cumulatively prejudicial. We have found a single

error , a violation of defendant‘s statutory right to be present, and, assuming the issue was not forfeited, concluded that error was harmless. There are no additional errors to cumulate and therefore no cumulative prejudice.

B. Penalty Phase Issues
1. Jury selection issues a) Exclusion of Hispanic jurors from the penalty phase jury. Defendant alleges that the jury selection procedures utilized in the Rancho Cucamonga District of the San Bernardino County Superior Court s ystematically excluded Hispanics and that the trial court erred in denying his motion to quash the jury venire. As a result, he contends, his penalty phase jury was not composed of a representative cross

- section of the community , depriving him of his right to due process
and a fair trial before an im partial jury in violation of the Sixth and Fourteenth
Amendments to the United States Constitution and a rticle I, section 16 of the California
Constitution . The error, he argues, is structural, requiring automatic r eversal

. We conclude the trial court d id not err in denying defendant‘s motion to quash , as defendant failed to make a prima facie showing o f the s ystematic exclusion o f H ispanic j urors . This claim therefore is without merit.

(1) Background During penalty phase jury selection, defendant filed a motion to quash the jury panel on the ground Hispanic s were systematically excluded from those summoned for44

service in the Rancho Cucamonga District

. The trial court conducted a hearing on the motion, in which the following evidence was presented

. Shirley Stoudt, the Deputy Jury Commissioner o f San Bernardino County Superior
Court , testified concerning how potential jurors were summoned from a master list

c ompiled from D epartment of M otor V ehicles and Registrar of Voters records , and then processed according to statutory exemptions as well as the California R ules of Court

. T he j ury c ommissioner‘ s office was not aware of the race, religion , or ethnic background
of the jurors when excusing or exempting them for service and , according to Stou dt , did

no thing to keep any minority group off the jury panels. A voluntary countywide survey
of potential jurors showed 4.3 percent were excused for language difficulties and 1.78 percent were excused for lack of citizenship. Although these figures incl uded all langu ages and noncitizens and the individuals were not asked to state their ethnic or racial background , she estimated that Hispanics and Spanish

- speaking individuals would have constituted a larger percentage of these group s than other ethnicitie s

. Julia Arias , a politically active elementary school teacher and community leader
who grew up in Fontana and Rancho Cucamonga , testified concerning her childhood, education, and religious upbringing and the racial discrimination her family faced. 4 Arias felt Hispanics were underrepresented on juries because they were forced to refuse jury

serv ice in order to preserve their ―meager pay‖ and because they were unaware of the importance of exercising their right to vote. She then read various statistic s from the Weeks study (discussed below ) and suggested the court read the survey ― more carefully ‖
to find out what was happening to her community

. John Weeks , Ph.D., 5 was retained by

4 The trial court permitted Arias to give a narrative statement rather than respond to questions from defense counsel.

5 A professor of geography and director of the International Popula tion Center at San Diego State University, Weeks had previously qualified as an expert witness in demography and statistics in more than 50 cases.45

the defense to conduct a demographic survey of jurors reporting for jury duty in San Bernardino County

. Of 574 potential jurors for the Rancho Cucamonga District surveyed over the course of five weeks, 16.9 percent indicated they were Hispanic

. Weeks compared this to the 23.1 percent he estimated to be Hispanics in the ―juro r eligible ‖ population in the Rancho Cucamonga District in 1995. Weeks geometrically extrapolated the 23.1 percent figure from 1980 and 1990 census data and from projections of the ethnic makeup of every county in the state for 2000 and 2010 by the
Califo rnia Department of Finance , Demographic Research Unit. Based on these figures,
Weeks found there was an ― absolute disparity ‖ 6 of 6.2 percent between the number of Hispanics reporting for jury duty and the number of eligible Hispanics residing in the judicial district. Dividing the absolute disparity of 6.2 percent by the community percent of 23.1, he concluded there was a ―relative disparity‖ 7 of 27 percent. Thus, according to Weeks, there were 27 percent fewer Hispanics in the Rancho Cucamonga jury pool than would be expected from the demographics of the community. Dividing the results by gender, he further found an absolute disparity of 7.2 percent and relative disparity of 30 percent for male Hispanics. 8

6 ―  ̳Absolute disparity‘ is the difference between the underrepresented group‘s percentage in the jury

- eli gible population and the group‘s percentage in the actual jury venire.‖ ( People v. Anderson (2001) 25 Cal.4th 543, 564, fn. 6 ( Anderson ).)

7 Relative or ―  ̳ comparative disparity ‘ measures the percentage by which the number of group members in the actua l venire falls short of the number of group members one would expect from the overall  ̳eligible population‘ ‖ of the group who are eligible for jury service. ( Anderson , supra, 25 Cal.4th at p. 564, fn. 6; People v. Ramirez (2006) 39 Cal.4th 398 , 441 ( Rami rez ); People v. Sanders (1990) 51 Cal.3d 471, 492, fn. 5 ( Sanders ).) In this case , 6.2 percent divided by 23.1 percent is 26.8 percent.

8 However, Weeks admitted on cross

- examination that based solely on 1990 census data, Hispanics comprised 18.7 percent of the jury

- eligible population , which translated to an absolute disparity of Hispanic jurors of only 1.8 percent and a relative disparity of 10 percent.46

Relying on the above disparities , Weeks concluded there was ― a substantive and a statistically significant underrepresentation of Hispanics showing up for jury duty in the
Rancho Cucamonga District courthouse.‖ T he biggest alleged cause of the disparity w as l ack of fol low

- up by th e jury commissioner‘ s office for unserved jury summonses

. Weeks also criticize d the summons form for stating ―do not forward,‖ for prominently inviting excusal requests , and for not explicitly asking for address corrections. He
believed this disadva ntaged Hispanics who were more ― residentially mobile‖ than non

Hispanics. Based on Weeks‘ s opin ions, defendant argued the c ourt could end the systematic discrimination and dis enfranchisement of Hispanics in San Bernardino County by prohibiting the removal of jurors except for the reasons authorized under Code of Civil Procedure section 203, 9 by preventing jury clerks from removing jurors without judicial authorization, and by taking measures to ensure adequate follow

- up of jurors who initially fail to appear for jury service . Weeks claimed that San Diego County had made ―some remedies‖ in this regard , which i ncreased the number of Hispanics on its master list.
The trial court denied defendant‘s motion to quash the jury venire, ruling there

was no un derrepresentation of Hispanics by significant numbers due to systematic exclusion in the jury selection process.

9 Code of Civil Procedure section 203 , sub divis ion (a), provides in part : ―All persons are eligible and qualified to be prospective trial jurors, except the following: ―(1) Persons who are no t citizens of the United States

. ―(2) Persons who are less than 18 years of age

. ―(3) Persons who are not domiciliaries of the State of California

. . . . ―(4) Persons who are not residents of the jurisdiction wherein they are summoned to serve

. ―(5) Persons who have been convicted of ma lfeasance in office or a felony , and whose civi l rights have not been restored

. ―(6) Persons who are not possessed of sufficient knowledge of the English language

. . . . ―(7) Persons who a re serving as grand or trial ju rors in any court of this state

. ―(8) Persons who a re the subject of conservatorship. ‖47 (2) Analysis ―In order to establish a prima facie violation of the fair

- cross

- section requirement, the defendant must show (1) that the group all eged to be excluded is a  ̳distinctive‘ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this unde rrepresentation is due to systematic exclusion of the group in the jury

- selection process.‖ ( Duren v. Missouri (1979) 439 U.S. 357 , 364.)
Defendant ― satisfi ed the first prong of this test, because Hispanics are a  ̳distinctive‘ or cognizable group. ‖ ( Ram irez , supra, 39 Cal .4th at p. 44 5; see Castaneda v. Partida (1977) 430 U.S. 482, 495 .) With respect to the second prong, however, he failed to show
the representation of Hispanic jurors was unfair and unreasonable compared to their
numbers in the community. Respondent contends the most reliable figures provided by defense expert Weeks, based solely on 1990 census data, demonstrated an absolute disparity of Hispanic jurors
of only 1.8 percent and a relative disparity of only 10 percent. But even assuming the
stati stical disparities Weeks calculated based on extrapolations for 1995 were credible

—

an absolute disparity of 6.2 percent and a relative disparity of 27 percent for all Hispanics, and an absolute disparity of 7.2 percent and relative dispar ity o f 30 percent for male Hispanics

— defendant still failed to satisfy the second prong because such disparities are not constit utionally significant. (See, e.g., People v. B urgener (2003) 29 Cal.4th 833, 856 ( B urgener ) [expressing uncertaint y as to whether an absolute disparity of 10.7 percent, which produced a relative disparity of 65 percent, satisfied the second prong of the Duren test ]; People v. Ramos (1997) 15 Cal .4th 1133, 1156 [concluding a n absolute disparity between 2.7 and 4.3 percent and a comparative disparity between 23.5 and 37.4 percent was not constitutionally significant ] ; People v. Bell (1989) 49 Cal.3d
502 , 528, fn. 15 [ finding it was ―far from clear‖ that a 5 percent absolute disparity was sufficient]; see also Swain v. Alabama (1 965) 380 U.S. 202, 208

– 209 [ 10 percent4 8

absolute disparity inadequate]; U

. S

. v. Cannady (9th Cir. 1995) 54 F.3d 544, 548 [― absolute disparities below 7.7% are insubstantial and constitutionally permissible‖].) Even had defendant demonstrated a constitutionally significant disparity, he still
would have failed to satisfy the third prong of the test. ―A defendant does not discharge
the burden o f demonstrating that the underrepresentation was due to systematic exc lusion merely by offering statistical evidence of a disparity. A defendant must show, i n addition, that the disparity is the result of an improper feature of the jury selection
process. ‖ ( B urgener

, supra, 29 Cal.4th at p. 857 .)
T he Rancho Cucamonga Dis trict master list used in this case was derived from
D epartment of M otor V ehicle ‘s and voter registration lists. We have held that such a list

―  ̳ ― shall be considered inclusive of a representative c ross

- section of the population‖ ‘
where i t is properly n onduplicative.‖ ( People v. Ochoa (2001) 26 Cal.4th 398, 427 ( Ochoa ); see, e.g., Code Civ

. Proc . § 197 , subd. (b) [ a master jury list assembled from lists of registered voters and driver ‘ s license holders, ― when substantially purged of duplicate names, shall be considered inclusive of a representative cross section of the population ‖]. ) There is no suggestion that the master list was duplicative in any way. As shown by the jury commissioner‘s testimony, moreover, jur or excusals were
based on race

- neut ral reasons provided by statute and the California Rules of Court. Indeed, the excusal forms did not even indicate the prospective juror‘s race. The excusal categories of n on

- citizenship and lack of understanding of English encompassed all
ethnicities an d national origins, not simply Hispanics or Spanish

- speaking individuals. ―Where, as here, a county‘ s jury selection criteria are neutral with respect to the distinctive group, the defend ant must identify some aspect o f the manner in which those
criteria are applied that is not only the probable cause of the disparity but also constitutionally impermissible. ‖ ( Burgener, supra, 29 Cal.4th at p. 858 ; see Sanders , supra, 51 Cal. 3d at pp. 492

– 493 [―Evidence that  ̳ race/class neutral jury selection processes may nonetheless operate to permit the de facto exclusion of a higher percentage49

of a particular class of jurors than would result from a random draw‘ is insufficient to make out a prima facie case. ‖]

. ) Defendant failed to do so in this case. Julia Arias, the community activist who testified for the defense, suggested Hispanics were underrepresented because they were unaware of the importance of voting. However, ― the failure of a particular group to register to vo te in proportion to its share o f the population cannot constitute improper exclu sion attributable to the state.‖ ( Ochoa,

supra, 26 Cal .4th at p. 427 .) Arias also speculated Hispanics were forced to refuse jury
servic e in order to avoid losing the ―meager pay‖ they recei ved in their employment. And defense expert John Weeks suggested, without citation to evidence, that Hisp anics in Rancho Cucamonga were ―residentially mobile‖ because they had low incomes, were unlikely to own homes and were transient as renters, and cons equently more difficult to summon for jury duty. However, ―[ s]peculation as to the source of the disparity is insufficient to show systematic exclusion [citation], as is evidence the disparity is unlikely to be a product of chance [citation] or has endure d for some time [citation]. ‖ ( Burgener, supra, 29 Cal .4th at p. 858.) Finally, Weeks opined San Bernardino County cou ld have remedied the alleged disparity in Hispanic jurors by following up on unserved summonses, soliciting address
corrections , and making the excusal form less prominent. Even assuming he was correct,

m erely pointing to a remedy is not enough. ( Ochoa, supra, 26 Cal.4th at p. 428.) T he
United States Constitution , while forbidding the exclusion of members of a cognizable
class o f jurors, ―  ̳ ― does not require that venires created by a neutral selection procedure be supplemented to achieve the goal of selection from a representative c ross

- section of the population. ‖ ‘ [Citation.] So long as the state uses criteria that are neutr al with respect to the un derrepresented group, the state‘ s failure to adopt other measures to
increase the group‘s representation cannot satisfy Duren ‘ s third prong. ‖ ( Burgener,

supra, 29 Cal.4th at pp. 857

– 858.)50

As defendant did not satisfy his burden un der the second and third prongs of
Duren , a prima facie case of underrepresentation and systematic exclusion of Hispanic jur ors was not made. Accordingly, the trial court properly denied defendant‘s motion to quash the venire.

b) Exclusion of life

- inclined j uror for cause Defendant claims the trial court erroneously excluded Pr ospective J uror G.P. for

cause based solely on his written answers to a jury questionnaire and without any opportunity for voir dire. He contends that if G.P. had been given the oppor tunity to respond to questions in person, the court could have clarified whether he was qualified to serve on a capital jury. As a result of t he allegedly improper removal of this prospective juror , d efendant argues he was subjected to ― a tribunal organiz ed to return a verdict of
death ‖ in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 15 and 16 of the California Constitution. To the extent defendant asserts error in the court‘s r uling on challenges for cause based solely on the jurors‘ responses to the questionnaires without voir dire, the claim is forfeited because he stipulated to this procedure. On the merits, we conclude the court did not err in excusing Prospective Juror G.P . for cause based on his juror questionnaire, in which he stated an inability to impose the death penalty in a contested penalty phase.

(1) Background
Before jury selection for the penalty phase, defendant moved for sequestered voir
dire of prospective jurors

. 10 The trial court denied the request for individual voir dire of all jurors but acknowledged that oral or questionnaire responses might warrant sequestered voir dire of particular jurors on particular issues.

10 Code of Civil Procedure section 223 pr ovides that ―[v]oir dire of any prospective jurors shall, where practicable, occur in the presence of the other jurors in all criminal cases, including death penalty cases.‖51

Thereafter, the trial court proposed ruling on stipulated dismissals, followed by challenges for cause based solely on questionnaire responses , noting that denial of any challenge would be without prejudice, allowing counsel the opportunity to individually question the juror. ―Regular‖ voir dire w ould then be conducted on the rest of the panel.
Defense counsel endorse d this proc edure as ―the next best thing‖ to sequestered voir dire
of the entire jury panel and commented on ― [t]he beauty of the Court ‘ s procedure ‖ in protecting against potential ju rors who may ― pollute the panel .‖ As the time for jury selection neared, defendant personally appeared in court and expressly agreed to this procedure, which the court, pursuant to the parties‘ stipulation, then utilized. Both the prosecution and defense moved to exclude for cause various prospective jurors solely on the basis of their questionnaire responses. Prospective Juror G.P. was among those whom the prosecutor challenged. In his question naire, when asked whether
h e had ―any philosophical, religious, or moral feelings that would make it difficult or impossible for you to sit in judgment of another person,‖ G.P. wrote ―being educated and
raised in the strict Catholic teachings and standards , I find it hard to be a ju dge of another
p erson . I was taught that God is the only rightful judge. ‖ Although he also wrote, ― I
have no prob lem in judging as to whether or not a pers on is guilty or has done wrong,‖ he indicated that he did ―ha ve a problem as to whether or not puni shment or appropriate punishment is right or wrong. ‖ Despite his generally enjoying jury service ― because the law has always been fascinating ‖ to him, G.P. reiterated, ―[ i ] t just so happens that sentencing someone is against my beliefs. ‖ Prospective Juror G.P. further wrote he would be greatly influenced by the
Catholic Church‘ s opposition to the death penalty , writing ― I have always been taught to try to understand why people become the way they are and that one might always forgive and that one migh t never lose hope. Somehow these teachings have become my own and
have influenced my decision in life. ‖ G.P. reaffirmed he ―strongly‖ opposed the death penalty, opining it served only an economic purpose and was part of a system that ― has52

lost all hope. That should not be the case in any system. ‖ When asked ― what types of crime, if any, deserve the death penalty,‖ he answered, ―I couldn‘ t think of one. ‖ G.P.
also wrote life in prison w ithout parole served no purpose other than draining the
economy and he would ―only agree to it if it is the only solution for a person not to commit harm to society again

. ‖ Prospective Juror G.P. indicated he would ―have to hear the case first‖ to know whether he could impose life without the possibility of parole o r the death penalty. H e also stated it was ―very possible‖ to see himself reject ing the d eath penalty and choosing life without possibility of parole ―because of my beliefs,‖ but rejecting life without the possibility of parole and choosing the death pena lty was ―a possibility‖ only if the
defendant ― himself requests it and if he is sound in mind and body. ‖
The defense argued that although Prospective Juror G.P. expressed a preference
for life without the possibility of parole, his responses also indicated he would be willing

to listen to the case before selecting a punishment. The prosecution responded that G.P.‘s answers demonstrated his religious beliefs, which taught him the death penalty was improper, would override this willingness. Defense counsel did not ask to question G.P. in order to clarify his qualification to serve on a capital jury. W ithout conducting voir
dire of G.P., the court granted the challenge for cause, finding his strong religious beliefs combined with his strong opposition to the death penalty indicated he would be ―substantially impaired in seriously considering the death penalty as an option.‖

(2) Analysis
Defendant argues the trial court erred in failing to conduct voir dire to clarify Prospective Juror G.P.‘s views on capital puni shment and in granting the prosecutor‘s challenge based on his juror questionnaire responses alone

. However , defendant forfeited
this claim when he expressly agreed to that procedure . Defendant, moreover, did not request individual voir dire of Prospective Juror G.P. before the court ruled on the53

prosecutor‘ s challenge for cause , instead opposing the challenge by arguing that G.P.‘s questionnaire responses indicated he could be a fair juror. ( People v. Cook (2007) 40
Cal.4th 1334 , 1342 ( Cook ) [d efendant who agreed to ―  ̳ submit on the questionnaire ‘ ‖ challenges for cause to certain prospective jurors and waiv ed any further questioning , forfeited right to complain on appeal of the court‘ s failure to interrogate that prospective juror]; c f. People v. Stewart (2004) 33 Cal .4 th 425, 452 ( Stewart ) [finding error where
trial court acted without the parties‘ prior agreement in grant ing several prosecution challenges for cause solely on the basis of the questionnai re responses, despite earlier

assurances that it would conduct further oral voir dire to address any ambiguous
responses and despite the defendant‘ s repeated objections to the proce dure].) Alternatively, defendant contends the trial court erred in exclud ing Prospective
Juror G.P. for cause simply because he expressed strong opposition to the death penalty in his questionnaire

. A prospective juror‘s personal views concerning the death penalty
do not necessarily afford a basis for excusing the juror for bias in a capital case. (See
Uttecht v . Brown (2007) 551 U.S. 1, 6 [―  ̳[A] man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the
State.‘ ‖].) Rather, ―[t]o achieve the constitutional imperative of impartiality, the law

p ermits a prospective juror to be challenged for cause only if his or her views in favor of or against capital punishment  ̳would ―prevent or substantially impair the performance of
his [or her] duties as a juror‖ ‘ in accordance with the court‘s instruction s and the juror‘s oath.‖ ( People v. Blair (2005) 36 Cal.4th 686, 741, quoting Wainwright v. Witt (1 985) 469 U.S. 412, 424; see Witherspoon v. Illinois (1968) 391 U.S. 510.) Under this standard, a prospective juror is properly excluded in a capital case i f he or she is unable to follow the trial court‘s instruction and ―conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate. ‖ ( People v. McWhorter (2009) 47 Cal.4th 318, 340; see People v. Jenkins (2000) 2 2 Cal.4th 900, 987 ( Jenkins ).)54

A trial court‘s ruling on a challenge for cause based solely on a juror‘ s responses on a written questionnaire is subject to de novo review by this c ourt. ( People v. Avila (2006) 38 Cal .4th 491, 529 ( Avila ) .) W e review the record to determine whether the trial court had sufficient information regarding Prospective Juror G.P. ‘ s state of mind to permit it to reliably determine whether his views on the death penalty would prevent or
substantial ly impair the performance of his duties in this case. ( Stewart, supra, 33 Cal.4th at p. 445 ; see also Avila , at p. 531 [― a prospective juror in a capital case may be discharged for cause based solely on his or her answers to the written questionnaire if it is
clear from the answers t hat he or she is unwilling to temporarily set aside his or her own
beliefs and follow the law ‖] .)
In Cook, supra, 40 Cal.4 th at p ages 1343

– 1344, and Avila , supra, 38 Cal.4th at
page 532, we upheld the trial court ‘s order s excusing prospective jurors whos e questionnaire answers showed they could not impose the death penalty even though they also responded they could s et aside their personal feelings and follow the law. The
situation before us presents a similar dichotomy. In his questionnaire, Prospective Juror G.P. stated he had strong religious beliefs that made it difficult for him to judge someone else because he was taught God is the only rightful judge, and although he had no problem judging another person on the issue
of guilt, he had a problem with deciding the appropriate punishment. Significantly, G.P. stated unequivocally he was strongly opposed to the death penalty, which he saw as economically motivated and as part of a system that had ―lost all hope,‖ and he could not think of a single crime deserving the death penalty. Although G.P. stated it was a ―possibility‖ he could choose the death penalty in an appropriate case, the example he gave was a case in which the defendant was competent and requested it. However, in another response, G.P. im plied he would not make up his mind on punishment until he
heard the case.55

W e conclude Prospective Juror G.P.‘s strong religious beliefs and opposition to capital punishment amply support the conclusion he would have been prevented or substantially impaire d from performing his duties in this particular case. His express
reluctance to sit in judgment of someone on the issue of punishment made him particularly unqualified to serve on defendant‘s jury, as G.P. was being considered for
service on a penalty pha se jury that would only be deciding the appropriate punishment
for defendant

. Although stating somewhat ambiguously he would have to hear the case first to know whether he could realistically impose either death or life without the possibility of parole, G.P. repeatedly expressed his opposition to the death penalty for all crimes, with a possible exception for a case in which a competent defendant exercised his right to a jury trial in order to request to be executed. T he trial court therefore did not err by excusing Prospective Juror G.P . for cause based on his responses to the jury questionnaire

. c) Prosecutor’s use of peremptory challenges to strike African

- American

jurors Defendant claims the prosecutor improperly exercised four of his six peremptory
cha llen ges against African

- Americans

— Prospective Jurors D.W., A.L., S.A.

- M., and
A.C.

— during penalty phase jury selection. (See Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d. 258 ( Wheeler ).) He argues the trial court erred in failing to find a prima facie case of discriminatio n based on the four challenges and abdicated its duty to conduct a sincere evaluation of the prosecutor ‘s reasons for excusing those potential jurors . Their improper removal , he contends, requires automat ic reversal of the judgment

. This claim fails for several reasons. First, defendant failed to make a sufficient record demonstrating Prospective Juror A.L. was a member of a cognizable class

. Second, defendant forfeited any Batson/Wheeler claim regarding Prospective Jurors S.A

. - M. and A.C. by failing to object to their excusal prior to the swearing of the jury and56

alternates. Finally, as to Prospective Juror D.W. , the trial court correctly ruled defendant
failed to make a prima facie showing the prosecut or excused the juror for reasons of race

.

(1) Background After the prosecutor exercised his first peremptory challenge against a non

African

- American juror, defense counsel made a premature Batson/Wheeler motion. He argued prospectively that if the prosecut or were to exercise a peremptory challenge against any African

- American juror s , a prima facie case of discriminatio n would be established because (1) of the prosecutor‘s six for

- cause challenges denied by the court,

― approximately [50] percent of those per sons were [B]lack,‖ and (2) the prosecutor had
devoted an inordinate amount of t ime

— approximately 75 to 80 percent of the voir dire transcript pages

— questioning African

- American jurors. 11 The prosecu tor objected to what he considered defense counsel‘ s attempts to intimidate him in his exercise of peremptory challenges. After additional discussion, the court found , considering the explanations offered for the prosecutor‘s challenges for cause to minority and non

minority jurors, there had been no attemp t to systematically exclude minority jurors

. After voir dire continued, t he prosecutor exercised his second peremptory challenge against Prospective Juror D.W. D efense counsel objected : ― Batson challenge. She‘ s a correctional officer. She was one he picked on for no good reason just to ask a lot of questions. ‖ The trial court denied the challenge, concluding defendant had not made a prima facie showing of a systematic pattern of exclusion of minority jurors

. It invited the prosecutor to place his re asons for exercising the challenge on the record , noting, however, he was under no obligation to do so

. The prosecutor declined the invitation, stating he would provide an explanation for each minority juror for whom he

11 Defense counsel did not restrict his Batson/Wheeler objections to African

Americans or other racial groups. He also filed a written Batson/Wheeler motion arguing that Vietnam veterans were a cognizable class.57

exercised a peremptory challenge at the end of jury selection. The court thereafter
excused D.W. The prosecutor exercised his third pe remptory challenge against Prospective Juror
A.L. Defense counsel objected: ― Batson again .‖ The court excused A.L. withou t explicitly ruling on defenda nt‘s challenge. The prosecutor exercised his fourth peremptory challenge against Prospective
Juror S.A.

- M. Defense counsel stated: ―I‘ ll wait till he does one more, then I‘ ll do that.
I‘ m going to make a motion. So we don‘ t have to argue it each time. ‖ The trial court responded: ― All right. For the record, the court notes that there was a challenge for cause as to [ S.A.

- M.] and she did indicate an attitude that was definitely leaning against the death penalty, although probably not sufficient, the court found, to grant a challenge
for cause. But certainly it‘ s a basis for an exercise of the peremptory challenge. ‖ The prosecutor exercised his fifth challenge against Prospective Juror A.C. Defense counsel made no objection , and t he trial court exc used A.C. Subsequently, the parties accepted 12 juror s after the prosecutor exercised his sixth and final peremptory challenge without any further Batson/Wheeler objections

. During the selection of the alternate jurors, the defendant made no Batson/Wheel er objections

. Thereafter, six alternate jurors were chosen

. After the jurors and alternate jurors were sworn, the prosecutor asked whether
the re was a Batson/Wheeler motion still pending. The trial court and defense counsel
indicated it had been denied , referring to the colloquy that occurred in connection with Prospective Juror D.W

. The prosecutor , defense counsel, and the court all noted the prosecution thereafter had exercised peremptory challenges against two other African

American prospective juro rs, S.A.

- M. and A.C. Defense counsel then stated, ―I don‘t believe I said anything when he did that. The court confirmed, ―Correct. You didn‘t renew or make another motion.‖ Defense counsel affirmed, ―I had made the motion

.58

You had denied it. And I g uess the reasons for my not doing it again will have to go with

me to the federal habeas or whatever. ‖ The prosecutor the n asked for the opportunity to ―go on the record‖ regarding the three challenges. The trial court granted this request, but first stated : ―[E] ven after the

two additional challenges [,] the Court is still satisfied that there is not a

. . . prima facie demonstration to the Court of any systematic or attempted systematic exclusion of [B]lack jurors by the prosecution, particularly with regard to the last two peremptories of [B]lack jurors. [¶] The responses in the questionnaire, and the responses of the jurors orally, in the Court‘ s view, provided adequate non

- racial basis for the peremptory challenge s. And if the motion had been renewed, it would have been denied again at that point, again on the basis that there was not a prima facie showing. [¶] [The c] ourt will also note that the jury that the prosecution passed on that was actually sworn does i nclude two [B]lack jurors. Which is, again, additional evidence to the Court that there was not an attempt to systematically exclude [B]lacks. ‖ 12 Thereafter, the prosecutor explained he excused Prospective Juror D.W. because
she was argumentative during voir dire and had used defensive body language. D.W.
also linked her job as a prison guard with the possibility of becoming a psychologist who
counseled inmates , which was problematic from the prosecutor‘s perspective because defendant‘s penalty phase s pe cifically involved psychological and psychiatric testimony.
D .W. further described herself as being ― on the opposite end of the spectrum‖ of Prospective J uror D.P. , 13 which indicated to the prosecutor D.W. would tend to always

12 I n allowing the prosecutor to make a record of his race

- neutral reasons for excusing the juro rs in question, even though finding no prima facie case of discrimination , the trial court followed the ―better practice.‖ ( People v. Bonilla (2007) 41 Cal.4th 313, 343, fn. 13 ( Bonilla ) [ noting that such information assists the reviewing court in assessin g the ruling on appeal] .)

13 During voir dire, Prospective Juror D.P. had expressed negative views about ―counselors, therapists, whatever you want to call them, psychologists, psychiatrists,‖ as59

belie ve such testimony. And when the prosecutor asked D. W. about rolling her eyes while D.P. was speaking during voir dire , D.W. at first admitted to doing so , but then
later approached the prosecutor during a break , in violation of a court order not to discus s the case , and told him she was just batting her eyes rather than rolling them. This
behavior , coupled with animosity in D.W.‘ s voice , concerned the prosecutor. With respect to Prospective Juror A.C. , the prosecutor first noted she failed to write responses to many of the questions regarding her views on the death penalty. She
further expressed ― severe ‖ reservations about the death p enalty during voir dire and was

― dishonest ‖ in recounting she had heard on the news about a recent execution in
California , which never occurred. Finally, concerning Prospective Juror S.A.

- M., t he prosecutor explained he
excused her due to her ―serious reservations about the use of the death penalty.‖ Responses in the juror questionnaire indicated her religious b eliefs taught her not to judge others and she would not consider imposing the death penalty on a combat veteran. She
also had a relative who was killed by a deputy she riff in Los Angeles and her family
wanted criminal charges brought against the s heriff ‘ s d epartment

. This potential bias against law enforcement concerned the prosecutor as well. And despite S.A.

- M.‘ s recognition there were ― probably circumstances where the death penalty could be imposed,‖ she wrote she hoped never to be part of such a dec ision. Such reservations about the death penalty , which were further developed during voir dire , led the prosecutor
to believe S.A.

- M. would not be an appropriate juror for defendant‘s c ase. Defense counsel did not respond to or comme nt on the explanatio ns volunteered by the prosecutor

. Having denied defendant‘s Batson/Wheeler motion regarding

well as skepticism about two psychological experts evaluati ng s omeone over a short time and suddenly claiming to know ― what was wrong with this person. ‖ D. P . also stated an expert‘ s credentia ls ―doesn‘t mean squat‖ if they have only spent a few hours, days , or weeks talking with the person they are evaluating. D .P. further admitted she was

― opinionated. ‖60

Prospective Juror D.W. for failure to make a prima facie showing of discrimination, the
trial court did not evaluate or otherwise render any further ruling on the prosecut or‘ s explanations , merely stating ―all right‖ and then calling a recess

.

(2) Analysis (a) Prospective Juror A.L. Respondent argues defendant forfeited any claim of error with respect to Prospective Juror A.L. by failing to articulate a clear Batson/Wheel er objection. (See People v. Lewis (2008) 43 Cal.4th 415, 481 .) In objecting to the prosecutor‘s peremptory challenge of A.L., defense counsel simply stated ― Batson again.‖ Although defendant assumes on appeal that A.L. was one of four African

- American prospective jurors against whom the prosecutor exercised peremptory challenges, the record fails to disclose what cognizable class defendant was asserting as the basis for his Batson/Wheeler objection to the peremptory challenge of A.L. It is true, as de fendant notes in his reply, his first Batson/Wheeler objection
concerned an African

- American prospective juror, D.W. But defendant did not provide any factual basis for the objection regarding A.L. or make any record as to what cognizable class A.L. alleg edly belonged to. A.L. was never identified as African

American during voir dire, and in fact self

- identified as ―Caucasian,‖ ―Danish, ‖ and ―Dane‖ in his jury questionnaire. Nor was A.L. identified as African

- American in any of
the Batson/Wheeler discussions contained in the record. To the contrary, in their discussion following the swearing of the jury, the court, defense counsel, and the prosecutor all stated that there had been three African

- American prospective jurors excused by the prosecuti on and identified those three jurors as D.W., S.A

- M., and A.C. Defense counsel, moreover, did not restrict his Batson/Wheeler motions to racial groups; he also attempted to argue that Vietnam veterans were a cognizable class. The failure to61

clearly artic ulate the Batson/Wheeler objection to the peremptory challenge against A.L. forfeited the issue for appeal.

(b) Prospective Jurors S.A.

- M. a nd A.C. Respondent contends defendant also forfeited a claim of Batson/Wheeler error with respect to Prospective Juror s S.A.

- M. and A.C. by failing to make a Batson/Wheeler objection. In order to preserve a Batson/Wheeler claim based on the prosecutor‘s peremptory challenges, the defendant must make a timely objection. ( People v.
McDermott (2002) 28 Cal.4th 946, 969 .) To be timely, a Batson/Wheeler objection must be made before the jury is sworn. ( See People v. Howard (1992) 1 Cal.4th 1132, 1154 ; People v. Thompson (1990) 50 Cal.3d 134, 179. ) When the prosecutor exercised his fourth peremptory challenge against S.A.

- M.,
an African

- American prospective juror, defense counsel indicated he was ―going to make a motion,‖ but woul d wait until the prosecutor ― does one more.‖ However, he did not object when the prosecutor exercised his next peremptory challenge against A.C. , another
African

- American prospective juror, nor did he make a motion before the jurors and
alterna tes were sworn in and the venire excused . After the jurors and alternate jurors
were sworn and the prosecutor asked whether the re was a Batson/Wheeler moti on still pending, defense counsel agreed with the trial court he had not renewed or made new
Batson/Wheeler motions with respect to S.A.

- M

. and A.C., stating: ― I guess the reasons for my not doing it again will have to go with me to the federal habeas or whatever. ‖ (Italics added.) D efense counsel also did not di scuss or contest the prosecutor‘ s volunteered explanations for the two challenges. In light of the lack of a timely, or even untimely, objection, any claim of Batson/Wheeler error regarding Pros pective Jurors
S.A.

- M

. and A.C. was forfeited.62 (c) Prospective Juror D.W. Defendant did make a timely, clearly articulated Batson/Wheeler objection with respect to the prosecutor‘s peremptory challenge against Prospective Juror D .W. The applicable law is we ll settled. While a prosecutor ordinarily is entitled to exercise peremptory challenges for almost any reason at all, ―[b]oth the state and federal Constitutions prohibit the use of peremptory challenges to exclude prospective jurors
based on race

. . . . ‖ ( Bonilla, supra, 41 Cal.4th at p. 341.)
A three

- stage procedure applies to the evaluation of Batson/Wheeler motions. ―First, the defendant must make out a prima facie case  ̳by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.‘ [Citation s .] Second, once the defendant has made out a prima facie case, the  ̳burden shifts to the State to explain adequately the racial exclusion‘ by offering permissible race

- neutral justifications
for the strikes. [Citations.] Third,  ̳[i]f a race

- neutral explanation is tendered, the trial
court must then decide

. . . whether the opponent of the strike has proved purposeful racial discrimination.‘ ‖ ( Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.)
T his subclaim involves only the first of the se three stages

— whether defendant made out a prima facie case of racial discrimination. Although the prosecutor subsequently volunteered his reasons for challenging D

. W ., ― the trial court did not evaluate the prosecutor ‘ s s tated reasons, either explicitly or implicitly. ‖ ( People v.
Sattiewhite (2014) 59 Cal.4th 446, 469.) Rather, the court expressly ruled defendant had not made a prima facie case before the prosecution ‘ s recitation of reasons and denied the
Batson/Wheeler motion on this basis. The trial court merely allowed the prosecution ― to preserve for the record its reason for those ex cusals .‖ Nevertheless, in f

inding defendant failed to make a prima facie case of racial
discrimination , the trial court appears to have used an incorrect standard, finding ―no systematic pattern of exclusion,‖ rather than no inference of discriminatory purpose

. (See, e.g., Avila, supra, 38 Cal.4th at pp. 554

– 555 [trial court was under the mistaken63

impression that only pattern of discrimination through multiple excusals could make prima facie showing].) We therefore independently review the record to ―  ̳resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race.‘ ‖ ( Id. at p. 554.) Certain types o f evidence are relevant in determining whether a defendant has carried his burden of showing an inference of discriminatory excusal , such as whether the prosecutor ―struck most or all of the members of the identified group from the venire or used a disproportionate number of his pe remptories against the group,‖ whether the excused jurors ha d litt le in common other than their membership in the group, and whether the p rosecutor engaged in ― desultory voir dire ‖ or no questioning at all. ( Wheeler, supra, 22 Cal.3d at p p . 280

– 281.) Although a ―defendant need not be a member of the excluded group,‖ it is significant if he is and if , in addition , his victims are members of the group to which the majority of the remaining jurors belong. ( Id

. at p. 281 ; see People v. Kelly (2007) 42 Cal.4th 763, 779

– 780.) Defendant argues the prosecutor used a disproportionate number

— four of six

— of his peremptory challenges to excus e African

- Americans from the jury pool. The record does not support defendant‘s claim . In selecting a jury for the penalty phase, the prosecutor exercised a total of eight peremp tory c hallenges to potential jurors

— six during the selection of the 12 jurors and two during the selectio n of the six alternate jurors

— only three of which were used to remove African

- Americans D.W., S.A.

- M., and
A.C. As noted, the record does not support defendant‘s contention that Prospective Juror
A.L. was African

- American. The prosecut or, moreover , passed two African

- American prospective jurors who ultimately were seated on the jury. ( People v. Clark (201 1) 52 Cal.4th 856, 906 [―Although the circumst ance that the jury included a member of the identified group is not dispositive [citation],  ̳it is an indication of good faith in exercising peremptories

. . . ‘ and an appropriate factor to consider in assessing a [ Batson/Wheeler ] motion. ‖].) T he64

prosecut or ‘s use of three of eight (or 38 percent) of his peremptory challenges to excuse
African

- American prospective jurors, particularly where the other two African

- American prospective jurors were passed and seated on the jury , ―does not support an inference o f
bias

. ‖ ( People v. Cornwell (2005) 37 Cal.4th 50, 70.) Moreover, the prosecutor engaged i n more than a desultory voir dire of Prospective Juror D.W

. Indeed, defendant complains that no juror was publicly questioned by the prosecution ― more relentlessly ‖ than D.W. However, the thoroughness of the prosecutor‘s probing of D.W. was not outside the norm and does not support an
inference of racial bias.
We discern at least one race

- neutral reason for excusing Prospective Juror D.W.
that is ― apparent from and  ̳ clearly established ‘ in the record

. ‖ ( People v. Scott ( June 8,
2015 , S064858 ) __ Cal.4th __ [at p. 20] .) The defense case for the penalty phase would rely heavily on psychological testimony concerning PTSD resulting from defendant‘s
ab usive childhood and experiences in Vietnam

. N ot only did D.W. express a strong receptivity toward such testimony, stating such expe rts ―would be necessary,‖ she also
indicated she wanted to ― lateral over into prison counseling. ‖ This was a legitimate rac e

neutral reason for excusing D.W. (See, e.g., Avila, supra, 3 8 Cal.4th at p. 556 [ a juror
who indicated she worked closely with psychologists and psychiatrists as a nurse in a psychiatric ward and valued their opinions provided a reason other than racial bias for the prosecutor‘s challenge]; People v. Gutierrez (2002) 28 Cal.4th 1083, 1124 [prosecutor‘ s belief that the prospective juror would place too much weight on the opinion testimony of mental health experts could justif y the peremptory challenge].) Based on our independent review of the record of voir dire, we conclude t he totality of the relevant facts does not support inferring the prosecutor challenged Prospective Juror D.W. because of he r race. T he trial court therefore d id not err in denying defendant‘s Batson/Wheeler motion for failure to establish a prima facie case.65 d) Denial of a conti nuance prior to jury selection
Defendant claims the trial court abused its discretion by denying his request for a
continuanc e of the penalty phase based on publicity surrounding the April 1995 bombing of the Murrah Federal Building in Oklahoma City. He contends the denial of this request

cause d voir dire to be conducted shortly after the bombing in ― an unduly prejudicial

atmos phere‖ and thus violated his constitutional rights to due process and a fair trial. Before the beginning of jury selection in the penalty phase, defendant moved for a continuance from May until September 1995, arguing there was good cause in light of

― th e difficulty of selecting a fair and impartial jury in this case, due to the interconnection of some of the major issues in [defendant‘s] life, and of those persons accused of the bombing of the federal building in Oklahoma City. ‖ He pointed to the circumstance that Timothy McVeigh, one of the Oklahoma City bombing suspects, was an army veteran who might also raise a PTSD defense . Defendant also argued future delays might occur
because one of the defense experts was working with trauma victims in Oklahoma City.
The trial court , noting among other circumstances that McVeigh had fought in the Gulf
War while defendant was a Vietnam War veteran , found no similarities between defendant‘s case and the Oklahoma City bombing. Concludin g the events in Oklahoma
would have no significant impact on jury selection in this case, the trial court denied defendant‘s request for a continuance

. A continuance may be g ranted only on the moving party‘ s showing of good cause. ( § 1050, subd. (e) .) ― The granting or denial o f a motion for continuance rests within the
sound discretion of the trial court.‖ ( People v. Mickey (1991) 54 Cal.3d 612, 660. ) In light of the lack of any relation ship or similarity between the Oklahoma City bombing
and defendant ‘s case, the trial court did not abuse its discretion in finding there was no showing of good cause for a continuance

. The publicity from the Oklahoma City bombing , which differed drastically from
the SOS murders in both kind and degree , had no bearing on defendant‘s case. Timothy66

McVeigh detonated a 3,000

- to 6,000

- poun d bomb, killing 168 people, includ ing 19 children and eight law enforcement officials. ( U

. S

. v. McVeigh (10 th Cir. 1998) 153
F.3d 1166, 1177.) By comparison, defendant shot and killed t hree adult victims with whom he was acquainted during the commission of a burglary and robbery of a company
for which he once worked

. The Oklahoma City bombing was politically motivated with the goal of inciting a general uprising against the government ( ibid. ) , whereas defendant‘s murders were financially motivated. T he only concrete common feature argued by
defense counsel , that defendant and McVeigh were both A rmy veterans , does not withstand scrutiny. McVeigh was not a veteran of the Vietnam War , and defendant‘s jury would hear defense testimony that the Vietnam conflict had many significant
characteristics not present in other conflict s and that generated unique problems for
Vietnam War veterans. Not only were the supposed connections between the cases tenuous at best, the possibility of an unavailable witness and the notion that a separate tragedy would have a prejudicial effect on a jury trying this case were pure speculation. Moreover, voir dire exists exactly to explore issues of prejudice suc h as these. In sum, the court‘s ruling clearly was not manifestly erroneous or arbitrary.

2. Failure to sua sponte appoint a second attorney
Defendant contends the trial court violated his rights under the Sixth and Eighth
Amendments to the United States Co nstitution and a rticle I, section 15 of the California
Con stitution by failing to appoint , sua sponte, a second qualified attorney to assist defense counsel in his case. As defendant acknowledges, ―  ̳[t]he appointment of a second counsel in a capital case is not an absolute right protected by either the state or the
federal C onstitution. ‘ ‖ ( People v. W illiams (2006) 40 Cal.4th 287, 300 .) It is true that by statute, California trial courts have the authority to appoint a second attorney to represent a ca pital defendant. (§ 987, subd. (d).) However, n o sua sponte duty to appoint67

additional counsel can be derived from a statutory provision grant ing only discretionary authority to the trial court to do so upon a written request and supporting affidavit by primary counsel. ― Indeed, under the statute, the trial court lacks any specific authority to appoint a second attorney in the absence of a request from the first attorney and the making of a factual record sufficient to support such an appointment. To the extent that defendant‘ s argument is that the trial courts have inherent power to appoint a second attorney, no authority supporting that proposition is cited. ‖ ( People v. Padilla (1995) 11 Cal.4th 891, 928.) Accordingly, defendant‘s claim that t he court erred in not appointing a second attorney in the absence of such a request fails.

3. Admission of photographic and videotape crime scene evidence Defendant claims five photographs of the victims previously admitted in the guilt phase, as well as a s ilent videotape of the crime scene, should have been excluded in the penalty p hase as irrelevant (see Evid. Code , § 350) and more prejudicial than probative (see id. , § 352). The photographs depicted the victims‘ bodies as they were found on the
floor in the restroom, with close

- ups of their bound hands. The video depicted the freeway next to SOS and the SOS parking lot, and a forensic expert walking around the building, hallways, and warehouse filming the register on the office de sk, the lobby, and
a cei ling

- to

- floor view of the interior of the women‘s bathroom, including the victims‘ bodies and at least one bullet casing. Defendant argues the failure to exclude these exhibits denied him due process of law under the Fifth, Sixth, Eighth and Fourteenth
Am endments to the United States Constitution and article I, sections 7, 15, 17 and 24 of
the California Constitution. As a preliminary matter, defendant has forfeited any claim that three of the five crime scene photographs were erroneously admitted. Alth ough defendant moved to exclude five photographs and argued his objection at the hearing, at the time the trial court formally admitted the challenged evidence defense counsel withdrew his objection68

to one of the photographs and affirmatively stipulated to the admission of two others

. (See, e.g., People v. Cook (2006) 39 Ca l .4th 566, 609 .) With respect to the remai ning two photographs and the 30

- second portion of the crime scene videotape depicting the victims in the bathroom, t he trial court did not abuse
its discretion by admitting this evidence. ―  ̳A trial court‘s decision to admit photographs under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value.‘ [Citations.] Notably, however, the discretion to exclude photographs under Evidence Code section 352 is much narrower at the penalty phase than at the guilt phase. This is so because the prosecution has the right to establish the circumstances of the crime, includin g its
gruesome consequences [citation] , and because the risk of an improper guilt finding based on visceral reactions is no longer present.‖ ( Bonilla , supra, 41 Cal .4th at pp. 353

– 354 .) The two crime scene photographs and videotape were relevant to the penalty phase of the trial. They show the circumstances of the crime, which included premeditation and deliberation on defendant‘s part as evidenced by his binding the victims‘ hands behin d their backs with duct tape he had bought a week or two before committing the crimes. They further corroborated defendant‘s custodial statements to law enforcement officers, including that he had shot Smith several more times upon discovering he had brok en free from his bindings (one of the photographs and the videotape depicts broken strands of duct tape on Smith‘s wrists). Finally, as in the guilt phase, the forensic pathologist used
th e photographs to assist the trier of fact in understanding her test imony. The admitted photographs and videotape also were not cumulative; only five photographs and 30 seconds of videotape were admitted. Nor were the photographs or videotape substantially more prejudicial than probative. ―As we have previously noted,  ̳ ―murder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant.‖ ‘ ‖ ( People v.69

Roldan (2005) 35 Cal.4th 646, 713.) Likewise in this case. But as unpleasant as these photographs and videotape may be, they de monstrate the real

- life consequences of defendant‘s actions. The prosecution was entitled to have the penalty phase jury consider those consequences. The trial court‘s exercise of discretion to admit them was neither statutory nor constitutional error.

4. D enial of automatic application for modification of death verdict Defendant claims the trial court erred in denying his automatic application for modification of the death verdict pursuant to section 190.4, subdivision (e). This claim, amounting to no mor e than a disagreement with the trial court‘s assessment of the evidence, lacks merit.
Section 190.4 , subdivision (e), provides for an automatic application for
modification of a finding or verdict imposing death in every case in which the jury has
returned such a finding or verdict. ― Pursuant to section 190.4, in ruling upon an application for modification of a verdict imposing the death p enalty, the trial court must

re weigh independently the evidence of aggravating and mitigating circumstances and
then de termine whether, in its independent judgment, the weight of the evidence supports the jury‘ s verdict. ‖ ( Crittenden , supra , 9 Cal .4th at p. 150.) T he statute thus requires the court to make an independent determination concerning the propriety of the death penalty

. The court must state the reasons for its ruling on the record, but need not describe every detail supporting its ruling so long as the statement of reasons is sufficient
to allow meaningful appellate review. ( People v. Lewis and Oliver (20 06) 39 Cal .4th 970, 1064.)

― On appeal, we indep endently review the trial court‘ s ruling after reviewing the record, but we do not determine the penalty de novo. ‖ ( People v. Steele (2002) 27
Cal .4th 1230, 1267 ( Steele ).) Where the record shows the trial court properly perform ed its duty under section 190.4, subdivision (e), to conduct an independent reweighing of the70

aggravating and mitigating evidence, the court ‘ s ruling will be upheld. ( People v. Abilez (2007) 41 Cal .4th 472, 530 ( Abilez ) .) Here, t h e trial court expressly recognized its duty to independently review and reweigh the evidence of aggravating and mitigating circumstances to determine whether the sentence imposed was proportionate to defendant‘s culpability

. I t reviewed in detail the aggravating and mitigating factors listed in section 190.3. For example, it considered in aggravation the circumstances of the crime, including the ―high

- degree of cold

blooded callousness‖ exhibited by the killings, defendant‘s prior felony convicti ons, including the extent to which they involved attempted use of force or violence and implied threats thereof, and defendant‘s maturity and life experiences at the time of the crimes, including his prior prison and parole terms. In mitigation, it consid ered the lack of more numerous acts of violence by defendant in light of his mature age, defendant‘s traumatic childhood, including the physical, emotional, and sexual abuse and abandonment he experienced, his decorated service to the country and traumatic war experiences in Vietnam, and the testimony of defendant‘s experts concerning PTSD both generally and as related to defendant. It ultimately found the weight of the mitigating circumstances had been ―greatly attenuated‖ by the intervening 20 years betw een defendant‘s service in Vietnam and the SOS crimes, as well as defendant‘s criminal convictions and acts of violence that culminated in the present offenses. The court then
stated its independent judgment that the circumstances in aggravation outweigh e d the
circumstances in mitigation and the substantial weight of the evidence suppor ted the jury‘s verdict of death

. Defendant essentially argues the trial court erred because it failed to find his childhood problems, Vietnam experiences , and mental health issues to be as significant o r weighty as it should have

. As is apparent, however, ― the trial court applied the correct
standard and properly conducted an independent reweighing of the aggravating and mitigating evidence. That it did not find defendant‘ s proffered mitigating evidence as71

persuasive as he would have liked does not undermine this conclusion. ‖ ( Abilez, supra,
41 Cal .4th at p. 530; s ee Steele, supra, 27 Cal .4th at pp. 1267

– 1268 .) The court‘s refusal to modify the verdict is consistent with b oth the law and the evidence. We therefore conclude the trial court properly performed its duty under section 190.4, subdivision (e).

5. Penalty of death as disproportionate to defendant’s individual culpability
Defendant claims his death sentence constitutes cruel and unusual punishment in
violation of the state and federal C onstitutions because the penalty is grossly disproportionate to his individual culpability in committing the crimes. ―  ̳ To determine
whether a sente nce is cruel or unusual as applied to a particular defendant, a reviewing
court must examine the circumstances of the offense, including its moti ve, the extent of the defendant‘ s involvement in the crime, the manner in which the crime was committed,
and th e consequences of the defendant‘ s acts. The court must also consider the personal characteristics of the defendant, including age, prior criminality, and mental capabilities. [Citation.] If the court conclud es that the penalty imposed is ― grossly dispro portionate to the defendant‘s individual culpability‖ [citation], or, stated another way, that the punishment ―  ̳ ― shocks the conscience and offends funda mental notions of human dignity ‖ ‘ ‖ [citation], the court must invalidate the sentence as unconstitut ional

. ‘ ‖ ( Steele, supra, 27 Cal .4th at p. 1269.) Defendant received a death sentence for three burglary and robbery murders committed by him alone, purely for financial gain. Although the three victims cooperated fully with defendant‘s demands and offer ed no resistance, he nevertheless shot and killed them one by one. He also had an extensive prior criminal record including prior prison and jail terms. Defendant attempts to mitigate his personal culpability by citing his traumatic childhood and Vietnam W ar experiences and resulting PTSD. We agree with the trial court that these circumstances ultimately did not affect defendant‘s capacity to appreciate the criminality of his conduct or to conform his72

conduct to the requirements of the law

. Defendant‘s actions at the time of the murders showed a rational, logical, intelligent, and calculated thought process, and his efforts to destroy evidence and to avoid capture by fleeing across the country amply demonstrate his awareness of the wrongful ness of his actions. In light of the evidence and relevant considerations, we conclude defendant‘ s sentence is not disproportionate to his personal culpability , nor does it shock the
conscience.
C. Challenges to California’s D eath P enalty Scheme
Defendant raises a number of challenges to the constitutionality of California‘s death penalty scheme, based upon the Fifth, Sixth, Eighth, and Fourteenth Amendments
of the United States Constitution. As he acknowledges, we have previously considered
and consisten tly rejected these cont entions in prior cases. Presented with no reasons that compel reconsideration, w e adhere to those decisions as follows. Section 190.2 is not impermissibly overbroad. Specifically, the various special
circumstances are not so numero us as to fail to perform the constitutionally required narrowing function, and the special circumstances are not unduly broad or expansive, either on their face or as interpreted by this court. (E.g., Jenkins , supra, 22 Cal.4th at p. 1050 ; see also Brown v. Sanders (2006) 546 U.S. 212, 221 [recognizing that the special circumstances listed in section 190.2 are designed to satisfy the narrowing requirement] .) Section 190.3, factor (a), does not, on its face or as interpreted and applied, permit the ―  ̳ arb itrary and capricious ‘ ‖ or ―  ̳ wanton and freakish ‘ ‖ imposition of a sentence of death. (E.g., People v. Brasure (2008) 42 Cal.4th 1037, 1066; see Tuilaepa v. California (1994) 512 U.S. 967, 976 [―The circumstances of the crime are a traditional subject for consideration by the sentencer, and an instruction to consider the circumstances is neither vague nor otherwise improper under our Eighth Amendment jurisprudence.‖].)73

Neither the federal nor the state Constitution requires the penalty phase jury to

m ake unanimous findings concerning the particular aggravating circumstances, find the truth of every fact supporting all aggravating factors beyond a reasonable doubt , or find beyond a reasonable doubt the aggravating factors outweigh the mitigating factors and death is the appropriate sentence . (E.g., People v. Howard (2008) 42 Cal. 4th 1000, 1031; People v. Fairbank (1997) 16 Cal.4th 1223, 1255.) The United States Supreme Court‘s decisions interpre ting the Sixth Amendment‘s jury trial guarantee (see Cunni ngham v. California (2007) 549 U.S. 270; United States v. Booker (2005) 543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296; Ring v. Arizona (2002) 536 U.S. 584; Apprendi v. New Jersey (2000 ) 530 U.S. 466 ) do not alter these conclusions. (E.g., People v. Bramit (2009) 46 Cal.4th 1221, 12 50 & fn. 22.) Written or other specific findings by the jury regarding the aggravating factors are not constitutionally required. (E.g., People v. Friend (2009) 47 Cal.4th 1, 90.)
I ntercase proportionality review is no t constitutionally required . ( Moon, supra, 37 Cal.4th at p. 48; see Pulley v. Harris (1984) 465 U.S. 37, 50

– 51 .) The use of adjectives such as ―extreme‖ in section 190.3, factors (d) and (g), or ―substantial‖ in section 190.3, factor (g), do not serve as improper barrier s to the consideration of mitigating evidence. (E.g., People v. Cruz (2008) 44 Cal.4th 636, 681.)
The trial court was ― not required to instruct the jury as to which of the listed sentencing factors are aggravating, which are mitigating, a nd which could be either ‖ mitigating or aggravating, depending upon the jury‘s ap praisal of the evidence. ( People v. Manriquez (2005 ) 37 Cal.4th 547, 590 , italics added ; see People v. Hillhouse (2002) 27 Cal.4th 469, 509 [―The aggravating or mitigating na ture of the factors is self

- evident within the context of each case.‖].) Because capital defendants are not similarly situated to noncapital defendants, California‘s death penalty law does not deny capital defendants equal protection by not74

providing certa in procedural protections afforded to noncapital defendants. (E.g., People

v. Cruz, supra, 44 Cal.4th at p. 681.) We reject the argument that the use of capital punishment ―as regular punishment‖ violates international norms of humanity and decency and he nce violates the Eighth Amendment of the United States Constitution. ―California does not employ capital punishment in such a manner. The death penalty is available only for the crime of first degree murder, and only when a special circumstance is found true; furthermore, administration of the penalty is governed by constitutional and statutory provisions different from those applying to  ̳regular punishm ent‘ for felonies. ‖ ( People v.
Demetrulias (2006) 39 Cal.4th 1, 43

– 44.) Lastly, w e find no state or fe deral constitutional violation when the asserted
defects in California ‘ s death penalty scheme are considered collectively. ( People v.
Lucero (2000) 23 Cal.4th 692 , 741.)75 DISPOSITION For the foregoing reasons, the judgment is affirmed in its entirety.

W ERDEGAR , J.

W E C ONCUR :

C ANTIL - S AKAUYE , C. J. C HIN , J. C ORRIGAN , J. L IU , J. C UÉLLA R , J. K RUGER , J.1

See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Cunningham

__________________________________________________________________________________ Unpublished Opinion Original Appeal XXX Ori ginal Proceeding Review Granted Rehearing Granted

__________________________________________________________________________________ Opinion No. S051342 Date Filed: Ju ly 2 , 2015

____________________________________________________________________________ ______ Court: Superior County: San Bernardino Judge: Michael A. Smith

__________________________________________________________________________________ Counsel:

Brian A. Pori and Mordecai Garelick , under appointment s by the Supreme Court, for Defendan t and Appellant.
Edmund G. Brown, Jr., and Kamala G. Harris, Attorney s General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Annie Featherman Fraser and Ronald A. Jakob, Deputy Attorney s General, for Plai ntiff and Respondent.2

Counsel who argued in Supreme Court (not intended for publication with opinion):

Mordecai Garelick 101 Second Street, Suite 600 San Francisco, CA 94105 (415) 495

- 0500

Ronald A. Jakob Deputy Attorney General 600 West Broad way , Suite 1 8 00 San Diego, CA 92101 (619) 645

- 2332