Court: Superior County: Los Angeles Judge: George W. Trammell III and Robert W. Armstrong Super. Ct. No. BA108995
The opinion of the court was delivered by: Chin, J.
A jury convicted defendant Richard Valdez of five counts of first degree murder (Pen. Code, §§ 187, subd. (a), 189)*fn1 and, as to each count, found true special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) and gang and weapon enhancement allegations (§§ 186, subds. (b)(1), (b)(2), 12022, subd. (a)(1), 12022.5, subd. (a).) The jury returned a verdict of death as to each of the victims. The trial court denied the automatic application to modify the verdict (§ 190.4, subd. (e)) and sentenced defendant to death for the five murders. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
On April 22, 1995, the bodies of three adults - Anthony "Dido" Moreno, his sister, Maria Moreno, and Gustavo "Tito" Aguirre - and two of Maria's children - five-year-old Laura Moreno and six-month-old Ambrose Padilla - were found at Maria's apartment on Maxson Road in El Monte, California.*fn2 The evidence presented at trial established that defendant, who was a member of the Sangra street gang, shot and killed Anthony and Gustavo while his codefendant and fellow Sangra gang member Jimmy Palma shot and killed Maria and the children.
The Mexican Mafia was formed in 1957 as a prison gang and, by 1977, controlled most of the criminal activity inside California's prisons. Eventually, it extended its influence outside of the prison system and came to exert control over virtually all Hispanic street gangs in Southern California, including Sangra and El Monte Flores. Hispanic gang members are essentially "soldiers" of the Mexican Mafia and would probably be beaten up or killed for refusing to carry out a Mexican Mafia order. Mexican Mafia members take a "blood oath" when they join and "death is the only way out"; those who attempt to leave the gang are eventually killed, even 10 or 15 years after their disassociation. Dido was a member of the Mexican Mafia from 1973 until he dropped out in the mid 1980's. In January 1995, Raymond Shyrock, a Mexican Mafia leader, stated at a Mexican Mafia meeting: "I don't know if you have ever heard of this brother Dido. He dropped out a long time ago. He's in an apartment where I was living. The mother fucker was living right downstairs but never showed his face. All kinds of people in the pad, bunch of young sisters and kids, all kinds of shit. So I'm trying to figure out how to - I need a silencer is what I need."
On April 22, 1995, Dido and Maria were living in Maria's apartment along with her children. In the afternoon, a car parked in Maria's driveway. Simultaneously, a Jeep containing four Hispanic men stopped in front of a neighbor's driveway and idled. Early that afternoon, Sangra gang member Anthony "Scar" Torres had borrowed a Jeep for about 10-20 minutes from Sangra gang member Victor Jimenez. Four tall, bald, Hispanic men wearing white t-shirts exited the car. One of them had a tattoo on his neck with chain letters. Another had a heavy build. The four men walked toward Maria's residence.
About 2:30 p.m., Luis Maciel, who was a Mexican Mafia member and a former member of El Monte Flores, approached Dido and his brother - Witness No. 15*fn3 - in Maria's driveway. With him were two younger men, one of whom had an El Monte Flores gang tattoo on his arm. When the men arrived, Tito, who was at the apartment, ran inside and hid. Tito, who was a drug user, had robbed several Hispanic drug dealers, including at least one who was paying "taxes" to the Mexican Mafia. This would have subjected him to being killed by the Mexican Mafia. Maciel spoke with Dido and Witness No. 15 for about 30 minutes. He seemed nervous and unusually talkative. As he spoke, he faced the apartment's door and periodically looked inside, enabling him to see Maria and her children. He asked about Witness No. 15's family and Tito's whereabouts. At some point, he offered Dido and Witness No. 15 heroin, which the latter found "suspicious" because, in his experience, "people don't normally give away drugs." Maciel and his companions eventually returned to the car and drove off. Maciel later met with Palma, Witness No. 14, who was an El Monte Flores gang member, and another gang member known as "Diablo," at Maciel's house. Palma arrived in a Nissan Maxima owned by fellow Sangra gang member Danny "Tricky" Logan. Maciel told Palma, "if anything happens to me, go ahead and contact Diablo." Palma stated he "was going to take care of some business" for Maciel and was "strapping," meaning he was carrying a gun. At Maciel's direction, Witness No. 14 gave Palma a small amount of heroin that Maciel had retrieved from his house.
In the late afternoon, Palma asked fellow Sangra gang member Witness No. 16 for a ride to his sister's house. While the two men drove around, Palma said he was expecting a page and, after receiving it, would need Witness No. 16 to take him to the Alhambra house of fellow Sangra gang member Torres. Palma said "they had to take care of something" and "the brothers wanted him."
Witness No. 13, who was Torres's sister, arrived at Torres's house about 7:00 or 7:30 p.m. A short time later, two men arrived looking for Torres; one had a "Sangra" tattoo on his neck and said his name was Jimmy. Jimmy Palma had a "Sangra" tattoo on his neck. Torres was not at home, and the two men left. Torres later arrived at the house accompanied by defendant, who was a Sangra gang member known as "Primo." They went into Torres's room and started making telephone calls. More Sangra gang members, including Palma, Logan, Jose "Pepe" Ortiz, "Creepy,"*fn4 and Witness No. 16, subsequently arrived and went into Torres's room. At some point, Ortiz, who seemed to be in charge, stated that there was "a problem in El Monte" and that they had to go there "to take care of something." Witness No. 16 understood Ortiz's comment to mean they were going to kill someone. While in Torres's room, Ortiz and Palma took methamphetamine and Palma shaved his head.
Sometime before 9 p.m., the men left for El Monte in two groups. Logan drove in his Nissan Maxima with defendant, Palma and Torres, and Witness No. 16 followed in his Ford Thunderbird with Ortiz and Creepy. When they arrived in El Monte, Logan pulled into, or stopped in front of, Maria's driveway on Maxson Road and turned off his headlights. Witness No. 16 drove a few blocks further down the street, pulled over, and turned off the car and the headlights. Ortiz exited the Thunderbird, walked back toward Maxson Road and looked up and down the street. According to several witnesses who were visiting Maria's neighbors that night, the driver of the Nissan remained in the car while three Hispanic men exited and walked down Maria's driveway. After six to eight gunshots rang out, the three men - one holding a handgun - ran back to the Nissan, which then drove away with its lights off. Witness No. 8, who was one of Maria's neighbors, also heard several gunshots at Maria's apartment. A short time later, Maria's six- or seven-year old son - crying, screaming, and covered in blood - came to Witness No. 8's house and said his mother and siblings had been shot. Witness No. 8 then called the police.
Ortiz returned to Witness No. 16's car as police began to arrive and said "Let's go," "Let's get out of here." When they returned to Torres's house, Logan's Nissan was already in the driveway and defendant, Palma, Logan and Torres were inside listening to a police scanner "to see if the people were dead." The men began discussing the shootings on Maxson Road. In front of defendant, Palma said that, while he showed a man some heroin, "Primo had shot him in the head." He also said that, "after the man had got shot," "the lady with the baby said that it wasn't her problem," at which point he "pulled out the gun and shot her and let off rounds on the kids." Defendant confirmed Palma's statements, explaining that "he had shot one guy in the temple and another guy running away from him." Torres said he had "stood by the door with the shotgun making sure nobody would walk up." Logan drove the Nissan and waited in the car while the murders took place.
Responding to Witness No. 8's call, police arrived at the scene of the shooting about 10:40 p.m. They found Dido lying on the ground in a pool of blood just outside of the door to Maria's apartment. Inside the door, Maria was lying face down on the floor in a pool of blood. Next to her, Laura was lying face down in a pool of blood and Ambrose was lying on his back with a gunshot through his eye. Tito was lying face down between the bed and the wall. A three- or four-year-old girl was hiding in the corner.
Dido died from a single gunshot to the head. The bullet entered his skull near the right ear and exited from the left side. A contact wound to the skin indicated that the gun had been pressed to his head when fired. Tito died from a gunshot to the top of the head. A contact wound indicated that the gun had been pressed to his head when fired. Tito also had a nonfatal gunshot wound through his left shoulder. The position of his body was consistent with his having been shot while he was lying at least partially on the bed. Maria died from a gunshot to the head, which had been fired from a distance of a few inches to one foot. She also had a nonfatal gunshot wound to her right buttock. Laura died from a gunshot to her torso, which had entered her back, punctured her lung, and exited from her chest. The angle of the wound suggested she was probably seated or lying down or slightly bent over when she was shot. Ambrose died from a gunshot that entered his right eye and traveled through his mouth, the base of his brain, and his spinal cord before exiting from the back of his neck. A hole in the pillow underneath him suggested he was lying on his back when shot.
During subsequent investigation, police discovered ballistics evidence linking defendant to the Maxson Road shootings. In a house he had lived in until early April 1995, they found an expended .38- or .357-caliber bullet. They recovered similar caliber bullets from a bathroom wall at Maria's apartment and from Tito's head. All three bullets had the same general rifling characteristics and had been fired from a revolver. In a condominium defendant had moved into shortly before the shootings, police found in a bedroom closet a bag of unexpended bullets, some of which were .45-caliber. They recovered two .45-caliber bullets from Maria's body and, at the crime scene, several .45-caliber bullet fragments, a complete .45-caliber bullet, and several .45-caliber shell casings. The bullets recovered from Maria's body and the bullet and bullet fragments had all been fired from the same semi-automatic weapon. In addition, the .45-caliber shell casings had at some point been chambered in the same firearm as the two unexpended .45-caliber bullets found at defendant's condominium.
Police also discovered and collected other evidence linking the various participants to each other and to the shootings. Pager and telephone records showed that Maciel was paged three times from Ortiz's residence on April 22, 1995, and five times from Torres's house that evening between 9:20 and 11 p.m. Between 11:00 p.m. and midnight that night, five calls were placed from Torres's residence to a pager registered to Veronica Lopez, who was defendant's former girlfriend. The next day, Maciel was paged once from Ortiz's residence, twice from Torres's, and three times from Palma's.
The morning of May 2, 1995, police saw Logan arrive in his Nissan at Palma's house. Defendant was in the passenger seat. They left after speaking with Palma for about 2 minutes. Later, Witness No. 16 picked up Palma in his Thunderbird and took him on various errands before returning to Palma's house.
On May 15, 1995, about two hours after police arrested Palma and took him to the Los Angeles County jail, a call was placed from the jail to the condominium defendant had moved into in early April. About 10 minutes later, a call was made from the jail to Palma's residence. Less than 30 minutes later, a call was made from the condominium to Logan's residence. About 50 minutes later, a collect call was made from the jail to the condominium. After the call to Logan's residence but before the last call to the condominium, police saw Torres leave the condominium in a Jeep. They pursued Torres, who eventually abandoned the Jeep, fled on foot, and took refuge in the house of his girlfriend, Jill Steele. They surrounded the house and would not let Steele enter. She spoke with Torres by telephone and then, at his request, called defendant. Meanwhile, police spotted Logan at a nearby restaurant with another Sangra gang member. In Logan's Jeep, they found a change of clothes. Eventually, they entered Steele's house and arrested Torres.
Defendant denied any involvement in the murders. He maintained that, although he had once had been a Sangra gang member, he was not a member at the time of the murders. He attempted to elicit testimony to support this contention during cross-examination of several prosecution witnesses. He also offered a stipulation that Torres's mother, who shared her house with Torres, had not identified him from a photographic lineup. During cross-examination of other prosecution witnesses, defendant attempted to develop evidence that a gang called the Border Brothers may have committed the murders because Tito had robbed drug "connections" associated with that gang.
Defendant also called three witnesses. His best friend, Randi Chavers, testified that he had never seen a gun in defendant's residences and had seen defendant shoot a gun only once, at a public shooting range in 1993. Richard Valdemar, a gang expert who was also a prosecution witness, testified that, after listening to an enhanced recording of Shyrock's comments at the January 1995 Mexican Mafia meeting, he did not believe Shyrock had ordered the children killed and had not intended that they be killed. Defendant introduced this testimony to counter Valdemar's earlier testimony, based on an unenhanced recording of the meeting, that Shyrock had wanted to "silence" Maria and her children. Trent Hampton, defendant's stepfather, testified that defendant was in Utah during all of May 1995. To support this testimony, defendant introduced into evidence an airline ticket issued to Richard Valdez for an April 30 flight from Ontario, California, to Salt Lake City, Utah, and a stipulation with the prosecution that someone named Richard Valdez flew from Ontario, California, to Salt Lake City, Utah, on April 30, 1995. Defendant introduced this evidence to counter the prosecution's evidence that police had seen him at Palma's house on May 2.
Palma called one witness, David Hooker, a state prisoner who testified regarding his conversations with Witness No. 14 while they were in prison together. Witness No. 14 testified for the prosecution that, during a meeting with Maciel on April 22, 1995, Palma said he was "going to take care of some business" for Maciel and was "strapping." According to Hooker, sometime in May 1996, Witness No. 14 said he was in protective custody because the Mexican Mafia had a "green light" on him due to his "involve[ment] in a thing where some kids got killed during a murder." Witness No. 14 explained to Hooker that (1) he sold drugs in partnership with a Mexican Mafia member, (2) on the day of the murders, he threatened a customer who owed money for drugs, and (3) when the customer did not pay despite the threat, he went to the Mexican Mafia member and "arranged to get some vatos from San Gabriel to take the puto out."
In its case-in-chief, the prosecution presented no additional evidence in aggravation against defendant.
Through several witnesses, defendant presented evidence regarding his upbringing, including the following: (1) he was raised and educated in the Catholic religion and received the sacraments of reconciliation and holy communion; (2) in grade school he played Pop Warner football and Little League baseball; (3) in a ninth grade electronics class, he received an A one semester and a B another semester, and in both semesters received an "O" for "outstanding citizenship"; (4) the teacher of the electronics class viewed defendant as being "very responsible," "hard working," intellectually above average, and one of his better students; (5) in 1992, he enrolled in ITT Technical Institute after receiving high scores on the entrance examination; (6) he joined the Navy Reserves and participated in naval duties; and (7) while living with his grandfather after high school, he cared for his grandfather, worked at an auto body shop and a print shop, and helped support his younger brother, who was heavily into drugs.
Defendant presented testimony from three witnesses about his ability to make a positive contribution in prison. Dr. Ronald Fairbanks, a licensed clinical psychologist who interviewed defendant twice, testified that defendant likely had "above average" intellectual abilities and could be productive in prison if given opportunities to work or assist others with reading or obtaining library materials. Jesus Avila, who was housed in a cell near defendant's in the Los Angeles County Jail, testified that defendant had helped him with writing, spelling, speaking, and drawing, and was friendly with other prisoners. Defendant's father testified that, based on defendant's school performance, defendant "could be productive in society through a prison system" and would be able to get his G.E.D.
In rebuttal to defendant's evidence, the prosecution presented testimony from Anthony France, who had been a campus supervisor at San Gabriel High School when defendant was a student. According to France, in December 1991, he detained defendant after breaking up a fight on campus. Defendant called another supervisor his "bitch" and threatened to "kick his ass." Defendant later told France he was "going to put a bullet in [France's] head." On cross-examination, France testified he had not taken defendant's threat seriously, it was not the first time a student had threatened him at a high school, and defendant's threat to put a bullet in his head was a "standard phrase" students used when security officers broke up fights.
On September 20, 1995, a Los Angeles County grand jury returned an indictment charging defendant, Palma, Logan, and Torres with five counts of murder in connection with the events of April 22. As to each count, the indictment also alleged a multiple murder special circumstance (§ 190.2, subd. (a)(3)) and gang and weapon enhancements (§§ 186, subds. (b)(1), (b)(2), 12022, subd. (a)(1), 12022.5, subd. (a).) In December, the grand jury returned an amended indictment containing identical charges and adding Ortiz and Maciel as defendants. In September 1996, the court ruled that defendant and Palma would be tried together before a single jury and ordered separate trials for the other defendants.
Jury selection began on September 30, 1996, and a jury was sworn on October 17, 1996. Counsel began opening statements on October 21, 1996. The jury began guilt phase deliberations on November 18, 1996, and declared an impasse on November 25, 1996. It resumed deliberations after further instructions from the court. On November 27, 1996, the court excused a juror who declared she could not, under any circumstances, impose the death penalty and could not be objective during the guilt phase in light of the possibility of a penalty phase. It replaced the juror with an alternate and, on December 2, 1996, instructed the jury to begin deliberations anew. On December 4, 1996, the jury returned guilty verdicts on all counts and found all allegations true. The penalty phase began on December 9, 1996, and concluded on December 13 with jury verdicts of death. On June 11, 1997, the trial court denied motions for new trial and applications to modify the verdicts, and sentenced defendant and Palma to death. This appeal is automatic.*fn5 (§ 1239.)
III. Discussion A. Nondisclosure of Witnesses' Identities
Defendant alleges numerous errors in connection with protective orders the trial court issued delaying and limiting disclosure of the identities of certain prosecution witnesses. For reasons explained below, defendant's claims fail.
At the prosecution's request, on September 29, 1995, nine days after the return of defendant's indictment, the Hon. James Bascue, who was the presiding judge of the grand jury, ordered redaction from the grand jury transcripts of the names of 13 grand jury witnesses and certain identifying information regarding a 14th witness. He also ordered defense counsel not to show or provide copies of the transcripts to anyone absent further court order. Judge Bascue found "overwhelming good cause" for these orders based on the prosecution's showing that the life of anyone who testified would be "extremely and seriously in danger." On October 19, 1995, Judge Bascue issued a second order sealing the grand jury transcripts and exhibits. The order provided that each defense counsel was to receive a redacted copy of the transcripts, but could not share the transcripts with anyone absent further court order.
About six weeks later, on November 7, 1995, after transfer of the case to the superior court, Judge Robert Dukes revisited the issue upon defense counsel's motion for greater disclosure of the witnesses' identities. After conducting an in camera hearing pursuant to section 1054.7, at which the prosecution presented evidence, Judge Dukes ordered continued redaction of the witnesses' identities and addresses. However, he also ordered the prosecution to make the witnesses available for interview by defense counsel and/or their investigators or for lineups. Judge Dukes order also specified that: (1) defense counsel could not disclose to their clients, or put into any report, witness identities they discovered as a result of the interviews; (2) the prosecution could provide defense counsel with information about witnesses' prior convictions if the witnesses' identities were not revealed; and (3) defense counsel could obtain police reports regarding the crimes if the witnesses' names, addresses, and information pointing to their identities and residences were deleted. Judge Dukes invited defense counsel to return to court should they feel the order needed amending.
A few months later, Judge J. Stephen Czuleger, to whom the case was initially assigned for trial, decided to consider the issue de novo and ordered the prosecution to make a new showing to justify nondisclosure. In March 1996, after the prosecution presented evidence at an in camera hearing pursuant to section 1054.7 and the parties presented argument, Judge Czuleger issued a written order providing: (1) the identities of 10 "stranger" witnesses -- those who do not know any of the defendants and who are not connected to a gang -- and the identity of Witness No. 13 were to remain undisclosed and "will be made available at the time the witness[es] testif[y]," and their addresses and telephone numbers were to be "permanently" undisclosed; (2) the identities, addresses, and telephone numbers of the remaining witnesses were to remain undisclosed until further court order; (3) upon 15 days' written notice, the prosecution was to make any witness available once for a recorded interview by defense counsel at the prosecution's office, the prosecution could be present during the interview if the witness so requested, and any party could memorialize the interviews by tape recording or stenographic reporter; (4) the prosecution must give defense counsel a record of any convictions suffered by the witnesses, but could redact from that record any case number or identifying information; (5) defense counsel, upon learning a witness's identity, place of residence, or place of employment could not disclose this information "to any person," but could disclose a witness's identity to the client "if such disclosure is necessary to adequately represent their client," provided that such disclosure as to the "stranger" witnesses and Witness No. 13 could not occur absent prior court order; (6) defense counsel and their investigators could review with their clients police reports, court transcripts, and grand jury proceedings, but could not give any of this material to anyone absent court order; (7) the prosecution could redact from all police reports the witnesses' names and all information that would reveal their identities, addresses, telephone numbers, or places of incarceration; (8) until further court order, the previous court-ordered redactions of the grand jury proceedings would remain in effect and the grand jury transcripts, witness lists, and exhibits would remain sealed. Judge Czuleger's order recited that it was based on "good cause having been shown as to threats and/or possible danger to the safety of witnesses."
In September 1996, after reassignment of the case for trial to the Hon. George Trammel III, the nondisclosure issue arose again in connection with defense counsel's request for videotapes of witness interviews. The prosecutor explained his assumption that, under the existing orders, he would disclose the witnesses' identities to defense counsel "a day or two before they testify." Judge Trammel, after stating that he could not revisit the prior rulings absent new and previously unavailable information, stated: "I will require that at least 48 hours in advance of any witness testifying that their particular tape be actually turned over. . . . [Defense counsel has] my assurances, if the redacted portions, if you're able to show you need a mid trial continuance for the purposes of doing some . . . material investigation, you'll get it. You have my word on that."
During jury voir dire on October 2, 1996, Palma's counsel complained that the existing court orders, though allowing him to read to his client the information in the police reports and grand jury transcripts, prohibited Palma from actually looking at that material. The prosecution disagreed with defense counsel's interpretation, arguing that the court's orders precluded defendants not from reading the material, but from keeping copies of it. Judge Trammell then clarified that, under the court's orders, defendants could read the material but could not "walk away with it."
On Wednesday, October 16, 1996, five days before trial began, defendant's counsel requested that the prosecution provide the witnesses' names so he could review them with defendant. The prosecutor responded in part that the witnesses were still in danger. He also noted that defendant's counsel had received "rap sheets as far as [the witnesses'] felony convictions," and had "been given an opportunity to interview in person the vast majority of the witnesses." Judge Trammell then explained that, "to strike a balance" between the prosecution's concern for the witnesses' safety and defendant's right to a fair trial, he would "withhold [the witnesses'] names with this understanding, that when one of these witnesses takes the stand that [defense counsel] will have the right before [they] begin cross examination if [they] can give a good cause reason for delaying cross examination because [they] didn't know who the person was, I will give it to you. In other words, I am not about to let . . . or make [defense counsel] start to cross examine until [they] are fully prepared." After the court's ruling, the prosecution indicated its intent to identify the witnesses "within a couple of days of their testimony." It also stated that it had no objection to giving defense counsel the names of "some of" the witnesses "on Friday with the understanding that they not tell their clients" the names of the "stranger" witnesses. The court stated that it wanted to defer its decision on the prosecution's suggestion. After addressing other matters, it concluded the day's proceedings by stating: "To the extent as the case moves on, if [the prosecution] can keep counsel apprised of who the witnesses next up will be for the next day so that they can use the evening to prepare for cross examination, again, that would be helpful."
Before opening statements began on October 21, the court asked the prosecution whether it wanted to refer to the witnesses by number or name. The prosecution responded that it wanted to use numbers, in order to keep the witnesses' identities out of the public record. It also stated that, "at this point," it was "willing to give" defense counsel the names of all unidentified witnesses, so long as defense counsel did not repeat the information to anyone "unless they can articulate a reason why they need to." Palma's counsel objected that identifying the witnesses by number instead of by name would be prejudicial. After agreeing with Palma's counsel, the court explained that defense counsel was "going to get the names" but could not reveal that information to their clients absent a showing of good cause. The prosecution then suggested that the witnesses be identified at trial by aliases.
The next morning, before opening statements resumed, the prosecutor expressed concern about using aliases and suggested that the witnesses instead be identified by name in court but only by number in the transcript. During his remarks, the prosecutor noted that he had given Palma's counsel "the names of the two people who may testify today," that he had not had "an opportunity to talk to" defendant's counsel, and that "at the recess at 11:00 we are going to go over the other list of names." Later that morning, "Witness No. 9" -- one of the "stranger" witnesses -- began testifying. After a three-hour lunch recess, she resumed her direct testimony. She was followed by Witness No. 8, another of the "stranger" witnesses. Although given the opportunity, defense counsel declined to cross-examine either witness.
The next afternoon, October 23, the prosecution called three more of the "stranger" witnesses: "Witnesses Nos. 1, 2 and 3." Defense counsel cross-examined two of these witnesses. On October 24, the prosecution called "Witnesses Nos. 13 and 15." Witness No. 13's testimony concluded on October 28, after a three-day break. Defense counsel cross-examined both of these witnesses extensively.
The morning of Friday, October 25, the prosecution asked the court to order that defense counsel "not tell . . . their clients which witnesses are going to be testifying the next day." He explained that, on the previous Wednesday, he had informed defense counsel "in front of their clients" that Witness No. 15 would be testifying on Thursday and that there was evidence steps had thereafter been taken to have the witness killed. He further explained: "I have no problem with telling [defense counsel] the expected order that I believe we'll have for the rest of the trial. I've been letting them know the day before but I will even tell them for the rest of the trial. I have no problem with that whatsoever. And I have told them . . . the true names of the witnesses. But I do want an order. And the mistake I made the other day was saying it in front of the defendants, . . . and I could have cost a man his life. But I do want an order that the defendants not be told by their counsel, the prospective order of witnesses." The court granted the prosecution's request and ordered defense counsel "not to divulge to their clients directly or indirectly the order in which witnesses are called." Based on the evidence, the court found that the witnesses' lives and safety "far outweigh[ed]" any detriment to the defense "in a defendant not knowing who's coming the next day."
In response to the court's ruling, defendant's counsel, after stating he was "glad" the prosecution had "been telling us the night before [so] at least we can open the book at least and prepare," asked that the court give him some time to prepare for cross-examination after a witness takes the stand. The court responded: "If it is a reasonable amount of time, certainly. If it is a couple of days, no. But if it is a matter of 10 or 15 minutes or 20 minutes, I have no problem with that. I think under the circumstances it is reasonable . . . . Again, I am not real concerned with the time on this case anymore. I am not saying that you can have several days but certainly that's not an unreasonable request and I am certainly inclined to go along with it."
Regarding the court's statement that the danger to the witnesses outweighed any detriment resulting from the defendants' failure to know who would be testifying the next day, Palma's counsel then interjected: "One additional matter so the record's clear as [to] our position on this. . . . I think what our position has been . . . in this it is not that we just don't know who the witness is going to be the day before, we don't know who the witnesses are at all. . . . We have been handcuffed all through the preparation of this case because of this restrictive order and I just want that to be part of the record." The court responded by assuring Palma's counsel that he, like defendant's counsel, would "be given a reasonable amount of time [before beginning for cross-examination] and I suppose what is reasonable would depend on the circumstances. You're not going to find me . . . to be trying to rush this case along because . . . it's moving along quite quickly."
Two more protected witnesses -- Witnesses Nos. 14 and 16 -- subsequently testified for the prosecution. The former testified on October 30, and was cross-examined by both defense counsel. The latter began his testimony on October 31 and, four days later, on November 4, returned to the stand for an extensive cross-examination by defense counsel that consumed almost the entire day of trial.
2. Alleged Violation of Constitutional Rights
Defendant asserts that, by withholding the witnesses' identities, the trial court violated his constitutional rights to due process, to a fair trial, to confront witnesses and to a reliable determination of death judgment. His assertions lack merit.
The starting point for our conclusion is Alvarado v. Superior Court (2000) 23 Cal.4th 1121 (Alvarado), where we dealt with somewhat similar disclosure issues. There, a grand jury, based on the testimony of three inmate witnesses, returned an indictment charging two jail inmates with murdering another inmate. (Id. at p. 1126.) The prosecution provided the defendants with transcripts of the witnesses' grand jury testimony and information regarding their criminal histories, but refused to disclose their identities; the transcripts identified them only by witness number. (Id. at pp. 1127-1128.) After holding a series of in camera hearings from which it excluded the defendants, the trial court entered a protective order providing as follows: (1) the prosecution could permanently withhold the witnesses' identities; (2) the prosecution had to produce the witnesses for interview by defense counsel 30 days before trial, although the witnesses did not have to speak with counsel or disclose their names; (3) if defense counsel learned the witnesses' names, they could not disclose them to defendants; and (4) the witnesses did not have to disclose their names even at trial. (Id. at pp. 1128-1130.) After the Court of Appeal upheld the order, we granted review to determine whether the order violated the defendants' "constitutional rights to due process of law and to confront the witnesses against them." (Id. at p. 1132.)
We first held in Alvarado that the protective order was valid insofar as it permitted pretrial nondisclosure of the witnesses' identities. (Alvarado, supra, 23 Cal.4th at pp. 1134-1136.) As a statutory matter, we explained, although the prosecution must generally disclose at least 30 days before trial the names and addresses of persons it intends to call as witnesses at trial (§§ 1054.1, subd. (a), 1054.7), "section 1054.7 establishes that a trial court has discretion to deny, restrict, or defer disclosure for good cause," which "expressly includes 'threats or possible danger to the safety of a victim or witness.' [Citation.]" (Alvarado, supra, at p. 1134.) The trial court properly found good cause, we reasoned, based largely on evidence that the Mexican Mafia had ordered the homicide, posed an extreme danger to government witnesses, had an excellent intelligence network and, before approving a contract to kill a witness, demanded documentation identifying an individual as a government witness. (Id. at pp. 1128-1129, 1136.) Constitutionally, we continued, no authority suggests that section 1054.7, insofar as it authorizes "the denial of pretrial disclosure" based on concerns for witness safety, is "unconstitutional under either the confrontation or the due process clause." (Alvarado, supra, at pp. 1135, 1134.) Moreover, in rejecting the defendants' constitutional attacks on pretrial nondisclosure, we relied on high court decisions for the following propositions: (1) " 'the right of confrontation is a trial right' "; (2) " '[t]here is no general constitutional right to discovery in a criminal case' "; and (3) " 'the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded.' " (Id. at pp. 1134-1135.)
However, we further held that the protective order exceeded constitutional bounds insofar as it authorized "crucial witnesses whose veracity and credibility [were] likely to be central to the prosecution's case" to testify at trial without disclosing their identities during their testimony, where "nondisclosure would significantly impair the defense's ability to investigate or effectively cross-examine them." (Alvarado, supra, at pp. 1146-1147.) In reaching this conclusion, we agreed with the People that "the confrontation clause does not establish an absolute rule that a witness's true identity always must be disclosed." (Id. at p. 1146.) However, we continued, "in every case in which the testimony of a witness has been found crucial to the prosecution's case the courts have determined that it is improper at trial to withhold information (for example, the name or address of the witness) essential to the defendant's ability to conduct an effective cross-examination. [Citations.]" (Ibid.) "Thus, when nondisclosure of the identity of a crucial witness will preclude effective investigation and cross-examination of that witness, the confrontation clause does not permit the prosecution to rely upon the testimony of that witness at trial while refusing to disclose his or her identity." (Id. at p. 1151, italics added.)
As defendant concedes, the protective order here at issue did not suffer from the same constitutional infirmity that afflicted the order in Alvarado; it did not authorize permanent nondisclosure of the identity of any witness, crucial or otherwise. Indeed, the record reflects that all but one of the protected witnesses who actually testified at trial identified themselves during their testimony.*fn6 Nor does defendant challenge the adequacy of the prosecution's showing that the witnesses would have been in significant danger had their identities been disclosed. Indeed, the evidence the prosecution presented in this regard was similar in many respects to the evidence we found adequate in Alvarado to justify a pretrial nondisclosure order. Specifically, the prosecution presented evidence that the Mexican Mafia ordered at least one of the murders, posed an extreme danger to the People's witnesses, had an excellent intelligence network, and demanded documentation identifying an individual as a government witness before approving a contract to kill a witness. Thus, as Alvarado establishes, the record was sufficient to justify a pretrial nondisclosure order.
Nevertheless, defendant asserts, the protective order was constitutionally invalid insofar as it allowed the prosecution to withhold the witnesses' identities "until the moment [they] took the witness stand," "immediately prior to their testimony." This "belated disclosure," defendant argues, "failed to provide [him] with an adequate opportunity to investigate and prepare his defense." As to the "stranger" witnesses -- those who had no connection to the defendants and saw relevant events at the victims' home from nearby locations -- it prevented him from determining whether they harbored bias or prejudice against him or other defendants, whether they had reason to testify falsely, or where they were when they made their observations. As to the other protected witnesses -- who defendant asserts were " 'crucial witnesses' " within the meaning of Alvarado -- it prevented defendant from adequately investigating grounds for impeachment, i.e., their " 'reputation[s] for truthfulness or dishonesty, previous history and accuracy of providing information to law enforcement, and other motives to fabricate, such as revenge or reduction of their own charges.' " More generally, defendant asserts, nondisclosure prevented the defense from investigating a viable defense theory -- that the murders were carried out not by the Sangra gang, of which defendant was a member, but by the El Monte Flores street gang -- and fundamentally impaired his relationship with counsel by "prohibit[ing]" his attorney "from discussing any matter . . . that might disclose the identity of a [protected] witnesses." In these respects, defendant asserts, the court's order prevented him from having "an adequate opportunity to investigate and prepare his defense" and "effectively denied [him] the ability to present potentially mitigating and exonerating evidence."
Defendant's arguments are unpersuasive. As a factual matter, the record does not support defendant's assertion that the witnesses' identities were unknown to the defense until the moment the witnesses took the stand. As detailed above, on Wednesday, October 16, 1996, five days before trial began, the prosecution indicated its intent to identify the witnesses "within a couple of days of their testimony" and stated that it was willing to disclose to defense counsel the names of "some of" the witnesses on Friday, October 18. Before opening statements began on Monday, October 21, the prosecution indicated that it was "willing to give" defense counsel the names of all unidentified witnesses, so long as defense counsel did not repeat the information to anyone "unless [counsel] can articulate a reason why they need to." The next morning, before opening statements resumed, the prosecution indicated that it had already given Palma's counsel "the names of the two people who may testify today," that it had not had "an opportunity to talk to" defendant's counsel, and that "at the recess at 11:00 we are going to go over the other list of names." On Friday, October 25, the prosecution indicated that it had "told" defense counsel "the true names of the witnesses," that it had been telling defense counsel "the day before" which witnesses would be testifying the following day, and that it was willing to tell defense counsel the order of witnesses "for the rest of the trial." As defendant concedes, this record supports a finding that the prosecution disclosed the identities of all witnesses by October 22, the day the parties completed their opening statements and witnesses began to testify.*fn7 Thus, the record suggests that, except as to the two "stranger" witnesses who testified on October 22 -- "Witnesses Nos. 8 and 9" -- defendant knew the protected witnesses' identities a day or more before they testified.*fn8 As to Witnesses Nos. 8 and 9, the record indicates that the prosecution disclosed their identities several hours before they took the stand. As to the witnesses defendant asserts were "critical" -- Witnesses Nos. 13, 14, 15 and 16 -- the record indicates that defendant's counsel knew the witnesses' identities at least two days, and as much as two weeks, before he had to begin cross-examination.*fn9
As a legal matter, governing precedent does not support defendant's constitutional claim. As the high court has explained, "[t]here is no general constitutional right to discovery in a criminal case" and " '[t]he Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded. . . .' [Citation.]" (Weatherford v. Bursey (1977) 429 U.S. 545, 559.) Applying these principles, the Weatherford court found no constitutional violation where the prosecution surprised the defendant at trial by calling to the stand a previously unidentified witness. (Id. at pp. 559-561.) The court rejected the argument that the lack of advanced disclosure deprived the defendant "of the opportunity to investigate [the witness] in preparation for possible impeachment on cross-examination," explaining: "[T]here was no objection at trial to [the witness's] testimony, no request for a continuance, and even now no indication of substantial prejudice from this occurrence." (Id. at p. 561; see also United States v. Edwards (7th Cir. 1995) 47 F.3d 841, 842-843 [Constitution does not require disclosure of protected witness's identity before the morning of his testimony].)
For several reasons, we similarly find no constitutional violation in this case. First, at the same time it authorized pretrial nondisclosure of the witnesses' identities, the court afforded defendant several methods of investigating those witnesses, including potential sources of impeachment evidence. As detailed above, in early November 1995, almost a year before trial began, the court directed the prosecution to make the witnesses available for interview by defense counsel, authorized the prosecution to provide defense counsel with information about the witnesses' prior convictions, and authorized defense counsel to obtain police reports regarding the incident. In March 1996, still more than six months before trial, the judge initially assigned for trial ordered the prosecution to make the witnesses available for a recorded interview by defense counsel and to give defense counsel a record of the witnesses' prior convictions. Second, by October 16, 1996, five days before trial began, defendant's counsel had in fact received information regarding the witnesses' prior convictions and had interviewed "the vast majority of the witnesses." Third, when the court issued a protective order in November 1995, it specifically invited defendant's counsel to seek amendment of the order should he determine that further disclosure was necessary.*fn10 Similarly, in March 1996, when Judge Czuleger revisited the issue de novo, he emphasized that the protective order was "a work in progress as this case progresses" and that "one of [his] largest concerns [was] that these defendants be adequately represented and be able to adequately defend themselves." Fourth, the court stated several times that it would grant defense counsel continuances during trial upon a showing that the delayed disclosure of the witnesses' identities had hampered counsel's ability to prepare for cross-examination.*fn11 Fifth, despite the court's offers, defendant's counsel made no attempt to demonstrate that further disclosure was necessary to his trial preparation and, during trial, never requested a continuance before beginning cross-examination.*fn12
The sixth relevant factor is that the court's protective orders did not in fact "significantly impair" defendant's "ability to investigate or effectively cross-examine" the witnesses he maintains were "crucial" to the case against him: Witnesses Nos. 13-16. (Alvarado, supra, 23 Cal.4th at p. 1147.) As defendant asserts, the most crucial witness was Witness No. 16, the Sangra gang member who testified that defendant and Palma said defendant shot one man in the head and that defendant said he also shot another man who was running away. Defendant's counsel interviewed Witness No. 16 in July 1996, three months before trial began, and by his own admission, knew the witness's identity at least two weeks before the witness began testifying. At trial, Palma's counsel cross-examined the witness first, and he extensively exposed to the jury the witness's criminal background and his incentives to help the prosecution. Defendant's counsel followed with his own lengthy cross-examination, which included questions about his July interview with the witness and the witness's grade-school association with Creepy.*fn13
During closing argument, defendant's counsel took full advantage of this cross-examination, hammering hard at the witness's credibility. Counsel argued that the prosecution's case against defendant was "centered around" and depended "on the testimony of one man" -- Witness No. 16 --who "smoked PCP"; who lied to the grand jury and the police regarding his own involvement in the murders, "even after being granted immunity"; who "had a purpose" and "his own agenda"; who "told you a story that would . . . separate him . . . from being an accomplice"; and who "took every step in order not to be involved even though he drove the leader of the pack to the [murder] site." Defendant's counsel also emphasized what he believed were inconsistencies in the witness's testimony, noting that, although he testified he had been to Valdez's house, he could not find it "when he drove the [sheriff's] officers around" after the murders.
Palma's counsel likewise attacked Witness No. 16's credibility during closing argument, stressing that the witness was a gang member and "a PCP abuser"; that "he was heavily using PCP at the time" of the murders; that he lied the first time he spoke with police about the crimes, saying he did not know anything about them and "lie[d] under oath" to the grand jury; that he initially refused to testify before the grand jury even after being "granted immunity"; that during the time he was in jail for refusing to testify before the grand jury, he was "getting his story together, his version of the truth"; that, in exchange for his trial testimony, he got "out of jail," received "complete immunity . . . from prosecution for five murders," got his "dope" and "drunk driving cases taken care of," and was "relocated out of the area" along with "his whole family." Summing up, Palma's counsel stated: "[Witness No. 16's] credibility is unbelievable and . . . you should not rely upon him. When you talk about him and when you discuss his testimony, you think about his background. . . . You talk about his lies, you talk about his motives for testifying in this case and then see if he's believable."
As to Witnesses Nos. 14 and 15, we first question defendant's assertion that these witnesses were "crucial" to the case against him. Neither witness provided any testimony about defendant. The latter testified about his encounter at the Maxson Road apartment some nine hours before the murders occurred (2:30 p.m.) with Maciel and two younger men, one with an El Monte Flores gang tattoo on his arm. He also testified that Tito had robbed drug dealers associated with the Border Brothers, a group that sold drugs in the El Monte area and would kill those who stole their drugs. During closing argument, defendant's counsel relied on this witness to argue that defendant was not involved in the murders and that members of either the El Monte Flores gang or the Border Brothers committed the murders. Witness No. 14, a member of the El Monte Flores gang, testified that on the evening of the murders, Palma said he "was going to take care of some business" for Maciel, a former El Monte Flores gang member. This testimony supported defendant's alternate theory that the El Monte Flores gang committed the murders. Thus, these witnesses may have been more crucial to defendant's defense than to the prosecution's case against him.
Consistent with his defense, defense counsel made little effort during cross-examination to impeach Witnesses Nos. 14 and 15. Instead, he focused his efforts on developing evidence that members of the Border Brothers or the El Monte Flores gang, rather than Sangra gang members, committed the murders. Palma's counsel, however, thoroughly cross-examined both witnesses at trial, exposing their criminal backgrounds and their extensive drug use.*fn14 During closing argument, Palma's counsel later attacked Witness No. 14's credibility, arguing that he was "an admitted liar" and "a dope user" who "admitted to using dope on at least two occasions on" the day of the murders; that he was a "convicted kidnapper, a convicted robber, and a convicted dope seller" who "lied to the police when he was being interviewed the first time"; and that, as a member of the El Monte Flores gang, which was a Sangra rival, he had "an additional motive to draw a member of Sangra gang into this conspiracy." Palma's counsel also attacked Witness No. 15's credibility, arguing: "I am not sure there is anything that you can believe that comes out of that guy's mouth. Here is a guy committing crimes, stealing people's property, and going down and selling it for drugs and seems kind of proud of it the way he testified." Thus, even were Witnesses Nos. 14 and 15 crucial to the case against defendant, the record shows that the court's protective orders did not significantly impair the defense's ability to prepare for and cross-examine these witnesses.*fn15
Also unpersuasive is defendant's assertion that Witness No. 13 was crucial to the prosecution's case against him. Witness No. 13 testified that sometime before 8:30 or 9 p.m. on April 22, 1995, defendant and Torres arrived together at Torres's house, went into Torres's room and began making telephone calls, and were later joined by other Sangra gang members, including Logan. However, Torres's mother, whose identity was not withheld from defendant, similarly testified that, beginning about 6:00 p.m. on April 22, 1995, several of Torres's friends, including defendant, arrived at Torres's house and went into Torres's room. During closing argument, defendant's counsel stated, "There's no doubt that [Torres's mother] was credible." He also stated that both Witness No. 13 and Torres's mother were "the most credible witnesses so far that have come along." Given that Witness No. 13's testimony substantially duplicated that of Torres's mother and that defendant's counsel conceded at trial that both witnesses were credible, his claim that the delayed disclosure of Witness No. 13's identity hampered his defense fails.
Regarding the "stranger" witnesses, defense counsel conducted little or no cross-examination. However, these witnesses testified only briefly about their observations on the day of the murders, and none of them identified defendant, Palma, or anyone else. In fact, three of them testified they could not identify anyone they saw that day, and a fourth said he could not describe anyone he saw. One of the former testified she was "positive" none of the people she saw was in court. Thus, defendant's professed inability to determine whether these witnesses harbored any bias or prejudice against him or other defendants, whether they had reason to testify falsely, or where they were when they made their observations, did little, if anything, negatively to impact his case. On the contrary, although he now complains about his inability to impeach these witnesses, during closing argument at trial, he urged the jury to rely on Witnesses Nos. 8 and 9, stressing their failure to identify him as one of the men who visited the victims' residence the afternoon of April 22 and commenting that no reason existed to doubt their credibility. Regarding the other "stranger" witnesses, who testified that a Nissan Maxima pulled up later that night, defendant's counsel actually bolstered their testimony, commenting, "obviously, that's what had to occur."*fn16
Defendant's arguments as to why the trial court's efforts to protect his ability to put on a defense were insufficient are unpersuasive. Defendant asserts that the possibility of a continuance was "patently inadequate" given that the witnesses' identities were not disclosed until immediately before their testimony and the court indicated it would consider delaying cross-examination only for "10 or 15 or 20 minutes." However, as explained above, defendant is incorrect in asserting that the witnesses' identities were not disclosed until the moment they took the stand. Moreover, as the People assert, the record indicates that the court made its comment about delaying cross-examination for 10, 15, or 20 minutes in the context of discussing its order precluding defense counsel from disclosing the order of witnesses to their clients, not with respect to the disclosure of the witnesses' identities to defense counsel. With regard to the disclosure of the witnesses' identities, as explained above, in September 1996, the court gave defense counsel its "word" that it would grant "a mid trial continuance" if counsel showed they needed to investigate the witnesses after disclosure of their identities, and on October 16, 1996, just five days before trial began, it again told defense counsel: "[W]hen one of these witnesses takes the stand . . . you will have the right before you begin cross examination if you can give a good cause reason for delaying cross examination because you didn't know who the person was, I will give it to you. In other words, I am not about to let you or make you start to cross examine until you are fully prepared."*fn17 Given this record and defendant's failure to test the court's sincerity by requesting a continuance, it is defendant's argument, not the court's promise of a continuance, that is "patently inadequate." Having declined to seek a continuance, defendant is in no position to argue he "had too little time to conduct an adequate investigation."
For several reasons, defendant also errs in arguing that, by "prohibit[ing]" his counsel "from discussing any matter with [him] that might disclose the identity of a [protected] witnesses," the court's order "[i]nevitably . . . undermined" his "confidence in his counsel," thus "fundamentally interfer[ing] with the attorney-client relationship." First, the court's order was not as restrictive as defendant asserts. As explained above, the order permitted defendant's counsel to review with defendant police reports, court transcripts, and grand jury transcripts, redacted to protect identifying information. It also provided that, upon discovering the identities of Witnesses Nos. 14, 15, and 16 -- who were three of the four witnesses defendant now asserts were "crucial" -- defendant's counsel could disclose that information to defendant "if such disclosure [was] necessary to adequately represent" him. Even as to the remaining witnesses -- the "stranger" witnesses and Witness No. 13 -- the order did not forever bar counsel, upon discovering a witness's identity, from disclosing that information to defendant; it simply required that counsel obtain a "court order" authorizing disclosure. Thus, the order only minimally inhibited communication between defendant and his counsel. Second, to the extent the order prevented information sharing, it should not have undermined defendant's confidence in counsel. Counsel could simply have explained that the court's order precluded him from sharing certain information with defendant. Though defendant might have been unhappy with the order, he would have had no basis for losing confidence in counsel as a result of the court-ordered nondisclosure.
Defendant next errs in asserting that pretrial nondisclosure prevented him from developing and pursuing a viable defense theory -- that the murders were carried out not by Sangra gang members, but by members of the El Monte Flores gang. The only way in which defendant asserts that pretrial nondisclosure hampered development of this theory was by "effectively prevent[ing]" him from establishing that Witnesses Nos. 14 and 15 "were trying to falsely implicate members of the rival Sangra gang" and/or "were trying to protect fellow members of El Monte Flores (perhaps out of a sense of gang loyalty or fear of retribution)." However, Witness No. 15, who was or had been an El Monte Flores gang member, actually supported this defense theory by testifying at trial that Maciel and the two men who visited Moreno on the afternoon of April 22 were probably from El Monte and that one of the men had "E.M.F." tattooed on his arm, indicating the El Monte Flores gang. Nor in his trial testimony did he implicate defendant, Palma, or anyone else in the Sangra gang. Notably, during closing argument, defendant's counsel relied heavily on Witness No. 15, stressing that the witness had not identified defendant or Palma, had not otherwise indicated that anyone from Sangra was involved, and had noticed that one of the visitors that afternoon was from the El Monte Flores gang.*fn18 After recounting Witness No. 15's testimony, defendant's counsel told the jury, "so there's no indication yet during the build-up of this conspiracy as alleged by the People that Sangra was even involved in this matter." Consistent with this argument, but contrary to defendant's current assertion, during closing argument defendant's counsel explained to jurors why they should find Witness No. 15 credible, stating: "You just can't help but like a gentleman . . . [who has] spent most of his time in prison who has lost a niece, nephew, and a brother. He had no grudge. . . . He's been involved in the system enough to know that you can't lie yourself out of the system anymore. You can't lie when you were on the stand." Witness No. 14 also supported defendant's theory, by identifying Maciel as a member of the El Monte Flores gang and testifying that, on the evening of April 22, Palma said he was going to "take care of some business" for Maciel. The witness did not identify Palma as a member of the Sangra gang, and he testified that he was in no way identifying defendant. Indeed, during closing argument, defendant's counsel relied on Witness No. 14, stressing that the witness had not identified defendant and stating that the witness was credible because he "ha[d] nothing to beef about." Thus, defendant fails to show any way in which pretrial nondisclosure hampered development of his theory that members of the El Monte Flores gang committed the murders.*fn19
Finally, defendant errs in asserting that we must reverse because the trial court, in March 1996, ordered that the addresses of the "stranger" witnesses and of Witness No. 13 be "permanently" undisclosed. As already explained, that information was "inconsequential to the defendant's right to a fair trial under the facts presented. [Citations.]"*fn20 (Alvarado, supra, 23 Cal.4th at p. 1142.) For all of these reasons, defendant's constitutional claim fails. (See People v. Lopez (1963) 60 Cal.2d 223, 246-247 [protective order authorizing prosecution to withhold identities of witnesses until 24 hours before they testified did not deprive the defendant of a fair trial].)
3. Alleged Violation of Work Product Protection
Defendant asserts the trial court, by "requir[ing]" his counsel to interview the protected witnesses "in the presence of the prosecutor" and authorizing any party to memorialize the interviews, violated his counsel's work product privilege. According to defendant, "[t]he questions defense counsel . . . asked of prospective prosecution witnesses necessarily revealed the very substance of the attorney's strategies with respect to the witnesses, which information is protected under the constitutionally mandated work product privilege of a criminal defense attorney." At trial, defendant asserts, the prosecution "used the fruits of" this work product violation "to bolster the testimony of [its] witnesses," "to deter impeachment by the defense," and "to falsely insinuate that the defense had been afforded a fair and independent opportunity to investigate the case." Defendant insists that this use by the prosecution of defense counsel's interviews prejudiced his case and requires reversal.
For several reasons, defendant's argument fails. Procedurally, defendant forfeited it by failing to raise it in the trial court. In his briefs, defendant cites nothing in the record indicating that his counsel (or any codefendant's counsel) objected that the prosecution's attendance at defense counsel's interviews violated counsel's work product privilege, and our own search of the record reveals no such objection. Nor did defendant's counsel object at trial when, during his examination of some of the witnesses, the prosecution mentioned defense counsel's interviews. Under the circumstances, defendant may not now assert a violation of his counsel's work product privilege as a ground for reversal. (See People v. Zamudio (2008) 43 Cal.4th 327, 354; People v. Combs (2004) 34 Cal.4th 821, 862.)
On the merits, defendant's argument fails for one simple reason: the trial court did not, as defendant asserts, mandate the prosecution's attendance at the interviews. Rather, as explained above, the trial court ruled that the prosecution could attend a particular interview if the witness requested the prosecution's attendance. As defendant concedes, although a criminal defendant may ask witnesses to give interviews, witnesses have no legal obligation to grant that request; they may decline to speak with a defendant. (Reid v. Superior Court (1997) 55 Cal.App.4th 1326, 1337, fn. 4; People v. Pitts (1990) 223 Cal.App.3d 606, 872; Walker v. Superior Court (1957) 155 Cal.App.2d 134, 139-140.) It therefore follows that a witness, short of declining a request altogether, may instead place conditions on the interview, such as insisting on the prosecution's attendance. The trial court's order did no more than recognize this power. It was not, as defendant erroneously asserts, "tantamount to advice not to speak to the defense, or at least to request the presence of the prosecutor or an investigator." Thus, to the extent the prosecution, at the witnesses' request, attended interviews conducted by defense counsel, there was no violation of the work product privilege.*fn21
Finally, even were defendant able to assert and establish a violation of counsel's privilege, reversal would be unwarranted. As noted above, the only prejudice defendant alleges is that the prosecution "used the fruits of" this asserted violation "to bolster the testimony of" Witnesses Nos. 14 and 16, "to deter" his impeachment of these witnesses, and "to falsely insinuate" that he had had "a fair and independent opportunity to investigate the case." This was accomplished, defendant argues, by eliciting testimony from the witnesses that defense counsel had interviewed them before trial and that their trial testimony was consistent with their statements during the earlier interviews with defense counsel. However, as explained above, during closing argument, defendant's counsel relied on Witness No. 14, stressing that he had not identified defendant and stating that the witness was credible because he "ha[d] nothing to beef about." As also explained above, at trial, defendant's counsel and counsel for Palma thoroughly attacked Witness No. 16's credibility, stressing that he was a drug user and gang member, that he had lied to police, and that he had several motives for testifying in the prosecution's favor. Thus, the record shows that any work product privilege violation was harmless and would not entitle defendant to reversal.*fn22 (See People v. Coddington (2000) 23 Cal.4th 529, 606; People v. Collie (1981) 30 Cal.3d 43, 60-61.)
4. Alleged Nonreciprocal Discovery
Defendant argues the trial court's protective order impermissibly provided the prosecution with nonreciprocal discovery benefits. He first asserts that, by authorizing the prosecution to attend, record and transcribe his counsel's interviews with the prosecution's witnesses (ante, at p. 14), the trial court "effectively required" him to provide the prosecution with discovery to which it would not ordinarily be entitled under the reciprocal discovery statutes, i.e., "statements [the defense] obtained from prosecution witnesses that it [might] use to refute the prosecution's case during cross-examination." Defendant then asserts that, by granting this discovery to the prosecution "but not providing [him] with a reciprocal right, the trial court upset the 'balance of forces between the accused and [the] accuser,' in violation of [his] right to due process under the Fourteenth Amendment."
For several reasons, defendant's argument fails. Initially, defendant's argument again overlooks the fact that, under the trial court's order, the prosecution could attend defendant's interview of a protected witness only if the witness requested the prosecution's attendance. Because, as explained above, the witnesses had a right, independent of the court's order, to refuse to talk with defendant unless the prosecution was present, the trial court's order did not "effectively require" defendant to disclose statements he obtained from the prosecution's witnesses.
Moreover, even were defendant correct regarding the effect of the court's order, reversal would not be required. As defendant asserts, the due process clause, though having "little to say about the amount of discovery" to which a criminal defendant is entitled, " 'does speak to the balance of forces between the accused and his accuser.' [Citation.]" (Izzazaga v. Superior Court (1991) 54 Cal.3d 356, 372-373.) However, as we have explained, because the concern of the due process clause is "the right of a defendant to a fair trial," the focus of the reciprocity inquiry under the due process clause is whether any lack of reciprocity "interferes with the defendant's ability to secure a fair trial.' [Citation.]" (People v. Hansel (1992) 1 Cal.4th 1211, 1221, quoting Wardius v. Oregon (1973) 412 U.S. 470, 474, fn. 6.) Thus, "mere repetition of the word 'reciprocity' is not enough to show that [a defendant's] right to a fair hearing [has been] violated." (Hansel, supra, at p. 1221.) The inquiry is not whether "the procedures available to the defendant . . . precisely mirror[ed] those available to the prosecution," but whether the defendant received "a full and fair opportunity to present" a defense and whether the rules at issue "tilt[ed] the balance toward the state to any significant degree." (Id. at p. 1222.) To the extent, if any, that the order resulted in a lack of reciprocity, it did not compromise defendant's ability to present his defense or tilt the balance toward the state to any significant degree. As explained above, the court allowed defendant to interview the protected witnesses. Nothing prevented him from asking the witnesses during those interviews what they had told the prosecution. Moreover, for reasons already set forth, the nondisclosure of the witnesses' identities did not, as defendant asserts, "preclude" him "from investigating critical avenues of investigation." Finally, to the extent there was any nonreciprocity, the prosecution made "a strong showing of state interests" to justify the trial court's order. (Wardius, supra, at p. 475.) Defendant's nonreciprocity claim therefore fails.
5. Lack of Notice and Opportunity to Participate
Defendant next argues the trial court erred by conducting a series of ex parte hearings pursuant to section 1054.7 regarding the nondisclosure of the witnesses' identities. According to defendant, nothing in section 1054.7 authorized the court to proceed without providing him notice and an opportunity to be heard. Moreover, defendant asserts, in so proceeding, the trial court violated (1) his federal constitutional rights to counsel, to confront witnesses against him, to due process, and to a reliable penalty determination, and (2) "his rights under the California Constitution and the California Penal Code." According to defendant, even if it was necessary to keep him and his counsel from discovering the witnesses' identities, it was not necessary to deprive him of notice and to exclude him from the hearings, because the hearings could have been conducted in his presence and the witnesses could simply have been referred to by number instead of name.
Initially, it appears defendant has forfeited this issue by failing to object and obtain a ruling in the trial court. The first ex parte hearing took place before Judge Bascue on September 29, 1995. Although the record reflects that Logan, Palma, and Torres, and their counsel received advanced notice of this hearing,*fn23 defendant did not. In fact, he could not have received notice because, as of the hearing date, he was not yet in custody, had not been arraigned, and did not have counsel.*fn24 However, a few days later, on October 3, 1995, the court appointed counsel for defendant and the prosecution informed defendant's counsel of Judge Bascue's in camera hearing and the resulting redaction order. Defendant's counsel's sole response was to request a copy of the redacted transcript; he did not object to the ex parte nature of Judge Bascue's hearing or the lack of notice.
Indeed, as far as the record discloses, during the many subsequent hearings at which Judge Bascue's redaction order was discussed, defendant's only mention of any objection that Judge Bascue had proceeded ex parte occurred during a trial-setting conference before Judge Dukes on January 30, 1996. During that conference, the prosecution informed Judge Dukes of "sealed motions" Judge Bascue had recently heard and decided regarding redaction of witness names from transcripts of the December 1995 grand jury proceedings involving Maciel and Ortiz. Logan's counsel, after explaining that he had received "another set of redacted statements," "object[ed] to any proceedings that are done in front of Judge Bascue as being ex parte motions." Defendant's counsel joined this objection. Judge Dukes declined to rule on the objection, explaining that Judge Czuleger would be taking over the case and that counsel could make their objections "at that time."
When the parties first appeared before Judge Czuleger a week later, defendant did not renew his objections to Judge Bascue's order or ask Judge Czuleger to rule on its validity. Instead, after Judge Czuleger announced that the prosecution would have "to make . . . a new showing" on the issue, defendant's counsel, in the course of requesting notice of and an opportunity to be present for any new hearing, merely mentioned in passing that Judge Bascue had proceeded ex parte. Nor did defendant or his counsel raise these objections to Judge Bascue's order at any other time. Because defendant failed to pursue and obtain a ruling on these objections, he may not raise them on appeal.*fn25 (See People v. Ramirez (2006) 39 Cal.4th 398, 450 [defendant forfeited issue by failing, despite court's invitation to resolve it at a later hearing, to press for a ruling]; People v. Danielson (1992) 3 Cal.4th 691, 729 [defendant forfeited issue by failing to renew or request a ruling on his earlier objection].)
Another ex parte hearing took place on November 7, 1995, before Judge Dukes. Defendant received advanced notice of this hearing in several ways. First, on November 1, the prosecution filed and served on defense counsel a notice that, on November 7, it would ask the court to hold an "in camera hearing" to determine whether to extend Judge Bascue's redaction orders. Second, at the scheduled November 7 hearing, with defense counsel present, Judge Dukes began by noting the prosecution's request and the prosecution responded that it was prepared to proceed with the in camera hearing that day. Judge Dukes then invited comment on whether section 1054.7 allowed an in camera hearing. The only response of defendant's counsel was to request that the prosecution give the court a list of its likely witnesses and that the court not impose discovery restrictions that prevented the defense from preparing its case. Neither defendant's counsel nor any other defense counsel objected that the hearing should not be held ex parte or that they received insufficient notice of the hearing.
After hearing from defense counsel, Judge Dukes announced that court was "in recess" and held a relatively brief in camera hearing without defense counsel. Judge Dukes then reconvened proceedings in open court with defendants and their counsel present. He began by announcing that, based on an "in camera" hearing he had "conducted . . . pursuant to [section] 1054.7," he was ordering continued redaction of the witnesses' identities. He then had a series of exchanges with defense counsel regarding the terms of his order and their objections to it. None of the objections related to defense counsel's exclusion from the in camera hearing or a lack of notice.*fn26 After responding to the objections, Judge Dukes invited defense counsel to invoke "the writ process" should they disagree with his order. No writ petition was ever filed. Having received advanced notice of the ex parte hearing, and having failed to object either before or after the hearing, defendant may not now claim that Judge Dukes prejudicially erred in holding an ex parte hearing. (People v. Carasi (2008) 44 Cal.4th 1263, 1316 (Carasi); People v. Jennings (1991) 53 Cal.3d 334, 383.)
Another ex parte hearing occurred on March 18, 1996, before Judge Czuleger. Again, defendant had ample advanced notice of this hearing. On February 7, Judge Czuleger announced in open court, with defendant's counsel present, that he would require the prosecution to make a new showing as to the need for nondisclosure. Defendant's counsel responded: "[I]f [the prosecution] has a new hearing, de novo, can defense counsel be notified, and then all be present and the court makes a decision. At least defense counsel should be present? [¶] The last time we went before the grand jury, as well as before Judge Bascue, these are all done in camera. These are all done ex parte. And I think now that we have all seen the transcript, I think we have a right to at least be here and the court make a decision why we should not be here. If our clients need to be excluded, that's fine." Judge Czuleger replied: "What I was going to do is set it down for pretrial conference in a few weeks from now and at that time pretrial conference, set it for the in camera hearing, and hopefully I will have a better idea where everything is. My suggestion is the first week of March." After hearing from counsel regarding proposed dates, Judge Czuleger scheduled a pretrial conference for March 6.
On March 6, 1996, Judge Czuleger began the pretrial conference by talking about possible hearing dates for a discovery motion that Logan had filed and for a motion members of the media had filed to inspect grand jury records. After Judge Czuleger indicated that March 22 was an option, the prosecution stated: "[W]hat we are discussing for motions at that point is between now and that date we would have the in camera hearing. . . . There are two other in camera proceedings I want you to review and my understanding is that on that date what we would basically be ruling on is your decision regarding the redaction and so forth." Following a discussion with the prosecution, Judge Czuleger scheduled an in camera hearing for March 18 and a follow-up hearing with all counsel for March 22. At the end of the pretrial hearing, Ortiz's counsel stated: "I take it you will not be asking us to ...