Super. Ct. No. 25297 Court: Superior County: Stanislaus Judge: John G Whiteside
A jury found defendant Daniel Lee Whalen guilty of the 1994 first degree murder (Pen. Code, § 187, subd. (a))*fn1 and first degree robbery (§ 212.5, subd. (a)) of Sherman Robbins, and found true the special circumstance allegation that the murder was committed during the course of a robbery (§ 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A)), and the allegation that defendant personally used a firearm in the commission of the offenses (§ 12022.5). Defendant admitted he had suffered three prior serious felony convictions (§ 667, subd. (d)), and had served four prior prison terms (§ 667.5, subd. (b)). After a penalty trial, the jury returned a verdict of death for the murder. The trial court denied defendant's automatic application to modify the verdict (§ 190.4, subd. (e)), and imposed the death sentence for the murder and a prison term for the robbery and enhancements.
This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.
In March 1994, Sherman Robbins was house sitting for his brother, who was away on vacation. Late one evening, defendant and his accomplices, Michelle Lee Joe and Melissa Fader, gained entry into the home by pretending the car they had been driving had broken down. The three took numerous items from the house, and defendant shot Robbins as he lay on a couch with his hands tied behind his back. Joe and Fader were initially charged, along with defendant, with Robbins's first degree murder and robbery, but each agreed to plead guilty to lesser charges in exchange for her testimony against defendant.*fn2 At trial, defendant attempted to place the blame for the murder on Joe and argued the evidence was legally insufficient to corroborate the accomplice testimony. At the penalty phase, defendant's attorney and an expert relayed to jurors defendant's expressed desire for the jury to impose the death penalty, but each made a case for sparing defendant's life.
A. Guilt Phase 1. The prosecution's case a. Background and investigation
Sherman Robbins was an elderly diabetic man who normally lived alone in an apartment in Modesto. Sherman was kind to "street people" and they were welcome at his apartment for food or a bath. In mid-March 1994, Sherman was house sitting at his brother Bill's house at 519 Nebraska Avenue in Modesto while Bill and his wife, Alvina, vacationed in Ireland. Bill's daughter-in-law, Shirley Robbins, occasionally visited Sherman at the Nebraska Avenue house and took him for blood tests.
On Saturday, March 19, Shirley was at the Nebraska Avenue house most of the day with other family members, helping Sherman clean the yard. A few days earlier, the family had rented a dumpster to facilitate the cleanup. Around noon, a man and a woman whom Shirley did not know, but who later were identified as Johnny Long and Michelle Joe, drove up in an olive green, late 1960s Ford Mustang, and stayed for a couple of hours. Sherman introduced Long as his cousin, and Long helped Sherman move a pole. Joe mostly stayed in the car with her three children, but went into the house at least once to get water or to take her children to the bathroom.
The next day, Sunday, Shirley spoke with Sherman on the phone about his doctor's appointment on Monday. On Monday, March 21, Shirley's daughter, Krista, arrived at the Nebraska Avenue house around 8:00 or 9:00 a.m. to take Sherman to the doctor. When Krista arrived, Joe was there going through the dumpster, while Joe's children played in the yard. Sherman told Krista that Joe was his cousin's girlfriend. After Krista dropped Sherman off for his appointment, she informed Shirley that Joe had been at the house. Shirley directed Krista to go back to the house and make sure the doors were locked. When Krista returned, Joe was no longer there. Krista checked the doors, but not the windows. As she was leaving, she noticed Joe and Long driving up again in the green Mustang. They stopped and gave Krista a "dirty look," but Krista did not stop or speak with them because Sherman had said they could take some boxes from the house, and Krista assumed they were going to the house to retrieve the boxes.
Shirley spoke with Sherman by phone between 7:00 and 9:00 p.m. that evening. The following day, Tuesday, March 22, she tried to call him several times but he did not answer.
Shirley went to the Nebraska Avenue house early Wednesday morning. When she pulled up, she noticed two newspapers were in the driveway. Both the screen door and wooden front door were open. Sensing something "wasn't right," she entered the house and discovered Sherman's dead body on the couch. She immediately called 911. When the police arrived, she told them about Long and a woman with long hair (Joe).
Stanislaus County Sheriff's Department Patrol Officer Brian Markum arrived at the scene about 8:00 a.m. Upon entering the house, he found Sherman's body on the couch, surrounded by blood. There was a large hole in Sherman's right temple. Markum determined Sherman was deceased and secured the crime scene.
Giles New, an investigator with the Stanislaus County Sheriff's Department, arrived at the scene around 9:00 a.m. and later that day became the principal investigator. Inside the house, he noticed a hole in the end of the couch near Sherman's head. Cotton material from inside the couch, as well as shotgun pellets, were on the floor. Sherman's senior citizen's identification card was in a wallet on a bed in the second bedroom.
Examining the exterior of the house, New found that a screen had been removed and placed on the ground below the windows of each of the two bedrooms on the south side of the house. One window was open in each bedroom. There was a fresh trail in the high, wet grass leading from the south side of the house to an area 30 to 40 feet from the brush pile at the end of the dirt road that extended south from Nebraska Avenue. Tire tracks extended along the dirt road and ended near the brush pile, and there were shoe tracks in that area. None of the tracks were ever matched to any tires or shoes.
Stanislaus County Sheriff's Department identification officer Dan Cron photographed the crime scene and processed it for fingerprints. He determined that a latent palm print taken from the back bedroom window on the south side of the house matched the rolled palm print of Melissa Fader.
Department of Justice Criminalist John Miller helped recover shotgun pellets and a "torn and chewed up" 20-gauge shotgun shell from the crime scene. The pellets were scattered all over the room in which Sherman's body lay on the couch, and a group of pellets had gouged a hole in the floor near the couch. Based on measurements of the height of the gunshot hole in the arm of the couch near Sherman's head, and the location of the hole gouged in the floor in relation to the couch, Miller determined the shot had been fired at an angle of approximately 30 degrees relative to the floor. Miller further concluded Sherman had been shot while lying in the position in which his body was found.
Department of Justice firearms expert Duane Lovaas later examined the pellets and partial shotgun shell recovered from the crime scene. He discovered there were two sizes of pellets, and that the shell had striations indicating it had travelled through the barrel of a shotgun. Additionally, the powder in the shell had not ignited. Based on this evidence, Lovaas concluded someone had loaded a 12-gauge shell behind a 20-gauge shell in a 12-gauge shotgun and then fired, propelling the 20-gauge shell through the barrel like a bullet, followed by the 12-gauge pellets. No firearm was given to Lovaas for comparison.
On Thursday, the day after Shirley found Sherman's body, forensic pathologist Thomas Beaver conducted an autopsy. He determined the cause of death was a shotgun wound to the right temporal area of Sherman's head. The presence of black, sooty material around the wound indicated the shot was fired at close range, probably from within inches. Sherman's hands were tied tightly behind his back with a twill-patterned necktie. Ligature furrows on the skin under the tie had the same pattern. The absence of bruising under the skin indicated there had been minimal struggle against the soft cloth. Beaver estimated Sherman had died 24 to 48 hours earlier.
When Bill and Alvina returned home from Ireland, they determined that a Remington 870 12-gauge shotgun and a .22-caliber rifle were missing from the gun cabinet. Also missing were a typewriter, a microwave oven, a small television set, a Magnavox CD player, a small tape player, a large peanut butter jar full of pennies, and a Makita grinder that had been stored in the barn behind the house. Bill identified People's exhibit No. 56, an item recovered in the murder investigation (see p. 12, post), as his Makita grinder.
Investigator New arrested defendant in April 1994. Upon his arrest, defendant spontaneously said, "I was expecting to get picked up sooner or later. Sometimes the best place to hide is right under your noses."
b. Events surrounding the murder
Defendant's accomplices, Joe and Fader, provided the principal testimony regarding the killing. John Richie and Rick Saso testified about events both before and after the killing. The testimony of these witnesses was consistent in many respects, but varied in its details and from what each witness had said in prior statements. We set out the testimony of these witnesses in some detail.
John Richie testified pursuant to a grant of immunity from prosecution for any crimes associated with his testimony. Richie testified Sherman Robbins was his aunt's brother and had taken Richie to get candy when he was a child. Richie also was acquainted with Michelle Joe; he had protected her on occasion from her former boyfriend, who beat her.
Richie testified he first met defendant several years before the events at issue in this case, at a place called Butler's Camp. About a month or two before defendant was arrested, defendant began living with Richie, Richie's girlfriend Kathy Sisk, and their children, in Richie's apartment.
On the morning of March 21, 1994, Joe drove to Richie's apartment in a green Mustang and asked for defendant. Richie followed defendant outside, where he overheard Joe ask defendant to help her commit a burglary. Richie went back inside, and defendant came in about a half-hour to an hour later. Richie "pleaded" with defendant not to participate in the burglary, and defendant assured Richie he would not do it.
According to Richie, Joe came to the apartment again shortly before dark and asked Richie to baby-sit her child. Richie agreed. Joe left as it was getting darker, and defendant left as well, but Richie was not sure if they left together. Richie did not see either defendant or Joe until the following morning. Richie had gone to visit his friend, Rick Saso. When he returned, defendant and Joe were at the apartment with various items including a small television set, a microwave oven, a computer or typewriter, a stereo, a rifle, and a shotgun. The shotgun smelled like gunpowder. Sisk and Melissa Fader, whom Richie had not met before, were counting pennies from a jar. Fader claimed the pennies were hers. Joe had "urinated herself" and asked to use the shower, and Sisk gave Joe some fresh clothes to wear.
Richie testified that he rode his bicycle to Saso's home and told him there was some property for sale at his apartment. Saso followed Richie back to the apartment in his car. While the others bartered over the property, Richie went outside. At some point, Saso emerged and asked Richie to help him put the property in his car. Saso said he had traded an "eight-ball" -- about 3.75 grams of methamphetamine -- for all of the property. Richie helped Saso load the items into the car, and Saso left. Back in the apartment, defendant gave Richie part of his share of the methamphetamine, and they, along with Joe and Fader, "indulged" in use of the drug. Fader and Joe then left as it was getting light outside.
According to Richie, over the next few days defendant seemed nervous and watched the newspapers. At some point, defendant volunteered to Richie that he had killed a man. Defendant said he had tied the man up, "told him to 'get right with God and he would be back in a minute,' " and then shot him. Defendant also said that he and Joe had argued about the way in which the victim was to die. Joe wanted the victim smothered because it would be quieter, but defendant said that " 'wrestling with [the victim] until he died would have been more of a torture than shooting him.' " Defendant did not say why he had killed the man. When Richie asked defendant how he could do such a thing, defendant said "it was nothing, that you couldn't get emotionally involved." Either during this conversation, or a subsequent one, Richie asked defendant to leave the apartment.
Richie further testified that at some point after his arrest defendant wrote Richie a letter from jail. According to Richie, the second sentence of the third paragraph of the letter began, " '[W]ith both Michelle and Melissa telling on me . . . .' " In the letter, defendant did not deny that what Joe and Fader were saying about him was true.
In March 1994, Melissa Fader was living in a trailer in Modesto behind her landlady Nellie Thompson. On March 21, Fader's friend, Michelle Joe, stopped by in a green Mustang with her new boyfriend, Johnny Long, around 10:30 or 11:00 a.m. and chatted with Fader for a while, then left. A couple of hours later, Joe drove up again in the Mustang with her daughter Crystal, but without Long. Joe told Fader she had told Long she needed to borrow the car to take Fader to the hospital. Joe and Fader then cruised around in the Mustang for an hour or two trying to "score some dope" -- meaning "crank" or methamphetamine -- but they were unsuccessful. Joe dropped Fader off at her trailer and left.
According to Fader, she next saw Joe around 10:30 or 11:00 p.m. that night. Fader had been up for several days on crank and was fighting with her boyfriend, who had locked her in the trailer with a padlock. Fader told Joe she wanted to get away, and Joe invited Fader to come with her. Fader climbed out the window, taking some clothes so she could change later if necessary.
Fader testified that when she got in the backseat of the Mustang, defendant was in the front passenger seat. Fader had met defendant once before. Both defendant and Joe had gloves on, but Fader had none. Joe, who was driving, told Fader they were going to rob a house where no one was home.*fn3 The plan was to enter the house, take things, and leave. Joe drove to the house at 519 Nebraska Avenue and pulled into the driveway. Joe walked up to the house and determined an old man was sleeping inside. They then drove around trying to find a back way into the house, but were unsuccessful.*fn4 They returned to the house and parked near a brush pile.
According to Fader, Joe announced a plan to wake the old man, tell him her car had broken down, and ask if she and Fader could spend the night. While Joe walked up to the house, defendant retrieved a tool from a shed behind the house and put it in the car's trunk. After about five minutes, Joe returned to the car and said, " 'let's go.' " Joe instructed defendant to wait 15 minutes; she and Fader then walked to the house. Sherman let them in, and Joe pretended to use the phone while Sherman offered Fader a beer. Joe claimed to be unable to reach anyone by phone. Sherman said the women could stay the night and told them to make themselves at home. He showed them to a bedroom and left them alone. Joe then instructed Fader to go back out and talk to Sherman. Fader did so, then took a bath and made a sandwich. Eventually, she fell asleep on the small sofa, and Sherman fell asleep on the large sofa.
At 3:30 a.m., Fader explained, she awoke to find defendant standing over Sherman, pointing a large gun at him and loudly demanding to know where he kept his wallet. Sherman answered the wallet was in a box in the bedroom. Defendant ordered Fader to tie up Sherman. When Fader refused, defendant pointed the gun at her and said " 'you're gonna do it.' " Defendant handed Fader a necktie and told Sherman to put his hands behind his back. Fader tied Sherman's hands, loosely at first, but defendant ordered her to tie them tighter. Defendant seemed angry, whereas earlier in the evening his mood had been "civil."
Fader testified that she told defendant she wanted to leave, but defendant said " 'you ain't going nowhere,' " and ordered her to grab the microwave oven and typewriter. Fader took those items to the car and returned through the sliding glass door. Sherman was lying on his stomach on the sofa with defendant standing over him. Fader found Joe in the second bedroom, going through Sherman's wallet. Fader said she wanted to leave, and Joe told her to go out the window, which she did. Joe handed Fader some items -- including a "radio" or "stereo" and a large jar of pennies -- through the window, and Fader took them to the car. Joe emerged from the house and put more items in the car. Together Fader and Joe then loaded a few more things that had been piled outside the window into the car. Joe then got in the driver's seat, and Fader got in the backseat.
According to Fader, after about five minutes, the women heard a gunshot. Defendant emerged from the house carrying a shotgun, which he put in the trunk. He got in the car and said, " 'let's get out of here.' " Joe informed him there was another gun in the house. Defendant returned to the house and retrieved a second gun, which Fader described as a "long gun" that could have been a rifle. Defendant put that gun in the trunk and got back in the car. Joe then drove away.
At defendant's suggestion, Fader testified, they drove to Prescott Estates, where defendant unsuccessfully tried to sell the stolen property. Eventually they arrived at Richie's apartment. Fader was not acquainted with Richie or the apartment at that time. Joe, who had urinated in her pants, took a shower and changed into some fresh clothes provided by Richie's girlfriend, Sisk. Fader and defendant went into the bathroom and ingested some crank. Fader then went into the bedroom and started counting pennies from the jar taken from the Nebraska Avenue house.
According to Fader, two men showed up at the apartment to purchase the stolen property while Fader stayed in the bedroom counting pennies. After a while, Joe entered the bedroom and said they had gotten an "eight-ball" of crank for all of the items. When Fader emerged from the bedroom, the crank was being divided up. Fader received a gram or half a gram.
Fader testified that she and defendant went into the bathroom and ingested more crank. Fader then returned to the bedroom and continued counting and rolling pennies. Defendant followed her into the bedroom and wanted to "mess around." Fader did not want to but complied "under force" because she was afraid of defendant. Afterwards, when it was getting light outside, Joe took Fader home and instructed her not to tell anyone what had happened at the Nebraska Avenue house.
Fader testified that when she arrived home, she had her share of the crank, about $4 in pennies, and a grinder. Fader tried to sell the grinder to Nellie Thompson for $5. Thompson did not want the grinder, but gave Fader $5 anyway. Fader put the grinder on Thompson's porch. About a week later, Fader told Thompson defendant had raped her the day she got the grinder. Fader identified People's exhibit No. 56 as the grinder she had obtained from the robbery and left on Thompson's porch.*fn5
Joe testified she had known Fader for about six years before the crime, and first met defendant in March 1994 at Richie's apartment. During the week preceding the murder, she had been to the Nebraska Avenue house three or four times and had entered the house once or twice. At that time, she was using about 1.5 grams of methamphetamine per day and had been using for the past three years.
According to Joe, on the morning of March 21, 1994, she first went with Long to the Nebraska Avenue house to go through the dumpster, then stopped by Fader's trailer on the way back to Long's apartment. She concocted a story about needing to take Fader to the hospital in order to get Long to lend her his car. After ingesting some methamphetamine, she picked up Fader in the afternoon and they drove around for a few hours unsuccessfully trying to obtain more. After dropping Fader off at her trailer, Joe obtained some methamphetamine from Rick Saso, ingested it, and rode around until after dark.
Eventually, Joe explained, she ended up at Richie's apartment. She encountered Richie outside the apartment and asked if defendant was there. Defendant came out and sat in the car with Joe. Joe asked defendant to help her commit a burglary. Defendant asked if anyone would be home; Joe responded she didn't think so. Defendant agreed to help. Joe left, and returned a short while later. Someone gave Joe a pair of gloves, and defendant obtained gloves too.
According to Joe, she drove with defendant to Fader's trailer, which was padlocked. At the window, Joe invited Fader to help with the burglary. Fader handed Joe a key to the padlock, and Joe opened the door, allowing Fader to leave. Fader, who was upset because she had been arguing with her boyfriend, brought along a tote bag and got in the back seat of the Mustang.
Joe explained that she drove to the Nebraska Avenue house and parked on the dirt road near a pile of branches. She went up to the house to see if anyone was there. After looking in the living room window and seeing Sherman asleep on the couch, she returned to the car and informed the others. They then drove around looking for a back way in, drove into someone's driveway, heard a dog barking, turned around, and came back to the Nebraska Avenue house. At some point during this period, defendant went to an area behind the house, retrieved a chainsaw, and put it in the Mustang.
Joe testified that she came up with a plan to pretend the car had broken down. Joe and Fader walked up to the house together and knocked on the sliding glass door while defendant waited in back. When Sherman answered, Joe explained they were having car trouble and asked to use the phone; Sherman agreed. Once inside, Joe faked a phone call to Long, telling Sherman she was unable to reach him. Sherman agreed to allow the women to stay the night. The three talked for a while and had some drinks. Sherman then showed Joe to a bedroom. While Fader and Sherman continued talking in the living room, Joe emerged from the bedroom a couple of times to check on them and get a cigarette or a glass of water. Fader was on the loveseat and Sherman was on the couch. Fader got up to fix herself something to eat, took a bath, and went back to the living room. After a time, Fader and Sherman fell asleep. Joe then turned on the bedroom light as a signal, and defendant climbed in the bedroom window.*fn6 Joe and defendant went through the drawers in the bedroom and unplugged a CD player and a television set.
Joe explained that she went back to the family room, determined Fader and Sherman were still asleep, and returned to the bedroom. Defendant left the bedroom. She then heard a "ruckus" -- something opened and slammed, and someone was shouting. When she emerged, she saw defendant, who was holding a large gun like a shotgun, standing in front of Sherman as he lay on the couch. Joe went into a bedroom and unplugged a "boom box" to steal. Fader came in and told her defendant wanted her to find something to tie up Sherman with. Fader said defendant had pointed the gun at her. Fader found a necktie and left. Joe went into the dining room and saw defendant standing over Sherman, demanding to know where he kept his wallet. Sherman said the wallet was in the bedroom. Joe retrieved the wallet from a green box in the bedroom and, without opening it, handed it to Fader.
Joe testified that defendant instructed her to get the car. She moved the car into the driveway near the house. When she returned, defendant was still standing over Sherman, who was lying tied up on the couch. Defendant angrily commanded Joe and Fader to load the items they had gathered into the car. Joe told defendant she was afraid and did not want to go through with the burglary, but defendant raised his voice and told her to just get stuff into the car. Joe and Fader complied, putting several items, including a "boom box," a typewriter and a microwave oven, into the car.*fn7 When Joe returned to the house, she asked defendant if he was going to kill Sherman. Defendant said "no" but seemed very upset.
Joe explained that when she went back outside, Fader was already at the car. As Joe was opening the rear car door for Fader, she heard a gunshot. She and Fader got in the car. Defendant emerged from the house carrying a gun, put the gun in the car, then returned to the house and retrieved a second gun, which he also placed at his side in the car.
At defendant's suggestion, Joe testified, she drove to Prescott Estates. On the way, Joe asked defendant if he had killed Sherman; defendant responded he had not. At Prescott Estates, defendant unsuccessfully tried to sell the stolen property. Eventually, the three returned to Richie's apartment. Joe took a shower and changed clothes because she had urinated in her pants, while Fader counted pennies in the bedroom. Richie and defendant unloaded the stolen items from the car and brought them inside. When Joe emerged after her shower, defendant and Richie were in the kitchen talking to Rick Saso. The stolen property was on the kitchen table. Some methamphetamine was on a mirror on the counter; the men were dividing it up with a razor blade.
Joe testified that Saso gave some methamphetamine to defendant, and she received about a gram of the drug. She took her share into the bedroom and ingested some of it. When she emerged from the bedroom, only Saso was there. Joe told Saso she thought defendant might have killed someone. Saso got up, kissed Joe and left without saying anything. Joe then saw Fader and defendant come in from outside and go into the bedroom. When Fader came out of the bedroom, she asked Joe to take her home, which Joe did.
Rick Anthony Saso testified pursuant to a grant of immunity from prosecution for any crimes associated with his testimony. Saso testified that in 1994 he used, and made his living selling, drugs. He first met defendant at Richie's apartment. Saso also was acquainted with Joe; she occasionally had sex with him in exchange for drugs.
Saso explained that one night, Richie came to Saso's apartment and said he had some guns to sell. Saso drove to Richie's apartment as it was getting light outside, bringing along some drugs to exchange for the guns if the guns were "nice." When he arrived at Richie's apartment, Sisk, Richie's children, defendant, Joe and another woman whom Saso had not met before were there; Richie arrived a few minutes later. Joe was pacing around the house and seemed scared; the other woman sat in the kitchen. Defendant remained in the bedroom while Saso negotiated with the others regarding the price of the guns. After about an hour, defendant emerged. Saso offered defendant 1/16 of an ounce of methamphetamine for the guns, but defendant demanded an eight-ball. Saso eventually "cheated" defendant "a little bit" and gave him 1.5 grams, which is less than 1/16 of an ounce. The value of the drugs was about $70. Richie wrapped up the guns and put them in Saso's car. About a week later, Saso sold the guns after Richie told him defendant had used them to shoot someone.
Nellie Thompson testified she had assisted Fader with obtaining SSI (Supplemental Security Income) disability benefits, based on Fader's drug addiction and her mental status. In Thompson's opinion, Fader had the mental ability of a 12 year old. According to Thompson, after an article appeared in a newspaper about the killing of a man in Patterson, Fader told Thompson that in October 1993 she, Joe, and Joe's ex-boyfriend had gone to a house in the country and taken some things. Fader told Thompson that when a dog barked, she had jumped into the car through the window and cut her leg. According to Thompson, when Fader heard about the Patterson murder, she exclaimed, " 'Oh my god, I thought they shot the dog. They said they shot the dog.' " Thompson said Fader told her about this incident three to four months before she mentioned being raped by defendant.
Defense investigator Alan Peacock testified he first interviewed Nellie Thompson in August 1994. He recounted that Thompson never told him or any member of his office that Fader had reported being raped by defendant. Instead, he said, the first time Thompson mentioned the alleged rape was in the hallway just before she testified for the prosecution.
The parties entered into several stipulations regarding prior statements by prosecution witnesses, including the following:
Joe never told law enforcement that she had urinated on herself on the night of the murder.
Fader told Detective New that Joe did all of the bargaining in the exchange of the stolen property for drugs. Fader said she and defendant went to the store; when they came back to Richie's apartment the stolen property was gone and Joe had an eight-ball, which they split three ways. Fader further said that Joe instructed her to "take the [rap]" for the crime. Fader thought defendant should "take the [rap]" because he had the guns and was the one "doing this shit."
Richie told Detective Viohl that a few days after defendant and Joe obtained the stolen guns, defendant told Richie he had to leave because he [defendant] was endangering Richie's family. Defendant also said there was a "drunkard" at the house where they had obtained the guns. This was the last time defendant spoke to Richie about the events at the Nebraska Avenue house.
Saso told Detective Valdez that he gave Richie the dope in exchange for the guns, and that he sold the guns for more dope the next day.
Detective New testified that he had checked for reports of an elderly man being killed in a rural area where there was a dog in October 1993. He found no such occurrence.
B. Penalty Phase 1. The prosecution's case in aggravation
Sharon Kennedy was working as a teller at Bank of America's Ceres branch on May 26, 1988. She testified that on that day, defendant came into the bank, went to the window of another teller, Frances Passalaqua, and handed her a note that said "This is a robbery." Kennedy immediately pushed a "panic" button. Defendant turned and ran out the door, bumping into a customer on the way out. Kennedy did not see a gun and nobody was shot. Frances Passalaqua testified consistently with Kennedy, but she could not identify the robber. She did not give the robber any money.
The parties stipulated that defendant had sustained several convictions. On April 15, 1971, defendant was convicted of armed robbery and assault with a deadly weapon on a police officer. He was sentenced to prison and released on June 5, 1975. On March 17, 1976, defendant was convicted of robbery. He was sentenced to prison and released on May 16, 1979. On January 16, 1980, defendant was convicted of possession of a firearm by a felon. He was sentenced to prison and released on November 8, 1985. On March 29, 1989, defendant was convicted of the May 26, 1988, attempted robbery of Frances Passalaqua. He was sentenced to prison and released on November 23, 1993.
Defense investigator Alan Peacock testified he had conducted an investigation into defendant's background but had found no one who could serve as a "social historian" for defendant. Defendant's family was "nonexistent." Defendant's father and sister had died, and he never knew his natural mother. Defendant had one close friend and a daughter whom he was "adamant" about not involving in his case. Peacock did not know defendant's stepmother's name. According to Peacock, what was known about defendant's social history came from his California Department of Corrections records. Defendant had been involved in the criminal justice system since the age of 14, when he had assaulted his father. The records documented an "extended history of abuse of controlled substances," including alcohol, methamphetamine, heroin, marijuana, and other street drugs. Defendant, who was 48 years old at the time of trial, had spent most of his adult life in a locked facility. His longest period out of confinement was 18 months, during which he absconded from parole.
Officer James Park had retired from the California Department of Corrections and Rehabilitation after serving as its chief of classification for many years. He testified that if defendant were sentenced to life in prison without the possibility of parole, he would automatically be classified as a "Level 4" prisoner, meaning he would be subject to the highest level of security in the general prison population.*fn8 In a Level 4 prison, prisoners were double-celled in eight-by-10-foot cells surrounding a guard station. There were gun ports visible from each cell, and "a rifle [could] be brought to bear anywhere . . . in front of the cells or in the exercise area." Prisoners could earn privileges for good behavior and could purchase items such as television sets if they had the funds. Prisoners generally worked to produce products that saved the state money.
Park had reviewed defendant's prison disciplinary and work records and had spoken with him. Defendant told Park that he wanted to be sentenced to death; however, Park believed that if sentenced to life without possibility of parole, defendant would "settle down" and become a useful prisoner. According to Park, in the past defendant had gotten along well with staff and had done good work in prison, but occasionally had refused to work. Defendant also received commendations several times. For example, defendant had helped two officers who were being confronted by an inmate with a razor blade, helped other prisoners adjust to new jobs, volunteered to work during a lockdown, and turned in a knife that a supervisor had forgotten to collect from him.
Defendant had gotten into trouble a few times for having homemade wine, called pruno. He had once attempted suicide, had failed to report to work four times, and once had refused to remove a towel from a window. On the latter occasion, he cursed, but there was no violence. Defendant also had been written up for possessing a wrench that could be used to unscrew the cover on an electrical outlet, where contraband could be hidden.
Park noted that life prisoners -- particularly those in their 40's and 50's -- were considered a stabilizing force because of their interest in the prison remaining quiet.
II. Discussion A. Jury Selection Issues 1. Challenges for cause
Defendant makes several claims of error related to jury selection and the trial court's application of the standard for exclusion set forth in Wainwright v. Witt (1985) 469 U.S. 412 (Witt) and Witherspoon v. Illinois (1968) 391 U.S. 510 (Witherspoon). Defendant claims the trial court exhibited a pro-death-penalty bias in questioning prospective jurors, erroneously refused to excuse for cause 15 prospective jurors based on their views regarding the death penalty, and erred by excusing for cause two prospective jurors based primarily on their written answers to a questionnaire. Defendant claims these errors resulted in a jury composed of pro-death and otherwise biased jurors and violated his rights to a fair and impartial jury, to a fair trial, to the presumption of innocence, to freedom from self-incrimination, to the effective assistance of counsel, to due process of law, and to a reliable guilt and penalty determination guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and parallel provisions of the California Constitution. For the reasons discussed post, we conclude defendant's claims are without merit.
We recently summarized the governing principles: "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. (Uttecht v. Brown (2007) 551 U.S. 1, 6 (Uttecht) [' "[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," [citation] . . .'].) Rather, '[t]o achieve the constitutional imperative of impartiality, the law permits 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 . . . duties as a juror' " in accordance with the court's instructions and the juror's oath.' (People v. Blair (2005) 36 Cal.4th 686, 741, quoting Witt, supra, 469 U.S. at p. 424.) Under this standard, a prospective juror is properly excluded in a capital case if he or she is unable to follow the trial court's instructions and 'conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate. [Citations.]' (People v. McWhorter (2009) 47 Cal.4th 318, 340; see People v. Jenkins (2000) 22 Cal.4th 900, 987 (Jenkins).) The analysis is the same whether the claim is the failure to exclude prospective jurors who exhibited a prodeath bias, or wrongful exclusion of prospective jurors who exhibited an antideath bias. (See People v. Hoyos (2007) 41 Cal.4th 872, 906.)" (People v. Jones (2012) 54 Cal.4th 1, 40-41.)
"During voir dire, jurors commonly supply conflicting or equivocal responses to questions directed at their potential bias or incapacity to serve. When such conflicting or equivocal answers are given, the trial court, through its observation of the juror's demeanor as well as through its evaluation of the juror's verbal responses, is best suited to reach a conclusion regarding the juror's actual state of mind. (People v. Hamilton (2009) 45 Cal.4th 863, 890 (Hamilton).) ' " 'There is no requirement that a prospective juror's bias against the death penalty be proven with unmistakable clarity. [Citations.] Rather, it is sufficient that the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law in the case before the juror.' " ' (People v. Abilez (2007) 41 Cal.4th 472, 497-498.) '[T]he [trial court's] finding may be upheld even in the absence of clear statements from the juror that he or she is impaired because "many veniremen simply cannot be asked enough questions to reach the point where their bias has been made 'unmistakably clear'; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings." [Citation.] Thus, when there is ambiguity in the prospective juror's statements, "the trial court, aided as it undoubtedly [is] by its assessment of [the venireman's] demeanor, [is] entitled to resolve it in favor of the State." ' (Uttecht, supra, 551 U.S. at p. 7.)" (People v. Jones, supra, 54 Cal.4th at p. 41.)
"A trial court's determination concerning juror bias is reviewed for abuse of discretion. (People v. Abilez, supra, 41 Cal.4th at pp. 497-498.) '[A]ppellate courts recognize that a trial judge who observes and speaks with a prospective juror and hears that person's responses (noting, among other things, the person's tone of voice, apparent level of confidence, and demeanor), gleans valuable information that simply does not appear on the record.' (People v. Stewart (2004) 33 Cal.4th 425, 451 (Stewart).) As such, 'the reviewing court generally must defer to the judge who sees and hears the prospective juror, and who has the "definite impression" that he is biased, despite a failure to express clear views.' (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1007 (Lewis and Oliver); see Uttecht, supra, 551 U.S. at p. 9 ['Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors.'].)" (People v. Jones, supra, 54 Cal.4th at pp. 41-42.)
"[U]nder existing United States Supreme Court precedent, the erroneous excusal of a prospective juror for cause based on that person's views concerning the death penalty automatically compels the reversal of the penalty phase without any inquiry as to whether the error actually prejudiced defendant's penalty determination." (People v. Riccardi (2012) 54 Cal.4th 758, 783, citing Gray v. Mississippi (1987) 481 U.S. 648; see also People v. Riccardi, at p. 840 (conc. opn. of Cantil-Sakauye, C. J.).) "To prevail on a claim that the court erroneously denied a challenge for cause, however, the defendant must show ' "that the court's rulings affected his right to a fair and impartial jury." ' " (People v. Clark (2011) 52 Cal.4th 856, 895.)
Jury selection proceeded in the following manner. At the outset, the court gave the entire panel of prospective jurors a brief oral explanation of the charges against defendant, the stages of a death penalty trial, the duties of a juror, and the process of jury selection. All prospective jurors who were not excused for hardship then filled out a 30-page questionnaire comprised of 122 questions. Questions Nos. 9-32 and 87-88 were prefaced by an explanation of the phases of a death penalty trial and focused on the prospective jurors' beliefs about and attitudes toward the death penalty and their ability to set aside those beliefs and follow the law. Other questions involved such matters as the prospective jurors' exposure to media coverage about the case, attitudes toward plea bargaining, familiarity with and attitudes toward drug and alcohol addiction and psychological testimony, and educational, employment and family background.
After filling out the questionnaires, the prospective jurors underwent oral voir dire. Before this process began, the court announced it intended to conduct most of the questioning itself, but would allow counsel to ask appropriate follow-up questions. The prospective jurors were brought into the courtroom in groups of between 14 and 17 individuals. The court first questioned each group as a whole regarding some preliminary matters. Prospective jurors not excused during group questioning were then questioned individually, outside the presence of the other prospective jurors. Of the 158 prospective jurors questioned in this manner, 73 were excused for cause or on the basis of hardship.
The court then generated a random list of the remaining prospective jurors, which was supplied to counsel. Twelve prospective jurors were called in the order appearing on the random list and seated in the jury box, and the parties commenced exercising peremptory challenges, alternating between the prosecution and the defense. When a prospective juror was excused, the next individual appearing on the random list was seated in his or her place, until both sides were satisfied with the 12 jurors selected. This process was repeated for the four alternate jurors. Defendant exercised 16 of his 20 allotted peremptory challenges to the regular jurors and none of his four allotted peremptory challenges to the alternate jurors. The prosecutor exercised 15 peremptory challenges to the regular jurors and four as to the alternates. Defendant did not request additional peremptory challenges or object to the jurors and alternates ultimately sworn.
c. Asserted trial court bias in voir dire
Defendant first asserts the trial court repeatedly intervened in voir dire questioning to rehabilitate death-leaning prospective jurors who, on the basis of their questionnaire responses, would have been subject to defense challenges for cause. He argues the court's leading and suggestive questions to these prospective jurors were not designed to ferret out bias, but rather to have the prospective jurors change their questionnaire responses and hide their biases. In contrast, he urges, life-leaning prospective jurors were excused after cursory questioning without any extensive efforts at rehabilitation. He argues the court's manner of questioning allowed death-leaning prospective jurors to conceal disqualifying biases, thus preventing the reasonable exercise of defense challenges for cause; forced defendant to use peremptory challenges against prospective jurors who should have been removed for cause; "stacked" the jury pool with pro-death-penalty jurors and "skewed" it lopsidedly in favor of the state and a death penalty verdict, thus rendering the exercise of defense peremptory challenges "irrelevant" and "futile"; and deprived him of a fair and impartial jury. (See Morgan v. Illinois (1992) 504 U.S. 719, 729-734; Mu'Min v. Virginia (1991) 500 U.S. 415, 425-426.) He contends the error is "structural" (Arizona v. Fulminante (1991) 499 U.S. 279, 309) and requires reversal regardless of whether any particular ruling on a challenge for cause was in error.
Referring to the rule regarding forfeiture of claims of error in the denial of defense challenges for cause (see post, at pp. 46-47), the Attorney General initially contends defendant forfeited his claim for purposes of appeal by agreeing to the jury without exhausting his peremptory challenges. Here, however, defendant raises a different argument. He asserts the court's manner of questioning was itself so biased as to be inadequate to root out juror partiality. He claims the court's questioning was not designed to uncover juror bias, but instead was designed to, and did, conceal bias, rendering it impossible for defendant to obtain a fair jury. Defendant thus raises a threshold challenge to the adequacy of the trial court's voir dire that we must address first, because it affects the validity of all of the court's rulings on challenges for cause. (See Morgan v. Illinois, supra, 504 U.S. at p. 729 ["part of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors"]; Mu'Min v. Virginia, supra, 500 U.S. 415.) In the past, we have reached the merits of similar claims notwithstanding the defendant's failure to object to the assertedly disparate questioning in the trial court. (People v. Martinez (2009) 47 Cal.4th 399, 439, fn. 8; People v. Thornton (2007) 41 Cal.4th 391, 419-425; People v. Navarette (2003) 30 Cal.4th 458, 485 & fn. 2, 487-488; see also People v. Mills (2010) 48 Cal.4th 158, 189 [construing claim as one of judicial misconduct and assuming, without deciding, it is preserved despite defendant's failure to object in the trial court].)
In any event, here defendant did object to the trial court's manner of questioning. Toward the end of the first day of individual voir dire, following the questioning of Prospective Juror Y.C. and the court's denial of defendant's challenge for cause, the following exchange between the court and counsel took place:
Defense counsel: "My second objection is that the court's using leading questions in [an] attempt to lead the juror down the path towards rehabilitation. I mean, if it's this particular juror and in particular is a clear cut case where you can take someone who initially answering the questionnaire with no pressure on them will set out some very strong preconceived notions concerning the death penalty and the course of trial and through skillful leading questions have them in effect do a 180 degrees turn while standing before the court. I think that basically causes the juror to hide their true biases and [prevents] a reasonable exercise of challenges for cause."
The Court: "Thanks for the 'skillful phraseology.' "
Defense counsel: "Nothing but skillful. There is nothing about that. You were skillful as a lawyer. You are skillful as a judge."
The prosecutor: "Your Honor, except as to different areas of questioning, I think I need to join [defense counsel's] objection."
The Court: "You think I'm skillful in those areas too, Mr. [Prosecutor]?"
The prosecutor: "Yes, your Honor. I think you are very skillful. That's the problem."
The Court: "Thank you. Well, thank you for your praise. But I don't think I have done anything improper."
Accordingly, defendant apprised the court that he believed it was improperly rehabilitating death-leaning prospective jurors with "skillful leading" questions. Although defendant did not, at that time or any time thereafter, object to the court's assertedly less thorough questioning of life-leaning prospective jurors, we think the implications of defendant's objection were sufficiently clear that we may review the merits of his claim.
On the merits, however, defendant's claim fails. Trial courts possess broad discretion over both "[d]ecisions concerning the qualifications of prospective jurors to serve" (People v. Martinez, supra, 47 Cal.4th at p. 445) and the manner of conducting voir dire (People v. Thornton, supra, 41 Cal.4th at p. 420 [trial court " 'possesse[s] discretion to conduct oral voir dire as necessary and to allow attorney participation and questioning as appropriate.' [Citations.]"). Indeed, decisions of the United States Supreme Court in this area "have made clear that 'the conduct of voir dire is an art, not a science,' so ' "[t]here is no single way to voir dire a juror." ' [Citations.]" (People v. Cleveland (2004) 32 Cal.4th 704, 737.) " 'The Constitution . . . does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury.' " (Ibid., quoting Morgan v. Illinois, supra, 504 U.S. at p. 729.)
In evaluating claims of judicial bias during the conduct of death-qualification voir dire, we have stressed that "[t]rial courts must of course 'be evenhanded in their questions to prospective jurors . . . and should inquire into the jurors' attitudes both for and against the death penalty to determine whether these views will impair their ability to serve as jurors.' " (People v. Mills, supra, 48 Cal.4th at p. 189; accord, People v. Martinez, supra, 47 Cal.4th at p. 446.) Evenhandedness is encouraged because "[i]t is entirely possible . . . that even a juror who believes that capital punishment should never be inflicted and who is irrevocably committed to its abolition could nonetheless subordinate his personal views to what he perceived to be his duty to abide by his oath as a juror and to obey the law of the State." (Witherspoon, supra, 391 U.S. at p. 515, fn. 7; see Lockhart v. McCree (1986) 476 U.S. 162, 176 ["It is important to remember that not all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law."].)
Nonetheless, the trial court has " 'broad discretion over the number and nature of questions about the death penalty. . . .' " (People v. Mills, supra, 48 Cal.4th at p. 189.) "[W]e cannot predicate a finding of error merely on the number of questions the court asks" death-leaning and life-leaning jurors. (Id. at p. 190, citing People v. Thornton, supra, 41 Cal.4th at p. 425.) Indeed, on appeal, "[a] reviewing court should not require a trial court's questioning of each prospective juror in the Witherspoon-Witt context [citations] to be similar in each case in which the court has questions, lest the court feel compelled to conduct a needlessly broad voir dire, receiving answers to questions it does not need to ask." (People v. Thornton, at p. 425; see also People v. Martinez, supra, 47 Cal.4th at pp. 446-447.)
Finally, " ' "[d]espite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge's function at this point in the trial is not unlike that of jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions." ' " (People v. Holt (1997) 15 Cal.4th 619, 661, quoting Mu'Min v. Virginia, supra, 500 U.S. at p. 424.) For these reasons, the court's manner of conducting voir dire will not be disturbed on appeal unless it renders the trial fundamentally unfair. (People v. Carter (2005) 36 Cal.4th 1215, 1250; see Mu'Min v. Virginia, supra, 500 U.S. at pp. 425-426.)
Here, defendant points to 23 death-leaning prospective jurors whom he asserts the court improperly rehabilitated, and 11 life-leaning prospective jurors whom he contends the court peremptorily excused without similar efforts at rehabilitation. We have carefully reviewed the questionnaire responses and voir dire transcripts of these prospective jurors and of the jurors ultimately chosen, as well as the transcript of the voir dire of all other prospective jurors who were individually questioned. Our review leads us to conclude the court did not abuse its discretion or display bias in its questioning of either death-leaning or life-leaning prospective jurors, and its voir dire was adequate to enable it to determine whether the prospective jurors' views on the death penalty qualified them to sit on a capital jury.
We begin with an analysis of the voir dire of Y.C., the prospective juror whose voir dire led to the defense objection set forth above. On her questionnaire, Y.C. stated that she "strongly support[ed]" the death penalty. Asked to explain her views on the death penalty, she wrote "If 'you' think another's life is inconsequential -- prepare to pay the ultimate penalty! -- if 'you' decide to take that person's life --." In response to a question about her views regarding a case involving the murder of an elderly man with a shotgun during a robbery, she wrote that everyone convicted of such a murder should receive the death penalty because "The murder was probably not necessary." However, when asked whether she would base her penalty decision on the evidence and instructions presented at the penalty phase, she responded in the affirmative. Asked her views regarding the frequency with which the death penalty is imposed, she wrote that she believed the penalty was used "too seldom" because "death row is overcrowded with convicted & sentenced criminals way overdoing the appeal time -- too much money spent supporting these folks!" She believed the death penalty should be mandatory for murder and murder with special circumstances, should be possible and was appropriate for "any murder," and was inappropriate for anything but murder and murder with special circumstances. She answered in the affirmative to a question asking whether she would automatically vote for the death penalty if defendant was convicted of murder with a special circumstance; but she also wrote in response to a different question that before deciding on the penalty, she would want to know "why he had such little disregard [sic] for another human life." In response to questions regarding her views on the "eye for an eye" principle, she wrote that she believed in that adage based on religious conviction, that to her it meant "If you sin against another & take their life prepare to lay down your own," and that she could not set aside that concept and apply the principles the court would give her. She further wrote in response to pertinent questions that she had religious or moral training regarding the death penalty from "family & church," and she did "not know" if she could set aside such training and decide the case according to the law given by the court. She answered "no" to a question asking whether she could set aside her personal feelings regarding what the law should be and follow the law as instructed by the court. In response to a question asking whether she could agree to accept the court's representation that life without possibility of parole means the defendant would be sentenced to life without possibility of parole, she wrote "do not know." Asked whether the costs of either incarceration or the appellate process would be a consideration for her in deciding on the penalty, she answered "yes" to both. Finally, she answered "yes" to a question asking whether her feelings were such that in every case that reached a penalty phase she would automatically vote for the death penalty rather than life without possibility of parole.*fn9
Defendant argues these questionnaire responses alone would have subjected Y.C. to a challenge for cause, but the court went to "extraordinary lengths to rehabilitate [her], leading her to contradict everything she had answered in the questionnaire." We conclude the court did not abuse its broad discretion in conducting the voir dire of Y.C. As defense counsel acknowledged during the voir dire of a different prospective juror, the questionnaire was "designed to get [the venireperson's] first impressions" regarding the matters discussed; the purpose of voir dire was to determine whether or not those first impressions represented "solid, firm convictions." As is readily apparent from a review of the relevant portion of the voir dire, the court's questioning was designed to do precisely that. The court began by noting what appeared to it to be a conflict between Y.C.'s questionnaire response indicating she thought everyone convicted of the murder of an elderly man with a shotgun during a robbery should be put to death, regardless of the evidence regarding penalty introduced by the parties, and her response indicating that if selected as a juror, she would listen open-mindedly to the penalty phase evidence and base her decision solely on the evidence and the court's instructions. This led Y.C. to volunteer that she was confused about "the first part and the penalty part," prompting the trial court to launch into a detailed explanation of the two phases of a death penalty trial and the purpose of each, the decision to be made at the penalty phase, and the meaning of "aggravation" and "mitigation." Having ascertained that Y.C. understood these concepts, the court asked whether, if the case reached the penalty phase, Y.C. would be able to vote for the death penalty if she believed the evidence in aggravation outweighed that in mitigation, and conversely, whether she would be able to vote for life in prison without possibility of parole if she felt the evidence in mitigation outweighed that in aggravation. When Y.C. hesitated in response to the latter portion of the question, and seemed at a loss for words, the court queried whether she meant she would need to hear all of the evidence before making a decision to impose life without possibility of parole, and Y.C. agreed. The court then ascertained that Y.C. would not hesitate to vote for either penalty if she believed that was what the evidence indicated.
Next, the court addressed Y.C.'s responses indicating she believed in the "an eye for an eye" principle and could not set that concept aside and apply the principles given by the court. The court asked whether Y.C. wanted to change the latter answer in light of the answers she had previously given in court, and she agreed, explaining she had had difficulty concentrating on the questionnaire given the time of day and the number of people in the jury assembly room when she filled it out. The court then moved on to Y.C.'s views on the penalty of life in prison without possibility of parole. The court asked whether, if selected as a juror, Y.C. would conduct herself in the jury room as if imposing such a sentence meant defendant "will stay there without parole," and Y.C. again agreed. The court proceeded similarly with the question regarding the costs of incarceration and appeals, asking whether Y.C. meant that she would, if selected, tend to vote for the death penalty because she believed it was less expensive. When Y.C. responded in the affirmative, the court asked if she would agree to not "put dollars and [cents] either way before any other consideration." Y.C. agreed, indicating she would not "take lightly" the penalty decision. Finally, the court explored Y.C.'s response indicating she would "in every case automatically" vote for the death penalty because of her feelings. The court asked whether, based on Y.C.'s responses to the previous questions, her answer now would be "no," and she agreed, commenting she had found the questionnaire "rather tricky" and the court should "[j]ust change everything."
The court's conduct of the voir dire of Y.C. did not exceed the bounds of permissible discretion. The court asked questions testing Y.C.'s questionnaire responses that were inconsistent or indicated confusion, to clarify her beliefs and to assess how firmly Y.C. held these beliefs as a prelude to determining whether Y.C. could perform the duties of a juror. When Y.C. confirmed that she was confused about the two-phase nature of the trial, the court was well within its discretion in explaining these matters to her and ascertaining whether, in light of her new understanding, she could impose either penalty option. As we have explained, "we ordinarily defer to the court's determination that a prospective juror's answers require clarification" (People v. Martinez, supra, 47 Cal.4th at p. 446), and "[w]e see nothing improper in the court's explaining the law" to a prospective juror whose questionnaire responses gave rise to concerns in the court's mind. (People v. Thornton, supra, 41 Cal.4th at p. 423.) The court similarly was within its discretion in ascertaining whether, in light of her new understanding, Y.C. wished to change her pro-death-penalty responses to other questions. "Clearly the court found it necessary to ask [Y.C.] questions to reach a decision about her, and doing so was not unfair to defendant." (Id. at p. 422.) Further, although we caution against overreliance on leading questions*fn10 to the exclusion of more open-ended questions because the authority of the trial judge may cause a prospective juror to give what he or she perceives to be a "correct" answer rather than a considered statement of his or her true views, we conclude the court's use of leading questions here did not fall outside the wide range of its discretion. Prospective jurors unschooled in the law may have difficulty fully articulating their views or forecasting how they would conduct themselves if selected as a juror in a death penalty case, particularly when they are asked to express themselves using legal terms and concepts that may be entirely new to them. (Cf. Uttecht, supra, 551 U.S. at p. 7 [recognizing some venirepersons may be unable to articulate their views].) In such a situation, prompting the prospective juror with leading questions may be the only way for the court to obtain a clear answer. (See People v. Mills, supra, 48 Cal.4th at p. 190 ["court's occasional use of leading questions when attempting to rehabilitate 'death-leaning' jurors" did not "suggest a lack of impartiality" because "[w]e assume the trial court formulated its questions based on the individual characteristics of each juror"].) Finally, the court did not prevent defendant's counsel from engaging in follow-up questioning of Y.C. if he chose, but counsel elected not to do so. (See Code Civ. Proc., former § 223.)*fn11
The analysis is the same with respect to the remaining 22 prospective jurors whom defendant claims the court improperly rehabilitated. A review of the questionnaire responses and voir dire of these prospective jurors indicates the court orally questioned them regarding their views on the death penalty when their written responses to critical questions were blank or appeared to the court to create a conflict or to reflect confusion or a misunderstanding of the capital trial process. In most such cases, including Prospective Jurors J.E., M.C., J.O., D.O., G.T., J.J., M.E., I.W., R.Z., C.Ph., L.H, R.L., S.W., F.G., M.A., C.Pa., E.S., M.S., L.V., the court began by noting the blank response or the apparent conflict and then engaged in an explanation of the law similar to that given to Prospective Juror Y.C., stopping at critical junctures to ascertain whether the prospective juror understood the explanation.*fn12 Having ascertained that each prospective juror understood the process, the court then asked each whether he or she would have "a problem" or "any hesitancy" in voting for either penalty option if, after weighing all the circumstances, he or she believed the evidence called for it. Some prospective jurors who initially expressed reluctance to impose life in prison without possibility of parole, or who could not imagine themselves doing so if they found defendant guilty of first degree murder with special circumstances (e.g., Prospective Jurors J.E., J.O., and M.A.), changed their responses when the court explained the concept of mitigating evidence or when examples of mitigating evidence were given. Often the court found it necessary, as with Prospective Juror Y.C., to explain that it would be improper for the individual, if selected as a juror, to vote based on a belief that a person sentenced to life in prison without parole could someday be released, to consider the costs of incarceration or appeals, or to follow the "eye for an eye" adage instead of the law given by the court; the court then obtained the prospective juror's assurance that he or she would set aside his or her personal beliefs and follow the law as instructed by the court (e.g., Prospective Jurors J.J., J.M., I.W., L.G-H., R.L., M.A., C.Pa., and M.S.). Although the court often used the "do you understand" questioning format when explaining the law and sometimes employed leading questions, after defendant objected the court displayed an awareness of the issue and even caught and corrected itself during questioning of Prospective Juror R.Z. Moreover, the court often asked open-ended questions and allowed the prospective jurors to express themselves in their own way when they were willing and able to do so (e.g., Prospective Jurors F.G. and M.S.).
In sum, the record reflects the court questioned each prospective juror in a manner consistent with its assessment of that person's "individual characteristics" (People v. Mills, supra, 48 Cal.4th at p. 190) and asked questions and explained the law it felt necessary to come to a decision about the ability of the prospective juror to serve on the jury. (People v. Thornton, supra, 41 Cal.4th at pp. 422-423.) As with Prospective Juror Y.C., and for similar reasons, we find no abuse of the court's broad discretion in its manner of questioning these prospective jurors.*fn13
Defendant contends, nonetheless, that the error here is not only that the court rehabilitated death-leaning prospective jurors, but that it failed to take the same steps with life-leaning prospective jurors, instead summarily excusing them after brief questioning. He contends the court failed to explain the two phases of the trial, the nature of aggravating and mitigating evidence, and the weighing process to such prospective jurors, and failed to determine whether they could set aside their personal views and follow the law. Defendant points to 11 prospective jurors whom he contends the court summarily dismissed in this manner.*fn14
Again, we have examined the questionnaire responses and voir dire transcript related to these 11 prospective jurors -- as compared to the responses and transcript related to the alleged death-leaning jurors and prospective jurors -- and conclude the court's manner of questioning them was not an abuse of discretion. First, we note defendant stipulated to the excusal of Prospective Juror J.L. because his religious beliefs prohibited him from judging another person. Further, defendant expressed a willingness to stipulate to the excusal of Prospective Jurors R.R. and B.C. based on their questionnaire responses before they were even brought in for individual questioning. The court was fully justified in short-circuiting the questioning of these three prospective jurors.
For the eight remaining prospective jurors, the court's questioning generally followed a pattern similar to the questioning of Prospective Juror M.F., which we set out in full:
The Court: "Hi, Mr. [F.]. How are you? [¶] We're just going to ask you a couple of questions in this matter. [¶] You indicate that you . . . oppose the death penalty?"
Prospective Juror M.F.: "Right."
Prospective Juror M.F.: "Yes."
The Court: "Okay. Do you feel that there are any circumstances under which the -- if the defendant were found guilty of the crime that he is charged with and the special circumstances are proved, do you feel that there are any circumstances which you would vote for the death penalty?"
Prospective Juror M.F.: "No, I don't."
The Court: "In other words, if the evidence, and I'm not saying that it would, showed that this crime was exceedingly vicious and callous and horrible, and if the evidence, and I'm not saying that it does, were to show that the defendant was a particularly vicious, brutal and horrible person, under no circumstances do you believe that you could impose the death penalty; is that correct?"
Prospective Juror M.F.: "I don't believe I could."
The prosecutor: "Move to excuse for cause, Your Honor."
The Court: "All right. You're excused. Thank you, Mr. [F.]."
We conclude the court's manner of questioning these prospective jurors fell within its broad discretion. The written questionnaire responses of these venirepersons left little or no cause to believe that extensive questioning would render them eligible to serve. Several -- including J.B., G.F-M., N.C., O.B., and A.M. -- wrote on their questionnaires that they would "never under any circumstances impose [the] death penalty, regardless of the evidence"; others, including M.F. and B.H., wrote they "oppose[d]" or "strongly oppose[d]" the death penalty. Each of these seven also wrote that they would automatically impose life in prison without possibility of parole if defendant were convicted of murder with special circumstances. Often, these prospective jurors included strong language explaining why they held these views. For example, Prospective Juror G.F-M. wrote "two wrongs do not make a right. Whoever is the executioner is a murderer also." Prospective Juror N.C. wrote "I could not live with myself if I was the cause of another person's death," repeating the same sentiment numerous times in the questionnaire. Similarly, Prospective Juror A.M. wrote, "I don't think I could live with myself knowing I sent someone to their death." Prospective Juror J.B. wrote, "I feel some people deserve it but I'm not going to determine it." Four of these venirepersons -- J.B., N.C., G.F-M., and O.B. -- wrote their opposition to the death penalty was based on religious or moral beliefs they could not set aside. Others, such as Prospective Juror M.F., based their views on practical considerations such as cost. Notably, the questionnaire responses of these prospective jurors were, with few exceptions, internally consistent; that is, their expressions of general feelings in opposition to the death penalty were coupled with answers indicating they could not set aside their personal moral or religious views and follow the law, and for that reason they would always vote against the death penalty regardless of the evidence. Further, none of their questionnaire responses indicated they misunderstood the capital trial process as it had been explained to them both orally and on the questionnaire; rather, their responses suggested that regardless of the process, they personally could not or would not participate in the decision to sentence someone to death. Under these circumstances, the court reasonably could conclude that neither extensive questioning nor an explanation of the law was "likely to render the[se] venireperson[s] qualified to sit in a capital case."*fn15 (People v. Mills, supra, 48 Cal.4th at p. 190.)
Here, the court orally questioned each of the identified prospective jurors regarding whether he or she could not impose the death penalty even if the evidence showed defendant had committed a horrible, vicious crime and was a horrible, vicious person. Such a formulation, while straying from what we have previously approved as satisfying the standard set forth in Witt, was adequate to assess whether there was any "realistic, practical possibility" the prospective jurors could impose the death penalty in this case. (People v. Martinez, supra, 47 Cal.4th at p. 432; cf. ibid. [asking prospective jurors "whether there was a realistic, practical possibility the juror could consider either penalty option" sufficient to satisfy Witt].) The court had the opportunity to assess each prospective juror's demeanor, both before and during questioning, and to evaluate whether each was sincerely expressing his or her views. Although the court did not explain the law in detail to these venirepersons, this omission was not an abuse of discretion in light of their questionnaire responses and the questions the court did ask. (See People v. Thornton, supra, 41 Cal.4th at p. 425.) Because the trial court who "observes and speaks with a prospective juror . . . gleans valuable information that simply does not appear on" the cold record (People v. Stewart, supra, 33 Cal.4th at p. 451), we normally defer to that court's determination that further questioning would not be fruitful (People v. Mills, supra, 48 Cal.4th at p. 190), and we do so again here. Further the court here did not prevent defendant from asking follow-up questions in an effort to rehabilitate these prospective jurors. Defense counsel did so on several occasions, but for the most part even he did not see the need to explain to these individuals the phases of a death penalty trial or the duty of a juror to set aside personal beliefs. (Cf. People v. McKinnon (2011) 52 Cal.4th 610, 644 [when counsel, advised of the court's intention to excuse a prospective juror, declined an opportunity for further voir dire to clarify the prospective juror's views, we assume "counsel accepted that the record as it stood was sufficient to support the intended ruling"].)
Although the foregoing is sufficient to resolve defendant's claim of biased questioning, we additionally note the remainder of the voir dire record does not support defendant's contention. The court excused death-leaning Prospective Jurors D.M., D.Mi. I, and L.S. without extensive efforts at rehabilitation. The court also engaged in lengthy questioning -- including an explanation of the phases of a capital case and the duty of a juror to weigh aggravating and mitigating evidence in deciding penalty -- with Prospective Jurors M.V. and D.Mi. II, both of whom expressed hesitation about imposing the death penalty in their written and/or oral responses. These examples illustrate the court's effort to be fair.
In sum, we reiterate that trial courts must be scrupulously " 'evenhanded' " in conducting death qualification voir dire. (People v. Mills, supra, 48 Cal.4th at p. 189; accord, People v. Champion (1995) 9 Cal.4th 879, 908-909.) Given the "broad discretion" traditionally afforded to trial courts in this context (People v. Mills, supra, 48 Cal.4th at p. 189), we conclude the court's manner of conducting voir dire in this case did not rise to the level of abuse of discretion, bias, lack of impartiality, or fundamental unfairness, and we reject defendant's claim that the voir dire was inadequate.
Finally, in addition to his threshold procedural claim regarding the manner of the court's voir dire, defendant also asserts the court erred substantively by applying different and more stringent criteria to evaluate life-leaning prospective jurors than it applied to death-leaning prospective jurors. As in previous cases, we address this claim on the merits notwithstanding defendant's failure to object on these precise grounds in the trial court. (People v. Clark, supra, 52 Cal.4th at p. 902, fn. 10; People v. Martinez, supra, 47 Cal.4th at p. 439, fn. 8; People v. Thornton, supra, 41 Cal.4th at pp. 419-425.) We conclude the claim lacks merit. The record demonstrates the court excused for cause both death-leaning and life-leaning prospective jurors whose questionnaire responses and oral voir dire, taken together, left the court with the " ' "definite impression" ' " (People v. Abilez, supra, 41 Cal.4th at p. 498) that they would never, under any circumstances, impose one or the other of the penalty options, and thus that their personal beliefs about the death penalty would " 'prevent or substantially impair the performance of [their] duties as a juror.' " (Witt, supra, 469 U.S. at p. 424.) Conversely, the court did not excuse prospective jurors who, although expressing serious reservations about or difficulty with imposing one penalty or the other, did not leave such an impression. These included Prospective Juror R.L., who stated "I think so" and "I think I could" impose life; Prospective Juror M.A., who stated she would find it "difficult" to impose life; Prospective Juror M.V., who stated he would "struggle" with the decision to impose death; Prospective Juror D.S., who stated he "possibly" could impose death; Prospective Juror D.Mi. II, who stated imposing death would be "difficult"; Prospective Juror L.B., who said "I think I could" impose death; and Prospective Juror K.T., who said he would have "reservations" about imposing death. We find no merit to defendant's contention that the court applied disparate substantive standards when evaluating prospective jurors.
d. Assertedly erroneous denials of defense challenges for cause
Defendant contends the court erroneously denied his challenges for cause to 15 of the prospective jurors discussed in the previous part: Prospective Jurors J.E., I.W., Y.C., M.E., J.J., J.M., R.Z., R.L., S.W., F.G., M.A., C.Pa., M.S., L.V., and G.T. He alleges the erroneous denials cumulatively "stacked" the jury pool against him, inhibited the exercise of defense peremptory challenges, and resulted in a biased and pro-death-penalty jury being chosen.
"As a general rule, a party may not complain on appeal of an allegedly erroneous denial of a challenge for cause because the party need not tolerate having the prospective juror serve on the jury; a litigant retains the power to remove the juror by exercising a peremptory challenge. Thus, to preserve this claim for appeal we require, first, that a litigant actually exercise a peremptory challenge and remove the prospective juror in question. Next, the litigant must exhaust all of the peremptory challenges allotted by statute and hold none in reserve. Finally, counsel (or defendant, if proceeding pro se) must express to the trial court dissatisfaction with the jury as presently constituted."*fn16 (People v. Mills, supra, 48 Cal.4th at p. 186; accord, People v. Jones, supra, 54 Cal.4th at pp. 45-46.) "In addition, the issue may be deemed preserved for appellate review if an adequate justification for the failure to satisfy these rules is provided." (People v. Mills, supra, at p. 186, fn. 8; see also People v. Wilson (2008) 43 Cal.4th 1, 34 (conc. opn. of Werdegar, J.).)
Here, although defendant employed peremptory challenges against Prospective Jurors J.E., J.J., M.E., R.L., and L.V., he used only 16 of his 20 allotted peremptory challenges during selection of the regular jurors and none of his four allotted peremptory challenges during selection of the alternate jurors. Nor did defendant express any dissatisfaction with the jury ultimately selected, or request additional peremptory challenges. "[T]he existence of unused peremptory challenges strongly indicates defendant's recognition that the selected jury was fair and impartial." (People v. Davis (2009) 46 Cal.4th 539, 581.)
In an apparent attempt to justify his failure to exhaust peremptory challenges, defendant claims the court's biased questioning and assertedly erroneous denials of challenges for cause so "stacked" the pool with death-leaning jurors as to "overwhelm" the defense peremptory challenges and render their exercise "irrelevant." He speculates that even had the defense used all of its peremptory challenges, "a biased jury would still have resulted . . . due to the Court's ability and demonstrated inclination to 'seed' the panel with pro-death-biased prospective jurors in a quantity sufficient to overwhelm the defense peremptory challenges." He asserts, "it would have been futile to challenge too many of the earlier chosen objectionable jurors, beyond the extremely biased, if the remaining eligible pool had an equal or possibly even higher proportion of objectionable jurors." Moreover, he claims, "the presence in the pool of so many 'rehabilitated' jurors with extreme pro-death-penalty biases" also prejudiced him because "challenging the moderately biased risked their substitution with the extremely biased." Thus, defendant contends, his objection to the court's questioning methodology and his challenges for cause to specific prospective jurors were sufficient in and of themselves to preserve his claim for appeal.
Defendant's argument fails both factually and legally. On a factual level, we have concluded in the previous part that the trial court did not improperly rehabilitate pro-death-penalty prospective jurors or otherwise exhibit bias in its voir dire questioning. Accordingly, defendant's assertion that the exercise of additional peremptory challenges would have been futile rests on nothing but speculation. On a legal level, we rejected a similar argument in People v. Mills, supra, 48 Cal.4th 158. There, the defense exercised all but one of its allotted peremptory challenges. On appeal, defendant argued his failure to exhaust peremptory challenges was justified because he needed to hold one peremptory challenge in reserve in the event he needed it to excuse a particular prospective juror, L.S., whom he claimed "was strongly pro-death-penalty." (Id. at p. 186.) We disagreed, reasoning "acceptance of this excuse would swallow the rule entirely, for a defense attorney might in every case wish to hold challenges in reserve for strategic reasons." (Ibid.) Here, defendant in essence argues he needed to hold four peremptory challenges in reserve in case he needed to challenge any of the assertedly death-leaning prospective jurors whom the court had improperly rehabilitated. Mills, however, forecloses the argument.
For the first time in the reply brief, defendant appears to modify his argument that his failure to exhaust peremptory challenges was justified. He contends, without citation to the record, that after jury selection was completed the only prospective jurors remaining in the pool were nine extremely pro-death-penalty venirepersons whom the court had improperly rehabilitated: J.O., Y.C., J.M., R.Z., S.W., F.G., M.A., C.Pa., and M.S. The court had denied defendant's for-cause challenges to eight of these prospective jurors. Thus, he claims, "no amount of challenges . . . could have improved the jury" ultimately selected.
Were defendant correct that only these nine prospective jurors remained the in the pool, and had he expressed dissatisfaction with the jury ultimately selected and requested additional peremptory challenges, we might agree that defendant's failure to exhaust his peremptories was justified and reach the merits of his claim that the trial court erroneously denied his challenges for cause. In People v. Clark, we reached the merits of defendant's claim that the trial court erroneously denied defense challenges for cause when defense counsel: (1) used peremptory challenges to remove some of the complained-of prospective jurors, but declined to use her final peremptory challenge because the person in line to fill the next vacancy in the jury box was a prospective juror whom defendant had unsuccessfully challenged for cause; (2) expressed dissatisfaction with the jury as then constituted; and (3) asked for additional peremptory challenges. (People v. Clark, supra, 52 Cal.4th at pp. 901-902.)
Our review of the record, however, does not support defendant's contention that the only persons who had not yet been called to the jury box after jury selection was completed were the nine he identifies. As noted above, following hardship excusals, the court and counsel individually questioned 158 prospective jurors. During this phase, 73 were excused for cause or for hardship, leaving 85 eligible prospective jurors at the start of the exercise of peremptory challenges.*fn17 During selection of the 12 regular jurors, defendant exercised 16 peremptory challenges and the prosecution exercised 15, leaving 42 prospective jurors remaining when the selection of alternate jurors began. These 42 included, of course, those ultimately selected as alternate jurors: A.H., R.W., R.T., and M.L. Defendant does not claim any of these four individuals was biased or improperly rehabilitated, and he did not challenge any of them for cause. Had defendant exercised all of his peremptory challenges during selection of the regular jurors, one or more of them might have been seated on the regular jury. During the selection of alternate jurors, defendant exercised no peremptory challenges and the prosecution exercised four; one person called to the jury box was excused based on a late-developing hardship. Thus, by our calculation, even after selection of the alternate jurors, 33 venirepersons remained in the pool and on the random list. Defendant has not shown, with citations to the record, that the nine he claims were unacceptable were next in line to fill vacancies in the jury box. (Cf. People v. Clark, supra, 52 Cal.4th at pp. 901-902.) Accordingly, we find no merit to defendant's contention that the exercise of additional defense peremptory challenges would have been futile. His claim that the court erroneously denied defense challenges for cause is thus forfeited.
Even were we to find the claim preserved for review, however, we would reject it on the merits. To prevail on this claim, "defendant must demonstrate that the court's rulings affected his right to a fair and impartial jury." (People v. Yeoman (2003) 31 Cal.4th 93, 114.) Here, none of the 15 identified prospective jurors sat on defendant's jury. (Ibid.; accord, People v. Mills, supra, 48 Cal.4th at p. 187.) Further, although defendant used five of his peremptory challenges to remove some of these 15 from the jury, the loss of a peremptory challenge in this manner " 'is grounds for reversal only if the defendant exhausts all peremptory challenges and an incompetent juror is forced upon him.' " (People v. Hillhouse (2002) 27 Cal.4th 469, 487, italics added, quoting Ross v. Oklahoma (1988) 487 U.S. 81, 89.) Here, defendant did not challenge for cause any of the 12 jurors who decided his case.*fn18 Moreover, as we explain post, none of the 12 jurors was biased against defendant. Because defendant "was not forced to tolerate an incompetent juror" as a result of having used peremptory challenges to excuse the five prospective jurors identified above, and because none of the 10 other prospective jurors whom defendant unsuccessfully challenged sat on his jury, the court's assertedly erroneous denials of challenges for cause "could not have affected [defendant's] right to be tried by a fair and impartial jury." (People v. Mills, supra, at p. 187.)
e. Assertedly erroneous excusals for cause
Defendant contends the trial court erred by excusing Prospective Jurors M.F. and B.H. "primarily based on their written answers to the juror questionnaire . . . without making any rehabilitative efforts similar to those made for" death-leaning prospective jurors. He contends the court's "short and quick" questioning was designed to eliminate these prospective jurors as quickly as possible.
Prospective Juror M.F. wrote on his questionnaire that he opposed the death penalty, explaining "I feel by the time the accused is put to death he must [be] tried over & over again. Life imprisonment seems more economical." He wrote he did not believe everyone convicted of the shotgun robbery murder of an elderly man should be put to death. He wrote he believed the death penalty was used too often, explaining "Don't feel we need to keep having trials to keep someone alive after he's already been given the death sentence." When asked to identify crimes for which the death penalty was appropriate, he wrote, "I am opposed to the death penalty but I don't know how I would feel if the crime involved one of my family." Asked to identify crimes for which that penalty was inappropriate, he wrote, "death penalty is inappropriate I believe in life imprisonment." He wrote if defendant were found guilty of first degree murder with special circumstances he would automatically vote for life in prison without parole because it is "punishment enough," and he would not want to know anything about defendant before deciding on the penalty. He wrote he did not believe in the "eye for an eye" principle, and although he would accept the court's assurance that the sentence of life in prison without possibility of parole meant exactly that, the costs of imprisonment and appeals would be a consideration for him in deciding penalty because "I read an article a few years back stating life imprisonment is actually more cost effective." Tellingly, he wrote he would not listen open-mindedly to the evidence at the penalty phase and base his decision on such evidence and the court's instructions, and he could not set aside his personal feelings regarding what the penalty should be and follow the law because he "can't see spending tax dollars on [appeals] for death penalty verdicts." Finally, he wrote that he would automatically vote against the death penalty and for life in prison without parole in every case, regardless of the evidence introduced at the penalty phase.
As explained ante, at pages 40-41, on voir dire the court first asked M.F. whether it was correct that he opposed the death penalty, and he said "Yes." The court then asked whether, if defendant were found guilty of the charged crime and the special circumstances were found true, there were "any circumstances" under which M.F. felt he would vote for the death penalty, and he responded, "No, I don't." Probing further, the court asked whether M.F. believed he could vote for the death penalty if the evidence showed "the crime was exceedingly vicious and callous and horrible" and the defendant "was a particularly vicious, brutal, horrible person," and M.F. again responded, "I don't believe I could." The prosecutor challenged M.F. for cause, and the court excused him. Defendant did not object to the excusal; nor did he ask for the opportunity to question M.F.*fn19
The record amply supports the trial court's conclusion that M.F.'s views about the death penalty would prevent or substantially impair the performance of his duties as a juror. M.F.'s written responses on the juror questionnaire were consistent and unambiguous. He consistently wrote that he would automatically vote against the death penalty and in favor of life in prison without parole if the case reached the penalty phase, and that he could not set aside his personal opposition to the death penalty in deference to the law. On oral voir dire he confirmed there were no circumstances under which he could vote to impose the death penalty, even if the evidence showed the crime to be extremely aggravated and the defendant unredeemable. Because the court had the opportunity to assess M.F.'s demeanor, we defer to its implicit assessment that his responses were credible. (People v. Stewart, supra, 33 Cal.4th at p. 451; see Uttecht, supra, 551 U.S. at p. 9.) On this record, we have no trouble concluding the court did not err in finding M.F. would be substantially impaired in this case.
Prospective Juror B.H. wrote on her questionnaire that she opposed the death penalty, but did not provide an explanation. She wrote that she did not believe everyone convicted of the shotgun robbery murder of an elderly man should get the death penalty. She wrote that she "do[esn't] hear" of the death penalty being used too often. Asked to identify those crimes for which she believed the death penalty should be mandatory, possible or appropriate, she wrote "No. ?" and "None. ?" She also wrote, however, that the death penalty was inappropriate "under no circumstances." She wrote that she would not automatically vote for the death penalty if defendant were convicted of murder with special circumstances, but answered "No ?" to the counterpart question asking whether she would vote automatically for life in prison without parole. She wrote that she would want to know "nothing" about defendant before deciding on the penalty, that she did not believe in the "eye for an eye" principle, and that she could accept the court's assurance that a sentence of life in prison without parole would mean exactly that. She wrote that the costs of incarceration for life would be a consideration in her penalty decision, explaining "I feel it would be better [than] the death penalty." She further wrote that she would vote against a verdict of guilt, or against finding the special circumstances true, in order to avoid having to decide the penalty because "I feel against the death penalty." She also wrote that she would automatically vote against the death penalty in every case, regardless of the evidence, because "[I'm] against the death penalty." Notably, however, B.H. wrote that she could set aside her personal feelings regarding what the penalty should be, listen to the evidence, and follow the law and the court's instructions.
The voir dire of Prospective Juror B.H. proceeded as follows:
The Court: "All right. First of all, in answer to Question 9, you indicated that you oppose the death penalty, correct?"
Prospective Juror B.H.: "Yes."
The Court: "And then in 10 and 11 . . . you were asked to explain your views on the death penalty. You left that blank."
Prospective Juror B.H.: "Uh-huh."
The Court: "And can you explain either, A, why you left it blank, or B, what your views are?"
Prospective Juror B.H.: "Because I didn't know what to put down."
The Court: "Okay. So you just weren't sure what to say?"
Prospective Juror B.H.: "Uh-huh."
The Court: "And have your views on the death penalty changed over time?"
Prospective Juror B.H.: "No."
The Court: "I'm not clear here on some of your answers exactly what you feel here. [¶] Is your feeling about the death penalty such that under no circumstances could you vote to approve it?"
Prospective Juror B.H.: "Under no circumstances."
The Court: "None whatsoever?"
Prospective Juror B.H.: "None whatsoever."
The Court: "Okay. So if -- even if this were the most horrible crime in history?"
Prospective Juror B.H.: "Even if."
The Court: "And even if the defendant was the worst person in history, you could not -- "
Prospective Juror B.H.: "I don't believe in it."
The Court: "All right. Thank you, ma'am. You're excused."
Defense counsel did not object to the excusal; nor did he ask for the opportunity to question B.H.
The record amply supports the trial court's conclusion that B.H.'s views regarding the death penalty would prevent or substantially impair the performance of her duties as a juror in this case. Although her written questionnaire responses were somewhat ambiguous, her answers on oral voir dire made it quite clear that because of her beliefs, she was unwilling to vote to impose the death penalty under any circumstances, even if this were the most "horrible crime in history." Again, the court had the opportunity to assess B.H.'s demeanor, and we defer to its implicit assessment that her responses were credible. (People v. Stewart, supra, 33 Cal.4th at p. 451; see Uttecht, supra, 551 U.S. at p. 9.) No abuse of discretion appears.
Defendant argues deference to the trial court's rulings on these challenges for cause is unwarranted because the court ruled primarily on the basis of the written questionnaires, without any in-depth questioning. He likens this case to Stewart, in which we concluded the trial court had erred by excusing five prospective jurors for cause based solely on their written responses to the juror questionnaire. (People v. Stewart, supra, 33 Cal.4th at pp. 440-454.) In doing so, we did not defer to the trial court's assessment because it was "informed by no more information than the cold record of the five prospective jurors' check marks and brief handwritten comments -- the exact same information" we had before us. (Stewart, supra, at p. 451; accord, United States v. Chanthadara (10th Cir. 2000) 230 F.3d 1237, 1270 ["because the trial court here was not in a position to observe [the prospective juror's] demeanor, it was in no better position than an appellate court to assess her answers"].) Defendant argues the same reasoning applies here because the court's oral questioning was so brief.
We disagree. Unlike in Stewart, here the court did not base its decision solely on M.F.'s and B.H.'s written responses to the questionnaire. Instead, the court questioned them orally and in person, outside the presence of other jurors. It thus had the opportunity to assess their demeanor, both before and during questioning, as well as the sincerity of their responses. Even a brief session of oral voir dire such as occurred here provides valuable information to the trial court that is unavailable from a review of the cold record. Here, the court had a sufficient opportunity to observe the prospective jurors' demeanor, tone of voice, apparent level of confidence, facial expressions and body language. (See People v. Stewart, supra, 33 Cal.4th at p. 451; see also Uttecht, supra, 551 U.S. at p. 9; Witt, supra, 469 U.S. at p. 426 ["deference must be paid to the trial judge who sees and hears the juror"].) Moreover, as explained above, we defer to the trial court's implicit determination that additional questioning would not have rendered these prospective jurors eligible to serve. (People v. Mills, supra, 48 Cal.4th at p. 190; People v. Martinez, supra, 47 Cal.4th at p. 446.) We do so because that determination itself was based on all the circumstances, including the individual's questionnaire responses, his or her responses on oral voir dire, and his or her demeanor in court. It follows that we likewise must defer to the trial court's ultimate assessment of the credibility of statements the prospective jurors made in response to the court's questioning.
Defendant contends, nonetheless, that the evidence cited above failed to establish a proper basis for excusing M.F. and B.H. Relying on the proposition that prospective jurors "who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law" (Lockhart v. McCree, supra, 476 U.S. at p. 176), he complains these prospective jurors were not given the opportunity to state they could set aside their personal beliefs. We disagree. Here, Prospective Juror M.F. twice wrote on his questionnaire that he would be unable to set aside his personal beliefs and apply the law. The trial court, having assessed M.F.'s demeanor, was entitled to credit those responses. Although B.H. stated on her questionnaire that she could set aside her personal views, her clear answers on oral voir dire contradicted those statements. The trial court, "aided as it undoubtedly was by its assessment of [B.H.'s] demeanor, was entitled to resolve [any ambiguity] in favor of the State." (Witt, supra, 469 U.S. at p. 434.) Defendant also notes that in Stewart we held the prospective jurors' "bare written response[s]" were insufficient to establish a basis for exclusion for cause absent clarifying follow-up questioning "during which the court would be able to further explain the role of jurors in the judicial system, examine the prospective juror's demeanor, and make an assessment of that person's ability to weigh a death penalty decision." (People v. Stewart, supra, 33 Cal.4th at p. 448, italics added.) By this statement, we did not suggest that a trial court is in all instances required during oral questioning to explain the role of jurors in the judicial system. Rather, as explained above, trial courts possess considerable discretion to formulate the questions to be asked on voir dire and to tailor those questions to the needs of each individual prospective juror. (People v. Mills, supra, 48 Cal.4th at pp. 189-190; People v. Martinez, supra, 47 Cal.4th at p. 446; People v. Thornton, supra, 41 Cal.4th at pp. 419-425.) Here, the trial court reasonably could have concluded an explanation of the role of jurors in the judicial system was not "likely to render [M.F. and B.H.] qualified to sit in a capital case." (People v. Mills, supra, at p. 190.)
Finally, relying on People v. Heard (2003) 31 Cal.4th 946, defendant asserts the trial court "could easily have followed up with additional questions designed to probe beneath the surface questionnaire responses," and could have "provided an explanation of the governing legal principles" and explored M.F.'s and B.H.'s ability to follow them. In Heard, we determined that a prospective juror's response to a single question on the questionnaire was insufficient to support his removal for cause when the juror later changed that response on oral voir dire after an explanation of the governing legal principles. (Id., at pp. 964-965.) We further noted that the prospective juror's responses on oral voir dire did not support a conclusion that his views regarding the death penalty would prevent or substantially impair the performance of his duties as a juror, and added, "[i]f the trial court remained uncertain as to whether [Prospective Juror] H.'s views concerning the death penalty would impair his ability to follow the law or to otherwise perform his duties as a juror, the court was free, of course, to follow up with additional questions." (Id. at p. 965.) Here, by contrast, M.F. and B.H. were not excused based on questionnaire responses that were contradicted on voir dire. To the contrary, M.F.'s written and oral responses were consistent. Although B.H.'s oral responses contradicted some of her written ones, like M.F.'s they were sufficient to remove any uncertainty from the trial court's mind regarding whether she was unfit to serve as a juror in this case, and also were adequate to support the court's conclusion that her views would substantially impair the performance of her duties. Under such circumstances, further questioning was not required.
f. Assertedly biased jury
Defendant finally contends his jury was composed of biased and pro-death jurors. Relying principally on the questionnaire responses of the 12 sitting jurors, defendant contends that all either expressed views that would make the death penalty mandatory in all murder cases or had a strong bias in favor of the death penalty. He further asserts that four jurors had been crime victims or had family members who were crime victims, five had connections with law enforcement, two had "opinions" regarding mental health testimony, and all 12 had personal experience with alcohol and/or drugs.
Defendant did not challenge for cause any of the seated jurors; nor did he exhaust his peremptory challenges or object to the jury as constituted at the completion of jury selection. His claim therefore fails unless he can prove actual bias. (People v. Foster (2010) 50 Cal.4th 1301, 1325, citing Johnson v. Armontrout (8th Cir. 1992) 961 F.2d 748, 754.) " 'Actual bias' is 'the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.' " (People v. Foster, supra, at p. 1325, quoting Code Civ. Proc., § 225, subd. (b)(1)(C).)
Our review of the record reflects none of the 12 jurors who decided defendant's case exhibited actual bias against him. Defendant relies primarily on the jurors' questionnaire responses in claiming they held disqualifying views on the death penalty and other matters. But as noted above (ante, at p. 32), the parties and the court in this case considered the questionnaire to be merely the starting point for the court's assessment of prospective jurors' fitness to serve. Here, the trial court questioned each of the jurors about most of the questionnaire responses defendant identifies as signifying bias, and both the defense and the prosecution were given the opportunity to question them about any additional areas of concern.*fn20 Each juror satisfied the court and apparently counsel on voir dire that he or she could be fair despite holding strong opinions on the death penalty, or having been the victim of a crime, or having relatives or friends in law enforcement, or having personal experience with or opinions about drugs, alcohol, or psychiatric testimony. Moreover, we have concluded above that the trial court did not exhibit a lack of impartiality in conducting voir dire, thus rejecting defendant's claim that the voir dire was insufficient to uncover juror bias. On this record, we find no evidence that any juror was actually biased against defendant.
2. Asserted prosecutorial misconduct
Defendant contends the prosecutor engaged in misconduct during the voir dire of Prospective Juror T.P. He asserts that this and other instances of misconduct occurring throughout the trial (see post, pts. II.B.2. and II.C.2.), collectively violated his rights to due process of law, to equal protection of the laws, to trial before an impartial jury, and to a reliable sentencing determination under the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal Constitution and parallel provisions of the California Constitution, warranting reversal of the guilt, special circumstances and penalty verdicts.
The standards governing this claim are well established. A prosecutor's conduct violates the federal Constitution when it infects the trial with such unfairness as to make the resulting conviction a denial of due process. Conduct by a prosecutor that does not rise to this level nevertheless violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (E.g., People v. Ayala (2000) 23 Cal.4th 225, 283-284; accord, People v. Clark, supra, 52 Cal.4th at p. 960.) To preserve a prosecutorial misconduct claim for appeal, the defendant " 'must make a timely and specific objection and ask the trial court to admonish the jury to disregard the impropriety' " unless doing so would be futile or an admonition would not cure the harm. (Clark, at p. 960.) As we shall explain, we conclude defendant has forfeited several of his claims, and in any event fails to establish any misconduct occurred.
During the individual, sequestered, portion of the voir dire, Prospective Juror T.P. mentioned he had problems with reading and writing, and also with remembering names. T.P. said he could remember the substance of what witnesses said, however, and would be able to avoid confusion by asking other jurors during deliberations to identify witnesses by what they said or by their physical characteristics. T.P. also indicated he would not feel bad asking other jurors for help if he had difficulty reading any of the exhibits. The prosecutor then asked, "Assuming, sir, that at some point in the trial you got handed . . . a stack, oh yay-high, of documentary evidence, primarily court papers. Is your difficulty with reading such that you would not be able to read those for yourself?" T.P. responded, "I don't think so. But it would take me a long time to do it." After further discussion of T.P.'s problems with name confusion, T.P. volunteered, "My biggest problem would be a big stack if -- if I didn't have enough time to go through it." T.P. agreed it would take him "a while" to read such papers.
After the trial court denied the prosecutor's challenge for cause, the following exchange occurred in the presence of T.P.:
The prosecutor: "May I address the point, Your Honor?"
The prosecutor: "Thank you. [¶] The Court has indicate[d] to Mr. [P.] twice that he can get the assistance of other jurors to tell [him] what the evidence is. And I don't think he gets the services of a reader in jury deliberations to decide on the validity of the prior convictions. That troubles me greatly."
Defense counsel: "Now I'm going to have to challenge for cause because the subject of prior convictions has come up in voir dire."
The prosecutor: "I apologize. I didn't realize I had said it that way."
The Court: "All right, sir. You're excused."
Defendant contends that even if the prosecutor's comment was inadvertent, it compromised the fairness of the trial because it caused the defense to lose a prospective juror it had previously passed for cause, allowed the prosecution to remove a prospective juror it had unsuccessfully challenged for cause, and contributed to the overall asserted pro-death bias of the jury.
Defendant's claim fails. Defendant's right to a fair and impartial jury did not entitle him to a jury composed of any particular individuals. (People v. Thomas (1990) 218 Cal.App.3d 1477, 1486, citing People v. Howard (1930) 211 Cal. 322, 325.) Moreover, the prosecutor's comment did not render the trial fundamentally unfair. No other prospective juror was exposed to the comment; T.P. himself was excused; and as we have concluded above, defendant has not established that either the process of jury selection or the jury itself lacked impartiality.
B. Guilt Phase Issues 1. Accomplice corroboration
Section 1111 prohibits a conviction based "upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense." Defendant raises several contentions based on this provision. Specifically, he asserts the trial court erred by denying his motion for a directed verdict based on insufficient non-accomplice corroborating evidence. He further contends the court erred by failing to instruct the jury that John Richie was an accomplice as a matter of law and that it was to view the testimony of the accomplices with distrust. He argues these errors deprived him of his rights under state law and to due process of law and fundamentally fair and reliable guilt and penalty determinations under the Fifth, Eighth and Fourteenth Amendments to the federal Constitution, and require that we set aside his convictions for first degree murder and robbery as well as the jury's special circumstances and penalty determinations. As we shall explain, we conclude defendant's claims lack merit.
a. Sufficiency of the evidence
Defendant's accomplices, Melissa Fader and Michelle Joe, provided the primary testimony regarding what occurred at the Nebraska Avenue house on the night Sherman Robbins was killed. John Richie testified about events occurring before the robbery and murder, and both he and Rick Saso testified about events occurring afterward.
At the conclusion of the presentation of the prosecution's guilt phase case-in-chief, defendant moved for a judgment of acquittal under section 1118.1, based on assertedly insufficient nonaccomplice corroborating evidence.*fn21 Defense counsel pointed out that the parties had assumed Richie's testimony that defendant had admitted the murder to him would corroborate the testimony of Joe and Fader. And yet, counsel asserted, because Richie had testified he was aware of a plan to commit a burglary, and Joe testified Richie gave her a pair of gloves, Richie was an aider and abettor whose testimony could not be used to corroborate the other accomplices. Counsel further argued there was no other independent, uncontradicted evidence connecting defendant either to the stolen property or to the murder. In response, the prosecutor conceded that Richie "might fall into the category of maybe he's a co-conspirator, but he doesn't fall into the category of he's clearly a co-conspirator." In any event, the prosecutor continued, Saso's testimony that he gave drugs to defendant in exchange for "stolen property coming out of" the burglary was sufficient independent corroboration to connect defendant to the robbery and murder of Robbins. The trial court denied the section 1118.1 motion, concluding that the evidence did not establish Richie was an accomplice, and that Saso's testimony provided "further corroboration."
Defendant contends the court's ruling was error; we disagree. "In ruling on a motion for judgment of acquittal pursuant to section 1118.1, a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction, that is, ' "whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of" ' " the elements of the charged offense. (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213; accord, People v. Dement (2011) 53 Cal.4th 1, 46.) Substantial evidence is defined as "evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." (People v. Cole, supra, at p. 1212; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320; People v. Johnson (1980) 26 Cal.3d 557, 578.) " 'Where the section 1118.1 motion is made at the close of the prosecution's case-in-chief, the sufficiency of the evidence is tested as it stood at that point.' [Citation.]" (People v. Cole, supra, at p. 1213.) "We review independently a trial court's ruling under section 1118.1 that the evidence is sufficient to support a conviction." (Ibid.)
An accomplice is "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (§ 1111.) The testimony of accomplices must be corroborated by "such other evidence as shall tend to connect the defendant with the commission of the offense." (Ibid.) Such evidence may not come from, or require " 'aid or assistance' " from, the testimony of other accomplices or the accomplice himself. (People v. Davis (2005) 36 Cal.4th 510, 543; People v. Perry (1972) 7 Cal.3d 756, 769.) The evidence, however, need not corroborate every fact to which the accomplice testifies. (People v. Davis, supra, at p. 543; People v. Gurule (2002) 28 Cal.4th 557, 628.) " 'Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]' . . . The evidence 'is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.' [Citation.]" (People v. Lewis (2001) 26 Cal.4th 334, 370.)
The trial court instructed the jurors that Joe and Fader were accomplices as a matter of law and it was up to them to decide if Richie was an accomplice. Here, ample evidence connected defendant to the robbery and murder of Robbins independently of the testimony of any and all of these witnesses.
First, Detective Giles New testified that upon his arrest on April 7, 1994, defendant spontaneously blurted, " 'I was expecting to get picked up sooner or later. Sometimes the best place to hide is right under your noses.' " The jury could have concluded this statement was an admission by defendant of his connection to the robbery and murder. (Evid. Code, § 1220; People v. Davis, supra, 36 Cal.4th at pp. 537-538 & fn. 10; People v. Horning (2004) 34 Cal.4th 871, 898, fn. 5.) This statement alone was sufficient independent corroboration tying defendant to the crimes to render admissible the testimony of Fader, Joe, and Richie if the jury found Richie was an accomplice.*fn22 (See People v. Davis, supra, at pp. 537-538 & fn. 10, 546 [defendant's admissions and adoptive admissions on jailhouse tape linking him to charged crimes of murder, robbery and kidnapping provided sufficient legal corroboration of accomplice testimony]; People v. Brown (2003) 31 Cal.4th 518, 556 [defendant's admissions to crimes of robbery and murder supplied corroborating evidence].)
Second, Rick Saso testified that he negotiated directly with defendant regarding the amount of drugs he would supply in exchange for two guns, a .22-caliber rifle and a shotgun, located in Richie's apartment. Saso testified he offered defendant 1/16 of an ounce of methamphetamine for the guns, but defendant demanded an "eight-ball." Saso eventually "cheated" defendant "a little bit" and gave him 1.5 grams -- less than 1/16 of an ounce. Saso was "sure" he gave the drugs to defendant, not Richie. This evidence, which connected defendant to possession of property stolen from the Nebraska Avenue house, including possibly the murder weapon, also was strong corroboration tying defendant to the robbery and murder of Robbins. (See People v. Fauber (1992) 2 Cal.4th 792, 834-835 [nonaccomplice witness's testimony that defendant gave him property proved to have belonged to the victim constituted independent corroboration of accomplice witness].)
Defendant argues Saso's testimony did not tie defendant to the robbery and murder because there was no independent proof that the guns Saso bought at Richie's apartment were the guns stolen from the Nebraska Avenue house. He emphasizes that Saso testified he sold the guns about a week after acquiring them, and the guns themselves were never introduced into evidence. The evidence, however, was sufficient for the jury to infer, independent of the testimony of Fader, Joe and Richie, that the guns Saso bought were taken from the Nebraska Avenue house. Saso described purchasing two guns: a ".22" and a shotgun that he "guess[ed]" was "maybe a 20-gauge." Bill Robbins testified similar guns -- a .22-caliber rifle and a Remington 870 12-gauge shotgun -- were missing when he returned home from Ireland. Saso also testified that while he was looking at the guns in Richie's living room, he noticed other property including a microwave oven and a "boom box"; Bill Robbins testified that similar property was stolen from his house. The similarity of the guns Saso bought to those stolen from the Nebraska Avenue house, and their proximity to other property similar to that stolen from the house, supported the conclusion that the guns were proceeds of the crimes. Saso further testified that Joe was acting strangely on the day he bought the guns; she was pacing around the apartment, and seemed "scared," "antsy" and "worried" in a way that was different from how people usually act when they are waiting for their dope. He testified there was "tension" in the air at the apartment, and people were "running around" for the first 45 minutes after his arrival, until defendant emerged from the bedroom and "just wanted to hurry up and get . . . some dope." The jury could have inferred the unusual behavior Saso described indicated consciousness of guilt on the part of Joe and the other occupants of the apartment, further tying the goods sold to Saso to the robbery and murder of Robbins. (Cf. People v. Avila (2006) 38 Cal.4th 491, 563 [evidence of defendant's consciousness of guilt may constitute corroborating evidence].)
The evidence also strongly suggested one of the guns sold to Saso was the murder weapon. Saso said one of the guns was "maybe a 20-gauge" shotgun; criminalist Duane Lovaas testified the murder weapon was likely a 12-gauge shotgun through which both 12-gauge and 20-gauge shells had been fired. And Saso testified, without objection from defendant, that the reason he sold the guns was that Richie told him defendant had shot someone with them.
Because the foregoing evidence was sufficient to link defendant to the robbery and murder of Robbins and thus to corroborate the testimony of any and all accomplices, we need not decide whether the trial court properly considered Richie's testimony about defendant's admissions to him as additional corroboration. Finally, to the extent defendant contends the evidence was insufficient as a matter of law to corroborate the accomplice witnesses, his claim fails for the reasons described above.
b. Asserted error in accomplice jury instructions
With regard to accomplices, the court began with lengthy instructions on the general principles of accomplice corroboration.*fn23 It then instructed the jury in relevant part as follows: "If the crime[s] of murder and robbery were committed by anyone, the witnesses Michelle Joe and Melissa Fader were accomplices as a matter of law, and their testimony is subject to the rule requiring corroboration. [¶] You must determine whether the witness John Richie was an accomplice as I have defined . . . that term. . . . [¶] The defendant has the burden of proving by a preponderance of the evidence that Mr. Richie was an accomplice in the crime charged against the defendant. [¶] . . . [¶] Testimony of an accomplice ought to be viewed with distrust. This does not mean that you may arbitrarily disregard such testimony, but you should give it the weight . . . to which you find it to be entitled after examining it with care and caution and in the light of all the evidence in the case." These instructions tracked the language of CALJIC Nos. 3.16, 3.19, and 3.18.*fn24
Defendant contends the court erred by failing to instruct on its own motion that Richie was an accomplice as a matter of law.*fn25 An accomplice is "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (§ 1111.) "To be so chargeable, the witness must be a principal under section 31. That section defines principals as '[a]ll persons concerned in the commission of a crime, whether . . . they directly commit the act constituting the offense, or aid and abet in its commission . . . .' (§ 31.) An aider and abettor is one who acts with both knowledge of the perpetrator's criminal purpose and the intent of encouraging or facilitating commission of the offense. Like a conspirator, an aider and abettor is guilty not only of the offense he intended to encourage or facilitate, but also of any reasonably foreseeable offense committed by the perpetrator he aids and abets." (People v. Avila, supra, 38 Cal.4th at p. 564, citing People v. Hayes (1999) 21 Cal.4th 1211, 1271, fns. 19 & 20.) "Unless there can be no dispute concerning the evidence or the inferences to be drawn from the evidence, whether a witness is an accomplice is a question for the jury. On the other hand, the court should instruct the jury that a witness is an accomplice as a matter of law when the facts establishing the witness's status as an accomplice are ' " 'clear and undisputed.' " ' " (People v. Williams (2008) 43 Cal.4th 584, 636; see also People v. Fauber, supra, 2 Cal.4th at p. 834.)
Defendant argues that the evidence establishes Richie aided and abetted the burglary of the Nebraska Avenue residence and therefore was chargeable with the reasonably foreseeable robbery and murder of Robbins. He points out that Richie testified he overheard Joe speaking with defendant about a planned burglary when she came over to his apartment on the morning of March 21, 1994, and Joe testified Richie thereafter supplied her with a pair of gloves. Richie further testified that he agreed to baby-sit Joe's child that evening. Defendant contends Richie's testimony establishes he was aware of Joe's purpose, and argues that because it was not cold that day, Richie's intent in giving Joe the gloves, as well as in agreeing to watch her child, must have been to facilitate the burglary.
We disagree. Neither the facts defendant relies upon nor the inferences to be drawn therefrom were undisputed. (See People v. Fauber, supra, 2 Cal.4th at p. 834; see also People v. Williams, supra, 43 Cal.4th at pp. 636-637.) First, Joe testified inconsistently regarding who gave her the gloves. On direct examination, Joe said the gloves "came from" Kathy Sisk, but she did not get them from Sisk "personally." Further, she was "not sure" if she got the gloves from Richie, and she also was "not sure" if defendant handed them to her. On cross-examination, Joe said that neither Sisk nor defendant gave her the gloves; rather, she got them from Richie. Richie was not asked and did not testify about whether he gave Joe a pair of gloves. Thus, it was up to the jury to determine who, if anyone, gave Joe a pair of gloves. Moreover, Richie testified that after hearing about the planned burglary he "pleaded" with defendant not to participate, and defendant assured Richie he would not. Thus, even if the jurors concluded Richie gave Joe a pair of gloves and agreed to baby-sit Joe's child, the evidence defendant describes merely "supports, but does not dictate the conclusion" that Richie acted with the intent to encourage or facilitate the commission of the burglary. (People v. Fauber, supra, at p. 834.) The trial court therefore properly instructed the jury to decide whether Richie was an accomplice. (Ibid.; accord, People v. Avila, supra, 38 Cal.4th at p. 565.)
Defendant argues Richie's involvement in supplying both a buyer for the stolen goods and a location for their sale, and in sharing in the proceeds of the crimes, also supports the conclusion that he was an accomplice. But Richie's sharing in drugs exchanged for the stolen items says little about his intent before the crimes occurred. Further, assisting with the sale of stolen property after the crimes were completed might have subjected Richie to prosecution as an accessory. (See § 32 [An accessory is "[e]very person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony . . . ."].) But an accessory is not liable to prosecution for the identical offense as a principal, and therefore is not an accomplice. (People v. Horton (1995) 11 Cal.4th 1068, 1114-1116 [witness's actions after the crime, including retrieving items from defendant's abandoned vehicle and driving defendant to a bus depot, might have implicated witness as an accessory, but did not subject him to accomplice liability]; People v. Fauber, supra, 2 Cal.4th at pp. 833-834.)
In any event, even assuming the trial court erred by failing to instruct on its own motion that Richie was an accomplice as a matter of law, such failure was harmless if there was sufficient corroborating evidence in the record. (People v. Williams, supra, 43 Cal.4th at pp. 636-638; People v. Brown, supra, 31 Cal.4th at p. 556.) As we have explained, ample evidence connected defendant to the crimes of robbery and murder apart from the testimony of Richie, Fader, and Joe. Any error did not prejudice defendant.
Defendant finally contends the trial court erred by failing to instruct the jury to view with distrust the accomplice testimony of Fader, Joe and Richie. An instruction to view with "distrust" accomplice testimony given on behalf of the prosecution was required in 1996, when this case was tried.*fn26 (E.g., People v. Zapien (1993) 4 Cal.4th 929, 982.) The court, however, instructed that the testimony of accomplices must be viewed with distrust, and further instructed that Fader and Joe were accomplices as a matter of law and that it was up to the jury to determine if Richie was an accomplice. Considering the instructions as a whole, as we must (People v. Moore (2011) 51 Cal.4th 1104, 1140), we conclude the jurors would have understood they were to view with distrust the testimony of Fader, Joe, and -- if they determined he was an accomplice -- Richie. No error appears.
2. Asserted prosecutorial misconduct
Defendant points to three instances of asserted prosecutorial misconduct that either occurred during the guilt phase or affected the guilt phase. We conclude these claims lack merit.
a. Asserted misconduct during the examination of John Richie
During the prosecutor's direct examination of John Richie, the following exchange occurred:
The prosecutor: "And Mr. Richie, are you acquainted with the defendant, Daniel Whalen, sitting at the far end of counsel table?"
Richie: "I have known him a very short time."
The prosecutor: "When did you first meet him?"
Richie: "At a place called Butler's Camp years ago."
The prosecutor: "About -- how many years ago? Roughly?"
The prosecutor: "Could it have been a little earlier than that, in '87 or '88?"
Richie: "I'm not sure. It was during my -- I was living there."
The prosecutor: "Was there some gap of time between the last time you saw him four or more years ago and when you saw him in 1994?"
Richie: "Yes. He -- he mysteriously disappeared."
Defense counsel: "Objection, Your Honor. Move to strike all after 'yes.' "
Defendant contends the prosecutor engaged in misconduct by questioning Richie about the "gap of time" in his acquaintance with defendant, while knowing the court had ruled references to defendant's prior convictions and incarceration were improper. He argues the jurors would have "readily concluded" ...