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[165 Cal.Rptr.3d 212] Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Denise Anton, Deputy State Public Defender, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
[314 P.3d 457] A Tulare County jury convicted George Lopez Contreras (defendant) of robbing and murdering a storeowner, Saleh Bin Hassan (Hassan). Defendant was found guilty, as charged, of first degree felony murder (Pen.Code, § 187, subd. (a)) , and of robbery (§ 211). The jury also sustained a special circumstance allegation of murder in the commission of a robbery. (§ 190.2, subd. (a)(17) (section 190.2(a) (17)).) Defendant was found to have personally used a firearm (shotgun) in committing each crime. (§§ 1192.7, subd. (c)(8), 1203.06, subd. (a)(1), 12022. 5, subd. (a).)
After a penalty trial, the same jurors who had decided guilt fixed the penalty at death. The trial court denied defendant's automatic motion to modify the penalty verdict. (§ 190.4, subd. (e).) The court pronounced a death judgment for the special circumstance murder. Sentence also was imposed for the robbery count and related firearm-use finding. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).)
We find no prejudicial error at defendant's trial. The judgment will be affirmed in its entirety.
I. GUILT PHASE EVIDENCE
Prosecution evidence showed that Hassan was killed on December 29, 1994, while working at the Casa Blanca Market, which he and his wife owned in Farmersville, near Visalia. He had been shot twice, including once in the back. His dead body was lying prone behind the counter. Nothing was missing from the cash register. However, Hassan's wallet and handgun [165 Cal.Rptr.3d 213] were gone. Defendant was implicated in the crime along with three other men: Jose Gonzalez (Jose), Santos Acevedo Pasillas (Santos), and Louis Phillip Fernandez, Jr. (Louis). Defendant carried a shotgun into Hassan's store, and was identified as the actual killer. At the outset, criminal charges were jointly
filed against all four men. Severance was later granted, and defendant was tried alone. The jury returned a guilty verdict, as stated above.
B. Prosecution Case-in-Chief
1. Testimony of witnesses present during the capital crime
A key witness was Jose Guadalupe " Lupe" Valencia (Lupe). At the relevant time, Lupe lived with both his sister, Yesenia Valencia, and her boyfriend, Jose. Jose introduced Lupe to defendant shortly before the capital crime. 
In December 1994, when Lupe had nothing to do, he went with Jose and defendant to pick up the other alleged accomplices, first Louis and then Santos. When Louis joined the group, they used his car.
Lupe described an unusual event that happened when the group picked up Santos that day. Defendant and Santos brought two " long rifles" from the house, and set them in the back seat of Louis's car. Louis was the driver, and Lupe was the front passenger. The other three men— defendant, Jose, and Santos— sat in the back on top of the guns.
Louis drove the group to a store in Visalia. Lupe did not know the store's name. However, he recalled that on the way there, defendant, Jose, and Santos put on makeshift masks. These masks were made of small pieces of cloth, and covered each man's face from the nose down. Because of the masks and guns, Lupe assumed the group planned to rob the store. However, the car did not stop, and no robbery occurred, because there were too many people nearby.
[314 P.3d 458] Lupe's account continued: Louis drove to another spot, the Casa Blanca Market, in Farmersville. Santos said he wanted to see if anyone was inside the store. With the mask hanging around his neck, he exited the car and pretended to use the pay phone near the door. Santos returned to the car and said the store was empty. Defendant and Jose each responded by grabbing a gun and going inside.
About 20 seconds later, Lupe heard a loud gunshot. He testified that Santos reentered the car after " running out saying that George [i.e., defendant] got shot." Louis made a U-turn, apparently preparing to drive away. At some point, both Jose and defendant, who had not been shot, joined the trio already inside the car.
Lupe testified that Louis drove the group to Santos's home. On the way, defendant said he would " never forget the smile on his face," an apparent reference to the victim, Hassan. Lupe recalled that defendant was smiling and in a " happyish" mood. At Santos's house, Louis dropped off his passengers and left. Later, defendant accompanied Lupe and Jose to their home.
At trial, Lupe described certain conversations that night which implicated both Jose and defendant in the robbery murder. According to Jose, the clerk at the store displayed a gun. Jose said he attempted to shoot the clerk but his gun jammed. Jose stated that he tried breaking into the [165 Cal.Rptr.3d 214] cash register, which did not open, and he took the clerk's wallet. After giving this account, Jose showed the wallet to Lupe.
Defendant incriminated himself on the same occasion. First, he offered Lupe a handgun, which Lupe did not take. Lupe identified the handgun that belonged to the victim, Hassan, as the one defendant displayed.
Second, Lupe testified that defendant said that " when he walked in, he pointed the gun at the clerk and the clerk pulled out a gun and [defendant] shot him." Defendant promised to " get" any informers. Lupe assumed that this threat was aimed at him, and that it meant defendant would " shoot [him] or something."
Like Lupe, another witness, Amanda Garcia, saw events outside the Casa Blanca Market on the day of the capital crime. At 3:00 p.m., she drove from the Kmart in Visalia towards Farmersville, where she lived. Around 3:30 p.m. or 4:00 p.m., Garcia encountered a car she identified as Louis's car blocking traffic outside the market. She stopped five or six car lengths behind the car, and saw two people inside— one in the driver's seat and the other in the backseat. Suddenly, two other individuals rushed out of the store. One of them carried a long object shaped like a gun. Each person leaving the store wore a dark mask that covered the face except for the eyes. Garcia saw a similar disguise on one of the occupants of the car in front of her, after that person turned around in her direction. The pair on foot got into the waiting car, which sped away.
2. Testimony of Artero Vallejo, Jr., and supporting witnesses
In 1994, Artero Vallejo, Jr. (Vallejo) was friends with defendant and Santos. Vallejo testified that on December 29, the day of the capital crime, he worked his regular swing shift in Visalia, which began at 3:00 p.m. and ended between 11:00 p.m. and 11:30 p.m. After work, Vallejo went to Santos's house. Both defendant and Santos were there.
[314 P.3d 459] Vallejo testified about incriminating statements Santos, defendant, and Jose made the night of the capital crime. Santos told Vallejo that " [t]hey tried to pull a little robbery," that a " shooting" occurred, and that they got " nothing out of it."
According to Vallejo, defendant volunteered that he " shot the clerk at the store," and that the shooting occurred as follows: Defendant held the shotgun in one hand. The clerk offered no cash, and none could be found. Defendant warned the clerk that he would be shot if he did anything. Defendant ended up shooting him. Defendant then approached the wounded man and saw a smile on his face. Defendant said, " I told you I was going to kill you." Defendant kicked the clerk and shot him a second time. Vallejo testified that, in recounting the crime, defendant [165 Cal.Rptr.3d 215] acted like " it was no big deal." 
During the same conversation, defendant admitted taking a .25-caliber handgun from the store clerk. Defendant pulled the gun from his jacket pocket and showed it to Vallejo. At trial, Vallejo identified Hassan's gun as the one that defendant had displayed.
Vallejo testified about other guns that linked defendant to the Casa Blanca crimes, as follows: When defendant needed guns, he would borrow them from Jesus Manuel Fernandez, or " Shorty" (Shorty). One or two weeks before the capital crime, Vallejo went with defendant and Santos to Shorty's home and borrowed a shotgun and a .22-caliber rifle. Later, on December 28, the night before the murder, Vallejo was told by either defendant or Santos that defendant had picked up the same guns at Shorty's house earlier that day.  The purpose was to " pull a little job," which Vallejo understood to mean an armed robbery, and to get some quick cash. Shorty's wife transferred the weapons at that time.
Vallejo's testimony also encompassed his contact with the other perpetrators, Jose and Louis, the night that Hassan was killed. Specifically, Jose and Louis arrived at Santos's house while defendant, Santos, and Vallejo were there. According to Vallejo, Jose discussed events inside the Casa Blanca Market. Jose told Vallejo that " George [i.e., defendant] had shot him [i.e., the clerk], that he [apparently, Jose] couldn't find the money, and that he said he was looking all over the place for the money."
Vallejo further testified that all five men left Santos's house together that night. After stopping briefly at Louis's house, the [165 Cal.Rptr.3d 216] group went out to " celebrate" the shooting. They visited a bar named The Break Room, [314 P.3d 460] and then attended a party in Farmersville. Vallejo testified that he and his companions each drank alcohol at both places, and that they also ingested " crank," or methamphetamine, at the party. The group eventually split up. Santos and Louis went home, and defendant, Jose, and Vallejo attended a second party.
Vallejo denied being present at the Casa Blanca Market during the robbery murder or otherwise having any involvement in the crime.
3. Postcrime investigation
At 3:27 p.m. on December 29, 1994, Deputy Scott O'Neill of the Tulare County Sheriff's Department was dispatched to the Casa Blanca Market.
When he arrived a few minutes later, he found Hassan, dead, behind the cash register. His body was lying facedown on the floor. Based on witness statements at the scene, O'Neill estimated that the crime happened at 3:20 p.m.
The autopsy physician, Dr. Leonard Miller, testified that Hassan sustained two fatal gunshot wounds. One shot had penetrated the left side of the victim's abdomen. The other shot had entered his lower back, toward the right side of the body. Each wound was inflicted with a shotgun.
Sheriff's Detective James Hilger investigated the Casa Blanca Market crimes. They went unsolved for several months. The situation changed in August 1995. At that time, under circumstances discussed further below, Vallejo voluntarily contacted law enforcement officials. He offered to provide information about the killing and to identify the perpetrators. On August 11, Detective Hilger tape-recorded Vallejo's statement. Defendant apparently was arrested the same day.
A short time later, law enforcement officials contacted Lupe. For the first time, he disclosed what he knew about the capital crime.
C. Defense Case
Defendant called two witnesses who were outside the Casa Blanca Market the day of the capital crime. Byron Northcutt, who lived one block away, testified that he heard three gunshots, and saw a man with a rifle leave and then reenter the store. Two men then left the store, led by the one with the rifle. They entered a waiting car. Both wore hoods. Northcutt could not tell if the second man had a gun. The second defense witness, Joel Mohr, was repairing a car 50 yards away when he saw one man leave the store, yelling at someone inside to hurry. A second man, wearing a hood, came out, stood in the driveway, and shot toward the store. At most, Mohr heard two shots. He did not see whether the first man had a gun or hood. Mohr watched the men enter a car that had been parked near the pay phone and that swung around to meet them. Two other men were in the front seat.
[165 Cal.Rptr.3d 217] The defense also elicited testimony from Detective Hilger to the effect that certain details in Vallejo's pretrial taped statement did not match his trial testimony. For instance, in the police interview, Vallejo said that when he arrived at Santos's house after work on the night of the capital crime, Jose was already there with defendant and Santos. However, Vallejo testified at trial that he arrived before both Jose and Louis.
The rest of the defense case consisted of an alibi for the Casa Blanca crimes. It was offered by the following members of defendant's family: Claudia Gutierrez Contreras, who was defendant's girlfriend in December 1994 and his wife at the time of trial; Claudia's [314 P.3d 461] sisters, Erika Gutierrez and Patricia Murillo; Patricia's husband, Raul Murillo; and Martina Gutierrez, the mother of Claudia, Erika, and Patricia.
Together, these witnesses (whom we identify by their first names) testified as follows: Defendant picked up Claudia after she left work at 3:36 p.m. on December 29, 1994. After stopping at Claudia's house, defendant and Claudia went to pick up Claudia's sister, Erika, at the accounting firm in Visalia for which she worked. Defendant and Claudia— who had defendant's infant son, Marco, in the car— waited 45 minutes in the parking lot until Erika left work.
Meanwhile, Erika looked out of an office window and recognized two couples in the parking lot: (1) defendant and Claudia, and (2) Patricia and Raul. Each couple waved at the other. Patricia and Raul had arrived there around 4:00 p.m. to obtain a personal loan from a finance company in Erika's office building. After Erika left work at 5:00 p.m., defendant drove Claudia and Erika home. He did not leave their house before midnight.
Claudia testified that in January 1996, one year after the killing and five months after defendant's arrest in August 1995, she found the written loan agreement that Patricia and Raul had signed on December 29, 1994. This
information was passed along to Erika, Patricia, and Martina. These family members testified that the contract helped them recall defendant's whereabouts when it was signed.
D. Prosecution Rebuttal
The prosecution challenged the defense theory that, shortly after the Casa Blanca Market crimes, defendant was in a car with his infant son, Marco, and with Claudia, meeting Claudia's sister, Erika, after work. As noted, Marco's mother is Arcadia Hernandez (Arcadia). Arcadia's sister, Elisabeth Hernandez (Elisabeth), testified that throughout December 1994, Marco stayed with Arcadia and Elisabeth in their [165 Cal.Rptr.3d 218] mother's home, and that he was not visited or taken by defendant during this time.
E. Defense Surrebuttal
Claudia (defendant's girlfriend in 1994 and his wife at trial) testified that a photograph depicting defendant with her and Marco was taken around Christmas, 1994. Defendant's mother testified that Marco's head was shaved in December 1994, as depicted in the same photograph.
II. PENALTY PHASE EVIDENCE
A. Prosecution Case
1. Victim Impact Evidence
Hassan's widow, Alya Saed Hassan, testified (through an interpreter) about her husband's character and the effect of his death [314 P.3d 462] on loved ones. The couple had been married for 30 years and had three children, the youngest of whom was 10 years old at the time of trial. Alya described her husband as irreplaceable— the love of her life. He was exceptionally hardworking. For 16 years, he labored on farms, and the couple saved money, in order to buy the Casa Blanca Market. During the eight-year period in which they owned the store, Hassan worked on the premises 15 hours a day. The family lived next
door in a trailer. Alya regretted having to start using welfare benefits after Hassan's death. The family could not afford mental health counseling to handle the loss.
2. Unadjudicated Assault with a Firearm
The prosecution presented evidence that, on August 29, 1994, four months before the capital crime, defendant shot at a car, knowing that his own son, Marco, was one of several people inside. The incident began when Arcadia came home from work and discovered that defendant had picked up Marco while he was being watched by Arcadia's sisters, Elisabeth and Maria Torres (Maria). Six people drove in a Thunderbird to retrieve Marco from defendant's mother's home, where defendant lived. They were Arcadia, Elisabeth, Maria, Maria's husband Ramon, Ramon's brother Angel, and Maria and Ramon's infant son.
According to all three witnesses who described the incident at trial— Maria, Elisabeth, and Ramon— Arcadia went to defendant's door, and the two began arguing. The couple then sat down on a bench. Meanwhile, Maria and Elisabeth exited the car, took Marco from the house, and got into the car with him. Maria testified that defendant may have momentarily retrieved Marco during this process, but Elisabeth had no such recollection. At some point, defendant asked Ramon to identify the driver, Angel. Arcadia reentered the car last. It then contained the six original occupants plus Marco.
All three witnesses gave similar, though not identical, accounts of what happened next. Maria heard multiple shots, and [165 Cal.Rptr.3d 219] turned to see defendant holding a gun and " pointing to the car" at a downward angle. For reasons she did not explain, Maria believed defendant may have shot up into the air first before firing at the car. Elisabeth, in turn, saw defendant pull an object out of his pants, and heard several gunshots. Though Elisabeth did not see a gun or the direction in which it was aimed, she knew defendant was the shooter because no one else was nearby. Ramon looked back out of the car window, and saw defendant get up from the bench and approach the car from behind. Defendant then took out a handgun and " pointed at the car." Standing seven or eight feet away, defendant fired three or four shots. Arcadia screamed, and the Thunderbird sped away.
Angel, the driver, headed directly to a store, where the police were called. Officer James Rapozo of the Visalia Police Department arrived at the scene of the shooting around 10:00 p.m., soon after the shooting occurred. The victims
described a custody dispute in which the child was retrieved from the father. The officer testified that he found two expended shells from a .380-caliber handgun in the road. He also saw two bullet holes in a wall nearby. One of them was two feet from the ground. In the dark, neither Officer Rapozo nor anyone in the Thunderbird saw damage to the car. The next day, however, Maria and Ramon saw a bullet hole in the rear spoiler.
B. Defense Case
Defendant's older sister, Angelica Torres, provided a substantial amount of background information, as follows: Defendant's parents and all 10 of their children, including defendant (the third youngest child), were natives of Mexico. When they wed, defendant's father was 18 years old and his mother was 13 years old. They remained married at the time of trial.
Angelica recalled that, in Mexico, the family lived a " normal" life in a small town. [314 P.3d 463] They were neither rich nor poor. Both parents were hardworking. Defendant's father was the main provider, but he could not support the family alone. Defendant's mother was a seamstress. She cared for the children at home.
According to Angelica, she and defendant had a close emotional bond. She was 10 years older, and helped care for him as a child. When defendant was four years old and Angelica was 14 years old, she moved from Mexico to Los Angeles. Angelica stayed in touch with defendant and the rest of the family, visiting them often.
Angelica continued: When defendant was six or seven, the family moved to Visalia, where they bought their own home and have lived ever since. Both parents continued to support the family. Angelica, who moved back and forth between Los Angeles and Visalia, remained close to defendant. She eventually bought a home next door to her parents. At one point, Angelica, her mother, and other female relatives worked in the same factory. The extended family was both large and close.
At trial, Angelica acknowledged that her parents' marriage was not strife free. A few days before defendant was born in 1974, defendant's father beat his mother— a fact that upset defendant when he learned about it several years later. Angelica insisted defendant was a normal, healthy, and playful child. She described her mother as affectionate and gentle, and [165 Cal.Rptr.3d 220] her father as emotionally distant from all of his children. The parents argued over little things. Angelica learned from her siblings that, once or twice, while she was not present or living at home, her father hit her mother.
Angelica testified that the family shared a strong belief that defendant did not commit the capital crime. Defendant's mother and other relatives helped
care for his two children after his arrest. Their mother, Arcadia, was young and reportedly distracted from her parental duties. According to Angelica, defendant was a proud and devoted father.
Defendant's wife Claudia testified that she had known defendant since the eighth grade. She would love, support, and communicate with him even if he spent his entire life in prison. She planned to maintain a relationship with defendant's children and to help them stay close to their father. When asked how she would feel if defendant were sentenced to death, Claudia replied that " they could put me to death, too."
The defense also called Bill Wittman, who was elected Sheriff of Tulare County 18 months before he appeared at trial. Wittman testified that he had known defendant for at least 10 years ending in 1993, before the capital crime. Defendant was a " good kid" who participated in recreational sports at a community center that Wittman helped build and run. Wittman occasionally visited defendant's family in their home near the center. Except for defendant's older brother, Fernando, who was a bully with an arrest record, other family members seemed warm and hospitable. Once, defendant refused payment for work he and other children had performed on Wittman's ranch.
Louisa Duarte had lived next door to defendant's family since they moved from Mexico to Visalia. She testified that defendant and his siblings were well-behaved and respectful. Defendant practiced speaking English, his second language, with Duarte. He always had a " special smile."
C. Prosecution Rebuttal
Arcadia, the mother of defendant's children, testified that defendant had seen his daughter, Jasmine, only twice since her birth. He provided no financial support for either Jasmine or her brother, Marco.
[314 P.3d 464] Jerry Speck supervised defendant when he was on juvenile probation for possessing a pellet gun at school. Speck testified that in October 1991, defendant declined Speck's request to perform court-ordered community service. Defendant became loud and defiant and refused to calm down. Speck arrested him and took him to juvenile hall. On cross-examination, Speck
disclosed that defendant was pleasant when he was not angry, and that he had trouble appreciating the ...