THE PEOPLE, Plaintiff and Respondent, v. CATHERINE THOMPSON, Defendant and Appellant, 1 Cal. 5th 1043

Opinion WERDEGAR, J. —A jury in Los Angeles County Superior Court convicted defendant Catherine Thompson on September 15, 1992, of both conspiracy to murder and the first degree murder of her husband, Melvin “Tom” Thompson. (Pen. Code, §§ 182, 187; all further statutory references are to this code unless otherwise indicated).

The jury also sustained a special circumstance allegation that defendant committed the murder for financial gain. (§ 190.2, subd. (a)(1).) On September 28, 1992, after weighing the aggravating and mitigating evidence presented by the parties, the jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety. I. Guilt Phase A. Facts 1.

Financial Dealings Before the Murder Melvin Thompson (Melvin) owned and operated Kayser Service and Community Brake (hereafter Kayser Service), an auto repair shop in Santa Monica, since 1982. Initially, he controlled the finances of his business.

He had separated from his wife, Mellie Thompson, in 1978, and they eventually divorced; their marital dissolution agreement specified that Mellie could live in their jointly owned home on South Sycamore Avenue until 1988, when their youngest child would turn 18 years old, at which time either Melvin or Mellie would buy the other out, or the house would be sold and they would split the proceeds. Melvin and defendant married sometime after his divorce from Mellie, and they bought a house together on Hillary Drive. Defendant eventually began handling the finances of the Kayser Service business.

From 1986 to 1988, however, while working as an office manager at a business called Edith Ann’s Answering Service (hereafter Edith Ann), defendant incurred a debt to her employer of more than $33,000. Defendant agreed to repay the amount and gave Edith Ann a deed of trust on the Hillary Drive home on which she had forged her husband’s signature. Defendant did not tell him about the matter. After paying $7,500 on the note she had given to Edith Ann, defendant ceased payment and the house on Hillary Drive went into foreclosure in September 1989.

Tony DeGreef of BID Properties purchased the home and began eviction proceedings. One of defendant’s friends, Isabelle Sanders (Isabelle), contacted DeGreef to discuss whether defendant could repurchase the home. During these negotiations, defendant falsely told DeGreef that Isabelle was her mother, and that defendant’s husband was very ill and thus unavailable to participate in the negotiations. In fact, defendant had instructed DeGreef not to inform her husband about the foreclosure. Defendant told DeGreef she wanted to buy back the house in her maiden name, Catherine Bazar, because of her bad credit history.

When DeGreef expressed concern that defendant did not have sufficient funds to repurchase the home, she falsely told him she would be receiving money from a trust and a life insurance policy. DeGreef agreed to rent the home to defendant for $4,500 per month while they negotiated the terms of the repurchase. While this was occurring, Mellie Thompson was trying to purchase her ex-husband Melvin’s ownership interest in the South Sycamore Avenue house. At the same time, in November 1989, defendant embarked on a fraudulent scheme to obtain a loan using Mellie’s South Sycamore Avenue home as collateral.

To facilitate the fraud, defendant obtained a temporary driver’s license in Mellie Thompson’s name, and Isabelle’s son, codefendant Phillip Sanders (hereafter sometimes Phillip), obtained a temporary driver’s license to pose as Melvin Thompson. The two, along with Isabelle, met with Dorothy Reik, a mortgage broker, and negotiated a refinancing of the South Sycamore Avenue house.

Reik testified that Isabelle appeared to be in charge of the negotiations and that she introduced defendant and Phillip as “Mellie and Melvin Thompson.” When Reik noticed the temporary licenses, which had no photos, had been procured that very day and that the listed weight for “Melvin” was inconsistent with Phillip’s appearance, she was told the Thompsons recently lost their permanent licenses in a robbery, and that “Melvin” had been ill and lost some weight.

When Reik attempted to confirm this story by calling Kayser Service, a woman named “Rene” answered the telephone and confirmed the robbery story. (Defendant’s good friend Rene Griffin testified, denying she ever told a loan representative the Thompsons had been robbed, lost their identifications, or that Melvin had recently lost weight.) Because they lacked photo identifications, Reik required independent witnesses to verify the Thompsons’ identity. This was provided by Isabelle, her daughter, Carolyn Moore, and Isabelle’s daughter-in-law, Carolyn Sanders (Phillip’s wife).

Reik was satisfied, and defendant and Phillip, posing as Mellie and Melvin Thompson, signed the loan papers in Reik’s presence. Reik later described the loan as a “hard money” loan, based on the value of the South Sycamore Avenue home and not the borrowers’ creditworthiness.

Defendant and Phillip received $25,000 before escrow closed, and an additional $27,822 thereafter. (The remainder of the $98,000 loan paid off the first deed of trust and accrued property taxes on the South Sycamore Avenue home.) Around this same time, Isabelle approached Bruce Blum, an attorney, and asked him whether he could help her “daughter,” who allegedly had lost her house in a foreclosure. Blum began working for defendant in December 1989 to help her reacquire the home on Hillary Drive.

Defendant gave him a check for $20,000, drawn on the Kayser Service account, to pay the rent on the home through April 1990. Defendant’s poor credit prevented her from obtaining financing, so Blum attempted to negotiate the sale in Isabelle’s name. When that proved ineffective, defendant obtained a driver’s license and Social Security card in her maiden name, Catherine Bazar, and attempted to obtain financing that way. In March 1990, defendant (who introduced herself as Catherine Bazar), along with Isabelle, met with mortgage broker David Yourist.

Defendant told him she wished to repurchase the Hillary Drive house, was married to a man who operated an auto repair business, but that she would be taking title to the house in her own name. On the application for the loan, she listed her bank as “Community Bank,” but the address and telephone number of the bank was, in fact, the address and telephone number of Kayser Service. Yourist sent a request for verification of deposit to a “bank” at that address and received back confirmation that defendant had money on deposit.

Yourist thereafter referred the matter to Jane Rogers, an escrow officer, to prepare the paperwork for the sale. The terms of the loan required defendant to put $42,500 down, with the remaining $412,500 to be financed by the bank and a second mortgage carried by the seller. In lieu of defendant’s payment, Rogers received a copy of an assignment of proceeds from a life insurance policy to Catherine Bazar, but Rogers never received any actual money and the sale did not go through. Yourist later learned from the newspaper that the person he knew as “Catherine Bazar” was, in fact, defendant Catherine Thompson.

Rene Griffin later denied representing herself to be the operations vice-president of “Community Bank” and denied signing a verification of deposit for defendant in that capacity. In December 1989, Mellie Thompson learned that her home on South Sycamore Avenue had been refinanced without her knowledge or consent. She sued her ex-husband, Melvin, defendant, and others for fraud. 2. Conspiracy To Commit Murder Phillip Sanders lived in Sylmar with his wife, Carolyn Sanders (Carolyn). Christine Kuretich met Carolyn in 1988 and the two became close friends.

In mid-May 1990, Kuretich moved in with the Sanderses and rented a room in their house. From that time until the murder on June 14, 1990, Kuretich overheard Phillip and Carolyn Sanders engage in several conversations concerning Melvin Thompson’s murder. Most of those conversations concerned killing him to obtain proceeds of a life insurance policy. For example, Kuretich heard her housemates say that defendant wanted her husband dead and would pay the Sanderses to facilitate his murder.

In addition, Carolyn told Kuretich that someone named “Catherine” would pay the Sanderses “thousands and thousands” of dollars to have someone kill her husband, and asked Kuretich if she knew anyone who would do the job. In June 1990, Kuretich took five or six telephone messages from someone named Cathy, asking to speak to Phillip. Shortly before June 14, 1990 (the day of the murder), Kuretich heard the Sanderses say that Phillip himself was going to commit the murder because they had already received—and spent—money intended as a down payment for the killing, and they could not find anyone else to do the job.

Carolyn Sanders’s son, Robert Jones, lived next door to them, and was present for some of these conversations concerning the planned murder. According to Kuretich, Carolyn asked Jones if he could procure a gun to do the job, and a few days before the murder he told her he had done so. Phillip worked at Barish Chrysler-Plymouth as a car salesman. Between May 1 and June 13, 1990 (the day before the murder), the switchboard operator there took several telephone messages for Phillip from “Cathy” or “Mrs. Thompson.” The caller never asked to speak with anyone else. 3.

The Murder Charlotte Wark lived in a condominium next door to Kayser Service. On June 14, 1990, she arrived home around 6:40 p.m. and, as she turned into her garage, she stopped and chatted with Melvin, who was standing inside the gate to his business. He seemed nervous. Wark parked her car but was still in her garage a few minutes later when she heard four or five gunshots, which at the time she thought were firecrackers. Around 6:30 that evening, Michael Lutz was in a gas station across the street from Kayser Service.

He noticed two African-American males in a white Plymouth Acclaim double-parked in the alley next to the car repair shop. Lutz watched as the passenger exited and the car drove away. Shortly thereafter, Lutz heard two loud “bangs,” saw the passenger reemerge from the alley, and then saw the white Acclaim return and pick the passenger up. The passenger held his arm across his chest, as if he was concealing something under his jacket. As the white Acclaim left the scene, Lutz wrote down the car’s license plate number.

Lutz then saw defendant, who appeared distraught, emerge from the alley and use the pay phone at the gas station. Lutz found another telephone and called 911. He later identified Phillip as the passenger and Robert Jones as the driver. Detective Kurt Wachter responded to the 911 call and found the victim, Melvin Thompson, in the bathroom at Kayser Service suffering from three gunshot wounds. He later died in the hospital. The victim was fully clothed and had on his person a wallet with credit cards and over $1,300 in cash.

When searching the premises, police found a letter indicating that ownership of Kayser Service had been transferred to someone named “Catherine Jacquet.” City records confirmed ownership of the business had been transferred to defendant eight days earlier. The last name of defendant’s previous husband was Jacquet, and defendant sometimes went by the name Catherine Jacquet. Detective Wachter proceeded to the hospital where he interviewed defendant. She appeared calm and said she left Kayser Service around 5:45 p.m. to recycle some cans.

When she returned 45 or 60 minutes later, she thought she heard gunshots and claimed she saw an unfamiliar African-American man about 30 years old walking away from the repair shop. She did not say the man she saw was Phillip Sanders, and later denied to friends that he was the person she saw. She also reported her husband had a Rolex watch that he kept either on his wrist or in a desk drawer at Kayser Service. When Detective Wachter searched the premises of Kayser Service, he failed to find the Rolex watch, although he noticed two large bags of empty aluminum cans.

Police traced the license plate number provided by Lutz and discovered it was a car Phillip had recently rented. Police went to Phillip’s Sylmar home around midnight on the night of the murder and found the car parked in the carport, its hood still warm. Phillip’s wife, Carolyn, admitted police into the house; Phillip was sitting on the couch. Detective Wachter noticed a set of car keys in plain sight on the kitchen table bearing a Thrifty Rent-A-Car tag, and obtained Phillip’s consent to search the car. Phillip denied he had driven the car after 6:00 p.m. or had been in West Los Angeles that evening.

Near the keys, Wachter also observed a piece of paper with defendant’s telephone number on it. After confirming the keys fit the Acclaim, police arrested Phillip. In a subsequent interview with police, Phillip continued to claim he had not used the car that evening and also claimed he did not know who killed Melvin Thompson. He would later testify that these assertions were untrue. After Phillip’s arrest, Carolyn Sanders immediately called Kuretich around 1:00 a.m. and asked her to return home. Carolyn was very upset and told Kuretich what had happened.

Gregory Jones, Phillip’s brother-in-law, came over and discussed the murder with Carolyn. After he left, Carolyn told Kuretich that she believed Gregory Jones had provided police with information implicating Phillip in the murder, and if asked by police Kuretich should place the blame for the murder on Gregory Jones. Kuretich thereafter repeatedly told police Gregory Jones was responsible for the murder, until police suggested she take a lie detector test, at which point she changed her story and implicated defendant as well as Phillip and Carolyn Sanders.

Kuretich left the state after the prelintinary hearing but was later located in Kansas and returned to California. Defendant’s friend, Nancy Rankin, testified that after the murder she was driving home from the hospital with defendant and Rene Griffin when she heard defendant exclaim, to no one in particular, “it wasn’t supposed to happen this way,” or “I didn’t mean for it to happen this way.” Rankin was under the impression the victim was killed for his Rolex watch. Defendant told her two men had been arrested in San Francisco in possession of the victim’s watch.

Although defendant told Rene Griffin the victim had brought his Rolex watch to work, intending to take it to a jeweler for repairs, and that someone had been arrested in San Francisco with the watch, police had no information about anyone having been arrested in San Francisco in possession of the victim’s watch. Carolyn Walsko, who worked for Prudential Insurance, testified the victim was the subject of two life insurance policies, one for $100,000 (issued in 1988) and a second one for $150,000 (issued in 1990, the year of the murder).

The latter policy had a double indemnity clause for accidental death, which included homicide, making it potentially worth $300,000. A Prudential Insurance sales agent testified that Melvin’s insurance premiums were high (about $1,145 per month) but not unreasonable given Melvin’s reported income (about $250,000 per year) and his lack of retirement savings. Shortly after the murder, defendant submitted a claim on Melvin’s life insurance policies and assigned the rights to the policies to Tony DeGreef of BID Properties to enable her to repurchase the Hillary Drive house.

On June 18, 1990, four days after the murder, police arrested defendant, informing her she was being arrested for hiring someone to kill her husband. She blurted out: “I didn’t know Phil at all. I only met him once and that was about the sale of a car.” According to the arresting officers, they had not mentioned Phillip Sanders or “Phil” to defendant. She was released from custody a few days later. Melvin Thompson’s funeral occurred while defendant was in custody. She instructed Rene Griffin to collect all of the jewelry from the victim’s body after the funeral and return the items to defendant.

Defendant later pawned the jewelry and used the money to go on a gambling vacation in Laughlin, Nevada. Rankin and Griffin said the trip was their idea. The victim’s son, Tommy Thompson, Jr., worked at Kayser Service with his father and continued to work there after the murder. After Melvin married defendant, she took over managing the auto shop as well as other parts of his life. When Tommy told Melvin his concerns about defendant’s intrusiveness in the business, he became angry.

According to Tommy, defendant’s friends Isabelle Sanders, Rene Griffin, and Patricia Ceaser often hung out with defendant at Kayser Service. In addition, Tommy had seen both Phillip Sanders and Robert Jones at the shop in the weeks before the murder. After Melvin was murdered, defendant had Rene Griffin come by the shop on a daily basis and collect the day’s cash. Tommy later learned that the rent on the business had not been paid and confronted defendant about it. She falsely told him she had paid the rent and promised to take care of the matter.

Tommy eventually stopped allowing Griffin to collect the receipts for defendant and began handling the financial aspects of the business himself. Tommy Thompson turned over to police several documents found in the Kayser Service office.

One was a letter written by someone named “Katrina Brazarre” on letterhead stationary from an institution named “Guaranty Bank and Trust Co.” Tommy also found some rub-on stencils that could be used to create that letterhead, and a letter under the blotter on the desk where defendant usually sat that contained a precise physical description of his father, as well as his exact work schedule. 4. Phillip Sanders’s Evidence Codefendant Phillip Sanders testified he met defendant through his mother, Isabelle Sanders.

Phillip admitted he obtained a driver’s license in victim Melvin Thompson’s name, posed as Melvin, and helped defendant obtain a loan by forging Melvin’s signature 11 times on loan documents. His wife, Carolyn, and sister, Carolyn Moore, were also in the real estate office when he posed as Melvin. His mother asked him to do this to help her friend avoid losing her house. For their trouble, Isabelle gave Phillip and Carolyn each $100. Phillip claimed not to know how much money changed hands in the transaction, although he was impeached by evidence showing he forged the victim’s name on a $25,000 check.

When he later became worried about the fraudulent nature of the transaction, Isabelle told him not to worry because “it was not a problem” and “it was going to help her friend save her house and everybody was fine with the situation.” Phillip testified that defendant came to the car dealership where he worked to inquire about purchasing a car for her son, Girard Jacquet. When a credit check revealed neither defendant nor Girard would be able to finance a car, defendant asked him whether he knew anyone she could hire to kill her stepson, Tommy Thompson, suggesting she would benefit financially should Tommy die.

Phillip told her he was unaware of anyone who would do such a thing, but later discussed the conversation with his wife, Carolyn. Carolyn later mentioned the murder-for-hire issue to her housemate, Christine Kuretich. A week later, defendant again asked Phillip about killing her stepson for “a couple of grand,” but he repeated that he did not know anyone who could help her.

Phillip denied Kuretich’s account that the Sanderses discussed killing defendant’s husband, testifying, “Those conversations did not take place.” Records showed that in the six weeks prior to the murder, defendant and Phillip were in constant telephone contact. Records showed numerous calls between Phillip’s home and Kayser Service, and between Barish Chrysler-Plymouth, where Phillip worked, and defendant’s home. Phillip admitted he spoke to defendant several times in the weeks leading up to the murder, but claimed the conversations involved a possible car purchase for defendant’s son, Girard.

The prosecution showed this to be unlikely, as Girard had purchased a car from a Ford dealership in February 1990. Phillip testified that he had a cash flow problem and asked if defendant could loan him $1,500. She agreed, and Carolyn Sanders received the money on June 11, 1990. On the day of the murder, June 14, Phillip said he made arrangements to have the terms of the loan reduced to writing so as to avoid any disagreements. This was to be done that evening at Kayser Service.

As he had consumed between one and two 20-ounce cans of malt liquor and taken a pain killer and a muscle relaxant, he had his stepson, Robert Jones, drive him in the white Plymouth Acclaim to Santa Monica to meet defendant. Phillip said he walked in the front gate and when he saw defendant inside, she waved him in but motioned to him to be quiet. When he joined her inside the repair shop, the bathroom door opened and, without warning, defendant produced a gun and fired two shots at the person inside the bathroom. The victim, a man with whom Phillip was unfamiliar, fell to the floor.

According to Phillip, defendant (holding the barrel of the pistol) handed him the weapon, told him to dispose of it, and that he would be “taken care of.” He took that to mean defendant was promising to pay him money. Detective Wachter later testified on rebuttal that the barrel of the weapon would have been uncomfortably hot to the touch after firing. Wachter also offered the opinion that Phillip would not have been able to see inside the bathroom if the door had been opened as he described it. Phillip testified he walked back to the car and threw the gun into some ivy.

When he told Robert Jones what he had observed and that he had discarded the gun, Jones told him to retrieve the gun, so he did. Once back home, Phillip gave the gun to Jones and told him to destroy it. Police arrested Phillip later that night. While in pretrial detention, Phillip received several unsigned letters which, from their content, he assumed were from defendant, who was also in jail awaiting trial. The letters urged him not to trust his lawyers and to change his account of the murder, vaguely suggesting it would be financially advantageous for him to do so.

The letters suggested exactly what he should tell police. Phillip turned these letters over to his attorneys, and at their suggestion wrote defendant back, hoping she would continue the correspondence. Jennifer Lee testified she was a jail inmate with defendant. Lee said she had acceded to defendant’s request to copy, in her own handwriting, letters that defendant had drafted. (Defendant’s challenge to the admission of these letters is discussed, post,

part I.B.3.) B. Discussion 1. Wainwright v. Witt During the jury selection proceedings known as “death qualification” (People v. Mills (2010) 48 Cal.4th 158, 170-171 [106 Cal.Rptr.3d 153, 226 P.3d 276]), the prosecutor challenged seven prospective jurors for cause on the ground their views concerning capital punishment rendered them unfit to serve on the jury. Defendant contends the prospective jurors were not excludable for cause under the standard set forth by the United States Supreme Court in Wainwright v.

Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844] (Witt), and that by excusing the seven prospective jurors, the trial court violated her state and federal constitutional rights to due process of law, an impartial jury, and a fair capital sentencing hearing. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16 & 17.) We conclude the trial court did not err. The law is settled.

As the high court has explained, “the systematic removal of those in the venire opposed to the death penalty [can lead] to a jury ‘uncommonly willing to condemn a man to die,’ [citation], and thus ‘woefully short of that impartiality to which the petitioner was entitled under the Sixth and Fourteenth Amendments. ’ ” (Uttecht v. Brown (2007) 551 U.S. 1, 6 [167 L.Ed.2d 1014, 127 S.Ct. 2218] (Uttecht), quoting Witherspoon v.

Illinois (1968) 391 U.S. 510, 518, 521 [20 L.Ed.2d 776, 88 S.Ct. 1770]; see also Uttecht, supra, at p. 9 [“a criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause”].) The high court set forth the applicable test in Witt, supra, 469 U.S. 412, and we have explained and applied the Witt test in many subsequent decisions.

Thus: ‘“To 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 [or her] 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 [31 Cal.Rptr.3d 485, 115 P.3d 1145], citing Witt, supra, at p. 424, and Adams v.

Texas (1980) 448 U.S. 38, 45 [65 L.Ed.2d 581, 100 S.Ct. 2521].) “ ‘ “[A] prospective juror who would invariably vote either for or against the death penalty because of one or more circumstances likely to be present in the case being tried, without regard to the strength of aggravating and mitigating circumstances, is . . . subject to challenge for cause (People v.

Jones (2013) 57 Cal.4th 899, 915 [161 Cal.Rptr.3d 295, 306 P.3d 1136].) Even if the prospective juror would not invariably vote one way or another, “[a] prospective juror can properly be excused for cause if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate.” (People v.

McWhorter (2009) 47 Cal.4th 318, 340 [97 Cal.Rptr.3d 412, 212 P.3d 692].) The degree of a prospective juror’s impairment—that is, his or her inability or unwillingness to perform the duties of a juror and follow the law—must be substantial. ‘“[A] juror who is substantially impaired in his or her ability to impose the death penalty under the state-law framework can be excused for cause; but if the juror is not substantially impaired, removal for cause is impermissible.” (Uttecht, supra, 551 U.S. at p. 9.) Both this court and the United States Supreme Court have cautioned that mere personal opposition to capital punishment is an insufficient basis on which to justify dismissal of a juror during jury selection. “ ‘[N]ot 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.’ ” (People v.

Jones, supra, 57 Cal.4th at p. 915, quoting Lockhart v.

McCree (1986) 476 U.S. 162, 176 [90 L.Ed.2d 137, 106 S.Ct. 1758].) ‘“Because ‘[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], ... ‘a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty ....’” (Uttecht, supra, 551 U.S. at p. 6.) The critical issue is whether a life-leaning prospective juror—that is, one generally (but not invariably) favoring life in prison instead of the death penalty as an appropriate punishment—can set aside his or her personal views about capital punishment and follow the law as the trial judge instructs. “ ‘A prospective juror personally opposed to the death penalty may nonetheless be capable of following his oath and the law.

A juror whose personal opposition toward the death penalty may predispose him to assign greater than average weight to the mitigating factors presented at the penalty phase may not be excluded, unless that predilection would actually preclude him from engaging in the weighing process and returning a capital verdict.’ ” (People v. Stewart (2004) 33 Cal.4th 425, 446 [15 Cal.Rptr.3d 656, 93 P.3d 271], italics omitted, quoting People v.

Kaurish (1990) 52 Cal.3d 648, 699 [276 Cal.Rptr. 788, 802 P.2d 278].) That prospective jurors are not always clear in articulating their beliefs (or accurately assessing their ability to set aside those beliefs) is a difficulty trial and appellate courts frequently encounter in capital cases.

Accordingly, although we have cautioned that, ‘“[b]efore granting a challenge for cause, the ‘court must have sufficient information regarding the prospective juror’s state of mind to permit a reliable determination as to whether the juror’s views would “ ‘prevent or substantially impair’ ” ’ performance as a capital juror” (People v. Leon (2015) 61 Cal.4th 569, 592 [189 Cal.Rptr.3d 703, 352 P.3d 289], quoting People v.

Stewart, supra, 33 Cal.4th at p. 445), we have also recognized that, “ ‘ ‘“[i]n many cases, a prospective juror’s responses to questions on voir dire will be halting, equivocal, or even conflicting. Given the juror’s probable unfamiliarity with the complexity of the law, coupled with the stress and anxiety of being a prospective juror in a capital case, such equivocation should be expected.” ’ ” (People v.

Abilez (2007) 41 Cal.4th 472, 497 [61 Cal.Rptr.3d 526, 161 P.3d 58].) Thus, both this court and the United States Supreme Court have recognized that “ ‘ ‘“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.” ’ ” (People v.

Jones (2012) 54 Cal.4th 1, 41 [140 Cal.Rptr.3d 383, 275 P.3d 496], quoting Uttecht, supra, 551 U.S. at p. 7.) In light of the inherent ambiguities associated with the death qualification of juries, two rules have emerged. First, a prospective juror’s bias against the death penalty, or the juror’s inability to set aside his or her personal views and follow the law, need not be demonstrated with unmistakable clarity. (People v. Whalen (2013) 56 Cal.4th 1, 25 [152 Cal.Rptr.3d 673, 294 P.3d 915]; People v.

Abilez, supra, 41 Cal.4th at pp. 497-498.) Instead, after examining the available evidence, which typically includes the juror’s written responses in a jury questionnaire and answers during voir dire, the trial court need only be left with a definite impression that the prospective juror is unable or unwilling to faithfully and impartially follow the law. (Whalen, supra, at pp. 25-26; Abilez, supra, at pp. 497-498.) Second, in assessing a prospective juror’s true state of mind, the trial court occupies a superior posihon vis-a-vis an appellate court, for the former court is able to consider and evaluate a juror’s demeanor during voir dire. (People v.

Whalen, supra, 56 Cal.4th at p. 26; People v. Jones, supra, 54 Cal.4th at p. 41.) “ ‘ “[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.” ’ [Citations.]” (People v.

Scott (2015) 61 Cal.4th 363, 378 [188 Cal.Rptr.3d 328, 349 P.3d 1028].) Accordingly, the trial court’s ruling regarding the juror’s true state of mind is entitled to deference on appeal if supported by substantial evidence. (People v. Leon, supra, 61 Cal.4th at p. 593; People v. Duff (2014) 58 Cal.4th 527, 541 [167 Cal.Rptr.3d 615, 317 P.3d 1148].) As the high court has explained, ‘“[t]he judgment as to ‘whether a venireman is biased ... is based upon determinations of demeanor and credibility that are peculiarly within a trial judge’s province.

Such determinations [are] entitled to deference ....’” (Uttecht, supra, 551 U.S. at p. 7.) With these precepts in mind, we examine the juror questionnaires and voir dire of seven prospechve jurors that defendant claims were improperly excused because of their views on capital punishment. a. Peter B. According to his written answers in the jury questionnaire, Prospective Juror Peter B. was 65 years old and had spent much of his life serving in the military.

He explained he was generally in favor of the death penalty, having ‘“actively supported” the 1978 initiahve to reinstate the death penalty and opposed the confirmation of Chief Justice Rose Bird based on his assessment of her views on capital punishment.

Asked what purpose was served by capital punishment, Peter B. answered: ‘“It removes from society a very bad person who is a danger to ah.” But asked whether a person who intentionally kills should either always, or never, receive the death penalty, he indicated that he “disagreed somewhat” with both propositions, noting that it “depends.” His feelings about the death penalty were not so strong that he would vote one way or the other in every case.

He elaborated on his views during voir dire, telling the trial court “there are certain cases where a crime is so vicious that I believe [the death penalty] would fit the crime.” He would not vote against a conviction or a special circumstance allegation in order to avoid facing the penalty question and, asked to place himself on a spectrum of persons who would either always or never impose the death penalty, he located himself in the center, a five on a scale of 10.

He would have no problem voting for death in a case involving a vicious, multiple killing, but he did not know whether he would vote for the death penalty for a murder with a single victim. When the trial court asked whether he could vote for the death penalty for an intentional murder for financial gain, Peter B. initially replied he would “favor life imprisonment,” but then amended that view, saying he would “always” vote for life imprisonment in that situation.

In follow-up questioning, he explained that sentencing someone to death would be “awfully difficult,” but that “I wouldn’t say never; I wouldn’t use the word never. The potential is there.” In response to the prosecutor’s questioning, the juror further stated he had “some really strong feelings against killing people” due to his training and experiences in the military and in the Vietnam War. He continued: “I’ve seen slaughters in Vietnam. I never killed anybody. I never came close to being killed, but the danger was always there. [¶] You see all these pictures, and training is brutal in the Armed Forces.

The things they show you, the things you go through, the public doesn’t see. And I come back, and I don’t like that any more. [¶] And I see people that are being sentenced to death, and I sort of sympathize with them. [¶] I understand some of them deserve it, and I said that they got what they should have, but overall the thought of people being put to death sometimes doesn’t go well with me.

It would have to be [a] very vicious crime for me to [vote for the death penalty].” He would vote for the death penalty for mass killings, like if “somebody . . . went into a dormitory, and killed seven nurses,” “but I don’t know if I would put a person to death for killing one on one, you know, in a one-on-one situation.” Asked by the prosecutor to place himself on a scale of one to 100 for one-on-one murders, with one representing someone who would never vote for the death penalty and 100 as someone who would always do so, he said he was in the “bottom 10.” The prosecutor challenged Peter B. for cause and the trial court sustained the challenge, saying: “With the exception of where he put himself at a 5, and I don’t reconcile that with the rest of his answers, other than he seems to be a man who wants to answer his own questions, rather than questions that are put to him, I find he is substantially impaired. [¶] Again, the scale I don’t think is a total litmus test, but he sure puts himself in the 1 to 10 down at the—I think every one of his answers, but for the 5—that’s a conflict with his scale of one to 100. [¶] I find he’s substantially impaired.” Defendant first contends Prospective Juror Peter B.’s views on the death penalty were less objectionable than two jurors the United States Supreme Court found were improperly dismissed in Adams v.

Texas, supra, 448 U.S. 38. In Adams, the high court articulated for the first time what has become known as the Witt standard, i.e., ‘“a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” (Adams, supra, at p. 45.) Citing two of the jurors in Adams—Juror Mahon and Juror Coyle—defendant gleans their voir dire responses from the appendix in the high court’s Adams opinion and compares them to the voir dire for Peter B.

But using Adams as a reference point for evaluating the excusal of Peter B. is inapt because Adams concerned the particular statutory scheme in Texas, whereby “ ‘[pjrospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.’ ” (Adams v. Texas, supra, 448 U.S. at p. 42, italics added, quoting Tex. Pen.

Code Ann., § 12.31, subd. (b).) As the Adams court explained, the statutory scheme is inconsistent with the standard demanded by the federal Constitution because “neither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obey their oaths, regardless of their feelings about the death penalty.” (Adams, supra, at p. 50.) Those concerns are not pertinent to the excusal of Peter B. Moreover, the individual responses by the two jurors in Adams played little or no

part in the Adams court’s decision to reverse the conviction in that case. The high court’s reasoning was more global, explaining that the Texas statute permitted the excusal of jurors who would otherwise be qualified under federal constitutional principles, and thus “the Constitution disentitles the State to execute a sentence of death imposed by a jury from which such prospective jurors have been excluded.” (Adams, supra, at p. 51.) Accordingly, Adams does not require reversal here.

Defendant further contends the trial court’s suggestion that Peter B.’s responses were inconsistent—hrst ranking himself as a hve on a scale of 10, and then in the “bottom 10” on a scale of 100—is inaccurate. We agree the trial court may have been mistaken on this particular point, for the two metrics concerned different questions. Peter B. described himself as a hve on a scale of 10 on the death penalty generally, but in the “bottom 10” out of 100 of those willing to impose the death penalty in the particular circumstance of a criminal having killed a single victim for hnancial gain.

But the juror equivocated when he hrst said he would always vote for life in a case of a single murder victim killed for hnancial gain but then said he would not use the word “never” and the “potential is there” for imposing the death penalty in that circumstance. Defendant argues the juror merely experienced “a moment of confusion,” but that is not the only possible explanation, and the trial court was entitled to resolve the ambiguity concerning the juror’s true state of mind in favor of dismissal.

More importantly, in resolving the larger question—whether the juror’s views would substantially impair his ability to be fair and impartial—the court’s ruling is substantially supported by the record. Noting that the scales were not the “total litmus test” and considering the totality of the circumstances, it appeared to the court the juror was so unlikely to vote for death in a single killing committed for hnancial gain—in the “bottom 10” out of 100—that he was substantially impaired within the meaning of Witt, supra, 469 U.S. 412.

As noted, ante, a prospective juror’s inability to fairly weigh the facts and apply the law need not be demonstrated with unmistakable clarity. (People v. Whalen, supra, 56 Cal.4th at pp. 25-26.) We conclude substantial evidence supports the trial court’s decision that Prospective Juror Peter B.’s views permitted his dismissal from the venire. b. Nancy N. Prospective Juror Nancy N. was 54 years old, African-American, a librarian, and a Republican.

Her questionnaire answers revealed a person who was generally “opposed to capital punishment” because the likelihood of “human error seems to indicate that the jurors may convict an innocent person,” and that she had voted against the 1978 initiative measure to reinstate the death penalty.

Where the questionnaire asked what types of crimes warranted the death penalty, she answered: “None.” Asked what purpose the death penalty served, she answered: “Very little—persons who would kill aren’t concerned with society’s approval.” She indicated she would “always” vote against sentencing an offender to death, but disagreed only “somewhat” with the statement that those who kill intentionally should always receive the death penalty. Nancy N. attempted to clarify her views during voir dire.

She admittedly disfavored capital punishment in general and, asked whether there could “ever” be a case in which she would vote for the death penalty, answered: “No, I don’t think so.” Asked about the notorious serial killer and cannibal Jeffrey Dahmer, she said the death penalty “could be appropriate” and that, in an appropriate case, she could personally vote to impose the death penalty, but estimated only one out of 100 cases would fall into that category.

Nancy N. would not decline to vote guilty just to avoid a penalty phase, and she affirmed that although sitting on the jury would make her “extremely uncomfortable,” she would consider all the aggravating and mitigating factors before making a penalty decision.

The prosecutor challenged Nancy N. for cause and the trial court granted the motion, finding Nancy N. “substantially impaired,” adding: “I don’t think she even comes close.” Defendant contends the record shows Nancy N. “was a life-leaning juror, but that she was willing to consider and weigh those factors that might support the death penalty.” Defendant also emphasizes the juror averred that, “in an appropriate case, she could vote for the death penalty.” But although the juror indeed made such assertions, she also said there were no crimes for which she would vote for death, and would always vote against the death penalty.

Given these contradictory answers, it was for the trial court to discern the juror’s true state of mind. Because she gave some answers suggesting she would not fairly consider death as a penalty in an appropriate case, and would leave open the possibility of capital punishment only in a rare and extreme case, we conclude substantial evidence supports the trial court’s assessment of the juror’s true state of mind, and we defer to its decision to excuse the juror. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 316 [128 Cal.Rptr.3d 417, 256 P.3d 543].) c. Maria G.

Prospective Juror Maria G. was a 36-year-old secretary who wrote in her questionnaire that her views about the death penalty were “50/50” because imposition of it “would depend on the circumstances,” and that the penalty would be appropriate in extreme cases like for serial killer Jeffrey Dahmer.

She “disagreed somewhat” that anyone who kills intentionally, or kills more than one victim, should always (or never) get the death penalty, and her feelings about the death penalty were not so strong that she would always vote for, or against, a guilty verdict, a special circumstance allegation, or to impose the penalty itself.

Although she was a Catholic, she was “not in total agreement with the church.” (Original underscoring.) During voir dire, she stated that, as a general matter, she believed the death penalty had a place in society and she thought she could impose the death penalty in an appropriate case, but when asked about a murder for financial gain, she said she “would favor life without possibility of parole” and that it would be “a difficult decision on my part” to vote for the death penalty.

She admitted she might, depending on the facts, “possibly” vote for death under those circumstances, but rated herself only a 2.5 on a 10-point scale of those who, faced with a financial gain murder, would impose the death penalty. Under the prosecutor’s questioning, Maria G. said she rated herself low on the 10-point scale because there were extreme cases such as that of Jeffrey Dahmer for which she would vote for death. In addition she said she believed cases involving the rape or murder of a child warranted the ultimate penalty.

Asked by the prosecutor whether there were other kinds of murders in which she could see herself voting for the death penalty, she replied: “No.” Asked directly what kind of evidence would convince her to vote for death in a case involving financial gain, she said the possibility she would vote for death in a financial gain situation was a “slim” one, and that “it’s unlikely” she would vote for death in that situation.

The trial court then sustained the prosecution’s challenge for cause, explaining that “the words ‘slim’ and ‘it’s unlikely’ ” showed her to be substantially impaired under Will, supra, 469 U.S. 412.

Defendant argues Prospective Juror Maria G. was unequivocal about her ability to impose the death penalty, that she stated “unambiguously that she would be able to vote for death in certain circumstances, and specified that she could consider the death penalty in rape and murder situations.” But when questioned about her willingness to consider the death penalty in situations other than those involving a serial killer or the rape and murder of a child, she offered no other situations in which she would consider death an appropriate penalty.

She then equivocated slightly, saying there was a “slim,” but “unlikely,” possibility she would vote for death where a murder for financial gain was involved. This evidence suggests that, although the juror’s views would not wholly prevent her from fulfilling her duties as a juror, they would “substantially impair” her from doing so.

The trial court apparently found that she was willing to fairly consider the death penalty only in two narrow circumstances (a serial killer or one who rapes and kills a child) and was not willing to fairly and impartially consider the appropriateness of the death penalty in other types of murders, including the type (financial gain killing) in this case.

Although defendant argues this juror did not completely close the door to capital punishment for a person who killed for financial gain, emphasizing she said there was a “slim” although “unlikely” possibility, the Witt standard does not require a prospective juror’s inability or unwillingness to fulfill her duties as a juror be proved to an unreasonably high degree.

Instead, the evidence must simply show the juror’s views “ ‘substantially impair the performance of [her] duties as a juror.’ ” (Witt, supra, 469 U.S. at p. 424, italics added.) On this record, substantial evidence supports the trial court’s assessment of Maria G.’s state of mind, and we defer to its decision to excuse her. (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 316.) d. Brenda M. Prospective Juror Brenda M. was a 30-year-old administrative analyst working in the psychology department at the University of California, Los Angeles.

She felt the death penalty “is right in a few cases—a very few.” For emphasis, she underlined the phrase “a very few” four times.

Her views stemmed from the fact that “[i]f a verdict is wrong there is no way of righting the wrong.” She “disagreed somewhat” with the statement that “[ajnyone who intentionally kills another person should always get the death penalty,” explaining: “There are circumstances that are not always known.” She “agreed somewhat” with the statement that “[ajnyone who intentionally kills more than one person should always get the death penalty,” explaining: “There could be mental problems that need to be reviewed.” Brenda M. reiterated and expanded on her views during voir dire.

She repeated that she felt there were “very few cases that I would go for [the] death penalty,” and when asked whether there were any circumstances in which she would vote for death, she replied: “I can’t say for sure right now, but I would think that I would have a very hard time voting for it.” But when asked by codefendant Sanders’s attorney whether she would set aside her personal opinions and follow the law if instructed to do so, she replied in the affirmative, later adding she had no doubt that she could do so.

She affirmed she could follow the court’s instruction to consider the two penalties (life in prison without parole or death) should defendant be convicted. Questioned by the prosecutor, the prospective juror affirmed that the irreversibility of the death penalty was a concern to her, but she would have less concern if the accused admitted his guilt.

If a defendant contested his guilt, however, she agreed she would not want to participate in the life-or-death decision. “I’m just saying that I—just in the small amount that I know about the case, I don’t think I would go for the death penalty, even not knowing anything—any evidence or even knowing what they did.” “I’m hying to think of a case that I would say the death penalty is appropriate.

I can’t offhand think of any.” (Italics added.) The trial court then attempted to clarify the prospective juror’s feelings, asking her whether, where a defendant contests her guilt, but the jury finds her guilty beyond a reasonable doubt, the juror would nonetheless refuse to “impose the death penalty because [the accused] never admitted to full complicity in the crime?” She answered in the negative, explaining that a person’s admission of guilt would simply make the life-or-death decision “a little bit easier because of the point that there’s no slight bit of percentage that they could be innocent.” Asked about different criminal scenarios, Brenda M. replied: “I honestly don’t want to make a decision on someone’s life or death, and I’m—it’s hard to say, but almost in any case, I would probably go for life without possibility of parole just because I can’t do that.

Okay?” The trial court then asked her: “Do you feel you could personally impose the death penalty yourself in the appropriate case?” She answered: “/ don’t think so. No.” (Italics added.) She later elaborated: “You need to deliberate with the jury, and if somebody could give me a good enough reason why I would have to change my own personal feelings on the case, maybe, maybe I could go for the death penalty. [¶] But like I said, I very much doubt it.” (Italics added.) The prosecutor then challenged Brenda M. for cause, arguing that she was impaired under Witt, supra, 469 U.S. 412.

Defense counsel countered by highlighting the many times the prospective juror said she could impose the death penalty and set aside her personal feelings of reluctance. The trial court excused Brenda M., explaining: “My feeling is if there ever was a situation that is [Witt\, this is it. The woman is tortured. Both sides attempting to drag her from one side of the line to the other. [¶] I feel there’s substantial impairment.” The court continued: “I really do feel that she is close to the line.

I don’t even think she got dragged over the line.” As the trial court observed, whether Brenda M.’s written and oral responses demonstrated that her views about capital punishment would have “ ‘prevent[ed] or substantially impaired] the performance of [her] duties as a juror’ ” (Witt, supra, 469 U.S. at p. 424) was a close call. Although she acknowledged that the life-or-death decision would be a difficult one for her, she was open about her views and at times seemed willing to fairly consider both sides.

On the other hand, she admitted she could conceive of very few situations in which she would find the death penalty an appropriate punishment (signaling that she might be unable to fairly consider both sides of the question), and eventually stated she did not think she could vote for the death penalty (“I don’t think so. No”). Under the circumstances, given that the trial court was able to observe her demeanor (noting, ‘“[t]he woman is tortured”), “[t]o the extent [the juror] gave conflicting answers, the trial court reasonably resolved those conflicts in determining her true state of mind.

Because the trial court’s determination is fairly supported by the record, we defer to it.” (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 316.) e. Kusum P. Prospective Juror Kusum P. was a 34-year-old Indian-American who worked as a maintenance administrator for Pacific Bell. Regarding her views on the death penalty, she stated: ‘T don’t believe that [the] death penalty is good.

I won’t go for that,” and would ‘“instead give some punishment that will change other people.” She held that opinion, “[b]ecause if one [person] got [the] death penalty, it’s not going to change other people[] committing crimes,” and “[i]t’s not going to teach [a] lesson.” In response to another question, she opined that the death penalty served no purpose. When asked whether someone who intentionally kills more than one person should always, or never, receive the death penalty, she answered paradoxically that she “[a]gree[d] somewhat” to both questions.

During follow-up voir dire, Kusum P. stated she felt the death penalty had no place in our society, that she could not personally vote for it ‘“in any kind of case,” and she could not personally ‘“send somebody to the gas chamber and execute them.” Pressed on the point, she admitted she did not know whether she could vote for death in the “most heinous, brutal type of killing,” and that “maybe” she could in a case in which “five small children were tortured to death.” She would not vote not guilty just to avoid a penalty trial, or vote for a special circumstance just to get to a penalty trial.

She would not always vote for death or for life without regard for the facts of the case. She reiterated the views expressed in her questionnaire, saying the death penalty does not deter others from committing crimes. Asked by the prosecutor if she could personally send someone to their death, she first said “no,” then said: “It depends.

When I go to after all the facts [s/c], like what happened and everything, then I might change my mind, but it’s like it depends on what happened and what were the circumstance[s].” But then asked whether, “if the circumstances were really terrible, could you actually look at this individual, and say it’s my decision that you should die?” she answered, “No.” The prosecutor challenged Kusum P. for cause and the trial court granted it, explaining: “The court finds based on the answers to the questionnaire, answers in court, she’s substantially impaired.” As the record demonstrates, Prospective Juror Kusum P. had generally strong feelings against the death penalty.

Although she was never asked expressly whether she could set them aside and follow the law, her answers provided substantial evidence that she could not fairly consider both sides. (People v.

Merriment (2014) 60 Cal.4th 1, 53 [177 Cal.Rptr.3d 1, 332 P.3d 1187].) That she gave contradictory answers at times illustrates the high court’s observation that “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.

Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.” (Witt, supra, 469 U.S. at pp. 424-426, fn. omitted.) As with the other challenged jurors, the trial court fairly determined Kusum P.’s true state of mind and, as it is supported by substantial evidence, we defer to that decision. (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 316.) f. Betty F.

Prospective Juror Betty F. was a 54-year-old African-American who worked for a federal defense contractor. She was generally in favor of the death penalty, writing: “I feel [the death penalty] is necessary to deter the increase in [the] unnecessary killing of . . . innocent people.” Asked in what type of crime the death penalty should be imposed, she suggested the death penalty was appropriate for crimes that victimized the mentally ill and children.

She “strongly disagreed” with the propositions that an offender should “always,” or “never,” receive a sentence of either life or death, opining that the circumstances of individual cases must be reviewed. Betty F.’s voir dire began with her largely confirming her written responses. Although she initially expressed reluctance when asked whether she could “personally vote to have somebody executed,” she affirmed she could vote for death in some unspecified circumstances.

She would not change her vote to avoid a penalty phase, nor would she do so in order to get to a penalty phase so she could sentence someone to death. She initially stated that in a case of murder for financial gain, she would not always vote for either life or death, but then admitted she “would prefer life imprisonment” to the death penalty in such cases.

Asked to elaborate, Betty F. said she would not prefer life imprisonment “in every situation” or “no matter what the facts [were],” but on a scale of one to 10, with one being someone who would always impose a life sentence, the juror put herself at two on the scale. Questioned by defense counsel, Betty F. agreed she thought the death penalty was appropriate for “horrible” murders such as for those who tortured and killed children.

Questioned by the prosecutor, the juror explained her initial answer to the court, suggesting she would be reluctant to vote for the death penalty: “I wasn’t really prepared to—I didn’t think I was going to be able to explain why I felt I could go for the death penalty, but with him I did explain whether or not kind of—what had to be a horrible [crime], and I could in those instances, that I could separate from some of them.” But she placed herself as a two on the scale because she ‘“would have a hard time voting for death if all of the circumstances led me to believe it wasn’t horrible, horrible.” She agreed with the prosecutor that, for a murder that was not ‘“horrible” or ‘“gross,” such as involving children, sexual brutalization or dismemberment, it would be extremely unlikely she would vote for death.

At this point the trial court intervened to clarify the juror’s views. ‘“The Court: Let me—Here you are not dealing with a child and dismemberment, and you are not dealing with a situation of torture, you are not dealing with a number of murders. One murder that’s deliberately done, intentionally done for the purpose of getting money. ‘“Can you see yourself imposing the death penalty in that type of case? ‘“Prospective Juror [Betty F.]: No. ‘“The Court: No matter what the facts were?

It’s not as gruesome as what you were talking about. “ Would you always vote for life in prison ? ‘“Prospective Juror [Betty F.]: Yes.” (Italics added.) Thereafter the trial court excused her for cause, explaining: ‘“I find she’s substantially impaired,” and ‘“I think she’s honest. I think this is the difficulty we have with a lot of these people.

They just don’t comprehend the subject.” Although initial indications suggested Betty F. could fulfill the duties of a juror in a capital case, her later elaboration of her views made clear she would never vote for the death penalty in a case of murder for financial gain. It was for the trial court to resolve these ambiguities regarding her true state of mind, and because substantial evidence supports the trial court’s determination that she was impaired within the meaning of Witt (Witt, supra, 469 U.S. at p. 424), we defer to the court’s decision to sustain the prosecution’s challenge for cause. (People v.

Gonzales and Soliz, supra, 52 Cal.4th at p. 316.) g. Yolanda N. Prospective Juror Yolanda N. was a 54-year-old Latina who worked for the Los Angeles County Sheriff’s Department in an unspecified capacity. She was generally reticent about the prospect of putting people to death for their crimes, writing: “Although rapistfs] and child molesters ... are the worst crimes, still I don’t know if all deserve the death penalty.” Asked the purpose of the death penalty, she wrote that it would serve as an example to other criminals.

Asked what type of crime deserved the death penalty, she offered: “Child molesters and rapists.” She “agreed somewhat” with the proposition that someone who killed intentionally, or killed more than one person, should “always” receive the death penalty, and “disagreed somewhat” that such persons should “never” be sentenced to death. She affirmed that she would not vote one way or the other “regardless of the evidence presented” in order to reach a certain result.

During voir dire, Prospective Juror Yolanda N. stated that if she thought defendant was guilty, she would not vote to acquit in order to avoid a penalty phase trial, nor would she vote to convict (or sustain a special circumstance allegation) despite entertaining a reasonable doubt simply to ensure that defendant would face a penalty trial.

She was then asked whether, “without knowing anything about how or why [a murder] was carried out, without knowing anything about the defendant, would you always vote to impose the death penalty [or, alternatively, fife in prison] just because of the type of murder it was?” She replied in the negative, agreeing with the court that she would want to know more about the case before making such a decision.

But when later asked by the prosecutor whether she would consider fife and death “on an equal basis,” she replied that she thought she would lean heavily in favor of fife in prison, explaining that, being a religious person, she believed “[a] person should be given a chance to repent.” Pressed on the point by the prosecutor, the juror said she did not believe in the Old Testament teaching calling for “an eye for an eye,” saying that giving someone the death penalty would be “very much” against her personal beliefs.

The following colloquy then occurred: “[The Prosecutor]: So if we asked you then whether or not personally you could ever vote for the death penalty, could you ever personally vote for the death penalty? “Prospective Juror [Yolanda N.]: In which case? “[The Prosecutor]: In any case of murder? “Prospective Juror [Yolanda N.]: 99.9 percent, no.” (Italics added.) The trial court then sought to clarify the prospective juror’s views, asking whether, without knowing anything else, if an adult victim was intentionally, and with premeditation, murdered for purposes of financial gain, “do you feel you could ever see yourself voting for the imposition of the death penalty if you felt the facts surrounding the crime or the facts surrounding the defendant would call for it?” She replied: “Very hard that I would vote for death.” The court then asked: “You said that you would 99.9 percent [of the time] never vote for the death penalty,” to which she replied, “Yes.” The trial court thereafter excused Prospective Juror Yolanda N. without much elaboration, saying: “The fact that a juror [such a Yolanda N.] favors in the abstract one [penalty] or the other doesn’t disqualify [her].” The important consideration, the court said, was whether the juror’s views regarding the death penalty would “substantially impair[]” her in performing the duties of a juror, and the court concluded she demonstrated such impairment when she said she would impose life imprisonment instead of death in 99.9 percent of possible cases of murder for financial gain.

As with several other prospective jurors excluded from the jury, although initial indications suggested Yolanda N. could fulfill the duties of a juror in a capital case, more in-depth questioning revealed she would almost never vote for the death penalty in a case of murder for financial gain. It was for the trial court to resolve these ambiguities regarding her true state of mind.

Because substantial evidence—in the form of the juror’s own statements—supported the trial court’s finding that Yolanda N. was substantially impaired within the meaning of Will, supra, 469 U.S. at page 424, we defer to the court’s assessment (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 316). In sum, although defendant challenges the excusal of seven prospective jurors due to their views on the death penalty, we find the trial court’s determinations that they were all substantially impaired within the meaning of Witt, supra, 469 U.S. at page 424, adequately supported by the record.

We thus reject the claims. 2. Denial of Severance a. Introduction Defendant, along with Phillip Sanders, Carolyn Sanders, and Robert Jones, were jointly charged by felony complaint on August 30, 1990, with conspiracy to commit murder, and murder with the special circumstance that it was committed for financial gain. (§§ 182, 187, 190.2, subd. (a)(1).) When the information was filed several months later on February 19, 1991, all four codefendants were still jointly charged with all counts.

Thereafter Phillip Sanders moved to sever his trial from that of his wife, Carolyn, and Jones moved to sever his trial from the others. The motions were partially granted, leaving defendant and Phillip Sanders in one joint trial and Carolyn Sanders and Robert Jones paired in a second joint trial. Defendant and Phillip’s trial proceeded first. Thereafter defendant moved multiple times—before, during, and after trial—to sever her trial from that of her codefendant, Phillip Sanders. Many of her severance motions were accompanied by motions for a mistrial or for dual juries.

Her motions were all denied, first by Judge Jacqueline Weisberg, and then by Judge George Trammell when he took over the case. b. Applicable Law Authorization to hold a joint trial of two or more defendants is provided by

section 1098, which states in pertinent part that “[w]hen two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials.” (Italics added.) This law thus establishes a legislative preference for joint trials, subject to a trial court’s broad discretion to order severance. In People v.

Hardy (1992) 2 Cal.4th 86 [5 Cal.Rptr.2d 796, 825 P.2d 781], we described the guiding principles a trial court should follow when exercising such discretion: “ ‘The court should separate the trial of codefendants “in the face of an incriminating confession, prejudicial association with codefend-ants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.” ’ ” (Id. at p. 167.) We review a trial court’s denial of severance for abuse of discretion (People v.

Cleveland (2004) 32 Cal.4th 704, 726 [11 Cal.Rptr.3d 236, 86 P.3d 302]; People v. Alvarez (1996) 14 Cal.4th 155, 189 [58 Cal.Rptr.2d 385, 926 P.2d 365]), based on “the facts known to the court at the time of the ruling” (People v. Box (2000) 23 Cal.4th 1153, 1195 [99 Cal.Rptr.2d 69, 5 P.3d 130]).

Even were a reviewing court to find a trial court abused its discretion in failing to grant a defendant’s motion to sever, the defendant would not be entitled to relief on appeal unless she could also demonstrate, to a reasonable probability, that she “would have received a more favorable result in a separate trial.” (People v.

Coffman and Marlow (2004) 34 Cal.4th 1, 41 [17 Cal.Rptr.3d 710, 96 P.3d 30].) Conversely, even if a trial court acted within its discretion in denying severance, “ ‘the reviewing court may nevertheless reverse a conviction where, because of the consolidation, a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law.’ ” (People v. Cleveland, supra, 32 Cal.4th at p. 726.) c. The First Motion To Sever (Apr. 3, 1992) Following the successful severance motions of Carolyn Sanders and Robert Jones, defendant faced a joint trial with her codefendant, Phillip Sanders.

On April 3, 1992, defendant made her first motion to sever her trial from that of Phillip Sanders, raising three arguments in support:

(1) Phillip’s confession to a jail visitor, Juanita Williams, would not be admissible against defendant were she and Phillip tried separately; (2) defendant would be prejudiced in a joint trial with Phillip because the evidence of Phillip’s guilt was much stronger than the evidence against her; and (3) she anticipated that her defense and Phillip’s defense would be mutually antagonistic.

In court to argue the motion, the parties engaged in a protracted discussion concerning whether Juanita Williams’s statement could be effectively redacted to eliminate any specific mention of defendant in order to preserve defendant’s confrontation rights. (See People v. Aranda (1965) 63 Cal.2d 518 [47 Cal.Rptr. 353, 407 P.2d 265]; Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620].) Eventually, the prosecution asserted it would rather forgo using Williams’s statement than hold separate trials.

In light of that assertion, the trial court suggested the question of redaction might be moot and so turned to the question of inconsistent defenses. After defendant’s attorneys made an offer of proof in chambers to describe their intended defense, the court announced: “I’m not convinced. I heard the offer of proof as to these allegedly inconsistent defenses, and these problems arise always when you have a joint trial.

I don’t see anything here that is any different from what happens in many situations, and nothing that would preclude Catherine Thompson from having a fair trial with the cases joined as it is, and it’s thoroughly within the court’s discretion, and I am exercising my discretion in denying the motion to sever on that basis.” The prosecution eventually decided not to have Williams testify.

Defendant first argues reversal is required because Judge Weisberg “failed to exercise her discretion under a correct view of the law” because she “did not regard the existence of conflicting defenses as a potential reason to sever.” Further, she claims the judge “did not appreciate that the defenses in this case were not merely inconsistent but particularly antagonistic and mutually exclusive.” The record belies this claim. After hearing defendant’s lawyers describe their expected defense strategy in camera, Judge Weisberg found the claimed conflicts with Phillip’s expected defense to be nothing unusual.

The expected defenses were indeed conflicting, but not in any manner in which the jury would necessarily conclude that both defendants were guilty, or—given the copious evidence of a conspiracy—that acceptance of one party’s defense necessarily meant the other was guilty. “Severance is not required simply because one defendant in a joint trial points the finger of blame at another.” (People v.

Homick (2012) 55 Cal.4th 816, 850 [150 Cal.Rptr.3d 1, 289 P.3d 791].) The record thus demonstrates that Judge Weisberg exercised her discretion to deny the motion, and that she was aware that the degree to which the codefendants ’ expected defenses conflicted was a factor to consider.

Nor does the mere existence of conflicting defenses demonstrate Judge Weisberg abused her broad discretion. ‘“Although there was some evidence before the trial court that defendants would present different and possibly conflicting defenses, a joint trial under such conditions is not necessarily unfair. [Citation.] ‘Although several California decisions have stated that the existence of conflicting defenses may compel severance of codefendants ’ trials, none has found an abuse of discretion or reversed a conviction on this basis: [Citation.] If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials ‘would appear to be mandatory in almost every case.’ ” (People v.

Hardy, supra, 2 Cal.4th at p. 168, second italics omitted, quoted with approval in People v.

Coffman and Marlow, supra, 34 Cal.4th at P. 41.) “ ‘Thus, ‘“[antagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other.” [Citation.] ‘“Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.” ’ [Citation.] When, however, there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance.” (People v.

Coffman and Marlow, supra, 34 Cal.4th at P. 41.) Defendant argues the existence of antagonistic defenses between codefend-ants should weigh more heavily in favor of severance than our cases have suggested, citing several lower federal court decisions that she claims require severance whenever jointly tried defendants present antagonistic defenses. (See U.S. v. Tootick (9th Cir. 1991) 952 F.2d 1078, 1081-1082; U.S. v. Romanello (5th Cir. 1984) 726 F.2d 173, 177; U.S. v. Ziperstein (7th Cir. 1979) 601 F.2d 281, 285.) Defendant’s cited authorities all predate the United States Supreme Court’s decision in Zafiro v.

United States (1993) 506 U.S. 534 [122 L.Ed.2d 317, 113 S.Ct. 933], where the high court explained that ‘“[m]utually antagonistic defenses are not prejudicial per se. Moreover, Rule 14 [Fed. Rules Crim.

Proc., 18 U.S.C.] does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court’s sound discretion.” (Id. at pp. 538-539.) Proceeding with a joint trial despite the existence of inconsistent or mutually antagonistic defenses is thus consistent with constitutional guarantees, at least in the absence of some greater showing of prejudice or an unfair trial, as we recently held. (People v.

Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 380 [178 Cal.Rptr.3d 185, 334 P.3d 573] [“the federal Constitution [does not] compel severance when codefendants present conflicting defenses”].) We also reject defendant’s argument that reversal is required because Judge Weisberg failed to appreciate that heightened scrutiny of joinder was required because this was a capital case. We have held severance motions in capital cases should generally receive heightened scrutiny for potential prejudice (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1173 [171 Cal.Rptr.3d 234, 324 P.3d 88]; People v.

Coffman and Marlow, supra, 34 Cal.4th at p. 44), but Judge Weisberg undoubtedly knew this was a capital case, and her assessment that the inconsistencies between the anticipated defenses were routine and commonplace was not an abuse of discretion. Moreover, ample evidence—all of which would have been admissible in a separate trial—shows any error was harmless.

Such evidence includes the web of evidence demonstrating that defendant participated in a conspiracy with Phillip and Carolyn Sanders and Robert Jones to kill the victim for financial gain, including defendant’s many refinancing and insurance frauds, the evidence of many telephone calls between her and Phillip in the days leading up to the murder, her lies about recycling cans the day of the murder and about the allegedly stolen Rolex watch, her lie about having seen a tall unidentified man leave the scene of the crime (when other witnesses identified Phillip Sanders and Robert Jones leaving the scene), her blurted-out statement upon leaving the hospital that she “didn’t mean for it to happen this way,” and her blurted-out statement upon her arrest that she “didn’t know Phil at all.

I only met him once and that was about the sale of a car.” Under the circumstances, defendant fails to show Judge Weisberg abused her discretion in denying defendant’s pretrial motion to sever (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41), or that denial of severance resulted in such gross unfairness as to deprive defendant of a fair trial or due process of law (People v. Cleveland, supra, 32 Cal.4th at p. 726). d.

The First Renewed Motion To Sever (May 11, 1992) Defendant renewed her motion to sever before Judge Weisberg on May 11, 1992, arguing that since the time Judge Weisberg denied the first severance motion, the defense had learned of new evidence in the form of a recorded polygraph examination and interview with Phillip in which he stated he went to the victim’s workplace in hopes of obtaining a loan; there he found the victim and defendant, defendant suddenly produced a gun and killed her husband, and then asked Phillip to dispose of the weapon.

In light of the new evidence, defense counsel argued the case fell within “the paradigm definition of antagonistic and mutually incompatible defenses where each defendant is accusing the other and lessens the prosecution’s burden.” Further, according to counsel, “the problem is that the two defendants find themselves in a position where to acquit one of them the jury must necessarily convict the other.” Judge Weisberg denied the renewed motion, explaining: “[A]s I stated before, it is within the court’s discretion, and I considered the matter of inconsistent defenses, and I am exercising my discretion and denying the motion to sever.” Although defendant does not provide any argument independently challenging the denial of this renewed motion, we perceive no abuse of discretion; the new evidence does not materially change the adversarial nature of the codefendants’ anticipated defenses, and the trial court was already aware that each would attempt to blame the other as the person who pulled the trigger. e.

The Renewed Motion To Sever Before Judge Trammell (June 8, 1992) Defendant renewed her motion to sever once again after the case was transferred to Judge Trammell. Judge Trammell reviewed the previous written motions, which had leaned heavily on the argument that defendant and Phillip Sanders would present antagonistic defenses, and then heard argument on the renewed motion. Defense counsel again argued that severance was required because defendant and Phillip Sanders were expected to present antagonistic defenses.

But when the prosecutor argued the defense could not identify “one piece of evidence . . . that is going to be admitted in a joint trial that would be inadmissible in a separate trial,” defense counse

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