The PEOPLE, Plaintiff and Respondent, v. Daniel Gary LANDRY, Defendant and Appellant., 211 Cal. Rptr. 3d 160

Cantil-Sakauye, C.J. Defendant Daniel Gary Landry was convicted by a jury of first degree murder (Pen. Code,1 § 187, subd. (a) ), two counts of assault by a life prisoner with malice aforethought (§ 4500), and one count of custodial possession of a weapon (§ 4502, subd. (a)).

Additionally, the jury found true allegations that defendant personally used a deadly and dangerous weapon in the commission of the offenses (former § 12022, subd. (b)(1)), and that he had suffered two prior strike convictions for first degree residential burglary (§ 459). (§ 1170.12, subds. (a)(d).) Following a penalty trial, the jury returned a verdict of death. The trial court denied the automatic application to modify the verdict (§ 190.4, subd. (e)), and sentenced defendant to death.

This appeal is automatic. (§ 1239, subd. (b).) For the reasons set forth below, we strike the one-year enhancement imposed on count 3 (assault by a life prisoner) for personal use of a deadly weapon, and otherwise affirm the judgment. I. FACTS A. Guilt Phase 1. Prosecution Case a. Fatal Attack on Daniel Addis (Counts 1 and 2) In August 1997, defendant and the homicide victim, Daniel Addis, were inmates at the California Institution for Men in Chino and housed in the administrative segregation unit (ASU).

That housing unit is reserved for inmates who present safety or management concerns, including inmates awaiting adjudication for violations of prison rules. Defendant, who was serving a sentence of 25 years to life under the "Three Strikes law", was a member of a White supremacist gang called the Nazi Lowriders (NLR), as was his cellmate Gary Green. Defendant and Green were housed on tier 3 of ASU. Addis, who was not a gang member, had been placed in ASU for assaulting a staff member. He had previously been housed on tier 3, but in July, he had asked to be moved to another tier.

He told the guard to whom he made the request that he had stolen tobacco from NLR gang members. Commission of this offense by one who was not a member of the gang would have resulted in retaliation from the gang. Addis was moved off tier 3 and eventually housed in a single cell on tier 1 of ASU. Although Addis was housed on a tier different from defendant and other NLR members, he exercised in the same yard, one of four that were segregated by race and gang affiliation. The procedure for moving inmates from their cells to the exercise yards involved stringent security protocols.

The yard was searched for weapons before any inmate was allowed to enter. In addition, the inmates were subjected to repeated searches before they were allowed into the yard. These included a visual strip search in their cells, passing through a metal detector, a hand search of their person and effects and a final search by a hand-held metal detector before they were admitted to the yard one at a time. As part of the strip search, they were required to squat and cough to determine if they were trying to smuggle contraband in their rectums.

Once allowed into the yard, inmates were required to line up against the fence until all inmates were in the yard. Correctional officers in the guard tower could observe all four exercise yards. On Sunday, August 3, 1997, all of the White inmates, except Addis, had entered their exercise yard. Defendant's cellmate, Gary Green, who was a "shot caller" and leader of the NLR gang, started yelling at the gate guard, Rosamaria Maldonado, to let Addis out into the yard. Inmates were subject to monthly classification reviews to determine, among other matters, whether they were eligible for the yard.

If they were eligible, each decided whether to avail himself of the yard privilege. Addis was eligible to go into the yard and had done so the previous Thursday without incident. Maldonado went to her superior, Sergeant Arioma Sams, and told him the other inmates were demanding that Addis be brought out into the yard. Sams testified that he checked the yard for unusual activity but did not observe any.

Timothy Ginn, another guard on duty that day, testified he told Sams that if Addis went out into the yard he might get "beat up." Sams replied that their hands were tied because Addis had a right to go into the yard if he wanted to. Ginn told Addis "you don't have to go if you don't want to." Addis replied, "Fuck that. I want to go." Laramie McAlmond, another guard, testified that she overheard Ginn's conversation with Addis and confirmed that Addis said he wanted to go out to the yard.

She testified that Addis said, "Everything's squashed," which is prison slang for everything is settled and there are no problems. Addis was released into the yard at 9:30 or 9:45 a.m., about 30 to 45 minutes after defendant and Green had entered the yard. Officer Frank Esqueda, one of the two tower guards on duty, testified that Addis joined the other inmates in exercises, and then walked around and talked to a few inmates. Esqueda observed Green and defendant walking back and forth and talking, but despite the fact that Green had demanded that Addis be brought out, Green initially ignored Addis.

Green acknowledged Addis at 11:15 a.m., when the showers typically were turned on. Green and Addis were standing by the showers, and Green shook his hand and told him, "It's all right, Danny. Go ahead and play cards." Addis then walked to a card table and sat down to play pinochle with other inmates. About 10 or 15 minutes later, Green and defendant walked from the showers to the table, talking back and forth. When they arrived at the table, defendant stood to the left of Addis, and Green stood to the left of defendant.

One or two minutes later, Esqueda saw defendant make a sudden movement with his left hand to Addis's neck. Another inmate, Ricky Rogers, who was playing at the same table, also observed defendant approach and stand behind Addis. Rogers testified that defendant and Addis had a friendly conversation about a third inmate. Rogers saw defendant raise his arm "real fast," and then heard a sound like a punch. Addis stood up from the table and put his hand to his neck. When he pulled his hand away, blood was streaming from his neck. He dropped to his knees and then fell over.

From the tower, Officer Esqueda also saw Addis reach for his neck and saw blood flowing from it. Esqueda ordered the inmates in the yard to get down on the ground. Everyone complied except defendant and Green, who continued running across the yard. Defendant and Green complied only after Esqueda fired a "gas launcher" that shot a wooden baton block into the yard. When defendant went on the ground, a weapon popped out of his left hand and landed in front of him.

At trial, the weapon was described as a stabbing instrument consisting of a sharpened piece of metal covered by a sheath made from cellophane and cardboard and wrapped with string. Addis was removed from the yard bleeding profusely, and died en route to the hospital. An autopsy established the cause of death was massive blood loss caused by the severance of his jugular and subclavian veins. A great deal of force was required to inflict the fatal wound. After Addis was removed from the yard, correctional officers cleared it of the inmates one at a time. The inmates remained prone until they were removed.

Defendant's left hand and the stabbing instrument found near his hand were bloody. Defendant was giggling and laughing as he lay on the ground. Later he was examined and photographed. He had blood on his left hand and boxer shorts, but was uninjured. The stabbing instrument recovered near defendant was consistent with a weapon that would inflict the fatal wound Addis received. Ten days after defendant attacked Addis, he threatened to flood the tier where he was housed unless he was moved.

The officer to whom he made the statement told him he could not be moved because of the ongoing investigation into Addis's killing. Defendant replied, "I killed him so I confess. The investigation is over." Defendant wrote two letters, one dated September 9, 1997, and the other September 22, 1997, to Joseph Lowery, another NLR member imprisoned at Corcoran State Prison. Glen Willett, a prison gang expert testified that defendant's use of certain phrases identified him as an NLR gang member and that other references were to the Addis homicide.

The letters are described more fully below in connection with defendant's challenge to the letters' admission into evidence. (See post , pp. 34-40.) b. Attack on Joseph Matthews (Count 3) On September 18, 1997, Officers Lourenco and Perez were escorting inmate Joseph Matthews from the showers to his cell when defendant called out from his cell, "Joe, want a cigarette." Matthews broke away from the officers and ran toward defendant's cell. Matthews, whose hands were cuffed behind his back, turned his back toward defendant's cell door and put his hands at the porthole opening of the door, reaching for something.

Neither officer saw any object being transferred. A moment later, Matthews stepped away and said, "I'm cut." Matthews's back was bleeding from a deep gash 7 to 8 inches long and three-quarters of an inch wide. Within seconds after Matthews stepped away from the cell door, the officers heard the sound of defendant flushing the toilet. It was impossible to retrieve items flushed down the toilet, but Jeffrey Killian, a medical technician on the floor, testified that Matthews's wound was inflicted with a razor. Fourteen stitches were required to close Matthews's wound.

Three weeks after the attack, Matthews told an investigator that defendant had pulled out a razor blade attached to a toothbrush which he used to attack Matthews, and then flushed the razor down the toilet. c. Custodial Possession of a Weapon (Count 4) On October 15, 1997, officers entered defendant's cell, of which he was the sole occupant, to allow him out of the tier to exercise. When Officer Lopez opened defendant's cell door, a sharp metal object fell to the floor. Defendant smiled and shrugged.

The object was a one-inch long piece of metal, shaped like a dagger and known in prison as a "spearhead." In a subsequent search of the cell, officers also recovered a razor blade that had been removed from the disposable razors given to inmates for shaving. 2. Defense Case The defense conceded defendant's guilt on counts 3 and 4, the attack on Matthews and the possession of a weapon, and focused its efforts on counts 1 and 2, the killing of Addis.

With respect to the attack on Addis, the defense argued that defendant acted out of duress because he himself would have been killed if he had not attacked Addis as ordered by Green and the NLR. As a corollary, he maintained that the prison guards knew Addis was going to be attacked and allowed it to happen in retaliation for Addis's assault on a prison guard, thus foreclosing defendant from obtaining protection from prison authorities.

Defendant sought to establish his defense through the testimony of Officer Rosamaria Maldonado, the guard who had expressed concern about Addis's safety to Sergeant Sams, and two prison experts. Defendant himself did not testify. By the time Rosamaria Maldonado testified, she had left the Department of Corrections after filing a stress claim seeking workers' compensation benefits. In that claim, she cited the Addis killing, among other incidents, as contributing to her stress. With respect to the events of August 3, 1997, she testified that Green had been insistent that Addis come out to the yard.

She thought Addis might have safety issues if he went out to the yard, and she told Addis, "You must be packing for them because they're dying to see you." By this, she meant that Addis must be concealing drugs or weapons. He looked at her and smiled and she let him out into the yard. After releasing Addis into the yard, Maldonado observed that Green merely nodded and did not greet Addis as he usually did, with a hug and a kiss.

When Maldonado walked back into the building, she told Sergeant Sams, "You know, Sarge, they're going to take him out." Sams responded, "Come on, we got a lot of work to do." She and Sams left the area to conduct cell searches. About two hours later, she heard a gas launcher in the exercise yard. She was one of the officers who responded to the yard to help Addis. In addition, after he was carried out of the yard on a stretcher, she rode in the ambulance with him. Addis died as she was performing CPR on him.

At trial, Maldonado denied the existence of any conspiracy between the guards and Green to kill Addis, and denied that her fear for Addis's safety was anything other than a "gut feeling." She had previously been unaware that Addis had been placed in ASU because he had hit a guard. However, according to Dr. David Friedman, from whom she sought counseling, Maldonado told him that they knew "an inmate was to be killed. We all knew it. I told the supervisor that he would be killed if we let him out of his cell." She also told Dr.

Friedman that she had told her sergeant, "They are going to kill him." Confronted with these statements at trial, Maldonado claimed that Dr. Friedman had paraphrased what she told him, and that she did not make the statements he attributed to her. She denied telling him "I tried to stop it," or that "They killed him because they thought he was giving information to us, which he was. He used to talk to [Officer] Kaffenberger a lot." She similarly testified that statements attributed to her by Dr. Donald Feldman, who examined her in connection with her workers' compensation claim, were also paraphrases.

In the statements attributed to her by Dr. Feldman, she allegedly said she had told Sergeant Sams an inmate was likely to be killed if they let him out of his cell, and that Sams had shrugged. The defense also called as a witness James Gleisinger, who assisted Freidman in worker's compensation evaluations. Gleisinger testified that he interviewed Maldonado and set forth in his report Maldonado's verbatim statements to him. Among the statements in his report were: " 'She recalls "the most dramatic thing was about 18 months ago an inmate was to be killed. We all knew it.

I told the supervisor that he would be killed if we let him out of his cell," ' " and " ' "That inmate was let out even though everyone knew he would be killed if he was let out. I tried to stop it. That could open up a big can of worms. I told my sergeant that they're going to kill him. [¶] 'She states that Sergeant Sams "shrugged his shoulders." ' " Two prison experts testified for the defense.

Steven Rigg, a 17-year veteran of the Department of Corrections, from which he had retired in 1998 as an acting captain, reviewed materials relevant to the attack on Addis and testified that the guards had repeatedly mishandled the situation. In Rigg's opinion, Green should have been removed from the yard and disciplined for causing a disturbance by demanding that Addis be brought out.

Rigg also testified that the guards should have known Green's demand that Addis be brought to the yard indicated trouble because Addis was not an NLR member and had been moved to a different tier under circumstances that showed he was in trouble with the NLR. The fact that Addis had stolen tobacco and "rolled off the tier" put him at risk. Rigg testified that once Maldonado informed Sergeant Sams that "they're going to take him out," the tower guard should have been instructed to remove Addis from the yard.

According to Rigg, the fact that Addis was yard eligible should not have prevented Sams from removing him from the yard once he received information that Addis might be assaulted or killed. Rigg further testified that Green's initial failure to greet Addis, followed by his attempt to engage him, showed a "setup." Under those circumstances, the tower guard should have ordered the inmates to the ground and searched for weapons when he saw Green and defendant approach Addis as he was playing cards. Rigg also testified about prison gangs generally.

According to Rigg, if a gang member received an order from a gang leader to carry out an assault, he was expected to do so. If he failed, the inmate would put himself at risk to be assaulted or killed. Further, after carrying out the assault, the gang would expect the inmate not to show any concern for the victim. To do so would be considered a sign of weakness.

Applying these observations to defendant's situation, Rigg opined that, had defendant failed to assault Addis, he would have been "a walking dead man." He could not have obtained assistance from the correctional staff without requesting protective custody, and even in protective custody, inmates have been assaulted and killed. Moreover, Rigg testified, the sequence of events showed that Sergeant Sams "possibly wanted [Addis] assaulted," in that Sams failed to take action to protect Addis.

Furthermore, the light administrative punishment imposed on Green for his involvement in the attack-a 360-day credit loss without a term in ASU-showed, in effect, that the Department of Corrections "did not punish him for being involved in the conspiracy as charged, yet they found him guilty." Anthony L. Casas also testified as a prison expert. Casas had worked for over 22 years in the Department of Corrections, retiring as associate warden at San Quentin. He was particularly involved in dealing with prison gangs. Casas testified that inmates become involved in prison gangs in various ways.

A gang may offer a new inmate protection in return for which the inmate will be expected to do the gang's bidding. If the inmate refuses, the gang will tell him he cannot disrespect the gang after it helped him. While some inmates who are big and strong may be able to avoid gangs, someone like defendant, who is five feet six inches tall, and then weighed 150 pounds, might need the gang's protection. Additionally, an inmate serving a long prison term will do what he can to be protected in prison. Casas testified that with most gangs, the only way out is death.

If a gang orders a member to commit a crime and he fails to do so, "[h]e can easily be killed. As a matter of fact, in most cases where your gangs are disciplined enough, that's precisely what happens.... You follow or you're gone." Once an inmate has carried out an order to commit an assault, he is expected to show pride and brag about the crime. Any show of regret would be seen as a sign of weakness, and the inmate could be thrown out of the gang or killed. Casas testified further that inmates observe staff.

Based on his review of how staff handled Addis, Casas opined that an inmate would have concluded it was useless to rely on staff for safety. Like Rigg, Casas criticized the staff's handling of the situation in this case. He agreed that once Sams had been warned by Maldonado about the danger to Addis, Addis and Green should have been removed from the yard and an investigation should have been conducted. Like Rigg, Casas testified that Addis's yard eligibility would not have prevented Sams from removing him from the yard once Sams learned of the threat to Addis's safety. B. Penalty Phase 1.

Prosecution Case The prosecution's penalty case in aggravation relied on multiple incidents of prior criminal activity by defendant involving "the use or attempted use of force or violence or the express or implied threat to use force or violence." (§ 190.3, factor (b).) To that end, the prosecution presented evidence that, while in prison, defendant had committed multiple stabbings and attempted stabbings, and assaults on staff.

It also presented evidence of numerous instances of assault and of possession of a weapon, all of them independent of those in the current case, including eight occasions on which he possessed a weapon, four instances of stabbing another inmate and one attempted stabbing of another inmate, a battery on an officer, and an assault on a staff member. Additionally, the prosecutor's cross-examination of a defense witness brought out details of defendant's juvenile criminal record, which included two theft-related charges.

The same witness also testified that when defendant was 19 years old, he pleaded guilty to three counts of residential burglary, one count of second degree burglary, and one count of grand theft of an automobile. In the same proceeding, six other theft-related counts were dismissed. Defendant was committed to the California Youth Authority for these offenses. The jury also heard about defendant's plea to one count of escape from the California Youth Authority, after which he was transferred to an adult prison. 2.

Defense Case As described by defendant in his appellate briefing, the defense case in mitigation "chronicled [defendant's] physical, sexual, and mental abuse as a child and the long-term consequences of those experiences, including posttraumatic stress disorder, multiple suicide attempts, schizoid personality disorder and bipolar disorder. [Defendant] also presented evidence that his criminal activity in state prison resulted from the denial of adequate mental health care and treatment by prison staff." Testimony regarding defendant's family history was provided by his two maternal aunts, his maternal grandparents and his father.

Both of defendant's parents were deaf. His mother, Linda, was described as having severe "mental problems" that manifested themselves in the out-of-control behavior she displayed beginning in adolescence. For example, between the ages of 11 and 13, she set "a lot" of fires, including to the garage and to curtains in the living room. She once threatened one of her sisters with a knife. Later, she attacked a pregnant neighbor with a knife while the woman was showering and her husband was mowing the lawn. After that incident, she was removed from her parents' home and lived in a series of foster homes.

Linda married Gary Landry when she was 20 or 21. Their marriage was marked by constant fighting over what Gary perceived as Linda's deficiencies as a wife and a mother. When Gary learned that Linda was having affairs with women, he painted "bad wife" and "bad mother" on the walls of their residence. Linda drew graphic pictures of women having sex with each other on the walls above defendant's crib. Neither parent nurtured or provided the basic necessities to defendant when he was an infant and toddler.

Gary was a hard worker, but when he got home from work, he ignored defendant and instead spent time with his friends in the garage. Linda was a drug user and extremely neglectful mother. When members of her family would visit, they would discover defendant alone in his play pen, hoarse from crying and yelling. No one had responded to his cries. Linda's family installed a light-flickering system to alert her when defendant was crying. The house was filthy and defendant crawled on a floor littered with broken glass and curdled milk.

When he was old enough to walk, defendant would get out of his crib and wander the neighborhood. His grandparents, who lived nearby, once discovered him asleep beneath their car. Another time, he was found scavenging for food in the neighbor's garbage cans. When defendant was four years old, he went to live with his grandparents. A year later, his mother regained custody, but a few months later she returned him to her parents permanently. When defendant first went to live with his grandparents, he did not talk, but grunted and pointed. He had nightmares and hoarded food beneath his bed.

When he returned to his grandparents, they took him to mental health professionals because he seemed inaccessible. He continued to receive psychiatric care, including hospitalization, throughout his childhood and adolescence. Nonetheless, defendant had problems outside the home, starting with being disruptive in kindergarten. He was repeatedly suspended in high school. At 15 years old, he and a friend burglarized the friend's house. When he was 16 or 17 years old, he stole a car, after which he entered the juvenile justice system and never again lived with his grandparents.

He spent the rest of his adolescence at various juvenile camps from which he periodically attempted to escape. During this period, defendant was diagnosed as suffering from atypical depression and attention deficit hyperactivity disorder, for which he was medicated. It also emerged during his interviews with mental health professionals that he had been sexually abused by his father's best friend and by a friend of his mother's. Defendant was described by these mental health professionals as depressed and suicidal. All of these issues were related to the trauma he suffered in his first four years.

Defendant's adult criminal history began when, at 19 years old, he pleaded guilty to three counts of theft-related first degree residential burglary, one count of grand theft auto, and one count of second degree commercial burglary. In lieu of prison, he was sent to the California Youth Authority where he was evaluated by James Cuevas, a casework specialist, who testified at defendant's trial. According to Cuevas, defendant was depressed and suicidal, and had no goals, plans, or expectations for life. Cuevas recommended intensive treatment for defendant to address his severe mental and emotional problems. Dr.

Joseph Lantz, a clinical psychologist, interviewed and tested defendant. He reviewed statements by defendant's aunts and spoke to his grandparents. Lantz testified that defendant's early years were akin to those of "a feral child," and produced the mental problems that plagued him into adulthood. He diagnosed defendant as suffering from "schizoid personality disorder," which is characterized by a "marked detachment from relationships." Victims of this disorder prefer solitude to human contact and are easily manipulated by other people.

Lantz testified that, despite defendant's history, he was not "a character[o]logically violent person." Dr. Frank Gawin, a psychiatrist, reviewed defendant's medical records and concluded that defendant suffered from bipolar disorder. He testified that prison officials were well aware that defendant suffered from this disorder as well as other emotional and psychological problems. Both defendant's grandmother and defendant himself had written to prison officials and elected officials requesting treatment for his mental health issues.

According to Gawin, any treatment defendant received was "entirely inadequate." Dr. Glenn Lipson, a forensic psychologist, testified about inmate mental health services in general, as well as defendant's particular case. He met with defendant and also reviewed records related to his mental health and treatment in custody. Lipson concluded defendant suffered from schizoid personality disorder and bipolar disorder.

He testified that prison aggravated defendant's mental disease, and he attributed defendant's acts of violence in prison to the "diathesis-stress model" of behavior, i.e., the violent and stressful atmosphere of incarceration pushed defendant, who already suffered from mental illness, "over the edge." Based on his review of defendant's prison records, Lipson testified that the treatment defendant received failed to meet the standards required for inmate mental health services.

Finally, Anthony Casas, who had testified at the guilt phase, returned at the penalty phase to testify about conditions at Calipatria State Prison where defendant's first violent actions occurred. He testified that prison was staffed by inexperienced guards and less-than-qualified supervisors. The prison developed a reputation as being violent and out of control. Casas also testified that in 2000 he attempted to broker a deal in which defendant would provide information about the NLR to prison officials, but the officials concluded his information was stale.

A similar deal with the Federal Bureau of Investigation failed to materialize because the San Bernardino District Attorney declined to participate. II. GUILT PHASE CLAIMS A. Review of Sealed Records 1. Introduction Defendant requests that this court review certain records to which the trial court denied him access in whole or in part following an in camera review, and determine whether the trial court abused its discretion in denying him discovery of those records.

The records fall into three categories: (1) the confidential correctional inmate files maintained by the Department of Corrections for Daniel Addis, Gary Green and defendant himself (the C-files); (2) the personnel files of Correctional Officers Esqueda, Sams and Maldonado; and (3) additional medical and personnel files of Officer Maldonado pertaining to her medical retirement from the Department of Corrections. 2. Background a.

C-files Before trial, defendant served a subpoena duces tecum on the Department of Corrections, in which he sought his own C-file. (§ 1326.) Thereafter, he filed a pretrial motion for discovery in which he requested, among other things, the C-files for Green and Addis. (§ 1054 et seq.) Defendant argued that discovery of the C-files was necessary for him to determine whether the hearing officer who conducted Green's rules violation hearing arising out of his participation in the assault on Addis had relied upon "undisclosed sources." He contended the files might (1) contain information to support his duress defense; (2) lead to evidence that correctional staff knew, or should have known, about the attack on Addis; and (3) disclose whether there were any internal investigations regarding the attack on Addis and if any correctional staff had been disciplined as a result of such investigations.

The Attorney General, representing the Custodian of Records for California State Prison at Corcoran, moved to quash the subpoena or, alternatively, for the court to conduct an in camera hearing to determine whether the files should be disclosed. The Attorney General argued that the files were presumptively privileged, and disclosure of them would be contrary to the public interest. (See Evid.

Code, § 1040, subd. (b)(2) [a public entity may refuse to disclose confidential information if "[d]isclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice"].) He asserted the discovery request was overbroad, and cited the need to protect individuals, such as informants, who would be endangered if their identities were disclosed.

He further noted that if informants' identities were not kept confidential, inmates would be reluctant to cooperate in investigations. Finally, he urged that to protect the privacy rights of prisoners, confidential information regarding prisoners should not be released indiscriminately. The trial court agreed to examine the three C-files in camera before trial to determine what, if anything, in them was discoverable. Following its review, the court granted defendant partial access to all three C-files, most extensively those of Green, and to a lesser extent, defendant's own file.

It disclosed a single page of Addis's file. During trial, defendant renewed his request to examine Addis's file after the prosecution turned over to him an incident report detailing Addis's assault on a correctional officer. The trial court denied the request. b. Officer Personnel Records By subpoena duces tecum and an accompanying discovery motion, defendant sought the personnel files of 14 correctional officers.

Defendant sought material from the files reflecting: (1) lack of credibility; (2) "dishonesty/untruthfulness/veracity/false arrest/conduct unbecoming an officer/neglect of duty"; and (3) acts of moral turpitude. The Attorney General, representing the California Department of Corrections, moved to quash the subpoena. The trial court preliminarily granted the discovery motion as to Officers Esqueda and Maldonado and Sergeant Sams.

It denied the request for the personnel files of the remaining 11 officers based on defendant's failure to meet the threshold requirement of good cause for disclosure of police personnel records. (See Evid. Code, § 1043, subd. (b)(2) ; Garcia v. Superior Court (2007) 42 Cal.4th 63, 70-71, 63 Cal.Rptr.3d 948, 163 P.3d 939.) The trial court later reviewed the personnel files of Esqueda, Maldonado and Sams and concluded they contained no discoverable material. c.

Records Related to Officer Maldonado's Retirement After the trial had commenced, the prosecutor informed defense counsel that Officer Maldonado had retired a year after the assault on Addis because of "significant emotional and mental health issues" arising from her involvement in that incident. Defendant then served subpoenas on the State Compensation Insurance Fund (SCIF) and the California Institution for Men (CIM), seeking records related to Maldonado's retirement from the Department of Corrections.

The Attorney General, representing the California Department of Corrections, opposed the discovery request, arguing that the records were part of Maldonado's police personnel files as to which the court had already found no discoverable material. The trial court conducted a hearing on the motion. It stated it had received records from SCIF and CIM related to Maldonado's retirement. Additionally, the records of Dr. Friedman, the psychiatrist who examined Maldonado in connection with her retirement, were produced by Dr. Friedman in response to a defense subpoena.

Following an in camera review of the records, the court allowed counsel for both parties to copy any records from the Friedman file they found relevant. It denied the discovery motion as to the SCIF and CIM records, finding there was nothing relevant in those records that was not also contained in the Friedman file. Defendant later sought to discover records of an investigation into Maldonado's workers' compensation claim made by an entity called Singleton Investigations at the request of the SCIF. The trial court reviewed the records and found nothing discoverable. 3. Discussion Evidence Code

section 1040, subdivision (b)(2), authorizes the trial court to decline to disclose confidential records maintained by a public entity when it finds "the necessity for preserving the confidentiality of the information ... outweighs the necessity for disclosure in the interest of justice." (See People v. Suff (2014) 58 Cal.4th 1013, 1059, 171 Cal.Rptr.3d 130, 324 P.3d 1 ; People v. Avila (2006) 38 Cal.4th 491, 606, 43 Cal.Rptr.3d 1, 133 P.3d 1076.) This provision is applicable to prison inmate records. (Ochoa v.

Superior Court (2011) 199 Cal.App.4th 1274, 1281, 132 Cal.Rptr.3d 233.) As the Ochoa court observed, the state has a valid interest in maintaining the confidentiality of such records to "(1) protect individuals, including informants inside and outside of prison, (2) ensure institutional security, and (3) encourage candor and complete disclosure of information concerning inmates from both public officials and private citizens." (Id . at p. 1280, 132 Cal.Rptr.3d 233.) In addition, disclosure of police personnel records requires a threshold showing of good cause after which the trial court "screen[s] law enforcement personnel files in camera for evidence that may be relevant to a criminal defendant's defense." (People v.

Mooc (2001) 26 Cal.4th 1216, 1225, 114 Cal.Rptr.2d 482, 36 P.3d 21.) In either case, the trial court's ruling is reviewed for abuse of discretion. (Avila, at p. 607, 43 Cal.Rptr.3d 1, 133 P.3d 1076 [no abuse of discretion where trial court withheld access to a witness's parole records]; People v.

Hughes (2002) 27 Cal.4th 287, 330, 116 Cal.Rptr.2d 401, 39 P.3d 432 ["A trial court's ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion"].) Defendant asks that we review all records not disclosed to him by the trial court-the C-file records of defendant, Addis and Green, the personnel records of Officers Esqueda and Maldonado and Sergeant Sams, and the files of SCIF, CIM and Singleton Investigations related to Maldonado's retirement-and assess whether the trial court's rulings were proper.

"Parties who challenge on appeal trial court orders withholding information as privileged or otherwise nondiscoverable 'must do the best they can with the information they have, and the appellate court will fill the gap by objectively reviewing the whole record.' " (People v. Price (1991) 1 Cal.4th 324, 493, 3 Cal.Rptr.2d 106, 821 P.2d 610.) We have reviewed the record and conclude that the trial court did not abuse its discretion in rejecting disclosure of the materials.

We also conclude that the trial court's inadvertent failure to provide defendant with one document from Addis's C-file did not require the court to allow defendant to review Addis's entire C-file. As noted above, during trial, defendant renewed his request for access to Addis's file after the prosecution turned over to the defense an incident report regarding Addis's assault on a correctional officer.

According to the prosecution, it had obtained the document from the person who investigated the assault by Addis, but the prosecution apparently did not realize the document was relevant until it heard defendant's opening statement, which reflected a theory that correctional officers were complicit in the attack on Addis. Because the trial court had also failed to disclose the document, the defense asked to be allowed to review Addis's entire C-file to see if it contained other relevant documents.

The trial court responded that it had reviewed the file two more times, "page by page," and had discovered that the incident report at issue had been attached to a different report that involved a different incident. The court further stated that it found no other documents that were discoverable, and it denied defendant's request. We find no abuse of discretion in the court's decision and, as noted above, we have reviewed the file and found no discoverable documents.

Finally, defendant requests that the court allow appellate counsel to review Addis's C-file in accordance with appellate counsel's duty to "preserve evidence that comes to the attention of appellate counsel if that evidence appears relevant to a potential habeas corpus investigation." (Cal. Supreme Ct., Supreme Court Policies Regarding Cases Arising from Judgments of Death (2008) policy 3, std. 1-1.) We decline his request. The files are preserved in the appellate record. B.

Denial of Motion to Sever Counts Defendant contends the trial court abused its discretion in denying his motion to sever counts 1 and 2 (the attack on Addis) from counts 3 (the attack on Matthews) and 4 (possession of a weapon by an inmate). He further contends the denial of severance violated his rights to due process, a fair trial, a trial by jury, and reliable capital case proceedings. (U.S. Const., 5th, 6th, 8th, & 14th Amends.; Cal. Const., art. I, §§ 7, subd. (a), 15, 16, & 17.) His contentions are without merit.

In the trial court, defendant argued that separate trials were required because (1) there was an absence of cross-admissible evidence between counts 1 and 2 (the killing of Addis) and counts 3 and 4 (the attack on Matthews and the custodial possession of a weapon); (2) the evidence supporting counts 3 and 4 was weaker than the evidence supporting counts 1 and 2; (3) consolidation would inhibit defendant's willingness to testify with respect to counts 1 and 2; (4) the Eighth Amendment required heightened scrutiny of joinder because counts 1 and 2 rendered him death eligible; and (5) judicial economy would be served by separate trials because counts 3 and 4 involved distinct incidents and distinct evidence.

At defendant's request, the trial court also considered an in camera offer of proof regarding defendant's testimony and how consolidation might affect his willingness to testify. In denying the motion, the trial court found that defendant had failed to make an adequate showing of a substantial danger of prejudice. The court found further that "the four charges involved conduct by the defendant while in prison in the California Institution for Men within a two-month period.

Each occurred at [the] Palm Hall unit of [the] California Institute for Men. [¶] The offenses are of the same class of crime, either assaultive conduct by a prisoner or the possession of a prison-made weapon necessary to commit similar assaults. Each of the offenses involved prison-made weapons. Each of the assaults [was] committed with prison-made weapons against fellow prisoners. None of the charges appear to be weak in relation to the other. And the prejudice to the defendant would be small." The joinder of charges is addressed in

section 954: "An accusatory pleading may charge two or more different offenses connected together in their commission ... or two or more different offenses of the same class of crimes or offenses, under separate counts ...; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." The legislative preference for consolidation under either of the two circumstances set forth in

section 954 is intended to promote judicial efficiency. (People v. Capistrano (2014) 59 Cal.4th 830, 851, 176 Cal.Rptr.3d 27, 331 P.3d 201.) Defendant presents two theories of error. First, he contends count 4 was not properly joined with the first three counts because count 4, custodial possession of a weapon, did not involve assaultive conduct, and therefore was not of the same class as count 1 (premeditated murder) and counts 2 and 3 (assault by a life prisoner).

Second, he contends the trial court abused its discretion in declining to sever counts 1 and 2, which arose from the assault on Addis, from counts 3 and 4, which arose from the assault on Matthews and the possession of a weapon. Joinder of the four counts was proper because the counts were all of the same class. "Offenses of the same class are offenses which possess common characteristics or attributes." (People v. Smallwood (1986) 42 Cal.3d 415, 424, fn. 5, 228 Cal.Rptr. 913, 722 P.2d 197 ; see People v.

Kemp (1961) 55 Cal.2d 458, 476, 11 Cal.Rptr. 361, 359 P.2d 913.) With respect to the joinder of count 4 to the other counts, the trial court noted that all four offenses occurred in the custodial context and involved a prison-made weapon. In addition, sections 4500 (assault by a life prisoner) and 4502 (custodial possession of a weapon) serve an identical purpose-to prevent assaults by armed prisoners on prison staff and other inmates. (See People v.

Custodio (1999) 73 Cal.App.4th 807, 812, 87 Cal.Rptr.2d 18 ["By prohibiting prison inmates from possessing any instrument or weapon of the kind specified in the statute,

section 4502, subdivision (

a) is intended to protect inmates and correctional staff 'from the peril of assaults with dangerous weapons perpetrated by armed prisoners' "]; People v. Superior Court (Gaulden) (1977) 66 Cal.App.3d 773, 778, 136 Cal.Rptr. 229 ["Section 4500 was enacted for the purpose of promoting prison safety by discouraging assaults by prison inmates"].) Therefore, despite the fact that

section 4502 does not require an intent to use the weapon (People v. Rodriguez (1975) 50 Cal.App.3d 389, 395, 123 Cal.Rptr. 185 ), that offense as charged shares common characteristics with the assaultive offenses charged in this case, and is, therefore, of the same class.

Joinder was also proper because the offenses were "connected together in their commission." (§ 954.) "[O]ffenses which are committed at different times and places against different victims are nevertheless 'connected together in their commission' when they are, as here, linked by a ' "common element of substantial importance." ' [Citations.]" (People v. Lucky (1988) 45 Cal.3d 259, 276, 247 Cal.Rptr. 1, 753 P.2d 1052.) Here, the common thread among all four offenses is the use or possession by defendant of a prison-made stabbing weapon.

Defendant contends the common element factor requires that the same weapon be involved in each crime. We rejected a similar argument in Alcala v. Superior Court (2008) 43 Cal.4th 1205, 78 Cal.Rptr.3d 272, 185 P.3d 708, in which the defendant claimed "only physical or objectively measurable factors, such as use of a specific individual weapon, can suffice" to establish the common element factor. (Id. at p. 1220, 78 Cal.Rptr.3d 272, 185 P.3d 708.) Accordingly, we conclude that count 4 was properly joined with the other three offenses under

section 954. In addition, because the evidence that defendant committed count 4 was strong and stood on its own without reference to the remaining counts, the evidence related to the other counts would not have improperly bolstered the evidence pertaining to count 4. In light of the strength of the evidence related to each charge, "we cannot conclude that it is reasonably probable an outcome more favorable to defendant would have resulted" (People v. McLain (1988) 46 Cal.3d 97, 106, 249 Cal.Rptr. 630, 757 P.2d 569 ) if count 4 had not been joined with the other counts.

For the same reason, any misjoinder did not result in such gross unfairness as to deprive defendant of his right to due process. ( People v. Soper (2009) 45 Cal.4th 759, 784, 89 Cal.Rptr.3d 188, 200 P.3d 816 ["Appellate courts have found ' "no prejudicial effect from joinder when the evidence of each crime is simple and distinct, even though such evidence might not have been admissible in separate trials" ' "].) As noted, defendant also contends the trial court abused its discretion by not severing counts 3 and 4 from counts 1 and 2.

When charges are properly joined, a " ' "defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying defendant's severance motion." ' [Citation.] That is, defendant must demonstrate the denial of his motion exceeded the bounds of reason." (People v.

Capistrano, supra , 59 Cal.4th at p. 848, 176 Cal.Rptr.3d 27, 331 P.3d 201.) " 'Refusal to sever may be an abuse of discretion where (1) evidence of the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a "weak" case has been joined with a "strong" case or with another "weak" case, so that the "spillover" effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.' " (People v.

Romero and Self (2015) 62 Cal.4th 1, 30, 191 Cal.Rptr.3d 855, 354 P.3d 983.) Even if a defendant fails to demonstrate the trial court's joinder ruling was an abuse of discretion when it was made, reversal may nonetheless be required if the defendant can demonstrate that "the joint trial resulted in such gross unfairness as to amount to a due process violation." (Capistrano, at p. 853, 176 Cal.Rptr.3d 27, 331 P.3d 201.) Applying the four-part standard outlined above, defendant first contends evidence was not cross-admissible among the four counts.

The trial court did not expressly refer to cross-admissibility in its ruling denying severance, but its comments focused on the similarities among the counts-within a two and one-half month period, while housed in the Palm Hall unit of the CIM, defendant committed offenses involving prison-made weapons. As defendant acknowledges, the trial court's ruling reflects the view that there was a common plan or scheme to commit assaults with prison-made weapons.

To be admissible to prove a common plan or scheme, evidence of other misconduct "must demonstrate 'not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.' " (People v. Ewoldt (1994) 7 Cal.4th 380, 402, 27 Cal.Rptr.2d 646, 867 P.2d 757.) The first three counts involved conduct to lull another inmate into a false sense of security followed by a surprise attack with a prison-made weapon.

The fact that the attack on Addis occurred in the exercise yard in front of numerous witnesses and seemed to involve Green in the plan, whereas the attack on Matthews occurred while defendant was alone in his cell and with no participation by any other inmate, does not negate the significant similarities. (See Alcala v.

Superior Court, supra , 43 Cal.4th at p. 1225, 78 Cal.Rptr.3d 272, 185 P.3d 708 [the similarity required to admit evidence to prove a common plan "can be met despite the existence of some factual differences between or among the charged offenses"].) Thus, the trial court did not abuse its discretion in implicitly finding the evidence in these three counts to be cross-admissible. Like the other three counts, count four involved the possession of a prison-made stabbing weapon.

Therefore, the other counts were admissible to establish a common plan to possess a prison-made weapon such as the sharpened metal object that fell to the floor when the gate to defendant's cell was opened. In addition, as defendant concedes, "even the complete absence of cross-admissibility does not, by itself, demonstrate prejudice from a failure to order a requested severance." (Alcala v. Superior Court, supra, 43 Cal.4th at p. 1221, 78 Cal.Rptr.3d 272, 185 P.3d 708.) Rather, we look to the remaining three factors. (Ibid. ) An examination of those factors does not reveal an abuse of discretion.

First, none of the joined charges was unusually likely to inflame the jury against defendant. Defendant asserts the evidence of the attack on Matthews and the possession of a weapon would lead the jury to infer improperly that defendant "had a general disposition to violence," and would "undercut his defense of duress and staff complicity and/or negligence in the Addis homicide based on the facts peculiar to that case." The fact that evidence of two violent crimes might lead a jury to infer that a defendant is violent does not establish that any of the charges were unusually likely to inflame the jury.

In addition, to the extent defendant's attack on Matthews and his possession of a weapon tended to show he repeatedly acted pursuant to a common plan rather than due to duress or negligence, or with the complicity of staff, such inferences were proper. Finally, as explained below, duress is not a defense to murder, nor does duress reduce murder to manslaughter. (See post, pp. 42-49.) Second, counts 1 and 2 were not supported by evidence that was so measurably stronger than the evidence supporting counts three and four that it would likely have had an improper spillover effect on counts 3 and 4.

Defendant contends the evidence of the attack on Addis was stronger because there were eyewitnesses to it, but the circumstantial evidence that he attacked Matthews was just as strong. Defendant called him over, Matthews complied and turned his back to the porthole of defendant's cell door, and then Matthews staggered away from defendant's cell bleeding while guards heard defendant evidently flushing his weapon down the toilet. Similarly, the discovery of a prison-made weapon in a cell solely occupied by defendant constituted strong circumstantial evidence that he possessed that weapon.

Third, "[t]he capital charges were not the result of joinder of the various incidents." (People v. Mendoza (2000) 24 Cal.4th 130, 162, 99 Cal.Rptr.2d 485, 6 P.3d 150.) Contrary to defendant's arguments, we do not apply a heightened standard in assessing severance issues in capital cases. (People v. Trujeque (2015) 61 Cal.4th 227, 260, 188 Cal.Rptr.3d 1, 349 P.3d 103.) Defendant further contends that the trial court should have granted severance because denial of the motion assertedly prevented him from taking the stand.

He claims he could have offered a defense to the Addis counts that was inapplicable to the remaining counts, but would then have also had to testify concerning the remaining counts. Defendant's theory of prejudice has been recognized by federal courts in interpreting their rule of procedure regarding severance, rule 14(

a) of the Federal Rules of Criminal Procedure (18 U.S.C.). We noted in People v. Sandoval (1992) 4 Cal.4th 155, 14 Cal.Rptr.2d 342, 841 P.2d 862, that we have not addressed this theory, and we concluded that the "[d]efendant's showing fell far short of anything that would have satisfied the federal standards or any standard this court might adopt." (Id . at p. 174, 14 Cal.Rptr.2d 342, 841 P.2d 862.) We have subsequently considered this theory without adopting it as part of our severance analysis. (See People v. Johnson (2015) 61 Cal.4th 734, 752, 190 Cal.Rptr.3d 536, 353 P.3d 266 ; People v.

Thomas (2012) 53 Cal.4th 771, 800, 137 Cal.Rptr.3d 533, 269 P.3d 1109.) Although the federal courts' test is based on their

interpretation of the federal rule and is not grounded in constitutional mandate, we will assume, without deciding, that the type of prejudice recognized by the federal courts could justify a trial court's decision to sever otherwise properly joined charges under California law. Although federal courts have interpreted their rule to permit severance when a defendant can show prejudice because he or she " 'wishes to testify to one charge but to remain silent on another' " (U.S. v.

Archer (7th Cir. 1988) 843 F.2d 1019, 1022 ), they recognize that " 'severance is not mandatory every time a defendant wishes to testify to one charge but to remain silent on another. If that were the law, a court would be divested of all control over the matter of severance and the choice would be entrusted to the defendant.' " (Ibid . ) Under the two-part test devised by the federal courts, "severance is required when a defendant demonstrates that he has both (1) important testimony to give concerning some counts and (2) a strong need to refrain from testifying with regard to other counts." (U.S. v.

Ely (7th Cir. 1990) 910 F.2d 455, 457, italics added.) To satisfy the second part of the test, the defendant must demonstrate that his or her testimony on the counts about which he or she did not wish to testify was essential to the prosecution's meeting its burden of proof on those charges. (Id. at p. 460 ; Archer, at p. 1022 ; U.S. v. Williamson (5th Cir. 1973) 482 F.2d 508, 513.) As noted, the trial court conducted an in camera hearing concerning defendant's desire to testify about the Addis attacks and how consolidation might affect his willingness to testify.

At defendant's request, we have reviewed the sealed transcript of that hearing. The People have asked that the transcript be unsealed in the event it appears the trial court abused its discretion in denying severance. It is unnecessary to unseal the transcript, as defendant has failed to satisfy the second part of the federal test. There was ample independent evidence of his attack on Matthews (count 3) and his possession of the prison-made weapon (count 4), quite apart from any testimony he may have offered or declined to offer regarding those counts.

Accordingly, he fails to show he was prejudiced on this ground by the trial court's denial of his severance motion. Defendant makes several related arguments that can be quickly dispatched. First, he claims the trial court failed to instruct the jury to consider and decide each count separately, but as he concedes, the trial court did not have a duty to give the instruction without a request. (People v.

Beagle (1972) 6 Cal.3d 441, 456, 99 Cal.Rptr. 313, 492 P.2d 1.) Second, he claims the prosecutor committed misconduct by arguing that the jury could indiscriminately use the evidence of all counts to prove each count. But defendant neither objected to the argument, thus forfeiting any claim of misconduct, nor did he request a limiting instruction. (People v. Lopez (2013) 56 Cal.4th 1028, 1073, 157 Cal.Rptr.3d 570, 301 P.3d 1177 ; Evid.

Code, § 355.) Third, he claims judicial economy would have been served by severing counts 1 and 2 from counts 3 and 4 because counts 3 and 4 involved evidence that was not relevant to counts 1 and 2, and "there was every reason to believe that a verdict on the capital/murder charges would have led the parties to reach a disposition on other charges." Evidence of the counts was cross-admissible, as explained above, and he cites no legal authority to support his novel and speculative theory regarding a disposition of the less serious charges.

Finally, defendant contends denial of his severance motion resulted in such gross unfairness as to amount to a violation of his federal due process rights. (People v. Capistrano, supra, 59 Cal.4th at p. 853, 176 Cal.Rptr.3d 27, 331 P.3d 201.) Other than the asserted prejudice we have already discussed and rejected, defendant points to no additional unfairness assertedly resulting from the joint trial.

We therefore conclude that defendant has failed to show a due process violation as the result of the denial of his severance motion, or any violation of his rights to a fair trial, a trial by jury, and reliable capital case proceedings. C. Juror Questionnaire Defendant contends the trial court erroneously rejected two questions he asked to be included on the jury questionnaire pertaining to the prospective jurors' attitudes about aspects of prison life.

He contends the court's ruling violated his state and federal rights to due process, a fair trial, an impartial jury, and to a reliable determination of guilt and penalty in a capital case. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, subd. (a), 15, 16, & 17.) The claim is meritless. 1. Background Defendant proposed the following multipart question (question No. 40) to be included in the juror questionnaire: "What are your views on the prison system in the State of California? "A.

To what extent can you consider evidence that living in the prison system, that is to say being a prisoner, is an ongoing experience entirely different from living in society as you know it? "B. Please indicate which statement best describes your opinion of life in the prison system prior to hearing evidence in this case: "____ Prisoners are safer on the inside that they would be on the outside "____ Prisoners are about as safe on the inside as they would be on the outside "____ Prisoners are less safe on the inside than they would be on the outside "C.

Whatever your opinion as to the safety of living in the prison system may be, how willing are you to consider evidence that many prisoners' primary task on the inside is staying alive?" The prosecutor objected to subparts B and C, asserting they were argumentative and called upon the prospective jurors to prejudge the case. The prosecutor also asserted that the questions were vague as to what was meant by prisoner safety. The trial court declined to include subparts B and C.

Regarding the latter, even defense counsel conceded it was a "little argumentative," and proposed an alternative the trial court also declined to include.

The court expressed its belief that the defense could ask follow up questions to subpart A "to get somewhat the same information, assuming it's an appropriately asked question." At the defense's request, a space was provided after subpart A with the words "Please explain." In its final form, subpart A (renumbered question No. 96, subpart b on the questionnaire) read: "Would you be willing to consider evidence that living in the prison system, that is to say, being a prisoner, is an ongoing experience entirely different from living in society as you know it? Please explain." 2.

Discussion Defendant contends the trial court's rejection of his questions regarding prisoner safety denied him the opportunity to "expose juror bias about prison inmate safety and survival, to lay the foundation for challenges for cause, and to explore prospective jurors['] views on issues related to the circumstances of the charged capital offense that would be important to the decision of whether or not to impose the death penalty." As explained below, we find no abuse of discretion.

Preliminarily, we dispose of the People's claim that defendant forfeited this issue because, after further discussion and further revision of the questionnaire, defense counsel agreed the questionnaire could be used. By then, however, the trial court had already rejected subparts B and C, and it would have been futile for defense counsel to renew the argument. Accordingly, we find no forfeiture and proceed to the merits. "There is no constitutional right to voir dire per se.

Nor is there any constitutional right to conduct voir dire in a particular manner. [Citation.] Rather, the voir dire process serves as a means of implementing the defendant's Sixth Amendment right to an impartial jury. [Citations.] [¶] Consistent with applicable statutory law, the trial court has wide latitude to decide the questions to be asked on voir dire [citation], and to select the format in which such questioning occurs [citation]. The court likewise has broad discretion to contain voir dire within reasonable limits." (People v.

Contreras, supra, 58 Cal.4th at p. 143, 165 Cal.Rptr.3d 204, 314 P.3d 450 ; fn. omitted; see Code Civ. Proc., § 223.) Thus, " ' "content" questions,' even ones that might be helpful, are not constitutionally required. [Citation.] To be an abuse of discretion, the trial court's failure to ask questions 'must render the defendant's trial fundamentally unfair.' [Citation.] 'Such discretion is abused "if the questioning is not reasonably sufficient to test the jury for bias or partiality." ' [Citation.]" (People v. Cleveland (2004) 32 Cal.4th 704, 737, 11 Cal.Rptr.3d 236, 86 P.3d 302 ; see also People v.

Leon (2015) 61 Cal.4th 569, 586, 189 Cal.Rptr.3d 703, 352 P.3d 289.) It is not the purpose of voir dire to " 'educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law.' " (People v.

Crowe (1973) 8 Cal.3d 815, 824, 106 Cal.Rptr. 369, 506 P.2d 193.) As defendant asserts, the issue of inmate safety and survival was "central to the defense to the capital/murder charges." The principal purpose of the rejected questions appears to have been to begin educating the jurors about the defense. Moreover, as the prosecutor pointed out, the rejected questions were vague in that they did not specify what kind of threats to inmate safety and survival were at issue.

This vagueness itself created an opening for defendant to fill in the blanks with, again, the objective of previewing the defense and inviting agreement with his view of inmate safety and survival. Finally, the trial court did not foreclose all questioning on this subject, but indicated it would allow the defense to pursue the subject should a prospective juror raise it in his or her answer to subpart A. Accordingly, we conclude that the trial court acted well within its discretion in rejecting the questions.

We conclude further that the rejection of the proposed questions did not implicate the issue of death-qualification voir dire. (See Wainwright v. Witt (1985) 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 ; Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 ; People v. Butler (2009) 46 Cal.4th 847, 859, 95 Cal.Rptr.3d 376, 209 P.3d 596 [the purpose of Witherspoon-Witt voir dire is to determine only the views of prospective jurors about capital punishment].) D.

Admission of Defendant's Letters Defendant contends the admission of jailhouse letters he wrote to another NLR gang member violated his federal and state constitutional rights to due process, a fair trial, a trial by jury, and to reliable capital proceedings. (U.S. Const. 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, subd. (a), 15, 16, 17.) We disagree. 1. Background Prison officials intercepted two letters defendant wrote to fellow NLR gang member, Joseph Lowery, who had once been defendant's cellmate. The officials photocopied the letters and then allowed them to be delivered to Lowery.

The two letters were denominated People's exhibits Nos. 66 and 67. Exhibit No. 66 consisted of a photocopied envelope and a letter dated September 9, 1997, sent from CIM, at Chino, where defendant was then housed. The envelope had defendant's name, prison number and address. Exhibit No. 67 was an undated photocopied letter that was faxed to David Lacey, the investigating officer in this case, at CIM from an Officer Harrison at Corcoran State Prison on December 22, 1997, when defendant was housed at that institution.

Glen Willett, the prosecution's prison gang expert, testified that prison authorities monitor prison gang members by intercepting their mail and reading it before passing it on. Lacey testified that outgoing letters by inmates are not allowed to be sealed. First, they are collected and read. If they contain information pertinent to an ongoing investigation, they are photocopied and the copies passed on to a supervisor. Finally, the original letters are delivered to their recipients. That was how Lacey obtained defendant's letters.

Willett, the prison gang expert, testified concerning the contents of the letters for purposes of identifying defendant as either an associate or a member of the NLR. With respect to exhibit No. 66, he testified that Lowery was a known NLR gang member and that defendant's use of the phrase "dawg o' mine," was an endearment used among gang members.

He testified further that the sentence, "Yeah, this 187 kinda put me at ease, had to earn it," meant that defendant had "to work hard" to commit the "murder," presumably the Addis homicide, and that committing the murder would elevate defendant's status with higher ranking NLR gang members like Lowery. With respect to exhibit No. 67, Willett testified defendant had signed it with his gang moniker "Smurf," and had made reference to being relocated. He testified the phrase "so the KGB has been befuddled once again," referred to prison authorities.

He also noted defendant had again used the gang phrase "dawg o'mine," and well as the phrase "I hope this finds you in good health and strong mind," which is a reference to racial purity. Defendant also referred to Gary Green's gang moniker, "Mop," and to an Aryan Brotherhood gang member named Joseph Hayes who was then incarcerated at Pelican Bay.

Willett also testified that defendant's use of the word "homeplate," was another gang endearment that was the "same as 'homey.' " Later in the trial, when the prosecutor moved for the admission of exhibit Nos. 66 and 67, the defense objected that there was no foundation that defendant wrote them.

The prosecutor responded that the evidence showed Lowery and defendant were cellmates at one point, that defendant's prison number and address were written on the envelope in exhibit No. 66, and that "these are self-authenticating letters because of the content" and also because they were signed with defendant's gang moniker Smurf. Defense counsel argued there was no evidence regarding how prison officials obtained the letters. The prosecutor countered that Lacey's testimony regarding the interception and copying of inmate letters provided a proper foundation.

She acknowledged, however, that it was not possible to establish who had originally collected the letters. The trial court admitted the letters. 2. Discussion Defendant's argument regarding the admissibility of the letters is two-pronged. First, he contends the letters were inadmissible under the secondary evidence rule codified in Evidence Code

section 1521. Second, he argues the letters were not properly authenticated under Evidence Code

section 1401. Evidence Code

section 1521 provides in part: "The content of a writing may be proved by otherwise admissible secondary evidence. The court shall exclude secondary evidence of the content of writing if the court determines either of the following: [¶]

(1) A genuine dispute exists concerning material terms of the writing and justice requires the exclusion. [¶]

(2) Admission of the secondary evidence would be unfair." Enacted in 1998-and thus applicable to defendant's 2001 trial-the secondary evidence rule replaced the best evidence rule, which was repealed. "Under the secondary evidence rule, the content of a writing may now be proved either 'by an otherwise admissible original' ( [Evid. Code,] § 1520 or by 'otherwise admissible secondary evidence' ( [Evid. Code,] § 1521, subd. (a) ; [citation] ).") (People v.

Goldsmith (2014) 59 Cal.4th 258, 269, 172 Cal.Rptr.3d 637, 326 P.3d 239.) Here, as noted, photocopies of the letters and the one envelope were admitted rather than the originals because, as Lacey explained, once the photocopies were made, the originals were delivered to their intended recipient. Defendant now asserts the admission of the copies was error. At no time did defendant object to admission of the documents under the secondary evidence rule. Rather, his objection went to their authenticity.

" 'As a general rule, "the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal." [Citation.] ...' This rule applies equally to any claim on appeal that the evidence was erroneously admitted, other than the stated rule for the objection at trial." (People v. Kennedy (2005) 36 Cal.4th 595, 612, 31 Cal.Rptr.3d 160, 115 P.3d 472 ; accord, Evid. Code, § 353.) This principle applies with particular force here, because before the trial court can exclude otherwise admissible secondary evidence, Evidence Code

section 1521 requires the court to make specific factual determinations. These include whether a genuine dispute exists concerning material terms of the writing, and whether admission of the evidence would be unfair. The trial court cannot make such findings if a party fails to make a proper, specific, and timely objection, nor can we review the basis of the trial court's determination where no findings were made due to defendant's failure to have lodged the appropriate objection. Therefore, contrary to defendant's view, his various objections to Willett's

interpretation of certain phrases in the letters did not amount to a proper objection under the secondary evidence rule. Accordingly, the claim is forfeited. As noted above, defendant also contends the letters were not properly authenticated. A writing that qualifies for admission under the secondary evidence rule must, nonetheless, be authenticated before it can be admitted. "The Secondary Evidence Rule does not 'excuse[ ] compliance with [Evidence Code]

Section 1401 (authentication).' ( [Evid. Code] § 1521, subd.(c).) Thus, to be 'otherwise admissible,' secondary evidence must be authenticated." ( People v. Skiles (2011) 51 Cal.4th 1178, 1187, 126 Cal.Rptr.3d 456, 253 P.3d 546, fn. omitted; see Evid. Code § 1401, subd. (b) ["Authentication of a writing is required before secondary evidence of its content may be received in evidence"].) "Authentication is to be determined by the trial court as a preliminary fact ( [Evid.

Code,] § 403, subd. (a)(3) ) and is statutorily defined as 'the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is' or 'the establishment of such facts by any other means provided by law' ( [Evid. Code,] § 1400 )." (People v. Goldsmith, supra , 59 Cal.4th at p. 266, 172 Cal.Rptr.3d 637, 326 P.3d 239.) "The means of authenticating a writing are not limited to those specified in the Evidence Code. ( [Evid. Code,] § 1410 ['[n]othing in this

article shall be construed to limit the means by which a writing may be authenticated or proved']; [citation].) For example, a writing can be authenticated by circumstantial evidence and by its contents." (People v. Skiles, supra, 51 Cal.4th at p. 1187, 126 Cal.Rptr.3d 456, 253 P.3d 546.) The testimony of Glen Willett and Officer Lacey was sufficient to sustain the trial court's finding of authenticity. Both men testified to the general protocol by which inmate letters are monitored and, when appropriate, copied and turned over to prison authorities as possible evidence in ongoing investigations.

Defendant's letters were of obvious interest to Lacey, who was investigating defendant's attack on Addis. The envelope that was part of exhibit No. 66 showed as its return address defendant's address, along with his inmate number, and was sent while he was at CIM. Similarly, exhibit No. 67, the letter faxed to Lacey in December 1997 from Corcoran State Prison, was written while defendant was housed at that institution and refers to his having been relocated; he had in fact been transferred from CIM to Corcoran. The contents of the letter, about which Willett testified, lends further support for its authenticity.

The reference to a "187," that is, a murder, and the context in which the reference is made, are inferentially references to the attack on Addis by defendant, for which he is claiming credit. Other references in the letters, to mutual acquaintances like Gary Green and Joseph Hayes, and defendant's familiar tone with the recipient, Lowery, his one-time cellmate, as well as his use of his own gang moniker, Smurf, also provide circumstantial support that he authored the letters. (See Evid.

Code, § 1421 : "A writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing.") Defendant argues that all of this information was known to individuals other than himself, making it possible that the letters were forged. However, " '[a]s long as the evidence would support a finding of authenticity, the writing is admissible.

The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' [Citation.]" (People v. Goldsmith, supra, 59 Cal.4th at p. 267, 172 Cal.Rptr.3d 637, 326 P.3d 239.) Accordingly, we conclude the trial court did not abuse its discretion in admitting exhibit Nos. 66 and 67 into evidence. E. Excusal of Sick Juror On the day set for closing arguments and instruction, the court, over defendant's objection, excused a sick juror and seated an alternate.

Defendant contends the trial court's decision to replace the sick juror was an abuse of discretion and also violated his federal and state constitutional rights to a fair and impartial jury trial and a reliable penalty determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, subd. (a), 15, 16, 17.) The claim is meritless. 1. Background On the morning of April 18, 2001, the day set for closing arguments and instructions, the trial court informed counsel that Juror No. 10 had called in sick with the flu.

The court indicated it was inclined to replace the juror because the "flu that's going around does not seem to be something that will get well [sic ] in a day or two." Defense counsel requested and was granted a recess to review his jury list and consult with defendant. When the proceedings resumed, defense counsel objected to replacing the sick juror and asked the court to wait for a day to see whether the juror had recovered. The prosecutor suggested the court speak to the juror directly. With consent of both counsel, the trial court telephoned the juror and put her on speakerphone.

The juror reported she had been vomiting all night and did not anticipate recovering that week. The judge asked if she would be available on Monday, to which she said yes, although she acknowledged she had not been to the doctor. After speaking to the juror, the court noted that a delay from Wednesday to Monday would result in the loss of three court days. Defense counsel stated "it's reasonable to wait for that person until Monday." The trial court, however, excused Juror No. 10 and replaced her with an alternate. 2. Discussion

Section 1089 states in pertinent part that "[i]f at any time, whether before or after the final submission of the case to the jury, a juror ... becomes ill ..., the court may order the juror to be discharged" and replaced by an alternate juror. "We review such a decision for abuse of discretion." ( People v. Smith (2005) 35 Cal.4th 334, 348-349, 25 Cal.Rptr.3d 554, 107 P.3d 229.) "The court's discretion is not unbounded: it must determine whether good cause exists to discharge the juror, and its reasons for discharge must appear in the record as a demonstrable reality." (People v.

Roberts (1992) 2 Cal.4th 271, 325, 6 Cal.Rptr.2d 276, 826 P.2d 274.) The trial judge is not required, however, to "elicit conclusive proof of the length of future incapacitation; judges are lawyers, not doctors." (People v. Duff (2014) 58 Cal.4th 527, 560, 167 Cal.Rptr.3d 615, 317 P.3d 1148, fn. omitted.) Nor must the incapacitation exceed a specific length of time.

"[I]n the right circumstances, an absence of a day or less may warrant excusal. [Citations.] Whether a juror's illness can best be accommodated by a continuance or replacement with an alternate is a matter committed to the trial court's discretion." (Id . at pp. 560-561, 167 Cal.Rptr.3d 615, 317 P.3d 1148.) Here, there is no dispute the juror was ill. Although she believed she might be well the following Monday, five days and three court days later, this was merely an estimate on her part.

Meanwhile, as defendant acknowledges, the trial had gone on for almost two months and was set to enter its final phase of closing argument and instruction on the day the juror called in sick. Whether, as he insists, a three-day continuance would have been reasonable is not the question we must answer. The question is whether, under these circumstances, the trial court's decision to proceed with an alternate juror was an abuse of discretion. In light of the uncertainty of the juror's prognosis and the crucial point at which the trial had arrived, we conclude the trial court did not abuse its discretion. F.

Claims of Instructional Error 1. Instructions Regarding Duress Defendant contends the trial court's denial of four proposed defense instructions concerning duress violated his federal constitutional rights to due process, effective assistance of counsel and a reliable penalty determination. (U.S. Const., 5th, 6th, 8th and 14th Amends.) The claim is meritless. The defense of duress is set forth in

section 26, which states in relevant part: "All persons are capable of committing crimes except those belonging to the following classes: [¶] ... [¶] Six-Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused." As noted above, defendant argued that his attack on Addis, the basis of counts 1 and 2, was committed under duress because the attack was ordered by the NLR and, had defendant failed to carry it out, he himself would have been killed.

To establish the defense, defendant requested four duress instructions, two pertaining to the first degree murder charge (count 1) and two to the charge of assault by a life prisoner with malice aforethought (count 2.) The trial court rejected the instructions on the ground that there was insuff

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