The PEOPLE, Plaintiff and Respondent, v. Ruben Perez GOMEZ, Defendant and Appellant., 240 Cal. Rptr. 3d 315

LIU, J. Defendant Ruben Perez Gomez was sentenced to death in 2000 for the first degree murders of Rajendra Patel and Raul Luna, Jr. He was also sentenced to life in prison without the possibility of parole for the double murder of Robert Acosta and Robert Dunton. This appeal is automatic. ( Pen. Code, § 1239, subd. (b) ; all undesignated statutory references are to this code.) We affirm the judgment in its entirety. I.

FACTS In an amended information filed on July 7, 1998, in Los Angeles County Superior Court, the district attorney charged Gomez with five counts of first degree murder (§ 187, subd. (a)), six counts of second degree robbery (§ 211), and one count of kidnapping (§ 207).

The amended information alleged personal firearm use enhancements in connection with each count. (Former §§ 1203.06, subd. (a)(1), 12022.5, subd. (a).) The amended information also alleged multiple-murder, robbery, and kidnapping special circumstances. (§ 190.2, subd. (a)(3), (17).) The prosecution withdrew one of the robbery counts before trial, and the trial court dismissed one of the five remaining counts of robbery during trial. A jury convicted Gomez of four counts of first degree murder, two counts of second degree robbery, and one count of kidnapping.

The jury found true the special circumstance allegation of multiple murder as well as the special circumstance allegations of robbery and kidnapping in connection with the Patel murder. Although the jury convicted Gomez of the first degree murder of Luna, it acquitted him of the robbery of Luna and the associated robbery special circumstance and personal firearm use enhancement. The jury was unable to reach a verdict on the murder and robbery counts relating to the separate killing of Jesus Escareno; the trial court declared a mistrial on these counts, which the prosecution subsequently dismissed pursuant to

section 1385. The penalty phase took place before the same jury. After two days of deliberations, the jury returned a verdict of death for the murders of Luna and Patel, and of life without parole for the murders of Acosta and Dunton. A. Guilt Phase 1. Prosecution Evidence a. The Salcedo Robbery Gomez and Xavier Salcedo knew each other from "growing up." Salcedo testified that Gomez came to his home sometime in February 1997 and told Salcedo that he was out of jail and asked for money. Salcedo denied having any money. About two weeks later, around 11:00 p.m. on February 25, Gomez returned with two other men.

Salcedo, his girlfriend, Silvia, and their three children were home. Salcedo had about $10,000 in cash in his bedroom closet. Salcedo testified that he heard someone knock on the back door and that he told them to come around to the front. When Salcedo opened the front door, Gomez and a second man forced their way into the house while a third man remained standing in the open doorway. Gomez told Salcedo, "I want to talk to you, sit the fuck down." Gomez sat on the couch next to Salcedo, and the second man stood facing them about four feet away.

Gomez's two confederates held their hands in their pockets, giving Salcedo the impression that they had guns. Gomez had a gun tucked into his waistband. Gomez said that Salcedo had "disrespected him" when he came to Salcedo's house two weeks earlier to borrow money. Gomez pulled the gun from his waistband, pointed it at Salcedo, and told Salcedo to take off his jewelry. Salcedo handed over his gold bracelet, necklace, ring, and watch. Gomez told Salcedo to close the bedroom door so they could talk. Salcedo went to close the door and told Silvia, who was in the bedroom, that he was being robbed.

Silvia testified that she called 911 from the bedroom. Salcedo further testified that he went back to the living room, where Gomez told him to "sit down" and to "shut up." Gomez pointed the gun at Salcedo, asked if he had any money, and told him to "go get it." Salcedo went to his bedroom, grabbed about $5,000, handed a gun to Silvia, and told her "if they come in here, protect yourself." Salcedo returned to the hallway, gave Gomez the money, and the two went back into the living room. Salcedo pleaded with Gomez to give back the jewelry because it had been a gift from his parents.

Gomez handed his gun to Salcedo while the second man in the living room looked on, but Salcedo handed it back and said, "I don't want any problems." Gomez gave back the jewelry, and the three men left with the cash. Salcedo locked the door, turned off the lights, and went back into the bedroom where Silvia was still on the phone with a 911 operator. Salcedo told Silvia to "grab the kids and let's go," but the three men returned before Salcedo and his family could leave. The men demanded that Salcedo open the door or they would shoot though the walls. Silvia called 911 a second time from the bedroom.

Salcedo looked out the window and saw a friend walk up to the house. The friend spoke with the three men. The men started knocking on the door again, and Gomez threatened to shoot through the walls. The police arrived; Gomez and the others ran off around the back. b. The Patel Murder In the early morning of May 27, 1997, Detective Sal La Barbera received an assignment to investigate the "northbound Terminal Island Freeway on-ramp between Anaheim and PCH." When La Barbera arrived, the scene was already contained by police officers, who had found a body on the shoulder of the on-ramp, apparently shot and stabbed.

Officers found blood about 75 feet north of the victim's body. Two days later, after recovering a missing persons flier on a telephone pole in Torrance, La Barbera identified the victim as Rajendra Patel. The officer spoke with Patel's family and then verified Patel's identity by checking his thumb print against the victim's. A county medical examiner testified that Patel was shot once in the back of his head at close range, with the tip of the gun barrel making contact with his head.

The medical examiner also testified that Patel received stab wounds in the face and neck, and one particularly deep stab wound in the chest. The medical examiner attributed Patel's death to the gunshot wound and the deep stab wound. He further opined that Patel would have been able to walk or run 75 to 90 feet after receiving the deep stab wound, but not after receiving the gunshot wound. Patel was last seen on May 25, 1997, around 9:00 p.m. at his home in La Palma. The victim's son testified that his father left home in his white Toyota Camry, wearing a bracelet, a gold watch, and a chain.

On May 28, 1997, a police officer discovered Patel's car after being directed via radio call to locate a stolen vehicle in an alley in San Pedro. The interior of the car was found burned. A police department criminalist compared DNA extracted from blood found in the trunk of the Camry to Patel's DNA and testified that the blood "could have come from Mr.

Patel or any other individual with the same combination of genetic marker types." The criminalist further testified that the relevant combination of genetic marker types "occurs approximately one in 60,000 individuals, so it's fairly rare in the general population." Witness No. 1 testified that Gomez had asked him to burn the white Camry. (Before trial, the prosecutor asked that Witness No. 1 and three other witnesses not be named in the record, although their real names were used during the proceedings.

We likewise refer to these witnesses without naming them.) Witness No. 1 complied with Gomez's request because they "were tight." He took the car to an alley and then poured alcohol on the upholstery so that the vehicle's interior would ignite when he threw a lit rag into the car. Witness No. 1 believed the car was a "murder car" because Gomez had told him to "check the trunk good to make sure there wasn't no blood in it." Witness No. 1 also testified that three or four days before Gomez asked him to burn the car, Gomez said, "I hated to kill that guy because he had balls.

He said 'if you're going to do it, go ahead and shoot me, motherfucker.' " According to Witness No. 1, Gomez later put "a hit" out on him "for not burning the white car completely" because Gomez "was worried about his fingerprints." Witness No. 1 testified that Gomez brought Patel's watch and bracelet to Robert Dunton's house at least one or two days before he burned Patel's car. Witness No. 3 testified that Gomez brought Patel's jewelry to Witness No. 3's residence in Wilmington, where her husband traded narcotics for the jewelry.

During the transaction, Gomez told Witness No. 3 and her husband that the jewelry was "from this Mexican man I have in the trunk of the car I just killed." Witness No. 3 observed that a white car was parked in the driveway while Gomez was at her home. Witness No. 3 later pawned the watch and bracelet in Las Vegas, Nevada, on June 5, 1997. The police collected Witness No. 3's pawn slip when she was arrested for an unrelated crime on July 2, 1997. Police investigators subsequently recovered Patel's jewelry from the Las Vegas pawn shop.

The police also found three expended .40-caliber cartridge casings when investigating the crime scene on May 27, 1997. One of the cartridges was located between 90 and 100 feet from the body, the second "just a few feet shorter ... probably only a three or four foot difference," and the third within three feet of the body. These casings were later matched to a Smith and Wesson .40-caliber stainless steel semiautomatic handgun given to a police officer by Angel Rodriguez on June 8, 1997.

During trial, a firearm examiner testified that his forensic analysis of the .40-caliber handgun revealed that it was the source of the expended casings found near Patel's body. Witness No. 1 later identified the same handgun as the one Gomez carried "when he first started coming around [Dunton's] house." c. The Escareno Murder On the morning of June 9, 1997, Detective Debra Winter and her partner arrived at a shopping center on Western Avenue in San Pedro to investigate a homicide.

Winter testified that she saw the "body of a male Hispanic, approximately 30 years of age, lying face down" in an alcove behind the shopping center. The body had been discovered by a maintenance worker earlier that morning. The maintenance worker testified that "there was no body" when he arrived for his shift at 5:30 a.m., but that he discovered the body when he returned to the area between 7:30 and 8:00 a.m. There was brain tissue on the victim's suit and on the ground immediately surrounding the body. A fragment of glass was also recovered from the victim's hair at the crime scene.

A county medical examiner testified that the victim had been killed by a shotgun blast to the head from a distance of about one or two feet. No jewelry was found on the victim's body, but there were indentations on the victim's fingers where he had been wearing rings. One of the victim's pockets was turned out, and Winter concluded that someone had rifled through it. Although there was no wallet or identification upon the victim's person, the police discovered a business card for the restaurant Los Tres Cochinitos in the victim's right front pocket.

Workers at Los Tres Cochinitos examined a photograph of the victim and identified him as a regular customer who bussed tables at another restaurant. Upon visiting the victim's workplace, Winter was able to identify the victim as Jesus Escareno. On June 11, 1997, two days after Escareno's body was discovered, his car was found in San Pedro. Winter testified that the car's roof was dented from pellets that had been shot into the vehicle. Blood and brain matter were found between the passenger seat and the passenger side door.

A vanity mirror in the visor had been shattered by a shotgun blast, which was consistent with the glass found in Escareno's hair at the crime scene. Winter testified that in her opinion Escareno's death did not occur where the car was found and that someone had driven the car following Escareno's homicide. Diana Paul, a criminalist with the Los Angeles Police Department, performed a "bullet path determination" analysis on Escareno's car.

Paul examined the vehicle and found projectiles "consistent with a type of shot shell pellet known as double aught buck ... typical of a 12 gauge shotgun." Paul testified as to his finding that the projectiles traveled "upward and from the driver's side toward the passenger side." Paul further testified that this finding was consistent with a shotgun having been fired through the open driver's side window and that her findings "could be consistent with only one shot" having been fired from the shotgun. Maria Rosales, Escareno's sister, lived in Wilmington with her husband, her children, and Escareno.

According to Rosales, Escareno normally worked as a busboy until 10:30 p.m. on Sundays. After work, he typically went out to Los Tres Cochinitos "to chat with his friends." Escareno always carried a wallet. Rosales testified that on Sunday, June 8, 1997, Escareno came home after work, "slept for a while at home," then went out. Teresa Nava, a waitress at Los Tres Cochinitos, confirmed that Escareno had been at the restaurant on June 9 and that he left the establishment around 4:10 a.m. That morning, Rosales "awoke with the sound of a gunshot," which "coincided with the time [Escareno] usually arrived" at home.

Deanna Gallardo lived in the apartment directly upstairs from Escareno and Rosales. Gallardo was sleeping in bed when a gunshot sounded from "right in front of the apartment complex" at 4:42 a.m. on June 9. Gallardo and her husband ran to the front window where she saw "the red glare of the brakes" and heard "the skidding of a car." Pero Hererra, who lived about four houses down from Escareno, was in his kitchen early that morning getting a drink of water when he also heard a gunshot.

In an interview with Winter on July 2, 1997, Hererra said that from his kitchen window he had seen a car park alongside what looked like his neighbor's car, that he saw a flash "coming from inside," and that he heard a blast from a large gun or shotgun. Around this time, Witness No. 1 was living in San Pedro at Robert Dunton's house. Witness No. 1 met Gomez through Dunton.

Witness No. 1 and Gomez became friends and were "pretty tight for a while." Witness No. 1 testified that he was driving Gomez around one evening and that Gomez "was looking for somebody to rob." Gomez had in his possession a cut-down, break-open shotgun nicknamed "shorty" that belonged to Witness No. 1 and Dunton. They drove from San Pedro to Wilmington. Upon passing a bar, Gomez asked Witness No. 1, "Did you see that guy, with all them rings on his finger[s]?" The man with the rings drove off in a Ford Thunderbird; Witness No. 1 and Gomez followed him.

After losing track of the car, the pair located it in front of an apartment complex in Wilmington. They pulled up next to the Thunderbird, and Gomez started talking to the driver in Spanish. According to Witness No. 1, the driver of the Thunderbird seemed tipsy because he was laughing a lot. Gomez told him, "I got mucho huevos and mucho corazon." Witness No. 1 explained this meant he had a lot of balls and a lot of heart. As the driver of the Thunderbird laughed, Gomez lifted the shotgun and fired one shot.

Witness No. 1 testified that the driver "suddenly disappeared." Gomez then told Witness No. 1 to drive the Thunderbird back to San Pedro so they could remove the rings from the victim's fingers. When Witness No. 1 entered the driver's side of the Thunderbird, he noticed that the victim's head was over by the passenger door and his left foot was up behind the steering wheel. Gomez drove off while Witness No. 1 moved the victim's foot from behind the steering wheel.

Witness No. 1 drove the Thunderbird a couple of blocks to a hamburger stand, parked it in a dirt lot, took the man's wallet, and walked back to Dunton's house in San Pedro. Witness No. 1 spent $10 of the victim's money on heroin before he arrived at Dunton's house. When Dunton learned of this, he told Witness No. 1 that he "didn't follow orders." Witness No. 1 gave Gomez the victim's remaining money, about $70. Witness No. 1 went back to the car; the body and keys were still inside. He drove the Thunderbird to an alley in San Pedro about a half block from Dunton's house.

Witness No. 1 returned to the house, and Gomez ordered him to retrieve the dead man's jewelry. Witness No. 1 took rings and two watches off the body and brought them to Gomez. Gomez gave the items to Dunton, who told him that the items were costume jewelry. The jewelry was thrown away. Gomez subsequently told Witness No. 1 to dispose of the car and the body. Witness No. 1 testified that he drove the Thunderbird to the Park Plaza shopping center and left the body near two dumpsters "where somebody could find him." He then drove the car back to an open garage in an alley near Dunton's house.

Witness No. 1 parked the car, walked down the alley, took his blood-stained shirt off and threw it in a garbage can, and walked back to Dunton's house. Later, after Gomez had been taken into custody, Winter and her partner paid him a visit "to determine the tattoos that he had." Winter testified that she asked Gomez some routine questions as part of the booking procedure. According to Winter, Gomez made several statements that were not responsive to her questions. For example, he opined that the police "must be very busy" because "things were crazy" in the Harbor area lately.

Gomez "talked about a guy up on Western, his head being shot off," and he mentioned "a couple of guys that were shot and brains were splattered all over the place." Gomez said these individuals couldn't be identified and that their wallets were missing. Winter further testified that she had not released information to the press about Escareno's wallet being missing. d. The Luna Murder At approximately 1:20 a.m. on June 10, 1997, Detective Jeffrey Lancaster was dispatched to a shooting at a residence in Torrance. Lancaster arrived to find the body of Raul Luna, Jr.

"laying adjacent to a walkway that runs from the sidewalk to the front porch" of the house. He observed a gunshot wound on the left rear portion of Luna's head but no other wounds. A live, 12-gauge shotgun cartridge was found about 15 feet east of Luna's body. Officers also located "a clear plastic baggie with a kind of white brown substance" near Luna's knee, which was later identified as methamphetamine. Upon searching the residence, officers discovered more methamphetamine, an assault rifle, money, and "some other ammunition, .45 caliber." Raul's father later testified that Raul sold illegal drugs.

A county medical examiner performed an autopsy on Luna's body and determined that the cause of death was a gunshot wound to the head fired from about six to 12 inches away. During trial, another medical examiner testified that photos of the decedent revealed a circular wound with tearing into and behind the left ear. The medical examiner described "fully burnt gunpowder" scattered around the skin near the shotgun wound hole and noted damage to the skin in the same area from the burnt gunpowder.

Rudy Luna, Raul's brother, testified that at approximately midnight on June 9, 1997, he arrived at the home he shared with Raul, another brother named Andy, his sister-in-law Alice, and his nephew Andrew. Rudy lay down to go to bed at 12:06 a.m. A few minutes later, he heard a "loud, muffled engine ... sounding rough like a truck" before hearing a car pull up to the middle of the street directly in front of the Luna residence. Approximately three to five minutes later, Rudy heard "rustle noises" in front of his bedroom window, so he looked out.

Rudy explained that he "didn't see anything, so [he] laid back down, and then a minute after that [he] heard someone say, 'there's somebody in there, there's someone in there.' " After a couple minutes, Rudy heard the same voice say "he's here"; he then heard his brother Raul say "oh, shit." Rudy next heard a gunshot and immediately lay down onto his bedroom floor. Eventually, Rudy walked to his kitchen window, which faces the front of the house.

He did not see anybody but heard "a muffled garbled cough" and walked outside to find Raul "lying flat on his back bleeding from the head." Charles Orr lived on the same street as the Luna family. On the night in question, Orr was working on his computer shortly after midnight when he heard "what sounded like an explosion." Orr assumed that the sound was a malfunctioning electrical transformer at the school down the street. "All of a sudden," Orr heard running and "a kind of rattling noise," so he looked out of his window to see someone "about [Orr's] size" running eastbound in a "heavy footed" way.

Orr left his house and walked down the street to follow the runner but did not see anyone. Around the same time, William Owens, a federal customs officer, was smoking a cigar across the street from his apartment, less than a mile east of the Luna residence. That night, Owens saw a man running eastbound toward him. The man asked Owens to "give him a ride to his girlfriend's," but Owens declined. The man continued to run eastbound. Owens soon called the Torrance Police Department and reported "hearing [a] gunshot about 1:00 a.m." During the trial, Owens identified the running man as Ruben Gomez.

Officer Steve Fletcher testified that upon canvassing the crime scene for possible witnesses, he spotted a silvery white and black Oldsmobile from the mid-1980s parked about a hundred yards south of the Luna residence. Fletcher noticed that the car windows were rolled down, the keys were still in the ignition, the hood was warm to the touch, and the tires were wet, "appearing as they just had been driven up through the water that was in the gutter." Officers found a radio and a white plastic bag containing seven live 12-gauge shotgun rounds in the backseat of the vehicle.

The vehicle was towed to an impound yard later that day, where Officer Brooke Mc Millan took additional photographs of the vehicle's interior. Mc Millan fingerprinted both the interior and exterior of the car and collected 34 lifts. Two prints lifted from the exterior surface of the passenger door belonged to a woman named Maria Baca. One print lifted from the rearview mirror matched Baca while the other matched another woman named Sandra Ruvalcaba. Seven prints from the driver's window exterior matched Gomez and one matched Ruvalcaba. Finally, three prints from the driver's door exterior matched Gomez.

While the investigation into Luna's death was ongoing, officers investigating the murders of Robert Acosta and Robert Dunton recovered a cellphone at Dunton's house in San Pedro. Witness No. 1 testified that Gomez had brought the phone into Dunton's house. The police were unable to identify fingerprints from the lifts taken from the cellular phone. But when Lancaster asked Luna's father to identify the phone, he successfully matched the phone's serial number with the serial number found on the phone's packaging, which was stored at the Lunas' residence.

At trial, a custodian of records for AirTouch Cellular testified about 10 phone calls made after midnight from the telephone number registered to Raul Luna. Four calls were made to unknown numbers. Two calls were made to cab companies, one to a hotel in Wilmington, and one to Dunton. As discussed further below, Gomez had been staying at Dunton's home "off and on for about a month." e. The Acosta and Dunton Murders Around 3:48 a.m. on July 1, 1997, police officers responded to a 911 call regarding a possible assault with a deadly weapon at 332 West O'Farrell Street in San Pedro.

After knocking on the front door and receiving no response, and after trying unsuccessfully to open the front door, the officers accessed the home through a back door and discovered dead bodies inside. Detective Olivia Joya and her partner Detective Scott Masterson were assigned to investigate the matter around 4:20 a.m. They found the body of Robert Acosta on the living room floor and the body of Robert Dunton on a living room sofa. Masterson testified that Acosta's head was a "very short distance" from the front door.

Joya testified that four spent Remington shotgun shell casings, a bag of shotgun shells, the sawed-off wood stock of a shotgun, a metal tube, drugs and drug paraphernalia, and a cellphone were all recovered from the scene. As noted above, the cellphone was later traced to Raul Luna. An autopsy of Acosta's body determined that he had been killed by a single shotgun wound to the neck and that the shotgun had been placed "at the throat in some contact" with the neck. Dunton's autopsy revealed that he had been killed by a shotgun wound to the back of the head, although Dunton received three shotgun wounds in total.

Manuel Hernandez, who lived in the residence immediately to the west of Dunton's home, told investigators that he heard what sounded like three gunshots at about 3:15 a.m. on July 1, 1997. When he peeked outside of his window, Hernandez saw that Dunton's house was dark and that one man came out of the back door and ran down a walkway toward O'Farrell Street.

The man was between five feet, six inches to five feet, eight inches tall; the parties stipulated that Gomez is six feet, two inches tall and that Arthur Grajeda, Gomez's codefendant as to the Acosta and Dunton charges, is five feet, eight inches to five feet, ten inches tall. Hernandez then heard a car start nearby. He subsequently noticed someone turn on the lights in the Dunton residence and say "oh, my god" before leaving the house through the back door. Witness No. 1 testified that he was present in the home when Acosta and Dunton were shot and that he was the person who placed the 911 call.

Witness No. 1 had known Acosta and Dunton since approximately 1975. For several months prior to the killings, Witness No. 1 lived with Dunton at Dunton's residence on O'Farrell Street. Witness No. 1 paid Dunton some rent and helped him by "working the door" and letting people into the home to buy drugs from Dunton. Dunton weighed around 500 pounds and had difficulty getting up from the couch to answer the door. Witness No. 1 first met Gomez about a month before Acosta and Dunton were killed, when Gomez came to the house to buy drugs.

Gomez and Dunton became friends, and Gomez began napping and showering at Dunton's house within a week or two of his first visit. During the week before Acosta and Dunton were shot, a man who went by "Boxer" came to Dunton's house two days in a row. On the first visit, Boxer complained, "You ain't paying your taxes and they're getting on me because I'm not doing my job." The next day, Boxer returned with his girlfriend and another person. He threatened Gomez with a machete while the other two held him back. He then took $100 and a small chrome handgun from Gomez.

When Gomez complained about the gun, Boxer said, "Well, I'll give it back to you." Gomez then called someone in Wilmington and said he "need[ed] a gun, any kind of gun" and insisted that it was a matter of "life or death." Someone brought over a shotgun, and Gomez and Witness No. 1 cut six inches from the barrel and cut the stock off to make it easier to conceal. The night before Acosta and Dunton's murder, Witness No. 1 and Gomez drove to a location in Wilmington known as "the third world" or "the junk yard" where drug dealing took place.

Witness No. 1 flashed some money and offered to buy crack cocaine from a drug dealer. When the dealer presented the drugs, Gomez drew the cut-down shotgun and took the drugs without paying. Gomez and Witness No. 1 subsequently drove back to Dunton's house. Gomez said to Witness No. 1, "They sent somebody to fuck [Dunton] and [Acosta] up." Upon entering Dunton's house, the pair found Acosta, Dunton, and Grajeda seated inside. Gomez and Witness No. 1 sat down at a table; the cut-down shotgun was placed on the table.

Grajeda was seated on a small couch facing Dunton and held a different shotgun-the weapon that Witness No. 1 and Dunton referred to as "shorty." Dunton sat on a large couch facing the door, and Acosta was standing near the door. Witness No. 1 subsequently left the room to prepare some crystal methamphetamine in his bedroom. From his bedroom, Witness No. 1 heard Dunton say, "If I got to go, I'm going to go like a man." Grajeda said, "You know the rules," and Gomez added, "Yeah, forward and backward." Gomez then said, "Don't point that at me.

I don't like people pointing things at me." Thereafter, Witness No. 1 heard about four gunshots, running footsteps, and a bump against the washing machine near the back door. Witness No. 1 went into the living room and saw Acosta lying by the front door and Dunton seated on the couch with his head to the side. Witness No. 1 went out the back door and rode his bicycle toward a convenience store to call 911. On the way, he passed a business where his friend worked, and he went in and called 911. He then continued to the convenience store.

Witness No. 1 testified that he was afraid to go back to Dunton's house because he "figured they would ... come back and get me." But during an interview with Detective Joya and Detective Masterson on July 2, 1997, Witness No. 1 said that he had gone out to get something to eat and had come home to find the bodies. In court, Witness No. 1 acknowledged this discrepancy and explained: "Because both of them was gone and I was there ... I was afraid it might look like I did it." Witness No. 2 testified that he had known Grajeda, who was dating Witness No. 2's niece, for about four to five years.

Witness No. 2 had also known Dunton and Acosta for about 30 years; Dunton lived behind Witness No. 2's mother's house. The day before Acosta and Dunton were shot, Witness No. 2 went to Donald Jauez's house around 3:30 or 4:00 p.m. Grajeda was already there, along with four to six other people, having drinks.

Witness No. 2 testified that he heard Grajeda say that Gomez was supposed to be collecting taxes for the Mexican Mafia and that "[Dunton] wasn't paying up, [Gomez] wasn't paying up." Witness No. 2 recalled Grajeda saying he would "go over there and take care of [Gomez]." Grajeda then asked Witness No. 2 to drive him to Dunton's house because Grajeda "wanted to go check out the place." Witness No. 2 complied. They arrived at Dunton's house around 4:30 or 5:00 p.m. Gomez answered the door and they went inside. Witness No. 1, Witness No. 2, Gomez, Grajeda, and Dunton were all present.

Witness No. 2 and Grajeda stayed 20 or 30 minutes and made small talk. Gomez was "nervous" and "was walking back and forth." Witness No. 2, suspecting that another person may have been in the bedroom, said to Grajeda, "Let's get out of here. It don't look right." Grajeda and Gomez walked outside, followed by Witness No. 2. Grajeda and Gomez went over to a vehicle and talked for a few minutes. Acosta arrived, greeted them, and went inside the house. Witness No. 2 drove Grajeda back to Jauez's house and dropped him off around 5:30 p.m.

During the drive, Grajeda asked Witness No. 2 to come back at 8:00 p.m. to pick him up and drive him back to Dunton's house. Grajeda told Witness No. 2 that he intended to kill Gomez and possibly Dunton if Dunton "didn't pay up his taxes." Witness No. 2 agreed to return at 8:00 p.m. Around 6:00 p.m., Witness No. 2 went to his mother's apartment. He told his girlfriend that Grajeda was going to call and instructed her to say that Witness No. 2 was asleep and that she would not wake him. Witness No. 2 did not see Grajeda again until about two days after Acosta and Dunton had been killed.

Witness No. 2 told Grajeda that "[Acosta] and [Dunton] got killed," and Grajeda said that he "did it." Witness No. 4, Gomez's cousin, testified that she saw Gomez on July 2, 1997, for the first time in about eight years. Sometime in the late afternoon, Gomez knocked on the door to her home in Long Beach and said that he needed a place to stay. He was carrying a bag and "kind of a big gun" that resembled the shotgun that he and Witness No. 1 had cut down and removed the stock from. Witness No. 4 subsequently left Gomez in her house and walked to her friend's house, where she eventually called the police.

Around 3:00 or 3:30 a.m., Gomez was arrested at Witness No. 4's home without incident. Upon searching the residence, officers discovered the cut-down shotgun. Three of four fingerprints lifted from the shotgun matched Gomez. Daniel Rubin, a criminalist with the Los Angeles Police Department's Firearms Analyst Unit, testified that four spent cartridges discovered at Dunton's house were fired by the shotgun confiscated from Gomez during his arrest, and that one live round recovered from Dunton's house was "the type of shot cartridge that could be loaded in and fired by" the shotgun.

Rubin further noted that a metal tube found at Dunton's residence "could have been a part of the barrel of [the] shotgun." On July 7, 1997, detectives acting on information provided by Witness No. 1 recovered a cut-off shotgun stock from a trashcan in Dunton's kitchen. Witness No. 5, Acosta's wife, testified that Gomez called her after his arrest and asked her to come visit him at the county jail.

At the jail, Gomez denied killing Acosta and Dunton, and told Witness No. 5 that he knew "that he had left fingerprints all over the house and even fingerprints on [Dunton's] face, and he even kissed him." Gomez also acknowledged that he was "the last person there" when Acosta and Dunton were killed. Witness No. 5 further testified that she found a note between the pages of a Bible five days after Acosta's death.

The handwritten note was signed by Acosta in his full name and his street name "Spider." She testified that she and Acosta "always" left notes for each other, but that Acosta had never left a note for her signed with his full name. Witness No. 5 said that the note "meant something serious," so she turned it over to the detectives investigating Acosta's death.

The note read as follows: "6-30.97 [¶] Tuesday morning [¶] Monday nite 1.20 [¶] Went to meet [¶] Shady La Rana [¶] don't like the [¶] meeting at Big Huero [¶] Robert Acosta [¶] Spider." ("Shady La Rana" was Grajeda's nickname, and "Big Huero" referred to Dunton.) The prosecution also presented expert testimony from Sergeant Richard Valdemar about the history and practices of the Mexican Mafia. Valdemar recounted some of his observations from surveilling Mexican Mafia meetings, including the fact that murder was a primary topic of conversation.

He further stated that the Mexican Mafia had a "reputation for seeking out witnesses and killing them" and that loyal Mexican Mafia members "would use any means possible to delay, obstruct or reverse any kind of a criminal prosecution against its members." Moreover, after viewing Gomez's tattoos, Valdemar testified that Gomez was "a member of the East Side Wilmas gang, Ghost Town Locos, which is a subset, and surrenos." He had previously stated "[t]hat members of the East Side Wilmas gang ... align themselves with the Mexican Mafia." Valdemar also explained that individuals can be placed "on a green light list" and that "gang members have a green light or the authorization to assault and murder whoever is on that list." Valdemar noted that "all dope dealers who operate in the area controlled by the street gangs that are controlled by [the Mexican Mafia] pay taxes," and agreed with the prosecution that a "Hispanic street gang member who by reason of his tattoos was professing allegiance to [the Mexican Mafia]" and "was robbing dope dealers in San Pedro and Wilmington and not turning over those proceeds to [the Mexican Mafia]" would likely be placed on the green light list and specifically designated to be killed.

He further explained that someone on the green light list might be given an assignment for a "suicide run" where the individual murders someone else on behalf of the Mexican Mafia so as to be removed from the list. Valdemar also noted that the Mexican Mafia often "used someone close to the victim to either approach them or actually carry out the murder." During a break in Valdemar's testimony, one of the jurors sent a note to the trial court judge, that read as follows: "Judge, I have a question! What about jury members.

Are we at risk?" Additionally, at the end of guilt phase deliberations, the jury sent a note signed by the foreperson to the court, stating that the jurors were "concerned about possible harassment or problems after we are dismissed once the verdicts are read." The trial court subsequently rearranged the jurors' parking and provided for them to be escorted to their cars. 2. Defense Evidence a. The Patel Murder When Gomez was arrested on July 2, 1997, the police did not find any .40-caliber pistols on his person.

Nor did the police recover such handguns at the crime scenes of the Luna, Escareno, or Acosta and Dunton murders. Besides the three shell casings of the .40-caliber pistol found near Patel's body, officers also discovered a disposable lighter from which no prints of Gomez were recovered. During the investigation, Detective La Barbera had experts take foot impressions from the ground.

La Barbera testified that after having learned that officers from Long Beach and the California Highway Patrol had already been to the crime scene, he originally chose not to have the castings analyzed, believing the prints belonged to the police officers present at the scene.

La Barbera later had the plaster casts and photographs of the shoe prints at the crime scene compared to boots confiscated from Gomez during his arrest even though "these boots ... did not or could not have made the shoe or boot impressions located at the scene." Additionally, La Barbera had requested fingerprint, serology, and arson experts to conduct an investigation of Patel's car. None of the fingerprints lifted from the vehicle were linked to Gomez. The serologist was unable to match the blood in Patel's car to Gomez.

Officers also recovered various personal items from the car, including a flashlight that did not belong to Patel and other "trace evidence" such as a rope and bungee cords, none of which "c[a]me back to Ruben Gomez." The police did not find knives, scissors, or shears in the trunk of Patel's car. b. The Escareno Murder The defense introduced a local newspaper

article on the Patel murder, dated May 27, 1997, indicating that no identification was found on the body. Detective Winter confirmed that the Escareno murder was also "covered in their local paper." The defense also introduced two newspaper articles concerning the Escareno homicide that were included in the murder book prepared by the detectives that investigated Escareno's murder. Defense Exhibit L, dated June 18, 1997, and entitled "A Gruesome Discovery in SP Alley," recounted the discovery of Escareno's car and described the blood and brain matter found in the car.

Defense Exhibit M, dated June 10, 1997, and entitled "Man Found Slain at SP Shopping Center," stated that a victim was found with a massive gunshot wound to the head in a shopping center on Western Avenue, that jewelry had been taken from both hands, and that robbery appeared to be a motive. The

article also stated that the victim was killed at the shopping center. The defense recalled Detective Winter, who testified that she had interviewed Witness No. 1 on July 24, 1997. During the interview, Witness No. 1 said that Gomez "always drove." Witness No. 1 would ask Gomez for permission to carry the shotgun because Gomez was driving, and sometimes Gomez would let him.

Witness No. 1 also told Winter that Dunton would give "some of the jewelry that would come into the house" to "some of the females that would come around." Witness No. 1 described jewelry that Dunton had given to some girls, and Winter indicated in her testimony that the description sounded like Escareno's jewelry. He also indicated that Gomez had several guns, including a single shot 12-gauge shotgun and a pump shotgun. Winter also interviewed Witness No. 1 on August 20, 1997. Witness No. 1 told Winter that he had been involved in the Escareno murder and that he was with Gomez at the time. c.

The Luna Murder During trial, Rudy Luna testified that he did not recognize the voice he heard outside his bedroom window. Rudy acknowledged that he personally knew Gomez prior to Raul's death. Detective Lancaster later directed officers to compare the boots taken from Gomez to the plaster shoe casts made at the Luna crime scene. There was "no similarity at all" between the boots and the casts, which appeared to have been made by an "athletic type of shoe." Nor did the casts taken from the crime scene produce any evidence significant to the investigation.

Charles Orr, one of the prosecution's witnesses, described the man he saw running shortly after the shooting as "dark-skinned but not Black." During trial, Orr did not characterize Gomez as having dark skin.

William Owens, another one of the prosecution's witnesses who had "five or six seconds" of interaction with the running man, testified that the man seemed Central American and had "a deep heavy Spanish or Hispanic accent." Owens estimated that the man stood around "five-nine, five-ten," weighed "maybe 180, 200" pounds, had a "light complexion" and "a facial structure ... from [the] Central America region," and spoke with a "heavy Spanish or Hispanic accent." Owens further reported that the running man wore jeans and a red and blue nylon jacket.

Owens did not notice any tattoo markings but described the runner's hairstyle as a "marine-type" "crewcut" and said that the runner had a trimmed, "medium mustache." Lancaster showed Owens a six-pack of photos that contained a picture of Gomez. Lancaster did not have Owens circle, date, and sign the photograph, as he customarily did to verify the identification because Lancaster did not feel Owens had accurately identified the individual who had committed the crime.

Lancaster testified that Owens "never conclusively indicated that [the photograph] was [of] the suspect," only that Owens indicated "he somewhat resembled the suspect." Owens claimed to have identified the runner with "75 to 85 percent accuracy." During trial, Owens pointed to Gomez in the courtroom when asked to identify the running man. Wilcox testified that Gomez's prints did not match the latent prints lifted from the Oldsmobile at the crime scene.

Wilcox further testified that it is generally impossible to "put a time date as to the appearance of that fingerprint on that particular object ... unless there is some type of outside specific force that acts on that fingerprint." Further, all six of the fingerprint lifts taken from the cellphone recovered by the police were "badly smeared or basically not of sufficient quality to do the latent print comparison." Wilcox was not directed to perform fingerprint analysis on lifts taken from other surfaces besides the vehicle and cellphone.

At trial, Lancaster testified that the Oldsmobile was not registered to Gomez. He also acknowledged that prints lifted from the radio found inside the vehicle, prints from the baggie found near Luna's body, prints from an ATM card found near Luna's body, and prints lifted from a gold chain and cross around Luna's neck did not match Gomez's prints. d. The Acosta and Dunton Murders The defense recalled Detective Joya, who testified that the cut-off barrel and wood stock of the shotgun linked to the Acosta and Dunton murders were sent to the crime lab, but she could not recall if any of the prints matched Gomez.

Joya also testified that she interviewed Witness No. 1 on July 15, 1997, and August 20, 1997. During the July 15 interview, Witness No. 1 told Joya "[Gomez] had told him that they're going to send someone over to fuck up [Dunton] and [Acosta]." In the interview on August 20, Witness No. 1 told Joya "that [Gomez] told him that they-that they have their orders for [Dunton] and [Acosta]." Witness No. 1 did not indicate to Joya that by using the term "they," Gomez was referring to himself. Joya further testified that "they" was a reference to a group of people.

The defense also recalled Detective Winter, who testified that she interviewed Witness No. 1 on July 24, 1997. During the interview, Witness No. 1 said that Gomez "always drove." Witness No. 1 would ask Gomez for permission to carry the shotgun, because Gomez was driving, and that sometimes Gomez would let him. During this same interview, Witness No. 1 told Winter that Dunton asked him to get rid of Boxer. B. Penalty Phase 1. Prosecution Evidence The prosecution's aggravation case consisted of testimony concerning Gomez's prior felony convictions and violent criminal activity.

The prosecution first presented evidence that Gomez had been convicted of a 1991 robbery. The victim, Jorge Lucho, testified that Gomez approached him when he was walking home late at night. Gomez threatened Lucho with a pointed screwdriver and demanded his wallet. Lucho turned over the wallet, which contained only one dollar; Gomez said Lucho "surely was carrying more money and that [Lucho] should go with him to the alley to try and get some more." At that point, Lucho was able to run away, but he heard Gomez threaten to kill him if he didn't give any more money.

Police officers thereafter discovered Gomez hiding behind a mattress in a metal shed in the backyard of a house several blocks from where he had confronted Lucho. Upon arresting Gomez, the police officers found a "homemade metal sharp object" on Gomez's person. The arresting officer testified that Gomez "had a bewildered look, eyes wide open." Gomez was transported to the general hospital, where he was diagnosed as being under the influence of an opiate.

The prosecution next introduced evidence that while incarcerated for the 1991 robbery and a separate drug charge, Gomez was convicted of assault and possession of a deadly weapon. Finally, the prosecution presented evidence relating to several violent incidents that occurred when Gomez was in custody awaiting trial in the instant case. Deputy Sheriff Chad Millan testified that in June 1998, he escorted Gomez to the hallway to search him for hidden contraband or weapons.

Gomez "was instructed to strip out of his underwear," was then "waist chained," and "asked to do a squat down and a cough too and release anything that might be secreted in his anus." Gomez initially did not comply and then pulled an object from "between his buttocks." Fearing that the object was a weapon, Gomez was ordered to drop the object; when Gomez refused to do so, Millan sprayed him with pepper spray. Gomez turned away, began peeling paper "covering off what seemed like the blade," and ran down the hallway. Millan followed him and confronted him, kicking him in the back of the head.

Gomez turned around, said "fuck you, punk," and stabbed Millan three times in the rib and knee with a shank. Deputy Sheriff Timothy Vanderleek testified that he responded to a disturbance in Gomez's cell in November 1999. When he entered the cell, he had liquid that smelled like urine thrown on his face. Deputy Sheriff Frank Montoya testified that he had several violent interactions with Gomez in December 1999, while Gomez was jailed during his trial.

Montoya encountered Gomez walking back from court carrying a large bag of candy, which was not authorized because Gomez had been placed in the "high security discipline" cell. Montoya confronted Gomez and advised him that he could not possess the candy until he "gets out of discipline"; this caused Gomez to get angry and start shouting profanities. When Montoya attempted to grab the bag, Gomez turned around and head butted him. After Gomez was brought to the ground, Gomez said, "You fucked up, Montoya. You fucked up. I'm going to kill you.

I'm going to kill you and I'm going to kill every deputy here." The next day, Montoya let Gomez out of the locked shower area and asked him to show Montoya his hands. Montoya testified that Gomez "thrust" his hand "through the bars toward [Montoya's] office," and that Gomez was holding "a plastic handled comb with the teeth cut out, and there was a razor fixed to it, like a slashing instrument." Gomez was unable to reach Montoya with his weapon, so he "started breaking the razor and the plastic comb into little pieces and threw it down the shower drain." As he did that, Gomez said, "fuck you ...

I'm going to kill you. I might have missed you this time, or I'll get you later or I'll get some other deputy that's slower." Montoya testified at trial that he maintained daily contact with Gomez after these two incidents; although Gomez continued to threaten Montoya, he did not try to attack him physically again. Another deputy at the jail, Keith Holly, testified that he went to Gomez's cell to inform Gomez that he had been found guilty of various offenses in violation of jail disciplinary rules, and that Gomez would therefore lose various privileges for 30 days. Gomez responded, "Fuck this discipline time.

I should have fucking slashed Montoya's throat when I had a chance.... Just wait until those fucking deputies take me to court and I'll slash one of those fuckers." 2. Defense Evidence The defense first offered the testimony of Michael Pickett, a regional administrator for the Department of Corrections.

Pickett testified that a defendant like Gomez "can only be assigned to a Level 4 institution" and would most likely be sent to the most secure classification of facility, known as a "Security Housing Unit" or "SHU." Pickett explained that "it's not a perfect world at a Level 4 prison" despite the high security and that homicides as well as assaults occurred at such facilities. Based on what he knew about Gomez, Pickett predicted that Gomez would be moved to the Corcoran SHU facility or the Pelican Bay State Prison SHU facility, where he would be confined to a cell for roughly 23 hours per day.

He would leave his cell only for exercise in a yard adjacent to the SHU or for medical and legal visits, during which he would be shackled and escorted by a guard. Pickett also testified that all visits with a Level 4 SHU inmate are "non-contact," meaning there would be a Plexiglas partition between the inmate and the visitor. On cross-examination, Pickett detailed a race-related riot that occurred at Pelican Bay State Prison the previous morning. Pickett also opined that there is a higher level of violence at the more highly secured prison facilities because the inmates in such facilities are more violent.

Pickett further testified that murders and violent assaults have been ordered by prison gang members in the SHUs against prisoners in the general population. The defense also presented the testimony of Gomez's sister, Mercedes Sanabria. She testified that Gomez has three children under the age of 12 and that she has brought the children to visit Gomez at the county jail. Sanabria further testified that the children love their father and that she loves her brother. She said to the jury "that despite what my brother has done, we are real sorry, but we all love him, and we just don't want him to be executed." II.

PRETRIAL ISSUES A. Preemptive Denial of Gomez's Right to Self-Representation Nine months before jury selection, Gomez invoked his right to represent himself under Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. At that time, the court warned him, "[Y]ou can't go back and forth on this. If you want to represent yourself, that's fine.

That's going to cause a delay in the proceedings, and you just can't keep switching back and forth between being represented by counsel and representing yourself." After determining that Gomez's waiver of the right to counsel was knowing and intelligent, the court granted Gomez pro se status. But two weeks later, Gomez expressed his desire to "relinquish" his pro se status and asked that the court reappoint counsel. The following colloquy ensued: "THE COURT: Is that what you want to do, Mr. Gomez? "GOMEZ: Yes. "THE COURT: I told you before you can't switch back and forth. "GOMEZ: I know that.

"THE COURT: I'm going to hold you to this kind of a change. I think it's a good change for you. I think you're doing the right thing. All I'm saying is I'm not going to let you bounce back and forth. You have a right to represent yourself, I recognize that and gave that to you, and as of this moment you do represent yourself. And it's better for you and it's better for me as well to have an attorney who knows the rules and will effectively represent you to do that for you. So at this point you understand that if I'm going to change back, this is a final change. "GOMEZ: I understand that, yeah.

"THE COURT: And that's what you want to do? "GOMEZ: Yes, sir. "THE COURT: Okay. Mr. Nardoni is appointed then." Gomez argues that this colloquy amounted to a preemptive denial of Gomez's constitutional right to self-representation. Quoting People v.

Windham (1977) 19 Cal.3d 121, 128, 137 Cal.Rptr. 8, 560 P.2d 1187, he contends that when " 'a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be.' " Because the court gave Gomez the impression that he could not ask to represent himself, he argues, he never had the opportunity to invoke such a right, even if such requests had been timely.

But because Gomez never re-invoked his Faretta right, he cites to our decisions in People v. Dent (2003) 30 Cal.4th 213, 132 Cal.Rptr.2d 527, 65 P.3d 1286 ( Dent ) and People v. Lancaster (2007) 41 Cal.4th 50, 69-70, 58 Cal.Rptr.3d 608, 158 P.3d 157 ( Lancaster ) as precedent for the proposition that where the court entirely forecloses the possibility of future self-representation, Faretta is violated.

In Dent , the defendant's appointed counsel failed to show up on time for the first day of trial. ( Dent , supra , 30 Cal.4th at p. 216, 132 Cal.Rptr.2d 527, 65 P.3d 1286.) After "delineat[ing] the history of defense counsel's requests for continuances and failure to appear on the record," the trial judge indicated that he would continue the trial once again and relieved the defendant's attorneys as counsel of record. ( Ibid. ) He then advised the defendant that he " 'must be represented by attorneys that are senior trial attorneys. And you have got to have people here to represent you.

You cannot represent yourself in this matter.' " ( Ibid. ) When the defendant asked to say something in response, the trial judge prevented him from doing so without attorneys present. ( Ibid. ) Later, after the defendant suggested that he would prefer to represent himself rather than receive new counsel, the trial judge flatly stated that he was " 'not going to let him proceed pro. per....

Not in a death penalty murder trial.' " ( Id. at p. 217, 132 Cal.Rptr.2d 527, 65 P.3d 1286.) The trial court proceeded to appoint new counsel, and the defendant did not renew his Faretta motion. ( Dent , at p. 217, 132 Cal.Rptr.2d 527, 65 P.3d 1286.) On this record, we held that "the trial court's response was not only legally erroneous but also unequivocal, and foreclosed any realistic possibility defendant would perceive self-representation as an available option." ( Id. at p. 219, 132 Cal.Rptr.2d 527, 65 P.3d 1286.) Lancaster distinguished Dent on the ground that Dent "involved [an] outright denial of the right [to self-representation]." ( Lancaster , supra , 41 Cal.4th at p. 70, 58 Cal.Rptr.3d 608, 158 P.3d 157.) In Lancaster , as here, the defendant had vacillated between self-representation and the right to counsel.

After the fourth such change of heart, the court similarly admonished the defendant: " 'I do need to advise Mr. Lancaster that you cannot continue to change between representing yourself and having appointed counsel represent you. The reason for it is that we've got to move forward, and that doesn't allow us to do that. [¶] I think it's a very wise move on your part, as I said.... But having originally had an attorney, gone pro per, had an attorney, gone pro per, now you're back to an attorney, I can't let you continue to change from one to the other.

It has to be a permanent decision on your part. [¶] Even if at some point you have some disagreement with what Mr. Rothman is doing, you can't just say now I'm back pro per.

That's a decision for the court to make, and it probably would not be in your favor.' " ( Id. at p. 69, 58 Cal.Rptr.3d 608, 158 P.3d 157.) We rejected the defendant's argument that the court's comments were "a 'preemptive denial' of his Faretta right," noting that in light of "the court's protracted grappling with the logistics of providing defendant with discovery materials and access to legal resources, the court's concern with his repeated alternation between self-representation and the services of counsel was warranted." ( Lancaster , supra , 41 Cal.4th at p. 69, 58 Cal.Rptr.3d 608, 158 P.3d 157.) We held that "[t]he court's reference to the need for a 'permanent decision' ... did not entirely foreclose the possibility of defendant's future self-representation." ( Ibid. ) Rather, "it told him it would make a decision on any renewed application, though the request would probably not be viewed with favor." ( Ibid. ) The instant case is more similar to Lancaster than Dent .

In Lancaster , the court warned the defendant that " 'you cannot continue to change' " because " 'we've got to move forward,' " although the decision to request counsel was " 'wise.' " ( Lancaster , supra , 41 Cal.4th at p. 69, 58 Cal.Rptr.3d 608, 158 P.3d 157.) Here, the court said, "I'm going to hold you to this kind of change," and "it's a good change for you." When Gomez first asked to represent himself, the court had already warned Gomez that he could not "go back and forth on this" because "[t]hat's going to cause a delay in the proceedings." But, unlike in Dent , the court expressly told Gomez that "[y]ou have the right to represent yourself if you make a knowing and intelligent waiver of your right to counsel" and "[i]f you want to represent yourself, that's fine," and the court granted Gomez's initial request to proceed in propia persona.

Gomez seizes on subtle distinctions in wording to argue that while the court in Lancaster "did not entirely foreclose the possibility of defendant's future self-representation" ( Lancaster , supra , 41 Cal.4th at p. 69, 58 Cal.Rptr.3d 608, 158 P.3d 157 ), here the court told him unequivocally that future requests for self-representation would be denied.

But this misunderstands the import of Lancaster , which held that the trial court's comments, taken in context, could not be characterized as a preemptive denial of the defendant's Faretta right. ( Lancaster , at p. 69, 58 Cal.Rptr.3d 608, 158 P.3d 157.) Lancaster did not hold that had the trial court's comments been phrased in more certain terms, such comments would have amounted to reversible error.

Instead, we commented that the trial court's reference to a "permanent" decision may have been "precipitous" due to the fact that trial was not imminent, but "the impropriety was slight" and did not cause fundamental error. ( Id . at pp. 69-70, 58 Cal.Rptr.3d 608, 158 P.3d 157.) As we explained, these admonitions are generally inadvisable but also reflect "the difficulties posed by [a] defendant's intermittent assumptions of his own defense" and thus constitute an understandable "attempt to discourage defendant from perpetuating those difficulties." ( Id . at p. 70, 58 Cal.Rptr.3d 608, 158 P.3d 157.) That a trial court may directly deny a Faretta request when it is designed "to frustrate the orderly administration of justice" ( People v.

Marshall (1997) 15 Cal.4th 1, 23, 61 Cal.Rptr.2d 84, 931 P.2d 262 ) suggests that courts are not foreclosed from preemptively discouraging such requests when it identifies a pattern of vacillation that, over time, will harm the progress of trial and the defendant's ability to put on a defense. When considered in context, the trial court's statement that "this is a final change" did not "unequivocal[ly] ... foreclose[ ] any realistic possibility [Gomez] would perceive self-representation as an available option" ( Dent , supra , 30 Cal.4th at p. 219, 132 Cal.Rptr.2d 527, 65 P.3d 1286 ).

Therefore, the trial court's warning, while inadvisable in its assertion that any chance would be "final," was not erroneous. B. Trial Court's Hypothetical During Voir Dire Regarding Credibility of Accomplice Testimony During jury selection, the prosecution was interested in probing prospective jurors' feelings regarding the propriety of exchanging testimony against another for prosecutorial leniency.

Page 12 of the jury questionnaire asked: "How do you feel about the situation in which the prosecution decides not to prosecute one person in exchange for that person's testimony against another person?" The court asked follow-up questions of those who expressed hesitation or distaste for such practices, and pressed jurors to explicate their feelings in greater detail. When a juror did not understand the question, the court offered the following hypothetical as "an example of the kind of thing which [the court] think[s] makes some sense to people at least. [¶] That is say there's a bank robbery situation.

There are two people involved, one stands outside as a lookout. The other bank robber actually goes in to rob the bank, and in the process kills somebody. [¶] We've got good evidence supposedly in this hypothetical as to the person standing outside. We know that person is a lookout and can be convicted for participating in the bank robbery and is actually responsible under the law for the robbery and the killing that occurred in the bank.

But the real person that pulled the trigger is the second person, and law enforcement is more concerned about that person than the one that stood outside. [¶] Do you see a problem with the idea of granting some lenience to this person that stood outside as a lookout, saying that that person is either going to agree to a lesser penalty or perhaps even be immunized entirely in order to get that person's testimony against the actual bank robber?" Gomez argues that the trial court's attempts to elucidate the significance of the questionnaire's inquiry into accomplice testimony "improperly informed jurors that the prosecution would only grant leniency to the less culpable party involved in a crime." Although counsel did not object to this hypothetical during voir dire, Gomez argues that the relevant exchanges between the court and prospective jurors amounted to instructional error. ( People v.

Dunkle (2005) 36 Cal.4th 861, 929-930, 32 Cal.Rptr.3d 23, 116 P.3d 494 ["[W]e do not deem forfeited any claim of instructional error affecting a defendant's substantial rights."].) We disagree. The trial court's hypothetical was clearly meant to expand upon and explain the significance of the questionnaire's inquiry. To the extent that the hypothetical may have suggested that the trial court had personal confidence in the prosecutor's choice with respect to whom to prosecute, counsel could have objected. But counsel did not. Accordingly, Gomez has forfeited this claim. ( People v.

Fuiava (2012) 53 Cal.4th 622, 653, 137 Cal.Rptr.3d 147, 269 P.3d 568 ["[A] defendant may not challenge on appeal alleged shortcomings in the trial court's voir dire of the prospective jurors when the defendant, having had the opportunity to alert the trial court to the supposed problem, failed to do so."].) On the merits, the trial court did not err. By describing the underlying logic for why a prosecutor might exercise leniency with respect to one accomplice in exchange for testimony, the trial court's manifest intention was to add greater granularity to the questionnaire.

Each time the trial court engaged a prospective juror with the hypothetical, it was expressly framed in relation to page 12 of the voir dire questionnaire. The court described the hypothetical as an "example" that "makes some sense to people," suggesting that the trial court did not personally hold the views that it described. Its evident purpose was to draw out the prospective jurors' views as to the propriety of exchanging testimony for prosecutorial leniency, not to personally vouch for the prosecution's choice of defendant.

Moreover, the trial court later instructed the jury about evaluating witness credibility in the instant case, which further clarified that any views suggested by the hypothetical were irrelevant. C. Motion for Severance of Counts and Separate Trials Gomez argues that the trial court abused its discretion in denying his motion to sever his trial from his codefendant's trial and his motion to sever his charges.

Gomez claims that these alleged errors, "both alone and in combination," violated his rights to due process, a fair trial, a reliable guilt and penalty determination, and his right to be free from cruel and unusual punishment under both the federal and state Constitutions. Before trial, Gomez first moved to sever his trial for the murders of Robert Acosta and Robert Dunton from that of codefendant Arthur Grajeda.

Gomez then moved to sever his counts, seeking a joint trial on the charges arising from the Acosta and Dunton murders and the Jesus Escareno murder, and separate trials for the Xavier Salcedo robbery, the Rajendra Patel murder, and the Raul Luna murder. The trial court considered Gomez's motions together and denied them both.

After stating that it was "obvious ... that the defendants should be tried together on [the Acosta and Dunton counts]," the court found that the counts against Gomez were "tied closely together in time and to some extent in location" as well as "in the manner in which the executions took place"; the same witness would testify in the Escareno case and the Acosta and Dunton case; the robbery charges involved similar items; the Luna and Escareno homicides involved cars; and Luna's stolen cellphone was used to call Dunton's house, where Gomez occasionally stayed.

Although the court expressed concern with the number of crimes that Gomez was charged with, it ultimately concluded that the crimes "are so well tied together that ... they should be tried together." 1. Motion to Sever Trial from Codefendant's Trial We have frequently recognized the Legislature's preference for joint trials. (E.g., People v.

Souza (2012) 54 Cal.4th 90, 109, 141 Cal.Rptr.3d 419, 277 P.3d 118 ; see § 1098 ["When two or more defendants are jointly charged with any public offense ... they must be tried jointly, unless the court order[s] separate trials."].) Factors that may bear on a trial court's decision to order separate trials include " 'an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.' " ( People v.

Coffman and Marlow (2004) 34 Cal.4th 1, 40, 17 Cal.Rptr.3d 710, 96 P.3d 30, quoting People v. Massie (1967) 66 Cal.2d 899, 917, 59 Cal.Rptr. 733, 428 P.2d 869.) Severance may also be appropriate where " 'there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.' " ( People v. Lewis (2008) 43 Cal.4th 415, 452, 75 Cal.Rptr.3d 588, 181 P.3d 947, quoting Zafiro v.

United States (1993) 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317.) "If we conclude the trial court abused its discretion, reversal is required only if it is reasonably probable the defendant would have obtained a more favorable result at a separate trial." ( People v. Burney (2009) 47 Cal.4th 203, 237, 97 Cal.Rptr.3d 348, 212 P.3d 639.) But, "[e]ven if a trial court's severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the 'defendant shows that joinder actually resulted in "gross unfairness" amounting to a denial of due process.' " ( People v.

Mendoza (2000) 24 Cal.4th 130, 162, 99 Cal.Rptr.2d 485, 6 P.3d 150, quoting People v. Arias (1996) 13 Cal.4th 92, 127, 51 Cal.Rptr.2d 770, 913 P.2d 980.) Gomez argues that he should have been tried separately from Grajeda because Grajeda sought to blame the Acosta and Dunton murders on Gomez, whom Grajeda characterized as "violent, paranoid and drug crazed." But, as Gomez acknowledges, " '[a]ntagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other.' " ( People v.

Tafoya (2007) 42 Cal.4th 147, 162, 64 Cal.Rptr.3d 163, 164 P.3d 590 ( Tafoya ); see also Zafiro v. United States , supra , 506 U.S. at pp. 538-539, 113 S.Ct. 933.) And we have previously suggested that antagonistic defenses require severance only where " ' "the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both [defendants] are guilty." ' " ( People v. Carasi (2008) 44 Cal.4th 1263, 1297-1298, 82 Cal.Rptr.3d 265, 190 P.3d 616, quoting People v.

Hardy (1992) 2 Cal.4th 86, 168, 5 Cal.Rptr.2d 796, 825 P.2d 781.) Gomez does not contend that such a conflict exists here. Rather, he claims that Grajeda received an inherent "advantage" as "a 'lesser' participant" in the crime. Such an advantage, Gomez argues, necessarily "work[s] to the disadvantage of a 'greater' participant, and indeed the very existence of such advantages and disadvantages undermines the principle of individual guilt." But this argument merely homes in on one aspect of Grajeda's antagonistic defense, i.e., that Grajeda played a lesser role than Gomez in murdering Acosta and Dunton.

And " '[i]f 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. Thompson (2016) 1 Cal.5th 1043, 1081, 210 Cal.Rptr.3d 667, 384 P.3d 693.) Gomez also claims that he was prejudiced during the penalty phase because the jury knew that the prosecution had sought the death penalty for him but not for Grajeda.

We have previously rejected this argument ( Tafoya , supra , 42 Cal.4th at pp. 163-164, 64 Cal.Rptr.3d 163, 164 P.3d 590 ), and Gomez offers no reason why we should revisit our precedent here. Accordingly, we reject Gomez's claims that the trial court should have severed his trial from Grajeda's. 2. Motion to Sever Counts

Section 954 allows for the joint trial of "two or more different offenses connected together in their commission ... or two or more different offenses of the same class of crimes or offenses." Where joinder is proper under

section 954, "[t]he burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried." ( People v.

Soper (2009) 45 Cal.4th 759, 773, 89 Cal.Rptr.3d 188, 200 P.3d 816.) In determining whether a court abused its discretion in declining to sever properly joined charges, we first consider "the cross-admissibility of the evidence in hypothetical separate trials." ( Id. at p. 774, 89 Cal.Rptr.3d 188, 200 P.3d 816.) If the evidence is cross-admissible, then this "is normally sufficient to dispel any suggestion of prejudice and to justify a trial court's refusal to sever properly joined charges." ( Id. at pp. 774-775, 89 Cal.Rptr.3d 188, 200 P.3d 816.) If not, then we also consider "(1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case." ( Id. at p. 775, 89 Cal.Rptr.3d 188, 200 P.3d 816.) Moreover, "[e]ven 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.' " ( People v.

Landry (2016) 2 Cal.5th 52, 77, 211 Cal.Rptr.3d 160, 385 P.3d 327.) Gomez concedes that all of his counts were properly joined under

section 954 and that he should have been tried for the Acosta, Dunton, and Escareno murders in the same proceeding. But he contends that each of the remaining cases should have been tried separately because the evidence underlying those cases was not cross-admissible; the Acosta, Dunton, and Escareno murders were particularly inflammatory; the evidence linking Gomez to the Luna and Patel murders was weaker than the evidence linking him to the other crimes; and the Luna murder did not initially involve a capital crime, whereas the other murders did.

In denying Gomez's motion for discretionary severance, the trial court noted that a shotgun was used in the Acosta, Dunton, Escareno, and Luna murders; Witness No. 1 was a witness to the Acosta, Dunton, and Escareno murders; and Luna's cell phone was used to call Dunton's house, where "Gomez was at least a part time resident." The trial court was also aware that the prosecution planned to tie the Salcedo robbery to its broader theory that "Gomez was ripping off dope dealers in the Harbor area." Even if cross-admissibility alone did not justify the trial court's denial of Gomez's severance motion, the balance of the remaining factors does not show that the trial court abused its discretion. (See People v.

Simon (2016) 1 Cal.5th 98, 123, 204 Cal.Rptr.3d 380, 375 P.3d 1 ( Simon ) ["Although cross-admissibility of evidence is often an independently sufficient condition justifying a trial court's denial of severance, it is not a necessary one."].) First, neither the Acosta and Dunton double homicide nor the Escareno homicide was more inflammatory than the other crimes. Although evidence of gang membership can be particularly inflammatory (see, e.g., People v.

Williams (1997) 16 Cal.4th 153, 193, 66 Cal.Rptr.2d 123, 940 P.2d 710 ) and the prosecution's theory of the Acosta and Dunton murders was that they were gang related, we do not agree that the jury would have been more inflamed by that crime than the murder of Patel, who appeared to be unknown to Gomez, or the murder of Luna, who was murdered at the home that he shared with his family.

And although the Salcedo robbery did not involve a murder, "the animating concern underlying this factor is not merely whether evidence from one offense is repulsive," but " ' "whether strong evidence of a lesser but inflammatory crime might be used to bolster a weak prosecution case' on another crime." ' " ( Simon , at p. 124, 204 Cal.Rptr.3d 380, 375 P.3d 1.) The Salcedo robbery does not raise such a concern because, as Gomez acknowledges, the trial court was aware that the victim's testimony would be offered in that case. Second, the Luna and Patel cases were not so weak as to risk prejudicial joinder.

Although the other cases may have been supported by eyewitness testimony, more substantial forensic evidence, or both, "a mere imbalance in the evidence between the joined crimes does not signal a risk that one charge will be prejudicially bolstered." ( People v. Johnson (2015) 61 Cal.4th 734, 752, 190 Cal.Rptr.3d 536, 353 P.3d 266.) And the trial court was aware that substantial evidence linked Gomez to the Luna and Patel murders, including evidence showing that Gomez was near Luna's home around the time of his murder and that Gomez had possession of Patel's jewelry and car.

Third, although the Luna murder was not initially charged as a capital crime, this factor does not carry substantial weight in favor of finding prejudice. Even if the Luna murder had been tried separately, Gomez still would have faced the death penalty based on the other murders.

Thus, joining Gomez's charges "neither converted the entire matter into a capital case nor bolstered the possibility of [Gomez] receiving a death sentence." ( Simon , supra , 1 Cal.5th at p. 128, 204 Cal.Rptr.3d 380, 375 P.3d 1.) We therefore conclude that the trial court did not abuse its discretion in denying Gomez's motion for four separate trials. Moreover, upon reviewing "events after the court's ruling," we do not find that "joinder actually resulted in 'gross unfairness' amounting to a denial of [Gomez's] constitutional right to fair trial or due process of law." ( People v.

Merriman (2014) 60 Cal.4th 1, 46, 177 Cal.Rptr.3d 1, 332 P.3d 1187.) Despite the trial's relative length and complexity, and even if the prosecution's closing arguments occasionally "encouraged the jury to aggregate the evidence," the record does not suggest that the jury was unable to decide each count separately as it was specifically instructed to do. Indeed, although an "error in denying severance cannot be saved by the fact that the jury was unable to agree on a verdict as to [improperly joined charges]" ( People v.

Smallwood (1986) 42 Cal.3d 415, 433, 228 Cal.Rptr. 913, 722 P.2d 197 ), the fact that the jury acquitted Gomez of the charge that he robbed Luna and could not reach a verdict on the Escareno charges does tend to show that "the jury was capable of, and did, differentiate among [Gomez's] crimes" ( People v. Jones (2013) 57 Cal.4th 899, 927, 161 Cal.Rptr.3d 295, 306 P.3d 1136 ; see Simon , supra , 1 Cal.5th at p. 130, 204 Cal.Rptr.3d 380, 375 P.3d 1 ). Accordingly, we are not convinced it was " 'reasonably probable that the jury was influenced [by the joinder] in its verdict of guilt.' " ( People v.

Merriman , supra , 60 Cal.4th at p. 49, 177 Cal.Rptr.3d 1, 332 P.3d 1187.) Nor are we convinced by Gomez's unsupported claim that his right to a reliable penalty phase determination was violated. III. GUILT PHASE ISSUES A. Sufficiency of the Evidence 1. The Luna Murder Gomez argues that the evidence was insufficient to convict him of the murder of Raul Luna. In his view, the evidence at best showed that two people were present in Raul Luna's front yard when he was murdered but did not show Gomez shot Luna.

"When the sufficiency of the evidence to support a conviction is challenged on appeal, we review the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ( People v. Elliott (2012) 53 Cal.4th 535, 585, 137 Cal.Rptr.3d 59, 269 P.3d 494 ( Elliott ).) Our review must "presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." ( People v.

Manibusan (2013) 58 Cal.4th 40, 87, 165 Cal.Rptr.3d 1, 314 P.3d 1.) Even where, as here, the evidence of guilt is largely circumstantial, our task is not to resolve credibility issues or evidentiary conflicts, nor is it to inquire whether the evidence might " 'be reasonably reconciled with the defendant's innocence.' " ( Id . at p. 92, 165 Cal.Rptr.3d 1, 314 P.3d 1 ; see People v. Maury (2003) 30 Cal.4th 342, 403, 133 Cal.Rptr.2d 561, 68 P.3d 1.) The relevant inquiry is whether, in light of all the evidence, a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. ( People v.

Towler (1982) 31 Cal.3d 105,

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