The PEOPLE, Plaintiff and Respondent, v. Jeffrey Scott YOUNG, Defendant and Appellant., 250 Cal. Rptr. 3d 192

Opinion of the Court by Kruger, J. Defendant Jeffrey Scott Young was convicted of the first degree murders of Teresa Perez and Jack Reynolds ( Pen. Code, § 187, subd. (a) ), the attempted murder of Daniel Maman ( id. , §§ 187, subd. (a), 664 ), and the carjacking of Jim Gagarin (id. , § 215, subd. (a)).

The jury found true allegations that defendant had personally used a firearm (all counts; id. , §§ 12022.5, subd. (a)(1), (a)(2), 12022.53, subd. (b)); that defendant had personally and intentionally discharged a firearm (the first degree murders and attempted murder; id. , § 12022.53, subd. (c)); and that the firearm discharge caused death (the first degree murders; id. , § 12022.53, subd. (d)).

The jury also found true the special circumstance allegations that the murders were committed during a robbery (id. , §§ 190.2, subd. (a)(17), 211), and that defendant had been convicted of multiple murders in the same proceeding (id. , § 190.2, subd. (a)(3)). The jury was unable to reach a verdict as to penalty, and the trial court declared a mistrial. After a penalty retrial, the jury fixed the penalty at death, and the trial court entered a judgment of death. This appeal is automatic. ( Cal. Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).) We affirm the judgment as to guilt.

But we find the trial court erred at the penalty retrial by permitting the prosecution to make improper use of inflammatory character evidence for purposes unrelated to any legitimate issue in the proceeding. Having carefully reviewed the record, we conclude the error was prejudicial. We therefore reverse the judgment as to the sentence of death and remand the matter for a new penalty determination. I. BACKGROUND A. Guilt Phase On July 18, 1999, defendant and two other men robbed a Five Star Park, Shuttle & Fly ("Five Star") parking lot near the San Diego International Airport.

The three robbers were aided by a former Five Star employee, James Torkelson, who planned the robbery and assisted in it by pretending to be on duty. During the robbery, the robbers shot and killed Five Star employees Teresa Perez and Jack Reynolds. Then, while fleeing the scene, the robbers shot at bystander Daniel Maman and stole the car of a second bystander, Jim Gagarin, at gunpoint. Although the case initially went cold, subsequent investigation revealed the identities of the perpetrators. In 2003, defendant was jointly charged with one of the other robbers, David Raynoha, but defendant was tried alone.

Defendant did not contest his participation in the robbery or the carjacking, but argued that he did not fire the shots that killed Perez and Reynolds. 1. Prosecution Case Around 12:30 a.m. on July 18, 1999, Kendrick Bowman began a shift in the toll booth at the Five Star parking lot, which was located at the intersection of Sassafras Street and Pacific Highway. Bowman relieved fellow employee Perez, whom he saw empty the cash drawer and head to the Five Star temporary office in a nearby trailer. Shortly after he began his shift, Bowman encountered Torkelson.

Bowman was surprised by Torkelson's presence; he thought Torkelson, who had worked as a security guard at the parking lot, had been fired, and Torkelson was atypically early for his shift. Bowman also noticed Torkelson heading for a remote side of the parking lot, which differed from the usual starting point for Torkelson's rounds. Immediately after Torkelson disappeared from Bowman's line of sight, someone approached Bowman from behind and said, "Hey, you." Bowman turned around and found a man pointing a gun at him.

Although the gunman wore nylon stockings over his head, Bowman observed that the gunman was a White man in his twenties with a fair complexion and short, reddish-blonde hair. The gunman ordered Bowman to lay facedown on the floor of the toll booth. Bowman used his hand-held radio to send a covert distress signal to the security guard, but received no response. Unbeknownst to Bowman, all of the security guards had left after Torkelson told each guard that he was there to relieve him or her. Bowman then complied with the gunman's demand.

The gunman stepped down on Bowman's back, emptied the cash drawer, and expressed disappointment at its contents. The gunman remained in the toll booth and Bowman asked him why he did not leave. The gunman responded, "I can't leave. I'm waiting for my ride." Bowman heard the door to the bathroom near the trailer open, and the gunman yelled at someone to go into the trailer. Bowman assumed the gunman was yelling at Perez, since she had been heading to the trailer. Bowman then heard one gunshot, followed by a series of shots after a brief pause. The gunman standing over him then fled toward Pacific Highway.

Bowman stood up and saw the gunman clearly; he also saw two other men running in the same direction. Bowman then called 911. Maman, who had plans to spend the night with Perez, arrived at the Five Star parking lot a few minutes after 12:30 a.m. to pick her up. Maman was driving a green van. As Maman was parking the van near the trailer, he saw two men come out of the trailer. One of the men aimed a revolver at him and started firing. Maman immediately drove away. Maman described the gunman as being approximately five feet seven inches tall, and wearing a stocking over his head.

Around the same time, Gagarin was retrieving his car from Park & Ride, a parking lot across Pacific Highway from the Five Star parking lot. He stopped at the Park & Ride exit booth, which was manned by Michael Mackey. Gagarin and Mackey first heard noises coming from the Five Star parking lot that Mackey dismissed as firecrackers, followed by noises that sounded more like gunshots. Gagarin and Mackey then saw a dark van leave the Five Star parking lot, followed by three men running towards the Park & Ride parking lot from the Five Star parking lot.

The first man to arrive at the Park & Ride parking lot was armed and ran past the exit booth. The second and third men fired shots behind them before running up to the exit booth. Gagarin and Mackey both testified that the men were White and wore dark clothing, dark caps and nylon stockings over their faces. The shorter of the two men pointed a gun at Mackey and demanded the car, while the taller man pointed a silver-colored gun at Gagarin. Both Gagarin and Mackey raised their hands in surrender, and Gagarin told the assailants to take his car. The assailants then exited the lot, heading east on Sassafras Street.

Just as they left, the dark van that Gagarin and Mackey had seen driving away from the Five Star parking lot pulled into the Park & Ride parking lot. The driver asked if they were all right and told them that there had been shots fired at the Five Star parking lot and he believed that the shots were aimed at him. Mackey then called 911. At the preliminary hearing, Mackey "felt 75 percent sure" that defendant was the shorter gunman. San Diego Police Department officers arrived within minutes of Bowman's call.

Before they arrived, Bowman had entered the trailer and discovered the bodies of Perez and Reynolds facedown on the ground with multiple gunshot wounds to the back of their heads. Bowman did not touch anything, having recognized that Perez and Reynolds were dead. When the officers arrived, they checked both victims for signs of life but found none. A homicide investigation team from the San Diego Police Department also responded to the scene. Members of the team discovered that the telephone lines and computer power cord in the trailer had been cut.

They found two bullet casings fired by a Glock nine-millimeter semiautomatic firearm: one near Perez's arms and another by Reynolds's head. They also recovered four fired bullets: (1) a .38-caliber revolver round fired from inside the trailer, leaving a bullet hole in the trailer wall; (2) a .38-caliber revolver round near Perez's body, and (3) two Glock rounds near Reynolds's body. They also found bullet holes in the carpet under the victims' heads, which indicated that the victims had been shot while lying facedown. There were no signs of a struggle, and the safe was open.

Perez's car was found inside the Five Star parking lot. A nine-millimeter Glock cartridge was found on the ground outside the car, and a Glock bullet, which was used to shatter the passenger window, was found lodged in the driver's seat. A bank deposit bag containing $1,512 in cash and a deposit slip for a $2,457 deposit were recovered in the front seat. A roll of duct tape was also found. A strand of hair found on the tape was later tested; testing revealed the DNA belonged to Max Anderson, who would later be identified as one of the robbers.

Gagarin's car was discovered less than a mile from the Five Star parking lot. A nine-millimeter bullet casing was found on the ground outside the car, and a Glock containing 12 live nine-millimeter cartridges was found on the front passenger seat. Ballistics testing confirmed that all of the nine-millimeter casings from the trailer matched the magazine in Gagarin's car. Dr. Christopher Swalwell examined the bodies at the scene on the night of the robbery and performed autopsies the next morning. Dr. Swalwell concluded that both victims died from gunshot wounds to the back of the head.

Perez had two gunshot wounds, one on each side of her head, caused by a .357 magnum or a .38-caliber revolver. Reynolds had three gunshot wounds, one in his right arm and two to his head, caused by a nine-millimeter Glock handgun. Based on the nature of the wounds and position of the bodies, Dr. Swalwell concluded that both Perez and Reynolds had been shot in the back of the head while lying facedown with their arms over their heads. And based on a distinct star-shaped tearing around the entry point of each gunshot wound and the presence of soot within each wound, Dr.

Swalwell also concluded that the gunshot wounds were contact wounds, meaning that the barrel of the gun was pressed against the victims' skin at the time of discharge. Steve Simmonds, the operations manager of the Five Star parking lot, testified that he initially believed that approximately $3,400 was taken in the robbery. But with the bank deposit bag recovered from Perez's car, Simmonds estimated that the total monetary loss was approximately $2,000. Simmonds also testified that it was company policy that all employees were to comply and not resist in the event of a robbery.

Detective Stephen McDonald testified that the case went cold for three years until he contacted Paula Daleo, Torkelson's girlfriend at the time of the robbery. Daleo disclosed two incidents that connected defendant to the robbery. First, the night before the robbery, Torkelson brought four men back to their home: a man known to her as "Li'l Jeff," Raynoha, and two others. Daleo did not know Li'l Jeff's last name, but recognized him from frequent hangouts with Torkelson.

Li'l Jeff also had two distinct tattoos: one on his arm that said "Nigger Thrasher" and another on his neck that depicted the hammer of the Norse god Thor. After the robbery, Torkelson and Li'l Jeff went to Tempe, Arizona to stay with a man named Jason Getscher. At trial, Daleo identified defendant as Li'l Jeff. The second incident occurred about a year after the robbery, when Daleo attended a party in Li'l Jeff's home in June 2000. Daleo recalled a general discussion of the robbery, in which Torkelson was described as the organizer of the robbery, and Li'l Jeff and Raynoha were described as participants.

Someone said the killings during the robbery took place because "Jeff got trigger happy." Li'l Jeff responded, "No, I did not," but did not deny involvement with the robbery. Based on the information obtained from Daleo, Detective McDonald contacted Getscher. At the time, Getscher was serving a term in Arizona state prison for forgery. Getscher explained that he met defendant during an earlier prison term in 1996. Because he was 10 years defendant's senior, Getscher sought to protect defendant inside prison and keep him out of trouble after they were released.

Defendant, Anderson, and Torkelson stayed in Getscher's house immediately before the robbery. During their stay, defendant, Anderson, and Torkelson discussed robbing a business where Torkelson worked as a security guard. Getscher was present when the three men discussed their plans and left to commit the robbery and when they all returned to Getscher's home. Torkelson repeatedly warned defendant not to say anything. On a subsequent occasion, defendant told Getscher that the robbery had not gone well and that defendant had shot someone. Getscher also saw defendant attempting to lace his boots with red laces.

Getscher explained that he and defendant were skinheads in prison, and that in skinhead culture "red laces would indicate that you have drawn the blood of an enemy." Defendant insisted that he had earned the laces, but Getscher disagreed because defendant had "killed an innocent victim and that he didn't kill an enemy that was trying to get him." Getscher also noticed a cut on defendant's hand, which defendant explained was a burn from putting his hand over the barrel of the gun to silence the gunshots.

Getscher agreed to call defendant from prison and get him to talk about the robbery while Detective McDonald recorded the conversation. This arrangement resulted in two recorded conversations. In the first conversation, which took place on October 28, 2002, Getscher referred to the "stupid little stunt" and "escapade" that defendant, "James," and "Max" had participated in two to three years earlier. Defendant did not deny his involvement.

In the second conversation, which took place on November 26, 2002, Getscher told defendant that he was building a small team for a bank heist and would allow defendant to join so long as defendant told him "what happened before," so he could be sure "it ain't happenin' again." Getscher also indicated that whoever "did it" on the last job would not be participating in the bank heist. Defendant identified the participants in the Five Star parking lot robbery as himself, Torkelson, and Anderson.

Defendant described the robbery as poorly planned by Torkelson, but defendant also admitted that he had been affected by nerves and adrenaline. Defendant explained that the three men had "covered up" to hide their identities, but forgot to bring materials to tie up the victims.

As the robbery got out of hand, "it happened." Getscher asked who started the gunfire, and defendant responded, "I, I was the first one that fired." Defendant explained that panic and adrenaline led him to open fire and he was "thinkin' they're gonna get away, fuck, I don't want to go down." Getscher asked if Anderson had shot the woman during the robbery. Defendant responded, "Nah, that was me." Defendant explained that "everything was just going wrong [and] the next thing I know I just did it. I don't know. It just kind of happened." Anderson fired his weapon after defendant fired his.

As defendant and Anderson left the trailer, defendant also fired at someone in a car and at some man in a "box thing" in the parking lot because he thought one of them had seen him. Defendant explained that the escape plan fell apart when the key broke in the ignition of the getaway vehicle, and everyone scattered. The robbery yielded very little because "most of the stuff got left behind." Getscher and defendant also discussed the red laces: Defendant told Getscher that he understood why he did not earn the laces during the robbery and assured Getscher that he would not overreact in a subsequent heist.

After these recorded calls, defendant was arrested. While in custody, Detective McDonald played a portion of the second recorded call for defendant. When asked if he wanted to tell his side of the story, defendant responded, "You heard it all," and "I ain't gonna talk about it no more." 2. Defense Case Defendant did not call any witnesses and rested on the record. In closing argument, defense counsel conceded that defendant was in the trailer during the robbery and participated in carjacking Gagarin. Defense counsel argued that defendant did not shoot Perez and that Anderson instead shot both Perez and Reynolds.

Defense counsel acknowledged that defendant had claimed responsibility for shooting Perez in his second recorded conversation with Getscher, but argued that defendant was merely posturing to impress Getscher. Further, counsel argued, this conversation revealed that defendant acted out of panic, nerves, and adrenaline, and that he lacked the intent to kill. B. Penalty Phase At the first penalty phase trial, the jury had been unable to reach a verdict and the trial court declared a mistrial on November 10, 2005. The penalty phase retrial began several months later, on June 19, 2006. 1.

Prosecution's Case in Aggravation The prosecution called witnesses from the guilt phase to describe the robbery, defendant's role in the robbery murders, and the forensic evidence. The prosecution also presented evidence of defendant's attitude following the robbery murders. Getscher testified about defendant's attempt to put red laces in his boots as a mark of having "dr[awn] the blood of an enemy." Getscher took the laces away, telling defendant that he had not earned them because the laces were only for killing non-White "enem[ies]." Defendant responded, "Oh, I earned them. ...

It was a Mexican." The prosecution presented victim impact evidence from family, friends, and coworkers of Perez and Reynolds, who described how the victims' deaths affected them. The prosecution presented evidence of defendant's participation in three prior crimes: (1) an attempted theft at an Arizona bank in July 1999; (2) an attack on inmate Robert Harger while defendant was incarcerated during trial; and (3) an assault on Lee Alvin committed during a robbery of an Arizona convenience store in 1992. 2.

Defense's Case in Mitigation Members of defendant's family, including his grandmother, aunts, uncle, and parents, testified about hardships defendant had encountered growing up. Defendant's parents separated when he was one year old, and defendant had no contact with his father until he was around 12 years old. Defendant struggled with learning and was placed in special education classes. When defendant was nine years old, he was sexually abused by his older cousin. Defendant's father began giving him alcohol as an infant and later introduced him to drugs as an adolescent.

Defendant spent some time in an adolescent psychiatric hospital and a drug rehabilitation center. Defendant was a nonviolent person and a loving and attentive father to his son and stepdaughter. Defendant accepted responsibility for the crimes he committed in Arizona.

After the trial court ruled that this evidence of defendant's good character opened the door for the prosecution to introduce evidence of defendant's racist tattoos and affiliations in rebuttal, some family members testified they were "confused" by his racist tattoos because, to their knowledge, he was "never really racist." Defendant obtained a GED while in prison in Arizona and subsequently learned welding to support his family. Defendant called two acquaintances who knew him in a professional capacity; they testified that defendant was a hard worker who had no problems with coworkers of other races.

The founding director of the Center for Children of Incarcerated Parents testified about the ability of parents who are incarcerated to have a meaningful role in their children's lives. Aaron Beek, an inmate who participated in the attack on inmate Harger when defendant was awaiting trial, attested to being the only one who physically attacked Harger; defendant, Beek testified, was not present during the assault.

But Beek acknowledged authoring a letter in which he said he pleaded guilty to the assault to "take the charges off ... [his] comrade Jeff." At trial Beek explained, "I don't feel comfortable letting [defendant] get charged with something I did." On cross-examination, the prosecution presented Beek with another letter confiscated by jail officials and signed in defendant's name that bragged about being a member of the "American Front" and the "shot-caller" for the Caucasian prisoners in jail. Beek claimed to have authored this letter as well.

An officer who investigated the attack on Harger testified that although Harger identified defendant as being present during his assault, Harger misidentified defendant's hair color and name. A family therapist characterized defendant as a "follower" who is "highly susceptible to the influence of others." The therapist noted that the sexual molestation that defendant suffered, as well as his early exposure to alcohol, may have affected his development and led to later alcohol and drug abuse problems.

The therapist testified that defendant became a skinhead for two reasons: (1) to achieve a sense of belonging as he felt like an outsider in his family, and (2) as a means of self-preservation in prison. In response to questioning about what values might have attracted defendant to "the skinhead philosophy," the therapist testified that the values "incorporat[e] not only the negative ones that we associate with it, but also ones that have to do with honor, respect, loyalty, fidelity to one's group, a sort of misguided protection of the common man ... and a lot of pride." 3.

The Prosecution's Rebuttal On rebuttal, the prosecution presented evidence in accordance with the trial court's ruling that testimony by defendant's grandmother supporting his good character could be rebutted with evidence of defendant's racist tattoos and affiliations. Deputies investigating the assault on Harger testified that the day after the assault they found a Celtic rune above defendant's cell door and a swastika outside his cell, both apparently drawn in blood.

Police officers who had interacted with defendant in 1999 testified about defendant's tattoos, which included the phrase "Nigger Thrasher," a swastika, and the number "88." Joanna Mendelson, the director of investigative research at the Southern California branch of the Anti-Defamation League, testified about the origins and ideology of skinheads generally and the American Front and Aryan Nations groups specifically.

Mendelson explained that skinheads adhere to a religion known as Odinism, which provides skinheads in prison the "opportunity to congregate" in order to "conduct criminal activity and violence." Mendelson reviewed defendant's tattoos and symbols on letters he had written and explained their meaning within skinhead culture, identifying several as "inherently racist symbol[s]." 4. The Defense's Surrebuttal Two Hispanic inmates housed in the same jail as defendant testified that defendant never expressed any support for racial violence and got along with inmates of other races.

A sheriff's department sergeant who investigated the assault on Harger testified that an informant identified Beek and an inmate named Britain as the "shot-caller[s]" for the Caucasian inmates. The informant witnessed Britain sharpening the shanks later recovered from the attack on Harger, Beek looking nervous outside his own jail cell when the attack occurred, and Beek washing his hands after the attack. II. DISCUSSION A. Guilt Phase Claims 1. Admission of Statement Given in Response to Police Questioning After defendant was arrested, he was interviewed by Detective McDonald.

Deferring defendant's repeated requests for "his rights," Detective McDonald instead began the interrogation by playing the tape of defendant's conversation with Getscher, in which defendant described the circumstances of the robbery and admitted to fatally shooting Perez. Then, after reading defendant his rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ( Miranda ), Detective McDonald asked if defendant wished to tell his side of the story. Defendant responded, "You heard it all," before asking for an attorney and terminating the interrogation.

Defendant argues this statement should have been excluded under the Fifth and Fourteenth Amendments to the federal Constitution, as well as under state evidence law, and that the failure to exclude the statement calls for reversal. We find no reversible error. a. Background Detective McDonald interviewed defendant on March 20, 2003.

After confirming defendant's name and address, Detective McDonald explained that defendant was in custody "regarding a 1999 murder case we revisited" and asked if defendant knew "James Torkelson." Defendant expressed uncertainty, and Detective McDonald responded that "[Torkelson]'s up in prison right now. He's looking at thirty years and he's looking for deals and he gave us some information regarding a murder case in 1999.

It happened at [a] Park and Ride, Airport Park and Ride." Defendant confirmed he knew Torkelson as "Woody." Detective McDonald explained that Torkelson and another individual had given law enforcement "some information," and so "things are starting to fall apart on this whole operation you guys were ... involved in." Detective McDonald further explained that Torkelson was "doing thirty years" and "wants a deal," but that "[w]e're not sure we want to deal with him." The conversation then continued as follows: "MCDONALD: ... But we want to hear, this would be your opportunity to tell us your side of the story.

We do have other evidence too. We have a tape here that I could play for you if you want to hear that. But I just want to know would you like to tell us your side of the story what happened at this lot? "YOUNG: After I get my rights. "MCDONALD: But only if this, yeah, I'm just letting you know if you, I can read your rights. "YOUNG: (Unintelligible), that's, one step at a time. "MCDONALD: Okay. Like to go that route? "YOUNG: It's getting kind of weird. Cause, yeah, I know about that. Woody told me about it, you know, cause he's working security there. "MCDONALD: Okay. "YOUNG: Yeah, I'd like my rights.

"MCDONALD: Okay. Let me uh "YOUNG: If you don't mind. I don't want to be, make like a dick or anything or make anything "MCDONALD: No, but would you like to listen to a tape first? "YOUNG: Uh "MCDONALD: I won't say nothing. I won't ask you any questions. Would you like to listen after? "YOUNG: Yeah. "MCDONALD: Okay. And then after we're done, I'm not gonna ask you any questions, I'll play a tape and then uh, after the tape, I'll advise you of your rights and we can go on. "YOUNG: Okay." Detective McDonald then attempted to play the tape but encountered technical difficulties.

After twice leaving to retrieve new batteries, Detective McDonald successfully played defendant a portion of the second recorded call between defendant and Getscher, which took place on November 26, 2002. In the recording, defendant admitted to participating in the robbery and to shooting Perez. Detective McDonald asked defendant if he wanted to hear the remainder of the recorded call, but defendant stated, "Nah, I heard about enough." Detective McDonald then spoke about the importance of teaching one's children to take responsibility for mistakes. Defendant agreed that he wanted his son to be raised that way.

Detective McDonald reiterated that "sometimes we have to face up to our responsibilities of things that happen." The conversation then continued as follows: "MCDONALD: ... A lot of people like want favors. But, uhm, so, let me, you know. "YOUNG: So you're sure those guys don't like Woody. So you "MCDONALD: No, there's, there's people that don't like Woody at all. "YOUNG: Yeah. "MCDONALD: No, he doesn't, there's not too many friends. I don't know why, uh ... no one likes, I can't find anyone that really likes him. But uh, now you can hear the tape in front of you. "YOUNG: Nah-hu.

He's basically my, he's basically my bitch boy. "MCDONALD: Yeah. "YOUNG: Fucken be driving to go see girls. Cause I don't have a car. "MCDONALD: Yeah. Let me advise you of your rights and see if you'd like to continue on. Cause basically we got everything on, on tape but we'd just like some details from you. Okay. And I appreciate your honestly [sic ] and it'd be something at least you can tell your son, that hey, I made a mistake and I faced up to it and you should too. If you do something wrong, you should tell your mother or something or just face up to your responsibilities.

I mean, that's something you got to think of as an adult, as a parent. Uhm, all right? "YOUNG: What am I looking at? Death? "MCDONALD: Let me, let me advise you of your rights okay. My job, my job is "YOUNG: (Unintelligible). "MCDONALD: Get evidence "YOUNG: (Unintelligible)." Detective McDonald then read defendant his Miranda rights, and defendant indicated that he understood each one.

Immediately after, Detective McDonald asked defendant, "Do you want to tell us your side of the story on this?" Defendant responded, "You heard it all." Detective McDonald explained that "there's a lot of holes" because "it wasn't me asking you these questions" in the recording. Defendant then responded, "I ain't gonna talk about it no more." Detective McDonald expressed "respect" for defendant's decision not to speak further about the incident, but noted that "there's other people that are spilling names out left and right." Detective McDonald encouraged defendant to "[j]ust say, I did this, I did that.

That's that all you have to do through it, okay." Defendant acknowledged that others were disclosing information, but responded, "I'm gonna have to ask for an attorney." Defendant explained his decision to request an attorney, and Detective McDonald responded, "We're, we're done." Detective McDonald asked no further questions, and the conversation ended shortly thereafter.

Before trial, the parties disputed whether the prosecution was entitled to use defendant's statement "You heard it all." In a written suppression motion, defendant argued that he "had asserted his rights and this statement comes in violation of his Miranda rights and 5th Amendment rights." He also argued the statement was irrelevant, unduly confusing, and cumulative under Evidence Code

section 352. At a hearing on the motion, defense counsel further contended that Detective McDonald: (1) deliberately pressured defendant into listening to the tape of the second recorded conversation despite defendant's invocation of his rights, and (2) improperly held out the possibility of a deal for defendant.

The prosecutor responded that defendant had expressed a willingness to speak with detectives when Detective McDonald asked, "[W]ould you like to tell us your side of the story, what happened?" and defendant responded, "After I get my rights." The prosecutor acknowledged that "there's some concern with using pre- Miranda statements," but explained that "[i]t's not the People's intention to use any of [those] statements ...." The prosecutor argued that the single statement at issue "came after a full advisal of the Miranda advisements," and that there was no "heavy-handedness" in defendant's interrogation.

The trial court denied the motion. The trial court explained that "[t]here are a series of statements in [the interrogation] that would have made this a far more interesting and esoteric hearing, but the People's decision not to use those obviates the need for that." The court "d[id] not see a Miranda problem" with using the statement "You've heard it all." b.

Discussion "To safeguard a suspect's Fifth Amendment privilege against self-incrimination from the 'inherently compelling pressures' of custodial interrogation ( Miranda , supra , 384 U.S. at p. 467 [86 S.Ct. 1602] ), the high court adopted a set of prophylactic measures requiring law enforcement officers to advise an accused of his right to remain silent and to have counsel present prior to any custodial interrogation." ( People v. Jackson (2016) 1 Cal.5th 269, 338-339, 205 Cal.Rptr.3d 386, 376 P.3d 528.) "Failure to administer Miranda warnings creates a presumption of compulsion.

Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda ." ( Oregon v. Elstad (1985) 470 U.S. 298, 307, 105 S.Ct. 1285, 84 L.Ed.2d 222 ( Elstad ).) " Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.

That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response ...." ( Rhode Island v.

Innis (1980) 446 U.S. 291, 300-301, 100 S.Ct. 1682, 64 L.Ed.2d 297.) After Miranda warnings are administered, " 'if the suspect indicates that he wishes to remain silent, the interrogation must cease. [Citation.] Similarly, if the suspect states that he wants an attorney, the interrogation must cease until an attorney is present. [Citation.] Critically, however, a suspect can waive these rights. [Citation.] To establish a valid waiver, the State must show that the waiver was knowing, intelligent, and voluntary under the "high standar[d] of proof for the waiver of constitutional rights [set forth in] Johnson v.

Zerbst [1938] 304 U.S. 458 [58 S.Ct. 1019, 82 L.Ed. 1461] ...." ' " ( People v. Williams (2010) 49 Cal.4th 405, 425, 111 Cal.Rptr.3d 589, 233 P.3d 1000.) "On review of the trial court's ruling, 'we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.' " ( People v.

Case (2018) 5 Cal.5th 1, 20, 233 Cal.Rptr.3d 439, 418 P.3d 360.) Defendant argues, and the Attorney General concedes, that Detective McDonald violated Miranda by failing to advise defendant of his rights at the outset of the interrogation. But none of defendant's unwarned statements was admitted at trial. Our inquiry here instead focuses on the prosecution's use of a statement elicited after defendant received the required advisements. Case law makes clear that an initial Miranda violation does not necessarily require the exclusion of statements following proper advisements.

Indeed, we have explained, "[e]ven when a first statement is taken in the absence of proper advisements and is incriminating ," a subsequent voluntary confession made after proper advisements "is not tainted simply because it was procured after a Miranda violation." ( People v. Williams , supra , 49 Cal.4th at p. 448, 111 Cal.Rptr.3d 589, 233 P.3d 1000.) " 'The relevant inquiry' " is whether the statement was " 'voluntarily made' " following proper warnings. ( Ibid ., quoting Elstad , supra , 470 U.S. at p. 318, 105 S.Ct. 1285.) Defendant makes essentially two arguments for excluding his postwarning statement.

As an initial matter, he argues that the statement was involuntary because Detective McDonald employed improper psychological tactics to induce him to waive his right to remain silent. In particular, defendant argues that after deferring defendant's request for "his rights," Detective McDonald impermissibly attempted to soften him up by suggesting that he might be able to make a deal and by playing on his responsibility as a father. Defendant relies on People v. Honeycutt (1977) 20 Cal.3d 150, 160, 141 Cal.Rptr. 698, 570 P.2d 1050 for this "softening-up" argument, but Honeycutt does not help him.

In Honeycutt , we held that a Miranda waiver obtained "from a clever softening-up of a defendant through disparagement of the victim and ingratiating conversation" was involuntary, and the subsequent confession was therefore inadmissible. ( Ibid. ) But this case lacks what we have described as "the two salient features of Honeycutt ." ( People v.

Scott (2011) 52 Cal.4th 452, 478, 129 Cal.Rptr.3d 91, 257 P.3d 703.) In Honeycutt , the interrogating officer had a long-standing acquaintance with the suspect and sought to ingratiate himself by engaging in a "half-hour unrecorded discussion" of "unrelated past events and former acquaintances" before turning to the topic at hand. ( Honeycutt , at p. 158, 141 Cal.Rptr. 698, 570 P.2d 1050.) The record in this case, which does not reveal any past relationship between Detective McDonald and defendant, also does not reveal any similarly improper efforts at "ingratiating conversation" concerning unrelated topics or "disparagement of the victim[s]." ( Id. at p. 160, 141 Cal.Rptr. 698, 570 P.2d 1050 ; accord, People v.

Gurule (2002) 28 Cal.4th 557, 602, 123 Cal.Rptr.2d 345, 51 P.3d 224 ; People v. Kelly (1990) 51 Cal.3d 931, 954, 275 Cal.Rptr. 160, 800 P.2d 516.) Nor do we otherwise perceive any impropriety in Detective McDonald's supposed suggestion that defendant might obtain a deal or the exhortation that defendant set a good example for his son.

Detective McDonald informed defendant that Torkelson and another individual were seeking deals in exchange for their cooperation, but Detective McDonald neither expressly nor impliedly promised defendant a deal should he confess before Torkelson or the other individual. (See People v.

Holloway (2004) 33 Cal.4th 96, 115, 14 Cal.Rptr.3d 212, 91 P.3d 164 [" 'mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary' "].) Nor can we say that Detective McDonald's reference to setting a good example for his son was designed to overbear defendant's free will by exploiting a particular psychological vulnerability; certainly the reference appeared to have no such effect. (See People v.

Kelly , supra , 51 Cal.3d at p. 952, 275 Cal.Rptr. 160, 800 P.2d 516 [asking the suspect whether he was aware that he had violated his " 'Christian upbringing' " and asking how his mother was going to feel were not impermissibly coercive].) Defendant's second and more substantial argument concerns Detective McDonald's delay in giving the required Miranda advisements.

Defendant focuses on the fact that Detective McDonald put off defendant's request for "his rights." Defendant argues the delay requires suppression of his statement because it constituted part of an impermissible "two-step" or "question-first" tactic of the sort disapproved in Missouri v. Seibert (2004) 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643.

In Seibert , the defendant was arrested and "questioned ... without Miranda warnings for 30 to 40 minutes," which resulted in the defendant's confession. ( Id. at pp. 604-605, 124 S.Ct. 2601 (plur. opn.).) The defendant was then given a 20-minute break, after which the interrogating officer "turned on a tape recorder, gave [defendant] the Miranda warnings, and obtained a signed waiver of rights from her." ( Id. at p. 605, 124 S.Ct. 2601.) The interrogating officer then confronted the defendant with her prewarning statements, and the defendant reaffirmed the substance of those statements. ( Id. at p. 606, 124 S.Ct. 2601.) At a later suppression hearing, the interrogating officer "testified that he made a 'conscious decision' to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question 'until I get the answer that she's already provided once.' " ( Id. at pp. 605-606, 124 S.Ct. 2601.) The high court concluded in Seibert that the statements so procured were inadmissible, though no single rationale commanded a majority of the court.

"A plurality of the Court reasoned that '[u]pon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again.' [Citation.] JUSTICE KENNEDY concurred in the judgment, noting he 'would apply a narrower test applicable only in the infrequent case ... in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.' " ( Bobby v.

Dixon (2011) 565 U.S. 23, 30-31, 132 S.Ct. 26, 181 L.Ed.2d 328 (per curiam).) The Attorney General argues that the interrogation technique at issue here differs in relevant ways from the one condemned in Seibert : Rather than engage in sustained prewarning interrogation, Detective McDonald advised defendant he would read him his rights after he played the tape of his conversation with Getscher.

Whether this distinction makes a difference-and more to the point, whether this or any other part of the exchange preceding the giving of Miranda warnings affected the voluntariness of defendant's later, postwarning statement-is an issue we need not decide because any error in introducing the challenged statement would be harmless in any event. The prosecution argued the statement in question-"You heard it all"-was an adoptive admission of the contents of the second recorded conversation between defendant and Getscher.

Its probative value was thus to bolster the veracity of defendant's confessions made therein, including his confession that he shot Perez in the course of the robbery. But the veracity of the tape itself, which was properly admitted at trial, was never contested. The substance of this recorded conversation provided decisive evidence of defendant's guilt: Defendant identified himself as one of the participants in the robbery, admitted that he shot Perez and fired at two other witnesses in the parking lot, and discussed the red laces he had donned to take credit for the murder.

Defense counsel did argue that defendant was merely "posturing" in this conversation. But no reasonable juror would have believed this explanation. Getscher had initiated the conversation under the guise of recruiting defendant for a bank heist and demanded that defendant explain how the Five Star parking lot robbery had gone so poorly. Defendant admitted to Getscher that the robbery had been botched and described the many mistakes that he and his accomplices made. These mistakes included forgetting materials to tie up the victims, shooting Perez and Reynolds out of panic, and leaving behind most of the money.

No reasonable juror could conclude from defendant's candid description of his own errors that defendant was "trying to put himself in the best light" in this conversation. Thus, if there was any constitutional error in admitting the statement "You heard it all," the error was harmless beyond a reasonable doubt. ( Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.) There is no merit in defendant's alternative argument that the statement should have been excluded under state evidence law. ( Evid.

Code, §§ 210, 350, 352.) Defendant contends that the challenged statement was inadmissible because it was "ambiguous and equivocal" and "only an acknowledgment of the prosecution's evidence." Defendant is correct that the statement is ambiguous, but the ambiguity does not render it inadmissible; it is enough that a reasonable juror could understand it, as the prosecution argued, to suggest that the contents of the second recorded conversation between defendant and Getscher were accurate.

Defendant's contention that the challenged statement was ambiguous and equivocal "concerns only the weight of this evidence, not its admissibility, which does not require complete unambiguity." ( People v. Ochoa (2001) 26 Cal.4th 398, 438, 110 Cal.Rptr.2d 324, 28 P.3d 78.) Defendant asserts that the challenged statement was also unduly prejudicial, and therefore should have been excluded under Evidence Code

section 352, because the statement "severely compromised" his argument that defendant was posturing in the conversation with Getscher and that Getscher was lying or confabulating. But " 'prejudice' " for purposes of Evidence Code

section 352 "does not mean damage to a party's case that flows from relevant, probative evidence." ( People v. Cortez (2016) 63 Cal.4th 101, 128, 201 Cal.Rptr.3d 846, 369 P.3d 521.) "Rather, it means the tendency of evidence to evoke an emotional bias against a party because of extraneous factors unrelated to the issues." ( Ibid . ) The introduction of defendant's statement created no risk of evoking such a bias. The trial court therefore did not abuse its discretion in declining to exclude the challenged statement as unduly prejudicial.

Of course, even if the trial court had erred, the admission of the statement was harmless for the reasons already explained. 2. Admission of Evidence of Racist Tattoos and Association with White Supremacist Groups Defendant argues that the trial court committed prejudicial error by admitting evidence during the guilt phase that defendant had tattoos suggesting racist beliefs and that he was affiliated with White supremacist groups. We find no reversible error. a.

Background Before trial, defendant filed a motion in limine to exclude all references to defendant's "affiliation/membership with any White supremacy organization" as well as his "distinctive, racially identified/offensive tattoos." Defendant argued that this evidence was both irrelevant and improper character evidence with "highly inflammatory impact." The prosecution responded that two of defendant's tattoos-one featuring the phrase "Nigger Thrasher" and another depicting Thor's hammer-were relevant to identification, because Daleo, who had observed defendant making admissions about the Five Star parking lot robbery and killings at a party in June 2000, identified defendant by those tattoos.

The prosecution also argued that defendant's use of red laces, and its meaning within skinhead culture, was relevant to demonstrate defendant's consciousness of guilt. The prosecution contended that the prejudice from both categories of evidence did not outweigh their probative value. At a hearing on the motion, the trial court tentatively granted defendant's motion as to evidence of defendant's membership in White supremacist groups.

The prosecution reiterated that the red laces were relevant as an admission of guilt, and pointed out that some evidence of defendant's White supremacist beliefs would be necessary to explain the "very significant meaning" that red laces had to him. The trial court opined that the red laces "create[ ] a tremendous [ Evidence Code section] 352 argument for the defense." Because the prosecution had "a lot of evidence that [defendant] is the shooter," the trial court found there was "not much" probative value to this evidence.

The trial court clarified, however, that it was not ruling on the admissibility of the red laces and would do so closer to trial. With respect to the tattoos, the trial court found that their offensive nature was "not enough" to outweigh their relevance "to bolster the credibility of the witnesses" who identified defendant by those tattoos. The trial court offered defense counsel two options: stipulating that defendant had the tattoos, or allowing the prosecution witnesses to use photographs of the tattoos to identify defendant.

Defense counsel asked the trial court if it would entertain a stipulation that defendant "has certain tattoos which the witnesses have recognized, ... without specification of the tattoos and without showing them to the jury." The trial court indicated that it would entertain any stipulation agreed upon by the parties as well as any proposed curative instructions from the defense. Before trial, defense counsel reiterated its objection to photographs of defendant's "Nigger Thrasher" and Thor's hammer tattoos prepared by the prosecution as a trial exhibit.

Defense counsel offered to stipulate that defendant had distinctive tattoos through which Daleo identified him, but the prosecution did not respond to this offer. The trial court ruled that the photographs were admissible. On direct examination, Daleo testified that the man she knew as "Li'l Jeff" had a tattoo reading "Nigger Thrasher" on his upper arm and a tattoo depicting Thor's hammer on his Adam's apple. Daleo identified defendant as "Li'l Jeff," and also identified the photographs as accurate depictions of defendant's tattoos.

The photographs were admitted and published to the jury over defendant's continued objection. During a break in Daleo's testimony, the prosecution asked for "clarification" of the trial court's ruling on evidence of defendant's membership in White supremacist groups. The trial court expressed the view that this evidence was still irrelevant. Defense counsel responded that the relevance of this evidence would depend on Daleo's testimony, particularly if Daleo mentioned the red laces.

The prosecution indicated that it did not plan to elicit any testimony about the red laces from Daleo, although that evidence "may become relevant later." The trial court responded that the red laces were "likely going to become relevant in a number of ways," and stated, "I believe we have already resolved [t]hat was going to come in." The trial court also noted (without further elaboration) that defendant's "alleged status as a skinhead ... may become pertinent" if defendant suggested that his statements in the second recorded conversation with Getscher had been mere posturing.

Defense counsel then requested permission to question Daleo about defendant's use of red laces, even if the prosecution did not, to "find out exactly what her particular biases are, how she knew this particular group." The trial court granted this request. When direct examination resumed, Daleo testified that both Torkelson and defendant were skinheads.

Torkelson was involved with "several groups that would talk about activism for the White power movement; rallying things together, sometimes political; getting involved to make a difference for the movement." Daleo, defendant, and Raynoha would often attend meetings for these groups with Torkelson. The prosecution did not ask Daleo about the red laces. On cross-examination, defense counsel asked Daleo if she wore red laces to the party in June 2000 where defendant admitted his involvement in the Five Star parking lot robbery and killings.

Daleo denied doing so, but admitted that she and other skinheads occasionally wore red laces for fashion reasons. On redirect examination, the prosecution asked Daleo if red laces had a specific meaning for defendant's skinhead group. Daleo responded that it could mean "hav[ing] shed blood for the cause." Daleo also confirmed that "earning your laces" was a type of "initiation" for skinhead groups that "might mean you have spilled the blood of somebody." Getscher testified that he and defendant were "both skinheads, good buddies, [who] kind of looked after each other" while in prison together in 1996.

Getscher explained that "[r]ed laces would indicate that you have drawn the blood of an enemy. I guess a proud standing in the skinhead culture." Getscher testified that after the Five Star parking lot robbery, defendant told him that "things went really bad" and that defendant had shot someone. Defendant purchased red laces on his way back to Getscher's house from the Five Star parking lot robbery and tried to lace his boots with them.

Getscher took the red laces from defendant and "explained to him that he did not earn his red laces" because "he killed an innocent victim and ... he didn't kill an enemy that was trying to get him." b. Discussion On appeal, defendant renews his argument that evidence of his racist tattoos and his use of red laces should have been excluded because they were irrelevant and because their prejudicial impact substantially outweighed their probative value.

Defendant argues that introduction of evidence of his "Nigger Thrasher" tattoo, in particular, was unnecessary for Daleo's identification because Daleo was acquainted with defendant and could have identified him by his face alone. Defendant also contends that the red laces had little probative value in light of the prosecution's other evidence establishing that defendant shot Perez.

Given that neither the robbery nor the killings were motivated by racial animus, defendant argues, the primary effect of admitting this evidence was simply to call the jury's attention to his inflammatory White supremacist views in violation of Evidence Code

section 352. Under the Evidence Code, all relevant evidence is admissible unless prohibited by statute. ( Evid. Code, § 351.) " 'Relevant evidence is defined in Evidence Code

section 210 as evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." The test of relevance is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive.' " ( People v. Bivert (2011) 52 Cal.4th 96, 116-117, 127 Cal.Rptr.3d 261, 254 P.3d 300.) But under Evidence Code

section 352, the trial court retains the discretion to exclude relevant evidence if "its probative value is substantially outweighed by the probability that its admission will" either "necessitate undue consumption of time" or "create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." "We review a trial court's decision to admit or exclude evidence 'for abuse of discretion, and [the ruling] will not be disturbed unless there is a showing that the trial court acted in an arbitrary, capricious, or absurd manner resulting in a miscarriage of justice.' [Citation.] When evidence is erroneously admitted, we do not reverse a conviction unless it is reasonably probable that a result more favorable to the defendant would have occurred absent the error." ( People v.

Powell (2018) 5 Cal.5th 921, 951, 236 Cal.Rptr.3d 316, 422 P.3d 973.) Although defendant contends otherwise, his tattoos were clearly relevant because the tattoos had a tendency in reason to prove defendant's identity as "Li'l Jeff," the man Daleo heard discussing his involvement in the robbery murders at a party in June 2000. (See People v. Medina (1995) 11 Cal.4th 694, 749, 47 Cal.Rptr.2d 165, 906 P.2d 2.) The red laces were likewise relevant because defendant's efforts to claim what he understood to be a badge of honor for the killing tended to demonstrate consciousness of guilt. (See People v.

Ochoa , supra , 26 Cal.4th at pp. 437-438, 110 Cal.Rptr.2d 324, 28 P.3d 78.) But as the trial court recognized, the evidence did carry with it the potential to evoke an emotional response against the defendant unrelated to the issues before the jury. We need not address the propriety of the trial court's ultimate decision to admit the evidence under Evidence Code

section 352, however, because any error in its admission at the guilt phase was harmless in any event. The evidence of defendant's guilt was overwhelming. The jury at trial heard recordings in which defendant himself confessed to planning and committing the robbery with Torkelson and Anderson, shooting the female victim so that she would not be able to identify him, and shooting at a male victim in the parking lot. There is no reasonable probability that the jurors' negative reaction to defendant's racist tattoos, associations, and beliefs would have affected their evaluation of this evidence. ( People v.

Watson (1956) 46 Cal.2d 818, 836-837, 299 P.2d 243.) Here, as in Powell , "[c]oncerns about the possible 'inflammatory impact' of this type of evidence [citation] were ... alleviated by the nature of the evidence of defendant's guilt." ( People v. Powell , supra , 5 Cal.5th at p. 952, 236 Cal.Rptr.3d 316, 422 P.3d 973.) Defendant also claims for the first time on appeal that the admission of evidence of his racist tattoos, affiliations, and beliefs at the guilt phase violated the First Amendment to the federal Constitution.

Defendant did not object on this ground before the trial court, and the claim is therefore forfeited. ( People v. Fuiava (2012) 53 Cal.4th 622, 689, 137 Cal.Rptr.3d 147, 269 P.3d 568.) But even if the claim had been preserved, "the relevance of the challenged evidence defeats his constitutional objection." ( People v. Monterroso (2004) 34 Cal.4th 743, 773, 22 Cal.Rptr.3d 1, 101 P.3d 956 ; accord, People v. Quartermain (1997) 16 Cal.4th 600, 629, 66 Cal.Rptr.2d 609, 941 P.2d 788 ; see Dawson v.

Delaware (1992) 503 U.S. 159, 164, 112 S.Ct. 1093, 117 L.Ed.2d 309 ( Dawson ) ["evidence of racial intolerance" has been held admissible "where such evidence [i]s relevant to the issues involved"].) And even if we were to assume constitutional error, the overwhelming evidence of defendant's guilt would render the error harmless beyond a reasonable doubt. ( Chapman v. California , supra , 386 U.S. at p. 24, 87 S.Ct. 824.) 3.

Prosecutor's Closing Argument Defendant contends that the prosecutor committed misconduct in closing argument by vouching for the victims' feelings and urging the jury to view the crime through the eyes of the victims. We find no grounds for reversal in the prosecutor's closing argument.

Defendant's claim of misconduct concerns the following portion of the prosecutor's closing argument to the jury: "We know that Teresa Perez and Jack Reynolds were completely compliant with the robbers' demands [and that] they laid down with their faces to the carpet, ultimately, I'm certain, very fearful ...." Defense counsel objected to the phrase "I'm certain" as "a form of vouching." In response, the trial court opined that counsel "should at no time ever use the word 'I' in a closing argument," but explained that this was "more of a personal preference of the Court than it is some rule of law which says that you can't do that." The trial court concluded that the prosecutor's use of the first person "wasn't in terms of vouching" and was instead conveying "what [the prosecutor] believed the inferences would have shown." The trial court found no misconduct.

"A prosecutor's conduct violates a defendant's constitutional rights when the behavior comprises a pattern of conduct so egregious that it infects ' "the trial with unfairness as to make the resulting conviction a denial of due process." [Citation.]' [Citation.] The focus of the inquiry is on the effect of the prosecutor's action on the defendant, not on the intent or bad faith of the prosecutor. [Citation.] Conduct that does not render a trial fundamentally unfair is error under state law only when it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " ( People v.

Mendoza (2007) 42 Cal.4th 686, 700, 68 Cal.Rptr.3d 274, 171 P.3d 2.) " 'A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.] Also, a claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury.' " ( People v.

Tully (2012) 54 Cal.4th 952, 1010, 145 Cal.Rptr.3d 146, 282 P.3d 173.) It is misconduct for a prosecutor to refer to facts not in evidence. ( People v. Hill (1998) 17 Cal.4th 800, 828, 72 Cal.Rptr.2d 656, 952 P.2d 673.) It is also misconduct for the prosecutor at the guilt phase of a criminal trial to "appeal to the jury to view the crime through the eyes of the victim." ( People v.

Mendoza , supra , 42 Cal.4th at p. 704, 68 Cal.Rptr.3d 274, 171 P.3d 2.) Here, we agree with the trial court that the prosecutor did not improperly refer to facts not in evidence by arguing the victims were, "I'm certain, very fearful" before they were fatally shot. The prosecution presented uncontroverted evidence that Perez and Reynolds were shot while lying facedown on the ground with their hands behind their heads, that the barrel of the gun was pressed against their heads when the shots were fired and that there were no signs of a struggle.

Despite the prosecutor's use of the first person, the prosecutor cited this evidence to ask the jury to draw the logical inference that Perez and Reynolds felt fear. ( People v. Lewis (1990) 50 Cal.3d 262, 283, 266 Cal.Rptr. 834, 786 P.2d 892 [explaining that a prosecutor "has the right to fully state his views as to what the evidence shows and to urge whatever conclusions he deems proper"].) Nor do we discern prejudicial misconduct in the prosecutor's invitation to draw this limited inference.

The prosecutor did not ask the jury to reach this conclusion by putting themselves in the victims' shoes, nor did the prosecutor otherwise make an improper appeal to the jurors' sympathy for the victims. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1344, 192 Cal.Rptr.3d 195, 355 P.3d 384 [" 'an appeal for sympathy for the victim is out of place during an objective determination of guilt' "].) There is, in any event, no reasonable probability that the prosecutor's fleeting remark had any effect on the jury, particularly given the overwhelming evidence of defendant's guilt. (See, e.g., ibid. ; People v.

Young (2005) 34 Cal.4th 1149, 1189-1190, 24 Cal.Rptr.3d 112, 105 P.3d 487.) 4. Use of Courtroom Restraints During Trial Defendant argues that the trial court violated his rights under the federal Constitution's Sixth, Eighth, and Fourteenth Amendments by ordering him restrained with a leg chain at trial. The claim lacks merit. a. Background Before trial, defendant filed a motion requesting permission to appear in court without any physical restraints attached to his person. The prosecution filed a response agreeing with defendant that there was currently no manifest need for physical restraints.

At a hearing, however, the trial court stated it was "vehemently opposed" to defendant's motion. The trial court explained that defendant and Raynoha, who at the time was still a codefendant, "had numerous problems while in custody involving other inmates and threats and weapons in other cases. To me, they are-they pose a security threat.

They have a problem with authority." Defense counsel argued that defendant "ha[d] not been involved in any real altercations" and downplayed the allegations as "not that serious." Defense counsel conceded that a shiv was found in defendant's possession, but argued that defendant used it to run a piercing and tattoo business in jail.

The trial court conceded that "there's nothing to indicate that [defendant] ha[s] acted in any way except respectfully to the court proceedings." But the trial court reiterated that its "ruling is based upon what I perceive to be conduct that's taken place, allegations of conduct, some I think that can easily be proven, that would lead me to the conclusion that they are a potential danger with regard to authority." The trial court thus ordered that defendant be restrained with a leg chain attached to the floor that would leave defendant's hands free and permit him to stand and sit.

The trial court also had the defense table draped so the jury would not see the leg chain. b. Discussion "Under California law, 'a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury's presence, unless there is a showing of a manifest need for such restraints.' [Citation.] Similarly, the federal 'Constitution forbids the use of visible shackles ... unless that use is "justified by an essential state interest"-such as the interest in courtroom security-specific to the defendant on trial.' " ( People v.

Virgil (2011) 51 Cal.4th 1210, 1270, 126 Cal.Rptr.3d 465, 253 P.3d 553.) We have held that a showing of manifest need can be made with " 'evidence that the defendant has threatened jail deputies, possessed weapons in custody, threatened or assaulted other inmates, and/or engaged in violent outbursts in court. [Citations.] [¶] The trial court's decision to physically restrain a defendant cannot be based on rumor or innuendo. [Citation.] However, a formal evidentiary hearing is not required. [Citation.]' [Citation.] The trial court's determination is reviewed for abuse of discretion." ( People v.

Williams (2015) 61 Cal.4th 1244, 1259, 192 Cal.Rptr.3d 266, 355 P.3d 444.) The record does not reveal the specific basis for the trial court's conclusion that defendant had "numerous problems while in custody involving other inmates and threats and weapons in other cases." The trial court did not provide any identifying details about these incidents nor indicate the source of this knowledge.

But the Attorney General cites evidence supporting the trial court's assessment: (1) defendant had been found with multiple weapons while in custody awaiting trial; (2) defendant was required to wear green clothing in custody, which denotes a "high risk" inmate who requires more supervision; (3) defendant was placed in administrative segregation multiple times for disruptive behavior; and (4) defendant participated in an attack on fellow inmate Robert Harger.

As defendant correctly points out, much of the evidence the Attorney General cites was presented during the second penalty phase trial, and it is not clear how much of this evidence was before the trial court at the time it issued its ruling. But the trial court's reference to defendant's "numerous problems" demonstrates the trial court was aware of at least some of the incidents the Attorney General describes, and defense counsel, too, acknowledged that defendant was found in possession of a shiv while in custody awaiting trial.

Based on the record before us, we cannot say the trial court abused its discretion in concluding there was a manifest need for restraints. But even if the trial court had abused its discretion in ordering that defendant be restrained by a hidden leg chain, defendant cannot demonstrate prejudice. " '[W]e have consistently held that courtroom shackling, even if error, [is] harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendant's right to testify or participate in his defense.' " ( People v.

Williams , supra , 61 Cal.4th at p. 1259, 192 Cal.Rptr.3d 266, 355 P.3d 444.) There is no evidence that the jury saw defendant's leg chain in the courtroom. Defendant argues that the jurors were nevertheless aware that defendant was restrained in the courtroom because they were instructed with CALJIC No. 1.04, which states: "The fact that physical restraints have been placed on defendant [ ] must not be considered by you for any purpose. They are not evidence of guilt, and must not be considered by you as any evidence that [he] is more likely to be guilty than not guilty.

You must not speculate as to why the restraints have been used. In determining the issues in this case, disregard that matter entirely." The prosecution initially requested CALJIC No. 1.04 as a precautionary measure in case any juror had seen defendant's restraints.

The trial court then expressed an "inclination [ ] not to give" CALJIC No. 1.04 because it didn't "think there's anything that indicated that [defendant]'s been restrained to [the jury]." In response, defense counsel informed the trial court that defendant "tells me that some of the jurors did see him when he was brought up one day" in restraints, apparently outside the courtroom. The trial court then decided that "in an abundance of caution," the jury would be instructed with CALJIC No. 1.04.

The trial court explained that "it's probably a good idea to give it" in light of defense counsel's disclosure, and the jurors "certainly must conclude that Mr. Young is in custody considering the type of charges he's facing." Defense counsel responded, "Right." Because he did not object, defendant has forfeited any challenge to the instruction on appeal. And even if we assume one or more jurors saw defendant in shackles outside the courtroom, " '[s]uch brief observations have generally been recognized as not constituting prejudicial error.' " ( People v.

Rich (1998) 45 Cal.3d 1036, 1084, 248 Cal.Rptr. 510, 755 P.2d 960.) Defendant also argues that the trial court's decision to impose a leg restraint prejudiced him by "coerc[ing]" him into waiving his presence for jury selection, thereby impairing his ability to participate in his defense. Defendant's claim does not accurately reflect the record. Defendant waived his presence only for an initial stage of jury selection during which the juror questionnaire was handed out and prospective jurors were excused for hardship.

Because of the large jury pool needed for this case, this initial stage of jury selection was scheduled to take place in the jury lounge. The trial court explained that it would have limited means of concealing defendant's leg restraint in the jury lounge, and the sheriff's department was also likely to assign "an inordinate number" of officers to the jury lounge.

The trial court suggested that defendant consider waiving his presence because these circumstances "may leave an impression [with the prospective jurors] that your clients don't want to start out with in this trial." But the trial court expressly stated that it would "adhere to [defendant's] wishes" and presume defendant's attendance unless informed otherwise. Defendant chose not to attend. The trial court indicated that defendant would be present for the questioning of individual jurors, and there is nothing in the record that suggests that defendant did not attend this subsequent stage of jury selection.

Defendant does not explain how his absence at an initial, nonsubstantive stage of jury selection impaired his ability to participate in his defense. 5. Exclusion of Third Party Culpability Evidence Defendant argues that the trial court erred by barring him from presenting evidence suggesting that victim Reynolds himself had participated in the Five Star parking lot robbery. Defendant contends the trial court's ruling violated his rights under the Sixth and Fourteenth Amendments to the federal Constitution. The claim lacks merit. a.

Background Before trial, the prosecution filed a motion in limine to exclude evidence of Reynolds's criminal history, including facts and charges relating to three cases in the 1970's and 1980, as well as his alleged attendance at Aryan Nations (or similar) meetings. The prosecution argued that evidence of the former was irrelevant and improper character evidence, and that evidence of the latter was irrelevant and speculative.

Defendant opposed the motion in limine on the ground that this evidence was relevant to the possibility that the Five Star parking lot robbery was "an inside job." Without further elaboration, the trial court granted the "motion to exclude the victim's criminal record." Defendant later requested clarification as to whether the trial court's ruling excluded all evidence suggesting that Reynolds was a participant in the Five Star parking lot robbery.

At a hearing on the motion, defendant made the following offer of proof: (1) at the time of his death, Reynolds had only $6 in his bank account and a number of pawn tickets;

(2) Reynolds promised his mother that he would send her to the Cayman Islands;

(3) Reynolds had racist beliefs and had a skinhead tattoo;

(4) Reynolds was seen talking to Torkelson the evening of the robbery;

(5) Reynolds instructed Five Star employees not to resist in the event of a robbery; and (6) sometime in the 1970's or in 1980, Reynolds had been convicted of a crime involving "a male and female being put on the ground, bound, and held." The trial court found this proffer to be "not nearly enough to make [the] suggestion" that Reynolds was a participant in the robbery, and ruled that, "absent something more," the evidence was inadmissible. b.

Discussion " '[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code

section 352.' " ( People v. McWhorter (2009) 47 Cal.4th 318, 367-368, 97 Cal.Rptr.3d 412, 212 P.3d 692.) In other words, courts treat third party culpability evidence " 'like any other evidence: if relevant it is admissible,' " provided it is not otherwise rendered inadmissible by statute, and " 'unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion.' " ( People v. Lewis (2001) 26 Cal.4th 334, 372, 110 Cal.Rptr.2d 272, 28 P.3d 34.) We review the trial court's ruling for abuse of discretion. ( People v.

Prince (2007) 40 Cal.4th 1179, 1242, 57 Cal.Rptr.3d 543, 156 P.3d 1015.) We perceive no abuse of discretion in the trial court's decision to exclude evidence that one of the victims of the robbery murders may have started out as a participant in the crime. The parties dispute whether some of the proffered evidence-specifically, Reynolds's criminal history, alleged affiliation with racist organizations, and alleged racist beliefs-was inadmissible character evidence under Evidence Code

section 1101, subdivision (a), which generally renders such evidence inadmissible to prove a person's conduct on a particular occasion. But even assuming this evidence was not barred by any other statutory provision, the trial court reasonably concluded that any probative value was outweighed by the prejudicial impact, the consumption of time, and potential for confusing the issues. (See Evid. Code, § 352 ; People v. Lewis , supra , 26 Cal.4th at p. 372, 110 Cal.Rptr.2d 272, 28 P.3d 34.) Defendant's proffered evidence could lead only to speculative inferences concerning Reynolds's participation in the crime.

Reynolds's prior convictions were remote in time, and defendant offered scant basis for concluding that the Five Star robbery fit a "pattern" established by Reynolds's past misconduct. (See People v. Lewis , supra , 26 Cal.4th at p. 373, 110 Cal.Rptr.2d 272, 28 P.3d 34.) Defendant offered no evidence connecting Reynolds to the perpetrators of the Five Star robbery, other than the conjecture that they must have been acquainted by virtue of shared racist affiliations and beliefs. Reynolds's actions on the day of the robbery had little, if any, probative value.

Although Reynolds had instructed Five Star employees not to resist in the event of a robbery, the evidence established that it was, in fact, Five Star company policy for employees to comply in the event of a robbery. And although Reynolds was seen speaking with Torkelson on the night of the crime, the evidence showed that Torkelson interacted with many individuals that night while pretending to be an on-duty security guard.

Finally, evidence that Reynolds had spoken of taking his mother on a vacation does little to suggest that Reynolds intended to finance the vacation by means of the armed robbery that resulted in his death. What is more, the inferences defendant would draw from this evidence are unsupported by any other evidence in the record. Reynolds was a victim of the robbery murders; like Perez, he was shot in the back of the head while lying facedown with his arms over his head. The circumstances of the shooting do not suggest willing participation in the crime.

Neither Daleo nor Getscher, who initially identified the perpetrators during Detective McDonald's investigation, identified Reynolds as a participant in the robbery. Nor did defendant identify Reynolds as a participant in the robbery in either of the two recorded calls with Getscher, including the one in which he admitted to personally shooting Perez. Having concluded this speculative third party culpability evidence was properly excluded, we also reject defendant's claim that his constitutional rights were violated by the exclusion. (See People v.

Lewis , supra , 26 Cal.4th at pp. 373-374, 110 Cal.Rptr.2d 272, 28 P.3d 34.) 6. Cumulative Error Defendant contends that the cumulative effect of the guilt phase errors requires reversal of his convictions. (See People v. Hill , supra , 17 Cal.4th at p. 844, 72 Cal.Rptr.2d 656, 952 P.2d 673.) We have assumed two unrelated errors-the admission of defendant's statement "You heard it all" and the admission of certain evidence of his racist tattoos, affiliations, and beliefs-and concluded that neither error was prejudicial, given the strength of the evidence of defendant's guilt.

We reach the same conclusion after considering the errors together. We accordingly reject defendant's claim of guilt phase cumulative error. B. Penalty Phase Claims 1. Retrial of the Penalty Phase Penal Code

section 190.4, subdivision (

b) directs a trial court to empanel a second jury to decide the penalty in a capital case if the first jury deadlocks, as it had in defendant's case. ( Pen.

Code, § 190.4, subd. (b).) Defendant argues that mandatory retrial of the penalty phase violates the Eighth Amendment to the federal Constitution because such a retrial violates evolving standards of decency, as demonstrated by the differing practices of other states, and "sends a message to the community that the individual moral judgment of each juror is not trusted or valued." Defendant also raises several more specific challenges to the conduct of the penalty retrial.

We have repeatedly rejected the Eighth Amendment claim defendant now raises, holding that "a penalty retrial following jury deadlock does not violate the constitutional proscription against double jeopardy or cruel and unusual punishment." ( People v. Jackson , supra , 1 Cal.5th at p. 356, 205 Cal.Rptr.3d 386, 376 P.3d 528, citing People v. Taylor (2010) 48 Cal.4th 574, 634, 108 Cal.Rptr.3d 87, 229 P.3d 12 ; accord, People v. Peoples (2016) 62 Cal.4th 718, 751, 198 Cal.Rptr.3d 365, 365 P.3d 230 ; People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 311, 128 Cal.Rptr.3d 417, 256 P.3d 543 ; see also People v.

Trinh (2014) 59 Cal.4th 216, 237-238, 173 Cal.Rptr.3d 1, 326 P.3d 939 [reaching the same conclusion as to a second penalty retrial held pursuant to Pen.

Code, § 190, subd. (b), which provides trial courts with the discretion to empanel additional juries in the event of additional deadlocks].) In so holding, we have responded to arguments that California is out of step with other jurisdictions that mandate a sentence of life without parole if the penalty jury deadlocks, reasoning that the fact that California stands "among the 'handful' of states that allows a penalty retrial following jury deadlock on penalty does not, in and of itself, establish a violation of the Eighth Amendment or 'evolving standards of decency that mark the progress of a maturing society.' " ( Taylor , supra , at p. 634, 108 Cal.Rptr.3d 87, 229 P.3d 12.) Defendant argues we should reconsider this precedent because our prior cases have failed to acknowledge just how unique California's practices are; California, he notes, is one of only two states that requires, rather than merely permitting, an initial retrial of the penalty phase when the first jury deadlocks. ( Pen.

Code, § 190.4, subd. (b) ; see also Ariz. Rev. Stat. § 13-752(J).) Defendant does not, however, attempt to explain why the difference between mandatory retrial and permissive retrial is constitutionally significant, and identifies no authority that has so held. Defendant's argument does not persuade us to revisit the holdin

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