THE PEOPLE, Plaintiff and Respondent, v. SERGIO OCHOA, Defendant and Appellant, 26 Cal. 4th 398

Opinion BROWN, J. A jury convicted defendant Sergio Ochoa of two counts of first degree murder (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated) and one count of attempted second degree robbery (§§ 664, 211). The jury also found true the allegations that a principal was armed with respect to all three offenses (§ 12022, subd. (a)(1)) and that defendant personally used a firearm with respect to one of the murders and the attempted robbery (§ 12022.5).

Having found true the special circumstance allegations that defendant committed multiple murders (§ 190.2, subd. (a)(3)), and that a murder was committed while defendant was engaged in robbery (§ 190.2, subd. (a)(17)(A)), the jury set the penalty at death. The trial court denied defendant’s motion to modify the sentence (§ 190.4, subd. (e)). This appeal is automatic. (Cal. Const., art. VI, § 11; Pen. Code, § 1239). For the reasons stated below, we conclude the judgment should be affirmed in its entirety. I. Facts A. Guilt Phase 1. The People’s Case

a) The gang rivalry In late 1989 and early 1990, defendant’s 18th Street Gang was in a “war” with a rival gang, Crazy Riders. On December 15, 1989, defendant was walking with “Polio” near Pico Boulevard and Fourth. Avenue in Los Angeles when a white Toyota with license plate No. “2MTV878” pulled up beside them. A Crazy Riders member named “Pompis” exited the car and shot three times at defendant and Polio. Defendant and Polio ran to Fifth Avenue, where they were shot at twice more.

The next day, the Crazy Riders Gang shot Luis Magallenes, an 18th Street Gang member nicknamed “Bandit.” Later that same day, an 18th Street Gang member nicknamed “Flacko” fatally shot Crazy Rider Nelson Mauricio Donis to retaliate for the shooting of Magallenes. On January 3, 1990, at approximately 5:00 p.m., 18th Street Gang members Jacinto Alonzo, and Walter Aguilar and his brother, Oscar Quijada, were driving near 12th Avenue and Venice Boulevard. The white Toyota pulled up and Pompis shot Quijada in the forehead. He was taken to the hospital and survived. ■

b) The Navarette murder At approximately 8:00 p.m. on January 3, 1990, Aguilar and Alonzo were assembled at Pico Boulevard and Wilton Avenue with fellow gang members Juan Velasquez and Mauricio Soriano. Defendant, driving a red truck, arrived and stated he had just seen the Crazy Riders’ white Toyota on Pico Boulevard. Aguilar, Alonzo, Velasquez and Soriano entered defendant’s truck. Aguilar brought a double-barreled shotgun with him, and the 18th Street Gang members set off to find the Crazy Riders. Defendant drove eastward on Pico Boulevard.

Defendant stated, “There they are.” Defendant accelerated and changed lanes so his truck was adjacent to the Toyota, on its left. Two shots were fired from the shotgun. After the shooting, defendant turned the truck and drove northbound on Kingsley Drive. The white car in question was not the Toyota belonging to the Crazy Riders, but a Datsun driven by decedent Pedro Navarette, whose passenger at the time was his brother, Rudolfo Rivera. Navarette was not a rival gang member.

The beginning of Navarette’s license plate number read “2MTY.” Navarette fell on the steering wheel after the second shot was fired; the car drove onto the sidewalk and crashed into a wall. Rivera heard the truck passengers’ voices after the second shot, but he could not understand what they were saying. The cause of death was a shotgun wound to the head. Defendant was first questioned on January 22, 1990.

He stated he had heard nothing about a shooting at Pico Boulevard and Kingsley Drive of a car with a license plate beginning with “2MTY.” On February 13, 1990, defendant signed a statement in which he admitted he drove the truck during the shooting. Defendant stated Velasquez requested a ride to Normandie Avenue and defendant obliged; Soriano, Alonzo and Aguilar also traveled as passengers. A car resembling the one that belonged to the Crazy Riders was also driving eastbound on Pico Boulevard. Defendant suddenly heard a loud bang, and the car window cracked.

Defendant stated he looked in his mirror and saw Velasquez holding a shotgun. Defendant had not formerly known that Velasquez was armed. Detective Michael Bercham described defendant as a “hard-core” gang member. Defendant had 18th Street Gang tattoos all over his body. After his arrest on January 21, and interview on January 22, 1990, he added a tattoo over his eye that depicted the number “187,” the California Penal Code

section proscribing murder.

c) The Castro attempted robbery and murder On the evening of January 20, 1990, defendant, Soriano, Velasquez, and fellow 18th Street Gang members Oscar Montes and David Lozano were assembled at Pico Boulevard and Wilton Avenue. Defendant said, “Let’s go do a jack.” When Lozano stated he did not want to go, defendant told Lozano to “do something for the neighborhood,” meaning the 18th Street Gang. Lozano agreed to participate. Lozano drove the other 18th Street Gang members in his car past a white Trans Am that was parked on St. Andrews Place between Fifth and Sixth Streets. Soriano commented it was a nice car.

Defendant agreed it “was a nice car to get.” Lozano parked the car. His four passengers exited the car and approached the Trans Am. Jose Castro was sitting in his Trans Am. Defendant and Soriano went to the left side of the car; Montes and Velasquez went to the right side of the car. Defendant, the only assailant with a gun, placed it in Castro’s face and ordered him to leave the car. Montes and Velasquez, anticipating Castro’s flight, entered the car. Castro refused to exit. Defendant stated, “I’m gonna’ shoot him.” Castro held on to the wheel. David Mandich was driving on St.

Andrews Place from Sixth Street toward Fifth Street. He saw four males, in their mid-teens to early 20’s, standing around a white Trans Am. Two of the four were on the left and two were on the right. The tallest of the four talked to a person in the driver’s seat. The tall one then pulled a gun from his jacket and shot the driver. All four males began running toward Fifth Street. Lozano was surprised to see the four return, as he expected them to drive away in the Trans Am. Defendant stated he had shot the man in the leg.

Defendant further stated the man had cried, “Oh, shit, oh shit.” Defendant wore a silver Raiders jacket with black lettering. Mandich described the incident to a police officer that evening. He described the shooter as a Black or dark-complected Hispanic male between five feet ten inches and six feet tall, wearing a dark athletic jacket with white letters in a semicircle on the back. Detective Paul Coulter testified that the shiny “satiny” jacket could have appeared darker than its actual color due to the lighting conditions in the area. Mandich was unable to select anyone from a photographic lineup.

On September 4, 1990, he selected defendant from a live lineup that included six males. Mandich had no doubt that he was correct, unless defendant “had a twin brother.” At trial, Mandich again identified defendant as the perpetrator. Defendant was taken into custody for an unrelated matter on January 21, 1991. He was wearing a silver Raiders jacket, which had letters in a semicircle on the back. Defendant stands six feet tall; the other individuals involved in the Castro robbery were five feet six inches tall or shorter. Ruben Sanchez, an expert on latent fingerprints, took fingerprints from the Trans Am.

Gilbert Aguilar, a Los Angeles Police Department fingerprint expert, testified these prints matched the samples of Soriano and Velasquez. Dr. Irwin Golden, a deputy medical examiner coroner, performed the autopsy of Jose Castro, who died from a gunshot to the chest. The bullet entered through the victim’s left shoulder, passed through his chest and lung, and exited on the right side of his chest. The wound was consistent with the scene described by Mandich: the shot was fired by an assailant standing outside the driver’s side door. 2.

The Defense Case Los Angeles Police Officer Jason Loya interviewed David Mandich on the night of the shooting. Mandich indicated four males, three Black and one Hispanic, all ranging in age from 17 to 22, had surrounded a Trans Am on St. Andrews Place. The shooter was a Black male, approximately five feet ten inches to six feet tall. He wore a dark blue or black jacket with letters on the back. Los Angeles Police Officer Frank Bolán helped prepare a photographic display in March 1990, from which Mandich was unable to identify defendant.

Officer Bolán also participated in the staging of an in-person lineup on September 4, 1990. Jose Castro’s sister, his widow, the widow’s sister and her son were present, seated in the back row. Officer Bolán warned them not to have any contact with anyone else. After making his selection, Mandich asked if he had selected the right person. Officer Bolán stated he could not answer that question. Mandich told the officer he was positive of his selection. Mandich again sought confirmation, and Officer Bolán again refused. B. Penalty Phase 1.

The People’s Case On August 11, 1986, 14-year-old Lionel Fricks was walking on Exposition Boulevard, carrying a “semi-big” radio. Defendant and another male punched Fricks several times. Once Fricks had fallen to the ground, one of the two males took Fricks’s radio. Defendant pleaded guilty to second degree robbery. On July 10, 1989, defendant pleaded guilty to driving or taking a vehicle without the owner’s consent in violation of Vehicle Code

section 10851. On January 20, 1990, at approximately 11:30 p.m., Freddie Garcia was at a gas station on La Brea Avenue. Defendant and three other males approached him. The males kicked Garcia to the ground; when he rose, defendant punched him. Defendant warned Garcia, “Give up the car, otherwise I’m going to shoot you.” Another male put a gun to Garcia’s stomach, although defendant did the talking. Defendant entered the car, and drove the other three males away. Defendant pleaded guilty to robbery with the allegation that a principal was armed with a firearm.

On the evening of April 5, 1992, defendant participated in a fight between Black and Hispanic inmates of the North County Correctional Facility. Even after officers had separated the combatants, defendant tried to provoke the Black inmates into further conflict. On July 22, 1992, defendant was transported from court to the North County Correctional Facility. Deputy Sheriff David Mertens searched defendant and found a makeshift handcuff key in a small incision inside his wristband.

Deputy Mertens tested the key and found it easily opened a pair of Smith and Wesson handcuffs, the kind most commonly used to control inmates being transported back from court. Another deputy later searched defendant’s property bag and found a shank. Rudolfo Rivera, Navarette’s brother and his passenger on the night of the murder, testified he and Navarette were living in their family home when Navarette was murdered. Navarette worked six days a week, not returning home until 11:00 p.m., to help support the family.

Navarette’s death was especially difficult for his mother, who was still taking pills for her high blood pressure in September 1992, nearly three years after the shooting. Maria Mastrocinque, Jose Castro’s older sister, testified he was loving, peaceful and sensitive. After finishing high school, Castro volunteered for the Marines, in which he served for two and a half years. The family used to get together every week.

Now, Castro’s mother is “a walking wound that will never heal.” Gladys Castro, the youngest sister, testified Castro always helped and was there for her and that her mother is “lost” and “not all there.” Gladys further stated that she is afraid to sleep at night. Martha and Jose Castro were high school sweethearts who married in 1979. Castro was a very giving and loving man, who had a close relationship with their 15-year-old son, Joey. Joey keeps his feelings to himself and has been attending counseling. After Castro’s death, Joey began misbehaving in school.

He has since improved his behavior, but does not want to talk about the murder. He wants to be like his dad. He often asks his mother “what would Daddy do” in certain situations. 2. The Defense’s Case Leland Bradford was with defendant when Lionel Fricks was robbed. The robbery was the idea of Juan Lombrero, who first hit Fricks and grabbed his radio. Bradford admitted that before he was arrested, defendant had the radio and gave it to Lombrero because the police were looking for it.

Besides participating in the fight and possessing the handcuff key and shank, on one occasion defendant possessed food and United States currency in excess of permitted limits ancl “roamed” (entered a jail tier other than his own) on another. These incidents were the extent of defendant’s documented infractions while in custody. Deputy Sheriff Dennis Parker and Deputy Sheriff Robert Thomasser observed the April 5, 1992, jail fight. The two inmates who resumed fighting after officers had separated the two groups were inmates Rene Munoz and Christopher Wood.

Rosendo Florentin, a registered nurse, treated defendant after the fight. Defendant suffered a one-inch laceration on his eyebrow. Nurse Florentin treated three other inmates that night; defendant was the only inmate sent to an outside hospital for his injuries. Rosalba Gallegos, defendant’s older sister, and Eduardo Ochoa, defendant’s father, described defendant’s childhood. Defendant was the fourth of five children born to a shoemaker and a homemaker. The family lived in Tijuana when defendant was bom, and moved to San Diego three years later.

A few months later, the family moved to Figueroa Street in Los Angeles. It took defendant’s father six months to find work as a shoemaker; defendant’s mother worked as a housecleaner. Neither was home during the day. Some of the neighborhood children mistreated the Ochoa children, pouring water on their backs while calling them “wetbacks,” cutting up their clothes and throwing away their food. When defendant’s parents spoke to the other children’s parents, they responded by threatening to report the Ochoa family to immigration authorities.

When defendant was in kindergarten the family moved to Welcome Avenue, where defendant had no problems in school. About seven years later, the family moved to a Black neighborhood near Arlington Avenue. Some neighborhood kids threw rocks and bottles every night at the Ochoa door. Gallegos called the police but they never came. The home was also burglarized. When defendant was approximately 16 years old, his sister was severely beaten. Defendant had done well in elementary school, but he began missing school and dressing differently once he was in high school. Dr.

Michael Maloney, a clinical psychologist and professor at University of Southern California School of Medicine, evaluated defendant and reviewed his school records. In fourth grade, defendant was described as “capable,” maybe even “bright.” In sixth grade, defendant was “working hard,” and performing “adequately.” His grades plummeted after sixth grade, when he became involved with gang activity, and he received D’s and F’s in junior high school. In the eighth grade, defendant, scored in the 26th percentile in reading and in the 27th percentile in mathematics. By the time Dr.

Maloney evaluated defendant, he registered an IQ of 74. This placed him in the fifth percentile of society, although that ranking was “probably a low estimate of his ability.” Defendant read at an eighth grade level, and his arithmetic skills equaled those of a fifth grade student. Lisa Martinez was defendant’s girlfriend from 1984 until 1987, and she is the mother of defendant’s daughter, Claudia. Defendant loved and played with Claudia. Defendant had studied with Lisa to become a dental technician. He earned his diploma but was unable to find work in the field.

Defendant has maintained close ties with his sister’s children. They visit him in prison and get excited when he telephones.

Defendant’s performance on the Minnesota Multiphasic Personality Inventory did not indicate he was schizophrenic or psychotic. “There is some suggestion he has always been somewhat insecure, but not grossly disturbed.” The doctor concluded that defendant “knows right from wrong.” James Park, a correctional consultant and former corrections officer, testified that prisoners serving life without possibility of parole terms are automatically sent to maximum security “level-four” facilities, from which there has never been an escape. II. Discussion A. Guilt Phase 1.

Joinder of the Navarette and Castro Charges Defendant moved to sever counts 1 and 2 (the Castro homicide and attempted robbery) from count 3 (the Navarette homicide). The trial court denied the motion. Defendant now contends the denial was erroneous and deprived him of a fair trial and due process of law. The law prefers consolidation of charges. (People v. Ochoa (1998) 19 Cal.4th 353, 409 [79 Cal.Rptr.2d 408, 966 P.2d 442].) Where, as here, the offenses charged are of the same class, joinder is proper under

section 954. (People v. Kraft (2000) 23 Cal.4th 978, 1030 [99 Cal.Rptr.2d 1, 5 P.3d 68] (Kraft); People v. Bradford (1997) 15 Cal.4th 1229, 1315 [65 Cal.Rptr.2d 145, 939 P.2d 259] (Bradford).) Defendant can predicate error in the denial of the motion only on a clear showing of potential prejudice. (Kraft, at p. 1030; Bradford, at p. 1315.) We review the denial of defendant’s motion for an abuse of discretion, that is, whether the denial fell “ ‘outside the bounds of reason.’ ” (Ochoa, at p. 408, quoting People v.

DeSantis (1992) 2 Cal.4th 1198, 1226 [9 Cal.Rptr.2d 628, 831 P.2d 1210].) We find the trial court properly exercised its discretion in denying the severance motion.

We have developed criteria to guide evaluations of trial court decisions on severance motions. “ ‘ “Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.” ’ ” (Kraft, supra, 23 Cal.4th at p. 1030.) Cross-admissibility of evidence is sufficient but not necessary to deny severance. (Bradford, supra, 15 Cal.4th at p. 1316.) As the four-part test is stated in the conjunctive, joinder may be appropriate even though the evidence is not cross-admissible and only one of the charges would be capital absent joinder. (People v.

Musselwhite (1998) 17 Cal.4th 1216, 1244-1246 [74 Cal.Rptr.2d 212, 954 P.2d 475] (Musselwhite).) Even where the People present capital charges, joinder is proper so long as evidence of each charge is so strong that consolidation is unlikely to affect the verdict. (People v. Arias (1996) 13 Cal.4th 92, 130, fn. 11 [51 Cal.Rptr.2d 770, 913 P.2d 980] (Arias); People v. Lucky (1988) 45 Cal.3d 259, 277-278 [247 Cal.Rptr. 1, 753 P.2d 1052] (Lucky).) As in those cases, the strength of the People’s evidence warrants our conclusion that the trial court properly joined the charges.

Defendant contends the evidence of the Navarette homicide tended to inflame the jury to defendant’s detriment concerning the Castro charges. Defendant argues a jury trying the Castro charges separately would not have learned about defendant’s heavy gang involvement. Without expressing our agreement or disagreement with this assertion, we note it is doubtful that the evidence on the Navarette charge was so much more inflammatory than that supporting the Castro charge.

The evidence supporting the former charge indicated defendant assisted Aguilar in shooting the individual who, in their minds, had shot Aguilar’s brother three hours earlier, and had shot at defendant on several occasions a few weeks before. By contrast, the evidence supporting the latter charge showed defendant was the instigator and perpetrator of a killing for which the only motive was punishing Jose Castro for refusing to abandon his car on defendant’s demand.

We find defendant has failed to meet his burden of showing the evidence supporting either charge was so inflammatory as to create prejudice regarding the other. We also find the People’s case on both charges was sufficiently strong to render joinder proper. (Lucky, supra, 45 Cal.3d at p. 278.) Defendant contends the People’s case on the Castro charges was weak, emphasizing the favorable dispositions granted to the witnesses and the alleged unreliability of Mandich’s identification.

Contrary to defendant’s argument, we find the evidence of the Castro homicide to be comparable to, if not stronger than, the evidence of the Navarette homicide. Defendant contends the “Castro evidence” was tainted by the favorable dispositions received by the witnesses. None of the evidence inculpating defendant on the Castro charges could have been the dubious product of favorable prosecutorial treatment.

David Lozano was allowed to plead guilty to voluntary manslaughter and received a maximum sentence of 11 years, but his testimony echoed his June 4, 1990, pretrial statement, which he offered prior to his arrest and disposition in this case. Oscar Montes pleaded guilty to voluntary manslaughter pursuant to an agreement that he would receive no more than four years’s imprisonment. But Montes’s trial testimony was of minimal value to the People; his value as a witness derived from his tape-recorded interview of June 1, 1990, which preceded his plea.

Moreover, due to the disposition accepted by two of the witnesses on the Navarette count, Walter Aguilar and Mauricio Soriano, we cannot find the dispositions to be a meaningful basis for distinguishing the strength of the evidence on the two charges. The People actually presented more evidence corroborating the gang members’ testimony with respect to the Castro charges. The People tied both Velasquez and Soriano to the shooting through their fingerprints; no such physical corroboration supported the Navarette charge.

Furthermore, David Mandich, a disinterested witness, identified defendant as the shooter, both in court and at a lineup. Although defendant naturally challenges these identifications, observing Mandich failed to identify defendant from photographs, initially identified the perpetrator as a Black male, and described the shooter’s jacket as being black, Mandich’s description was consistent with the statements of Montes and Lozano.

Mandich correctly described the number and positioning of Castro’s assailants (two, including the shooter, at the left front of the car and two at the right front), he described the location where the car was parked, he described how the shooter was talking to the driver, and then, after the shooting, how all four assailants began running. He further identified defendant’s jacket, although, according to Montes, it was silver with black lettering; someone else in the party wore the black Raiders jacket. Mandich correctly described defendant’s height in both absolute and relative terms.

Considering the evidence as a whole, we find the evidence supporting the Castro charges was sufficiently strong to support the denial of the motion. Defendant cannot show that the evidence supporting either charge was unusually likely to inflame the jury or impermissibly weak. (Musselwhite, supra, 17 Cal.4th at pp. 1244-1247.) We find the trial court properly exercised its discretion in joining the charges, and defendant received his due process right to a fair trial. 2.

Transfer to the Northwest Judicial District Defendant challenges the trial court’s transfer of the case from the Central Judicial District of the Los Angeles Superior Court to the Northwest Judicial District. He contends the transfer denied him his rights both to vicinage and a jury chosen from a fair cross-section of the community. We reject both claims. On April 16, 1992, Judge Stephen Czuleger announced he would transfer the case from the Central Judicial District to the Northwest Judicial District on April 21.

Defendant moved to impanel prospective jurors from the Central Judicial District to provide him with a jury drawn from a representative cross-section of the community. Defendant further moved to quash the Northwest Judicial District jury panel, alleging a systematic exclusion of minority jurors. Defendant based the motion to quash on demographic evidence, including the testimony of Juanita Blankenship, the administrator of litigation support services for Los Angeles County Superior Court, and social demographer Dennis Willigan. The trial court rejected the motion.

The court found transfer was authorized by Hernandez v. Municipal Court (1989) 49 Cal.3d 713 [263 Cal.Rptr. 513, 781 P.2d 547] (Hernandez). The trial court rejected defendant’s allegation of systematic exclusion, basing its analysis on Duren v. Missouri (1979) 439 U.S. 357 [99 S.Ct. 664, 58 L.Ed.2d 579] (Duren). The trial court properly denied the motion. As the trial court correctly observed, Hernandez authorizes intracounty transfer of cases.

In Hernandez, we held the boundaries of vicinage are coterminous with the boundaries of the county. (Hernandez, supra, 49 Cal.3d at p. 729.) Accordingly, Hernandez decided “there is no violation of the vicinage requirement when a criminal defendant is tried in Los Angeles County by a jury drawn from Los Angeles County” (id. at p. 722), and we decline defendant’s request to reconsider that conclusion. Furthermore, as we recently held in Price v.

Superior Court (2001) 25 Cal.4th 1046, 1065 [108 Cal.Rptr.2d 409], the Sixth Amendment right to vicinage was not incorporated by the Fourteenth Amendment against the states, and thus the transfer implicates no federal constitutional right.

The trial court also properly concluded defendant failed to establish a prima facie violation of his right to a jury drawn from a fair cross-section of the community. “ ‘In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.’ ” (People v.

Howard (1992) 1 Cal.4th 1132, 1159 [5 Cal.Rptr.2d 268, 824 P.2d 1315], quoting Duren, supra, 439 U.S. at p. 364 [99 S.Ct. at p. 668].) The trial court determined defendant satisfied only the first prong of this test. We have recognized that Hispanics are a cognizable group. (People v. Ramos (1997) 15 Cal.4th 1133, 1154 [64 Cal.Rptr.2d 892, 938 P.2d 950] (Ramos); People v. Sanders (1990) 51 Cal.3d 471, 491 [273 Cal.Rptr. 537, 797 P.2d 561] (Sanders).) Whether defendant satisfies the second prong is less certain.

The evidence presented revealed that although 13 percent of the jury-eligible population of the Northwest Judicial District was Hispanic, only 7.7 percent of the district’s jury pool in May and June 1992 was Hispanic. This resulted in an “absolute disparity” of 5.3 percent, and a “comparative disparity” of approximately 40.8 percent.

Neither we nor the United States Supreme Court has decided which test better measures alleged violations of the cross-section right or what degree of disparity is impermissible. (Ramos, supra, 15 Cal.4th at p. 1155.) We need not decide either question here, because defendant clearly failed to satisfy Duren's third prong. The third prong requires defendant to show the state selected the jury pool in a constitutionally impermissible manner that was the probable cause of the disparity. (People v.

Bell (1989) 49 Cal.3d 502, 524 [262 Cal.Rptr. 1, 778 P.2d 129] (Bell).) The evidence presented below showed Los Angeles County had formerly relied on voter registration lists to compile its jury pools, and added Department of Motor Vehicles records in the early 1980’s to provide a more representational list. We have observed that Code of Civil Procedure

section 197 prescribes that a list derived from voter and driver records “ ‘shall be considered inclusive of a representative cross-section of the population’” where it is properly nonduplicative. (Sanders, supra, 51 Cal.3d at p. 496, fn. 9.) Defendant now contends the county’s failure to supplement these two lists with other “readily available lists” demonstrates the systematic exclusion required by Duren.

This claim fails because the United States Constitution “forbids the exclusion of members of a cognizable class of jurors, but it does not require that venires created by a neutral selection procedure be supplemented to achieve the goal of selection from a representative cross-section of the population.” (Bell, supra, 49 Cal.3d at p. 530.) As the United States Fourth Circuit Court of Appeals has explained, the failure of a particular group to register to vote in proportion to its share of the population cannot constitute improper exclusion attributable to the state. (United States v.

Cecil (4th Cir. 1988) 836 F.2d 1431, 1448-1449.) So long as the state uses criteria that are neutral with respect to the underrepresented group, a defendant cannot satisfy Duren’s third prong by showing the state could have adopted other measures to improve further the group’s representation. (People v. Currie (2001) 87 Cal.App.4th 225, 235-237 [104 Cal.Rptr.2d 430].) The challenged state action must be the probable cause of the disparity (Bell, at p. 524); defendant has pointed only to the state’s inability to provide a remedy.

Without more, defendant’s claim challenging the Los Angeles County Northwest Judicial District jury pool must fail. 3. Voir Dire Questions and Challenges for Cause Defendant contends the prosecutor offered misleading descriptions of the case on voir dire, which led to the erroneous exclusion of jurors for cause. He contends these jurors offered responses that appeared to call into question their ability to keep an open mind as to penalty only because the prosecutor characterized the facts of the case as being relatively benign for a capital case.

The result of this allegedly improper characterization, defendant argues, was a jury predisposed to impose death under the particular circumstances of this case. We conclude both the questioning and the excusáis were proper.

a) Prospective Jurors Gertrude W., Patrice V. and Alicia B. After the court asked the panel some questions, the defense commenced its voir dire by noting some people believe only individuals like Adolf Hitler or Jeffrey Dahmer deserve death. The trial court sustained the prosecutor’s objection to defense counsel’s asking a prospective juror whether she could vote to execute Hitler or Dahmer. The prosecutor used her voir dire to explain, without objection, the concepts of accomplice liability and the felony-murder doctrine.

When asked, Prospective Juror Gertrude W. confirmed she would not impose the death penalty in a case, like the instant one, where the defendant did not personally commit one of the murders, and did not plan or premeditate the other. She told the court, “I don’t think I would consider voting for death.” The court excused Prospective Juror Gertrude W. for cause. At the conclusion of the first panel’s voir dire, the trial court remarked the first questioning went very smoothly. Neither party disagreed with this characterization.

With respect to future panels, the court warned the defense not to ask whether jurors would favor the death penalty for individuals such as Jeffrey Dahmer or Charles Manson, but instead to limit its inquiry to the facts of the instant case. The court likewise cautioned the prosecutor not to ask prospective jurors if they could impose the death penalty for an unintentional felony murder, since there was a second, intentional murder charged.

Thereafter, the court questioned Prospective Juror Patrice V., who noted on her questionnaire her belief that “the death penalty was state sanctioned murder.” She stated that “[i]t would be very difficult” for her to sentence someone to death. She thought she could set aside her personal feelings if she received “very clear instructions about what my obligation was.” Prospective Juror Alicia B. stated she did not “fully agree with the death penalty.” The prosecutor described the general principles of accomplice liability and felony murder.

She asked prospective jurors whether they could return a death verdict if, in one of the charged murders, defendant did not personally shoot the victim, and, in the other, defendant neither planned nor premeditated the murder. Upon inquiry, Prospective Juror Patrice V. confirmed she considered the death penalty “state sanctioned murder.” Patrice V. agreed she “would not consider the death penalty in this type of case.” Prospective Juror Alicia B. confirmed she did not really agree with the death penalty.

She did not feel she would consider death as a possible penalty, as this was not “the right kind of case” for capital punishment. The court later followed up the prosecutor’s questions by asking whether Alicia B. would consider voting for death if she heard about defendant’s prior violent misconduct during the penalty phase. Prospective Juror B. answered, “This is my position. That this case is not the case for [the] death penalty,” no matter what evidence the People presented during the penalty phase. The trial court excused both Prospective Jurors Alicia B. and Patrice V. for cause.

After a brief recess, the defense expressed its concern that the court precluded defense questions about capital punishment in the Dahmer or Manson cases, yet allowed the prosecutor to use a “misleading nonegregious hypothetical when questioning those same jurors.” The court reiterated its ban on the defense’s Hitler/Dahmer/Manson inquiries, and noted the prosecutor had offered her hypotheticals without timely objection.

The court found it “fair for the prosecutor to point out [that a felony] murder may be accidental, nonintentional or it may be intentional as well.” For future questioning, the court granted the defense some “rebuttal” voir dire after the prosecutor had finished. The defense announced its intention to ensure the hypotheticals accurately described the evidence in the case. Because there had been no objection, the court refused to revisit any of the excusáis the court had already allowed.

The court stated its belief, however, that “almost all of [the jurors excluded on the People’s motion] were what we would call Witherspoon [v. Illinois (1968) 391 U.S. 510 [88 S.Ct. 1770, 20 L.Ed.2d 776]] excludables. Most, if not all, were those that were adamantly opposed and would not impose [the death penalty under] any circumstances.”

b) Prospective Jurors Linda H., Martha C., Arthur R. and Lynn J. During the trial court’s inquiry, Prospective Juror Linda H. announced, “I’m against the death penalty.” She agreed, however, she could set aside her personal opinion in serving as a juror. After describing the aiding and abetting and felony-murder doctrines, the prosecutor asked about Linda H.’s questionnaire comment that “when a jury sentences someone to death, it’s murder.” Ms. H. confirmed her opposition, stating, “I’m against the death penalty always.” She stated she could not vote for death “in any case.” The court excused her for cause.

During the trial court’s inquiry of a later panel, the court asked Prospective Juror Martha C. about her questionnaire comment that, given the choice, she would always vote for life imprisonment without possibility of parole. She answered she did not think she could envision any set of circumstances that would prompt her to vote for death. Ms. C. also confirmed her questionnaire remark that if she sentenced someone to death, she would feel guilty for the rest of her life.

She later told the prosecutor she did not think she could impose a sentence of death “regardless of the evidence in this case.” After hearing the prosecutor’s description of aiding and abetting liability, Prospective Juror Arthur R. volunteered he would have a difficult time finding an aider and abettor guilty of first degree murder, and he could do so only where it was “pretty clear that the person was really connected.” Mr.

R. admitted he was not sure whether he could vote for death, “regardless of the evidence in this case.” He stated, “I rather feel that I would be inclined to not [impose a death sentence].” When asked further whether he could vote for death “if you felt it was appropriate,” he thought he would “not [be] able to follow through.” Prospective Juror Lynn J. volunteered he thought it might be best to limit capital punishment to premeditated and deliberate murders. When later questioned, Mr.

J. confirmed his questionnaire statement that the death penalty should be limited to cases of mass murder, unusual cruelty, torture or murder while in prison. When asked if he could nevertheless vote for death in the instant case, which did not involve such factors, he answered affirmatively. When the prosecutor asked whether he could consider death as a penalty considering “what you know about this case,” the trial court sustained defendant’s objection. Mr. J. averred he could vote for death “if it involves torture or some activity that’s at the highest level of crime.” Upon further inquiry, Mr.

J. agreed that neither murder in the commission of an attempted robbery nor murder by aiding and abetting met his standards for imposing death. Accordingly, he did not believe he could consider voting for death in this case. The trial court excused Prospective Jurors Martha C., Arthur R. and Lynn J. for cause.

c) Analysis Trial courts excuse for cause a juror whose views on capital punishment would “ ‘ “prevent or substantially impair” ’ ” the performance of the juror’s duties. (Morgan v. Illinois (1992) 504 U.S. 719, 728 [112 S.Ct. 2222, 2229, 119 L.Ed.2d 492]; Wainwright v.

Witt (1985) 469 U.S. 412, 424 [105 S.Ct. 844, 852, 83 L.Ed.2d 841] (Wainwright); Bradford, supra, 15 Cal.4th at p. 1318.) The real question is “ ‘ “whether the juror’s views about capital punishment would prevent or impair the juror’s ability to return a verdict of death in the case before the juror.” ’ ” (Bradford, at pp. 1318-1319, quoting People v.

Hill (1992) 3 Cal.4th 959, 1003 [13 Cal.Rptr.2d 475, 839 P.2d 984].) A juror is subject to exclusion for cause if she “would invariably vote either for or against the death penalty because of one or more circumstances likely to be present in the case being tried, without regard to the strength of aggravating and mitigating circumstances . . . .” (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005 [30 Cal.Rptr.2d 818, 874 P.2d 248] (Kirkpatrick)) To facilitate the intelligent exercise of both peremptory challenges and those for cause, parties may inform prospective jurors of the general facts of the case. (People v.

Ervin (2000) 22 Cal.4th 48, 70 [91 Cal.Rptr.2d 623, 990 P.2d 506] (Ervin); Kirkpatrick, supra, 7 Cal.4th at pp. 1004-1005.) A prosecutor may therefore inquire whether a juror will be able to impose the death penalty on a defendant who commits felony murder (People v.

Pinholster (1992) 1 Cal.4th 865, 916-918 [4 Cal.Rptr.2d 765, 824 P.2d 571]), or on a defendant who did not personally kill the victim. (Ervin, at pp. 70-71.) The trial court properly exercised its broad discretion in allowing the prosecutor’s voir dire. (Pinholster, at p. 918.) To the extent a more accurate characterization of the case was possible, defendant had the opportunity to provide it. The trial court correctly found defendant had waived any challenge to the prosecutor’s questioning by failing to offer a timely objection. (People v.

Medina (1995) 11 Cal.4th 694, 740 [47 Cal.Rptr.2d 165, 906 P.2d 2] (Medina).) Even after receiving the court’s advice about the need for timely objection, defendant failed to object to ensure that the prosecutor offered a more accurate description of the case. Where defendant offered a proper objection, the trial court sustained it. Furthermore, the trial court expressly indicated it would not dismiss for cause a prospective juror who based her stated inability to impose the death penalty on a description of the case that the court deemed misleading. We uphold both the questioning and the excusáis.

If a juror’s responses are equivocal or conflicting, the trial court’s determination of the juror’s fitness to serve is binding. (People v. Cooper (1991) 53 Cal.3d 771, 809 [281 Cal.Rptr. 90, 809 P.2d 865].) If there is no inconsistency, we uphold the. determination below if it is supported by substantial evidence. (Ibid.) In other words, only if the record discloses no evidence from which a rational trier of fact could find a juror was qualified to serve will we find error. Prospective Juror Linda H.’s comments revealed her unambiguous opposition to the death penalty, and the trial court properly excused her.

Substantial evidence likewise supports the exclusion of the other jurors. To the extent their responses could support multiple inferences, we defer to the trial court’s determination of their unfitness to serve. (Ibid.) 4. Peremptory Challenges Against Death Penalty Skeptics Defendant contends the prosecutor committed reversible error in exercising peremptory challenges against four prospective jurors who expressed skepticism about capital punishment, even though they were qualified to serve in accordance with Witherspoon v. Illinois, supra, 391 U.S. 510 and Wainwright, supra, 469 U.S. 412.

Defendant did not object to these challenges, and thus failed to preserve the issue for appeal. (People v. Champion (1995) 9 Cal.4th 879, 907 [39 Cal.Rptr.2d 547, 891 P.2d 93] (Champion).) Furthermore, these challenges were proper. We have distinguished between the impermissible practice of excluding jurors based on their membership in a racial or ethnic group and the permissible practice of excluding jurors based on their attitudes or viewpoints. (People v. Turner (1984) 37 Cal.3d 302, 313-315 [208 Cal.Rptr. 196, 690 P.2d 669], overruled on another ground in People v.

Anderson (1987) 43 Cal.3d 1104, 1115 [240 Cal.Rptr. 585, 742 P.2d 1306].) Because both parties may exercise peremptory challenges to remove jurors with unfavorable attitudes, the practice does not produce a jury biased toward death. (Turner, at p. 315.) We therefore permit prosecutors to exercise peremptory challenges against prospective jurors who express skepticism about capital punishment. (People v. Bolin (1998) 18 Cal.4th 297, 317 [75 Cal.Rptr.2d 412, 956 P.2d 374] (Bolin); Champion, supra, 9 Cal.4th at p. 907.) 5.

Defendant’s Absence from Sidebar Conferences The trial court inquired of 12 prospective jurors who had marked on their juror questionnaires “confidential” regarding specific questions. Two of these jurors, Raymond F. and Cecil H., eventually served on the jury. The prosecutor and both counsel were present at these sidebar conversations. Defendant neither asked to participate nor objected to his absence. He now contends his absence deprived him of his right to be present at trial, which is protected by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution,

article I,

section 15 of the California Constitution, Penal Code sections 977 and 1043, and common law.

a) Constitutional law A criminal defendant’s federal constitutional right to be present at trial, largely rooted in the confrontation clause of the Sixth Amendment, also enjoys protection through the due process clause of the Fifth and Fourteenth Amendments (United States v. Gagnon (1985) 470 U.S. 522, 526 [105 S.Ct. 1482, 1484, 84 L.Ed.2d 486] (Gagnon)) “ ‘whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge,’ ” but not “ ‘when presence would be useless, or the benefit but a shadow.’ ” (Kentucky v.

Stincer (1987) 482 U.S. 730, 745 [107 S.Ct. 2658, 2667, 96 L.Ed.2d 631], quoting Snyder v. Massachusetts (1934) 291 U.S. 97, 105-107 [54 S.Ct. 330, 332-333, 78 L.Ed. 674, 90 A.L.R. 575].)

Article I,

section 15 of the California Constitution applies the same standard. (People v. Waidla (2000) 22 Cal.4th 690, 742 [94 Cal.Rptr.2d 396, 996 P.2d 46] (Waidla).) Defendant has not indicated any way in which his presence at the sidebar conferences bore a reasonably substantial relation to his opportunity to defend himself. He admits the impossibility of knowing what sudden impressions and unaccountable prejudices he might have formed.

Because there must be a “reasonably substantial relation” to defendant’s ability to defend himself, and not a mere “shadow” benefit, we must reject such claims based on undue speculation. (Waidla, supra, 22 Cal.4th at p. 742; People v. Johnson (1993) 6 Cal.4th 1, 19 [23 Cal.Rptr.2d 593, 859 P.2d 673] (Johnson).) In Johnson, the trial court held a sidebar conference during trial to determine whether a juror should have been dismissed.

Evidence showed the juror had (1) nodded and “ ‘consistently smiled’ at defendant, ‘to the extent that [his] teeth [were] showing’ (2) frequently greeted defendant before lunch breaks; (3) concealed a prior arrest for narcotics possession; and (4) apparently failed to pay attention or slept during proceedings. (Johnson, supra, 6 Cal.4th at pp. 16-17.) After the in camera hearing, which neither the prosecutor nor defense counsel attended, the court excused the juror for the latter two reasons.

In Johnson, unlike the instant case, some of the questions raised at the conversation from which the defendant was absent concerned activity in which he was personally involved and would have personal, possibly exclusive knowledge.

We rejected Johnson’s allegation that he was improperly excluded (even though Johnson both objected to the hearing on the juror’s fitness and requested to be present) because we deemed his claim that he “might have helped his counsel” too speculative to show his presence bore a reasonably substantial relation to his ability to defend against the charges. (Johnson, at pp. 18-19.) A fortiori, we must reject defendant’s instant contention.

b) Statutory law Defendant further contends his absence deprived him of his statutory and common law rights. We have observed that both the United States Constitution and the California Penal Code do not follow the common law on this subject. (People v. Grant (1988) 45 Cal.3d 829, 845 [248 Cal.Rptr. 444, 755 P.2d 894].) Insofar as the statutory right is concerned, we have recognized its relation to the constitutional right.

In Ervin, supra, 22 Cal.4th at page 74, we stated that where the proceeding bears no reasonable relation to defendant’s ability to defend against the charges, sections 977 and 1043 do not require defendant’s presence. In Waidla, supra, 22 Cal.4th at page 742, we stated those sections do not entitle a defendant to be present where the constitutional standard has not been met. Although we find the constitutional standard has not been met here, we analyze the issue to place our prior statements in their proper context.

We have long recognized a hierarchy of proceedings concerning the need for the defendant’s presence. In People v. Jackson (1980) 28 Cal.3d 264 [168 Cal.Rptr. 603, 618 P.2d 149], we cited

section 977’s provisions that a defendant could not waive presence for certain fundamental proceedings (arraignment, plea, preliminary hearing, the taking of evidence by the trier of fact, and sentencing), but could waive presence for “ ‘all other proceedings.’ ” (Jackson, at p. 309.) We further observed a third category; unlike the first two categories, the fundamental and “ ‘all other’ ” proceedings, for which a defendant was entitled to be present, we noted “the accused is not entitled to be personally present either in chambers or at bench discussions which occur outside of the jury’s presence on questions of law or other matters in which defendant’s presence does not bear a ‘ “reasonably substantial relation to the fullness of his opportunity to defend against the charge.” ’ ” (Ibid.) We reiterated these categories in People v.

Holt (1997) 15 Cal.4th 619, 706 [63 Cal.Rptr.2d 782, 937 P.2d 213] (Holt). We recalled that

section 977 requires a defendant to be present at the five fundamental proceedings and entitles him to be present at all others.

We added, however, “that neither [section 977] nor the constitutional right to be present at trial extends to chambers or bench discussions outside the presence of the jury when those matters do not bear a reasonably substantial relation to the opportunity to defend.” (Holt, at p. 706.) We evaluated the sidebar and in-chambers discussions at issue in Holt, and concluded, “Since his presence at [those] proceedings was not necessary to protect his interests, assure him a fair and impartial trial, or assist counsel in defending the case, there was no error” in excluding Holt from the proceedings. (Id. at pp. 706-707.) Holt and Jackson illuminate our statements in Ervin and Waidla.

In proceedings that are not in chambers or at sidebar, a defendant is entitled (but not required) to be present. (Ervin, supra, 22 Cal.4th at p. 74.) On the other hand, for those proceedings that are beyond the scope of

section 977, defendants do not have a right to be present unless the constitutional standard has been met. (Waidla, supra, 22 Cal.4th at p. 742.) There are sound public policy reasons why a defendant has a lesser interest in personal presence when the jury is also not present. (Cf. People v.

Hovey (1988) 44 Cal.3d 543, 573 [244 Cal.Rptr. 121, 749 P.2d 776].) When a prospective juror seeks a confidential exchange with the court, allowing the defendant to be present “could well undermine the confidence and cooperation” necessary. (Ibid.) In light of one juror’s concern about posttrial safety, allowing defendant to be present would have been “counterproductive” (Gagnon, supra, 470 U.S. at p. 527 [105 S.Ct. at p. 1485]); the juror may have declined to share his concerns, remained on the jury, and allowed his concerns to incline him toward finding defendant guilty.

Instead, the juror candidly acknowledged that his security concerns made him “partial towards the prosecution,” and was dismissed from jury service. We therefore follow Holt and decline to extend the statutory right to personal presence to such confidential proceedings. 6. The Motion to Suppress Detective Coulter interviewed defendant on the morning of January 22, 1990, after Detective Bercham had advised defendant of his Miranda rights. (Miranda v.

Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974].) Detective Coulter considered defendant to be a possible witness but not a suspect in either the Navarette or Castro murders. Later that evening, Detective Coulter asked defendant to show him the residence of a suspect in a different case. The detective did not remind defendant of his Miranda rights. The detective taped their evening conversation, which disclosed evidence of the gang warfare between the 18th Street Gang and the Crazy Riders, but did not establish anything regarding the Navarette or Castro murders.

When asked if the shooting of the white car with license plate No. “2MTY” (Navarette) was in retaliation for a Crazy Riders shooting, defendant answered, “I know that they could have probably confused them, but I have heard nothing about it.” Defendant moved to suppress the evening statement as the unlawful product of a custodial interrogation that was not preceded by a Miranda advisement. Defendant contended the detective was already aware of the gang rivalry between the 18th Street Gang and the Crazy Riders and of defendant’s involvement with the 18th Street Gang. The trial court denied the motion to suppress.

It held that Detective Coulter considered defendant to be only a possible witness on the Navarette and Castro murders, and the interview was not a custodial interrogation for Miranda purposes. The court further found the morning advisement adequately informed defendant of his constitutional rights and no readvisement was necessary. We accord deference to the trial court’s factual findings, upholding all that are supported by substantial evidence.

We independently determine from the facts whether the challenged statement was unlawfully obtained. (Johnson, supra, 6 Cal.4th at p. 25.) Substantial evidence supports the conclusion that the evening interview was not an interrogation for Miranda purposes. Other than the question cited above, the interview did not concern the Castro or Navarette murders.

Detective Coulter questioned defendant about other suspects, asking defendant, “Who else besides you has the license number of this white Toyota that [Crazy Riders] had been driving . . . ?” We find the evening interview was not reasonably likely to elicit an incriminating response. (People v. Wader (1993) 5 Cal.4th 610, 637 [20 Cal.Rptr.2d 788, 854 P.2d 80].) Furthermore, any error was harmless beyond a reasonable doubt. (People v.

Cahill (1993) 5 Cal.4th 478, 510 [20 Cal.Rptr.2d 582, 853 P.2d 1037].) The statement had minimal value to the People’s case on the Navarette count and no value on the Castro counts, whereas the People offered compelling cases for conviction with their other evidence. In short, we find beyond a reasonable doubt that the exclusion of the challenged statement would not have affected the outcome at trial. 7. Defendant’s “187” Tattoo Detective Bercham testified about defendant’s tattoos. He explained the extent of defendant’s 18th Street Gang tattoos signified his “hard-core” member status.

The detective further testified defendant had on his forehead a tattoo of the number “187,” the California Penal Code

section proscribing murder, which had been added after the charged homicides occurred. After an Evidence Code

section 402 hearing, the trial court overruled defendant’s objections that evidence of the tattoo was unduly prejudicial within the meaning of Evidence Code

section 352 and that Detective Bercham was not qualified to offer an expert opinion about the tattoo’s significance. The trial court found the “187” tattoo highly probative, as it could be viewed as an admission of defendant’s guilt. The court found it highly unlikely that an innocent person would obtain such a tattoo, and ruled the jury could conclude defendant displayed the tattoo as a badge of honor. Defendant reiterates his objection on appeal. Trial courts exercise discretion in determining both the admissibility of evidence under Evidence Code

section 352 (People v. Kipp (1998) 18 Cal.4th 349, 371 [75 Cal.Rptr.2d 716, 956 P.2d 1169]) and a witness’s expert status (Bolin, supra, 18 Cal.4th at pp. 321-322). The exercise of discretion is not grounds for reversal unless “ ‘the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 [36 Cal.Rptr.2d 235, 885 P.2d 1] (Rodrigues), quoting People v.

Jordan (1986) 42 Cal.3d 308, 316 [228 Cal.Rptr. 197, 721 P.2d 79].) We find the trial court properly exercised its discretion both in admitting the tattoo into evidence and in permitting Detective Bercham to provide expert testimony describing the tattoo’s significance. The trial court properly found the tattoo represented an admission of defendant’s conduct and a manifestation of his consciousness of guilt. The court reasonably considered the tattoo highly probative, as it would be unlikely that an innocent person would so advertise his connection to murder.

Defendant contends the admission was ambiguous, as he could have been highlighting his connection to the 18th Street Gang’s Seventh Street subgroup. Such argument concerns only the weight of this evidence, not its admissibility, which does not require complete unambiguity. In Kraft, supra, 23 Cal.4th at pages 1032-1036, we approved the admission of a coded list that arguably referred to a series of homicides committed by the defendant. We rejected the defense claim that the evidence was unduly speculative in that it “required

interpretation to be understood by a reader.” (Id. at p. 1035.) We further found any error in admitting the list harmless, as the jury would not accord weight to the list unless it found it was an admission of guilt as argued by the People. (Ibid.) Our analysis in Kraft leads us to reject defendant’s Evidence Code

section 352 objection to the admission of his “187” tattoo. We likewise find the trial court properly exercised its discretion in permitting Detective Bercham to testify as an expert concerning defendant’s gang-related tattoos, including the “187” mark. The Evidence Code authorizes a witness to testify as an expert “if he has special knowledge, skill, experience, training, or education sufficient” to qualify as an expert, “[Related to a subject that is sufficiently beyond common experience that the [expert] opinion . . . would assist the trier of fact.” (Evid.

Code, §§ 720, 801.) The detective testified he received training on gangs when he attended the police academy, and has since attended gang awareness school. He further testified that for most of the past 11 years and all of the past seven he has investigated street gangs and the crimes they commit. The detective noted “187” was the California Penal Code

section that proscribed murder. We have observed the culture and habits of criminal street gangs are not matters within common knowledge for Evidence Code

section 801 purposes (People v. Gardeley (1996) 14 Cal.4th 605, 617 [59 Cal.Rptr.2d 356, 927 P.2d 713]), and have therefore approved expert testimony to describe the significance of gang graffiti and hand signs. (Champion, supra, 9 Cal.4th at pp. 919-924.) Just as the expert witness in Champion could testify as to the significance of specific symbols of graffiti without ascertaining the subjective intent of the graffiti’s author, Detective Bercham could testify as to the significance of the “187” tattoo without obtaining defendant’s statement on the subject.

Furthermore, considering the tattoo itself was admissible, and the strength of the People’s overall case, we conclude any error in admitting the detective’s expert opinion was surely harmless. 8. Defendant’s Prior Bad Acts Defendant contends the trial court committed reversible error (1) by informing the jury, and permitting the People to inform the jury, of defendant’s prior bad acts; and (2) by allowing Detective Bercham to imply defendant had served time in prison. Defendant contends these errors deprived him of a myriad of constitutional rights, including the right to a fundamentally fair trial.

The record belies these claims. The trial court and the People examined several prospective jurors on voir dire to determine whether they could impose a death sentence. The court sought to ascertain whether the prospective jurors’ minds would remain open until the penalty phase, when both the People and the defense could introduce evidence about defendant’s background. Accordingly, the court asked prospective jurors whether they would consider such information.

Defendant cites, for instance, the following examination: “Would you take into account the background information in determining whether or not the punishment was appropriate [?] [ft The background information may be, on the one hand, bad things about the defendant. Say a prior conviction or prior act of violence, something like that, [ft On the other hand, it might be something favorable.

Good deeds he’s done, people he’s helped, things he can do within the prison system that might be beneficial to others, [ft Would you be willing to consider that and give it whatever weight you thought was appropriate?” The court later inquired: “So if you heard evidence of two murders—I’m not saying any of this is going to happen, but if there was evidence of two murders and the prosecutor had all kinds of bad evidence about the defendant, and you conclude this guy is a rotten apple and we are better off without him, you couldn’t vote for death under any circumstances?” When the juror responded, “No,” the court reiterated the hypothetical nature of the inquiry: “I don’t want the jurors to get the wrong idea.

I have no idea what evidence would be presented in the penalty phase. I’m just throwing these things out for purposes of the question.” The court carefully explained the inquiry was hypothetical, and the court had no knowledge of any specific misconduct on defendant’s part. We therefore reject defendant’s contention that this and similar inquiries prejudicially informed the jury that defendant had committed prior bad acts. Defendant’s assignment of reversible error to Detective Bercham’s testimony is likewise meritless.

When the prosecutor asked the detective to describe a particular tattoo of defendant’s, Detective Bercham noted it was very common and people often obtained it while in prison. After the defense objected, the court ruled, “Why don’t we just clarify that. [H] You don’t have any reason to believe that was done in prison?” Detective Bercham agreed, “No, I don’t know where this was done.” The trial court properly restricted the detective from implying defendant had served time in state prison. No error occurred. 9.

The Continuance In July 1992, the prosecutor requested not to have any court proceedings during the week of August 17-21, 1992, apparently because she had a planned vacation. Although the prosecutor preferred to delay the start of trial until August 24, the trial court ruled that a delay would impede the court’s retention of jurors. The court instead preferred to begin on August 10, allowing the jury a break in the middle of an expected three-week trial. The defense did not object to this schedule.

Defendant now contends this break of five court days, and nine total days, violated numerous constitutional provisions. In People v. Johnson (1993) 19 Cal.App.4th 778 [23 Cal.Rptr.2d 703], another capital case, the parties agreed to give the jury a recess, for nine court days and 17 calendar days, for the December holiday season. (Id. at p. 792.) The Court of Appeal, following People v. Harris (1977) 73 Cal.App.3d 76, 83 [140 Cal.Rptr. 697], held the defense’s failure to object waived the issue on appeal. (People v.

Johnson, supra, 19 Cal.App.4th at p. 794.) Defendant’s failure to object likewise waives the instant claim. Defendant cites People v. Santamaria (1991) 229 Cal.App.3d 269 [280 Cal.Rptr. 43] (Santamaría), which includes a footnote indicating “the court’s abuse of discretion here was of such magnitude that whether or not appellant objected is irrelevant.” (Id. at p. 279, fn. 7.) The Santamaría opinion, however, did not purport to abrogate the duty to object generally. On its facts, it found the court’s abuse was so great as to warrant appellate relief notwithstanding the absence of objection.

The facts of Santamaría differ markedly from those here, and it therefore does not govern our analysis. The Santamaría trial court adjourned the trial during jury deliberations for 10 calendar days, six of which would have otherwise been court days. (Santamaria, supra, 229 Cal.App.3d at p. 275.) The court planned to be away that week, and refused the People’s request to transfer the matter to another judge, who could have presided over the deliberations, as provided by

section 1053. (Santamaria, at p. 278.) The Court of Appeal, in finding the trial court abused its discretion, emphasized the timing of the delay. “It cannot be overemphasized that this prolonged and unwarranted interruption came at the most critical period in the trial. . . . [f] . . . [f] Had the adjournment occurred in midtrial, [counsel’s] recapitulation of the evidence during argument might have nullified or minimized the effect of the delay on the jurors’ recall.” (Id. at pp. 281-282.) The timing of the delay, and the disregard for the requested alternative of a substitute judge, distinguish Santamaría from the instant case.

Defendant also relies on People v. Engleman (1981) 116 Cal.App.3d Supp. 14, 20 [172 Cal.Rptr. 474]. Although the opinion does not fully record the procedural facts, it indicates the court shut down for three weeks, rather than one. The Engleman trial court also ignored

section 1053. Accordingly, Engleman is likewise inapposite. We therefore conclude the defense’s acquiescence in the continuance has waived this issue on appeal. (People v. Johnson, supra, 19 Cal.App.4th at pp. 792-794.) 10. The Prosecutor’s Closing Argument Defendant alleges three instances of prosecutorial misconduct during closing argument, which he contends violated his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal Constitution. We reject all three allegations.

a) The jacket Defendant first objects to the following statement: “[W]e know that the defendant was wearing a Raider’s jacket on January 22. RQ Whether Mr. Montes believed it was a white jacket or silver jacket, it really doesn’t matter. [¶] We also know that according to David Mandich, that the defendant or the shooter was wearing some kind of team jacket.

Whether it was a silver jacket, a dark blue jacket or black jacket, I don’t think really matters, because we don’t know beyond any doubt really what color this jacket contained in People’s 16 looked like to David Mandich the night the murder happened. [^] And we don’t know whether the defendant was really wearing the jacket in People’s 16 the night of the murder. [^] We just know that two nights later he was wearing . . . .” The trial court overruled defendant’s objection, and the prosecutor moved to a different subject.

Defendant contends the prosecutor knowingly falsified facts to protect what defendant deems the Achilles’ heel of the case—David Mandich’s identification of defendant. Oscar Montes testified that defendant wore a white or silver Raiders jacket both on the night of the Castro murder and the day he was arrested. Mandich initially told Detective Coulter the shooter wore a dark athletic jacket with lettering on the back. According to defendant, Mandich’s incorrect description of the color of the jacket threatened to undermine the People’s case.

The prosecutor, defendant argues, therefore mischaracterized the time when defendant was arrested, stating it was two nights after the shooting, on January 22, rather than the afternoon of January 21. This mischaracterization, defendant asserts, weakened the inference that Mandich had misidentified the shooter. This allegation fails for several reasons.

First, the obvious import of the prosecutor’s statement was that Mandich’s correct observation that the shooter wore a team jacket with lettering was more significant than his error regarding its color, especially considering Detective Coulter’s testimony that the satin-lilce jacket could have looked darker on the night of the shooting. Second, whether the prosecutor characterized the date of defendant’s arrest as January 21 or 22 had little bearing on the accuracy of Mandich’s identification.

If defendant had access to only one Raiders jacket, Mandich’s description was no more accurate if the date of the arrest were January 22 instead of January 21. If defendant had a second Raiders jacket, he could have just as easily worn it on January 21 as he could have worn it on January 22. Furthermore, there is no reasonable probability that defendant would have received a more favorable result absent this isolated comment. (People v. Stansbury (1993) 4 Cal.4th 1017, 1057 [17 Cal.Rptr.2d 174, 846 P.2d 756] (Stansbury).)

b) Defendant’s placement of the gun Defendant also challenges the prosecutor’s remark, “There was no reason for that gun to come back out and go to the head of Mr. Castro and for that gun to be fired, other than the fact that the defendant is a cold-blooded killer who didn’t get what he wanted, when he wanted it, when he put a gun to the head of a man seated in a car that he wanted to take.” Defendant failed to object and preserve this claim for appeal. (People v. Hart (1999) 20 Cal.4th 546, 619 [85 Cal.Rptr.2d 132, 976 P.2d 683] (Hart).) Defendant’s claim also founders on its merits.

The record supports the argument that (1) defendant placed a gun to Castro’s head, and (2) he fired the gun. The prosecutor carefully argued nothing more than those facts. Finally, any possible misconduct was harmless. (Stansbury, supra, 4 Cal.4th at p. 1057.)

c) Mandich’s credibility Defendant’s third allegation of misconduct concerns the prosecutor’s characterization of David Mandich. Defense counsel had argued Mandich displayed “extreme bias” and that his “credibility on that identification issue was ridiculous.” The prosecutor answered by arguing, “[Mandich] was about 90 percent certain [of his lineup identification] because he wanted to leave room for the possibility that the defendant had a twin brother standing in this lineup. So that’s how careful he was. [H] There is an honest man. This is one of the best witnesses you can ever have in a murder case.

And the defense has to stoop to the level of calling this man, not only a liar, but a criminal himself is one of the most outrageous things I’ve ever heard in my career. And I don’t think you should pay any attention to that.” “And, Ladies and Gentlemen, that is the testimony of an honest witness, of a good witness, the kind of witness that I wish I had more of in these kind[s] of cases.” Defendant now objects to this argument, but failed to do so at trial, and therefore has waived this claim on appeal. (Hart, supra, 20 Cal.4th at p. 619.) Furthermore, there is no merit to the allegation.

The prosecutor exhorted the jury to credit Mandich’s account based on matters within the record, not matters within her personal knowledge. (Stansbury, supra, 4 Cal.4th at p. 1059, distinguishing People v. Gates (1987) 43 Cal.3d 1168, 1187 [240 Cal.Rptr. 666, 743 P.2d 301].) Finally, any possible misconduct was harmless. (Stansbury, at p. 1057.) 11. Jury Instructions The trial court refused to instruct the jury with many of defendant’s proposed special instructions.

a) Instruction No. 11 Defendant asked the court to instruct the jury that “[i]f you have any reasonable doubt as to the credibility or truthfulness of any statement made by any witness against the defendant, you must resolve that doubt in favor of the defendant and find such statement to be untrue.” The trial court deemed the instruction duplicative of other instructions concerning false statements of witnesses, willfully false witnesses, and the presumption of innocence.

Defendant now contends that whereas CALJIC No. 2.90 instructed the jury on reasonable doubt generally, it did not inform them of the need to find each witness’s testimony true by that standard. To the extent defendant’s proposed instruction went beyond CALJIC No. 2.90, it was incorrect and properly denied. Contrary to defendant’s requested instruction, the existence of reasonable doubt concerning some aspect of a witness’s statement does not require its negation. We have observed “a trier of fact is permitted to credit some portions of a witness’s testimony, and not credit others.” (People v.

Williams (1992) 4 Cal.4th 354, 364 [14 Cal.Rptr.2d 441, 841 P.2d 961].) In the instant case, for instance, the possibility that a witness falsely minimized his own involvement does not preclude the possibility that the rest of his description of an event was true. Furthermore, “ ‘It is . . . established that each fact in a chain of circumstances need not be proved beyond a reasonable doubt.’ ” (People v. Van Winkle (1999) 75 Cal.App.4th 133, 147 [89 Cal.Rptr.2d 28], quoting People v. Naughton (1969) 270 Cal.App.2d 1, 8 [75 Cal.Rptr. 451].) Defendant’s authority, People v.

Hidalgo (1947) 78 Cal.App.2d 926, 936 [179 P.2d 102], does not hold otherwise. The trial court there read the instruction defendant here requested, and rejected a defense request to read a similar instruction. (Ibid.) The Court of Appeal found the trial court’s rejection of the other instruction was not error as it duplicated the instruction actually read. (Ibid.) The Court of Appeal nowhere stated the instruction was a correct statement of law, let alone one defendant was entitled to have read. The trial court properly refused to read defense instruction No. 11.

b) Instruction Nos. 13 and 15 Defendant requested instruction No. 13: “Proof which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence.

It merely raises a possibility and is not sufficient for an inference of fact.” Defendant also requested instruction No. 15: “You have no right to convict the defendant of a crime upon mere suspicion however strong nor simply because there may be a preponderance of all of the evidence in the case against him nor merely because there is or may be strong reason to suspect that he is guilty. [^] Before you can lawfully convict, you must be convinced of the defendant’s guilt beyond a reasonable doubt.” The trial court found both instructions repeated the substance of CALJIC No. 2.90, and refused defendant’s request.

This was proper. Assuming, arguendo, that the proposed instructions correctly described the law, a defendant has no right to restatement of the reasonable doubt standard expressed in CALJIC No. 2.90. (§ 1096a; People v. Wright (1988) 45 Cal.3d 1126, 1134 [248 Cal.Rptr. 600, 755 P.2d 1049].)

c) Instruction No. 18 Defendant requested instruction No. 18: “You should view with extreme caution any purported out-of-court statement made by a witness that has been admitted as substantive evidence because they are not made under oath, and, if false, are not subject to prosecution [for] perjury.

HQ Furthermore, in determining whether or not an out-of-court statement is true, you should consider the circumstances under which it was made including the fact that you did not have a chance to see the witnesses] demeanor at the time the out-of-court statement was made, and that the statement was not subject to cross-examination at the time it was made.” Defendant based the request on People v. Lopez (1975) 47 Cal.App.3d 8, 13 [120 Cal.Rptr. 562], Lopez concerned a defendant’s admission, but defendant argued Lopez's rationale extends to other witnesses’ extrajudicial statements also.

In denying this request, the trial court correctly recognized the distinction between the extrajudicial statements of a party and those of a nonparty witness. A party’s extrajudicial statement may be offered against a party under Evidence Code

section 1220 due to the declarant’s identity. By contrast, the extrajudicial statements of a nonparty witness are not admissible unless they bear some indicia of trustworthiness. In this case, the People offered extrajudicial statements that were admissible under Evidence Code

section 1235, which renders admissible the prior inconsistent statements of a witness. As the Law Revision Commission comments note, such prior inconsistent statements are trustworthy. “The declarant is in court and may be examined and cross-examined in regard to his statements and their subject matter. In many cases, the inconsistent statement is more likely to be true than the testimony of the witness at the trial because it was made nearer in time to the matter to which it relates and is less likely to be influenced by the controversy that gave rise to the litigation.

The trier of fact has the declarant before it and can observe his demeanor and the nature of his testimony as he denies or tries to explain away the inconsistency. Hence, it is in as good a position to determine the truth or falsity of the prior statement as it is to determine the truth or falsity of the inconsistent testimony given in court.” (Cal. Law Revision Com. com., Deering’s Ann. Evid. Code (1986 ed.) foll. § 1235, pp. 389-390.) Accordingly, trial courts provide cautionary instructions only for extrajudicial statements made by a party. (People v.

Sims (1976) 64 Cal.App.3d 544, 556 [134 Cal.Rptr. 566].) The trial court properly refused to read defense instruction No. 18.

d) Instruction No. 21 Defendant requested instruction No. 21: “The corroboration of the testimony of an accomplice required by law is not sufficient if it merely shows the commission of the offense or some or all of the circumstances thereof, or if it does no more than raise a suspicion of guilt of the defendant.” The trial court refused to read the instruction, finding the standard CALJIC instructions adequately conveyed its substance.

The trial court instructed the jurors with CALJIC Nos. 3.11 (Testimony of Accomplice Must be Corroborated) and 3.12 (Sufficiency of Evidence to Corroborate an Accomplice), and adequately advised them on how to evaluate accomplice testimony for purposes of corroboration. The trial court properly refused to read defendant’s duplicative instruction. (People v. Berryman (1993) 6 Cal.4th 1048, 1079-1080 [25 Cal.Rptr.2d 867, 864 P.2d 40] (Berryman).)

e) Instruction No. 23 The trial court agreed to read a modified version of defendant’s instruction No. 23. The court agreed to instruct the jury: “The requirement of corroboration of the testimony of an accomplice is based on the notion that the testimony of an accomplice should be viewed with suspicion because it may have been given in the hope or expectation of leniency or immunity.” It appears, however, the trial court inadvertently failed to read this instruction to the jury. The People now contend defendant’s failure to object waived the issue.

Without deciding whether defendant adequately preserved the issue for appeal, we find no error in its omission. The trial court properly instructed the jury on CALJIC Nos. 2.20 (Believability of Witnesses) and 3.18 (Testimony of Accomplice to be Viewed with Distrust). These instructions properly informed the jury how to consider accomplice testimony. (People v. Pitts (1990) 223 Cal.App.3d 606, 881 [273 Cal.Rptr. 757]; People v.

Castro (1979) 99 Cal.App.3d 191, 197 [160 Cal.Rptr. 156].) Even where an omitted instruction concerns an “essential element,” its absence may be cured by other instructions. (Musselwhite, supra, 17 Cal.4th at p. 1248.) No error appears.

f) The omitted written instructions The trial court read CALJIC Nos. 2.02 and 2.03 orally, but inadvertently omitted these instructions from the written set with which the jury was provided. Defendant assigns error to this failure. The Attorney General contends defendant has waived this issue by failing to object at trial. Without deciding whether defendant preserved the issue, we find it fails on the merits. Although providing written instructions is “generally beneficial and to be encouraged,” defendant has no federal or state constitutional right to instructions in writing (People v.

Samayoa (1997) 15 Cal.4th 795, 845 [64 Cal.Rptr.2d 400, 938 P.2d 2] (Samayoa)), and the statutory right depends on an express request. (§ 1093, subd. (f).) Furthermore, defendant has not shown it is reasonably probable that the jury would have reached a result more favorable to defendant had it received a written copy of CALJIC Nos. 2.02 and 2.03. (People v. Cooley (1993) 14 Cal.App.4th 1394, 1399 [18 Cal.Rptr.2d 346]; People v. Blakley (1992) 6 Cal.App.4th 1019, 1023 [8

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