THE PEOPLE, Plaintiff and Respondent, v. JAMES ROBINSON, JR., Defendant and Appellant, 37 Cal. 4th 592

Opinion GEORGE, C. J. Defendant James Robinson, Jr., appeals from a judgment of the Los Angeles Superior Court imposing a sentence of death following his conviction of two counts of first degree murder of James White and Brian Berry (Pen. Code, § 187, subd. (a)) and one count of second degree robbery (id., § 211).

The jury found true both robbery-murder and multiple-murder special-circumstance allegations. (§ 190.2, subd. (a)(3) & (17).) The jury also found true the allegations that defendant personally used a firearm in the commission of the offenses. (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a).) After the initial penalty phase proceedings ended in mistrial, a new jury was selected to consider the question of penalty, and that jury fixed the punishment at death.

In addition to imposing a judgment of death for each murder conviction, the trial court sentenced defendant to the midterm of three years for the robbery plus four years for the weapons enhancements. Defendant’s appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety. I. Facts A. Guilt Phase Evidence 1. The prosecution’s case Defendant James Robinson, Jr., was a student at California State University, Northridge (CSUN), where he lived in a dormitory and had a part-time job on campus. In the spring of 1990 he had not paid his tuition or student fees and stopped attending classes.

Defendant moved to a condominium, which he shared with roommates near the CSUN campus. In August 1990 he began a part-time job at a nearby Subway sandwich shop, where he worked for approximately five months.

Stuart Schlosser, owner of the Subway shop, described defendant as a courteous and cooperative employee, but also noted that defendant and another employee had been “let go” after he (Schlosser) confronted them concerning money that was missing and warned that, if the money was not returned, they would be “terminated.” After leaving employment at the Subway shop, defendant continued to patronize the shop and had pleasant interactions with Schlosser. Defendant found a part-time job as a meat wrapper at a supermarket and remained there for three months.

In April 1991 defendant’s credit union assessed various overcharge fees and ultimately closed his checking account because he had written more than three overdrawn checks in the prior six months. A second supermarket hired defendant as a part-time employee in May 1991. Meanwhile, defendant’s newspaper subscription was cancelled for lack of payment, and a debt collection agency pursued him concerning other obligations. Defendant cashed his paychecks at the supermarkets where he worked and kept most of his money in currency.

The credit union ultimately reversed some of the overcharge fees, and defendant was able to honor each of the returned checks. Defendant terminated his condominium lease in May 1991 and moved into an apartment occupied by Tai Williams (Williams), his friend since seventh grade. Williams shared that apartment with his girlfriend, Donna Morgan, and their baby daughter. During this period, defendant began to work full time for Lucky’s supermarket in the meat department, where he met Dennis Ostrander (Ostrander), who occasionally loaned defendant money for lunch or busfare.

Williams owned a gun, as did another mutual friend, Tommy Aldridge (Aldridge), whom defendant also had known since seventh grade. Williams frequently took defendant and Aldridge to a nearby shooting range for target practice. In early June 1991, defendant purchased an inexpensive .380 semiautomatic handgun to use for target practice. He testified that he purchased the firearm because previously at the practice range he had been forced to rent expensive guns for which ammunition also was quite costly, and he wanted instead to have a simple and serviceable gun that would use less expensive ammunition.

After the mandatory 15-day waiting period expired, defendant took possession of the gun on June 18, 1991. Williams testified that defendant’s behavior then changed and that he began to handle and play with the gun and became “obsessed” with it. In addition, Williams testified, defendant “became, quote, unquote, a bigger man, you know, because he had all this protection behind him so now he could walk and talk big.” Williams explained that defendant’s possession of the gun gave him “an attitude, like he was just invincible” and that “wherever he went the gun went. . . . And you could just tell, you know.

When someone changes you can just tell.” Williams also testified that, when defendant still was working at the Subway shop and on numerous occasions well before defendant moved into Williams’s apartment in June 1991, defendant mentioned the possibility of robbing the Subway shop because he needed money. Williams related that defendant said the shop would be an easy target “because he . . . knew the place.” According to Williams, he told defendant he was crazy and assumed defendant was joking.

These conversations, Williams explained, recurred on numerous occasions after defendant moved into Williams’s apartment in June 1991. Williams recounted that defendant told him how he planned to rob the Subway shop and repeated that he would do so because he needed money: “He told me he was going to go in and order some food.

After that he was going to hold ’em up, and if, when he went in, . . . they were people that he knew he would have to kill them, shoot them execution style.” According to Williams, defendant also spoke specifically of his “need to get his hands on some money,” the layout of the shop, the absence of security cameras, the use of pliers to remove money from the shop’s safe, and the relative ease of escaping through the shop’s back door.

Williams testified that he went with defendant to the Subway shop on one occasion after defendant had ceased working there and that defendant, after joking with the employees, commented to Williams as they left the shop, “Well, too bad if they are in there. Too bad.

I’ll have to kill them if they are in there.” Aldridge testified that he was present at Williams’s apartment when, approximately one week prior to the commission of the crimes, defendant spoke of his need for money to pay various bills and his plan to commit a robbery at either the Subway shop or a gas station, or perhaps to rob a person walking on the street. According to Aldridge, defendant raised the subject again two days later, also while at Williams’s apartment, with Williams and Donna Morgan also present. On that occasion, defendant focused his plan upon the Subway shop at which he had worked.

According to Aldridge, defendant asserted that he “knew the hours. He knew the people who worked there.

He knew . . . where the safe was and what he decided to do was pick this individual Subway because it was the easiest target for him to rob.” Aldridge recounted a third conversation that occurred at Williams’s apartment, in which defendant repeated his plan to rob the Subway shop that weekend and execute the employees who were on duty at that time by “lay[ing] them down and blowing] them away at the back of their heads, using his words.” Aldridge testified that he and Williams were “pretty much trying to discourage [defendant] from trying to rob somebody. We knew we had no control over [him].

He had just purchased a gun. He was really excited about that. We were more or less trying to save his life and getting him out of a bad situation.” Nevertheless, Aldridge testified, defendant stated that although he “felt bad” that he would have to kill people whom he knew, he also repeatedly stated that he needed money and did not “give a damn.

They are going to die because I need the money.” Aldridge asserted that he declined defendant’s request for a ride to the planned robbery because “one, ... it was a crazy idea, and two, my car was being painted that weekend.” Aldridge asserted that neither he nor Williams believed that defendant actually would commit the planned robbery, because defendant “was one for talking and not doing things.” Williams further testified that on Saturday, June 29, 1991, he informed defendant that defendant would have to move out of the apartment because he (defendant) had told Donna Morgan “things that weren’t true” (that Williams had been unfaithful to her) and because defendant had caused Williams’s telephone to be disconnected due to nonpayment of defendant’s long distance bills.

During that conversation Williams left defendant alone in the apartment living room at one point, and thereafter Williams and Donna heard defendant load his gun. Williams testified that Donna mentioned that defendant was loading his gun and that Williams replied to her, “don’t worry, he is not a fool.” Williams testified that, after defendant left the apartment, he checked the “gun box” that defendant kept in the living room on the side of the couch and found it empty. Defendant returned to the apartment half an hour later and asked to speak with Williams, who met him outside the front door.

Williams testified that defendant was depressed and crying and that he told Williams that he loved Williams like a brother, did not want Williams to be “like him,” and wanted Williams to be “better than him.” According to Williams, defendant then gave him a note, the general contents of which he could not recall, but the last line of which read, “pray for me.” Because defendant had no other place to go that night, Williams and Donna agreed to let him remain in the apartment until the next morning. Defendant again departed from the apartment at approximately 11:30 p.m.

Williams testified that he believed defendant took his gun because he heard defendant handling it only shortly beforehand, and because defendant “always had it.” Rebecca James (James) resided in an apartment next to the Subway shop, which was located approximately five blocks from Williams’s apartment. At approximately 1:30 a.m. on Sunday, June 30, as James walked home from a date, she passed the Subway shop.

The shop was well lit and she saw three males inside: one White person behind the counter, who appeared to be an employee; one Black person in front of the counter, who appeared to be a customer; and a third person, who was White. James testified that the Black person was holding what she thought or assumed was a metal pan. She thereafter described hearing a loud sound, which she assumed was the metal pan being dropped to the floor. James explained that after she heard the noise, she “immediately saw the customer [the Black person] either run around the counter or jump on the counter and over.

I thought maybe he was chasing him.” James assumed that the three were simply “roughhousing,” proceeded to walk to her own apartment, and saw nothing more. At approximately 1:45 a.m., another person—David Kallman—approached the shop, noticed “a body with blood around it,” and telephoned 911. Police arrived at the scene at approximately 2:00 a.m. and found Brian Berry lying dead in a pool of blood near the counter. A Subway employee, James White, was found lying facedown in a pool of blood behind the cash register, alive but mortally wounded.

Brian Berry had been shot twice, once in the cheek from 12 to 18 inches away and a second time while the gun was in contact with his head, just above the right ear. James White had been shot with a gun that was in contact with the crown of his head when fired. A forensic pathologist testified that the trajectory of the bullet that struck White was consistent with the victim having been shot while kneeling. All three bullets were recovered. The cash register was empty of all paper currency, and the shop’s floor safe was open.

Testimony revealed that approximately $580 had been taken from the cash register and the floor safe (including approximately $200 in paper currency and rolled coins that were missing from the safe). Of this sum, between 60 and 75 one dollar bills, some of which had been kept in the safe for making change, were missing. The cash register’s journal tape showed that the last transaction had taken place at 1:32 a.m.—an order for a turkey and bacon sandwich, a seafood sandwich, and two tuna salads. The order had been subtotaled, but the items apparently had not been paid for.

Investigators found a plastic Subway bag containing a wrapped turkey and bacon sandwich in an alley outside the shop’s back door. The prosecution’s fingerprint expert testified that defendant’s left index fingerprint and left thumbprint were found on the bottom left-hand comer of the plastic Subway bag. According to that witness, analysis of the position of the two prints—both of which were on the same side of the bag—disclosed that they “could not [have been] placed” on the bag at the same exact time, but must have been placed on the bag at different times.

The three bullets recovered from the victims’ bodies were examined by an independent firearms expert who testified that, in his opinion, each had been fired from the gun later confiscated from defendant upon his arrest and could not have come from any other weapon. Finally, investigators recovered a shoe print from the top of the Subway shop’s counter, but were unable to match that print with the single shoe seized from defendant’s residence immediately following his arrest.

Defendant subsequently returned to Williams’s apartment, where Williams heard defendant enter at approximately 3:00 or 3:30 a.m. on June 30, 1991. Williams testified that when he awoke in the morning, defendant was gone, but his personal belongings still were there. According to Williams, defendant returned to the apartment later that day and was “very excited, kind of hyper almost” and asked whether Williams had read the newspapers. Williams responded “no,” and defendant told Williams that there had been a robbery at the Subway shop.

Williams testified that defendant then gave him $60 in cash for his share of the apartment telephone bill and said that he had made living arrangements in the dorms at CSUN. Later on Sunday, June 30, Aldridge “saw on the news [that] the specific Subway that [defendant] had planned to rob had been robbed and two people had been murdered, just as [defendant] said he would murder them.” Aldridge immediately telephoned Williams, who also had seen the report. Aldridge testified that defendant telephoned him later that evening and was “very hyper. ... He constantly told me he had a surprise for me.

And I asked him specifically if he had done the murders and robbed the Subway. He giggled. He would not tell me no, but he wouldn’t tell me yes.” Defendant was scheduled to work in the supermarket meat department on Sunday, June 30, but telephoned to say that he was ill. At approximately 11:00 a.m. that day, defendant rented an apartment from Donna Lopez, producing $400 in cash in $10 and $20 bills. Lopez testified that she advised defendant that she could not accept cash and that she needed to run a credit report.

Defendant returned shortly thereafter with a completed application and two money orders for $400 total, plus $25 in $1 bills for the credit check. He moved into the apartment the next day. James, who had observed the interior of the Subway shop at or around the time of the crime, was contacted by the police on June 30 and described the Black man whom she had seen as being in his early twenties, “approximately 5-11,” “not real Black in color,” with “big lips” and “short cropped hair, Afro style.” Defendant attended his job at the supermarket on July 2.

Ostrander, who also was on duty at that time, testified that he was busy with customers but that defendant at one point grabbed his arm and said “I need to talk to you about something.” According to Ostrander, defendant inquired whether Ostrander knew about the Subway killings. Ostrander replied that he was unaware and testified that defendant replied, “well, there was killings at the Subway shop.

I popped those two kids.” Ostrander testified that he did not believe defendant and that he replied, “Yeah, right.” In response, Ostrander asserted, defendant showed him a small handgun that defendant kept in his right sock. According to Ostrander, defendant told him that he had been wrongly accused of stealing money from the Subway shop and had been upset about that false charge. Ostrander recounted that defendant said he had been in the shop’s parking lot for an hour with a friend, planning the robbery.

And then, Ostrander asserted, defendant “told me how he did everything.” “He said he went into the shop to make it look like he was purchasing a sandwich . . . and looked around. ... He said he noticed that there was somebody sitting at a booth, a young kid. . . . And ... the kid made a remark to him, ‘hey, don’t I know you from somewheres?’ [f] And [defendant] told me he said back to the kid, ‘no, I don’t know you. . . .’ []Q And the kid said, ‘oh no, I do.

I know you from somewheres.’ [f] [Defendant] told me that he . . . knew he had to pop that kid because ... he knew that kid would remember him.[] [f] And at that time he pulled the gun out and made both of them go around the back of the counter because he said he knew the safe was in the floor. And also, he wanted to keep the guy away . . . from the cash register . . . because he knew there was a buzzer . . . that was supposed to be there. [][] And when he walked him up to the safe, he made the guy unlock the safe.

And as soon as he unlocked the safe he said the guy that was unlocking the safe that was working there, he had his back to [defendant], and [he] shot him in the back of the head. And at that time he said the kid turned around and the guy just looked at him, and he shot him again.” Ostrander continued: “He said that ... he was pissed about [the gun] because he said it didn’t have enough, excuse my language, ‘fucking killing power.’ [f] And at that time he said the one that opened the safe . . . went down on the ground. And then the other kid in the shop started to run.

And . . . [defendant] caught him on the left side of the temple of the head and shot him in the side of the head, and he fell down on the opposite side of the counter, [f] And he said that ... he went over to the other kid and put the gun up to his head and the kid, he said he was laying in a puddle of blood crying and screaming, and he pulled the trigger and it went ‘click, click,’ and he said the gun ran out of ‘fucking bullets.’ [][] And then he had a brown bag with him that he carried ... so he could pick ... up [the cartridges] so nobody could trace it.

And he forgot to do that when he first fired the gun . . . [a]nd . . . couldn’t find all the bullets. ... [f] He said when he ran out of the shop, the kid on the outside of the counter that was laying in the blood . . . was still screaming and stuff like that, and he ran out of bullets.

And at that time he said he knew the kid was living, and he just ran out of the shop.” Ostrander added that defendant told him that the Subway employee who had opened the safe was one of the persons who had told Subway management that defendant earlier had stolen money from the shop and that defendant “had a grievance against him, and that both victims had pleaded, ‘[pjlease don’t shoot me.

Don’t shoot me.’ ” Ostrander further testified that defendant told him that he took “a little less than 500 bucks”—and that when defendant told him “all of this,” he “absolutely [did] not” believe defendant, because he did not seem to be the type of person who would commit such acts. Aldridge recounted that he had additional telephone conversations with defendant on July 1 and 2 and that, during the latter conversation, defendant directed Aldridge to go to an abandoned gas station and telephone him at a specific number from a phone booth there.

Aldridge, accompanied by his friends Raquel Rose and Wendell Jones, drove to that location as directed and, while standing at the phone booth, Aldridge heard defendant call him from across the street. Aldridge testified that he reentered his car, drove across the street, and picked up defendant, who directed that Aldridge drive circuitously to defendant’s apartment.

Aldridge testified that defendant, contrary to his normal character, was extremely nervous and patted him down “to see if I had a gun.” Aldridge testified that defendant was carrying his gun without its clip but with a bullet in the chamber and that once they were inside defendant’s apartment, Aldridge insisted that defendant place Ms gun on a shelf where all could see it. Thereafter, Aldridge recalled, he and defendant walked outside alone and Aldridge asked defendant whether he had committed the murders.

Defendant responded again in a giggling manner and, smiling broadly, said “yeah, I blew them away.” Aldridge explained, “he knew what the subject would be about, and after I asked him, he just let loose.

It was a big laugh and a big yes.” Aldridge recounted: “He . . . told me [that] ... to avoid being id’d, he felt bad about it, but he had to blow them away, and he described [how] he shot one of them behind the head and another one on the side of the head and he wasn’t sure if he was dead yet, so he shot the other guy behind the head again.” According to Aldridge, defendant committed the crimes because “he needed the money.” Defendant told Aldridge that he had gathered approximately $600 or $700 in the robbery. Defendant treated the group to food and drinks, and they spent the night together at his apartment.

After Aldridge drove defendant to his supermarket job the following morning, Aldridge telephoned Williams. Aldridge testified that he did not want to turn defendant in, but believed that Williams would take that step. Williams and Donna Morgan did so, and Aldridge eventually also contacted the police and cooperated with them. The witness who lived near the Subway shop, James, learned that a reward was being offered in connection with the crime investigation, and her family arranged for her to meet with a private attorney in connection with any possible reward.

On July 9, 1991, James helped the police produce a composite drawing of the Black man she had seen inside the Subway shop and later testified that the completed sketch looked “something like” the man she had seen. The sketch showed a man without eyeglasses. Various witnesses testified that defendant usually wore glasses but sometimes did not. Although James had been unable to identify defendant from a photographic lineup shown to her a few days after the crimes, at the trial nearly two years later, James was “absolutely positive” that defendant was the man she had seen in the Subway shop.

Nevertheless, James acknowledged, there were dissimilarities between defendant and the man she recalled having seen and described to the police: James did not recall the man’s wearing eyeglasses, and she recalled the man as having a rounder build and face than defendant’s as he appeared at trial. Ostrander further testified that, despite having been told by his own girlfriend about the Subway crimes, he still had not believed defendant’s story, and for that reason did not disclose to the police, until after defendant had been arrested, the admission that defendant had made to him.

Ostrander explained that defendant previously had made up various stories “to impress me or whatever,” but that he had begun to believe defendant’s story when, upon departing at the end of one of his shifts, he was met in the parking lot by a pair of Black men who told him to “keep [his] fucking mouth shut.” Thereafter, according to Ostrander, the two men, both wearing sunglasses, met him as he arrived for work and stared at him for approximately 30 seconds.

At that point, Ostrander stated, he “knew [he] had a problem,” went inside the market, called a meeting of his supervisors, and told them “what’s going on.” Ostrander testified that he subsequently received numerous threatening telephone calls at his workplace and that his employer moved him to three different stores during a six-month period in response to those threats.

Ostrander also testified that, after he attended the preliminary hearing in this case, his supervisor told him not to go to work that day, because other supermarket employees had reported that two men with sunglasses had been waiting for him at the meat department for about 20 minutes. Ostrander explained that he was kept off the work

schedule for a few days thereafter. Finally, Ostrander testified that once, while driving to discuss these matters with a supermarket supervisor, he was run off the road, but was told by supermarket management that it was unnecessary to file a police report concerning that incident and that the supermarket would protect him by moving his work location from one store to another.

Ostrander conceded that, because of these experiences, he feared for his own safety and once had told police officers that if the case against defendant “goes to trial I am not going to remember anything.” On cross-examination, defense counsel confronted Ostrander with a prior statement Ostrander had made to the police, in which he had said: “I just want to be truthful. I will go to the court for you, but that’s my terms and I want to do it. And if I have to ask the police department to help me out with [my employer] with a lawyer stating, okay, this man, we are going to need him. This is the terms.

You are going to give him a settlement and it is not going to be no $50,000 or something because he cannot live. I want to get something going for myself.” Ostrander explained his comments as reflecting his frustration that, because he had reluctantly become a witness in this case, he had “lost” his 11-year career at the supermarket and had sought a settlement from the market so that he could relocate.

When asked by defense counsel whether the above-quoted statement “represents] your feelings on the subject?” Ostrander responded: “My feelings is I feared for my life and wanted to move away.” Nine days after the crimes were committed, defendant was arrested on the street, in front of his apartment. He was not wearing eyeglasses. He waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]) and agreed to speak with the police. The police report’s

summary of that interview reads as follows: “[Defendant] denied both the murders of James White and Brian Berry, and the robbery of the Subway sandwich shop. [Defendant] claimed that on the date of the crime, 6-30-91, he was visiting a CSUN student, Etsuko Sugita. He was visiting with her until about 0140/0145 hours. [Defendant] said that he did not have his gun with him because when he left the apartment earlier in the evening he could not find it. [Defendant’s] statements to the detectives included T always carry the gun with me.

I carried it all the time until this happened.’ ” A transcript of the tape-recorded interview was prepared. 2. The defense case Defendant testified on his own behalf. He denied committing the robbery or the murders, denied having the various conversations recounted by Williams, Aldridge, and Ostrander, and denied much of the testimony by other witnesses. He testified he was frightened when he spoke to the police, and assumed he had been arrested because he is Black and formerly had worked at the Subway shop.

Defendant further explained that he was nervous and embarrassed during the interview because he knew who had committed the crimes, but thought that the police would not believe his story about being at the scene and for that reason did not tell the full truth at that time. He also testified that he began wearing eyeglasses in third grade and cannot see clearly without them. Defendant asserted that Williams had made various comments about robbing the Subway shop.

Specifically, defendant testified that Williams had picked him up at least once from his shift at the shop and had remarked that the enterprise did not appear to be making money. Defendant testified that, in response, he showed Williams hourly logs reporting the sums that had been collected. Defendant further testified that, in early June 1991 (while defendant was living at Williams’s apartment), Williams raised the idea of robbing the Subway shop after Williams and Donna Morgan watched a crime program on television.

As defendant described it, Williams was sitting on the living room floor, holding his baby, and commented, “Hey, if you rob the Subway, you can go out the back door, can’t you?” Defendant testified he replied by observing that such a plan would not work, because a certain gate was kept locked. Defendant added that Williams again brought up the subject approximately one week prior to the commission of the crimes, when he and defendant were at the target practice range.

At that point, according to defendant, Williams asked him, “if you shoot people in the Subway, can’t you kill them in the refrigerator?” Defendant recounted that he responded, “if you shoot anybody in a place like that, you’ll lose your hearing.” Defendant testified that he began to believe that Williams “was a little bit overboard with this,” but that defendant “did not worry about it.” Defendant testified that when he lived with Williams and Donna Morgan, they bickered constantly, were unfaithful to each other, and called upon him to help settle disputes that arose between them.

Defendant also asserted that when he left Williams’s apartment on the evening prior to the Subway crimes, he placed three $20 bills on a counter in the living room to cover his share of the telephone bill. He further testified that when he returned to the apartment shortly thereafter to speak with Williams, he assured Williams that he was not trying to interfere with Williams’s relationship with Donna and told Williams that he (Williams) would be a “better man” if he took defendant’s advice and applied for a job at a supermarket, which in turn would provide benefits for Williams’s child.

Defendant also recounted that he told Williams not to worry about him and that he understood that Williams had to “do what you have to do.” Defendant denied Williams’s testimony that he gave Williams a note.

Defendant asserted that he asked, “what’s going on?,” and that Williams responded, “meet me at the Subway at one o’clock.” Defendant testified that, after he left Williams’s apartment, he walked to a Kentucky Fried Chicken restaurant where he kept his bicycle locked and rode it to the supermarket to speak with an acquaintance who previously had offered to share an apartment with him, in order to make arrangements for new housing. The acquaintance was not at work.

Defendant testified that he then went to the CSUN dorms to visit a Japanese student named Etsuko, whom he had met earlier that evening, and made plans to meet her at her dorm at midnight. Defendant testified that he left Etsuko’s dorm after 1:00 a.m. and did not care that he was late for his appointment with Williams at the Subway shop at 1:00, because he had since come to the conclusion that he “did not want to hear anything that [Williams] had to say” to him.

Nevertheless, defendant testified, he decided to walk the half- or quarter-mile to the Subway shop, because he thought Williams would be upset with him for failing to arrive as planned at 1:00 and defendant wanted to be able to later tell Williams that he indeed had been there after the meeting time and simply had tired of waiting for him. Defendant further explained that he planned to be able to describe to Williams the employees who had been working that shift, in order to prove to Williams that he had been at the shop after 1:00 a.m.

Defendant testified that as he entered the shop he noticed a person with a bloody face sitting on the floor facing the counter—a position that, defendant conceded on direct examination, was different from that shown in the crime scene photos. Thereafter, defendant claimed, he heard the two-by-four board that was used to bolt the shop’s back door drop to the ground, and he then heard the distinct sound of two sets of footsteps in the back of the shop.

Defendant described one set of the footsteps as sounding “like tennis shoes” and making a “chirping” noise and the other set as sounding “like a different shoe, a heavier shoe.” Defendant asserted he walked toward the back of the shop, jumped over another person lying on the ground behind the cash register, looked around a comer, and saw the back door closing slowly, as if under its own motion. Defendant testified he ran out the back door, saw a departing 1990 Mustang, and chased after it.

According to defendant, the car’s brake lights illuminated, revealing white light emitted from broken plastic panels on each side. Defendant asserted he realized at that point that the car was Williams’s (who drove a gray 1990 Mustang with broken tail lights). Defendant explained he “immediately thought that I should take something and let him know that I know what he did.” According to defendant, “when I looked down I saw the [Subway sandwich] bag.

I went to reach for it and then something told me don’t touch anything so I didn’t, and then I ran.” Later in his testimony, defendant explained: “When I looked down I saw the bag and the logo, and I could see the asphalt up under it so there was nothing in the bag. And I had went to pick it up, and then I just thought don’t touch it. And there was nothing in the bag that I can remember seeing. I saw clear through the bag to the asphalt.

It was dark beneath.” Asked if he recalled “actually touching the bag itself,” defendant responded: “In a way I do, but I don’t think that I had—I don’t believe that I had actually lifted it. I had never completed a stand from off the ground where I had bent over to touch it. Right then I let go before I began to lift up.” Defendant twice demonstrated for the jury how he had bent down and touched the bag by pinching it between his left forefinger and thumb, and he reiterated that the bag he had touched had been empty.

Thereafter, according to defendant, he ran down the alley and “thought about going down to the police station but didn’t know if that was the right thing to do. Because I knew who did it personally. [][] I began to think . . . [w]hen I was crossing the street . . . ‘why did he ask me to meet him there.’ And then I begin to wonder if he was going to kill me because he was acting like he was mad at me that night I left.

So I didn’t know what to do.” Defendant testified that, when he arrived back at Williams’s apartment in the early hours of Sunday, June 30, he “tried not to go to sleep so that I wouldn’t get confronted” by Williams or be “caught off guard” by him. On cross-examination, defendant acknowledged he was armed with his own gun at that time. Defendant further testified he left the apartment at 6:00 on Sunday morning, June 30, checked into a nearby hotel, and then departed to look for an apartment to rent.

Defendant stated that Aldridge had paged him numerous times at work following the Subway crimes and that he finally telephoned Aldridge because the constant pages were annoying. Defendant asserted he agreed to let Aldridge come to see his new apartment so that he (defendant) “would be able to know whether Tai had intended to do what he did . . . .” On cross-examination, the prosecutor quoted extensively from the transcript of defendant’s postarrest interview, which revealed that defendant repeatedly and emotionally had denied being at the Subway shop on the morning when the crimes were committed.

The prosecutor exposed and highlighted scores of inconsistencies in defendant’s testimony and ultimately asked defendant why the jury should believe his story and disbelieve the numerous witnesses who had testified contrary to his version of the events.

Defendant responded that nearly everyone else who had been called by the prosecution to testify at his trial had lied—some witnesses, about “a lot of things”; others, about “a few things”—and that he had “tried” to tell “nothing but the truth.” Los Angeles Police Officer Peggy Moseley, one of the investigating officers in the matter, was called to testify by defendant and recounted that eyewitness James had been unable to identify defendant in a photographic lineup conducted three days after the Subway crimes. B.

Penalty Phase Evidence After finding defendant guilty of the charged offenses and making true findings on the two special circumstance allegations, the jury heard penalty phase evidence and ultimately deadlocked seven to five in favor of imposing a sentence of death. The court declared a mistrial as to penalty, after which defendant’s trial counsel (Bruce Hill) was relieved due to a conflict and replacement counsel (Richard Leonard) was appointed to represent defendant.

Nine months later, the court empanelled a new jury and the prosecution presented, in essence, the evidence set forth ante, detailing the circumstances of the crime: defendant had financial problems in the months prior to June 1991 and was living with friends because he could not afford an apartment of his own; he purchased a handgun in early June 1991 and spoke repeatedly of robbing the Subway shop; on June 29, 1991, defendant robbed the Subway shop and fatally shot each of the two victims in the head; and defendant thereafter admitted doing so to his friend Aldridge and his coworker Ostrander. (Aldridge testified on direct examination that both he and Williams had received $7,000 in reward money that had been offered in connection with the Subway crimes.) Finally, as explained post (pt.

U.C.4.), the victims’ relatives testified concerning the devastating impact of the killings on their own lives. Defendant again testified on his own behalf, essentially repeating his testimony at the guilt phase of the trial. In addition, defendant described his childhood and his brief service in the United States Marine Corps.

He explained that he had dropped out of college because he had misspent financial aid money that had been granted to pay for his housing expenses, and that he also had written a few bad checks in May and June of 1991, but asserted the bank erroneously had failed to honor some of his checks. Defendant denied robbing the Subway shop or killing the two victims and asserted that Tai Williams was the true perpetrator of the crimes. Defendant explained that he previously had lied to the police and had not implicated Williams, because defendant did not trust the police and was frightened.

Defendant repeatedly stated that he now was telling the truth and that the various prosecution witnesses who testified otherwise were lying. Thirteen witnesses testified extensively on defendant’s behalf. Some explained that they had met defendant as a child when his mother had joined a church choir group and that they found him to be nice, quiet, nonviolent, responsible, and mild-mannered. Others—such as former neighbors at college—gave similar testimony.

Defendant’s mother testified that she was strict when raising defendant and his sisters and that she remained protective of defendant when he was in college, sometimes visiting him two or three times a week and supplying him with money and groceries. She also explained that after defendant misspent the financial aid money that had been intended for his housing expenses, she met with defendant and school officials and arranged to repay the school more than half of the funds, with the understanding that defendant would repay the balance.

Defendant’s mother characterized him as meek, mild, and soft-hearted, and testified that when he telephoned her in mid-June to tell her that he was staying with Williams, she became angry and told him to return home, but he refused. Defense counsel also introduced six photographs of defendant, depicting him (

a) during a family vacation cruise celebrating his 16th birthday, (

b) during a visit to Hearst Castle in San Simeon, (

c) in second grade “when he first got his glasses,” (

d) at an Order of the Eastern Star banquet that defendant attended with his mother and sisters as a Junior Mason, (

e) in a helicopter, along with his sisters, at a Young Marine Corps camp, and, finally, (

f) graduating from high school. In rebuttal, the prosecution presented the testimony of the detective who had interviewed defendant on the day of his arrest. The officer recounted that defendant repeatedly and forcefully had denied being present at the Subway shop on the night of the crimes. II. Discussion A. Asserted Errors During Selection of the First Jury The court prepared, and prospective jurors completed, a detailed juror questionnaire. Defendant challenges the use and administration of the questionnaire and the resulting jury selection process in this case.

Indeed, in the course of his combined 210 pages of briefing on this subject, he argues that this case “presents virtually every imaginable form of error which can possibly occur in voir dire and jury selection.” We address immediately post the challenges that affect the first trial. We shall consider in a subsequent

section (pt. II.B.l.) defendant’s additional voir dire challenges relating specifically to the penalty phase retrial. 1. Claims concerning Code of Civil Procedure

section 223 At the time of the first and second trials in this matter, Code of Civil Procedure

section 223 provided that, in a criminal case, the court “shall conduct the examination of prospective jurors,” but that the parties “upon a showing of good cause” may “supplement the examination.” (As added by § 7 of Prop. 115, approved by electorate eff. June 6, 1990; see generally People v. Taylor (1992) 5 Cal.App.4th 1299, 1307-1309 [7 Cal.Rptr.2d 676] (Taylor) [describing the history of the statute].) By contrast, in civil cases, at the time of the trials in this case (as now), Code of Civil Procedure

section 222.5 generally conferred a right of attorney voir dire. Defendant contends that the restrictions imposed by Code of Civil Procedure

section 223 upon voir dire in criminal cases violated his equal protection rights under the state and federal Constitutions. We reject that claim for the same reasons that we recently set forth in People v. Ramos (2004) 34 Cal.4th 494 [21 Cal.Rptr.3d 575, 101 P.3d 478]: “The right to voir dire the jury is not constitutional, but is a means to achieve the end of an impartial jury. (People v.

Estorga (1928) 206 Cal. 81, 84 [273 P. 575].) . . . . ‘[T]here is no constitutional right to any particular manner of conducting the voir dire and selecting a jury so long as such limitations as are recognized by the settled principles of criminal law to be essential in securing impartial juries are not transgressed.’ (People v.

Boulerice (1992) 5 Cal.App.4th 463, 474 [7 Cal.Rptr.2d 279] (Boulerice).) [][] Federal and state courts have held, however, that the Legislature may establish reasonable regulations or conditions on the right to a jury trial as long as the essential elements of a jury trial are preserved, including number of jurors (12), unanimity, and impartiality. (Boulerice, supra, 5 Cal.App.4th at p. 474.) The purpose of Code of Civil Procedure former

section 223 was to curb commonly known abuses during the voir dire process in criminal cases. (Boulerice, supra, 5 Cal.App.4th at p. 474.) [f] As the People observe, therefore, the statute’s distinction between criminal and civil voir dire is constitutional as long as it is rationally related to a legitimate state purpose under the rational relationship test, a test met here. (People v. Leung (1992) 5 Cal.App.4th 482, 496 [7 Cal.Rptr.2d 290].) By enacting Code of Civil Procedure

section 223, the voters sought to prevent abuse of the jury selection process in criminal cases. Prevention of abuse of a statutory right is a legitimate purpose, and the voters’ action was aimed at achieving a legitimate purpose rationally related to the distinction made by the law. (Leung, supra, 5 Cal.App.4th at p. 496.) Because the classification drawn by Code of Civil Procedure

section 223 was rationally related to a legitimate state purpose, it did not deny defendant his equal protection rights under the California and United States Constitutions. (Leung, supra, 5 Cal.App.4th at p. 496.) ” (Ramos, supra, 34 Cal.4th 494, 512-513.) Defendant also argues that reversal is required because the trial court did not understand the extent of its discretion under Code of Civil Procedure

section 223. We reject defendant’s claim. Defense counsel moved unsuccessfully under that statute for both attorney-conducted voir dire and individual sequestered voir dire concerning the issue of death qualification. At the hearing on that motion, the trial court discussed a number of cases cited by defense counsel, including Taylor, supra, 5 Cal.App.4th 1299.

Defendant focuses upon one sentence of the court’s description of Taylor, in which the court asserted, “A trial court is not allowed to ask open-ended questions but may ask those questions that could call for a yes or no answer.” We agree that the trial court’s characterization of Taylor was inapt—that case held only that open-ended questions were not constitutionally compelled in that case (see id., at pp. 1315-1316).

But the record in the present matter discloses that the court’s extensive 20-page juror questionnaire (which was, of course, part of the voir dire process itself) contained numerous open-ended questions (such as “what, if anything, have you already learned about this case or about the defendant?”). Moreover, during the court’s own voir dire examination of the prospective jurors, it did occasionally ask open-ended questions (inquiring, for example, “what are those situations?” in response to a prospective juror’s assertion that he could vote for the death penalty in some situations).

In any event, the record demonstrates the trial court’s general awareness—at both the first trial and the penalty phase retrial—that it possessed discretion to conduct oral voir dire as necessary and to allow attorney participation and questioning as appropriate.

For example, at the start of the first trial, the court specifically advised the parties that it did not preclude “any consideration of additional questions on a juror by juror basis, and I will consider each request individually as they come up.” Moreover, as further explained immediately post, defendant has not shown that the voir dire examination conducted by the trial court in this matter was inadequate. 2.

Claims of error concerning the jury selection process Defendant claims that the trial court’s voir dire examination was insufficiently comprehensive, thereby impairing both defense counsel’s ability to make challenges for cause and the trial court’s ability to rule properly on those challenges, and that “there is no guarantee that the jurors selected in either phase of the capital trial were fair and impartial.” As noted ante, the trial court required all prospective jurors to complete a 20-page juror questionnaire that asked 56 questions, many with subparts, calling for more than 90 total responses.

Although the court offered counsel the opportunity to suggest modifications to the questionnaire, the record does not reflect that either party did so. The resulting questionnaire required the prospective jurors to provide answers to a broad range of questions. Each juror was directed to state his or her name, age, sex, area of residence, occupation and employer, total family income, former occupations, and prior places of employment, as well as whether he or she had served in the Armed Forces, and if so, whether he or she had any involvement with the military police or military justice system.

The questionnaire inquired as to each prospective juror’s marital status, as well as the names, ages, occupations, and employers of spouses and children. It also probed each prospective juror’s level of education, as well as any legal or medical training. Some questions required only “yes” or “no” answers or other similarly brief responses.

Many urged the prospective juror to explain his or her answer to open-ended questions such as inquiries regarding any experience visiting an incarcerated friend or family member, any association with attorneys, law enforcement officials, psychologists, or psychiatrists, and any prior jury service. Each prospective juror was asked whether he or she (or a close friend or relative) had been involved in any criminal incident.

Other questions probed each prospective juror’s ownership or use of weapons, participation in neighborhood crime prevention groups, and pressing business or personal matters or health problems that could affect the prospective juror’s ability to sit through a lengthy trial. The questionnaire further explored whether each prospective juror would have difficulty following the law as given by the trial court, even if he or she disagreed with the law.

Each was asked whether he or she had “any feelings against the defendant solely because the defendant is charged with this particular offense . . .” and whether the “mere fact that criminal charges had been filed against the defendant” caused the prospective juror to conclude that the defendant is “more likely to be guilty than not guilty.” Each prospective juror was asked whether he or she knew “anything about this case other than what you have heard in open court,” or was acquainted with defendant or the attorneys.

Followup questions inquired: “What, if anything, have you already learned about this case or about the defendant? Where did you learn this? Did this information make you favor the prosecution or the defense?” Additional questions inquired about newspapers or periodicals frequently read, radio and television news broadcasts frequently heard or watched, the most recent book read, specific news stories or topics followed by each prospective juror, and participation in civic, social, religious, or volunteer work or organizations.

The questionnaire probed, in open-ended questions, each prospective juror’s willingness to “stay as long as is necessary to reach a verdict” and to keep an open mind until all the evidence was presented and arguments were heard.

Each prospective juror was told that parties, attorneys, or witnesses “may come from a particular national, racial, or religious group” or have “lifestyles different from your own,” and each was asked, “Would that fact affect your judgment or the weight and credibility you would give his or her testimony?” Each also was asked: “Do you know of any reason why you would not be a completely fair and impartial juror in this case regardless of whether the victim was male or female, an adult or child, related to the defendant, or a stranger, etc.?” Finally, a separate five and one-half page

section of the questionnaire probed each prospective juror’s attitude concerning the death penalty. The trial court conducted further voir dire examination of each prospective juror, first asking whether he or she wished to change any response set forth in the written questionnaire, then additionally questioning each person who failed to respond to any written inquiry or who gave ambiguous, conflicting, or otherwise problematic answers to those inquiries. Finally, the trial court asked each prospective juror a series of four questions concerning his or her attitude regarding the death penalty. a.

General challenges to the voir dire process Defendant claims the voir dire examination was inadequate because (1) the questionnaire itself was unduly lengthy and complex; (2) the questionnaire was “poorly administered,” in that prospective jurors were pressured to complete the forms quickly, with many spending less than an hour doing so, and some of the completed forms contained inaccuracies; (3) the trial court displayed a “cavalier attitude” when it conducted only “rushed” and “superficial” followup questioning that did not clarify confusion experienced by some prospective jurors; (4) the court improperly conveyed, through the style and tenor of its questioning, that “the important thing was for the jurors to provide the ‘correct’ answer” and did not “approach voir dire with an interest in discovering information about [the] prospective jurors’ real views and attitudes,” but instead was “solely interested in impaneling a jury as quickly as possible”; (5) the court’s voir dire exhibited a pro-prosecution and pro-death-penalty bias; and (6) the court’s voir dire examination did not provide sufficient information with which to determine the parties’ challenges for cause.

Because defendant failed to object or suggest modifications to the questionnaire, he has forfeited any challenge to its length and asserted complexity or to any other aspect of its contents. (People v. Avena (1996) 13 Cal.4th 394, 413 [53 Cal.Rptr.2d 301, 916 P.2d 1000] (Avena).) In any event, on the merits, no basis for reversal appears.

It is established that a trial court “is in the best position to assess the amount of voir dire required to ferret out latent prejudice, and to judge the responses” (Taylor, supra, 5 Cal.App.4th 1299, 1314), and hence a trial court has “ ‘great latitude in deciding what questions should be asked on voir dire.’ ” (People v. Earp (1999) 20 Cal.4th 826, 852 [85 Cal.Rptr.2d 857, 978 P.2d 15], quoting Mu’Min v.

Virginia (1991) 500 U.S. 415, 424 [114 L.Ed.2d 493, 111 S.Ct. 1899] (Mu’Min).) In the present case, “[viewing the voir dire record as a whole, we cannot say that the voir dire was inadequate and that the resulting trial was fundamentally unfair.” (Stewart, supra, 33 Cal.4th 425, 458.) Defendant observes that the trial judge distributed the questionnaires to prospective jurors midmoming and repeatedly admonished that they be returned to the court “by noon today, no later than 1:30 .. . this afternoon.” The trial judge also informed the prospective jurors that the courtroom would be closed between noon and 1:30 p.m. and that, if the form could not be returned by noon, they would need to wait to do so until the court reconvened at 1:30 p.m.

According to defense counsel at trial, most jurors took approximately 45 minutes to complete their forms, which, defendant calculates, averages approximately 28 seconds per response. From this, defendant argues, prospective jurors must have been pressured into completing the forms quickly and, he theorizes, inaccurately. In support, defendant observes that a few prospective jurors left some questions blank, thereby demonstrating that they were rushed or confused.

As the trial court observed, however, many of the questionnaire inquiries could be answered quickly with a few words, and most of the forms were fully completed, many with thoughtful written answers to the various open-ended questions.

Questions that any prospective juror did not respond to were in turn repeated by the judge during the in-court voir dire examination of that prospective juror and, in some instances, the exchange disclosed that the prospective juror had not been confused, but simply had left items blank in lieu of responding “no” or “inapplicable.” Prospective jurors who gave inconsistent or ambiguous answers were asked followup questions by the trial court and, in each instance, the confusion was dispelled and an answer given.

Defendant fails to identify any prospective juror who indicated to the court any difficulty in completing the questionnaire in the time provided. Nor do we believe that the record supports defendant’s claim that the court’s voir dire examination of the prospective jurors was unduly rapid or otherwise improper. The record shows instead that the trial court was merely efficient—the process was completed in approximately three hours and 20 minutes, resulting in an average examination of approximately three minutes per prospective juror.

Nor does the record support defendant’s general assertion that the trial court exhibited a pro-prosecution bias or that it pressured prospective jurors to give appropriate answers. For example, one prospective juror had indicated in her questionnaire that she believed defendant “more likely to be guilty” because an information had been filed against him. The trial court explained the presumption of innocence to the prospective juror and asked whether she still believed that defendant was likely guilty.

When she replied, “probably not,” the court explained that “ ‘probably’ is not good enough.” The prospective juror then changed her answer to “no,” prompting the trial court to state: “When I say it is not good enough, I don’t want you to change your answer just to please me. Don’t worry about me. I like all of you. I don’t care how you think. Do you understand this is very, very important?” The juror conceded that she still believed a criminal defendant more likely to be guilty and the parties stipulated to her excusal for cause.

In dismissing the juror, the trial court stated, “I want to thank you for your honesty.” We conclude that the questionnaire described ante and used in this case adequately probed the prospective jurors’ backgrounds and views in numerous relevant areas and, together with the trial judge’s followup questions, provided an adequate basis upon which the parties were able to exercise challenges for cause as well as peremptory challenges. (See Boulerice, supra, 5 Cal.App.4th 463, 477 [“If there is sufficient questioning to produce some basis for a reasonably knowledgeable exercise of the right of challenge, voir dire by the trial judge alone does not deprive a defendant of the right to adequate voir dire under the Sixth and Fourteenth Amendments”].) Moreover, as noted ante, consistent with Code of Civil Procedure,

section 223, the trial court in this case informed counsel that it would consider “requests]” for “additional questions on a juror by juror basis . . . individually as they come up,” but defense counsel did not act on that offer, apparently because he did not believe any such additional questions were necessary in order for him to exercise his peremptory and for-cause challenges.

Defense counsel employed only 14 of his 20 available peremptory challenges, and evidently was content with the jurors selected. “ ‘The failure to exhaust peremptories is a strong indication “that the jurors were fair, and that the defense itself so concluded.” ’ ” (People v. Dennis (1998) 17 Cal.4th 468, 524 [71 Cal.Rptr.2d 680, 950 P.2d 1035] (Dennis).) Indeed, in view of the circumstance that the first trial eventually deadlocked seven to five on the issue of penalty, there appears to be no reason to question defense counsel’s apparent conclusion that the jurors would be fair to defendant. b.

Challenge to examination for potential racial bias and the possible adverse effect of pretrial publicity Defendant claims that, in light of the circumstance that he is a Black man charged with murdering two young White men in the early 1990’s (which was, defendant asserts, a time of heightened racial tension in the Los Angeles area), the voir dire process inadequately probed prospective jurors’ potential racial biases and the possible effect of pretrial publicity. We disagree.

As noted ante, the questionnaire employed at the first trial specifically informed the prospective jurors that a party or witness “may come from a different nationality, racial or religious group,” and it asked: “Would that fact affect your judgment or the weight and credibility you would give to his or her testimony?” One prospective juror responded in writing, “I might—I try to control my prejudices but depending on what the differences were I might ascribe more or less weight to that person.” Addressing that prospective juror orally in open court, the trial judge referred the individual to his response to the questionnaire inquiry and then stated: “ I am going to give you instructions on how to judge the credibility of a witness, how you can tell whether a witness is telling the truth and telling a lie, and it has nothing to do with any racial characteristics or ethnic characteristics or any different life style than yours.

That is not to be considered in determining whether a witness is telling the truth or not. [f] Do you think that you can follow that?” The prospective juror replied, “Yes, sir.” Defense counsel thereafter exercised a peremptory challenge to excuse that prospective juror. If counsel had believed that further inquiry was necessary in this instance or with regard to other prospective jurors, he could have submitted additional questionnaire inquiries or suggested additional oral questions.

As noted ante, defense counsel’s failure to do so forfeits the claim on appeal. (Avena, supra, 13 Cal.4th 394, 413.) Even if we were to agree that the voir dire examination was flawed, we would not find any reversible error. Addressing this same issue in another capital case, People v.

Holt (1997) 15 Cal.4th 619, 661 [63 Cal.Rptr.2d 782, 937 P.2d 213] {Holt), we rejected the claim of error, observing that “[u]nless the voir dire by a court is so inadequate that the reviewing court can say that the resulting trial was fundamentally unfair, the manner in which voir dire is conducted is not a basis for reversal.” Defendant asserts that Holt is distinguishable, in that counsel in that case were permitted to participate directly in the voir dire process by asking questions of prospective jurors, whereas in the present case the trial court foreclosed that direct form of participation.

As observed ante, however, the trial court did not foreclose counsel from suggesting additional questions to be put to specific prospective jurors, and defense counsel apparently found no need to do so. Relying principally upon Taylor, supra, 5 Cal.App.4th 1299, defendant insists that the trial court should have made further inquiry into possible racial bias against him. Defendant argues that the court in Taylor found such bias under roughly analogous circumstances and urges that we do so here as well.

The Court of Appeal in Taylor reviewed applicable federal and state authority (including high court cases relied upon by defendant, Turner v.

Murray (1986) 476 U.S. 28 [90 L.Ed.2d 27, 106 S.Ct. 1683] (Turner) and Mu’Min, supra, 500 U.S. 415), concluding that “an interracial crime is a ‘special circumstance’ in which inquiry about racial prejudice must be made.” (Taylor, supra, 5 Cal.App.4th at p. 1315.) The appellate court proceeded to reject the defendant’s claim that the voir dire in that case “was improper because the [trial] court preceded some of its questioning (including the voir dire on racial prejudice) with statements that ‘signaled’ the proper answer.

It is not error for a judge to remind prospective jurors that racial prejudice has no place in the courtroom. As Justice Kennedy observed in Mu’Min, a trial judge may choose to ask what information a prospective juror has about a subject, but ‘the judge can also evaluate impartiality by explaining the trial processes and asking general questions about the juror’s commitment to follow the law and the trial court’s instructions.’ (Mu’Min v.

Virginia, supra, 500 U.S. at p. [451], dis. opn. of Kennedy, J.)” (Taylor, supra, 5 Cal.App.4th at p. 1316.) The court in Taylor continued: “Having said this, we must also say that the [trial] court should have made further inquiry in the area of possible racial bias against defendant. [][] As we have discussed, the trial judge asked the prospective jurors if any of them had any quarrel with the principle that no one should be found guilty because of race, creed, color, religion or national origin. The judge also asked whether they would put aside any biases and prejudices they may have had.

But the court asked no questions designed to elicit whether any juror actually held such bias. In a case such as this, where there is a potential of racial or other invidious prejudice against the defendant, a further inquiry should be made.” (Taylor, supra, 5 Cal.App.4th at p. 1316.) In conclusion, the court in Taylor stated: “The failure to do so in this case is harmless, for two reasons. First, the trial court repeatedly emphasized the importance of juror neutrality and a fair trial.

Second, both counsel were specifically invited to ask the court to conduct further voir dire on any proper subject, including possible racial bias, but were satisfied that it was not necessary to do so.” (Taylor, supra, 5 Cal.App.4th at p. 1317.) The same reasoning applies here. As in Taylor, supra, 5 Cal.App.4th 1299, 1317, even assuming that the trial court should have asked additional questions designed to elicit whether any prospective juror actually held a racial bias, any such error would have been harmless for the reasons described.

We cannot say that the voir dire examination that was conducted was “so inadequate that ... the resulting trial was fundamentally unfair.” (Holt, supra, 15 Cal.4th 619, 661.) Defendant also asserts that the trial court’s voir dire examination was insufficient to reveal possible biases resulting from exposure to pretrial publicity concerning the Subway crimes and defendant’s arrest.

Once again, if defense counsel believed that further inquiry was necessary with regard to any particular prospective juror, he could have submitted additional questionnaire inquiries or suggested additional oral questions—and his failure to do so forfeits that claim on appeal. (Avena, supra, 13 Cal.4th 394, 413.) In any event, as explained post, on the merits there is no basis for defendant’s claim of error. The juror questionnaire contained numerous inquiries related to the issue of pretrial publicity.

In addition to asking each prospective juror what, if anything, he or she already had learned about the case or defendant, from what source such information had been obtained, and whether that information made the prospective juror favor one side or the other, the questionnaire asked: “33. What newspapers and periodicals do you read frequently? [SI] (

a) What portion(

s) do you read? (Front page? Sports? Editorials? Crime stories?) [S[] (

b) Do you try to follow major crime stories? (Yes? No?) [1] Which stories did you follow? ... [1] 34. What radio and television broadcasts have you heard or seen frequently during the past year? [j[] (

a) Did you follow any criminal cases in the news? (Yes? No?) [f] What cases? PI[] What did you learn about these cases? [f] 35. What are the most serious criminal cases you have followed in the media during the last year? PH] 36. Do you try to follow stories about the functioning of the criminal justice system? (Yes? No?) . . . [f] 37. If the court instructs you not to read, view, or discuss any news media coverage of this case, will you follow the court’s instructions? HQ ... H] 41. Do you subscribe to or regularly read any newspaper, or periodicals?

If so, please state them . . . .” Defense counsel appended to his motion for attorney-conducted voir dire copies of 12 newspaper articles concerning the Subway crimes, all of which were at that time at least 14 months old. In denying that motion, the trial court observed that it had read each of the completed juror questionnaires and found that “very, very few, if any of the prospective jurors have detailed memory of this incident.” Subsequently, the trial court questioned prospective jurors whose questionnaire responses indicated knowledge of defendant’s case.

Although defendant characterizes that followup questioning as cursory and incomplete, the record reveals that the court repeatedly probed whether any information obtained would cause the prospective juror to be biased, and each assured the court that he or she would be fair and impartial. For example, defendant highlights one prospective juror who ultimately sat as a juror at the first trial. The juror had indicated in his written questionnaire responses that he would have no difficulty keeping an open mind, but also noted that he had learned of the case in the newspaper and on television.

The trial judge, in followup questioning, observed that the juror had not answered the specific questionnaire inquiry, “What, if anything, have you already learned about this case or the defendant?”—and again posed that question to the juror. The juror answered, “I don’t know anything about the defendant. I read it when it first came out in the paper. That’s all.

This is close to where I live.” The trial judge asked whether the information received made the juror favor either the prosecution or the defense, and the juror responded, “no.” When the trial judge subsequently asked, “Do you try to follow stories about the functioning of the criminal justice system?,” the juror responded, “I read ’em, yeah.” Once again, defense counsel did not request further questioning and, in our view, defense counsel’s conduct was reasonable: the questionnaire responses and further answers to followup questioning by the trial judge dispelled any concern that the juror had been tainted by pretrial publicity.

As the high court observed in Mu’Min, supra, 500 U.S. 415, 427, “wide discretion [is] granted to the trial court in conducting voir dire in the area of pretrial publicity. . . .” Although defendant faults the trial judge for failing to ask specific questions concerning the specific content of media publicity, the trial judge’s failure to do so in the presence of other prospective jurors who had not been exposed to the same material was reasonable, and doing otherwise would have risked exposing the others to the publicity. (Id., at p. 425; see also People v.

Cleveland (2004) 32 Cal.4th 704, 737 [11 Cal.Rptr.3d 236, 86 P.3d 302] (Cleveland).) Failure to ask such questions in a sequestered voir dire examination is constitutional error only if that failure “render[s] the defendant’s trial fundamentally unfair.” (Mu’Min, supra, 500 U.S. 415, 426.) On this record, in which relatively mild publicity was at least 14 months old, thereby minimizing its impact (see Dennis, supra, 17 Cal.4th 468, 524 [noting, in context of change-of-venue determination, that passage of time can dispel the prejudicial effect of pretrial publicity]), and where defense counsel failed to ask the court to pose any additional question to any prospective juror, defendant cannot establish that the resulting guilt phase trial was fundamentally unfair.

Indeed, as we have observed, “ ‘The failure to exhaust peremptories is a strong indication “that the jurors were fair, and that the defense itself so concluded.” ’ ” (Ibid.) As explained ante, in view of the circumstance that after exercising only 14 of his 20 peremptory challenges, counsel ended up with a jury that hung seven to five on the issue of penalty, there appears to be no reason to question defense counsel’s apparent conclusion that the jurors would be fair to defendant. B. Guilt Phase Claims 1.

Exclusion of evidence of third party culpability and impeachment evidence Defendant contends that the trial court erred by excluding his proffered evidence of third party culpability and impeachment evidence concerning prosecution witnesses Williams and Aldridge. The proffered evidence was as follows. First, approximately 10 days after defendant was arrested, Williams and Aldridge were stopped and arrested by the Beverly Hills police at 1:30 a.m. (approximately the same time as the Subway crimes), and subsequently each was convicted of a misdemeanor, possessing a concealed handgun.

Second, defendant asserts that the trial court excluded evidence of a police report that, according to defendant, contained information that a civilian witness—one “Ralph Dudley”—reported to a police officer that he had seen a gray Mustang (like Williams’s car) in the alley behind the Subway shop at the time of the crimes. As explained post, we conclude that the trial court did not err in excluding evidence of the handgun conviction.

Moreover, because the appellate record does not support defendant’s claim that the trial court “excluded” any police-report evidence, we must reject that aspect of the claim on appeal. a. Evidence that Williams and Aldridge suffered convictions for possession of a concealed handgun Defense counsel sought to introduce evidence of Williams’s conviction for possession of a concealed handgun for, as counsel explained, “dual purposes”: first, as evidence of third party culpability in the Subway crimes and, second, as impeachment of Williams’s credibility.

The trial court ruled against introduction of the evidence for either purpose, reasoning, with regard to third party culpability, that the evidence was inadmissible under our decisions in People v. Sandoval (1992) 4 Cal.4th 155 [14 Cal.Rptr.2d 342, 841 P.2d 862] (Sandoval), and People v.

Alcala (1992) 4 Cal.4th 742 [15 Cal.Rptr.2d 432, 842 P.2d 1192] (Alcala), but that the court would reconsider that determination “subject to other evidence coming in.” Turning to the use of the proffered handgun conviction as impeachment evidence, and after hearing an offer of proof concerning the proposed testimony of Williams (which set forth, in broad outline, his subsequent testimony described ante), the trial court reasoned that, although the misdemeanor conviction “may [reflect] a crime of moral turpitude,” whatever “slight relevance” and probative value the proposed evidence had with respect to Williams’s veracity was outweighed by the prospect of “confusing the issues to the jury, especially in light of the third party culpability aspect, even though I would instruct the jury [not to consider the evidence for any purpose other than impeachment].” Defense counsel subsequently made the same “dual purposes” motion concerning Aldridge’s handgun conviction, and the trial court, after hearing a further offer of proof (which set forth, in broad outline, Aldridge’s subsequent testimony described ante), denied the motion as to both proposed uses of the proffered evidence.

As explained post, the trial court rulings were correct. With regard to third party culpability, we note that Sandoval, supra, 4 Cal.4th 155, 176, and Alcala, supra, 4 Cal.4th 742, 792, both followed People v. Hall (1986) 41 Cal.3d 826 [226 Cal.Rptr. 112, 718 P.2d 99] (Hall).

In Hall, we recognized that third party culpability evidence is admissible if it is “capable of raising a reasonable doubt of [the] defendant’s guilt,” but also observed; “[W]e do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (Hall, supra, 41 Cal.3d at p. 833, italics added.) As we also explained in Hall, in making these assessments “courts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ([Evid.

Code,] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion ([Evid. Code,] § 352).” (Hall, supra, 41 Cal.3d at p. 834.) In reviewing an assessment made by a trial court under Evidence Code

section 352, we shall not disturb the ruling on appeal absent a finding that the trial court abused its discretion. (People v. Lewis (2001) 26 Cal.4th 334, 372-373 [110 Cal.Rptr.2d 272, 28 P.3d 34] (Lewis).) We find no such abuse of discretion here. The crimes for which Williams and Aldridge were arrested approximately 10 days after defendant’s arrest had at most very slight probative value concerning the issue of third party culpability.

Contrary to defendant’s claim that this evidence supported an “obvious inference . . . that Williams and Aldridge were on a robbery spree which may have included the Subway . . . crimes,” the proffered evidence did not directly or even circumstantially link Williams or Aldridge to the Subway crimes. Their firearms were shown by ballistics evidence not to have fired the bullets discharged during the Subway shootings. By contrast, as we have noted, defendant’s gun was determined to have fired the bullets that killed the Subway victims.

In view of this evidence, the trial court reasonably concluded that the proffered arrest evidence was insufficient to raise a reasonable doubt that Williams and/or Aldridge, instead of defendant, committed the Subway crimes. The trial court’s ruling concerning impeachment also was correct. It is clear, as defendant argues, that Williams and Aldridge were key prosecution witnesses and that defendant had a strong interest in impeaching them, both in order to blunt their damaging testimony and in order to promote his own theory that they, not he, were the perpetrators of the Subway crimes.

We also agree with defendant that the misdemeanor convictions suffered by Williams and Aldridge reflected a crime of moral turpitude and therefore were relevant to the witnesses’ honesty and veracity. (See People v. Wheeler (1992) 4 Cal.4th 284, 295-296 [14 Cal.Rptr.2d 418, 841 P.2d 938].) Admission of such evidence, however, is subject to the trial court’s discretion to exclude it under Evidence Code

section 352. As noted ante, a trial court’s broad latitude in this respect will not be upset on appeal absent a showing of abuse of discretion. (Lewis, supra, 26 Cal.4th 334, 372-373.) We discern no such abuse of discretion.

As the trial court observed, the slight relevance and probative value of the evidence with respect to the veracity of Williams and Aldridge were outweighed by the prospect of confusing the issues—in particular, the jury might use that evidence not only with regard to veracity, but also (despite the trial court’s possible limiting instructions concerning third party culpability evidence) for a purpose that the court had determined would be improper under the circumstances.

We similarly reject defendant’s various claims that the trial court’s exclusion of the proffered evidence violated his federal constitutional rights to present a defense, to confront and cross-examine witnesses, and to receive a reliable determination on the charged capital offense.

There was no error under state law, and we have long observed that, “[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s [state or federal constitutional] right to present a defense.” (Hall, supra, 41 Cal.3d at p. 834; see also Lewis, supra, 26 Cal.4th at pp. 373-374.) Finally, even if we were to assume that the trial court erred in excluding the proffered evidence, any state law error would be harmless under the “reasonable probability” test of People v.

Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243] (Watson) and, indeed, any federal constitutional error would be harmless under the “beyond a reasonable doubt” test of Chapman v. California (1967) 386 U.S. 18, 23-24 [17 L.Ed.2d 705, 87 S.Ct. 824] (Chapman). Strong evidence linked defendant to the crimes. Defendant had been employed at the Subway shop and knew its procedures, the location of the safes and the backdoor exit, and the general layout of the premises.

He needed money and had talked of robbing the shop and killing its staff— indeed, he even admitted discussing the robbery with Williams and Aldridge in the context of pointing out problems with their own alleged suggestions for the robbery. James, after initially failing to do so, identified defendant as the man she had seen in the shop immediately prior to the shootings. Defendant conceded being at the scene of the crime immediately after the shootings (and indeed while one of the victims still was alive), and his fingerprints were found on a bag containing the final purchase entered into the shop’s register.

The bullets that killed the two Subway victims were fired from defendant’s

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