THE PEOPLE, Plaintiff and Respondent, v. IGNACIO ARRIOLA TAFOYA, Defendant and Appellant, 42 Cal. 4th 147

Opinion KENNARD, J. A jury found defendant Ignacio Arriola Tafoya and codefendant Timothy Wynglarz guilty of the first degree murders (Pen. Code, § 187) of Gerald Lee Skillman and Steven Francis Rita, of the robbery (§§ 211, 212.5) of Skillman, and of burglary (§ 459; former § 460.1 [now § 460, subd. (a)]). For each crime, the jury found that defendant personally used a firearm (§ 12022.5, subd. (a)), and that Wynglarz was personally armed with a firearm (§ 12022, subd. (a)(1)).

For each murder, as to both defendant and Wynglarz, the jury found to be true special circumstance allegations of murder in the commission or attempted commission of robbery (§ 190.2, subd. (a)(17)(A)) and murder in the commission or attempted commission of burglary (§ 190.2, subd. (a)(17)(G)). In addition, the jury found true one special circumstance allegation of multiple murder (§ 190.2, subd. (a)(3)). The prosecution did not seek the death penalty against codefendant Wynglarz, who was sentenced to life imprisonment without possibility of parole.

At defendant’s penalty trial the jury returned a verdict of death. The trial court denied defendant’s motion for a new trial (§ 1181) and automatic motion for modification of the penalty verdict (§ 190.4, subd. (e)), and it sentenced defendant to death. Applying

section 654, the court stayed defendant’s robbery and burglary sentences; for each enhancement based on defendant’s personal use of a firearm, the court imposed a four-year prison term. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety. I. Facts and Proceedings A. Prosecution’s Guilt Phase Case 1. Background evidence On February 10, 1992, defendant bought a red Chevrolet dual-wheel pickup truck and financed the purchase through GMAC Credit Corporation. From October 1992 to March 1993, GMAC sent defendant letters notifying him that he was in default on the loan.

Thereafter, GMAC began collection proceedings to repossess defendant’s truck. 2. The murders of Gerald Skillman and Steven Rita Douglas Gattenby had been friends with murder victims Gerald Skillman and Steven Rita for years and previously had used drugs with them. Skillman was a small-time marijuana and methamphetamine dealer, and Gattenby had worked with him in distributing methamphetamine. Skillman lived with his mother and brother on Bannock Road in the City of Westminster, in Orange County. He typically delivered drugs to his customers but occasionally sold them directly from his home to friends.

Gattenby had known codefendant Timothy Wynglarz for about 18 years but had not socialized or used drugs with him. A few months before the two murders, Gattenby saw defendant and codefendant Wynglarz at the house of one John Benno, known to Gattenby as a methamphetamine user. On May 4, 1993, around noon, Joseph Burkhart was working in his front yard on Bannock Road, two houses from Skillman’s, when he saw codefendant Wynglarz drive up in a red dual-wheel pickup truck and park in front of Skillman’s house. At that time, Gattenby was repairing a lawnmower in Skillman’s front yard.

Wynglarz asked Gattenby where Skillman was. Gattenby said Skillman was inside the house and told Wynglarz to just go in. Wynglarz went inside but came out a few minutes later. He asked Gattenby to tell Skillman he was going to a store and would return shortly. Gattenby went inside and relayed the message to Skillman, who was upstairs with Rita. Burkhart saw Wynglarz drive away and return in the same red truck about 10 minutes later.

Around this same time, Michael Johnson, a street-sweeping supervisor with the Westminster Department of Public Works, saw two men sitting in a red dual-wheel pickup truck parked under a freeway overpass, less than a minute’s drive from murder victim Skillman’s house. Johnson saw the passenger bend forward as if to reach for something and then lean back in his seat. The driver and the passenger then both looked in the area of the center console, after which they drove off toward Bannock Road (where Skillman lived).

Johnson later identified codefendant Wynglarz from a photo lineup as the man he had seen in the driver’s seat, and his description of the passenger matched defendant’s. Around the time codefendant Wynglarz returned in the red truck to Skillman’s house on Bannock Road, Harold Hamilton, who lived across the street, saw defendant walking on the sidewalk near Skillman’s house. Defendant nodded at Hamilton, who noticed a red dual-wheel pickup truck parked in front of Skillman’s house. While Skillman, Gattenby, and Rita were upstairs in Skillman’s house, Gattenby heard a knock on the front door.

Rita went downstairs to answer it. At that point, Hamilton saw Rita and codefendant Wynglarz on Skillman’s front porch and then saw defendant step onto the porch. Defendant and Wynglarz grabbed Rita by the back of his shirt and pushed him into the house, slamming the door shut behind them. Hamilton heard sounds like someone inside the house was being thrown around, and he told his mother, Nikki Pillon, to call 911. She did so at 12:15 p.m. Meanwhile, Gattenby, who was upstairs with Skillman, heard a scuffle downstairs. Skillman ran downstairs.

A few seconds later, Gattenby came halfway down the stairs and saw Skillman lying on his side on the living room floor near the front door. Defendant was straddling Skillman and pointing a handgun at Rita, who was on the sofa about five or six feet away. Codefendant Wynglarz was standing near the front door. He did not have a weapon and did not appear to be frightened. Neither Skillman nor Rita had a weapon, and neither was threatening Wynglarz or defendant in any way. When Gattenby saw defendant’s gun, he turned around and ran up the stairs. As he did, he heard Skillman say, “This is my mother’s house.

You don’t have to do this, guys.” Defendant replied, “I ain’t taking your shit.” Gattenby then heard three or four gunshots. Across the street, Hamilton heard gunshots and estimated they had been fired about 45 seconds after he saw defendant and codefendant Wynglarz push Rita into the house. Codefendant Wynglarz ran upstairs after Gattenby, telling him to “get back, get back.” Gattenby ran into Skillman’s bedroom and escaped by jumping through the bedroom window. He ran to Burkhart’s yard and from there saw defendant and codefendant Wynglarz leave Stillman’s house.

Defendant was carrying a bag made of canvas or paper. From across the street, Hamilton saw Wynglarz drive off in the red pickup truck, together with defendant. Hamilton’s mother, Pillon, saw Wynglarz leave the house with defendant and drop something into a small, nylon-like bag that caused the bag to “bow[]” under the object’s weight. She described the object as having “the length of a gun.” After defendant and codefendant Wynglarz had left, Gattenby returned to Stillman’s house to check on Stillman and Rita.

Stillman was lying on his side in a puddle of blood near the front door, bleeding profusely from the right side of his head. Rita was lying on his back, mating gurgling sounds and murmuring. 3. The autopsies, crime scene, and forensic investigations Stillman and Rita died from their gunshot wounds. Stillman had a bullet wound to his left interior thigh and another to the top of his head. Black soot surrounded the entry wound on his head, indicating the gun was only inches from his head when fired.

Blood-spatter analysis established that Stillman’s head was approximately three inches above the floor when he was shot. Rita had suffered two bullet wounds. One bullet entered his left thigh and exited through his right upper back. A second bullet entered Rita’s left arm, went through his shoulder, and entered the base of his skull, lodging behind the left earlobe. Rita was shot from four to five feet away. Both Skillman and Rita had substantial amounts of methamphetamine in their systems at the time of death. The Orange County Sheriff’s Department and Westminster Police Department investigated the crime scene.

Recovered from victim Skillman’s pockets were a little over $1,300 in cash, two pipes that could be used to smoke drugs, and a closed pocketknife. A briefcase in Skillman’s bedroom contained small bags of marijuana and marijuana seeds. Also in the bedroom were several firearms, including a loaded .22-caliber rifle. Victim Rita had no money in his possession. Also recovered from the scene were four bullet casings, all 10-millimeter automatic, an unusual caliber. Three of the casings were of the Federal brand and one of the Starline brand. All four had been fired from the same gun.

Three of the four bullets recovered from the two bodies and the crime scene were fired from a single gun. The fourth bullet was extensively damaged, and thus it could not be definitively established as having been fired from that same gun. 4. Events after the crimes About 1:30 p.m. on the day of the murders, an unidentified woman telephoned GMAC Financial Services (GMAC) and said the company could repossess defendant’s truck. GMAC picked up the truck at defendant’s house around 4:00 p.m. Three days later, on May 7, 1993, law enforcement authorities arrested defendant and codefendant Wynglarz.

Neither man had any visible injuries. Found in defendant’s bedroom was an empty Federal brand 10-millimeter automatic ammunition box, the same brand and caliber of casings and bullets recovered from the crime scene. On July 23, 1993, defendant’s wife gave police a 10-millimeter automatic live round of ammunition. It did not match the three Federal brand casings found at the crime scene, but was similar to the Starline 10-millimeter automatic casing that was also recovered. B. Guilt Phase Evidence Presented by Defendant and Codefendant 1.

Defendant’s evidence In May 1993, defendant was employed at the Valencia Nursery in Anaheim, in Orange County. Defendant’s mother and stepfather owned the nursery, which bought mature palm trees and resold them to contractors and new home developers. Defendant testified at the guilt phase of the trial. He admitted killing the victims but claimed self-defense. On the morning of May 4, 1993, defendant, his wife, and their three children drove with codefendant Wynglarz to Anaheim in defendant’s red dual-wheel pickup truck.

Defendant took with him a 10-millimeter Colt pistol because he expected to carry a lot of cash that day. He put the gun under the driver’s seat. Defendant dropped off one child at school, his wife at the hospital where she worked, and the other two children at his mother’s house. When defendant stopped to have his truck washed, Wynglarz telephoned murder victim Skillman regarding some weapons and speakers he had left with Skillman.

Wynglarz told defendant that he wanted to pick up those items from Skillman’s house, and that Skillman had agreed to give him back money for drugs Wynglarz had bought from Skillman that were “no good.” Wynglarz described Skillman as “a very dangerous person,” adding that if defendant “ever bumped into him,” defendant “would be killed.” Around 11:45 á.m., defendant and Wynglarz drove toward Skillman’s house. Before they reached the house, Wynglarz said that Skillman was suspicious of strangers and that he wanted to drive defendant’s truck alone to the house.

Defendant agreed and waited at a nearby liquor store while Wynglarz drove off in defendant’s truck. About 10 minutes later, Wynglarz returned saying he needed more time with Skillman because Skillman was busy. Defendant took his gun from under the driver’s seat and tucked it in his waistband under his shirt. Wynglarz left again in defendant’s truck for Skillman’s house. Concerned about being late in picking up his children, defendant started walking in the direction in which codefendant Wynglarz had left in defendant’s red truck. When defendant saw the truck parked in front of a house, he headed towards it.

Upon reaching the house, defendant saw Wynglarz and murder victim Rita on the front porch, arguing about being “burned . . . with some dope.” Defendant went up to the front porch and stood by Wynglarz. Rita and Skillman then attacked defendant from inside the front door. Inside the house, Skillman grabbed defendant’s shirt, exposing defendant’s gun. Defendant and Skillman both reached for the gun. One shot was fired, hitting Skillman, who went down on his left knee but kept his grip on defendant’s shirt. Defendant fired a second shot at Skillman, who hit the floor.

Defendant continued to struggle with Rita, shooting him twice, and watching him fall to the floor. Defendant dropped the gun, but Wynglarz said, “Don’t leave the gun there.” Wynglarz then put the gun in a small black bag full of papers and magazines, and he took it with him when he and defendant left in defendant’s truck. Later that day, when defendant stopped at a McDonald’s restaurant near his house and bought some hamburgers, he had three $100 bills, which he had had since that morning, and a $20 bill, which his mother had given him.

Defendant exchanged one of his $100 bills for $5 bills and gave $50 to Wynglarz. After defendant returned to his house, he threw the bag with the gun in a trash bin. 2. Codefendant Wynglarz’s evidence Wynglarz testified that he and murder victim Skillman used methamphetamine, which they also bought and sold along with other drugs. On the day of the murders, Wynglarz arranged a meeting at Skillman’s house to discuss paying off a debt Wynglarz owed to a pawnshop. Wynglarz had no plan to steal from Skillman and was unaware that defendant had such a plan.

When defendant shot Skillman and Rita, Wynglarz ran upstairs, fearing for his life. Defendant followed, telling him, “Let’s get out of here.” Defendant ordered Wynglarz to grab a duffel bag, which Wynglarz later learned contained papers. Wynglarz took the bag, and they left in defendant’s truck. C. Prosecution’s Penalty Phase Case Susan M. testified that on January 27, 1980, in Anaheim, two men raped her at gunpoint. After working as a prostitute that evening, she had accepted a ride home from two men, who offered her a seat in the back of the car. Defendant was the driver.

The passenger pointed a gun at her, got into the backseat, and forced her to engage in sexual intercourse while defendant drove the car. After a while, defendant stopped the car, moved to the backseat, and forced Susan M. to have sexual intercourse with him while the other man drove. Defendant’s wife, Grace Tafoya, testified she married defendant in 1984. They had three children together, aged nine, seven, and three years. In April 1989, defendant hit and slapped Grace in the face and twisted her arm.

On October 11, 1989, when defendant became enraged because he could not find the keys to his truck, he lifted two mattresses into the air, punched a wall, and threw Grace’s clothes around the bedroom. On another occasion, defendant punched Grace in the arm, causing pain and bruising. Defendant had a son, Edward A., with another woman. In 1991, when Edward was about eight years old, he came to live with defendant and Grace. Once, defendant beat Edward in a bam behind the house. Another time, defendant beat Edward with a belt.

On October 19, 1991, Riverside County Deputy Sheriff Phillip Matheny investigated a claim of child abuse involving Edward. The child had red and blue marks on his lower back, arm, and right thigh, consistent with having been beaten with a rope or belt. The parties stipulated that on April 16, 1992, defendant pled guilty to two misdemeanor counts of committing corporal injury on Edward (§ 273d), and he was placed on three years’ probation. Oscar Reyes repossessed motor vehicles for Interstate Recovery Service.

On March 4, 1993 (two months before the two murders in this case), GMAC retained Reyes to repossess defendant’s red dual-wheel pickup truck. Reyes found the truck at the nursery where defendant worked. He got in on the driver’s side and tried to start the ignition. At that point, defendant opened the passenger door and pulled a handgun from under the seat, pointing it at Reyes. When Reyes said he was there to repossess the truck, defendant replied, “Fuck, if you think you are going to take my truck, I am going to shoot your fucking ass.” Reyes left and reported the assault to the Anaheim police.

The prosecution presented victim impact evidence through the testimony of Skillman’s mother, Coleen Skillman, and Rita’s mother, Sandra Zide. Coleen’s life was torn apart by her son’s death. Zide was devastated by the loss of her son, who was planning to marry. When told of Rita’s death, his fiancée became hysterical. Rita’s murder also deeply affected Rita’s brothers, sister, grandparents, and nephew. D.

Defense Penalty Phase Case In the mid-1980’s, defendant was a devoted Christian, had trained as a minister, and worked in church ministries in Puerto Rico, the Dominican Republic, and throughout the United States. Defendant used his own money to buy food and clothing for needy people and gave them shelter in his home. For about 10 years, defendant attended the Apostolic Church in Huntington Beach, where he participated in Bible studies and other church activities. During trial, the wife of the pastor of the Apostolic Church visited defendant in jail. He cried when she tried to read to him.

Defendant’s mother, Eva Cancino, testified defendant’s father left the family when defendant was five years old. The father drank a lot, was very strict, and hit defendant with a rope and a belt. Defendant’s mother left Mexico and brought her children to the United States, supporting them by picking fruits and vegetables and selling burritos. She later met and married defendant’s stepfather, who owned a gardening business. When the mother of defendant’s son, Edward, abandoned him, defendant took care of Edward.

Defendant had many animals, including a pony and several lambs, which he liked to take to church fairs so that children could ride or pet them. Defendant cried when his mother spoke to him about the murder victims. II. Pretrial Issues A. Severance Motion Before and during trial, defendant unsuccessfully moved to sever his trial from codefendant Wynglarz’s. He now contends the trial court abused its discretion in denying his severance motions, thereby violating his rights under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution and under

article I, sections 15 and 16 of the California Constitution. Before trial, defendant moved for severance based on his expectation that the trial court would admit statements codefendant Wynglarz had made to the police that implicated defendant in the offenses. (See Bruton v. United States (1968) 391 U.S. 123, 137 [20 L.Ed.2d 476, 88 S.Ct. 1620]; People v. Aranda (1965) 63 Cal.2d 518, 526-527 [47 Cal.Rptr. 353, 407 P.2d 265].) The trial court denied the motion without prejudice because the prosecution had yet to determine whether it would use Wynglarz’s statements.

Defendant twice renewed the motion; on both occasions, the trial court denied it. After the prosecution’s case-in-chief, defendant asserted as an additional ground for severance that Wynglarz’s defense would conflict with his own. The trial court again denied the motion. In his motion for a new trial, defendant again asserted his trial should have been severed from Wynglarz’s. We note that codefendant Wynglarz’s statements to the police were never introduced at trial.

Further, we assume without deciding that defendant’s motion for severance on the basis of conflicting defenses brought after the prosecution’s case-in-chief was nonetheless timely. (See People v. Simms (1970) 10 Cal.App.3d 299, 306 [89 Cal.Rptr. 1].)

Section 1098 provides in pertinent part: “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.” (See People v. Boyde (1988) 46 Cal.3d 212, 231 [250 Cal.Rptr. 83, 758 P.2d 25] [recognizing legislative preference for joint trials].) Defendants “charged with common crimes involving common events and victims” present a “ ‘classic case’ ” for a joint trial. (People v.

Keenan (1988) 46 Cal.3d 478, 499-500 [250 Cal.Rptr. 550, 758 P.2d 1081].) Nonetheless, a trial court, in its discretion, may order separate trials “ ‘in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.’ [Citations.]” (People v.

Avila (2006) 38 Cal.4th 491, 574-575 [43 Cal.Rptr.3d 1, 133 P.3d 1076], italics added.) A trial court’s denial of a severance motion is reviewed “for abuse of discretion based on the facts as they appeared at the time the court ruled on the motion.” (People v. Avila, supra, 38 Cal.4th at p. 575; see People v. Hardy (1992) 2 Cal.4th 86, 167 [5 Cal.Rptr.2d 796, 825 P.2d 781].) A trial court’s erroneous refusal to sever a defendant’s trial from a codefendant’s requires reversal if the defendant shows, to a reasonable probability, that separate trials would have produced a more favorable result (People v.

Avila, supra, 38 Cal.4th at p. 575; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41 [17 Cal.Rptr.3d 710, 96 P.3d 30]), or if joinder was so grossly unfair that it deprived the defendant of a fair trial (People v. Avila, supra, 38 Cal.4th at p. 575; People v. Ervin (2000) 22 Cal.4th 48, 69 [91 Cal.Rptr.2d 623, 990 P.2d 506]). At the guilt phase, codefendant Wynglarz’s defense was that defendant had acted entirely alone. Defendant asserts this conflicted with his own defense that he shot Skillman and Rita in self-defense, thus requiring severance.

We do not agree that severance was required. “ ‘[Antagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other.’ [Citation.] ‘Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.’ [Citations.]” (People v. Hardy, supra, 2 Cal.4th at p. 168; see also Zafiro v.

United States (1993) 506 U.S. 534, 538 [122 L.Ed.2d 317, 113 S.Ct. 933] [“Mutually antagonistic defenses are not prejudicial per se”].) That is not the situation here. As we recently observed in People v. Coffman and Marlow, supra, 34 Cal.4th at page 41, “[w]hen . . . there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance.” Here, the prosecution presented strong evidence of defendant’s guilt independent of the evidence codefendant Wynglarz offered in his own defense.

Murder victim Skillman was a marijuana and methamphetamine dealer and had worked with prosecution witness Gattenby distributing methamphetamine. Gattenby had seen defendant at the home of John Benno, a known methamphetamine user. Defendant was apparently in need of money as he was in default on his truck loan, and GMAC had begun collection proceedings against him. And prosecution witness Hamilton, a neighbor of Skillman’s, saw defendant and codefendant Wynglarz enter Skillman’s house after shoving murder victim Rita inside.

Gattenby, who was at the house, saw defendant wave a gun over Skillman, who was lying on the floor, and at Rita, who was on the sofa a few feet away. Gattenby heard Skillman plead for his life moments before hearing several shots. All four bullet casings found at the crime scene were 10-millimeter and fired from the same gun. Three of the four casings were Federal brand 10-millimeter, thus matching the description on an empty ammunition box recovered from defendant’s house. Both victims were shot twice.

Because this evidence independently established defendant’s guilt of the two murders, demonstration of his guilt was not dependent on codefendant Wynglarz’s defense. Thus, the trial court did not abuse its discretion in denying defendant’s severance motion.

Nonetheless, defendant maintains that the joint trial deprived him of his rights to due process and a fair trial under both the state and federal Constitutions, asserting that a statement murder victim Skillman made to witness Gattenby about a prior drug deal between Skillman and codefendant Wynglarz (“[Wynglarz] burned me for a quarter ounce of meth”) that was excluded in the joint trial would have been admitted in support of defendant’s self-defense theory in a separate trial.

As a preliminary matter, defendant has forfeited this issue on appeal because he failed to assert this ground at the time his severance motion was heard by the trial court. (People v. Ervin, supra, 22 Cal.4th at p. 68; People v. Hardy, supra, 2 Cal.4th at p. 167.) In any event, as later discussed (see pt. III.B., post), because defendant suffered no possible prejudice from the exclusion of Skillman’s statement, he has not demonstrated that the joint trial with codefendant Wynglarz deprived him of his rights to a fair trial or due process. (See People v.

Box (2000) 23 Cal.4th 1153, 1197 [99 Cal.Rptr.2d 69, 5 P.3d 130]; People v. Turner (1984) 37 Cal.3d 302, 313 [208 Cal.Rptr. 196, 690 P.2d 669].) Defendant argues that the joint trial deprived him of his right to a fair trial because the trial court told prospective jurors during voir dire that the prosecution was seeking the death penalty against defendant only and not against codefendant Wynglarz. Because defendant failed to raise this issue in the trial court at the time of his severance motion, he has not preserved it for appeal. (People v.

Ervin, supra, 22 Cal.4th at p. 68.) In any event, the claim lacks merit. Both this court and the United States Supreme Court have upheld the practice of conducting joint trials of defendants eligible for the death penalty with those who are not. (See, e.g., People v. Box, supra, 23 Cal.4th at pp. 1195-1197 [joint trial in capital case with only one defendant facing the death penalty did not violate the federal constitutional rights to due process, an impartial jury, a fair trial, and a reliable death verdict of the death-eligible defendant]; People v.

Freeman (1994) 8 Cal.4th 450, 483, 496 [34 Cal.Rptr.2d 558, 882 P.2d 249] [no error in denying capital defendant’s motion to sever trial from codefendant who did not face capital charges]; People v. Pinholster (1992) 1 Cal.4th 865, 903, fn. 2, 932-934 [4 Cal.Rptr.2d 765, 824 P.2d 571] [capital defendant was not deprived of his rights to a fair trial and due process by joint trial with codefendant who did not face the death penalty]; People v.

Mitcham (1992) 1 Cal.4th 1027, 1048-1049 [5 Cal.Rptr.2d 230, 824 P.2d 1277] [no abuse of discretion in denying capital defendant’s motion to sever joint trial]; see also Buchanan v.

Kentucky (1987) 483 U.S. 402, 420 [97 L.Ed.2d 336, 107 S.Ct. 2906] [defendant who did not face the death penalty in a capital case suffered no violation of his right to an impartial jury by joint trial].) Finally, defendant contends the joint trial denied him the right to a jury drawn from a representative cross-section of the community based on codefendant Wynglarz’s use of peremptory challenges against prospective jurors with Hispanic names. But defendant never objected when Wynglarz exercised those peremptory challenges, nor did he raise this ground in his severance motion.

Defendant also failed to make an adequate record of the ethnicity of prospective jurors, making it difficult for a reviewing court to determine which prospective jurors were Hispanic. Therefore, he has not preserved this issue for appellate review. (People v. Ervin, supra, 22 Cal.4th at p. 68.) B. Evidence About Prosecution Witness Gattenby Before trial, defendant sought a ruling from the trial court on the admissibility of certain statements purportedly contained in a search warrant affidavit pertaining to prosecution witness Gattenby.

According to defendant’s attorney, the affiant stated that police believed Gattenby was in possession of explosives and had a reputation for dangerousness. Counsel asserted that this information would support defendant’s theory of self-defense by showing defendant feared Skillman and Rita at the time of the murders based on their association with Gattenby. Counsel further argued the statements were generally relevant to impeach Gattenby. Counsel made no offer of proof, however, that defendant knew of Gattenby’s reputation for being dangerous.

The trial court found that the affidavit information regarding Gattenby was irrelevant absent a showing that defendant had reason to fear that Gattenby was dangerous, and that in any event it was inadmissible to show that Gattenby was in fact dangerous. Absent such a showing, the trial court ruled, defendant could not cross-examine Gattenby about whether he had possessed dynamite or weapons, or whether he had a reputation for dangerousness. Defendant now challenges that ruling as violating his rights to due process and to a fair trial under both the state and federal Constitutions. We disagree.

When, as here, the relevance of proffered evidence depends upon the existence of a foundational fact, the proffered evidence is inadmissible unless the trial court determines it “is sufficient to permit the jury to find the preliminary fact true by a preponderance of the evidence.” (People v. Marshall (1996) 13 Cal.4th 799, 832 [55 Cal.Rptr.2d 347, 919 P.2d 1280]; see Evid. Code, § 403, subd. (a)(1).) We review a trial court’s ruling on the sufficiency of the foundational evidence under an abuse of discretion standard. (People v.

Marshall, supra, 13 Cal.4th at p. 833.) As the trial court indicated, evidence that Gattenby was dangerous was relevant to defendant’s claim of self-defense only if defendant knew of Gattenby’s reputation for dangerousness and was afraid of him. (See, e.g., People v.

Minifie (1996) 13 Cal.4th 1055, 1065-1069 [56 Cal.Rptr.2d 133, 920 P.2d 1337] [evidence of group’s reputation for violence and prior threats against the defendant was relevant to the defendant’s state of mind in claiming self-defense for assault because the defendant reasonably associated the victim with the threats].) Defendant, however, presented no evidence that he knew of Gattenby’s reputation for dangerousness or of Gattenby’s association with murder victims Skillman or Rita. Indeed, defendant never testified he had even seen Gattenby at Skillman’s house on the day of the murders.

Thus, Gattenby’s presence at the house was not part of defendant’s claim of self-defense. Gattenby, moreover, testified that, before the day of the murders, he had seen defendant only once and did not know his name. No evidence was presented at trial that Gattenby acted in an aggressive manner toward defendant or codefendant Wynglarz. Under these circumstances, evidence of Gattenby’s reputation for being dangerous was not relevant to defendant’s claim of self-defense.

Finally, defendant asserts the trial court’s ruling precluding cross-examination of Gattenby regarding his reputation for dangerousness violated defendant’s constitutional rights under the confrontation clauses of the federal and state Constitutions (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15), and compelled him to testify in violation of his constitutional rights against self-incrimination (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15). Defendant did not rely on these grounds at trial; thus he has forfeited them on appeal. (See People v.

Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19 [47 Cal.Rptr.3d 467, 140 P.3d 775] [defendants forfeited confrontation clause claim by failing to raise it at trial].) C. Request for Telephone Privileges Before trial, at defendant’s request, the presiding criminal judge ordered that defendant be allowed to meet with the defense investigators. But the presiding judge denied defendant’s request for toll-free telephone calls to defense counsel, noting that defense counsel and the defense investigators all accepted collect calls.

Thereafter, the presiding judge issued three successive orders permitting defendant to make toll-free telephone calls to persons other than his attorneys and investigators to gather information for his defense. Each of these orders was in effect for about 45 days, and each had expired before trial. In the trial court, defense counsel sought an order permitting defendant to make telephone calls to the defense team after the start of his trial. The court declined to rule on the request, informing counsel that court policy required that such motions be presented to the presiding criminal judge.

Nothing further regarding this matter appears in the record. Notably, defense counsel never sought an order from the presiding judge granting defendant telephone access after trial started. Defendant now contends the trial court’s “refusal” to issue an order permitting him to telephone his attorneys and investigators after the start of the trial interfered with his right to counsel and deprived him of due process under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution and under

article I, sections 15 and 16 of the California Constitution. We disagree. Defendant had ample opportunity to consult with his attorneys in court during his trial. Nothing suggests defendant’s appointed counsel lacked “resources for investigation and the means to present a defense.” (People v. Jenkins (2000) 22 Cal.4th 900, 1001 [95 Cal.Rptr.2d 377, 997 P.2d 1044].) Under these circumstances, defendant has not shown any deprivation of his right to assist counsel in preparing his defense. D. Voir Dire Procedures Hovey v.

Superior Court (1980) 28 Cal.3d 1, 80 [168 Cal.Rptr. 128, 616 P.2d 1301] (Hovey), held that prospective jurors in capital cases should be sequestered and questioned individually regarding their views on the death penalty. In 1990, the voters adopted Proposition 115, which as relevant here, abrogated Hovey by adding to the Code of Civil Procedure a provision stating that “where practicable, [voir dire shall] occur in the presence of the other [prospective] jurors in all criminal cases, including death penalty cases.” (Code Civ. Proc., § 223.) Defendant’s trial occurred in 1995.

Before trial, defendant requested that each juror be questioned individually. In denying this request, the trial court explained that it would conduct the death-qualification portion of voir dire in groups of 16 to 18 prospective jurors. After the court had proceeded in this manner, defense counsel, citing Hovey, supra, 28 Cal.3d 1, asked the court to individually question the remaining prospective jurors. Counsel asserted that Hovey was still good law, noting it had been cited by this court in cases decided after the June 5, 1990, effective date of Proposition 115.

The trial court denied counsel’s request, noting that although it did not individually question every prospective juror, it had, at the request of any party, individually questioned those prospective jurors who had expressed some reluctance at deciding between life without possibility of parole or the death penalty in a capital case. The court resumed the group voir dire for the death qualification of the remaining prospective jurors, and it ruled on challenges for cause.

Thereafter, the prosecutor and the attorneys for defendant and codefendant Wynglarz were each given one hour to question the prospective jurors. After the parties made their peremptory challenges, the court indicated that jury selection was complete, and counsel accepted the jury without objection. On appeal, defendant faults the trial court for denying his request for individualized, sequestered voir dire of each prospective juror. He asserts violations of his federal constitutional rights to due process and an impartial jury under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution and under

article I, sections 7, 15, and 16 of the California Constitution. Under Code of Civil Procedure

section 223, the question of whether individual, sequestered voir dire should take place is entrusted to the trial court’s discretion. (People v. San Nicolas (2004) 34 Cal.4th 614, 632, fn. 3 [21 Cal.Rptr.3d 612, 101 P.3d 509]; People v. Waidla (2000) 22 Cal.4th 690, 713 [94 Cal.Rptr.2d 396, 996 P.2d 46].) Discretion is abused when the questioning is not reasonably sufficient to test prospective jurors for bias or partiality. (People v.

Box, supra, 23 Cal.4th at p. 1179.) The trial court here did not abuse its discretion in questioning prospective jurors in small groups of 16 to 18 about their death penalty views. (Code Civ. Proc., § 223; People v. Box, supra, 23 Cal.4th at p. 1178.) The court acknowledged it had the discretion to question prospective jurors individually, but it reasoned that questioning in small groups would yield more candid responses.

Moreover, on several occasions, the court conducted individual, sequestered voir dire at the request of either the prosecutor or defense counsel when a prospective juror expressed concerns with the death penalty. Finally, defendant complains that the parties were limited to one hour of general voir dire on a day different from the trial court’s death-qualification voir dire and that the court conducted “most of voir dire.” Because defendant did not raise these issues in the trial court, he has not preserved them for appeal. (People v.

Vieira (2005) 35 Cal.4th 264, 289 [25 Cal.Rptr.3d 337, 106 P.3d 990].) In any event, those contentions lack merit. “ ‘The Constitution . . . does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury.’ ” (People v. Box, supra, 23 Cal.4th at p. 1179, quoting Morgan v. Illinois (1992) 504 U.S. 719, 729 [119 L.Ed.2d 492, 112 S.Ct. 2222].) “[T]he trial court is given wide latitude to determine how best to conduct the voir dire . . . .” (People v. Chaney (1991) 234 Cal.App.3d 853, 861 [286 Cal.Rptr. 79], citing Rosales-Lopez v.

United States (1981) 451 U.S. 182, 189 [68 L.Ed.2d 22, 101 S.Ct. 1629].) Whether the prospective jurors are required to complete a written questionnaire is a matter within the trial court’s discretion. (See People v.

Box, supra, 23 Cal.4th at p. 1180 [trial court used a questionnaire proposed by the defense in formulating questions it asked during voir dire and provided the parties an opportunity to supplement questions]; see also § 1044 [the trial judge has the duty to control all trial proceedings “with a view to the expeditious and effective ascertainment of the truth regarding the matters involved”].) Defendant here has failed to show any abuse of discretion by the trial court. E.

Trial Court’s Comments About Hardship Exclusions Defendant accuses the trial court of misconduct in explaining to the jury panel the circumstances of hardship that would warrant being excused from jury service. This is what the trial court said: “With respect to hardship, there are certain individuals that fall into a category where serving on a case such as this would be an extraordinary hardship.

If you are the sole support of your family or you are—you share the responsibility for the support of the family or your own sole support and you work for someone who will not pay you to serve on jury duty or will only pay you for five days or 10 days and at that point you will be losing salary and will be unable to support yourself or your family, that would be an extraordinary hardship. “If you have a medical condition that would prevent you from being able to serve over the period of time that I have suggested, and there may be other unique situations where it would be an extraordinary hardship, [f] What is not a hardship is ‘my employer really needs me at work right now.

This is really a busy time.’ In the law there are specific criteria that I apply to hardship. T would rather sit on a shorter case. I don’t mind serving, but I just can’t serve on a long case.’ Those kinds of personal preferences I am not permitted by the law to excuse you based upon that kind of hardship. PJQ But if it is an undue hardship based upon financial, medical or some other situation that you think is unique to you that would cause the Court to excuse you, I will consider all of those requests today.” Defendant made no objection to the trial court’s statement.

But he now contends the statement deprived him of a fair cross-section of the community because it “may have” resulted in excluding prospective jurors in lower economic groups. By failing to make a contemporaneous objection to the trial court’s statement, defendant has not preserved this issue for appeal. (People v. Champion (1995) 9 Cal.4th 879, 906-907 [39 Cal.Rptr.2d 547, 891 P.2d 93].) In any event, the claim lacks merit. In reviewing that claim, the pertinent inquiry is whether a cognizable class has been excluded. (People v.

Johnson (1989) 47 Cal.3d 1194, 1214 [255 Cal.Rptr. 569, 767 P.2d 1047].) On point here is this statement from Johnson: “Even assuming that only poor persons were given hardship exclusions, a fact not proven here, persons with low incomes do not constitute a cognizable class.” (Ibid.) III. Guilt Phase Issues A. Sufficiency of the Evidence of the Robbery, Burglary, and Murders 1.

Robbery, burglary, and first degree felony murder Defendant contends the evidence is insufficient to support his robbery conviction and the robbery-murder special-circumstance finding because the prosecution failed to present substantial evidence that he formed the intent to steal before or during, rather than after, the fatal shootings of Skillman and Rita. The absence of this evidence, defendant argues, infects the burglary conviction, the burglary-murder special circumstance, and the convictions for first degree murder to the extent they are based on a theory of felony murder.

We conclude sufficient evidence supports the convictions and special circumstance findings. “To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Kipp (2001) 26 Cal.4th 1100, 1128 [113 Cal.Rptr.2d 27, 33 P.3d 450]; see also People v.

Mayfield (1997) 14 Cal.4th 668, 790-791 [60 Cal.Rptr.2d 1, 928 P.2d 485] [same standard of review applies to determine the sufficiency of the evidence to support a special circumstance finding].) “Where, as here, the jury’s findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, ‘but our opinion that the circumstances also might reasonably be reconciled with a contrary finding’ does not render the evidence insubstantial.” (People v.

Earp (1999) 20 Cal.4th 826, 887-888 [85 Cal.Rptr.2d 857, 978 P.2d 15].) Robbery is “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) If the other elements are satisfied, the crime of robbery is complete without regard to the value of the property taken. (People v. Simmons (1946) 28 Cal.2d 699, 705 [172 P.2d 18]; People v.

Coleman (1970) 8 Cal.App.3d 722, 728 [87 Cal.Rptr. 554].) The intent to steal must be formed either before or during the commission of the act of force. (People v. Kipp, supra, 26 Cal.4th at p. 1128; see also People v. Koontz (2002) 27 Cal.4th 1041, 1080 [119 Cal.Rptr.2d 859, 46 P.3d 335]; People v. Frye (1998) 18 Cal.4th 894, 956 [77 Cal.Rptr.2d 25, 959 P.2d 183].) With respect to burglary, that crime requires an entry into a specified structure with the intent to commit theft or any felony. (People v. Homing (2004) 34 Cal.4th 871, 903 [22 Cal.Rptr.3d 305, 102 P.3d 228]; People v.

Davis (1998) 18 Cal.4th 712, 723-724, fn. 7 [76 Cal.Rptr.2d 770, 958 P.2d 1083]; § 459.) Under the felony-murder rule, a murder “committed in the perpetration of, or attempt to perpetrate” one of several enumerated felonies, including robbery and burglary, is first degree murder. (§ 189.) The robbery-murder and burglary-murder special circumstances apply to a murder “committed while the defendant was engaged in ... the commission of, [or] attempted commission of’ robbery and burglary, respectively. (§ 190.2, subd. (a)(17)(A), (G).) “[T]o prove a felony-murder special-circumstance allegation, the prosecution must show that the defendant had an independent purpose for the commission of the felony, that is, the commission of the felony was not merely incidental to an intended murder.” (People v.

Mendoza (2000) 24 Cal.4th 130, 182 [99 Cal.Rptr.2d 485, 6 P.3d 150].) Here, the prosecution’s theory was that defendant and codefendant Wynglarz planned to steal drugs or money from Skillman, a known drug dealer, at his house; once there, defendant killed Skillman and Rita during that planned burglary and robbery. The prosecution presented evidence that on the day of the murders defendant needed money because he was behind on his truck payments. Defendant armed himself with a loaded gun and followed Wynglarz to Skillman’s house.

Defendant and Wynglarz fought with Rita on the front porch and pushed him into the house. Moments after defendant and Wynglarz entered the house, they subdued Skillman and Rita, who were both unarmed. Defendant shot Skillman and Rita, each twice. Skillman was shot at close range; Rita was shot from just a few feet away. When defendant and Wynglarz left the house, they were calm, smiling as they walked over to defendant’s truck. From a neighbor’s yard, to which he had escaped, Gattenby saw defendant carry a paper or canvas bag in his hand.

From across the street, another neighbor saw Wynglarz carry a nylon-like bag that “bowed down” under the weight of its contents. Based on this evidence, a rational jury could find beyond a reasonable doubt that defendant had gone into Skillman’s house with the intent to steal, thus committing burglary. For the same reason, the evidence is sufficient to support not only defendant’s first degree murder convictions based on the theory that they occurred in the commission of a burglary, but also the jury’s burglary-murder special-circumstance findings.

Based on this same evidence, a rational jury could find beyond a reasonable doubt that before he murdered Skillman and Rita, defendant had formed the intent to take their property—drugs or money or both—and that defendant committed the murders to facilitate the taking of that property. A rational jury could also find beyond a reasonable doubt that defendant took property from Skillman and Rita.

When defendant and codefendant Wynglarz left the house after the murders, they took with them a bag and the bag’s contents, which a rational jury could infer consisted of stolen money or drugs, or both, together with the murder weapon. Therefore, we conclude that substantial evidence supports not only defendant’s convictions of robbery and first degree murder based on the theory that the murders of Skillman and Rita occurred in the commission of a robbery, but also the jury’s robbery-murder special-circumstance findings that each murder occurred during the commission of robbery. (See People v.

Horning, supra, 34 Cal.4th 871, 904; People v. Bolden (2002) 29 Cal.4th 515, 554 [127 Cal.Rptr.2d 802, 58 P.3d 931]; People v. Frye, supra, 18 Cal.4th at p. 956.) 2. Premeditated and deliberate murder With respect to the killings of Skillman and Rita, the trial court instructed the jury on felony murder based on burglary and robbery and also on premeditated and deliberate murder. Defendant contends his murder convictions must be reduced to second degree murder because the evidence was insufficient to establish the murders were premeditated and deliberate and thus first degree murders.

As we just concluded, the evidence was sufficient for the jury to have found defendant guilty of first degree murder based on the theory that the murders occurred in the commission of two felonies: burglary and robbery. As discussed below, we also conclude the evidence was sufficient for the jury to have found the murders were premeditated and deliberate. In People v.

Anderson (1968) 70 Cal.2d 15 [73 Cal.Rptr. 550, 447 P.2d 942], we said that “generally first degree murder convictions are affirmed when (1) there is evidence of planning, motive, and a method of killing that tends to establish a preconceived design; (2) extremely strong evidence of planning; or (3) evidence of motive in conjunction with either planning or a method of killing that indicates a preconceived design to kill.” (People v.

Mincey (1992) 2 Cal.4th 408, 434-435 [6 Cal.Rptr.2d 822, 827 P.2d 388].) These factors are not the exclusive means, however, to establish premeditation and deliberation; for instance, “an execution-style killing may be committed with such calculation that the manner of killing will support a jury finding of premeditation and deliberation, despite little or no evidence of planning and motive.” (People v.

Lenart (2004) 32 Cal.4th 1107, 1127 [12 Cal.Rptr.3d 592, 88 P.3d 498].) Here, based on the evidence, a rational jury could find beyond a reasonable doubt that defendant and codefendant Wynglarz went to Skillman’s house to rob Skillman of drugs or money. They arrived at Stillman’s house separately to avoid any suspicion, and defendant carried a loaded gun. Within seconds of entering the house, defendant was waving a loaded gun above Stillman, who was lying on the floor near the front door, and at Rita, who was on the sofa a few feet away. Both men were unarmed, and Stillman pleaded for his life.

Defendant replied, “I ain’t taking your shit,” and then shot Stillman and Rita. This evidence amply supports a finding of premeditation and deliberation. B. Skillman’s Statement to Gattenby Defendant contends the trial court erred by excluding a statement Stillman made to Gattenby shortly before defendant shot Stillman and Rita.

These are the relevant facts: At the preliminary hearing, on cross-examination by defendant’s counsel, Gattenby testified that about 12:15 p.m. on the day of the murders, after codefendant Wynglarz had first left Stillman’s house, Gattenby was upstairs with murder victims Stillman and Rita when he heard a knock at Stillman’s front door. Stillman said, “[Wynglarz] burned me over a quarter ounce of meth. I don’t know what [he] is up to.

Stay up here.” During his defense case, defendant sought to introduce this statement by Stillman to impeach Gattenby’s testimony (on cross-examination by counsel for codefendant Wynglarz) and Wynglarz’s testimony (on direct examination) that Stillman was friendly with Wynglarz on the day of the murders. The trial court ruled that Stillman’s statement was probative of his relationship with codefendant Wynglarz and was also relevant to explain Stillman’s state of mind and conduct when he encountered defendant and Wynglarz at his front door.

The court admitted the portion of Stillman’s statement that impeached Wynglarz’s description of his relationship with Stillman as friendly (“I don’t know what [he] is up to. Stay up here”), but it excluded the portion of Stillman’s statement that mentioned that “[Wynglarz] burned me over a quarter ounce of meth” as more prejudicial than probative under Evidence Code

section 352. On appeal, defendant contends the trial court’s redaction of Stillman’s statement that “[Wynglarz] burned me over a quarter ounce of meth” violated

article I,

section 28, subdivision (

d) of the California Constitution, which prohibits the exclusion of relevant evidence in any criminal trial except as provided by statute. Defendant argues the trial court’s reason for disallowing the introduction of the statement—its prejudicial nature—did not apply to defendant because admission of the entire statement was crucial to defendant’s self-defense theory that Skillman was the aggressor and attacked defendant as defendant came in the front door. Under Evidence Code

section 352, which is an express exception to

article I,

section 28, subdivision (

d) of the California Constitution, a trial court has discretion to exclude evidence when its probative value is outweighed by concerns of undue prejudice, confusion, or consumption of time. On appeal, we review a trial court’s ruling under Evidence Code

section 352 for abuse of discretion. (People v. Pollock (2004) 32 Cal.4th 1153, 1171 [13 Cal.Rptr.3d 34, 89 P.3d 353].) Even if we assume the trial court abused its discretion in not admitting Skillman’s comment that “[Wynglarz] burned me over a quarter ounce of meth,” defendant suffered no possible prejudice. Admission of the redacted portion of Skillman’s statement would have added little to defendant’s theory at trial that Skillman was the aggressor and attacked defendant at the front door. On the day of the murders, Skillman had a loaded .22-caliber rifle in his bedroom.

Yet he did not take that weapon with him when confronting defendant and codefendant Wynglarz at the front door. This alone undercuts defendant’s theory that Skillman was the aggressor. Finally, the prosecution presented overwhelming evidence that defendant entered the house with a loaded weapon and almost immediately subdued Skillman and Rita and shot them execution style. Admission of the excluded statement would not have resulted in a more favorable verdict for defendant. (People v.

Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) Even if we were to assume error implicating defendant’s rights under the federal Constitution, the error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824], C. Further Cross-examination of Defendant by the Prosecutor Defendant contends the trial court erred in allowing the prosecution to reopen its cross-examination of defendant. These are the relevant facts: After defendant’s arrest, the Westminster police interviewed him and advised him of his rights under Miranda v.

Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602] (Miranda). Defendant signed a consent form indicating that he had read his rights and understood them. During the interview, defendant denied any involvement in the two murders. He also denied that his pickup truck had been at the scene. After a few minutes, defendant asked for an attorney, and the officers stopped their questioning. The police tape-recorded the interview and defendant’s request for an attorney. At trial, defendant testified on his own behalf.

He admitted that he was at the murder scene and that he had shot Skillman and Rita, but he claimed he was acting in self-defense. The prosecution then cross-examined defendant but did not ask him about his interview with the police. Thereafter, codefendant Wynglarz’s counsel, in cross-examining defendant, sought to impeach him with statements he had made to the Westminster police. Defendant admitted he had lied to the police but claimed he had done so because he was confused, explaining that he asked to speak with an attorney because of this confusion.

Defendant’s counsel conducted no redirect examination of defendant. The trial court then asked whether the prosecution wanted to question defendant regarding the issues raised by Wynglarz’s counsel’s cross-examination; the prosecutor said he did. Counsel for defendant objected, asserting that further cross-examination by the prosecution would be improper because defense counsel had conducted no redirect examination. The trial court overruled the objection, stating that defendant’s comments to the police were a significant issue on which the prosecutor could properly cross-examine defendant.

The prosecution then questioned defendant about his interview with the police, bringing out additional inconsistent statements and eliciting defendant’s admissions that he had lied to the police. On appeal, defendant contends the trial court abused its discretion by permitting the prosecution to “recross-examine” defendant. “As a general matter, an appellate court reviews a trial court’s ruling as to the order of proof for abuse of discretion. That is because, as a general matter, the trial court has authority to ‘regulate the order of proof’ in the exercise of ‘its discretion.’ (Evid. Code, § 320.)” (People v.

Alvarez (1996) 14 Cal.4th 155, 207 [58 Cal.Rptr.2d 385, 926 P.2d 365]; see § 1044 [the trial court has the duty to conduct a criminal trial in an orderly and expeditious manner]; Evid. Code, § 765 [the trial court has broad discretion to regulate witness examinations].) Under Evidence Code

section 774, the trial court may permit reexamination of a witness on any new matter on which another party has examined the witness. The Law Revision Commission comment to this provision states that Evidence Code

section 774 applies to direct, cross-, redirect, and recross-examinations. We discern no abuse of discretion. Here, on cross-examination of defendant, counsel for codefendant Wynglarz raised the issue of defendant’s prior inconsistent statements to the police. Defendant admitted he had lied to the police but claimed he was confused at that time, indicating he had requested an attorney during the interview. Because defendant’s responses raised new issues about defendant’s credibility, the prosecution was entitled to explore these issues. (Evid. Code, § 774; see also People v.

Chatman (2006) 38 Cal.4th 344, 382 [42 Cal.Rptr.3d 621, 133 P.3d 534] [when a defendant voluntarily testifies, the district attorney may introduce evidence through cross-examination that explains or refutes his statements or the inferences that may reasonably be drawn from them].) Under these circumstances, we conclude the trial court did not abuse its discretion in allowing the prosecutor to reopen cross-examination of defendant.

Defendant argues that because the trial court allowed the prosecution to further cross-examine him, he was “forced” to play the entire audiotape of the police interview, which included his invocation of his right to counsel, and thus he was denied the opportunity to put on the “defense of his choice.” We address this contention in our discussion of defendant’s related claim of prosecutorial misconduct, where we more fully discuss the facts under which the audiotape of the police interview was played to the jury. (See pt. III.D.2., post.) D.

Alleged Prosecutorial Misconduct Defendant claims several instances of prejudicial misconduct by the prosecutor in violation of both the Fifth Amendment to the United States Constitution and

article I,

section 15 of the California Constitution. We conclude no prejudicial misconduct occurred. “A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44 [104 Cal.Rptr.2d 582, 18 P.3d 11]; accord, Darden v. Wainwright (1986) 477 U.S. 168, 181 [91 L.Ed.2d 144, 106 S.Ct. 2464]; Donnelly v.

DeChristoforo (1974) 416 U.S. 637, 643 [40 L.Ed.2d 431, 94 S.Ct. 1868].) “Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales, supra, 25 Cal.4th at p. 44.) Generally, a claim of prosecutorial misconduct is not reviewable on appeal unless the defendant makes a timely objection and asks the trial court to admonish the jury to disregard the prosecutor’s improper remarks. (People v.

Earp, supra, 20 Cal.4th at p. 858.) In the absence of an objection, “ ‘the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.’ ” (Ibid.) Here, defendant did not object to any of the instances of purported prosecutorial misconduct. Because an admonition would have cured any possible harm from the claimed instances of misconduct, defendant has not preserved his claims of misconduct. In any event, defendant’s contentions lack merit, as discussed below. 1.

Questioning defendant about the credibility of other witnesses Defendant asserts the prosecutor improperly cross-examined defendant on whether codefendant Wynglarz and witness Gattenby presented false testimony. The following exchange is an example of the prosecutor’s “were they lying” line of questioning: “[Prosecutor:] You heard Mr. Wynglarz tell in his version about how you encouraged him to get the [audio] speakers [from Skillman]; is that the way it happened? “[Defendant:] No, sir, it is not. “[Prosecutor:] Was that just a fabrication from Mr.

Wynglarz in your opinion? “[Defendant:] Yes, sir, it was a fascinating story. [][]... [1] “[Prosecutor:] And, in fact, when you came into the house with the gun you heard Gerald Skillman come down the stairs and say, ‘You guys don’t have to do this.

This is my mother’s house’; you heard him say that? “[Defendant:] No, sir, I didn’t. “[Prosecutor:] You heard Douglas Gattenby testify to that? “[Defendant:] Yes, sir, I heard, but that was never said. “[Prosecutor:] And you heard Douglas Gattenby tell this court and this jury that he heard you say, T ain’t taking your shit,’ and that is when you shot [Skillman]? “[Defendant:] No, sir. “[Prosecutor:] And you are saying Douglas Gattenby is lying about that, sir? “[Defendant:] Yes, sir, he is lying about that. [][]... [f] “[Prosecutor:] Now, you heard Mr.

Wynglarz say that after the shootings you came upstairs to Gerald Stillman’s bedroom; you heard him say that? “[Defendant:] Yes, sir, I heard. “[Prosecutor:] And you are saying that is a lie? “[Defendant:] Yes, sir, it is a lie. “[Prosecutor:] He is lying about that? “[Defendant:] Yes, sir. [f] . . . [][] “[Prosecutor:] As you sit here right now do you know of any reason that Mr.

Wynglarz would lie about that fact? “[Defendant:] I think he is just trying to save his own neck. “[Prosecutor:] Now, he said that when you came up to the bedroom, that it was you who told him to take a bag, a duffel bag that was in the bedroom, to take it off the doorknob. Are you saying that that is a lie? “[Defendant:] Yes, sir, it is a lie. [][]... [][] “[Prosecutor:] And Mr. Wynglarz says that you took the gun with you and the bag and that he never saw them again? “[Defendant:] No, sir, that is not correct. “[Prosecutor:] He is lying about that? “[Defendant:] Yes, sir, he is.” Recently, in People v.

Chatman, supra, 38 Cal.4th at page 384, we made these observations about “were they lying” questions by a prosecutor: “[C]ourts should carefully scrutinize [a prosecutor’s] ‘were they lying’ questions in context. They should not be permitted when argumentative, or when designed to elicit testimony that is irrelevant or speculative.

However, in its discretion, a court may permit such questions if the witness to whom they are addressed has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions.” With respect to asking such questions of a defendant, we stated: “A defendant who is a percipient witness to the events at issue has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately.

As a result, he might also be able to provide insight on whether witnesses whose testimony differs from his own are intentionally lying or are merely mistaken.” (Id. at p. 382.) Here, by choosing to testify, defendant put his own veracity in issue. Defendant claimed that murder victims Stillman and Rita attacked him at the front door of Stillman’s house, that he shot them both in self-defense, and that codefendant Wynglarz concealed defendant’s gun in a bag as they left Stillman’s house.

Wynglarz denied that he planned to rob or shoot anyone, and testified he was shocked when defendant pulled out his gun, ordered Wynglarz into the house, and then shot Stillman and Rita. Gattenby testified that he saw defendant pointing a gun at Stillman and Rita, who had not threatened either defendant or Wynglarz. The prosecution’s questions allowed defendant to clarify his position and to explain why codefendant Wynglarz or eyewitness Gattenby might have a reason to testify falsely.

The jury properly could consider any such reason defendant provided; if defendant had no explanation, the jury could consider that fact in determining whether to credit defendant’s testimony. (People v. Chatman, supra, 38 Cal.4th at p. 383.) Thus, the prosecution’s questions in this case “sought to elicit testimony that would properly assist the trier of fact in ascertaining whom to believe.” (Ibid.) There was no prosecutorial misconduct. 2.

Asserted violation of a trial court order Defendant contends the prosecution violated an order of the trial court fimiting the scope of questioning of defendant regarding the statements he made during a police interview. As noted earlier, defendant initially waived his Miranda rights and agreed to talk with Westminster police officers about the murders of Stillman and Rita. After the officers had briefly questioned him, defendant said he wanted an attorney, and all questioning stopped. Police tape-recorded the entire interview, including defendant’s invocation of his right to counsel.

At trial and outside the presence of the jury, the parties discussed the admissibility of defendant’s statements to police. The trial court and the parties agreed that defendant’s statements to the police were obtained in compliance with Miranda. The trial court ruled that defendant’s statements were made voluntarily and could be introduced as prior inconsistent statements. The prosecution said it had prepared an edited version of the recorded interview that redacted defendant’s invocation of his right to counsel. The trial court agreed the jury should not hear the invocation.

The court then stated: “[The prosecutor] can confront [defendant] with the [edited tape of the interview], and then [defendant] can explain it.” The court indicated, however, that in questioning defendant about the taped interview, the parties should not “get into the Miranda issues.” During the prosecution’s reopening of cross-examination of defendant, it asked this question: “You had already said that you were willing to talk without an attorney, didn’t you?,” to which defendant responded, “Sir, I was confused.” The trial court interrupted, stating that the prosecution had violated the court’s admonition not to question defendant “about the Miranda advisement.” The court asked whether defendant’s counsel wanted the court to give a limiting instruction, strike defendant’s testimony, or play the entire taped interview.

Defendant’s counsel chose the latter. The tape recording was played to the jury and the prosecution resumed its cross-examination of defendant. On appeal, defendant contends the prosecution committed misconduct when it asked defendant whether he had told the police officers that he would talk to them without an attorney.

Assuming for the sake of argument that the trial court prohibited the prosecutor from questioning defendant about his willingness to speak to the police without an attorney when it said, “I don’t think we need to get into the Miranda issues,” defendant suffered no possible prejudice from the prosecution’s question. The jury was already aware from the cross-examination of defendant by codefendant Wynglarz’s counsel that defendant’s statements to police were inconsistent with the version of events defendant testified to at trial.

Defendant told the police he was not present when Skillman and Rita were shot; at trial, he admitted shooting them. Moreover, the prosecution’s question to defendant whether he had agreed to speak to the police without an attorney being present was fully consistent with the prosecution’s redacted version of the recorded police interview of defendant, which included the Miranda advisements.

Defendant not only agreed that this redacted version of the recording should be played to the jury but also expressly requested that the jury hear the entire unredacted recording as a remedy for what the trial court perceived as the prosecutor’s improper reference to defendant’s initial waiver of his right to counsel.

For the same reasons, we reject defendant’s contention that, as a result of the prosecutor’s violation of the trial court’s order not to question defendant about his Miranda advisements, defendant was prejudiced because he was “forced” to agree to the jury’s hearing the entire taped police interview. Defendant, however, was not “forced” to agree to the playing of the tape-recorded statement for the jury. He could instead have asked the trial court to admonish the jury not to consider whether he had invoked his right to counsel.

Such an admonition would have been more than adequate to eliminate any prejudicial effect arising from the prosecution’s allegedly improper question. The question had little or no prejudicial effect because the prosecution made no mention of defendant’s invocation of his right to counsel (from which the jury might have drawn an inappropriate inference of guilt), and mentioned only defendant’s waiver of his Miranda rights, from which the jury could not have drawn any adverse inferences. 3.

Asserted misstatement of evidence The prosecution presented evidence that at 12:24 p.m. on the day of the murders, the Westminster Police Department notified officers to be on the lookout for two male suspects in a red dual-wheel pickup truck. Westminster Police Officer Steve Moore, then on motorcycle patrol, saw a truck matching this description, and followed it for about one mile. Moore noticed that codefendant Wynglarz, who was driving the truck, turned around several times and looked at him.

The prosecution’s guilt phase closing argument included the following: “After the killings, [Wynglarz] drives the getaway car. Is that an accident? Remember, I was asking, ‘Well, Mr. Tafoya, if it’s your car and you don’t want other people driving it, why didn’t you ask for the keys?’ [f] The reason, I would submit, is Mr. Tafoya was the one with the gun. So if there would be a problem, if there would be a police officer who pulls them over, Mr. Wynglarz needs both hands on the wheel. He needs to drive. Mr. Tafoya has the gun free if he needs to use it. That is why Mr. Wynglarz is driving Mr. Tafoya’s truck.

He’s the getaway driver. It allows the gun to be used if need be. Fortunately for all of us, . . . Officer Moore did not try to pull them over, because who knows what would have happened to Officer Moore.” Defendant complains the prosecutor misstated the evidence by arguing that defendant had the gun on his person while he and codefendant Wynglarz escaped in defendant’s truck and by suggesting that defendant would have shot Officer Moore had he tried to stop them.

We disagree. “While counsel is accorded ‘great latitude at argument to urge whatever conclusions counsel believes can properly be drawn from the evidence [citation],’ counsel may not assume or state facts not in evidence [citation] or mischaracterize the evidence [citation].” (People v. Valdez (2004) 32 Cal.4th 73, 133 [8 Cal.Rptr.3d 271, 82 P.3d 296].) Whether the inferences drawn by the prosecutor are reasonable is a question for the jury. (People v.

Dennis (1998) 17 Cal.4th 468, 522 [71 Cal.Rptr.2d 680, 950 P.2d 1035].) Here, the prosecution neither mischaracterized the evidence nor assumed facts not in evidence, but merely drew permissible inferences from it. Although defendant testified that he put the gun in a bag and threw the bag in the back of his truck, no other witness so testified to his version of events. Moreover, according to codefendant Wynglarz, defendant had the gun on his lap as they drove away from Skillman’s house. Thus, the prosecution’s argument that defendant was armed during the getaway was consistent with the evidence and not improper.

Furthermore, the prosecution could reasonably infer from the evidence that defendant, a passenger in the getaway truck, might have used the gun he held to shoot Officer Moore had the latter stopped defendant’s truck. The evidence showed that defendant had just shot two unarmed men, Stillman and Rita, almost immediately after he entered Stillman’s house. 4.

Claim that the prosecutor improperly advised the jury of his personal opinion Defendant faults the prosecutor for stating during closing argument that defendant was lying and characterizing defendant’s testimony as “obviously fabricated” and “not based upon the truth.” Codefendant Wynglarz objected that the prosecutor was improperly expressing his own opinion, and the trial court admonished the jury: “Ladies and gentlemen, that is correct. It isn’t appropriate for—it isn’t for the lawyers to decide who is telling the truth or not telling the truth. It is not their opinion that is important. It is your opinion.

So it is, the lawyer’s remarks are intended to suggest to you what they believe the evidence supports, not what they personally believe.” Assuming Wynglarz’s objection properly preserved this issue for defendant, we discern no prosecutorial misconduct. “The prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence, . . . [and] to argue on the basis of inference from the evidence that a defense is fabricated . . . .” (People v. Pinholster, supra, 1 Cal.4th at p. 948; accord, People v.

Wilson (2005) 36 Cal.4th 309, 338 [30 Cal.Rptr.3d 513, 114 P.3d 758] [no impropriety in asserting that the defendant, who had provided conflicting versions of the events, was lying].) Here, the prosecution properly based its argument on the evidence admitted at trial or reasonable inferences drawn from it. A reasonable juror would have understood the prosecution’s reference to defendant’s lying during his testimony as describing the trial evidence rather than as a statement of the prosecution’s personal opinion. E.

Defendant’s Requested Jury Instructions Defendant contends the trial court erred in refusing to give defendant’s proposed special instructions G and H, thus depriving him of his rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and under

article I, sections 15 and 17 of the California Constitution. Not so. Special instruction G read: “In considering the burglary special circumstance, a necessary element is that the burglary must have been done for some purpose other than the commission of the homicide itself. If the evidence shows only that the defendant committed a burglary in order to facilitate the homicide, you must find that there was no independent felonious purpose.

HQ If from all the evidence you have a reasonable doubt that the defendant committed burglary for such independent felonious purpose, you must find the defendant not guilty of the burglary special circumstance.” Special instruction H was identical to special instruction G except that it substituted the crime of “robbery” for “burglary.” These two instructions proposed by the defense merely duplicated standard jury instructions that the trial court gave, which told the jury that the special circumstances of murder in the commission of robbery and burglary are not established if the robbery or burglary was “merely incidental to the murder.” Accordingly, the trial court did not err in refusing to give these instructions. (People v.

Earp, supra, 20 Cal.4th at pp. 902-903.) IV. Penalty Phase Issues A. Alleged Prosecutorial Misconduct At the penalty phase of the trial, the prosecutor’s closing argument urged the jury to consider all of the evidence admitted during both the guilt and penalty phases of the trial, the aggravating evidence of criminal conduct presented in the penalty phase and proven beyond a reasonable doubt, and the mitigating evidence such as sympathy for defendant. After stressing that the jury had to follow the trial court’s instructions, the prosecutor said: “What you may not consider.

Number one, you may not consider the defendant not testifying in this phase of the trial. You are going to be instructed in this phase that that is not a fact that should even enter into your decision in any way. You cannot speculate as to the reasons why or why not. It is a fact that is not entitled to enter into your decision in any way, the fact that he did not testify in this phase of the trial. Certainly you can include all evidence from the last phase. You can discuss his testimony from the last phase of the trial. That is part of the evidence you have heard.

But you cannot speculate or consider a defendant not testifying in this phase of the trial.” Defendant made no objection to these remarks during the prosecutor’s argument. The next day, defendant asserted the prosecutor’s comment was an improper reference to his failure to testify at the penalty phase. (See Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229] (Griffin).) The trial court made no ruling on the matter. Defendant raised the issue again in a motion for a new trial. The trial court ruled that the prosecutor’s comment was improper but that it had not prejudiced defendant.

The court noted that the comment was brief and only a small part of the prosecutor’s penalty phase argument. The court thus concluded it was not likely the jury gave much weight to the comment. Defendant now contends that the prosecutor’s reference to defendant’s failure to testify at the penalty phase requires reversal of the death judgment. Defendant concedes that he did not object to the comment when made, stating that he did not want to draw the jury’s attention to it.

We note that at the hearing on defendant’s motion for a new trial, the trial court agreed with the defense that the prosecutor’s remark was improper. Thus, it seems likely that had defendant objected to the remark when it was made, the court would have sustained the objection, stricken the prosecutor’s comment, and admonished the jury not to consider it. Because an admonition would have cured any possible harm from the prosecutor’s remark, defendant failed to preserve his claim of misconduct by failing to object.

Even assuming defendant has preserved this issue for appeal, the claim lacks merit, as discussed below. “Under the Fifth Amendment of the federal Constitution, a prosecutor is prohibited from commenting directly or indirectly on an accused’s invocation of the constitutional right to silence.” (People v. Lewis (2001) 25 Cal.4th 610, 670 [106 Cal.Rptr.2d 629, 22 P.3d 392], citing Griffin, supra, 380 U.S. at pp. 614—615.) This rule applies to the penalty phase of a capital case. (Mitchell v. United States (1999) 526 U.S. 314, 327-328 [143 L.Ed.2d 424, 119 S.Ct. 1307]; People v.

Carter (2005) 36 Cal.4th 1215, 1277 [32 Cal.Rptr.3d 838, 117 P.3d 544]; People v. Crittenden (1994) 9 Cal.4th 83, 147 [36 Cal.Rptr.2d 474, 885 P.2d 887].) Here, the prosecutor’s comment echoed standard jury instruction CALJIC No. 2.60: “A defendant in a criminal trial has a constitutional right not to be compelled to testify.

You must not draw any inference from the fact that a defendant does not testify. . . .” The prosecutor’s comment also repeated defendant’s special instruction J, which was given to the jury: “In deciding whether or not to testify at the penalty phase, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential

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