THE PEOPLE, Plaintiff and Respondent, v. PAUL JOE CARASI, Defendant and Appellant, 44 Cal. 4th 1263

Opinion BAXTER, J. Paul Joe Carasi (defendant) and his live-in girlfriend, Donna Lee (codefendant or Lee), were charged, tried, and convicted in the same proceeding of committing two first degree murders on Mother’s Day 1995. (Pen. Code, § 187.) The victims were defendant’s mother, Doris Carasi (Doris), and his former girlfriend, Sonia Salinas (Sonia), the mother of his child.

As to each murder count, the jury returned a lying-in-wait special-circumstance finding (§ 190.2, subd. (a)(15)), and a finding of personal use of a deadly weapon, i.e., a knife. (§ 12022.) With respect to Sonia’s murder, the jury also found true the special circumstances of multiple murder (§ 190.2, subd. (a)(3)), and murder for financial gain. (§ 190.2, subd. (a)(1).) After a joint penalty trial, the jury returned a death verdict against defendant, but not against codefendant Lee.

The trial court denied defendant’s automatic motion to modify the penalty verdict. (§ 190.4, subd. (e).) The present appeal from the death judgment is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) We find no prejudicial error at defendant’s trial. The judgment will be affirmed in its entirety. I. Guilt Evidence A.

Summary Prosecution evidence showed that defendant and Lee planned to kill Sonia and Doris, to make the crime look like a robbery, and to place the blame on unknown third parties. The knife slayings occurred in a remote

section of the parking garage at the Universal Studios CityWalk Mall in Burbank (Universal or Mall), after defendant took the victims, along with his and Sonia’s two-year-old son, to a late-night Mother’s Day meal. The child was unharmed, but defendant was found covered in the women’s blood in the garage, claiming to be a victim of the same “robbery” as the two women. Lee, who had waited in the garage for the group to return from dinner, participated in the knife attack and then drove off with defendant’s and the victims’ personal property.

Lee’s getaway was frustrated, however, and the plot began to unravel, when she was forced to summon emergency medical aid from the highway for serious wounds sustained in the attack. According to the prosecution, defendant murdered the victims because he believed they were trying to keep him from his son, and because he could not afford to pay court-ordered child support to Sonia in his debt-ridden state. B. Prosecution Case 1.

The Crime Scene Shortly after 11:00 p.m. on May 14, 1995, Mother’s Day, both the security office at Universal and a nearby sheriff’s station received reports of criminal activity in the parking garage—an area which, unlike the Mall, had no security cameras. Persons who arrived on the scene included Deputy Sheriff Tom Wilford, security officer Joseph Hildebrand, and Darren Smith, an employee in the Mall. At trial, Smith and Deputy Wilford gave similar accounts. On the fourth floor of the garage, defendant was lying on the ground near the stairwell.

He pointed to the fifth floor, and told Smith, “My kid is up there.” Defendant said something different to Wilford, who arrived moments later—“They killed them.” Defendant was drenched in fresh blood. Wilford testified that it covered defendant “from his head to his toes,” including his face and hands. Smith recalled that defendant slipped in the blood as he moved and tried to stand. Smith testified that after finding defendant, he climbed the stairs to the fifth floor. Smith saw bloodstains in the stairwell. He also found a large folding knife on the steps, with the blade closed and no blood on it.

A short time later, in front of Officer Hildebrand, defendant spontaneously said the knife was his. The fifth floor served as the roof of the garage, and was not itself fully covered. There, Smith, Deputy Wilford, and Officer Hildebrand saw a blue, four-door Chevrolet Caprice, later identified as defendant’s car. It was parked in the comer against the wall, out in the open air. A few other vehicles were parked on the same floor, but none was near the Caprice. Both doors on the driver’s side of the car were open. A small boy was strapped in a car seat behind the driver’s compartment.

He was crying, but seemed physically unharmed. In the presence of Smith, Deputy Wilford, and Officer Hildebrand, the child screamed “Mommy” repeatedly, and pointed towards the passenger side of the car. There, in a small space enclosed on three sides by the car and garage walls and railing, the witnesses found two women lying in large pools of blood. They bore stab wounds and appeared to be dead. The bloody trail that Smith had seen downstairs and in the stairwell continued onto the fifth floor, near the bodies. Deputy Wilford summoned more law enforcement support. Meanwhile, defendant arrived on the fifth floor.

He paced and shook his hands at one point, and sat on the ground rocking back and forth at another point. At Wilford’s request, Officer Hildebrand watched and comforted defendant. Defendant identified the two women and the boy. Defendant indicated that he was not hurt, and did not know why he was so bloody. He denied touching the injured victims. Defendant described the following events to Officer Hildebrand: He unlocked the car for his family after they returned from dinner. Just as he realized he did not have all of his keys, defendant was shoved from behind by someone who demanded money.

Though defendant said he had no money, the assailant removed defendant’s fanny pack from his shoulder and pushed him to the ground. Defendant stood up and saw Sonia and Doris lying in pools of blood. He headed downstairs to get help. Defendant heard male voices and the victims’ screams during the attack, but could not describe the number or appearance of his assailants, or the manner in which they left the scene. Paramedics arrived on the fifth floor of the garage a short time later.

One of them, Alan Lenhart, testified that, after determining that the women were dead and the child was unharmed, he and his partner examined defendant, removing his jacket and shirt—a shirt with Disney characters on the front. The only visible injury was a small cut on his thumb. The cut was not bleeding and, in Lenhart’s view, could not account for all the blood on defendant. In response to questions, defendant sometimes moaned or cried out. Other times, however, he seemed calm and gave clear answers. Lenhart testified that this pattern was unusual.

In his experience, traumatized persons act either withdrawn or upset, but not both. When the paramedics spoke about canceling an ambulance, defendant seemed surprised and asked whether his mother was alive. In his exchange with Lenhart, defendant repeated much of what he had said to Officer Hildebrand, but added or changed certain details. In the later version, defendant said for the first time that he leaned inside the car to kiss Sonia, turned to go downstairs to retrieve the ignition key from the restaurant, and was grabbed by the hair from behind and sat upon after being pushed down.

Contrary to his prior account, defendant also told Lenhart that the person who attacked him was not the same person who demanded money. 2. Events Preceding the Crime In 1991, defendant and Sonia began dating. They both worked for the Bank of America (Bank) in its check processing center in downtown Los Angeles. When Sonia became pregnant, she moved into the North Hollywood apartment defendant shared with his mother, Doris. The couple continued living there after their son, Michael, was bom in January 1993. In mid-1993, when Michael was about six months old, Sonia became quite ill.

She was hospitalized for long periods during which Doris cared for Michael. After Sonia left the hospital, her relationship with defendant soured. She moved with Michael to her family’s home in West Hollywood, and brought him to visit Doris at her apartment on weekends. Defendant disliked Sonia’s new living arrangements, and feared her family might prevent him from seeing his son. According to Sonia’s manager, Martha Dominguez, defendant said he was willing to kill to prevent such interference. Defendant told a coworker, Robert Mora, that he wished “that bitch,” Sonia, had “died” in the hospital.

Sonia resumed working at the Bank in mid-1994. The evidence suggested defendant was controlling and volatile at times, especially toward women. Dominguez and Mora each described one instance in which they saw or heard about defendant either violently grabbing or verbally abusing his mother. Mora testified that defendant sexually propositioned many women at work. One of them, Wendy Osiow, testified that she complained to superiors about defendant.

In testimony echoed by other coworkers, Nicholas Latimer described defendant as a “wanna-be cop” who carried a police scanner and whose car looked like an unmarked police vehicle. According to Latimer, defendant liked to drive his car to Hollywood and scare street prostitutes into thinking they were being watched by the vice squad. Sometime in fall 1994, defendant began dating codefendant Lee, a married coworker who knew many of the same people as defendant and Sonia. Lee moved into the apartment defendant shared with his mother, Doris, and decided to divorce her husband.

Meanwhile, Sonia obtained a court order directing defendant to pay her $375 in monthly child support and requiring the money to be deducted from his wages. To facilitate this process, defendant and Sonia both signed a letter, dated December 1, 1994, asking the Bank to deduct one-half of the amount defendant owed Sonia from each of his two monthly paychecks, and to place the money in her checking account. This arrangement, which the couple’s letter referred to as “garnishment,” took effect immediately. Over the next few months, defendant experienced mounting financial strain.

He earned a gross salary of $1,886 a month, or $22,632 a year. After deductions, including child support, his net pay totaled $960 a month. On May 8, 1995, six days before the crime, he had $271 in his checking account and $265 in his savings account. At the same time, defendant owed over $21,000 in consumer debt. In addition, defendant and Lee jointly obtained a Household Finance loan in late 1994. The original balance of $10,000 remained unpaid in May 1995. Defendant resented Sonia as a result of the wage garnishment.

One of his supervisors, Lydia Moreno, testified that defendant said he could not pay his bills because of child support payments, that creditors called him at work, and that he was “fucked for the next seven years, because he was going to have to file bankruptcy.” Osiow overheard defendant say he wished Sonia “were dead” to avoid giving her “half [his] stuff.” Defendant told Latimer many times that Sonia was a “bitch” and a “whore” because of the money deducted from his paycheck.

At some point before February 1995, while confiding in Dana Shafer, one of his managers, defendant asked if the Bank made “legal referrals” to help answer child custody and support questions. In late March or early April 1995, defendant discussed whether to declare bankruptcy with an attorney, Rene Lopez de Arenosa. Codefendant Lee was present during this meeting. Defendant and Lee were both upset with Sonia about parenting issues. Coworker Deborah Trudeau testified that Lee became agitated when she once saw Sonia with defendant’s son, Michael, at work.

Both Lee and defendant complained to Trudeau, Osiow, and others that Sonia was impeding visitation with Michael. According to his friend Mora, defendant said, “Fuck that bitch. She won’t get away with taking my kid. I’ll get her one day.” Defendant told his manager, Shafer, that Sonia “wasn’t going to be around” to challenge custody. In April 1995, relations further deteriorated between defendant and Lee on the one hand and Sonia and Doris, on the other hand. The events were relayed at trial by supervisors and coworkers (e.g., Dominguez, Moreno, and Trudeau) who learned about them from Sonia, Lee, or defendant.

Following an argument, Doris ordered defendant and Lee out of her apartment. They moved to a unit across the hall in the same building. The incident triggered heart problems in Doris, who was briefly hospitalized. Afterwards, over the Easter weekend, Sonia stayed in Doris’s apartment and cared for her. Defendant approached Sonia on Easter Sunday, April 16, 1995, and asked her to take a drive with him. He then disclosed his sexual relationship with Lee. Sonia became upset and “backhanded” defendant.

When they returned to the apartment complex, defendant acted like he was having a seizure and was helped to his apartment by two bystanders. When Doris tried to see defendant, Lee would not let her inside the door, and the two women physically fought one another. Defendant subsequently talked about getting a restraining order against Doris. On May 5, 1995, Sonia and Michael moved into Doris’s apartment, planning to stay one week. According to Sonia’s family, she and Doris were considering leaving North Hollywood and relocating together, with Michael, in either Whittier or San Francisco.

The next day, May 6, 1995, which was about a week before the murders, defendant and Lee were seen walking with one another at Universal by two Bank managers, Adrienne Gavura and Shafer, who went there together with friends. Gavura testified that defendant and Lee seemed shocked by the encounter. Shafer testified that defendant and Lee looked guilty. The same week, another coworker overheard Lee say she was “going to do something stupid” for which she would go “to prison.” Both defendant and Lee had scheduled one week’s vacation from work beginning Monday, May 15, 1995.

On Sunday May 14, 1995, defendant took Sonia, Doris, and Michael to the Country Star restaurant at Universal. When they entered the garage at 8:51 p.m., ample parking was available in areas much closer to the restaurant than the rooftop on which the car was later found. Their waitress commented to a coworker that defendant was acting strange. At trial, she recalled that he ordered the “strongest” drink on the menu (a seven-liquor ice cream treat) before dinner. Also, he was patient with his fidgety son and brusque toward the women. They left the restaurant around 10:45 p.m.

Meanwhile, codefendant Lee drove to Universal that night, entering the garage at 9:57 p.m. A few minutes earlier, at 9:49 p.m., a brief call was made from a pay phone located inside the Country Star restaurant to defendant’s cell phone, and was charged to his home phone number. The same cell phone was found in Lee’s car later that night, as discussed below. The hostess at Tony Roma’s restaurant, which is located between the Country Star restaurant and the parking garage, testified that she twice saw Lee walking fast toward the garage that night with a grave expression on her face. 3.

Discovery of Lee and Evidence Along Highway 170 At 11:20 p.m. on May 14, 1995, shortly after the crime, two California Highway Patrol officers arrived at callbox 166 along Highway 170, five miles from Universal. They were responding to an emergency call from codefendant Lee, who reported being robbed and stabbed at that spot. The officers found Lee lying on the ground near her car, on top of a jacket, with her hands to her side. The car was locked with the keys inside.

Lee moaned in pain, and muttered something about there being “nothing [she] could do” and not knowing “what happened.” She had suffered an abdominal laceration from which she was bleeding and from which her intestines protruded. The officers dressed the wound and called paramedics. After Lee was taken to the hospital, and additional investigators arrived on the scene, a search was made of the ivy-covered embankment that sloped down from the road. The search produced two fanny packs, one belonging to defendant and the other to Doris, and Sonia’s purse. These items were covered in blood.

Other bloodstained items found nearby included a knife with a blunted tip, a blue sweater, a latex glove, a washcloth, and a pair of wool gloves. Inside Lee’s car, investigators found defendant’s cell phone in the center console, and Lee’s fanny pack and two plastic Ziploc baggies under the driver’s seat—all bloodstained. 4. Postcrime Investigation On May 15, 1995, the day after the murders, defendant visited Sonia’s family.

He was overheard telling someone on the telephone that he was “going to jail for a lot of years for this.” On May 15 and 16, Lee spoke with homicide detectives while awake and coherent in the hospital. She first denied knowing about her injuries or the items found along Highway 170, and later screamed profanely at the officers to leave her alone. The clothing she wore when admitted to the hospital was bloodstained and had cuts in it. It was obtained by investigators and subjected to scientific testing, as discussed below.

Around the same time, officers saw defendant visiting Lee in the hospital, where they photographed cuts on his hands. They also obtained the jeans and jacket he wore the day of the murders. Both items were bloodstained. The jacket had cuts in it. The clothing underwent scientific testing, as discussed below. Detectives arrested defendant on May 18, 1995. While being transported to jail and passing the courthouse, defendant turned to one of the detectives and asked what he “would get,” or words to that effect, if he pled guilty. During the booking process, defendant said he wanted to talk to codefendant Lee.

Detectives arranged the call and heard him say, “Remember what we talked about.” 5. Autopsy Results and Forensic Evidence Defendant’s mother, Doris, sustained multiple penetrating stab wounds to the chest and back. Her most serious injury was a gaping knife wound to the throat that had been inflicted in a sawing motion, and that nearly decapitated her. It would have quickly caused death, and was likely inflicted last. Doris had no defensive knife wounds on her hands.

Serological testing, including DNA analysis, established that Doris’s blood was consistent with blood found on the rear seat of defendant’s car, on the Disney shirt he apparently wore the day of the crime, on the jeans defendant and codefendant Lee wore the same day, and on one of the wool gloves found near Lee along Highway 170. Sonia Salinas was stabbed through the chest to the breast bone. She also suffered numerous deep incisions to her face and throat that intersected in the neck. Her carotid arteries and jugular vein were cut. These injuries would have quickly caused death and probably occurred last.

Sonia had several deep defensive knife wounds on her hands. Serological and DNA analysis established that Sonia’s blood was consistent with blood found on the front seat of defendant’s car, on the Disney shirt (including the bloody handprint), on defendant’s jeans and jacket, and on the bloody trail running between the areas at the crime scene where defendant and the victims were found. Sonia’s blood also was consistent with blood found on items tossed along Highway 170, including the knife, defendant’s fanny pack, the latex glove, and the plastic baggies found under the front seat of Lee’s car.

Codefendant Lee suffered an evisceration in which the knife had been thrust deeply into the abdomen and moved around. She sustained another stab wound to the back, and a large cut on the inside of the left leg, above the ankle. Serological tests, including DNA analysis, established that Lee’s blood was consistent with blood found on Sonia’s left shoe at the crime scene, and on items found along Highway 170. Such items included the fanny packs belonging to defendant and Doris, Sonia’s purse, the blue sweater, one of the wool gloves, and the plastic baggies found inside Lee’s car.

Defendant Carasi suffered cuts on both hands. Serological testing, including DNA analysis, established that his blood was consistent with blood found on the Disney shirt, on his jeans and jacket, and on the bloody trail at the crime scene. Defendant’s blood also was consistent with blood found on his fanny pack and the blunt-tipped knife recovered along Highway 170, and on the plastic baggies found in Lee’s car. Dr. Eugene Carpenter, the pathologist who performed the autopsies, opined that each victim was restrained against a hard object.

He testified that most knife fatalities involve injuries near the heart, not the throat, and that the large number of wounds sustained by Sonia and Doris was rare. On direct and cross-examination, the witness associated such injuries with domestic disputes and other crimes of passion. Dr. Carpenter further testified that defendant suffered at least one palm injury consistent with a “knifer’s wound,” which occurs when the knife strikes bone, and the hand slides down the handle onto the blade. Cuts on Sonia’s hands were consistent with her having repeatedly deflected and grabbed the blade.

Steven Dowell, a criminalist specializing in tool mark analysis for the coroner’s office, compared the knife found along Highway 170 to the victims’ injuries. Several of Doris’s wounds were consistent with the depth and width of the knife’s blade. The blunted tip could have left certain irregular abrasions on Sonia’s skin. No wound was inconsistent with the suspected murder weapon.

Elisabeth Devine, a crime reconstruction specialist with the sheriff’s department, opined that Sonia and Doris were probably first attacked inside the car on the passenger side, and that each victim ended up outside the car, where they received their lethal neck wounds. Devine believed more than one assailant was involved. It was likely that Sonia left the bloody handprint on the Disney shirt while grasping at her attacker, and that Sonia’s shoe was in motion when it came in direct contact with blood from codefendant Lee’s wounds. C. Defense Case Defendant did not testify at trial.

He called two witnesses, both of whom also testified for the prosecution, to suggest that he did not kill the victims, and that law enforcement bungled the investigation. First, Sonia’s sister, Maria, testified that defendant was upset when visiting her house the day after the murders. He was curled up on the floor, screaming and grabbing at a neighbor who sat nearby. Defendant’s other witness, Criminalist Beverly Kerr, indicated that serological testing was not performed on every bloodstain found on the Disney shirt or near defendant’s car at the crime scene. II. Penalty Evidence A.

Prosecution Case Evidence was introduced about the effect of Sonia’s murder on persons close to her. Sonia’s parents and two sisters described Sonia as a loving, giving, and devoted member of a close-knit family, which continued to mourn her loss. They testified that she fought to overcome her own illnesses and insecurities, worked hard at home and the office, and sought to improve herself to provide a better life for her son, Michael.

According to these witnesses, Michael, who was five years old at the time of trial, suffered from memories of seeing his father kill his mother and grandmother, and yearned for his mother’s love. Also, Sonia’s wit, drive, tenacity, and generosity were described by Martha Dominguez, the Bank manager who hired Sonia and became her close friend. The jury saw a video showing still photographs of both murder victims. B. Defense Case Defendant, who was 30 years old at the time of the crime, called three male friends from his boyhood.

They described his hobbies (e.g., computers, science fiction, and Disneyland), compassion (e.g., helping neighbors after an earthquake), and family ties (e.g., grieving when his father died in the early 1990’s). Defendant’s manager at the Bank from 1989 to 1993 testified that he was a model employee who volunteered for charitable events. Similar testimony was given by a married couple who employed defendant in their photography studio starting when he was in high school. Shortly before the murders, defendant and codefendant Lee had visited this couple and spoke about starting a photography business.

Defendant called a female friend of Lee’s who testified that Lee said defendant made her feel happy. IH. Pretrial Issues A. Jury Selection 1. Procedural Background Jury selection started with about 450 prospective jurors. Consistent with the law at the time, the trial court conducted all questioning. (See People v. Stitely (2005) 35 Cal.4th 514, 537, fn. 11 [26 Cal.Rptr.3d 1, 108 P.3d 182] (Stitely).) It occurred in four stages. The first stage involved screening for financial and physical hardship, and exposure to pretrial publicity.

Because the pool initially was so large, prospective jurors were divided into smaller groups at the start of this phase. Each group of prospective jurors received special instructions when they first entered the courtroom. As discussed further below, they learned that the case involved two killings at Universal on Mother’s Day 1995, and that defendant had been charged with two murder counts and three special circumstance allegations. Second, the trial court conducted preliminary death penalty screening.

In this phase, prospective jurors completed a four-question form asking whether they would refuse to sustain either a murder conviction or the special circumstances to avoid a penalty phase, or would automatically impose a death sentence or life without the possibility of parole (LWOP) regardless of the aggravating and mitigating evidence. They were orally examined, and some were excused for cause, based on their answers on this preliminary death penalty questionnaire. The third phase involved general voir dire of the 100 or so prospective jurors who survived the first two rounds.

They completed the lengthy main questionnaire covering many topics, including the death penalty. The court instructed them again on the two murder counts and the three special circumstances. It also named both victims. The court then randomly called a series of 12 people into the jury box, and examined them individually and as a group. Except for personal matters, voir dire was not sequestered. The court urged counsel to suggest additional or clarifying questions. The court asked many of counsel’s questions, and resolved excusáis for cause.

In the fourth and final stage, both sides took turns exercising peremptory challenges. Although the panel had been previously “passed” for cause, the court asked questions about the death penalty and other things, and solicited additional questions from counsel in every case. It also resolved new challenges for cause. Whenever a prospective juror was excused, a replacement was selected, and peremptory challenges resumed at random against the 12 people in the box.

Defendant exhausted his peremptory challenges, and unsuccessfully sought 14 more to compensate for those he had used when the court denied his challenges for cause. Defendants then unsuccessfully claimed the prosecution had exercised its peremptory challenges in a discriminatory fashion under People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson). Questioning resumed, involving one prospective juror.

Without exercising any more peremptory challenges, codefendant Lee and the prosecutor accepted the panel as constituted. Twelve jurors and four alternates were sworn. 2. Limits on Voir Dire During the initial or hardship/publicity phase of voir dire, defendant moved orally and in writing to amend the court’s preliminary questionnaire. As noted, the four questions on that form targeted prospective jurors who would never allow the case to proceed to a penalty phase, or who would always vote for death or LWOP.

Under defendant’s proposed amendment, the first two questions, which asked about refusing to return a murder conviction or to sustain special circumstances, referred to “[two] counts” of “premeditated” murder, and identified the three special circumstances as “lying in wait,” “financial gain,” and “multiple murder.” Defendant’s other two questions, which asked about voting automatically for death or LWOP, similarly differed from the court’s version by identifying the “premeditated” nature of the murder and the special circumstances (“lying in wait,” “financial gain,” and “multiple murder[]”).

Defendant argued that he was entitled to delve into specific facts at this early stage to adequately identify “automatic death” jurors. He emphasized that “two homicides” were alleged. The prosecutor disagreed. He observed that the court’s questionnaire generally conformed to Witherspoon v. Illinois (1968) 391 U.S. 510, 522, fn. 21 [20 L.Ed.2d 776, 88 S.Ct. 1770] (Witherspoon), concerning the excusal of prospective jurors who would always choose LWOP or death, and that defendant’s case-specific factors could be explored later in voir dire.

The court declined to amend its preliminary questionnaire to accommodate the defense. The questionnaire’s purpose, the court stated, was to identify those jurors who would always or never vote for death under any circumstance, including special circumstance cases in which only a single murder was alleged. Nevertheless, the court made clear that it was not barring reference to “all the things” counsel had raised.

The court assured counsel that it would orally instruct on the murder and special circumstance allegations before prospective jurors completed the preliminary questionnaire and answered oral inquiries about it. The court further observed that jurors would have those case-specific factors in mind when they subsequently completed the main questionnaire (which included more death penalty questions), and were examined about those written replies during general voir dire. The court alluded to the standard it would apply at that stage under Wainwright v.

Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844] (Witt), which would permit the court to disqualify persons based on their views on capital punishment, even if they would not always choose LWOP or death. Two days later, codefendant Lee joined defendant in challenging the court’s preliminary questionnaire and the decision to leave it unchanged. The court reaffirmed its ruling that case-specific factors would be excluded from the four-question form on the one hand, but that prospective jurors would be instructed on such factors before any death qualification occurred on the other hand.

The court explained that it sought to strike a balance in questioning jurors about use of the death penalty in “any case” versus “this case,” and that it did not want them to prejudge penalty or undergo “brainwashing.” Later the same day, the court assured the defense that its concerns would be met. “[W]e will find out from these jurors whether[,] if one or all of these special circumstances . . . are found to be true, whether without regard to any other evidence that they might hear in mitigation, they would automatically vote for death.

That question will be posed.” (Italics added.) The court indicated that nothing in its earlier ruling was intended to foreclose questioning on the factors the defense had sought to include in the preliminary death penalty questionnaire. The trial court adhered to the foregoing plan—giving instructions and conducting examinations in the manner proposed to counsel.

First, before answering any written or oral questions on capital punishment, all prospective jurors were instructed (in groups) that the case involved the “murder,” “killing,” or “death” of two people, or “women,” whose bodies were found in the Universal garage on Mother’s Day 1995. At the same time, before death qualification began, the court described the charges to all prospective jurors.

They learned that defendant had been charged with two counts of first degree premeditated murder and three special circumstances—multiple murder, murder committed for financial gain, and murder perpetrated while lying in wait. Second, the same facts and charges arose during the oral examination. As to everyone who answered “yes” to any of the four questions on the preliminary death penalty questionnaire, the court asked whether they would always vote for or against LWOP or the death penalty if allegations of premeditated murder with one or more special circumstances were sustained.

Similar exchanges occurred during both general voir dire and the peremptory challenge phase, where answers on the main questionnaire indicated the person might have difficulty voting for a particular penalty. In some instances, the court inquired about the person’s views on penalty assuming defendant was convicted of first degree murder and one or more special circumstances were found true. At other times, the oral examination focused more specifically on premeditated murder, multiple murder, and murder involving financial gain and lying in wait.

Despite these developments, defendant and codefendant Lee never stopped complaining about the court’s ruling.

For instance, during voir dire on the preliminary questionnaire, counsel faulted the court for not being “more case specific about people who would automatically give death.” Counsel also noted later, during general voir dire, that jurors had not been asked pointblank whether they would “always” impose death under the circumstances the defense had tried to include in the initial questionnaire, e.g., “murdering two people for financial gain.” At one point, counsel recognized that he was testing the court’s patience and essentially apologized for rehashing the issue.

On appeal, defendant repeats his claim that the trial court erred in limiting reference to “case specific factors” he sought to include in the preliminary questionnaire, namely premeditated multiple murder, lying in wait, and financial gain. Defendant insists that several challenges for cause were erroneously denied as a result, and that he was forced to use peremptory challenges to ensure that none of these persons sat on the jury. The “flip side” of this argument also is raised.

Defendant complains that prospective jurors were not asked whether they would always impose LWOP in such specific cases, and that various prosecution challenges for cause were thus erroneously granted over defense objection. Here, as in the trial court, defendant claims violations of his right to due process and to a fair and impartial jury under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution, and parallel state constitutional provisions.

At the time of defendant’s trial, as now, qualifications to serve on a capital jury were not limited to determining whether the person opposed or supported the death penalty in every case.

Then, as now, both federal and state law permitted the excusal for cause of a prospective juror whose views on capital punishment would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Witt, supra, 469 U.S. 412, 424, fn. omitted.) In articulating this standard, the high court made clear that Witt, supra, at page 424, “clarified]” Witherspoon by allowing excusáis for cause in a potentially broader range of circumstances, that is, even where the prospective juror has not made it “unmistakably clear” that he would “automatically’ vote a certain way. (Witherspoon, supra, 391 U.S. 510, 522, fn. 21.) The trial court has considerable discretion to place reasonable limits on voir dire (People v.

Zambrano (2007) 41 Cal.4th 1082, 1120 [63 Cal.Rptr.3d 297, 163 P.3d 4] (Zambrano)), and to determine the number and nature of questions on the death penalty. (Stitely, supra, 35 Cal.4th 514, 540.) We have explained that death-qualifying voir dire seeks to determine prospective jurors’ attitudes about capital punishment only in the abstract, and whether, without knowing the specifics of the case, they have an open mind on penalty. (Zambrano, supra, 41 Cal.4th at p. 1120, quoting People v.

Clark (1990) 50 Cal.3d 583, 597 [268 Cal.Rptr. 399, 789 P.2d 127].) Thus, a defendant cannot insist upon questions that are “ ‘so specific’ ” that they expose jurors to the facts of the case, or tempt them to prejudge penalty based on the aggravating and mitigating evidence. (Zambrano, supra, 41 Cal.4th at p. 1121, quoting People v. Cash (2002) 28 Cal.4th 703, 721-722 [122 Cal.Rptr.2d 545, 50 P.3d 332] (Cash).) Nevertheless, voir dire cannot be so abstract that it fails to identify those jurors whose death penalty views would prevent or substantially impair their performance under Witt, supra, 469 U.S. 412, 424.

Rules have developed to balance the competing interests. Thus, on the one hand, the trial court cannot bar questioning on any fact present in the case “that could cause some jurors invariably to vote for the death penalty, regardless of the strength of the mitigating circumstances.” (Cash, supra, 28 Cal.4th 703, 721, italics added.) But the court’s refusal to allow inquiry into such facts is improper only if it is “categorical” (People v.

Vieira (2005) 35 Cal.4th 264, 286 [25 Cal.Rptr.3d 337, 106 P.3d 990] (Vieira), italics added) and denies all “opportunity” to ascertain juror views about these facts. (Id. at p. 287.) In Cash, the defense sought to determine whether prospective jurors could consider LWOP for someone who had “killed more than one person”— alluding to anticipated penalty phase evidence that, when he was a juvenile, the defendant had murdered his grandparents. (Cash, supra, 28 Cal.4th 703, 719.) The trial court concluded that because this circumstance appeared nowhere in the information, it could not be disclosed to prospective jurors and no questioning on the topic would be allowed. (Ibid.) The ruling was enforced at every phase of voir dire. (See id. at pp. 721-722.) On appeal, this court reversed the death judgment—our lone reversal for limiting death penalty inquiry into case-specific facts.

We explained that the nature of the error prevented us from determining whether any seated juror “held the disqualifying view that the death penalty should be imposed invariably and automatically on any defendant who had committed one or more murders other than the [charged] murder.” (Id. at p. 723.) We reached a different result in Vieira, supra, 35 Cal.4th 264.

There, before voir dire began, the defendant moved to modify the court’s questionnaire to ask whether prospective jurors would automatically impose death if they convicted him of “ ‘two or more murders.’ ” (Id. at p. 284.) The court did not include this question in the written questionnaire, or ask about multiple murder during oral questioning about the death penalty. Vieira itself does not make clear whether the court read the information alleging multiple murder to prospective jurors beforehand. Nevertheless, this court found no violation of Cash, supra, 28 Cal.4th 703.

We emphasized that the trial court never ruled or otherwise suggested that prospective jurors could not be asked, during general voir dire, the multiple-murder question excluded from the written questionnaire. “[R]efusal to include the question [in the written form] was not error so long as there was an opportunity to [orally] ask the question during voir dire.” (Vieira, supra, 35 Cal.4th at p. 287.) The gravamen of Cash and Vieira—both of which were decided after defendant’s trial—is that the defense cannot be categorically denied the opportunity to inform prospective jurors of case-specific factors that could invariably cause them to vote for death at the time they answer questions about their views on capital punishment.

By definition, such an opportunity arises where the trial court instructs all prospective jurors on such case-specific factors before any death qualification begins. It is logical to assume that when prospective jurors are thereafter asked (orally or in writing) whether they would automatically vote for life or death regardless of the aggravating and mitigating circumstances, they have answered the question with those case-specific factors in mind, and are aware of the factual context in which the exchange occurs.

This assumption seems all the more reasonable where answers given orally in open court refer to the specific facts and charges contained in the court’s instruction and indicate that they are being taken into account.

Here, we assume solely for the sake of argument that premeditated murder committed while lying in wait and for financial gain are potentially inflammatory circumstances analogous to multiple murder and prior murder, that they could transform an otherwise death-qualified juror into one who could not decide penalty fairly, and that exploration of juror attitudes about the death penalty in such cases cannot be wholly disallowed. (See Zambrano, supra, 41 Cal.4th 1082, 1122 [declining to treat issue of victim’s dismemberment in such a manner].) Even so, under the unique circumstances of this case, no error occurred.

Contrary to what defendant suggests, the trial court never ruled that prospective jurors were prohibited from learning about the foregoing circumstances or from considering them when expressing their views on capital punishment. Although it denied defendant’s motion to include any case-specific factors in the preliminary questionnaire, the court kept its promise to counsel and told all prospective jurors about the specific facts and charges the defense had sought to include therein.

Thus, jurors knew the case involved two counts of premeditated murder and the three special circumstances of multiple murder, lying in wait, and financial gain. The court also conveyed this information before anyone completed either the preliminary or general questionnaire, and before jurors were orally examined about their answers on either written form.

A significant number of prospective jurors indicated in the nonsequestered presence of their colleagues, in response to instructions that they all received, that they were taking these case-specific factors into account when asked orally and in writing whether they would automatically vote a certain way. We are thus satisfied that the court’s procedures in this case were adequate to ascertain the prospective jurors’ attitudes on case-specific factors that might disqualify them to participate in a capital trial. No error under Cash, supra, 28 Cal.4th 703, or Vieira, supra, 35 Cal.4th 264, occurred. 3.

Denial of Challenge for Cause/Pretrial Publicity Defendant claims the trial court abused its discretion by not excusing Prospective Juror J.D. for cause. He also asserts violations of his right to due process and to a representative jury, but does not state whether the federal or state Constitution is involved. In any event, the argument on appeal, as in the trial court, is that exposure to news stories about the crime biased J.D. against defendant on the issue of guilt. We disagree.

On the main questionnaire completed before general voir dire (i.e., the third phase of jury selection), question No. 35 asked, “Before coming here today, did you have opinions or beliefs whatsoever about this case?” Prospective Juror J.D. answered, “From newspaper accounts at [the] time and due to details of story[,] I believed that both defendants were directly involved in murder for financial gain. Also, there had been a planned out plot for these murders.

Finally, committing the murders on Mother’s Day showed marked anger and hate directed to victims.” In a related vein, question No. 36 asked for the nature and source of any pretrial information to which prospective jurors had been exposed. J.D. again mentioned news reports of a financially motivated double murder in a parking structure at Universal on Mother’s Day. He also recollected that the victims were related to or associated with one of the defendants.

On voir dire, the trial court asked J.D., a medical laboratory technician, whether his written answers reflected circumstances that he remembered hearing or seeing in the media, or whether—as suggested on his questionnaire—he actually believed they were true.

Without apparent hesitation, J.D. clarified his written answer to question No. 35, saying, “I would have reworded that[;] rather than saying T believe’ is [.sic] I recollect from the story.” J.D. confirmed that he did not believe everything contained in media accounts, that such accounts were not evidence in the present case, that he would adjudicate the case no differently than if he had heard nothing about the crime, and that he would rely solely on the evidence presented at trial.

J.D. insisted that he would be fair and impartial, and cited his need to be neutral at work in balancing the competing demands of others. Defendant moved to excuse J.D. for cause because he “believes that the defendants are guilty” based on pretrial publicity. The motion was denied. The trial court said it accepted J.D.’s assurances that news stories involved only allegations, not evidence. The court also credited J.D.’s explanation that he was imprecise in answering question No. 35, and that he should have written that he recalled news accounts about the crime, not that he “believed” their truth or accuracy.

Defendant subsequently exercised a peremptory challenge against J.D., who did not serve on the jury. The foregoing events do not require reversal of the judgment. Preliminarily, defendant has not preserved his claim that Prospective Juror J.D. was biased and should have been excused for cause. Although he exercised a peremptory challenge to remove J.D., and exhausted all such challenges (and asked for more), defendant never expressed dissatisfaction with the jury as constituted. (People v. Wilson (2008) 43 Cal.4th 1, 14 [73 Cal.Rptr.3d 620, 178 P.3d 1113]; People v.

Crittenden (1994) 9 Cal.4th 83, 121 & fn. 4 [36 Cal.Rptr.2d 474, 885 P.2d 887].) Such lapse results in forfeiture of the claim where, as here, the trial occurred in 1997, after Crittenden was decided. (People v. Blair (2005) 36 Cal.4th 686, 741-742 [31 Cal.Rptr.3d 485, 115 P.3d 1145].) Otherwise, a defendant could challenge denial of a challenge for cause on appeal even if he was satisfied with the overall composition of the jury, and expressed no misgivings to the trial court. (People v.

Weaver (2001) 26 Cal.4th 876, 911 [111 Cal.Rptr.2d 2, 29 P.3d 103].) Moreover, under the principles invoked by defendant, a prospective juror is biased and disqualified to serve only if his state of mind will prevent him from acting impartially and without prejudice to any party. (People v. Ayala (2000) 24 Cal.4th 243, 271-272 [99 Cal.Rptr.2d 532, 6 P.3d 193] (Ayala); see People v. Ledesma (2006) 39 Cal.4th 641, 668-669 [47 Cal.Rptr.3d 326, 140 P.3d 657], citing Code Civ.

Proc., § 225, subd.' (b)(1).) If the prospective juror’s statements are equivocal or conflicting, the trial court’s determination of his state of mind is binding on appeal. (Ayala, supra, 24 Cal.4th at p. 272, citing People v. Carpenter (1999) 21 Cal.4th 1016, 1035 [90 Cal.Rptr.2d 607, 988 P.2d 531].) The trial court is in the best position to make this assessment, since it can observe demeanor and tone, and decide credibility firsthand. (People v.

McPeters (1992) 2 Cal.4th 1148, 1175 [9 Cal.Rptr.2d 834, 832 P.2d 146].) Here, nothing J.D. said in court indicated that he was biased against defendant or disqualified to serve based on news stories about the capital crime. J.D. candidly disclosed that he remembered learning about allegations of multiple murder against defendant, and stated unequivocally that he did not accept them as true and had not prejudged guilt. As noted by the trial court, such answers arguably conflicted with one response J.D. provided on his written questionnaire before the oral examination.

As noted, where assessment of the juror’s state of mind depends upon the resolution of any conflicting or ambiguous statements and upon a credibility determination, we defer to the findings of the trial court. Here, the court explicitly credited J.D.’s in-person statements clarifying his written questionnaire and insisting that he remained open-minded and fair about the case. We therefore conclude that the court did not abuse its discretion in finding no bias on J.D.’s part, and in denying defendant’s challenge for cause. 4.

Wheeler/Batson Claim As noted, near the end of jury selection, defendant exhausted his peremptory challenges and failed to persuade the trial court to grant more. Codefendant Lee, joined by defendant, then moved under both Wheeler, supra, 22 Cal.3d 258, and Batson, supra, 476 U.S. 79, to dismiss the panel of prospective jurors and start jury selection anew. They argued that the prosecution had exercised most of its peremptory challenges against female prospective jurors (i.e., 20 of 23), and that such conduct was discriminatory and unconstitutional under state and federal law. (See J. E. B. v. Alabama ex rel.

T B. (1994) 511 U.S. 127, 129 [128 L.Ed.2d 89, 114 S.Ct. 1419]; People v. Jurado (2006) 38 Cal.4th 72, 104 [41 Cal.Rptr.3d 319, 131 P.3d 400].) The trial court initially expressed conflicting views on the matter. On the one hand, the “numbers” did not surprise the court, because women “predominate[d]” in the pool of prospective jurors and more women than men were likely to be excused as a result.

On the other hand, the court stated that while it was inclined to deny the Wheeler/Batson motion without prejudice, it would require the prosecution to explain its reasons for exercising any peremptory challenges against women “[f]rom this point forward.” Seeking clarification, the prosecutor asked whether the court had found a prima facie Wheeler/Batson violation. “[I]f the court is not finding a prima facie case,” said the prosecutor, “the People should [not] have to justify anything.” The prosecutor denied any gender bias. No mention of specific jurors or reasons for excusing them was made.

The trial court acknowledged that it was not prepared to “determine whether there [was] a prima facie case” at that time. Hence, the court deferred a decision on the issue until after it had carefully examined its notes and the record. Jury selection then resumed. Later the same day, the 12-person jury panel was sworn. A few days later, four alternate jurors were sworn. The Wheeler/Batson motion was ultimately denied during the prosecution’s case at the guilt trial.

The court adopted the prosecution view, and rejected the contrary defense claim, that no prima facie case of purposeful gender discrimination had been made. It ruled as follows: “I have analyzed the pattern of peremptories by the People and the background of the jurors who were excused.

I have taken into consideration the ultimate makeup of the jury that is hearing this case with respect to their sexes and the range of ages of the sexes, the females, [f] And I’ve also considered the fact that, as is usually the case and was again here, the majority of representation is women on the panel as a whole, and on the basis of that, I find no indication of any concern . . . with respect to the Wheeler motion aspects. There just is no basis for it, and the motion is denied.” Defendant renews his Wheeler/Batson claim on appeal.

He insists denial of the motion violated his rights to due process, equal protection, and a representative jury under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution, and under applicable state constitutional provisions. No error occurred. Critical here is whether defendant established a prima facie case of purposeful discrimination. In this first stage of any Wheeler/Batson inquiry, the burden rests on the defendant to “ ‘show[] that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ ” (Johnson v.

California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 125 S.Ct. 2410]; accord, Miller-El v. Dretke (2005) 545 U.S. 231, 239 [162 L.Ed.2d 196, 125 S.Ct. 2317] (Miller-El):; Batson, supra, 476 U.S. 79, 96.) In other words, this is not a case in which, after a prima facie case is found, the state must offer permissible nondiscriminatory reasons for the strikes (i.e., the second stage of the Wheeler/Batson analysis), or the trial court must decide whether the defendant has carried his burden of showing the discriminatory use of such strikes (i.e., the third stage of the analysis). (Johnson v.

California, supra, 545 U.S. at p. 168.) Indeed, as the prosecutor indicated below, he was not obliged to disclose such reasons, and the trial court was not required to evaluate them, unless and until a prima facie case was made. (Zambrano, supra, 41 Cal.4th 1082, 1104-1105 & fn. 3; see generally People v. Bell (2007) 40 Cal.4th 582, 596 [54 Cal.Rptr.3d 453, 151 P.3d 292] (Bell).) Defendant correctly observes that the trial court’s finding that he failed to establish a prima facie Wheeler/Batson violation must be reviewed in light of intervening legal developments. In Johnson v.

California, supra, 545 U.S. 162, the United States Supreme Court reversed People v. Johnson (2003) 30 Cal.4th 1302 [1 Cal.Rptr.3d 1, 71 P.3d 270], in which we confirmed that the relevant California standard—even if it sometimes had been expressed as a “ ‘reasonable inference’ ” (People v.

Johnson, supra, 30 Cal.4th at p. 1312)— was to show that it was “more likely than not” that purposeful discrimination had occurred. (Id. at p. 1318.) The high court has since disapproved this exacting standard for federal constitutional purposes, and has said that a prima facie burden is simply to “produc[e] evidence sufficient to permit the trial judge to draw an inference” of discrimination. (Johnson v.

California, supra, 545 U.S. at p. 170.) Where, as here, it is not clear which standard the trial court used, we independently determine whether the record permits an inference that the prosecutor excused jurors on prohibited discriminatory grounds. (Bell, supra, 40 Cal.4th 582, 597.) Defendant argues that the statistical disparity between the number of prosecutorial strikes used against men and women establishes a prima facie inference of discriminatory motive. Under the particular circumstances of the case, we disagree.

At the first opportunity to exercise a peremptory challenge, the prosecution accepted the panel, consisting of five women and seven men. The defense declined to follow suit, and the process of exercising alternating peremptory challenges began. In the ensuing round, the defense jointly excused two women and three men, and the prosecution excused four women. The prosecution accepted the panel, which then consisted of eight women and four men. The defense did not find the panel acceptable at that point.

As the back-and-forth peremptory process continued, defendants jointly excused three women and two men, and the prosecution excused four women. Next, when the panel consisted of seven women and five men, the prosecution excused a man. Thereafter, defendants jointly excused a man. For the third time, the prosecution accepted the panel, which again consisted of eight women and four men. The defense did not choose to do so. In the next go-around, defendants jointly excused three women and one man, and the prosecution excused three women.

When the panel thereafter consisted of eight women and four men, the prosecution excused a man. Defendants then jointly excused two women, interspersed with the prosecution’s excusal of one woman. For the fourth time, the prosecution accepted the panel, which then consisted of six women and six men. Again, the defense did not follow suit. Defendants jointly excused one woman and, for the fifth time, the prosecution accepted the panel, then consisting of five women and seven men. Defendants responded by jointly excusing one man.

For the sixth time, the prosecution accepted the panel, again consisting of five women and seven men. Defendants then jointly excused one man, the prosecution excused one woman, and codefendant Lee excused one man. For the seventh time, the prosecution accepted the panel, then consisting of six women and six men. Next, defendant excused one woman. Then, when the panel consisted of five women and seven men, the prosecution excused a man. Codefendant Lee followed by excusing one man and, for the eighth time, the prosecution accepted the panel, consisting of five women and seven men.

Defendant responded by excusing two men and one woman. Codefendant Lee excused two men, and the prosecution excused four women. Thereafter, between the prosecution’s excusal of one woman and defendant’s excusal of one man, codefendant Lee accepted the jury. The prosecution excused one woman, codefendant Lee accepted the jury, and the prosecution excused one more woman. It was at that point that defendants objected under Wheeler/Batson, and the court took under submission the question whether they had made a prima facie case.

Then, defendant having exhausted his peremptory challenges, and codefendant Lee and the prosecution having accepted a panel of five women and seven men, those 12 jurors were sworn. In sum, after initially accepting the panel without exercising any peremptory challenges at all, the prosecutor accepted the panel eight additional times with seeming disregard for the number of females or the ratio of female to male jurors. On two such occasions, the prosecution was willing to have defendant tried by a jury of eight women and four men.

Two other times, there were six men and six women in the jury box—another split suggesting men were not being favored over women. The prosecution chose, on two more occasions, to peremptorily excuse a man when the panel consisted of seven or more women. In our view, the prosecution’s pattern of excusáis and acceptances during the peremptory challenge process reveals no obvious discrimination towards female jurors and is patently inconsistent with any such inference. Hence, the trial court did not err in finding no prima facie Wheeler/Batson violation.

Defendant next argues the trial court erred in not conducting a comparative juror analysis and that we must perform this function for the first time on appeal.

However, for reasons we have recently explained, it is not necessary or appropriate for us to speculate as to the reasons that may have motivated the prosecutor’s challenges. (Bell, supra, 40 Cal.4th 582, 600.) Nor does Miller-El, supra, 545 U.S. 231, 241-252, decided after defendant’s trial, mandate such an analysis under the present circumstances. (Bell, supra, 40 Cal.4th at p. 601.) In a “first-stage Wheeler-Batson case, comparative juror analysis would make little sense.

In determining whether defendant has made a prima facie case, the trial court did not ask the prosecutor to give reasons for his challenges, the prosecutor did not volunteer any, and the court did not hypothesize any. Nor, obviously, did the trial court compare the challenged and accepted jurors to determine the plausibility of any asserted or hypothesized reasons.

Where, as here, no reasons for the prosecutor’s challenges were accepted or posited by either the trial court or this court, there is no fit subject for comparison.” (Bell, supra, 40 Cal.4th 582, 600-601.) “Whatever use comparative juror analysis might have in a third-stage case for determining whether a prosecutor’s proffered justifications for his strikes are pretextual, it has little or no use where the analysis does not hinge on the prosecution’s actual proffered rationales, and we [may properly] decline to engage in a comparative analysis” in a first-stage case. (Bonilla, supra, 41 Cal.4th 313, 350.) B.

Denial of Severance Defendant, along with codefendant Lee, moved for severance before trial. Defendant renewed his motion both before and after opening statements at the guilt phase, during the presentation of evidence at the guilt phase, and after the penalty phase, in a motion for new trial. He now contends the trial court erred in denying these motions, thereby violating his federal and state constitutional rights to due process and a fair trial.

His theory here, as below, is that the conflicting defenses prejudiced him at every phase of trial, i.e., that while he accused unknown third parties of the murders, Lee suggested that defendant was to blame. The Legislature has expressed a preference for joint trials. (People v. Avila (2006) 38 Cal.4th 491, 574 [43 Cal.Rptr.3d 1, 133 P.3d 1076] (Avila).)

Section 1098 states that multiple defendants jointly charged with a felony offense “must be tried jointly, unless the court order[s] separate trials.” This rule applies to defendants charged with “ ‘common crimes involving common events and victims.’ ” (People v. Tafoya (2007) 42 Cal.4th 147, 162 [64 Cal.Rptr.3d 163, 164 P.3d 590], quoting People v.

Keenan (1988) 46 Cal.3d 478, 500 [250 Cal.Rptr. 550, 758 P.2d 1081] (Keenan).) However, separate trials may be ordered in the face of antagonistic defenses. (Avila, supra, 38 Cal.4th 491, 575.) As discussed further below, such conflict exists only where the acceptance of one party’s defense precludes the other party’s acquittal. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41 [17 Cal.Rptr.3d 710, 96 P.3d 30] (Coffman and Marlow), citing People v.

Hardy (1992) 2 Cal.4th 86, 168 [5 Cal.Rptr.2d 796, 825 P.2d 781] (Hardy).) We review the denial of severance for abuse of discretion—a deferential standard based on the facts as they appeared when the ruling was made. (Avila, supra, 38 Cal.4th at p. 575, citing Hardy, supra, 2 Cal.4th at p. 167.) A ruling that was correct when made will stand unless joinder causes such “ ‘ “gross unfairness” ’ ” as to violate defendant’s due process rights. (People v.

Lewis and Oliver (2006) 39 Cal.4th 970, 998 [47 Cal.Rptr.3d 467, 140 P.3d 775] (Lewis and Oliver).) Contrary to what defendant suggests, this was a “ ‘classic’ case” for joinder. (Coffman and Marlow, supra, 34 Cal.4th 1, 40, quoting Keenan, supra, 46 Cal.3d 478, 499.) The prosecution claimed that defendant and Lee planned and committed the multiple murder together. Both stood accused in equal measure of the same offenses involving the same special circumstance allegations. The evidence against each defendant was strong.

It included their joint visit to the crime scene one week before the murders, their presence and apparent phone contact at the crime scene one hour beforehand, the knife wounds each bore afterwards, and the discovery of the victims’ blood on their clothes. By the same token, statements made by each defendant before or during trial did not implicate the other and, if credited by the jury, would have been mutually exculpatory. In particular, both denied any participation in the murders.

Defendant told police and medical personnel at the crime scene that he was attacked on the top floor of the garage by robbers he never saw and could not identify. Similarly, Lee testified at trial that she was stabbed by an unknown assailant while sitting in her car waiting for defendant and the victims in the same location. All of these circumstances, including the compatible nature of each third party culpability defense, strongly supported the court’s denial of severance here.

Defendant insists, however, that Lee’s counsel provided an alternate theory portraying defendant as the person who murdered Sonia and Doris, and who stabbed Lee. Specifically, in closing argument at the guilt phase, Lee’s counsel acknowledged that jurors might not believe that an “unknown gang of thugs” committed the murders. Earlier, in Lee’s opening statement, counsel highlighted evidence suggesting that the murders were committed in a rage, that Lee and defendant became estranged the week beforehand, and that Lee had no reason to kill Sonia or Doris.

Lee’s counsel described his client as one of “three victims.” Even assuming counsel sought to subtly shift blame from Lee to defendant, and such innuendo constituted conflicting defenses under the authorities cited above, severance could properly be denied.

We have said that a joint trial is prohibited only where “ ‘the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both [defendants] are guilty.’ ” (Hardy, supra, 2 Cal.4th 86, 168.) “When, however, 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.” (Coffman and Marlow, supra, 34 Cal.4th 1, 41, italics added.) Independent evidence supported the prosecution theory and implicated defendant in the murders.

Before the crime occurred, he blamed the victims for distancing him from his son, and complained about paying Sonia child support, emphasizing his bankrupt state. Defendant drove the victims to their last meal, arriving late at night and parking in a remote spot where the murders occurred. He was found at the crime scene covered in the victims’ blood, with knife cuts on his hands. He behaved oddly and made suspicious statements at that time about how the attack occurred. In light of such evidence, any tension between defendants’ theories of the case could not alone have produced the guilty verdicts.

Finally, defendant characterizes Lee’s testimony as “contrived,” and claims he suffered “prejudicial spillover” in the joint trial. For reasons stated above, the trial court was not required to grant severance on this ground. The prosecution presented abundant evidence establishing that defendant murdered the victims as part of a selfish and vengeful plan that he and Lee devised and perpetrated together. Nothing in Lee’s defense could have so tainted defendant as to have caused the jury to convict him solely on that ground. No constitutional or other error occurred. IV. Guilt Issues A.

Ex Parte In Camera Meetings The trial judge, Honorable Leslie W. Light, presided over the present case for over 10 months. During that period, the court conferred in camera 10 times with Henry J. Hall, counsel for codefendant Lee, outside the presence of both defendant and his counsel, Ralph A. Courtney III. These hearings were transcribed and sealed in the trial court. Thereafter, while the case was pending on automatic appeal, defendant filed a motion in this court to unseal or otherwise gain access to the foregoing transcripts.

On June 25, 2003, we ordered that three of the transcripts be unsealed (one conference on Nov. 19, 1997, and two conferences on Dec. 2, 1997), and that transcripts of three other conferences remain sealed (Aug. 5, 1997, Mar. 30, 1998, and Apr. 1, 1998). The same order also gave appellate counsel access to reporter’s transcripts of four additional conferences (and to one portion of the sealed clerk’s transcript), but declined to unseal such items or allow their use in court papers that were not themselves filed or lodged under seal (conferences on Nov. 10, 1997, Nov. 13, 1997, Jan. 12, 1998, and Mar. 2, 1998).

Defendant’s main complaint on appeal is that his absence and the absence of his counsel from the foregoing conferences resulted in violations of his right to counsel, to presence, to due process, and to a fair and public trial under the Sixth and Fourteenth Amendments of the federal Constitution. We will reject the claim. Proceedings held in chambers and outside the presence of a party are generally disfavored. (Ayala, supra, 24 Cal.4th 243, 262; see id. at pp. 293-294 (dis. opn. of George, C. J.); see also People v.

Prince (2007) 40 Cal.4th 1179, 1279 [57 Cal.Rptr.3d 543, 156 P.3d 1015] (Prince) [openness presumed in public trial guarantee].) However, the trial court retains discretion to conduct in camera, ex parte proceedings to protect an overriding interest that favors confidentiality. (See, e.g., People v. Gurule (2002) 28 Cal.4th 557, 593-594 [123 Cal.Rptr.2d 345, 51 P.3d 224] (Gurule) [privileged attorney-client information]; People v. Lawley (2002) 27 Cal.4th 102, 159 [115 Cal.Rptr.2d 614, 38 P.3d 461] (Lawley) [identity of confidential informant]; Ayala, supra, 24 Cal.4th at p. 261 [trial strategy]; People v.

Webb (1993) 6 Cal.4th 494, 516 [24 Cal.Rptr.2d 779, 862 P.2d 779] (Webb) [privileged psychotherapy records].) In addition, the federal constitutional right to counsel arises at critical stages of the prosecution or when necessary to assure a meaningful defense. (United States v. Wade (1967) 388 U.S. 218, 225 [18 L.Ed.2d 1149, 87 S.Ct. 1926]; People v.

Koontz (2002) 27 Cal.4th 1041, 1069 [119 Cal.Rptr.2d 859, 46 P.3d 335] (Koontz).) Likewise, a federal constitutional right to be present in court exists where necessary to protect the defendant’s opportunity for effective cross-examination, or to allow him to participate at a critical stage and enhance the fairness of the proceeding. (People v. Waidla (2000) 22 Cal.4th 690, 741-742 [94 Cal.Rptr.2d 396, 996 P.2d 46] (Waidla), citing Kentucky v.

Stincer (1987) 482 U.S. 730, 744-745 & fn. 17 [96 L.Ed.2d 631, 107 S.Ct. 2658].) Such protections usually do not cover in camera discussions on matters bearing no reasonable, substantial relation to the defense of the charge. (People v. Rogers (2006) 39 Cal.4th 826, 855 [48 Cal.Rptr.3d 1, 141 P.3d 135]; Waidla, supra, 22 Cal.4th at p. 742.) Defendant makes no serious attempt to show a violation of these principles based on the transcripts that we unsealed or otherwise provided to counsel on appeal.

He asks us to infer from the sheer number of in camera ex parte proceedings that codefendant Lee’s counsel received “unfettered” access to the trial court, and functioned as a “super-prosecutor” in the case. As so framed, the claim is speculative and fails outright. Indeed, the court met at least three times with defendant’s attorney in chambers, outside the presence of Lee’s counsel, suggesting the procedure was not one-sided or unfair.

In any event, we have carefully reviewed all 10 transcripts sealed at trial and used to support the present claim on appeal. (E.g., Gurule, supra, 28 Cal.4th 557, 595; Lawley, supra, 27 Cal.4th 102, 160; Webb, supra, 6 Cal.4th 494, 518.) The matters discussed in those conferences did not bear directly on the evidence at trial, the conduct of the defense, or the outcome of the case. Nor do the transcripts reveal any attempt by Attorney Hall to curry favor with the trial court or to benefit his client Lee at the expense of defendant.

To the contrary, and as an example, defendant instigated the closed proceedings that are the subject of the three transcripts we ordered unsealed on appeal. On those occasions, Hall consulted with the trial court about telephone calls and handwritten notes he had received directly from defendant complaining about his attorney, Courtney, offering to help Lee with her defense, and threatening to commit suicide. The court suggested that Hall should promptly disclose these communications to Courtney and inform defendant that no contact could occur in Courtney’s absence. Hall said he took such action.

It seems unreasonable for defendant to now complain about ex parte in camera meetings held to ensure that his own actions did not place Lee’s counsel in an ethical or tactical bind. No constitutional error occurred. Almost as an afterthought, defendant argues in his reply brief on appeal that the proceedings from which he and his counsel were excluded violated the presence requirements set forth in

section 977. (Id., subd. (b)(1) [accused must be present at specified proceedings in all felony cases, and must be present “at all other proceedings” unless he executes a written waiver form].) Even assuming such statutory error occurred, it was harmless for the reasons we have set forth above. (See People v. Rundle (2008) 43 Cal.4th 76, 134 [74 Cal.Rptr.3d 454, 180 P.3d 224], citing People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) B.

Bankruptcy Consultation As discussed below in conjunction with a challenge to the financial-gain special circumstance, the prosecution sought to prove that defendant killed Sonia, at least in part, to avoid paying her $375 a month in court-ordered child support. Over defendant’s assertion of the attorney-client privilege, the trial court admitted prosecution evidence that he consulted with a bankruptcy attorney before the capital crime. Defendant now argues that the trial court erred in rejecting his privilege claim. He also asserts a violation of his federal constitutional right to due process and a fair trial.

We decline to reverse the judgment on such grounds. As relevant here, the prosecution called Attorney Rene Lopez de Arenosa to testify that defendant consulted him about bankruptcy shortly before the murders. The prosecutor indicated that because the conversation occurred in front of codefendant Lee, an extraneous third party, it was not confidential or protected under the attorney-client privilege. Defendant disagreed and asserted the privilege, urging the court to hold an evidentiary hearing if it had any doubts.

After taking a brief break to research the matter, the court indicated that the issue was close, and agreed to hold a hearing. The court said it tentatively favored the prosecution view, but noted the contrary argument that Lee (though married to someone other than defendant) was living with defendant in an intimate relationship at the time, and was “arguably a putative wife” whose presence at the bankruptcy meeting did not affect confidentiality.

At the ensuing hearing, Attorney Arenosa testified that, in early 1995, he met with defendant and his mother, Doris, to discuss her bankruptcy, and that he once represented defendant in a paternity case. In March or April 1995, defendant made another appointment. He arrived at Arenosa’s office with codefendant Lee, calling her his girlfriend. Arenosa further testified as follows: Lee was present in the room during defendant’s 30-minute meeting with Arenosa. The discussion focused solely on defendant’s financial condition and discharging his debts in bankruptcy. Defendant showed Arenosa his credit card bills.

According to Arenosa, he and defendant spoke in English, except when they discussed specific debts in Spanish. Lee’s financial situation was not discussed. Arenosa did not meet with defendant or Lee again, and prepared no bankruptcy documents. The only other witness at the evidentiary hearing was defendant. He confirmed that the meeting concerned his possible bankruptcy. Defendant testified that one of the bills he mentioned was the Household Finance loan he shared with Lee. Defendant viewed Arenosa as his attorney, wrote him a check for his services that day, and assumed the conversation was confidential.

Defendant recalled that the conversation occurred in English and Spanish, with defendant speaking mainly in Spanish. On cross-examination, defendant admitted that he and Lee had exchanged letters written in a mixture of Spanish and English. He indicated that Lee understood Spanish, and had been studying to learn more. After the hearing, the court entertained additional argument.

Alluding to applicable statutory law, which we discuss below, the prosecutor reiterated that Lee’s presence defeated confidentiality between defendant and Arenosa, because there was no reason for her to be at the meeting other than to offer emotional support. Defendant’s counsel countered that Lee was present to serve both her and defendant’s interests insofar as they were both liable for one of the debts that he might discharge in bankruptcy. The trial court rejected defendant’s claim. It concluded that his bankruptcy planning had nothing to do with Lee, because it concerned only the discharge of his debts.

The court explained that Lee “wasn’t a necessary party” and she “wasn’t there to further [defendant’s] interest.” Hence, the court agreed with the prosecution, that Lee’s presence meant the conversation with Arenosa was not confidential and that it could not be excluded on privilege grounds. However, in an abundance of caution, the court limited the information that Arenosa could disclose to the jury about the meeting, namely, that he met with defendant and Lee on a certain day, and that the discussion with defendant concerned bankruptcy.

Consistent with this ruling, Arenosa testified for the prosecution at trial that defendant and Lee visited his law office in late March or early April 1995, and that he spoke with defendant about bankruptcy. On cross-examination, Lee’s counsel elicited that the meeting focused on defendant’s, not Lee’s, financial state. By statute, a client holds a privilege to prevent the disclosure of his confidential communications with an attorney. (Evid.

Code, §§ 952-954.) A person becomes a client when he consults an attorney to retain him or secure legal services or advice. (Id., § 951.) The transmission of information between lawyer and client in the course of that relationship is “confidential” and protected only if it occurs “by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted.” (Id., § 952, italics added; see People v.

Gionis (1995) 9 Cal.4th 1196, 1207 [40 Cal.Rptr.2d 456, 892 P.2d 1199].) Moreover, the client can later forfeit, or waive, the privilege as to any confidential communication otherwise protected thereunder if he “has disclosed a significant part of the communication or has consented to disclosure made by anyone.” (Evid. Code, § 912, subd. (a); see People v.

Barnett (1998) 17 Cal.4th 1044, 1124 [74 Cal.Rptr.2d 121, 954 P.2d 384].) Defendant argues here, much as he did below, that even if Lee was not “reasonably necessary for the transmission of the information or the accomplishment of the purpose” of defendant’s bankruptcy consultation, she was “present to further [their joint] interest.” (Evid.

Code, § 952.) In making this argument, defendant emphasizes the applicable Law Revision Commission Comment stating that an attorney-client communication retains its confidential character “even though it is made in the presence of another person— such as a spouse, parent, business associate, or joint client—who is present to further the interest of the client in the consultation.” (Cal. Law Revision Com. com., 29B pt. 3 West’s Ann. Evid. Code (1995 ed.) foil. § 952, p. 210.) Defendant suggests this principle applies here because Lee was his intimate partner and they shared liability on the Household Finance loan.

We need not, and do not, decide the issue. Even assuming error occurred, it was harmless under any applicable standard. At most, Arenosa’s testimony established that defendant, by seeking legal advice about declaring bankruptcy, was deeply concerned about his personal financial state shortly before the capital crime. However, the jury learned in great detail from other witnesses that defendant’s debts, including his child support payments, exceeded his assets and income, and that he was having trouble paying his bills.

Defendant told one of his supervisors, Moreno, that he was “fucked for the next seven years, because he was going to have to file bankruptcy.” Jurors also learned that he had asked one manager at work, Shafer, for a referral to . an attorney, alluding to his child support problems. The jury almost certainly would not have reached a different outcome at the guilt phase had the trial court excluded Arenosa’s brief and limited testimony confirming that a bankruptcy consultation with him had occurred. C. Pathologist’s Testimony During the prosecution case, the pathologist, Dr.

Carpenter, testified that 200 of the 4,000 autopsies he had handled involved knife slayings. He explained that only one of the 200 knife cases involved multiple victims,

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