THE PEOPLE, Plaintiff and Respondent, v. SHAUN KAREEM BURNEY, Defendant and Appellant, 47 Cal. 4th 203

Opinion GEORGE, C. J. A jury convicted defendant Shaun Kareem Burney of second degree robbery (Pen. Code, §§ 211, 212.5, 213, subd. (a)(2)), kidnapping (§ 207, subd. (a)), kidnapping for purposes of robbery (§ 209, subd. (b)), and the first degree murder of Joseph Kondrath (§ 187). Allegations of robbery-murder and kidnapping-murder special circumstances (§ 190.2, subd. (a)(17)(A), (B)) were found true, and defendant was found to have personally used a deadly weapon (a firearm) in the commission of the murder (§ 12022.5).

Following the penalty phase of the trial, a jury returned a verdict of death against defendant. The trial court denied the automatic motion to modify the penalty (§ 190.4, subd. (e)) and imposed a sentence of death. Defendant’s appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety. I. PROCEDURAL HISTORY In late July 1992, the Orange County Grand Jury returned an indictment against defendant and two codefendants, charging them each with second degree robbery (count I), kidnapping (count II), kidnapping for purposes of robbery (count III), and first degree murder (count PV).

The indictment alleged against all three defendants the special circumstances of murder in the commission of a robbery and murder in the commission of a kidnapping. As to defendant, the indictment alleged as to all counts the personal use of a firearm, but shortly after the commencement of the guilt phase of the trial, the trial court granted the prosecution’s motion to dismiss the firearm-use allegations against defendant in counts I, II, and III. As to the two codefendants, the indictment alleged they were vicariously armed with a firearm.

The three defendants were tried jointly in a jury trial that began in April 1994. The death penalty was sought only against defendant. The jury found him guilty of the four counts charged against him, found that the murder was of the first degree, found the two special-circumstance allegations true, and found true the allegation that defendant personally used a firearm in the commission of the murder. At the penalty phase of defendant’s trial, the jury determined that defendant’s punishment should be death. n. FACTS A.

Introduction In the early morning hours of June 10, 1992, defendant and his two codefendants, Burnett and Rembert, left their apartment intending to find and assault Ron Hussar, and to steal Hussar’s car stereo. When Hussar could not be found, the three men decided to steal an automobile and then drive to an area where members of a rival gang resided, so they could shoot at them. The three men observed the victim, Joseph Kondrath, entering his automobile in a carport adjacent to Kondrath’s apartment building.

At gunpoint, they forced Kondrath out of the vehicle, robbed him of his wallet, and forced him into the trunk of his automobile. The three men drove to the residence of Jeffrey Howard, from whom they borrowed a shotgun. They drove to an area where rival gang members resided, but did not observe any gang members. The group then drove to, and fired gunshots into, an apartment belonging to Cynthia Melson, Burnett’s former girlfriend, and thereafter returned the shotgun to Howard. The three men discussed the need to kill Kondrath because he had seen their faces and could identify them.

They drove to Crescent Avenue in Anaheim and stopped the automobile. Defendant opened the trunk of the vehicle and fired one shot, which fatally struck Kondrath in the head. The men then fled the scene. The next day, defendant informed Jeannette Roper, Rembert’s girlfriend, that he had shot the victim. During a videotaped police interrogation several days later, defendant confessed that he had kidnapped and murdered Kondrath.

Both Rembert and Burnett gave statements to the police, confirming that the three men discussed killing the victim because he had seen their faces, and that defendant shot Kondrath while the victim lay in the trunk. B. Guilt Phase Evidence 1. The prosecution Defendant was arrested on June 16, 1992, subsequently waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602], and consenting to an audiotaped and videotaped interview with Detective Georgia Erickson and Detective Paul Gallagher. A transcript of the interview was read to the jury.

The interview was redacted to eliminate references to the codefendants by name, replacing each occurrence of the codefendants’ names with the word “other” or “others.” During the course of the interview with Detectives Erickson and Gallagher, defendant offered numerous and sometimes contradictory versions of the events that took place on the night of Kondrath’s murder.

Defendant initially stated he had no information regarding a murder beyond knowing that a body had been found near the residence of his friend, David Wilson, but defendant did not dispute the statement of one of the detectives that defendant had been “going around town telling people that [he] did it.” Defendant stated that on the night of Kondrath’s murder, he and his two companions departed from an apartment where he had resided “on and off.” The three men were angry at an acquaintance named Ron Hussar because Hussar had refused to take David Wilson to the hospital when Wilson accidentally shot himself in the foot.

In retaliation, they planned to steal Hussar’s car stereo and to assault Hussar. All three men donned latex gloves upon leaving the apartment in order to avoid leaving fingerprints when stealing Hussar’s stereo. When they arrived at Hussar’s residence, neither Hussar nor his automobile was present. The three men were exploring Hussar’s neighborhood, still wearing the latex gloves, when they encountered Kondrath.

In his statement to the police, defendant stated that his companions suggested that he take the victim’s automobile and, although defendant initially was hesitant, he joined his two companions in “rushing” the victim. According to this version of the events, defendant took the victim’s keys, but after he and the others entered the vehicle, defendant asked to be dropped off at the apartment where he had been residing. When the two men returned to that apartment some time later, they informed defendant they had parked the vehicle at an undisclosed location.

After further police questioning, defendant admitted he had not been dropped off but had stayed with his two companions. Defendant stated that his companions placed the victim in the trunk without defendant’s knowledge or participation, although ultimately he admitted actively participating in forcing the victim from his vehicle and into the trunk at gunpoint. Initially, defendant denied that the trio had used a firearm to take the automobile from the victim. Defendant subsequently admitted that before the three men approached the victim, defendant handed the firearm to one of his companions.

Defendant explained that the robbery had commenced when, after observing the victim enter his vehicle, defendant approached the driver’s side window and asked the victim the time. Prior to approaching the victim, defendant and the others discussed “jacking” the victim — which he explained to officers meant robbing him. When the victim rolled down the window of his automobile to respond to defendant’s query about the time, defendant’s companions forced the victim from his vehicle at gunpoint. The victim requested that defendant take the automobile but not hurt him.

One of defendant’s companions asked Kondrath for his wallet, which the victim handed to him, after which defendant and his companions placed Kondrath in the trunk. According to defendant’s statement, defendant drove away with the victim in the trunk. Sometime later, one of his companions stated to the group that, because the victim had observed them, it was necessary to kill him. One of defendant’s companions said something about a credit card and then threw an object out of the window. Defendant gave conflicting accounts concerning why the trio next went to the residence of Jeffrey Howard.

Initially, he informed the detectives that the three men drove there because Howard had paged defendant. Later, defendant stated that he drove to Howard’s residence because one of his companions directed him to do so. Defendant stated that while he remained in the vehicle, one of his companions went upstairs to Howard’s apartment and returned with a shotgun. Defendant and the others then drove to the neighborhood where they believed Watergate Crips gang members resided.

As they were driving, one of defendant’s companions asked the victim whether he could hear them, and after the victim answered that he could, the victim was told to “shut up.” Defendant then made a U-turn; the two other men exited from the automobile, and one of them fired the shotgun several times into the air. Defendant and his cohorts returned to Howard’s residence to return the shotgun. At that location, defendant removed the latex gloves he had been wearing, because they were tom. To avoid leaving fingerprints, he placed socks on his hands. His two companions kept their latex gloves on.

During the police interview, defendant initially denied having shot the victim and claimed he had informed others he had shot the victim “[j]ust to seem like a bad ass.” Eventually, however, defendant admitted that he himself had shot and killed the victim, allegedly at the instigation of his companions. Defendant’s companions informed defendant repeatedly that the victim had to be killed because he had seen the men and would be able to identify them, and one of them threatened to “blast” the victim. Defendant stated that at first, he merely opened and then shut the trank.

When defendant opened the trank again, the victim said, “don’t hurt me.” One of defendant’s companions handed defendant a firearm and again directed him to kill the victim. Defendant did not hand the firearm back to his companion, who was drank, because defendant feared being accidentally hit by gunfire if his companion were to attempt to shoot the victim. Instead, because he did not want to look at the victim’s face, he shot him without taking aim.

Defendant expressed remorse for having taken the victim’s life, and stated that at the time he fired into the trank, he did not intend to kill Kondrath and did not believe he had hit him with the shot. After shooting Kondrath, defendant handed the gun back to one of his companions and ran away, meeting them and another man, Dwight Chandler, at the apartment where defendant had been staying. According to defendant’s statement, on the night of the murder defendant did not ingest drags and consumed only one 12-ounce can of beer.

The next day, when defendant inquired concerning the whereabouts of the murder weapon, he was told it was gone. Later, defendant informed his girlfriend Summer and his friend Dwight Chandler about his participation in Kondrath’s murder. Huntington Park Police Officer Joseph Settles testified that on June 10, 1992, he was employed as a civilian traffic enforcer for the Anaheim Police Department. At approximately 8:00 p.m. that day, he observed a white Volkswagen Jetta illegally parked in front of no-parking signs on Crescent Avenue.

Settles issued a citation, and then opened an unlocked door to look inside the vehicle. Although he observed nothing unusual inside the automobile, outside he noticed a dark puddle caused by something dripping from the trank beneath the right rear tire. After Settles called for additional police assistance, officers arrived and pried open the trank, where they found the body of a White male, later identified as Joseph Kondrath. David Schindler, who resided on Crescent Avenue, testified that at approximately 5:00 a.m. on June 10, 1992, he was in his garage when he heard a loud noise.

Schindler was uncertain whether what he heard was a gunshot, or had come from an automobile or a firecracker. The area was poorly illuminated. Schindler looked outside and saw two Black or Hispanic individuals, whom he could not identify, in the vicinity of a white automobile approximately 50 to 100 yards from his garage. This vehicle was parked in a no-parking zone in an industrial area containing empty and abandoned buildings. As Schindler watched, the two individuals fled by jumping a fence and running to a drainage ditch or culvert. Later, Schindler approached the vehicle but observed nothing unusual.

He did not call the police. William Townsend testified that at approximately 6:00 a.m. on June 10, 1992, he discovered a wallet lying in the street on Manchester Avenue in Anaheim approximately one mile from Crescent Avenue. The wallet contained Joseph Kondrath’s personal papers, family photographs, and $1. Townsend turned the wallet over to the police later that day. Dr. Masamichi Katsuyama conducted an autopsy on Kondrath’s body. He testified there was a gunshot entrance wound on the left side of the back of Kondrath’s head.

There was discoloration to the back of the right hand, indicating that the weapon had been fired relatively close to the skin. A badly deformed bullet, having characteristics consistent with a .357-caliber bullet, was recovered near the midline of Kondrath’s head. There were no other traumas or injuries to the victim’s body. The cause of death was loss of blood from the gunshot wound to the head. Anaheim Police Detective James Conley examined Kondrath’s Jetta after his body was found. Latent fingerprints lifted from the automobile were identified as Kondrath’s.

A spent shotgun shell and shotgun casing were found on the right rear floorboard. A tom piece of latex was found between the right front passenger seat and the car door. Kondrath’s Visa credit card was found in the same location. Mud debris was found on the floorboard between the front seats, and on a T-shirt, brace, and towel located on the right rear seat. Detective Georgia Erickson testified that she interviewed Jeffrey Howard approximately one week after Kondrath was murdered.

Howard informed Detective Erickson that codefendant Burnett arrived at Howard’s residence early in the morning June 10, 1992, and asked to borrow a shotgun and shotgun shells. Burnett told Howard that he had a person confined in the trunk of his automobile. Howard informed Detective Erickson that Burnett returned the shotgun later that morning, and that he saw defendant behind the wheel of the automobile when Howard accompanied Burnett to the first floor of his residence. Burnett told Howard he wanted the shotgun in order to shoot at a rival gang.

Jeffrey Howard testified that on June 10, 1992, he resided at 326 South Claudina Street in Anaheim. Between midnight and 2:00 a.m. that morning, codefendants Rembert and Burnett came to his residence and awakened him. Rembert was armed with a Derringer pistol that Howard previously had seen in Rembert’s possession. Burnett asked Howard for a 12-gauge shotgun, which Howard gave him. During his testimony, Howard could not recall whether Burnett had explained why he wanted the shotgun.

Howard testified that in addition to the shotgun, Howard gave Burnett red shotgun shells, loaded the shotgun with three shells, and gave Rembert a “handful” of bullets for the Derringer pistol. According to Howard, approximately one hour later Burnett returned the shotgun. Howard placed that weapon under his bed and went back to sleep, testifying he did not check the shotgun to determine whether it had been fired.

Howard did not recall whether he informed Detective Erickson that Rembert and Burnett had said that someone was confined in the trunk of the automobile, that he had gone downstairs with Burnett, that he had stated to the detective that defendant was driving, or that Burnett had told him he intended to shoot at rival gang members. Howard denied ever carrying the Derringer pistol. He acknowledged that in his interview with the police, he had not mentioned that Rembert accompanied Burnett when Burnett arrived to borrow the shotgun.

Howard testified that he did not observe defendant when the codefendants arrived at his apartment for the first time, and that the street below his apartment was not visible from the second story. Howard further testified that on June 11, 1992, he returned the shotgun to Ryan Leuta, who owned the gun and occasionally lent it to others. Howard denied ever having possession of the Derringer pistol. He gave the remainder of the shotgun shells and bullets in his possession to Detective Erickson.

Detective Conley testified that a shotgun and a .357-caliber Derringer pistol were recovered from the residence of Ryan Leuta on June 16, 1992. Criminalist Dennis Fuller testified that in his opinion, the shell casing found on the rear floorboard of the victim’s automobile had been fired from the shotgun recovered from Leuta’s residence. Jeffrey Howard’s mother-in-law, Deborah Cook, testified that she resided with her daughter, Lakesha Howard, and Jeffrey Howard at the Howards’ apartment. On June 10, 1992, at approximately 4:00 a.m., she was awakened by a knock on the front door.

She answered the door and a male, who may have been codefendant Burnett, asked for Jeffrey. About an hour later, the same person returned and asked for Jeff. Cook denied having informed Detective Erickson that three persons approached the door on both occasions on June 10. Cook was not acquainted with defendant. Cynthia Melson testified that on June 10, 1992, she resided in an apartment located on Pine Street in Westminster. Melson’s roommate, Marcia, and Melson’s mother, Marjorie, also were present in the apartment on the morning of June 10.

Melson was codefendant Burnett’s ex-girlfriend, and Burnett and Rembert previously had resided at the Pine Street apartment with Melson. Melson had been acquainted with Burnett for approximately three years, but had ended their relationship approximately six months previously because they did not get along. Melson testified that at approximately 4:42 a.m., five or six shots were fired at her apartment.

After the shots were fired, Melson heard her former boyfriend Burnett yell “fuck you.” The shots damaged Melson’s front door, the upstairs bedroom window, the downstairs kitchen window, and a wall in Marcia’s bedroom. A bullet missed Marcia’s head by six inches. Melson later discovered red shotgun cartridges on a patio by the front door of her residence. Melson was not acquainted with defendant and had not seen him prior to the trial. Westminster Police Officer Cotrell testified that he recovered expended shotgun shell casings and wadding from inside the Melson residence after the shooting.

Shotgun shell casings discovered at that location were from the same type of cartridge as the casings recovered from Kondrath’s automobile. Criminalist Fuller opined that the shotgun shell casings found at the Melson residence and in the victim’s automobile had been fired from the same shotgun. As Fuller explained, shotgun wadding protects pellets inside the shotgun and is expelled from the barrel of a shotgun. Fulton testified that wadding recovered from Melson’s residence was made by the same manufacturer that produced the shotgun shells admitted in evidence.

A copper slug and jacket found at the Melson apartment were consistent with a jacketed hollow-point bullet and had been fired from the Derringer pistol. The projectile recovered from the victim’s head was a jacketed hollow-point .357- or .38-caliber bullet with markings consistent with having been fired from the top barrel of the Derringer. Based on test firing of the Derringer, Fuller concluded that the weapon was fired at close range. Rembert’s ex-girlfriend Jeannette Roper testified that on the morning of June 10, 1992, she was awakened by a phone call from Rembert.

Rembert instructed her that if anyone were to inquire concerning his whereabouts the preceding night, she was to say he had spent that night with her. Later that day, Roper went to Rembert and Burnett’s apartment, where she saw defendant. She testified that defendant informed her he had walked up to an automobile and asked the male driver for the time, but then pointed a firearm at him and ordered him to get out of the vehicle. Defendant told her he shot the driver, and that it was his seventh murder. Detective Erickson testified that she spoke to Roper on June 15.

Roper informed her that defendant stated he had shot a man in the head and then placed him in the trunk of the man’s automobile. Erickson testified that Roper stated defendant and his codefendants initially had planned to, but ultimately did not, steal the victim’s car stereo. 2. The defense Defendant did not testify or present any other evidence in his defense. During opening and closing arguments, defense counsel contended that defendant was not guilty of murder under a felony-murder theory, because the robbery and kidnapping of Kondrath ended before the homicide took place.

Counsel also asserted that defendant was guilty of only second degree murder, because Kondrath’s murder was not deliberate and premeditated. Codefendant Burnett did not testify, but presented evidence indicating that he was a chronic alcoholic and was intoxicated on the night of the murder. Codefendant Rembert also did not testify. He presented the testimony of a psychologist who had conducted testing on Rembert.

The psychologist concluded Rembert had a submissive personality and was “likely to go along with the crowd.” She testified he was dependent on alcohol, abused drugs, suffered from depression, and had been diagnosed with adult antisocial behavior.

She opined that Rembert “may not really have comprehended what was going on in a timely manner to make the kind of decision that he could have made.” The psychologist acknowledged that Rembert previously had been arrested for assaulting a girlfriend and had pleaded guilty to assault in another case, but she nonetheless stated she did not believe Rembert had assaultive or aggressive tendencies. C. Penalty Phase Evidence 1.

The prosecution The prosecution presented evidence regarding uncharged acts of violence, including multiple occasions on which defendant assaulted his former girlfriend and one occasion on which he assaulted his stepfather. Sylvia Carmona, who dated defendant for several years starting when she was 15 years of age and defendant was 16 years of age, testified that on one occasion, defendant locked her inside his residence and then hit her with his hand, causing a black eye for which she sought treatment at a hospital.

Carmona admitted that she had thrown an iron at defendant prior to this assault, and that she “put [defendant] down all the time.” Carmona testified that on another occasion, defendant choked her, and that on a third occasion, defendant pulled her hair, causing her to fall to the ground. Lee Thomas, defendant’s stepfather, testified regarding defendant’s violent conduct toward him. In May 1992, Thomas was residing in an apartment with defendant and his mother Ernestine Burney Thomas. Defendant was upset concerning a comment made by Thomas and confronted him outside the apartment.

After a verbal exchange, defendant struck Thomas on the side of his face. After a further heated verbal exchange between defendant, Thomas, and Ernestine, defendant lunged at Thomas with a knife. Thomas testified that defendant hit Thomas either with the back of his hand holding the knife, or with the blunt part of the knife, but did not cut Thomas. At this point, Thomas picked up a large rock and warned defendant to depart. When Thomas went upstairs, defendant slashed the tires and the seat of Thomas’s automobile with the knife.

When the police arrived, defendant informed them the argument began because Thomas had made a comment about women with large buttocks and breasts, and stated he made a stabbing motion at Thomas and would have killed him had Ernestine not stepped in between them. He also informed the police that Thomas had hit him on a prior occasion, knocking him down. The police arrested defendant for assault, but the charges were dismissed.

Kondrath’s parents, his fiancée, and one of his sisters testified concerning the impact of the murder upon them, the good and peaceful nature of the victim, and how much the victim’s friends and family missed him. 2. The defense Forensic psychologist Dr. Stephen Wells interviewed defendant and testified on his behalf. Dr. Wells opined that defendant, 18 years of age at the time of the murder, was a child in terms of intellectual development and social maturity. Wells believed defendant did not intend to kill the victim until he was influenced to do so by codefendant Rembert.

Defendant was experiencing the symptoms of a manic-depressive mental disorder at the time of the murder. Defendant was a “follower” rather than a “leader.” According to Wells, defendant expressed remorse for the murder and would not pose a danger to others in prison. Wells determined that a series of traumatic events in defendant’s life profoundly had affected his emotional functioning. When defendant was eight years of age, his mother took him to the out-of-town funeral of her father.

When they returned, defendant’s father, David Burney, had changed the locks on the door of the family residence, where he was residing with another woman. Defendant and his mother stayed in motels and with friends for the next six months. At the time, defendant spoke of committing suicide and was taken to a psychologist. Defendant eventually reestablished contact with his father and, when he was 14 years of age, visited him in North Carolina at Christmas.

Defendant remained in that state, residing with his father for a while but, after a disagreement, was ejected from his father’s home and resided with his aunt for the remainder of the school year. Wells further testified that when defendant was 18 years of age, his mother Ernestine married Lee Thomas. Defendant did not get along with Thomas, who physically abused Ernestine on many occasions, and defendant felt powerless to prevent this abuse. Wells also described the circumstances of defendant’s assault on Thomas.

At the time of trial, Ernestine no longer was residing with Thomas, but instead with defendant’s father, David Burney. According to Wells, David Burney, who had had no contact with defendant since ejecting him from his home in 1988, refused to testify on defendant’s behalf in the present proceedings. David Burney’s sister, Brenda Burney, testified that David was dishonest and unreliable, and had not been a good father to defendant.

Rogelio Onofre testified that after being released from jail following the assault on Thomas, defendant resided with Onofre, a friend of his since grade school, and Onofre’s mother, Maria Gomez. Defendant wanted to reside with his mother, but could not do so because his release from police custody was conditioned on defendant having no further contact with her husband, Thomas. Defendant was deeply upset when, six days before the murder, Onofre’s young niece accidentally drowned in a Jacuzzi.

Onofre testified that his mother asked defendant to leave her residence because she believed he was associating with the wrong persons. Forensic psychologist William Vicary examined defendant and concluded he was depressed and suicidal prior to the murder. Defendant frequently consumed alcohol and smoked marijuana. Defendant informed Vicary that he drank 40 ounces of malt liquor before committing the murder. Vicary acknowledged that defendant earlier had told a defense investigator that he had had nothing to drink before the murder. Vicary concluded that defendant was traumatized by the absence of his father.

Defendant’s mother physically abused him when he was a child, and defendant was traumatized by twice having been required to leave his father’s home and then, just before the murder, being ejected from his mother’s home. After defendant was required to leave Onofre’s residence, he stayed with the codefendants and another person, who were gang members and who exerted a negative influence on defendant. Vicary testified that defendant experienced remorse for killing the victim and would not constitute a danger while incarcerated.

Vicary acknowledged, however, that he had determined defendant had an antisocial personality, and that on one occasion after defendant’s arrest, he had violently attacked a Hispanic inmate who had called him a “nigger.” Ernestine Burney Thomas testified that she had a good relationship with defendant and that he loved children and enjoyed helping others. Rogelio Onofre testified that defendant was a loving person and a good friend, and that although he had seen defendant arguing with his ex-girlfriend, Sylvia Carmona, he could not imagine defendant pulling the trigger or shooting the victim.

Maria Gomez testified that she had known defendant since he was nine years of age, and that he was like a son to her. Gomez stated that defendant was helpful with household chores, and that she could not believe that defendant could have been involved with a murder.

Carol Warren, whose daughter, Leslie Coulter, was defendant’s best friend since childhood, testified that defendant was well behaved, a sweet person, and a “joy to be around.” Leslie Coulter testified that defendant was a very sweet person who always helped others, was good with children, and had known the codefendants only for a few months prior to the night of the murder. Coulter also stated that defendant was a good friend and a leader rather than a follower, and that she never had observed him acting violently or being involved in a fight. HI. DISCUSSION A.

Asserted Errors Affecting the Guilt Phase of Trial 1. Denial of defendant’s motion to quash the grand jury indictment (

a) Facts At trial, defendant unsuccessfully moved to quash the indictment on the ground that the Orange County Grand Jury selection process was unconstitutional because of the absence of Asian-American prospective jurors in the venire. On appeal, defendant contends that the trial court’s denial of his motion to quash was erroneous and violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and parallel provisions of the California Constitution, requiring reversal of the guilt and penalty judgments. Defendant’s claim is without merit.

In connection with his motion to quash, defendant filed a motion for joinder in a case already pending in Orange County Superior Court, People v. Chan (1994, No. 93ZF0012) (Chan). The defendant in Chan, joined by defendant and numerous other defendants whose trials were then pending in Orange County, alleged unconstitutional discrimination against Asian-Americans in Orange County’s grand jury selection process. A lengthy hearing was held in the Chan proceedings. John Weeks, who held a Ph.D. in demography, testified on behalf of the defendants.

Weeks explained that, from a pool of 157 applicants for the 1992-1993 Orange County Grand Jury that indicted the defendants, 30 persons ultimately were selected as grand jurors. Of the 157 applicants for the grand jury, nine were nominated by judges, and the others were self-nominated. None of the nine persons nominated by judges was Asian-American. In the previous 10 years, only one Asian-American had been nominated by a judge. Regarding the grand jury that returned the indictment against defendant, four of the persons nominated by judges actually became grand jurors.

In past years, persons nominated by judges were statistically more likely to become grand jurors. Weeks acknowledged that, because judges subsequently selected all of the members of the grand jury, every person ultimately chosen for grand jury service had been, in effect, nominated by a judge. For purposes of the defense motion to quash the indictment, Weeks considered the composition of the grand jury pool, as opposed to the grand jury itself, to be the relevant inquiry. In the 1992-1993 grand jury pool, there were nine minority group members, including two Asian-Americans.

The two Asian-Americans later withdrew their applications, and accordingly no Asian-Americans were seated on the grand jury. One African-American and four Hispanic jurors were seated on the grand jury. The percentage of Asian-Americans in the grand jury pool was only 1.3 percent. Among persons over 18 years of age in Orange County, the percentage of Asian-Americans was 11.7 percent. In his initial testimony, Weeks did not exclude from his calculations Asian-Americans who were not fluent in the English language and therefore were not qualified to serve as grand jurors.

Under this initial analysis, the “absolute disparity” for Asian-Americans in the jury pool was 10.4 percent (11.7 percent minus 1.3 percent) and the “relative disparity” was 89 percent (10.4 over 11.7 multiplied by 100). Weeks concluded there was no statistical possibility that such a relative disparity could occur by chance. Weeks testified again after adjusting his calculations to exclude non-English-speaking Asian-Americans, and stated that the absolute disparity for Asian-Americans in the grand jury pool was 6.4 percent or less, depending on the level of proficiency of English that was being considered.

Among 2,335 persons contacted in a random Orange County sampling who indicated they qualified for federal jury service on the basis of their American citizenship and proficiency in English, the percentage of Asian-Americans was 8.5 percent. Persons who sit as grand jurors, however, are usually older than the general population and retired. Weeks estimated that, within Orange County, there were 5,601 Asian-Americans of retirement age (i.e., 60 years of age or older) but under 75 years of age who would qualify for grand jury service.

Some of those persons, Weeks testified, might not speak English perfectly, and a large proportion of them would have been bom outside the United States. Weeks speculated that a lack of familiarity with the grand jury system would make Asian-American potential grand jurors reluctant to participate in it. Weeks did not know whether Asian-Americans tended to be involved in family businesses more than persons in the general population and, therefore, to retire at a later age.

Taking these calculations and variables into account, Weeks concluded there was “some” systematic exclusion of Asian-Americans and other minorities in the application process for the grand jury pool. A declaration signed by Orange County Jury Commissioner Alan Slater, with attached exhibits, was admitted into evidence for purposes of the hearing on the motion to quash the grand jury indictments.

In the declaration and in testimony given at the hearing, Slater explained that a committee of 15 superior court judges selected a grand jury panel of 30 persons from which 19 would be randomly selected to serve as grand jurors. The remaining 11 persons on the panel would serve as alternates. Throughout the year, the superior court clerk’s office distributed grand jury information to an ever-increasing number of “organizations of all varieties,” encouraging as many persons as possible to apply to serve as grand jurors.

Slater further testified that the clerk’s office attempted to be inclusive of all possible ethnic groups, attempted to enlist the mass media in an effort to inform persons in the community about jury service, and sent persons to speak about grand jury service to “anyone who is willing to listen.” Grand jurors are required to work full time for a year and at times on evenings and weekends, and are compensated by daily fees of $25, up to a maximum of $100 per week.

In the previous 10 years, there had been 22 applications by Asian-Americans for grand jury service and six occasions on which Asian-Americans had been chosen as grand jurors. William Gyak, the Orange County demographer, testified that, of the persons in the county between the ages of 60 and 74 years of age who were very proficient in the English language, only 2.1 percent, or 3,011, were Asian-Americans and Pacific Islanders. Of the 240,000 Asian-Americans and Pacific Islanders in the county, 91,000 resided in areas having average incomes above the county median.

For the prior 10-year period, Asian-Americans who applied for grand jury duty had a statistically greater chance of becoming grand jurors than did White applicants. Gyak explained that comparative disparities in statistics tend to be magnified when the group under consideration forms a very small proportion of the population in question. Finally, John Mei Liu, a professor of comparative culture, testified that Asians constituted a distinct group. (

b) Discussion We set forth the relevant legal inquiry in People v. Horton (1995) 11 Cal.4th 1068, 1087-1088 [47 Cal.Rptr.2d 516, 906 P.2d 478], Although that decision concerned petit juries, the same standard applies in evaluating the composition of grand juries. (Vasquez v. Hillery (1986) 474 U.S. 254, 261-262 [88 L.Ed.2d 598, 106 S.Ct. 617].) “Under the federal and state Constitutions, an accused is entitled to a jury drawn from a representative cross-section of the community. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16; Duren v.

Missouri (1979) 439 U.S. 357, 358-367 [58 L.Ed.2d 579, 99 S.Ct. 664]; People v. Howard (1992) 1 Cal.4th 1132, 1159 [5 Cal.Rptr.2d 268, 824 P.2d 1315].) That guarantee mandates that the pools from which juries are drawn must not systematically exclude distinctive groups in the community. (People v.

Mattson (1990) 50 Cal.3d 826, 842 [268 Cal.Rptr. 802, 789 P.2d 983].) ‘In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.’ (Duren v.

Missouri, supra, 439 U.S. at p. 364 . . . ; [citation].) The relevant ‘community’ for cross-section purposes is the judicial district in which the case is tried. (People v. Mattson, supra, 50 Cal.3d at p. 844; Williams v.

Superior Court (1989) 49 Cal.3d 736, 744-745 [263 Cal.Rptr. 503, 781 P.2d 537].) If a defendant establishes a prima facie case of systematic underrepresentation, the burden shifts to the prosecution to provide either a more precise statistical showing that no constitutionally significant disparity exists or a compelling justification for the procedure that has resulted in the disparity in the jury venire. (People v.

Sanders (1990) 51 Cal.3d 471, 491 [273 Cal.Rptr. 537, 797 P.2d 561].) “As to the third element of the Duren test, a defendant does not meet the burden of demonstrating that the underrepresentation was due to systematic exclusion, by establishing only statistical evidence of a disparity. A defendant must show, in addition, that the disparity is the result of an improper feature of the jury selection process. (People v. Howard, supra, 1 Cal.4th at p. 1160; People v.

Bell (1989) 49 Cal.3d 502, 530 [262 Cal.Rptr. 1, 778 P.2d 129].) When a county’s jury selection criteria are neutral with respect to race, ethnicity, sex, and religion, the defendant must identify some aspect of the manner in which those criteria are applied (the probable cause of the disparity) that is constitutionally impermissible. (People v. Sanders, supra, 51 Cal.3d at p. 492; People v. Bell, supra, 49 Cal.3d at p. 524.)” (People v.

Horton, supra, 11 Cal.4th at pp. 1087-1088, italics omitted.) In the present case, the trial court hearing the motion to quash the grand jury indictments issued an order denying the motion, concluding that it “border[ed] on being frivolous.” Acknowledging a conflict in the law regarding whether “Asians” constituted a cognizable group for purposes of constitutional analysis, the court nonetheless concluded that they did not constitute a cognizable group, because they did not share a common language or common historical factors.

Rather, according to the court, the term “Asians” includes groups such as Chinese and Filipinos, separate ethnic groups that do constitute cognizable groups. Additionally, relying on People v. Bell, supra, 49 Cal.3d 502, 527, footnote 14, in which we criticized the use of tests more complex than the absolute disparity test when the group allegedly excluded is very small, the court concluded that because the absolute disparity in the present case was estimated at 3.8 percent by Gyak, and 6.4 percent by Weeks, the disparity was constitutionally insignificant. (See People v.

Bell, supra, 49 Cal.3d at p. 528, fit. 15 [noting that absolute disparity levels of less than 11.49 percent have been found to be constitutionally insignificant].) The trial court also stated it was making its decision without reaching the third prong of the test articulated in Duren v. Missouri, supra, 439 U.S. 357, 364. Whether “Asians” can or do constitute a cognizable group is an unsettled issue. We previously have observed, however, that “it is at least questionable whether the generic description Asian . . . can constitute a ‘cognizable group.’ ” (People v.

Johnson, supra, 47 Cal.3d at p. 1217, fn. 3, citing U.S. v. Sgro (1st Cir. 1987) 816 F.2d 30.) We need not decide that question, however, because defendant has not met his burden of satisfying the third prong of the test articulated in Duren v. Missouri, supra, 439 U.S. 357 — that there was “systematic exclusion” of Asians from the grand jury selection process. (People v.

Bell, supra, 49 Cal.3d at pp. 527-528 [declining to resolve the question of whether a cognizable group was underrepresented, because defendant failed to show any disparity was caused by “systematic exclusion”].) As detailed above, Jury Commissioner Slater’s declaration and testimony detailed the exhaustive efforts undertaken by the Orange County Superior Court Clerk’s Office to invite Asian-Americans to apply for grand jury service.

The defendants bringing the motion to quash offered no evidence to rebut the showing of substantial efforts undertaken by the county to include Asian-Americans in the venire, and offered no proof of any improper feature of the jury selection process. The defendants therefore failed to establish a prima facie case that the statistical discrepancies identified were caused by any systematic exclusion of Asian-Americans.

Defendant’s briefing in this court focuses upon the status of Asians as a cognizable group and upon the statistical comparisons that should be applied to claims of discrimination against prospective grand jurors, but points to no evidence in the record that would establish systematic exclusion. Accordingly, there is no merit in defendant’s claim that Asian-Americans unconstitutionally were excluded from the grand jury that indicted him, and the trial court properly denied the motion to quash his indictment on that basis. 2.

Denial of defendant’s severance motion Defendant puts forth intertwined claims that the trial court erred in denying his pretrial and midtrial motions for severance, and in admitting into evidence at file guilt phase the redacted statements of codefendants Rembert and Burnett, admission of which assertedly implicated him in the charged crimes and deprived him of his right to confront and cross-examine witnesses under the Sixth Amendment to the United States Constitution in violation of People v. Aranda (1965) 63 Cal.2d 518 [47 Cal.Rptr. 353, 407 P.2d 265] (Aranda) and Bruton v.

United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620] (Bruton). Defendant contends the trial court’s denial of his motions for severance violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and parallel provisions of the California Constitution, requiring reversal of the guilt and penalty judgments. For the reasons outlined below, we conclude that the trial court did not err. (

a) Facts Defendant gave a long, detailed statement to the police implicating himself and his codefendants in the crimes committed against victim Joseph Kondrath. Codefendants Rembert and Burnett also made statements to law enforcement officers implicating defendant and themselves in the crimes, and naming defendant as Kondrath’s killer. Before trial, defendant moved to sever his trial from that of his codefendants.

Defendant contended that a joint trial would be unfair because, among other reasons, the prosecution intended to introduce into evidence the statements made by codefendants Rembert and Burnett to the police, in violation of Aranda, supra, 63 Cal.2d 518, and Bruton, supra, 391 U.S. 123. Defendant asserted that a joint trial would prejudice him, because Rembert’s and Burnett’s statements implicated him in the charged offenses, and because the codefendants’ defenses were in conflict with his own.

The prosecutor opposed the motion, arguing the statements could be redacted to remove references identifying each of the other codefendants, thereby protecting all three defendants’ constitutional right of confrontation. The prosecutor submitted to the trial court proposed redactions in the statements. The court denied the severance motion, concluding that the proposed redactions sufficiently protected the rights of each defendant. The redacted statements of defendant and both codefendants were read to the jury during trial.

The jury was instructed to consider these statements against the speaker only and not against any other defendant. After admission of the statements, defendant renewed his motion for severance, and the court again denied the motion.

As noted, defendant’s statement and his codefendants’ statements were received in evidence in a redacted form that eliminated direct references to defendant, Burnett, or Rembert by deleting the names of each declarant’s codefendants, and substituting terms such as “the others” or “the other.” The codefendants’ statements largely tracked defendant’s own statement, but as pertinent here, both Burnett and Rembert stated that they advised “the others” not to kill the victim, contradicting defendant’s contention in his own statement that “the others” repeatedly urged defendant to shoot Kondrath.

Specifically, codefendant Burnett’s statement confirmed that the three codefendants departed from their shared apartment the night of the murder, intending to steal Ron Hussar’s stereo. According to Burnett’s statement, although Burnett was drunk and did not want to go, he went anyway. Burnett also informed the police that all three defendants wore latex gloves and encountered the victim sitting in his automobile as they left Hussar’s carport. The three men spoke about robbing the victim and using his automobile to “blast” the Watergate gang, who were involved in an ongoing dispute with Burnett.

Burnett stated that one of the codefendants asked the victim for the time, and that when Kondrath rolled down the car window, this codefendant placed a gun through the window and ordered the victim out of his automobile. Burnett said he and the others “snatched” the victim out of his automobile and ordered him into the trunk. According to Burnett’s statement, with the victim still in the trunk Burnett proceeded to Jeffrey Howard’s residence and borrowed a shotgun with which to “blast” the Watergate gang members.

Upon arriving in Santa Ana, the Watergate gang’s territory, Burnett and “the others” did not observe any Watergate members. Burnett nonetheless fired the shotgun into the air just to let the Watergate gang members know they were there. Burnett then returned the shotgun to Howard. Burnett and “the others” obtained additional bullets for the handgun from Howard. Burnett related in his statement that he “passed out” or fell asleep in the backseat of the automobile. When he awoke, the vehicle was stopped.

Burnett wanted to leave, but one of the “others” told him to shoot the victim because the latter had observed them. According to Burnett, he refused and told his companion not to do it. Burnett informed “the others” that the victim could just be left somewhere and they could walk home. The third companion also said not to shoot the victim. The person with the gun, however, said, “fuck it, I’ll do it.” One of Burnett’s companions wiped down the automobile with a sock. The person with the gun opened the trunk, shot the victim one time, and closed the trunk. Burnett stated that he and “the others” then ran away.

In his statement to the police, codefendant Rembert initially denied all culpability and informed the detectives that he merely had heard about the murder. Ultimately Rembert admitted being present during the commission of the charged crimes and was asked: “What pushed the others over the edge?” Rembert replied, “one was drunk and the other one just wanted to go ahead and do it.” Throughout the interview, Rembert insisted that he did not have any role in the murder, and that he told the others not to kill the victim.

When asked about the reason for the killing, Rembert replied his companions were not thinking and must have been drunk. Rembert claimed he was across the street when the victim was killed. Rembert also stated that when the three men left the apartment, they spoke of stealing a stereo, but there was no discussion of killing anyone.

Toward the end of the interview, Rembert informed the detectives that the two other men had tricked the victim by asking him for the time and, after the victim rolled down his window, Rembert’s companions put a gun to the victim’s head and ultimately placed him inside the trunk of the victim’s vehicle. (

b) Discussion

(1) Aranda/Bruton Turning first to the constitutional issue, defendant contends the admission into evidence, at his joint trial, of the codefendants’ out-of-court statements violated state law and deprived him of his rights to confront and cross-examine witnesses under the Sixth Amendment to the United States Constitution. (Bruton, supra, 391 U.S. 123; Aranda, supra, 63 Cal.2d 518.) We recently set forth the governing law in great detail in People v. Lewis (2008) 43 Cal.4th 415 [75 Cal.Rptr.3d 588, 181 P.3d 947] (Lewis).

As we explained in that case, “[a] criminal defendant has a right, guaranteed by the confrontation clause of the Sixth Amendment to the United States Constitution, to confront adverse witnesses. The right to confrontation includes the right to cross-examination. (Pointer v. Texas (1965) 380 U.S. 400 [13 L.Ed.2d 923, 85 S.Ct. 1065].) A problem arises when a codefendant’s confession impheating the defendant is introduced into evidence at their joint trial.

If the declarant codefendant invokes the Fifth Amendment right against self-incrimination and declines to testify, the implicated defendant is unable to cross-examine the declarant codefendant regarding the content of the confession. “In Bruton, the United States Supreme Court held that the admission into evidence at a joint trial of a nontestifying codefendant’s confession implicating the defendant violates the defendant’s right to cross-examination guaranteed by the confrontation clause, even if the jury is instructed to disregard the confession in determining the guilt or innocence of the defendant. (Bruton, supra, 391 U.S. at pp. 127-128, 135-137.) The high court reasoned that although juries ordinarily can and will follow a judge’s instructions to disregard inadmissible evidence, ‘there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.’ (Id. at p. 135.) Such a context is presented when ‘the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.’ (Id. at pp. 135-136.)” (Lewis, supra, 43 Cal.4th at p. 453.) In Aranda, supra, 63 Cal.2d 518, this court came to a conclusion similar to that subsequently reached by the high court in Bruton, but we also held that a codefendant’s confession may be introduced at the joint trial if it can be edited to eliminate references to the defendant without prejudice to the confessing codefendant. (Aranda, supra, 63 Cal.2d at pp. 530-531; see also Lewis, supra, 43 Cal.4th at p. 454.) As the United States Supreme Court similarly concluded, “[T]he Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” (Richardson v.

Marsh (1987) 481 U.S. 200, 211 [95 L.Ed.2d 176, 107 S.Ct. 1702].) “[E]diting a nontestifying codefendant’s extrajudicial statement to substitute pronouns or similar neutral terms for the defendant’s name will not invariably be sufficient to avoid violation of the defendant’s Sixth Amendment confrontation rights.” (People v.

Fletcher (1996) 13 Cal.4th 451, 468 [53 Cal.Rptr.2d 572, 917 P.2d 187].) If a codefendant’s confession cannot be so edited, severance is required. (Lewis, supra, 43 Cal.4th at p. 454; Aranda, supra, 63 Cal.2d at pp. 530-531.) “ ‘[T]he sufficiency of this form of editing must be determined on a case-by-case basis in light of the statement as a whole and the other evidence presented at the trial.’ ” (Lewis, supra, 43 Cal.4th at p. 454, quoting People v.

Fletcher, supra, 13 Cal.4th at p. 468.) “ ‘[Redactions that simply replace a name with an obvious blank space or a word such as “deleted” or a symbol or other similarly obvious indications of alteration . . . leave statements that, considered as a class, so closely resemble Bruton’s unredacted statements that ... the law must require the same result.’ ” (Lewis, supra, 43 Cal.4th at p. 455, italics omitted, quoting Gray v.

Maryland (1998) 523 U.S. 185, 192 [140 L.Ed.2d 294, 118 S.Ct. 1151] (Gray).) When, despite redaction, the statement obviously refers directly to the defendant, and involves inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial, the Bruton rule applies and introduction of the statement at a joint trial violates the defendant’s rights under the confrontation clause. (Lewis, supra, 43 Cal.4th at p. 455; Gray, supra, 523 U.S. at pp. 196-197.) Turning to the present case, we observe that the redacted statements of codefendants Rembert and Burnett did not completely eliminate any reference to the “existence” of accomplices (cf.

Richardson v. Marsh, supra, 481 U.S. at p. 211) and, as the Attorney General concedes, the statements in conjunction with other evidence led to the obvious inference that defendant was “the other” who shot Kondrath. (Gray, supra, 523 U.S. at p. 193.) The redactions in the present case did not satisfy the standard set forth in Gray, supra, 523 U.S. at pages 196-197.

As explained above, when, despite redaction, a codefendant’s statement obviously refers directly to the defendant and implicates him or her in the charged crimes, the Bruton rule applies and introduction of the statement at a joint trial violates the defendant’s rights under the confrontation clause. (Lewis, supra, 43 Cal.4th at p. 455; Gray, supra, 523 U.S. at pp. 196-197.) It is well established, however, that Aranda/Bruton error is not reversible per se, but rather is scrutinized under the harmless-beyond-a-reasonable-doubt standard of Chapman v.

California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824], (People v.

Anderson (1987) 43 Cal.3d 1104, 1128 [240 Cal.Rptr. 585, 742 P.2d 1306].) In determining whether improperly admitted evidence so prejudiced a defendant that reversal of the judgment of conviction is required, we have observed that “if the properly admitted evidence is overwhelming and the incriminating extrajudicial statement is merely cumulative of other direct evidence, the error will be deemed harmless.” (Id. at p. 1129.) In the present case, the prosecution advanced, and the jury was instructed on, three theories of first degree murder relating to the homicide of Joseph Kondrath: felony murder based upon robbery, felony murder based upon kidnapping, and deliberate and premeditated murder.

The jury returned a general verdict finding defendant guilty of the first degree murder of Kondrath. As set forth below, overwhelming evidence, apart from the codefendants’ statements, supports defendant’s conviction of either deliberate, premeditated first degree murder, or one or both theories of felony murder, as well as the true findings on the kidnapping-murder special circumstance and the robbery-murder special circumstance.

Accordingly, when viewed in the context of the instructions given to the jury and the evidence supporting defendant’s convictions for the first degree murder, robbery, and kidnapping of Kondrath and the kidnapping-murder and robbery-murder special circumstances, any error in admitting the codefendants’ statements was harmless beyond a reasonable doubt. (Chapman v.

California, supra, 386 U.S. at p. 24; see Lewis, supra, 43 Cal.4th at p. 456.) To prove a defendant guilty of kidnapping, the prosecution must establish that (1) the defendant took, held, or detained another person by using force or by instilling reasonable fear; (2) using that force or fear, the defendant moved the other person, or made the other person move a substantial distance; and (3) the other person did not consent to the movement. (§ 207, subd. (a).) There was overwhelming evidence establishing that defendant committed the crime of kidnapping — that is, that he either forced Kondrath into the trunk of Kondrath’s automobile at gunpoint, or aided and abetted in the kidnapping of Kondrath by participating in transporting him over a substantial distance without his consent.

There also was overwhelming evidence provided by defendant’s own statement to the police (and his statements to other witnesses) establishing that defendant killed Kondrath during the commission of that kidnapping, and that he did so to advance the commission of the kidnapping — that is, to eliminate Kondrath as a witness. (See People v.

Green (1980) 27 Cal.3d 1, 61 [164 Cal.Rptr. 1, 609 P2d 468].) Defendant informed die police that he and the codefendants forced Kondrath into the trunk of Kondrath’s- automobile at gunpoint and repeatedly discussed the need to kill him because he had seen their faces and would be able to identify them. Defendant contended at trial, and asserts in his briefing in this court, that the kidnapping-related counts cannot stand, and therefore the prosecution cannot establish absence of prejudice arising from the Aranda/Bruton error, because the kidnapping was completed prior to Kondrath’s murder.

This is so, he asserts, because at the time defendant shot Kondrath (1) the automobile was parked on the side of the road; (2) movement of the victim had ceased; (3) defendant had reached a place of temporary safety; (4) there was no other ongoing felonious conduct; and (5) defendant did not exhibit a single-minded purpose in committing the shooting.

This defense, however, was not affected or undermined by the admission of the codefendants’ redacted statements, because nothing in either Rembert’s or Burnett’s statements contradicted defendant’s assertion that he and the others had stopped the vehicle, and had ceased moving the victim, at the time he shot Kondrath. In any event, defendant’s claim substantively is without merit. As we previously have recognized, “the crime of kidnapping continues until such time as the kidnapper releases or otherwise disposes of the victim and [the defendant] has reached a place of temporary safety . . . .” (People v.

Barnett (1998) 17 Cal.4th 1044, 1159 [74 Cal.Rptr.2d 121, 954 P.2d 384]; see also People v. Silva (1988) 45 Cal.3d 604, 632 [247 Cal.Rptr. 573, 754 P.2d 1070]; People v. Chacon (1995) 37 Cal.App.4th 52, 60 [43 Cal.Rptr.2d 434].) In the present case, defendant and his codefendants placed the victim in the trunk of his own automobile, where he remained while the men drove around shooting at targets, and where he lay when he was shot.

The circumstance that defendant had stopped the vehicle before shooting the victim does not establish that the victim had been released or otherwise disposed of, because the kidnapping was clearly still in progress when defendant stopped the car on a dark, isolated street, opened the trunk, and shot the victim in the head. “Because [the victim] was still being detained at the time of his murder, he was killed while defendant was engaged ‘in the commission of’ the kidnapping.” (People v. Silva, supra, 45 Cal.3d at p. 632; see People v.

Farmer (1983) 145 Cal.App.3d 948, 952 [193 Cal.Rptr. 788] [“A victim forcibly transported without [his] consent is still ‘kidnaped’ while the detention continues and an injury inflicted during detention is inflicted ‘in the commission of’ the kidnaping.”].) Moreover, defendant had not reached a place of safety, as is evident by witness David Schindler’s testimony that he saw two men flee the area of the shooting, and defendant’s own statement to the police that he ran from the scene after shooting Kondrath.

The strong evidence of guilt — excluding the codefendants’ statements but including defendant’s own statements, in which he admitted all of the elements supporting the kidnapping-related counts and the kidnapping-murder special circumstance — supports the conclusion that any error in the admission of the codefendants’ redacted statements was harmless beyond a reasonable doubt. Notably, the prosecutor did not rely upon Burnett’s or Rembert’s statements in discussing the kidnapping-related counts.

Rather, during closing argument to the jury, the prosecutor pointed to defendant’s own statement in support of the prosecution’s contention that defendant was guilty of the kidnapping-related counts. Accordingly, we conclude that any error in the admission of the codefendants’ redacted statements at the joint trial was harmless beyond a reasonable doubt (Chapman v. California, supra, 386 U.S. at p. 24) with regard to the jury’s consideration of the kidnapping count, the kidnapping-felony-murder theory of first degree murder, and the special circumstance of murder during the commission of a kidnapping.

The error also is harmless beyond a reasonable doubt in relation to the jury’s consideration of the robbery-felony-murder theory and the special circumstance of murder during the commission of a robbery.

Robbery is the taking of “personal property in the possession of another against the will and from the person or immediate presence of that person accomplished by means of force or fear and with the specific intent permanently to deprive such person of such property.” (CALJIC No. 9.40.) In his own statement, defendant told the police that he and his codefendants forced the victim from his car and into the trunk of the vehicle at gunpoint.

Defendant told the police that he used the ruse of asking the victim for the time in order to get him to roll down his window; that prior to approaching the victim, he and the others discussed “jacking” the victim — which, he explained to the officers, meant robbing him; that he joined his codefendants in forcing the victim from the victim’s automobile and into the trunk of the vehicle at gunpoint; and that the keys to the automobile were mistakenly left in the keyhole of the trunk, forcing defendant to retrieve them before driving off in the victim’s automobile.

Accordingly, defendant admitted all of the elements supporting the robbery-related counts and the robbery-murder special circumstance, and strong evidence of guilt — exclusive of the codefendants’ statements— supports the conclusion that any error in the admission of the codefendants’ redacted statements was harmless beyond a reasonable doubt with regard to the robbery-related counts and the robbery-murder special circumstance. Finally, defendant’s statements to the police also provide overwhelming evidence in support of a conviction for deliberate, premeditated first degree murder.

A murder that is premeditated and deliberate is murder of the first degree. (§ 189.) “ ‘In this context, “premeditated” means “considered beforehand,” and “deliberate” means “formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.” ’ ” (People v. Jurado (2006) 38 Cal.4th 72, 118 [41 Cal.Rptr.3d 319, 131 P.3d 400], quoting People v.

Mayfield (1997) 14 Cal.4th 668, 767 [60 Cal.Rptr.2d 1, 928 P.2d 485].) “ ‘An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.’ [Citation.] A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported— preexisting motive, planning activity, and manner of killing — but ‘[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation.’ ” (People v.

Jurado, supra, 38 Cal.4th at pp. 118-119.) Defendant informed the police that very shortly after forcing the victim into the trunk at gunpoint, and again just before he shot the victim, defendant and his codefendants discussed the need to kill the victim because he would be able to identify them. Defendant further stated that, immediately prior to the shooting, his codefendant handed him the gun and instructed him to kill the victim, which defendant did by pointing the gun into the trunk and firing once.

These facts provide overwhelming evidence of all three elements: preexisting motive, planning activity, and the manner of killing — pointing and shooting a gun at close range at the victim’s head. It is true defendant also stated to the police that he did not want to shoot Kondrath but did so at the urging of his codefendants, who, he informed the police, repeatedly insisted the victim must be killed because he had seen their faces. Despite defendant’s urging his codefendants to let the victim live, defendant fired his weapon into the trunk, but only once, without aiming and with no intent to kill the victim.

This alternative explanation, however, does not vitiate defendant’s statements to the police that unequivocally establish both deliberation and premeditation on his part. Moreover, in light of the evidence of premeditation, a jury reasonably could disbelieve defendant’s statements to the extent they attempted to minimize his culpability.

Accordingly, defendant’s own statements, standing alone and considered without reference to his codefendants’ statements, provide overwhelming evidence supporting a conviction for deliberate, premeditated murder, and any error in admitting his codefendants’ statements was harmless beyond a reasonable doubt with regard to this theory of first degree murder.

Because the Aranda/Bruton error was harmless beyond a reasonable doubt as to all three theories of first degree murder submitted to the jury, as well as to the true findings on the robbery-murder and kidnapping-murder special circumstances, such error provides no basis for reversing defendant’s conviction for the first degree murder of Joseph Kondrath and for the kidnapping and robbery of Kondrath, or for setting aside the jury’s true findings on the kidnapping-murder and robbery-murder special circumstances.

(2) Denial of defendant’s severance motions We also conclude the trial court did not abuse its discretion in denying defendant’s motions for severance — motions founded on defendant’s contention that admission of the codefendants’ statements would prejudice him at a joint trial. Our Legislature has expressed a preference for joint trials. (Lewis, supra, 43 Cal.4th at p. 452; People v. Boyde (1988) 46 Cal.3d 212, 231, 250 [250 Cal.Rptr. 83, 758 P.2d 25]; cf. People v.

Soper (2009) 45 Cal.4th 759, 771-772 [89 Cal.Rptr.3d 188, 200 P.3d 816] [expressing judicial preference for joinder in context of joined charges].) “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.’ The court may, in its discretion, order separate trials if, among other reasons, there is an incriminating confession by one defendant that implicates a codefendant, or if the defendants will present conflicting defenses.” (Lewis, supra, 43 Cal.4th at p. 452, citing People v.

Avila (2006) 38 Cal.4th 491, 574-575 [43 Cal.Rptr.3d 1, 133 P.3d 1076]; see People v. Massie (1967) 66 Cal.2d 899, 917 [59 Cal.Rptr. 733, 428 P.2d 869].) “Additionally, severance may be called for when ‘there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.’ ” (Lewis, supra, 43 Cal.4th at p. 452, quoting Zafiro v. United States (1993) 506 U.S. 534, 539 [122 L.Ed.2d 317, 113 S.Ct. 933] [addressing severance under Fed. Rules Crim.Proc., rule 14, 18 U.S.C.]; see also People v.

Coffman and Marlow (2004) 34 Cal.4th 1, 40 [17 Cal.Rptr.3d 710, 96 P.3d 30].) We review a trial court’s denial of a severance motion for abuse of discretion based upon the facts as they appeared when the court ruled on the motion. (Lewis, supra, 43 Cal.4th at p. 453; People v. Hardy (1992) 2 Cal.4th 86, 167 [5 Cal.Rptr.2d 796, 825 P.2d 781].) If we conclude the trial court abused its discretion, reversal is required only if it is reasonably probable the defendant would have obtained a more favorable result at a separate trial. (Lewis, supra, 43 Cal.4th at p. 453; People v.

Coffman and Marlow, supra, 34 Cal.4th at p. 41; People v. Keenan (1988) 46 Cal.3d 478, 503 [250 Cal.Rptr. 550, 758 P.2d 1081].) “If the court’s joinder ruling was proper when it was made, however, we may reverse a judgment only on a showing that joinder 1 “resulted in ‘gross unfairness’ amounting to a denial of due process.” ’ ” (Lewis, supra, 43 Cal.4th at p. 452, quoting People v. Mendoza (2000) 24 Cal.4th 130, 162 [99 Cal.Rptr.2d 485, 6 P.3d 150]; see also People v.

Soper, supra, 45 Cal.4th at p. 783 [“ ‘if a trial court’s ruling on a motion to sever is correct at the time it was made, a reviewing court still must determine whether, in the end, the joinder of counts or defendants for trial resulted in gross unfairness depriving the defendant of due process of law’ ”].) As a threshold matter, in each count defendant was charged along with both of his codefendants with having committed “ ‘common crimes involving common events and victims.’ ” (Lewis, supra, 43 Cal.4th at pp. 452-453, quoting People v.

Keenan, supra, 46 Cal.3d at p. 500.) In light of this circumstance, the trial court was presented with a “classic case” for a joint trial. (Lewis, supra, 43 Cal.4th at p. 453; see also People v. Avila, supra, 38 Cal.4th at p. 575; People v. Coffman and Marlow, supra, 34 Cal.4th at p. 40; People v. Keenan, supra, 46 Cal.3d at pp. 499-500.) Moreover, in judging the circumstances as they appeared at the time of the ruling on the motion (see People v.

Cleveland (2004) 32 Cal.4th 704, 726 [11 Cal.Rptr.3d 236, 86 P.3d 302]), any error under Aranda and Bruton in admitting the codefendants’ statements is to be evaluated under Gray, supra, 523 U.S. 185, decided in 1998, four years after defendant’s 1994 trial. (Lewis, supra, 43 Cal.4th at p. 456.) In Gray, the high court extended Bruton’s reasoning regarding unredacted statements to redacted statements, holding that the Sixth Amendment barred the admission of statements that were redacted in a manner that operated “just like a confession that names the defendant — they point an accusatory finger at the person ‘sitting at counsel table,’ i.e., the defendant on trial. ([Gray, supra, 523 U.S.] at p. 192.)” (Lewis, at p. 455.) As the Attorney General concedes, the redactions in the present case, although not as “obvious” as those considered in Gray, where the court substituted blanks and the word “delete” for the defendant’s proper name, nonetheless led to the obvious inference that defendant was “the other” who shot Kondrath.

Before Gray, however, “the law regarding the admissibility of redacted codefendant confessions was unsettled. (See, e.g., People v.

Fletcher, supra, 13 Cal.4th 451.) Although Gray is retroactive to this case and we apply it here, we cannot fault the trial court for failing to anticipate Gray’s holding.” (Lewis, supra, 43 Cal.4th at p. 455.) Therefore, no abuse of discretion appears in the denial of severance in the present case. (Ibid.) Defendant nonetheless contends he was prejudiced by the denial of the severance motion and the admission of the codefendants’ statements, because the defenses presented by his two codefendants were antagonistic to his defense.

He asserts that both Burnett’s and Rembert’s statements minimized their own culpability in Kondrath’s murder and in the crimes that preceded it, laying blame instead on defendant — improperly painting him as the “main perpetrator” and thereby undermining his defense that he was guilty only of second degree murder because he did not participate in the victim’s kidnapping and robbery, and because he shot the victim only under threat by his codefendants.

Aside from defendant’s own self-serving statements to the police, no evidence was presented at trial indicating that Burnett and Rembert, rather than defendant, were the “main perpetrators” of the crimes against Kondrath.

As related above, defendant admitted in his statement that he joined his codefendants in robbing the victim of his automobile, asked the victim for the time as a ruse before forcing him from his automobile at gunpoint, was present when his codefendants demanded the victim’s wallet and forced the victim into the trunk of his own automobile, and returned to the trunk to retrieve the victim’s keys upon realizing the victim had left them in the keyhole.

Most notably, Jeanette Roper testified that defendant informed her — as he admitted in his statement to the police — that he shot the victim, and although he now contends the evidence established that he did so under threat of harm from his codefendants, neither his statement to the police nor any other evidence supports such a claim. In his statement, defendant merely claimed that the codefendants informed him repeatedly that the victim must be killed because he had seen the three men and would be able to identify them, and that one of the codefendants threatened to “blast” the victim himself.

Nothing in defendant’s statement indicates that either Burnett or Rembert threatened defendant with harm if he did not shoot the victim, and no other evidence establishes that Burnett or Rembert, rather than defendant — who was the actual shooter — was “more culpable” for Kondrath’s murder. Indeed, defendant specifically informed the detectives that he did not hand the gun to Burnett and did not insist that Burnett shoot the victim — not because defendant feared that Burnett intentionally would hurt defendant, but because he was frightened that Burnett was too drunk and accidentally might shoot defendant.

Instead, defendant willingly chose to shoot the victim himself, and because defendant did not want to look at the victim’s face, he shot him assertedly without taking aim. Antagonistic defenses do not warrant severance unless the acceptance of one party’s defense would preclude acquittal of the other. (Lewis, supra, 43 Cal.4th at p. 461; People v.

Hardy, supra, 2 Cal.4th at p. 168.) Here, defendant’s defense and those of his codefendants “were not so irreconcilable that only one could be guilty.” (Lewis, supra, 43 Cal.4th at p. 461.) “The prosecution presented independent evidence supporting each defendant’s participation in the group’s mutual criminal endeavors. No gross unfairness resulted from the joint trial.” (Ibid.; see also People v. Avila, supra, 38 Cal.4th at pp. 574-576; People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41; People v.

Box (2000) 23 Cal.4th 1153, 1195-1197 [99 Cal.Rptr.2d 69, 5 P.3d 130].) Defendant also asserts that the joint trial prejudiced him because his own statement was redacted to replace all instances of Burnett’s name with the word “other,” thereby precluding defendant from informing the jury that Burnett, who was older than defendant and had gang ties, initiated the events on the night of Kondrath’s murder, and that defendant acted only at the urging of his older codefendants. No evidence of any significance was eliminated as a result of the redaction of defendant’s statement.

First, the circumstance that codefendant Burnett may have instigated the night’s events does not obviate defendant’s own admitted culpability in the crimes committed against Kondrath.

Moreover, although defendant’s specific references to Burnett were replaced with the word “other,” the jury nonetheless was made aware of the substance of defendant’s statements — that he left the apartment with two men, one of whom wanted to seek out Watergate Crips gang members in revenge for an earlier assault, that this same man directed defendant to go to Jeffrey Howard’s home to borrow a shotgun, and that the men he was with fired that weapon in Watergate Crips territory.

The sole statement defendant points to in his own account that was deleted from the transcript of defendant’s interview is his assertion that Burnett gave him the weapon and told him to kill the victim. The omission of this statement did not prejudice defendant, however, because other statements made by him to the police informed the jurors that one of “the others” handed defendant a gun and told him to kill the victim, and that the reason defendant did not hand the gun back to “the other” was that defendant feared being accidentally shot by his drunken companion.

In sum, neither the redaction of the codefendants’ statements nor the redaction of defendant’s own statement prejudicially undermined defendant’s defense, and the joint trial itself did not result in gross unfairness depriving defendant of a fair trial. If any error occurred, it did not result from the trial court’s denial of severance, but from its related but separate ruling admitting codefendants Rembert’s and Burnett’s redacted statements.

As we have explained above, the admission at the joint trial of these two statements “did not result in gross unfairness to defendant,” and any error was harmless. (Lewis, supra, 43 Cal.4th at p. 456.) 3. Denial of motion for sequestered Hovey voir dire Defendant contends the trial court’s denial of his motion for sequestered voir dire pursuant to Hovey v.

Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301] was erroneous and violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and parallel provisions of the California Constitution, requiring reversal of the guilt and penalty judgments. This claim is without merit. “ ‘In Hovey v. Superior Court[, supra,] 28 Cal.3d 1, 80 ... , this court decided that in capital prosecutions the death-qualification portion of each prospective juror’s voir dire should be sequestered, meaning that it should be conducted out of the presence of other prospective jurors.

This court did not hold that sequestered voir dire was constitutionally required; instead, we mandated this practice as a rule of procedure.’ ” (Lewis, supra, 43 Cal.4th at p. 493, quoting People v. Jurado, supra, 38 Cal.4th

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