THE PEOPLE, Plaintiff and Respondent, v. JOHN ANTHONY GONZALES and MICHAEL SOLIZ, Defendants and Appellants, 52 Cal. 4th 254

Opinion WERDEGAR, J. A Los Angeles County jury found defendants John Anthony Gonzales and Michael Soliz guilty of the first degree murder of Lester Eaton (count 1), Elijah Skyles (count 4) and Gary Price (count 5). (Pen. Code, §§ 187, 189.) The jury found true the special circumstance allegations of multiple murder and murder during the commission of robbery. (§ 190.2, subd. (a)(3) & (17)(A).) At the penalty phase, the jury returned a verdict of life without the possibility of parole for Gonzales on counts 4 and 5 and hung on all other penalty phase verdicts.

At the penalty phase retrial, a new jury returned a verdict of death for Gonzales on count 1, a verdict of life without the possibility of parole for Soliz on count 1, and a verdict of death for Soliz on counts 4 and 5. The trial court denied defendants’ motions for a new trial (§1181) and for modification of the penalty (§ 190.4, subd. (e)), and sentenced them to death. This appeal is automatic. (Cal. Const., art. VI, § 11; Pen. Code, § 1239, subd. (b).) We affirm the judgments. Introduction Defendants were members of the Puente gang, a Hispanic street gang in the City of La Puente.

They were charged with two separate sets of murders. In the first, Lester Eaton was killed while defendants robbed the small neighborhood store he owned, the Hillgrove Market. Gonzales’s fingerprints were found on items in the getaway vehicle. The testimony of witnesses to defendants’ actions before and after the robbery murder linked both defendants to the crime. Additionally, in separate, taped conversations, each defendant admitted having participated in the robbery, and Gonzales admitted he was the shooter.

The victims of the second set of murders were Elijah Skyles and Gary Price, African-American teenagers who were shot numerous times at a gas station. The prosecution theorized defendants killed Skyles and Price in retaliation for the murder of a member of the Puente gang two weeks earlier by members of the Neighborhood Crips gang. Several eyewitnesses identified Soliz as the shooter, with Gonzales providing backup. In a tape-recorded conversation, however, Gonzales said he had been the sole shooter and sole participant in the Skyles and Price murders.

At the penalty phase, the jury returned a verdict of life without the possibility of parole for Gonzales for the Skyles and Price murders, but could not reach a verdict as to Gonzales for the Eaton murder or as to Soliz for either set of murders. At the penalty retrial, Gonzales took the stand for the first time in the proceedings, admitted he had shot Eaton during the Hillgrove Market robbery, and reiterated that he had been the shooter and sole participant in the Skyles and Price murders (as he stated in the taped conversation).

The jury returned a verdict of death for Gonzales for the Eaton murder, a verdict of death for Soliz for the Skyles and Price murders, and a verdict of life without the possibility of parole for Soliz for the Eaton murder. I. Facts A. Guilt Phase 1. Prosecution Case a. The Murder of Lester Eaton

(1) Robbery and Murder at the Hillgrove Market Lester and Betty Eaton, married for 43 years, owned and operated the Hillgrove Market on Clark Avenue in Hacienda Heights, an unincorporated part of Los Angeles County near the City of La Puente. As Betty Eaton testified, she and Lester were alone in the market about 7:30 on the evening of January 27, 1996. Lester was talking on the phone in a back room (the meat-cutting room) near the sink and Betty was up front behind the meat counter.

Two young men entered the market; the first pointed a gun at Betty and asked, “Where do you keep your money?” He appeared to be Hispanic and between 18 and 20 years old. He wore a close-fitting cap that covered his hair and a bandanna that covered his face from the nose down. The second man pointed a gun at Lester, who said, “Put that thing down before someone gets hurt.” The second man was also Hispanic, in his late teens or early 20’s. He did not wear either a bandanna or a hair covering.

Betty saw the second man primarily from the back and testified that she would be unable to recognize either of the men if she ever saw them again. The second man pinned Lester against the sink and struck him, causing blood to flow from his forehead. The next thing Betty saw was Lester lying on the floor in a fetal position behind the meat counter. She heard two gunshots and knew he had been shot. Betty panicked and ran out through the front door of the market. She saw a dark blue van parked in front.

As she ran towards a neighbor’s house, she heard the squealing of tires from a vehicle and thought the robbers were coming after her. She pounded on the neighbors’ door until they opened it, ran in and dialed 911. She returned to the market as the first patrol car was pulling up. The blue van that she had seen parked in front was gone. When sheriff’s deputies later drove her from the market to the sheriff’s station, she saw what appeared to be the same blue van now parked at the comer of Clark Avenue and Turnbull Canyon Road.

(2) The Crime Scene Investigation and Autopsy Responding to a patrol dispatch, sheriff’s deputies found Lester Eaton lying on the floor behind the Hillgrove Market’s meat counter in a large pool of blood, with a bullet wound to his back. Five minutes later, paramedics arrived, examined Lester and pronounced him dead. His left front trouser pocket had been pulled inside out, and he was wearing an empty holster on his belt.

Despite a thorough search, no expended shell casings were found at the crime scene, which led one of the investigating officers to infer that the weapon used was a revolver, not an automatic or a semiautomatic weapon, which eject their casings when fired. Lester’s shotgun and his revolver, a Colt, which he wore in the holster on his hip, had been taken from the store, as had his wallet. Personal items from his wallet were later discovered nearby scattered along the road.

The market’s cash register was on the floor, and the money tray was missing, along with the day’s proceeds (about $100 in cash plus food stamps). Weeks later, while cleaning up the market, Betty found an expended bullet, which she gave to investigators. The medical examiner found five gunshot wounds to Lester’s body: two to the head and three to the chest (of which one was significant and two were superficial). The two wounds to the head and the significant chest wound were consistent with the victim’s having sat on the floor with the shooter standing over and behind him.

One of the head wounds and the significant chest wound were fatal; the other head wound was serious and possibly fatal. One wound to the head had been caused by a bullet fired at close range, from between half an inch and 18 inches away; the other was a near-contact wound shot from within half an inch. There was a laceration to the head caused by blunt force trauma, consistent with having been struck by the barrel of a gun.

(3) Contents of the Getaway Vehicle Patrol officers found the getaway vehicle, a blue 1993 Chevrolet Astro van, parked two to three blocks away from the market on the comer of Turnbull Canyon Road and Clark Avenue. The van had been reported stolen, and the passenger side window was broken out. Inside, investigators found a cash register tray and food stamp coupons. At trial, Betty Eaton identified the cash register tray found in the van as the one taken from the market. She also identified three receipts (bearing her handwriting and that of a customer) found in the van as being from her cash register.

Other items found in the van included an unexpended bullet, a Raiders jacket and various pieces of paperwork unconnected to the market. Fingerprints on two of the pieces of paperwork were identified as those of defendant Gonzales.

(4) Dorine Ramos and Events Before the Robbery Murder Earlier on the day of the murder, Dorine Ramos was running errands with her friend Rosemary. Rosemary’s boyfriend, Randy Irigoyen, was driving the two in Rosemary’s car. As former gang member Salvador Berber later testified at trial, Irigoyen and defendants Gonzales and Soliz were members of the Perth Street gang, which was a “clique” (subgroup) of the Puente criminal street gang.

Irigoyen suggested to Ramos that she should get her own car and took her to look at two vehicles he said she could have “for cheap.” The second vehicle he showed her was a blue Astro van, which she later testified looked like the getaway vehicle later used for the Hillgrove Market robbery murder. Ramos told Irigoyen she was not interested in buying either vehicle, and he then drove them to a nearby house. Ramos stayed in the car while Irigoyen joined a group of about 10 men gathered in front of the house.

They ranged in age from 18 to 29 years old and all had similar, very short haircuts, which Ramos described as being “cholo” (gangster) style. Ramos saw defendants Gonzales and Soliz among the group. Defendants told Irigoyen that they needed a “cuete” (Spanish slang for a gun). They said they were going to do a “jale” (slang for a criminal job) with the “cuete.” Soliz indicated that he and Gonzales were waiting for a ride to go pick up a van. A Honda Prelude drove up to the front of the house and Irigoyen handed the driver a gun. The driver said, as he drove away, that he had to get another gun.

Irigoyen gave bandannas to Gonzales and Soliz, who wrapped them around the lower part of their faces. Gonzales was carrying a Raiders jacket, similar to the one later recovered from the van after the Hillgrove Market robbery murder. When the Honda Prelude returned about 6:30 p.m., defendants got in and drove off. About five minutes later, Irigoyen drove Ramos home. They drove past the location where the blue van had earlier been parked, but it was gone. Later that night, Ramos saw a news broadcast about the Hillgrove Market robbery murder showing the same blue van she had seen earlier that evening.

She contacted the police two or three days later.

(5) Testimony of Richard F. Alvarez Richard F. Alvarez knew defendants Gonzales and Soliz; Alvarez’s brother was married to Gonzales’s sister. On the night of the murder, between 7:00 and 8:00 p.m., Alvarez received a call from Gonzales, who asked Alvarez to pick him up from the comer of Seventh Street and Turnbull Canyon Road. Alvarez drove there and picked up Gonzales and Soliz, along with a third individual he knew as “Clumsy” (whose real name was Michael Gonzales). Alvarez dropped the three men off at the house of a woman named Jennifer, where Alvarez and defendants remained the rest of the night partying.

Deputy Woodrow West was a homicide investigator who testified about an interview he had with Alvarez sometime after the Hillgrove Market robbery murder. West testified that Alvarez initially denied any knowledge of the robbery murder, but eventually admitted that between 6:00 and 7:00 p.m. on the night of the crime he had received a phone call from defendant Gonzales, who asked to be picked up at Jennifer’s house. Alvarez met defendants and “Clumsy” at Jennifer’s house and followed them in his car while they drove a blue van to a location on Turnbull Canyon Road in Hacienda Heights.

Alvarez was told to wait while the three men left in the blue van. They returned a short time later, parked the van, and got into Alvarez’s car. Alvarez drove them back to Jennifer’s house where they partied the rest of the evening. At trial, Alvarez denied he told Deputy West he had dropped the three men off before the robbery and waited for them. Alvarez insisted he had only picked the men up after the robbery. On March 15, 1997, Alvarez visited defendant Gonzales, who was incarcerated in the county jail. Their conversation was secretly taped by the authorities and later played for the jury.

In the tape, Alvarez alluded to the fact that at defendants’ preliminary hearing, a witness named Kimberly had mentioned Alvarez by his nickname, “Richie Rich,” as the person who had driven defendants and Clumsy to the intersection on Turnbull Canyon Road before the robbery of the Hillgrove Market. Gonzales told Alvarez not to worry because many people had the nickname “Richie Rich.”

(6) Soliz’s Taped Conversation with Luz Jauregui On October 19, 1996, a local newspaper ran a story on the Hillgrove Market robbery murder, stating that Gonzales had been arrested and two more suspects were being sought. On December 15, 1996, Luz Jauregui, Soliz’s fiancée, visited him in the county jail where he was incarcerated on an unrelated charge. Their conversation was secretly recorded by the authorities and played to the jury. Soliz told Jauregui that he was growing his moustache because “they said these fools are young that did this shit. I got some glasses. I’m gonna let my hair grow a little, comb it when I start to court, put on a suit and tie.” Referring to the newspaper

article on the robbery murder, Soliz stated: “It says . . . they got two more suspects. They haven’t found ’em yet? Damn, they got one of ’em right here. ‘But your honor, I’m a changed man.’ ” b. The Murders of Elijah Skyles and Gary Price

(1) Events Preceding the Murders Vondell McGee was with Elijah Skyles and Gary Price just before they were killed around 12:40 a.m. on April 14, 1996. After finishing his work shift at a Chuck E. Cheese restaurant, McGee met Price, his cousin, and Skyles, his friend, and walked with them to a nearby Shell gas station located on the comer of San Bernardino Road and Azusa Avenue in the City of Covina, where they talked for a while. Skyles was 15 years old and Price was 18 years old. McGee saw a tan Honda Accord (1989-1991 model year) pull into the gas station.

McGee later identified a photograph of Augustin Mejorado’s car as depicting a car like the one he saw that night. The car had about five people in it, who appeared to be Hispanic. The car stopped for a moment, and several people in the car stared at Skyles, Price and McGee; the car then turned and drove off. McGee talked with Skyles and Price for about another five minutes. He gave them some change for the pay phone, then left' for home on his bike. About a minute or two later, as McGee was bicycling through the parking lot of a nearby shopping center, he heard about 10 or 12 gunshots.

McGee stopped, ran for cover, then made his way home, where he paged Price. Without waiting for a response, McGee bicycled back to the gas station and found Skyles and Price lying dead on the ground next to each other near the pay phone. About five minutes had elapsed from the time McGee first heard the gunshots; police officers were already at the scene. It was a clear night and the gas station was well lit, including the area around the pay phone.

(2) Eyewitness Carol Mateo Between 12:40 and 12:45 a.m. on April 14, 1996, Carol Mateo was driving on San Bernardino Road near the intersection with Azusa Avenue. Her brother, Jeremy Robinson, was in the front passenger seat, and her husband, Jose Mateo, was in the backseat. She heard a series of loud popping sounds (more than five and fewer than 12) and slowed down, thinking something was wrong with her car. Robinson then screamed, “Oh shit. Look over there at the gas station. That guy’s shooting those guys.” He pointed towards the gas station.

She looked and saw a man shooting two African-American teenagers in the pay phone area of the gas station. She estimated she saw this from a distance of 50 feet, while her car was either at a full stop or barely moving. The shooter, a Hispanic male, about 20 years old, five feet seven to five feet eight inches tall, of medium build, with a very short hairstyle, was standing about four to five feet away from his victims and had his arm extended at shoulder length. She identified the shooter in court as defendant Soliz. Mateo saw both victims fall after they were shot.

One of the victims wore a dark blue-and-black checkered flannel shirt. After he fell, he tried to crawl away, but Soliz walked up and shot him again. After Soliz stopped firing, he turned and looked in Mateo’s direction for about three to five seconds, and she saw the front of his face. Soliz then turned around and ran to a car parked in the gas station, a beige-colored Honda Accord. Mateo testified that the car in a photograph of Augustin Mejorado’s car looked like the car she saw. She also saw defendant Gonzales standing by the car, and identified him in court.

At the time of trial, Gonzales had longer hair and was wearing glasses. Mateo testified that Gonzales’s appearance in a photograph with short hair was similar to how he looked on the night of the murder. Mateo drove to the Chuck E. Cheese restaurant on Azusa Avenue and called the police from an outside pay phone. As she was doing so, she saw the same car she had seen at the gas station pull in and then immediately back out of the driveway. She saw defendants in the front seat of the car. When interviewed by investigators, she selected Soliz’s photograph out of several shown to her.

At defendants’ preliminary hearing, she identified Soliz as the shooter.

(3) Eyewitness Jeremy Robinson Carol Mateo’s brother Jeremy Robinson, who was a passenger in her car that night, testified he heard shots and saw the shooter, whom he described as being Mexican, about 22 years old, five feet eight inches in height, and having a shaved head. In court, Robinson pointed to Soliz as looking familiar and like the shooter. The car the shooter entered at the gas station was an early 1990’s beige Honda Accord, which Robinson testified looked like that in the photograph of Augustin Mejorado’s car.

During the investigation, Robinson was shown three sets of six photographs and identified a photograph of Soliz as looking like the shooter. Robinson was unable to identify Soliz at the preliminary hearing.

(4) Eyewitness Alejandro Garcia On the night of the murder, Alejandro Garcia was working at the 24-hour Shell gas station on the comer of San Bernardino and Azusa in Covina. About 12:40 a.m., Garcia was inside the office area of the gas station talking on the phone when he heard more than five gunshots coming from the eastern side of the lot, where the bathrooms and phones were located. Garcia looked through the office windows towards the bathroom area and saw two people mnning toward a car. They both got into the backseat of the car, a four-door, gray 1990 Honda. The two men were Hispanic.

One of the men, who appeared to be about 20 years of age, with very short shaved hair, used the driver’s side rear door. He was carrying a small bag about the size of a handgun. The car was full of people, one of whom was a woman sitting in the back. Before the shooting, Garcia had seen the car drive by and saw two people in the front and three in back, including the woman. The car looked like that in the photograph of Augustin Mejorado’s car. Before trial, Garcia was shown five sets of six photographs and identified a photograph of Soliz as looking like the shooter.

At trial, Garcia was unable to identify anyone in the courtroom as the shooter.

(5) Eyewitness Judith Mejorado Judith Mejorado was the sister of Augustin Mejorado, who was the owner of the Honda Accord identified. as the car involved in the gas station shootings. At trial, Judith stated she did not recall any of the events at the gas station. The court declared her a hostile witness and found that she had feigned her failure of recollection. Consequently, her testimony about the shootings was presented through her preliminary hearing testimony and her pretrial interviews with investigators.

On the night of the murders, Judith arrived at the gas station with her brother Augustin in his car, a four-door, silver Honda Accord. “Clumsy” was driving the car; Judith was in the middle of the front seat, and her brother was in the front passenger seat. Gonzales and Soliz were in the backseat. Clumsy was driving because Augustin was too drank to drive. Judith saw three young African-American men standing in the driveway in front of the gas station. Defendants indicated they knew those men and asked Clumsy to go back so they could talk to them.

Clumsy drove the car into the gas station near the telephone where two of the men were now standing and stopped in front of the telephone. Gonzales and Soliz got out through the rear doors of the car and went to talk to the two men. Gonzales stayed closer to the car than Soliz. Judith heard Gonzales and Soliz and the two African-American men all talking loudly. Suddenly, loud gunshots interrupted the conversation. It sounded to her like just one gun. She could see the hand of the shooter and the sparks coming from the gun, but she could not see his face.

However, she knew Soliz was the shooter because the shooter used the left side (driver’s side) rear door to reenter the car, and that was the side Soliz used. Gonzales used the right side (passenger side) rear door. Defendants then told Clumsy to “take off.” Deputy Sheriff David Castillo investigated the Skyles and Price murders and interviewed Judith in November of 1996.

Her account of the shootings in this interview was substantially the same as her preliminary hearing testimony, with the following additional details: Gonzales had a gun in his possession at the time of the shootings, although he did not fire it. Defendants were arguing near the pay phones with the two African-American men, one of whom she heard say, “No. I didn’t mean to do you that way. I’m sorry. I didn’t mean to do you that way.” Soliz responded with some statements and the gunshots followed. When defendants got back in the car after the shootings, they told her: “You didn’t see nothing.

You don’t know nothing.”

(6) Crime Scene Investigation and Autopsy An investigating officer arrived at 12:48 a.m. and found Skyles and Price lying dead on the ground. Skyles was wearing a long sleeve black-and-white checkered shirt, red pants, and a red belt with the letter “P.” In the opinion of one of the investigating detectives, Skyles’s clothing was consistent with that of a “Bloods” gang member. Bloods gang members commonly wore the letter “P,” which stands for Pirn, a street in the Compton/Willowbrook area of Southeast Los Angeles where the original Bloods gang members lived.

Price wore a light blue windbreaker jacket and blue baggy pants. Blue baggy clothing was consistent with membership in the “Crips” gang. At the scene, investigators recovered 11 expended shell casings from a nine-millimeter weapon. Skyles’s autopsy showed nine gunshot wounds, eight of which were nonfatal. The fatal wound was a shot that entered on the left side of his back and travelled through his vital organs. The trajectory of the fatal wound was consistent with Skyles’s having been shot from behind while kneeling on the ground with the shooter standing over him.

Price had seven gunshot wounds, including two fatal wounds to the head and one to the abdomen.

(7) Taped Conversation Between Gonzales and Augustin Mejorado On March 29, 1997, Augustin Mejorado visited defendant Gonzales, who was incarcerated in the county jail. Authorities secretly recorded their conversation, which was played to the jury at trial. As recounted above, Augustin was the brother of Judith Mejorado. Judith had been a passenger in the car at the gas station and witnessed the shootings of Skyles and Price; she had testified at the preliminary hearing about the shootings and described defendants’ involvement.

Augustin asked Gonzales what he wanted Augustin to do about Judith, in light of her testimony at the preliminary hearing. Gonzales told Augustin he wanted Judith “to lie,” “to change it around,” or say that she had not even been present at the shootings.

(8) Defendants’ Refusal to Stand in a Lineup On March 4, 1997, Carol Mateo and Jeremy Robinson, the witnesses who had seen the shootings while driving by the gas station, went to the county jail to view a live lineup. Defendants were asked to stand in the lineup but refused to do so, and consequently neither witness saw a live lineup.

(9) Gonzales’s Taped Conversation with Salvador Berber Salvador Berber was a former member of the Puente gang. He had known defendant Gonzales for about 10 years, defendant Soliz for about eight years, and Augustin Mejorado for about two years. He knew all three as members of the Perth Street clique of the Puente gang. At some time before Berber’s arrest for robbery in July 1996, Berber had talked to Gonzales about buying a .38-caliber gun from him. Berber asked Gonzales whether the gun was “dirty,” that is, whether it had been used in a crime.

Gonzales said that he had two .38-caliber guns, one that had been used to murder a man at the Hillgrove Market, and another that he took from the murdered man. Gonzales mentioned that Soliz had been with him during the robbery murder. Berber was facing 10 to 17 years of imprisonment for the robbery charge against him because he had a prior robbery conviction. Hoping to receive leniency from the authorities, after his arrest Berber told a detective what Gonzales had said about the Hillgrove Market robbery murder.

The detective made no promises to Berber, and Berber was transported to the county jail, where he ran into Gonzales, who was also incarcerated there. In the county jail, Gonzales made similar statements to Berber about the Hillgrove Market robbery murder. Berber again contacted homicide detectives and agreed to wear a “wire” (i.e., an audio recording device) to record his conversation with Gonzales when they were transported together in a sheriff’s van. On September 25, 1996, Berber, wearing the wire, rode with Gonzales in the sheriff’s van from the Los Angeles County jail to the Pomona courthouse.

The two prisoners were alone together in the back of the van. The trip lasted about one and a half to two hours, during which time Gonzales talked about the two sets of murders (the Eaton murder and the Skyles and Price murders), as well as matters unrelated to those crimes. An edited version of the conversation that included all of Gonzales’s statements about the two sets of murders was played for the jury, and a transcript was provided. In the tape, Berber asked Gonzales if he thought Soliz’s fingerprints were on the van used for the Hillgrove Market robbery murder.

Gonzales replied that the police were trying to get Soliz for the murder of the two African-American teenagers (the “terrones”). Gonzales said that they had used Augustin Mej orado’s car for that. Augustin and his sister, Judith, had been sitting in the front seat, and Gonzales, Soliz and “Clumsy” were also in the car. Gonzales described how he ran up to the African-American teenagers (the “tintos”) by the telephone pole and shot them.

When Berber mentioned that the police might have found Soliz’s fingerprints on the telephone pole, Gonzales stated that Soliz “didn’t get out” of the car, and that “It was just me—the only one that got out.” Gonzales said that when he got back in the car, he said, “Sorry, Judith, you had to see that.” When she asked whether he had killed them, he said, “yeah.” Berber mentioned that he would have bought both of the .38-caliber guns that Gonzales had once offered for sale.

Gonzales responded that he had sold both and that one of them was “what we killed the old man with.” The other gun “was the old man’s cuete [(gun)]” and had his initials on it, which they scratched off. Gonzales stated, “I done about three—two niggers and that old man—about four motherfuckers when I got out this time.” Gonzales referred to a “meat market” in Hacienda Heights by Turnbull and Seventh. They had worn hoods and sweatshirts during the robbery. They stole between $200 and $300 and took the cash tray.

Gonzales said that the old man had tried to reach for his gun, and that Gonzales wrestled with him, grabbed his gun, and started hitting him with the other gun. Gonzales tried to shoot him, but the gun’s cylinder had popped up and it would not fire. When the grocer was on the ground, Gonzales managed to shoot him in the face. Richard Alvarez had parked his car a half-block away and they switched from the van to Alvarez’s car after the robbery.

Gonzales also mentioned a newspaper story he had read about the robbery murder: “They tried to make him [(Lester Eaton)] out to be, ‘Oh, he’s more, he’s more than a butcher, more like a’—motherfucker—‘more than a father figure, too. He wasn’t only a butcher, but a father figure, too.’ Says in the paper. I don’t want to hear that bullshit. Smoke the motherfucker.”

(10) Ballistics Evidence A firearms examiner for. the Los Angeles County Sheriff’s Department examined the 11 expended nine-millimeter shell casings found at the Skyles and Price murder scene and determined they were all fired by the same firearm. She then compared those 11 shell casings with the unexpended nine-millimeter bullet found in the getaway van used in the Hillgrove Market robbery murder. She determined that this unexpended nine-millimeter bullet was from the same gun magazine as the 11 shell casings found at the Skyles and Price murder scene.

The bullets recovered from the body of Lester Eaton all had markings consistent with having been fired from the same gun, the caliber of which would have been a .38-caliber special or a .357-caliber Magnum, probably a revolver.

(11) The Murder of Billy Gallegos as Motive for the Murder of Skyles and Price Gabriel Urena testified about a gang killing that occurred two weeks before the shootings of Skyles and Price that may have instigated the latter shooting. Urena was a passenger in a car driven by Billy Gallegos when Gallegos was shot and killed on March 31, 1996. According to Urena, Gallegos was a member of the Ballista clique of the Puente gang. Gallegos was driving in the City of La Puente when another car pulled up alongside him.

Two African-American men were in the car, and they “threw a gang sign” of the letter “N,” which stands for “Neighborhood Crips.” They then fired three shots at Gallegos, who crashed his car into a brick wall and later died of gunshot wounds to the head.

(12) Gang Expert Testimony Detective Scott Lusk, a homicide detective from the Los Angeles County Sheriff’s Department, testified as a gang expert. Lusk had eight years’ experience as a police officer interacting with the Puente gang, which he described as being based in the City of La Puente with a primarily Hispanic membership. In Lusk’s opinion, the Puente gang’s primary purpose was to commit crimes and further its reputation on the streets. Cliques are subgroups within a gang. Among the Puente gang cliques were Perth, Dial and Ballista (named after streets in La Puente).

Detective Lusk identified both defendants in court. He had had about 20 to 30 past encounters with defendant Gonzales and about five to 10 past encounters with defendant Soliz. In Lusk’s opinion, both defendants were members of the Perth Street clique of the Puente gang and had been so continuously from at least 1990 to the time of the trial, which included the year 1996, when the Eaton and Skyles and Price murders were committed. Both defendants had several tattoos on their bodies indicating their Puente gang membership.

In Lusk’s opinion, the Hillgrove Market robbery murder was a good example of a crime that enhanced both an individual gang member’s reputation within the gang, and the gang’s reputation within the gang hierarchy. Because this was a particularly violent crime, the person who committed it would be regarded as a “vato loco” (crazy guy), which would enhance his reputation. In Lusk’s opinion, the murders of Skyles and Price were probably a gang retaliation killing motivated by the earlier killing by Crips gang members of Billy Gallegos, a Puente gang member.

According to Lusk, whether Skyles and Price had actually been involved in the Gallegos murder, or whether they were actually members of the Crips gang or any street gang was irrelevant. Victims of gang retaliation shootings are targeted for being found within the general area of the rival gang, for being of a certain race, and for wearing a certain style of clothing. In Lusk’s opinion, a gang member who only provided backup for a shooting might brag to another gang member and take credit for being the actual shooter.

The gang member providing backup would consider himself part of the crime because he was there to provide aid and to make sure his partner did what he was supposed to do. 2. Defense Case Neither defendant testified in his own defense. Gonzales rested without presenting any evidence on his behalf. In an effort to cast doubt on the eyewitness identifications, counsel for Soliz called Sergeant Holmes, who had been an investigating officer in the case from the beginning.

Sergeant Holmes testified that photographs of the crime scene, taken from the perspective of the various witnesses to the shootings, had been made several hours after the incident, no later than 4:00 a.m., while it was still dark. Sergeant Holmes further testified that when he prepared the photographic lineup pack that included Soliz’s photograph, he selected individuals who had short hair like Soliz for the other photographs in the pack. B. Penalty Phase There were two penalty phases.

In the first, as to Gonzales the jury returned a verdict of life without the possibility of parole for the murders of Skyles and Price (counts 4 and 5) and hung on penalty as to the murder of Lester Eaton (count 1). As to Soliz, the jury hung on penalty as to all of the murder counts. A new penalty retrial jury was empanelled, which returned a verdict of death for Gonzales for the Eaton murder and a verdict of death for Soliz for the Skyles and Price murders. 1.

Prosecution Case In the penalty retrial, the prosecution presented all the witnesses it had presented in the guilt phase in order to convey the circumstances of the crime to the new penalty jury. In addition, the prosecution presented the following evidence in aggravation. a. Victim Impact Evidence Betty Eaton, wife of murder victim Lester Eaton, testified about her husband’s role in the community and the devastating effect his murder had on her and her family. Lester often gave credit to his customers who were short on cash, even though he was not repaid in many instances.

He sponsored local youth sports teams and the local high school band. Betty Eaton struggled to keep the market going and was constantly tormented by memories of her husband and how he was killed. b. Other-crimes Evidence as to Gonzales On March 11, 1990, when Gonzales was 13 years old, he robbed a gas station with his cousin. Gonzales carried a knife and his cousin carried a gun. They took money from the gas station employees as they were preparing to count it at the end of the shift. Gonzales confessed to an officer investigating the crime, and his fingerprints matched those taken from the crime scene.

On January 4, 1998, while Gonzales was incarcerated at the Los Angeles County Men’s Central Jail, a search of his cell revealed a sharpened four-inch metal shank inside an envelope addressed to Gonzales. The possession of a shank by an inmate is illegal. The parties stipulated that Gonzales was convicted on October 5, 1995, of felony possession of a controlled substance. c. Other-crimes Evidence as to Soliz On October 16, 1997, in the Los Angeles County Men’s Central Jail, a deputy sheriff responded to a fire on one of the cellblock rows.

The fire was fueled by a burning newspaper and a smoldering mattress in the back of the row, and had spread to four cells. Several inmates, including Soliz (whom the deputy identified in court), threw paper onto the fire to keep it going. When the deputy attempted to extinguish the fire using a fire extinguisher, these same inmates, including Soliz, pelted him with fruit and full milk cartons. Deputies eventually put out the fire with a fire hose.

On two separate occasions in 1998, while Soliz was incarcerated at the Men’s Central Jail, sheriff’s deputies discovered several razors and altered razors in his single-man cell. These items are contraband in the jail, as razors can be fastened to a toothbrush or pencil and used as a slashing device. It was stipulated that on November 10, 1992, Soliz was convicted of the felony of the unlawful driving or taking of a vehicle. 2. Defense case a. Gonzales

(1) Testimony of Gonzales Against the advice of counsel, Gonzales testified on his own behalf. At the time he testified (in 1998), he was 22 years old. He had joined the Perth Street clique of the Puente gang when he was 13 or 14 years old and had been shot when he was almost 15. Gonzales had had a happy childhood with his family. Although several of the people he hung around with in the neighborhood belonged to gangs, no one forced him to join a gang. He testified that he planned only to rob the Hillgrove Market, not to murder anybody there.

He entered the market with a gun, walked straight to the back, and demanded money from Lester Eaton. He saw Eaton reach for his gun and the two started wrestling. They were both on the ground, each with a gun, and Gonzales’s mind went “blank” and he “kept shooting.” Afterwards, Gonzales “felt bad” about what happened. He acknowledged that he appeared to be bragging about the murder in his taped conversation with Salvador Berber, but stated that was because he could not look like a coward in front of Berber, a fellow gang member.

He stated that he had not apologized personally to Eaton’s family and friends, but that he would like to apologize because he felt bad and it was always on his conscience. Gonzales testified he was the one who had shot Skyles and Price at the gas station. When he had first seen them as he was driving by, he thought he recognized them, and he wanted to talk to them about the gang-related killing of a friend that had occurred in the previous couple of weeks. Gonzales got out of the car to talk to Skyles and Price, but Soliz remained in the car.

An argument started, and Gonzales thought one of them was reaching for a gun, so he shot both of them. He now felt bad about it. On cross-examination by the prosecutor, Gonzales gave the following testimony: Soliz was with him at the Hillgrove Market robbery murder. Gonzales had a .38-caliber revolver and Soliz had a nine-millimeter handgun. “Clumsy” drove the van, a stolen vehicle abandoned after the robbery. Richard Alvarez waited for them down the street to drive them away after they abandoned the van. Gonzales acknowledged he had taken away Eaton’s gun before shooting him.

Gonzales maintained, however, that he had fired all the shots in the heat of the moment: “I just went blank and kept shooting.” He acknowledged that after the murder he had “part[ied] for a couple of days” but maintained he felt bad about the killing at the time. When Gonzales approached Skyles and Price at the gas station, he wanted to talk to them about the murder of Billy Gallegos, who had been a friend of Gonzales and a member of the Ballista clique of the Puente gang.

The word on the street, which Gonzales had heard, was that Gallegos had been shot by two African-American gang members from the Neighborhood Crips gang. Gonzales shot Skyles and Price with a nine-millimeter gun, the same gun Soliz had carried at the Hillgrove Market robbery and murder but which Soliz had returned to him a couple of weeks before the murder of Skyles and Price. Counsel for defendant Soliz cross-examined Gonzales further about the Skyles and Price shootings. Gonzales reiterated that he alone got out of the car and shot Skyles and Price with the nine-millimeter gun.

When he approached Skyles and Price, Gonzales “knew” they were gang members, and he thought it likely they had heard something about the Billy Gallegos murder, although he did not necessarily think they had been involved. Gonzales took his gun with him for protection. The conversation started out civilly enough with each asking the other where they were from. Then they said, “Fuck Puente,” and made a move that made him think they had a gun. He reacted by shooting both of them. On recross-examination, the prosecutor asked Gonzales why he fired a total of 11 shots at Skyles and Price.

Gonzales first stated the trigger of his semiautomatic gun had been rigged, turning it into an automatic weapon, and that one pull produced continuous shots. After the trial court took judicial notice that it was physically impossible to rig a semiautomatic weapon in the manner Gonzales described, Gonzales stated he had kept pulling the trigger, but did not remember how many times. He shot Skyles and Price while they were falling, but not after they hit the ground.

(2) Family and Friend Testimony Several of Gonzales’s family members and a neighbor testified about Gonzales’s good side and expressed the hope that he would receive a life sentence. Gonzales’s mother, Edna Gonzales, testified that through junior high school, Gonzales received good grades and was close to her. During junior high school he joined a gang. She visited him every week in jail, and he wrote her letters, including a poem for Mother’s Day. Gonzales’s sister, Valerie Gonzales, testified that when Gonzales was young he liked to play football.

When he was 14 years old, he joined a gang and was later shot and taken to the hospital. She and her seven-year-old daughter visited him every week in jail and he wrote to them. Gonzales’s sister, Francis Ontiveros, testified that Gonzales would sometimes take care of her daughter, who had Down Syndrome, while Francis was at work. Her daughter loved him, and Francis took her to visit him in jail. David Gonzales, Jr., Gonzales’s nine-year-old nephew, expressed his love for his uncle and described how he frequently talked to him on the phone.

William Marmolejo, one of Gonzales’s neighborhood friends, testified that he played sports with Gonzales while they were growing up together. Marmolejo’s younger brother encouraged Gonzales to join a gang. Marmolejo believed Gonzales had a good side and was pushed into a life of crime. b. Soliz Soliz did not testify on his own behalf. Several family members and a coworker testified about his good side and expressed the hope that he would receive a life sentence. Soliz’s mother, Irene Atizóla, testified that she was a single mother and raised Soliz together with his two sisters and two brothers.

As a child he had a variety of pets and was very good with his animals. She was very close to Soliz as a child, but their relationship grew more distant when he was in high school and he joined a gang at the age of 15. Soliz’s fiancée, Luz Jauregui, testified that she was 21 years old and had been romantically involved with Soliz for over three years. She described him as a very supportive and loving person.

He was not involved with a gang during the three years they had been together, although she acknowledged in cross-examination that the murders of Lester Eaton and Skyles and Price had taken place during this time period. Soliz’s older brother, Tony Diaz, worked full time as a machinist and part time as an ordained minister. Diaz felt he had been a bad influence on Soliz as an older brother, and described how it was Soliz who initially helped Diaz get involved with the church.

Diaz described Soliz as capable of showing loyalty and love, and believed Soliz could learn from his mistakes and be a help to other men in prison. Soliz’s cousin Danny Laura testified that he grew up in the same neighborhood with Soliz and they were very close. Danny was aware that Soliz had joined a gang, but Soliz never behaved differently towards him. Soliz’s cousin Steve Laura (Danny Laura’s younger brother) testified that he also grew up with Soliz and was close to him. Soliz had helped him avoid joining a gang because Soliz expressed negative views about gangs.

In Steve’s opinion, Soliz became part of a gang because so many of his friends were involved that it “overcame him.” Michael Landerman worked with Soliz at a machine shop for two to three years, from approximately 1989 to 1991, and they were friends. Soliz was very helpful to Landerman in training him, and Landerman believed that Soliz would be helpful in prison to other prisoners. Nancy Cowardin, who held a Ph.D. in educational psychology, examined Soliz on two separate occasions in April 1998.

She assessed him for learning disabilities but found no signs of attention deficit disorder, and she characterized his intellectual abilities as above average. She administered the Kohlberg moral reasoning test, which presents three moral dilemma scenarios. Based on Soliz’s answers, she assessed him at stage three, which is the lower of the two average adult American stages of moral reasoning. II. Discussion A. Pretrial Issues 1. Denial of Severance Motions Defendants filed pretrial motions to sever count 1 (the Eaton murder) from counts 4 and 5 (the Skyles and Price murders).

Defendants contend the trial court erred in denying their motions to sever the two sets of murder counts and thereby violated their federal due process rights and corresponding rights guaranteed by the California Constitution. As we conclude below, the trial court properly denied the motions.

Section 954 provides that “[a]n accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts . . . ,” and that “the court ... in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately . . . .” Defendants’ murder counts were of the same class and, accordingly, joinder was permissible. (People v.

Catlin (2001) 26 Cal.4th 81, 110 [109 Cal.Rptr.2d 31, 26 P.3d 357].) We review a trial court’s decision not to sever counts for abuse of discretion based on the record when the motion was heard. (People v. Cook (2006) 39 Cal.4th 566, 581 [47 Cal.Rptr.3d 22, 139 P.3d 492].) But even 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 resulted in gross unfairness depriving the defendant of due process of law. (People v.

Rogers (2006) 39 Cal.4th 826, 851 [48 Cal.Rptr.3d 1, 141 P.3d 135].) The party seeking severance has the burden to establish a substantial danger of prejudice requiring the charges to be separately tried. (People v.

Catlin, supra, 26 Cal.4th at p. 110.) Refusal to sever may be an abuse of discretion where (1) evidence of the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a “strong” case or with another “weak” case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. (Ibid.) If evidence on each of the joined crimes would have been admissible in a separate trial of the other crimes, then such cross-admissibility ordinarily dispels any inference of prejudice. (Ibid.) As to the first factor, one very significant piece of evidence was cross-admissible.

A live nine-millimeter round found in the getaway van used in the Hillgrove Market robbery murder showed the same magazine markings as the expended shells found at the scene of the Skyles and Price murders. This evidence showed that the same gun, and thus inferentially its bearer, was present at both of the murders. As to the second factor, defendants contend the murders of Skyles and Price were particularly inflammatory because the killings had racial overtones.

The evidence at trial, however, indicated that Skyles and Price were targeted because they fit the profile of members of a rival gang that is predominantly African-American; no evidence was presented they were killed because of racial animus per se. Both sets of murders were reprehensible and senseless in their own ways—the shooting of an elderly neighborhood grocer during the course of a robbery and the shooting of two teenagers as retaliation for a gang murder to which they apparently had no connection. Neither crime, however, was significantly more inflammatory than the other.

As to the third factor, each defendant contends the murder count in which the prosecutor theorized him to be the aider and abettor was a “weak” case. Thus, Soliz contends the evidence against him as an aider and abettor in the Hillgrove Market robbery murder was weak, and Gonzales argues the evidence against him as an aider and abettor in the Skyles and Price murders was weak. But the strength of the evidence supporting each set of murders was similar. In the Hillgrove Market robbery murder, Dorine Ramos testified she saw both defendants preparing for the robbery, and she identified the getaway van they used.

Betty Eaton testified two men robbed the market about 7:30 p.m. and one of them killed her husband. Richard Alvarez testified he received a call from Gonzales on the evening of the murder and picked up both defendants near the market between 7:00 and 8:00 p.m. In his taped conversation with Salvador Berber, Gonzales admitted that defendants committed the robbery murder and that he, Gonzales, had been the shooter. Physical evidence linked the van to the Hillgrove Market robbery murder, and Gonzales’s fingerprint was found in the van.

In the Skyles and Price murders, Judith Mejorado, a passenger in the car in which defendants rode to the gas station, testified that both defendants got out of the car and confronted the victims, and that Soliz was the shooter. Carol Mateo, who was driving by the gas station at the time of the shootings, and Alejandro Garcia, the clerk on duty at the gas station, testified they saw two men standing outside of the car and identified Soliz as the shooter.

In his taped conversation with Berber, Gonzales admitted he and Soliz were at the gas station, although, contrary to the prosecutor’s theory of the case, Gonzales claimed sole responsibility for the killings and denied Soliz was involved. As mentioned, a live round found in the getaway van used in the Hillgrove Market robbery murder showed the same magazine markings as the expended shells found at the scene of the Skyles and Price murders, thus providing a physical evidentiary link between the two sets of murders.

As to the fourth and final factor, as defendants acknowledge, both sets of murders were capital counts (the Hillgrove Market murder as involving a robbery-murder special circumstance, and the Skyles and Price murders as involving a multiple-murder special circumstance). Either set of murder counts would have exposed defendants to the death penalty even had the counts been severed.

Examining the four factors, therefore, we conclude the trial court did not abuse its discretion in denying the severance motions, and the joinder of counts did not result in gross unfairness depriving defendants of due process of law. (People v. Rogers, supra, 39 Cal.4th at p. 851.) 2. Denial of Motion to Suppress Gonzales’s Taped Statements As recounted above, fellow inmate and gang member Salvador Berber wore a wire, which recorded his conversation with Gonzales while the two were being transported in a sheriff’s van.

At the time he was tape-recorded, Gonzales was serving time at the Los Angeles County jail for felony possession of methamphetamine, having pleaded guilty to that offense. He had not yet been charged with either the Eaton murder or the Skyles and Price murders. In the taped conversation, Gonzales admitted his participation in both sets of murders. Gonzales contends the trial court erred in denying his motion under

section 1538.5 to suppress his taped statements to Berber on the grounds he (1) was subjected to custodial interrogation by Berber without being advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602], and (2) was questioned in the absence of counsel in violation of Massiah v. United States (1964) 377 U.S. 201 [12 L.Ed.2d 246, 84 S.Ct. 1199]. For the reasons discussed below, we reject both contentions.

In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply the rule to the facts in order to determine whether the law as applied has been violated. (People v.

Hoyos (2007) 41 Cal.4th 872, 891 [63 Cal.Rptr.3d 1, 162 P.3d 528].) We review the trial court’s resolution of the factual inquiry under the deferential substantial evidence standard. (Ibid.) Selection of the applicable law is a mixed question of law and fact that is subject to independent review. (Ibid.) Gonzales renews on appeal the arguments he made in his suppression motion, which are based on undisputed facts. First, he contends Berber was acting as an agent for law enforcement and therefore was required to inform Gonzales of his Miranda rights (see Miranda v.

Arizona, supra, 384 U.S. at pp. 471-474) before eliciting incriminating statements from him. Assuming for the sake of argument that Berber was acting as an agent for law enforcement, we note the United States Supreme Court has rejected “ ‘the argument that Miranda warnings are required whenever a suspect is in custody in a technical sense and converses with someone who happens to be a government agent.’ ” (People v. Webb (1993) 6 Cal.4th 494, 526 [24 Cal.Rptr.2d 779, 862 P.2d 779], quoting Illinois v.

Perkins (1990) 496 U.S. 292, 297 [110 L.Ed.2d 243, 110 S.Ct. 2394].) As the high court has explained, “Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect’s misplaced trust in one he supposes to be a fellow prisoner.” (Illinois v. Perkins, at p. 297.) Although Gonzales misplaced his trust in confiding in Berber, his tape-recorded statements were voluntary and free of compulsion. Consequently no Miranda warnings were required. (Webb, at p. 526.) Second, Gonzales argues he was questioned in counsel’s absence in violation of Massiah v. United States, supra, 377 U.S. 201.

But at the time Gonzales spoke with Berber, he had not yet been charged with either the Eaton murder or the Skyles and Price murders, and thus no counsel had been appointed. Even assuming Gonzales was still represented by counsel in the methamphetamine case, in which he had already pleaded guilty and begun to serve a sentence, his Massiah argument still fails: The Sixth Amendment right to counsel is offense specific. (People v.

Carter (2003) 30 Cal.4th 1166, 1210 [135 Cal.Rptr.2d 553, 70 P.3d 981].) Alternatively, Gonzales argues that rule 2-100 of the California Rules of Professional Conduct prohibits a lawyer from communicating with another party in a case without the consent of the other party’s lawyer, and the prosecutor violated this rule by having his agent Berber communicate with Gonzales. We have, however, previously rejected the argument that rule 2-100 applies to this situation. (People v. Maury (2003) 30 Cal.4th 342, 408-109 [133 Cal.Rptr.2d 561, 68 P.3d 1] [addressing Cal. Rules Prof. Conduct, former rule 7-103].) 3.

Denial of Keenan Counsel Gonzales’s trial counsel moved for the appointment of a second attorney pursuant to

section 987, subdivision (

d) and Keenan v. Superior Court (1982) 31 Cal.3d 424 [180 Cal.Rptr. 489, 640 P.2d 108]. Counsel supported the motion with the following declaration: “I am representing John Gonzales in the above numbered case and it has become evident after the preliminary hearing that there are both serious issues for the guilt and penalty phases of this trial. It is therefore necessary for the court to allocate funds to cover the cost of a second attorney to handle different parts of both phases of this trial.” The judge assigned to handle

section 987.9 motions denied the motion, stating, “The application fails to provide any specific or compelling reasons requiring the assistance of additional counsel.” Gonzales contends the trial court’s denial of the motion was an abuse of discretion. As we explain, the trial court did not abuse its discretion.

Section 987, subdivision (

d) provides in relevant part: “In a capital case, the court may appoint an additional attorney as a cocounsel upon a written request of the first attorney appointed. The request shall be supported by an affidavit of the first attorney setting forth in detail the reasons why a second attorney should be appointed.” As Gonzales acknowledges, a defendant is entitled to the appointment of a second attorney only if he or she can present “specific, compelling reasons” for the appointment. (Keenan v. Superior Court, supra, 31 Cal.3d at p. 429, citing People v.

Jackson (1980) 28 Cal.3d 264, 288 [168 Cal.Rptr. 603, 618 P.2d 149].) As Gonzales further acknowledges, we upheld the denial of a similar application in People v. Staten (2000) 24 Cal.4th 434, 446-448 [101 Cal.Rptr.2d 213, 11 P.3d 968]. Our explanation there also applies here: “No abuse of discretion appears. Defendant’s application, consisting of little more than a bare assertion that second counsel was necessary, did not give rise to a presumption that a second attorney was required; he presented no specific, compelling reasons for such appointment.” (Id. at p. 447.) 4.

Denial of Funds for a Second Investigator Gonzales’s trial counsel filed a confidential motion under

section 987.9 for the appointment of a penalty phase investigator. He requested the appointment of Joel A. Sickler and authorization for $5,000 to pay for his services at a rate of $50 per hour.

Counsel declared that Gonzales was indigent, that he was charged with three counts of murder in a capital case, that the investigative files provided to the defense by the prosecution were voluminous, and that the funds requested were “reasonably necessary for the preparation and presentation of the defense in this case.” The trial court denied the motion in a written order, stating: “The motion for defense expert examination has been read, considered and denied. The Court has already appointed one investigator in the case at the standard rate of $25 per hour.

There is no good cause why a second investigator should be appointed at twice the authorized rate or why the current investigator cannot perform the necessary work.” Gonzales contends the trial court abused its discretion in denying him funds to appoint a second investigator. As we conclude below, the trial court did not abuse its discretion.

Section 987.9, subdivision (

a) provides in relevant part: “In the trial of a capital case ... the indigent defendant, through the defendant’s counsel, may request the court for funds for the specific payment of investigators, experts, and others for the preparation or presentation of the defense. . . . Upon receipt of an application, a judge of the court, other than the trial judge presiding over the case in question, shall rule on the reasonableness of the request and shall disburse an appropriate amount of money to the defendant’s attorney.” The defendant has the burden of demonstrating the need for the requested services. (People v.

Guerra, supra, 37 Cal.4th at p. 1085.) Although the trial court should view a motion for assistance with considerable liberality, it should order the requested services only upon a showing they are reasonably necessary. On appeal, a trial court’s order on a motion for ancillary services is reviewed for abuse of discretion. (Ibid.) Gonzales contends the trial court’s refusal to appoint a second investigator “resulted in an imbalance between the prosecution and the defense” because the prosecutor had four investigators and he had only one.

Counsel did not explain in connection with his motion, however, and defendant still does not explain on appeal, why the investigator already appointed could not provide any necessary assistance or how additional resources might have changed his penalty phase defense. As a result, defendant failed to carry his burden to show that additional funding was reasonably necessary, and the trial court properly exercised its discretion to deny the motion. (People v. Guerra, supra, 37 Cal.4th at p. 1085.) 5.

Asserted Tainting of Jury Panel In describing the case to a panel of prospective jurors, the trial judge mistakenly mentioned a special circumstance allegation of intentional killing because of race within the meaning of

section 190.2, subdivision (a)(16), which had been included in the original information but was subsequently stricken in pretrial proceedings. Soliz, joined by Gonzales, contends (1) that the trial court erred in denying a defense motion to dismiss the entire panel predicated on the remark, and (2) that evidence of gang motivation for the murders of Skyles and Price later presented at trial aggravated the prejudicial effect of the remark, resulting in a violation of defendants’ constitutional rights. As explained below, we conclude the trial court’s remarks did not constitute reversible error.

Soliz contends the trial court’s erroneous reference to a racial motivation for the killings infected the trial with unfairness, making the resulting conviction a denial of due process. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643 [40 L.Ed.2d 431, 94 S.Ct. 1868].) We do not see the trial court’s remarks as rising to this level. Soliz does not deny that about a week later, when the first panel of prospective jurors returned to the courtroom after submitting their questionnaires, the trial court correctly summarized the charges and allegations without mentioning the former allegations of racial motivation.

Soliz contends, however, that the prejudicial effect of the trial court’s remark was aggravated by the prosecutor’s later presentation at trial of evidence that the killing of Skyles and Price was gang related. As recounted, the prosecution’s expert witness on gangs, Detective Lusk, testified that the murders of Skyles and Price were probably gang retaliation killings motivated by the earlier killing of Billy Gallegos, a member of the Hispanic Puente gang, by members of the Neighborhood Crips, an African-American gang.

Lusk testified that victims of gang retaliation shootings are targeted for being within the general area of the rival gang, for being a certain race, and for wearing a certain style of clothing. Soliz cites Dawson v. Delaware (1992) 503 U.S. 159, 165 [117 L.Ed.2d 309, 112 S.Ct. 1093], for the proposition that to allow evidence of racism that has no relevance to the proceedings in a capital case is federal constitutional error.

In Dawson, the high court held that the defendant’s constitutional rights were violated when, at the penalty phase of his capital trial, the prosecutor introduced a stipulation that the defendant belonged to the Aryan Brotherhood prison gang.

The court held this evidence was not relevant to prove any aggravating circumstance and proved nothing more than the defendant’s abstract beliefs. (Dawson, at pp. 166-167.) In the case before us, Soliz contends Lusk’s testimony was evidence that Skyles and Price were intentionally killed because of their race, despite the striking of the race-motivation special-circumstance allegation. Lusk, however, did not state that Skyles and Price were killed because of their race.

Rather, his testimony was that they might have been targeted because they fit the profile of a rival gang member, one element of which was being African-American. The evidence presented at defendants’ trial was therefore distinguishable from the irrelevant evidence of racial prejudice criticized by the high court in Dawson. We therefore reject defendants’ contention that the trial court’s mistaken reference to the stricken special circumstance so infected their trial with unfairness that it denied them due process of law.

The trial court’s reference was brief, was subsequently corrected, and was not aggravated by later events at trial. 6. Asserted Lack of Jurisdiction for First Degree Murder Soliz, joined by Gonzales, contends the trial court lacked jurisdiction to try defendants for first degree murder because the information cited only

section 187, subdivision (a), which encompasses only second degree malice murder. We have previously rejected this argument, as Soliz acknowledges, and we decline his invitation to revisit our prior holdings. (People v. Whisenhunt (2008) 44 Cal.4th 174, 222 [79 Cal.Rptr.3d 125, 186 P.3d 496]; People v. Hughes (2002) 27 Cal.4th 287, 368-370 [116 Cal.Rptr.2d 401, 39 P.3d 432].) B. Guilt Phase Issues 1. Wrongfully Admitted Evidence of Threats Against Witnesses Judith Mejorado had been present at the gas station during the murders of Skyles and Price.

In his testimony about his interview with her, Deputy Sheriff David Castillo testified that after the interview Judith had expressed concerns about her brother. When the prosecutor asked Castillo about the basis for Judith’s concern, counsel for Gonzales objected on the ground of relevance. The court ruled that the question pertained to the circumstances of the witness’s statement and overruled the objection, whereupon Castillo testified that Judith had said she was concerned for her brother’s safety from the people involved in the incident.

Salvador Berber had worn a wire and recorded his conversation with Gonzales while the two were being transported in a sheriff’s van. Berber entered into a plea bargain that required him to testify in defendants’ case. When the prosecutor asked Berber whether, as part of his plea agreement, he had been relocated out of Los Angeles County, counsel for Gonzales objected on the ground of relevance. The trial court overruled the objection, stating that the relocation was part of the plea agreement and the jury should appropriately know all of the agreement’s circumstances.

Soliz, joined by Gonzales, contends the trial court erred in admitting, over defense objections, the foregoing statements by Judith and Berber. Defendants base their claim of error on cases in which threats to witnesses were admitted as evidence of a defendant’s consciousness of guilt. As we have stated, “evidence that a defendant is threatening witnesses implies a consciousness of guilt and thus is highly prejudicial and admissible only if adequately substantiated . . . .” (People v.

Warren (1988) 45 Cal.3d 471, 481 [247 Cal.Rptr. 172, 754 P.2d 218].) Defendants contend that because no evidence here substantiated the supposed threats, the statements should have been excluded. We disagree with defendants’ premise that the statements are properly characterized as reporting threats. The statements do not repeat threats made by defendants towards Judith and Berber; at most, they suggest the two witnesses were afraid of defendants.

As we have stated, “[e]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible.” (People v.

Burgener (2003) 29 Cal.4th 833, 869 [129 Cal.Rptr.2d 747, 62 P.3d 1].) “An explanation of the basis for the witness’s fear is likewise relevant to [his or] her credibility and is well within the discretion of the trial court.” (ibid.) Here, Judith’s concern for her brother was part of the circumstances in which she made her statements, which in turn were relevant to her credibility and helped explain her initial reluctance to discuss the shootings with the investigating officers.

Likewise, the circumstances of Berber’s plea agreement were relevant to his credibility as a prosecution witness and, as the trial court stated in overruling the defense objection, the jury was entitled to know them. If the circumstances of his plea agreement also revealed Berber’s fear of defendants, then, as we stated in Burgener, at page 869, the circumstances were also admissible as evidence bearing on Berber’s credibility. The trial court did not err in overruling the relevance objections and admitting the statements. 2.

Exclusion of Prosecution Expert Witness as Expert Witness for the Defense Detective Scott Lusk, a homicide detective from the Los Angeles County Sheriff’s Department, testified as an expert witness for the prosecution concerning the Puente gang. Trial counsel for Soliz asked permission to call Lusk as his own witness and question him as an expert in photographic lineups on the issue of whether the photographic six-pack lineups had been properly prepared. The trial court denied the request as invading the province of the jury.

The trial court stated that counsel could argue the point that the lineups were improperly prepared, but could not ask Lusk to express his opinion as to whether they were unduly suggestive. Later, during the defense case, counsel for Soliz questioned Sergeant Holmes, the officer who prepared the photographic lineup of Soliz. Sergeant Holmes testified that in preparing it, he chose photographs of people who had hair like Soliz’s.

In response to counsel for Soliz’s question whether he would agree the photograph of Soliz showed the shortest hair of the six subjects in the lineup, Sergeant Holmes answered “no” and stated that two of the other subjects had the same length hair and the rest had hair slightly longer. Citing People v. McDonald (1984) 37 Cal.3d 351 [208 Cal.Rptr. 236, 690 R2d 709], Soliz, joined by Gonzales, contends the trial court erred in refusing to allow Lusk to be questioned as an expert on the photographic lineups used in the case.

In McDonald, we reiterated that “in the usual case the appellate court will continue to defer to the trial court’s discretion . . .” in excluding expert testimony. (Id. at p. 377.) We held, however, that it will ordinarily be error to exclude expert testimony on eyewitness identification when “eyewitness identification of the defendant is a key element of the prosecution’s case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury . . . .” (Ibid.) Initially, we note the record does not establish that Lusk had any particular expertise on the psychological factors involved in eyewitness identification.

The only basis Soliz’s counsel offered for soliciting Lusk’s opinion about photographic lineups was that Lusk was currently a homicide investigator, an assignment he had held for the previous six months out of his 18 years as a sheriff’s deputy, and that he had prepared some photographic lineups in that capacity. Lusk had not prepared any of the photographic lineups in defendants’ case. As recounted, the officer who had prepared the photographic lineup of Soliz, Sergeant Holmes, was examined by the defense about the procedures he followed.

Even assuming for the sake of argument that Lusk could be considered an expert on eyewitness identification, McDonald does not apply when an eyewitness identification is “substantially corroborated by evidence giving it independent reliability.” (People v. McDonald, supra, 37 Cal.3d at p. 377.) Here, Judith Mejorado’s identification of Soliz as the shooter constituted substantial, independent corroboration because she personally knew both defendants before the shootings, and her identification of Soliz was therefore not based on the challenged photographic lineup. 3.

Motions for Continuance and Mistrial Based on the “Struggle for the Gun” As described, Salvador Berber wore a wire and recorded his conversation with Gonzales while the two were being transported in a sheriff’s van. Gonzales in his tape-recorded conversation with Berber claimed sole responsibility for shooting Skyles and Price. During cross-examination, counsel for Soliz asked Berber whether Gonzales had made any gestures or had any expressions on his face when he described how he shot Skyles and Price.

Counsel then asked, “at what point was it that [Gonzales] indicated that he had a gun . . . ?” Berber answered: “That was the time in the—you can’t hear it on the tape—that he said that him and Jasper [Soliz] were struggling for the gun to, I guess, see who were gonna shoot the black kids.” During a break and outside the presence of the jury, counsel for Soliz moved for a continuance to obtain an expert to analyze the tape or, in the alternative, to strike Berber’s answer as unresponsive and to admonish the jury to disregard it.

The trial court denied the motion for a continuance but agreed to instruct the jury to disregard Berber’s statement about the struggle for the gun. Soliz then moved for a mistrial, which the court denied. Soliz, joined by Gonzales, contends the trial court erred in denying the continuance and the motion for a mistrial. Granting or denying a motion for midtrial continuance is within the sound discretion of the trial court, which must consider not only the benefit the moving party anticipates, but also the likelihood the benefit will result. (People v.

Fudge (1994) 7 Cal.4th 1075, 1105-1106 [31 Cal.Rptr.2d 321, 875 P.2d 36].) The trial court here did not abuse its discretion in denying the motion; it made the reasonable assessment that because of the loud road noise on parts of the tape no further conversation would be recovered through audio enhancement. In any event, the trial court struck Berber’s statement and admonished the jury to disregard it, which eliminated any prejudice to Soliz.

As to Soliz’s motion for mistrial, we have stated that a trial court should grant a mistrial only if the defendant will suffer prejudice that is incurable by admonition or instruction. (People v. Davis (2005) 36 Cal.4th 510, 553-554 [31 Cal.Rptr.3d 96, 115 P.3d 417].) A trial court has considerable discretion in its assessment of incurable prejudice. (Id. at p. 554.) Here, the trial court struck Berber’s testimony and properly admonished the jury.

Although Soliz asserts the admonitions were inadequate, we see no basis for the assertion and presume, as always, that the jury followed the court’s instructions. (People v. Panah (2005) 35 Cal.4th 395, 453 [25 Cal.Rptr.3d 672, 107 P.3d 790].) We therefore conclude the trial court did not err in denying Soliz’s motion for mistrial. 4. Restriction on Cross-examination of Gang Expert On direct examination, Detective Lusk, the prosecution’s gang expert, testified that a gang member will sometimes brag to another gang member and take credit for a crime he did not commit.

Lusk gave the following explanation: “It goes back to respect or fear or one’s ranking within the gang. The fact that you’re there and maybe you’re talking to somebody who was not there. It’s like embellishing. You know, I was there; well, take credit for the shooting also. And your ranking will move up within the gang.” Lusk’s testimony on this point therefore helped support the prosecution theory that Soliz shot Skyles and Price despite the fact Gonzales claimed sole responsibility in his taped conversation with Salvador Berber.

In an attempt to undermine Lusk’s testimony, counsel for Soliz sought to question Lusk on the significance of the purported fact that Soliz in his recorded jailhouse conversations never took credit for any of the shootings. The prosecutor objected to this line of questioning, and the trial court sustained the objection. Soliz, joined by Gonzales, now contends the trial court improperly restricted Soliz’s cross-examination of Lusk and thereby violated his constitutional right to present a defense. As we conclude below, the trial court did not err in excluding this line of questioning.

The line of questioning Soliz’s counsel proposed raised both an admissibility and a relevance issue. The prosecutor had introduced several tape-recorded jailhouse conversations of defendants, including one between Soliz and his fiancée, Luz Jauregui. Counsel, however, was proposing to question Lusk about all of Soliz’s recorded jailhouse conversations, not just those the prosecutor had introduced. Because Soliz’s recorded jailhouse conversations were admissible under Evidence Code

section 1220 only “when offered against the declarant,” that is, when offered by another party (Evid. Code, § 1220), counsel needed to articulate a theory of admissibility for those tapes not already introduced by the prosecutor. But neither at trial nor on appeal has Soliz done so. Rather, Soliz now frames the issue as whether the trial court improperly limited questioning on the tape that had already been admitted into evidence, namely, Soliz’s conversation with Luz Jauregui. In his conversation with Jauregui, Soliz referred to a newspaper

article on the Hillgrove Market robbery murder and stated: “It says . . . they got two more suspects. They haven’t found ’em yet? Damn, they got one of ’em right here. ‘But your honor, I’m a changed man.’ ” Soliz acknowledges his statement implies his involvement in the Hillgrove Market robbery, but contends that he made no admissions about being the shooter in either set of murders. This claim presents the relevance issue.

The court afforded Soliz latitude in questioning Lusk about his opinion that gang members sometimes take credit for crimes they did not commit, but properly sustained the prosecutor’s relevance objection to questioning that attempted to prove a negative, i.e., that because Soliz never claimed to have shot Skyles and Price, he did not shoot them. The absence of a confession has no bearing on guilt or innocence. 5. Sufficiency of the Evidence of First Degree Murder for the Killings of Skyles and Price Both defendants were convicted of the first degree murders of Skyles and Price.

The prosecution’s theory was that Soliz was the actual shooter and Gonzales an aider and abettor. Defendants contend that, even assuming Soliz shot Skyles and Price, the evidence does not support Soliz’s conviction for first degree murder under a theory of deliberate and premeditated murder, which was the only applicable theory of first degree murder. Gonzales separately contends that, assuming the evidence supported Soliz’s conviction for first degree murder, the evidence was insufficient to support Gonzales’s conviction as an aider and abettor.

As we conclude below, the evidence presented at trial supported both convictions. As noted, Judith Mejorado told police she was in the car with defendants when they drove by the gas station where Skyles and Price were standing. Defendants said they knew Skyles and Price and asked the driver to go back to the station so they could talk to them. Defendants got out of the car and approached them, with Gonzales staying closer to the car than Soliz. Gonzales had a gun in his possession, although he did not fire it. Judith heard both defendants arguing with Skyles and Price. She heard Skyles or Price say, “No.

I didn’t mean to do you that way. I’m sorry. I didn’t mean to do you that way.” Soliz responded with some statements and then shot Skyles and Price. When defendants reentered the car after the shootings, they told her: “You didn’t see nothing. You don’t know nothing.” Detective Lusk testified defendants were members of the Puente gang. In Lusk’s opinion, the murders of Skyles and Price were probably a gang retaliation killing motivated by the earlier killing by Crips gang members of Billy Gallegos, a Puente gang member.

Skyles and Price were wearing what looked like gang clothing and, in Lusk’s opinion, could have been targeted even if they did not in fact belong to a gang. Lusk testified that when a gang member stands “backup” for another gang member, this serves several purposes for the gang, e.g., to provide additional force in case the victim resists, or to encou

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