THE PEOPLE, Plaintiff and Respondent, v. RONNIE DALE DEMENT, Defendant and Appellant, 53 Cal. 4th 1

Opinion CHIN, J. Defendant Ronnie Dale Dement was convicted of oral copulation in a local detention facility and of the first degree murder of fellow inmate Greg Michael Andrews. (Pen. Code, §§ 187, subd. (a), 189, 288a, subd. (e).) The jury found true the special circumstance allegations of murder while engaged in the attempted commission of oral copulation and, in a separate proceeding, of a prior conviction of murder. (§ 190.2, subd. (a)(2), (17).) It returned a death verdict and the trial court entered a judgment of death. This appeal is automatic. (Cal. Const., art.

VI, § 11, subd. (a); § 1239, subd. (b).) For the reasons that follow, we affirm the judgment. I. Factual Background A. Guilt Phase 1. Prosecution evidence On April 9, 1992, Greg Andrews was found dead in the jail cell he shared with three other individuals, including defendant. Defendant was implicated in Andrews’s murder by the testimony of the other cellmates, defendant’s statements and actions before and after Andrews was attacked, and the testimony or statements of inmates who overheard parts of the attack. a.

Andrews’s arrival at the jail On April 8, defendant, whose nickname was “Pico,” shared cell No. 8 in the Fresno County jail with John Benjamin and Jimmie Lee Bond. That evening, he was in the jail dayroom standing next to inmate Anthony Williams. About 30 minutes before the inmates returned to their cells for the night, a group of new inmates, including Greg Andrews, appeared.

Referring to Andrews, defendant told Williams, “I hope they don’t move him in my cell.” He then said something to the effect of, “They move him in my cell, I’m going to do him” or “do his ass,” which Williams interpreted to mean defendant was going to kill Andrews. Andrews was assigned to a three-bunk cell occupied by defendant, Bond, and Benjamin. Defendant seemed upset about a fourth person being assigned to the cell. Defendant, Benjamin, and Bond inquired whether a mistake had been made placing Andrews in their cell because a cell in the tier immediately below them had only two occupants.

They were informed Andrews would remain in their cell. Inmate Bradley Nelson, a friend of Andrews’s, socialized with Andrews in the dayroom after Andrews had been assigned a cell. Andrews left to go to sleep. As Andrews started to go upstairs, Nelson saw defendant look at Bond, smile, and start hitting his fist into his hand. Nelson told Bond “they better leave [Andrews] alone because he was a friend of mine.” Inmate Eric Johnson heard defendant say he “was going to take care of the home boy that had just been put into his tank.” b.

The attack on Andrews After the cells' were locked for the night, Andrews, who was wearing only boxer shorts, put his mattress on the floor and went to sleep. Defendant, Bond, and Benjamin drank an alcoholic beverage called “pruno.” Sometime later, defendant told Benjamin and Bond he wanted to question Andrews about a woman they both knew, and that defendant “would know about him if he gave the wrong answers.” Defendant, who was wearing boxer shorts and sandals, began slapping Andrews in the face to wake him up.

Defendant then asked Andrews about defendant’s wife, “if he knew her, how good did he know her, things like that.” Andrews apparently acknowledged that he knew or had seen defendant’s wife. Defendant became angry, and began punching Andrews in the face, calling him a “piece of shit,” and stomping on his head. Benjamin and Bond told defendant to leave Andrews alone. Defendant started to remove Andrews’s boxer shorts, and when Andrews attempted to hold on to the shorts, defendant punched him, slapped him, and told him to put his hands down. Defendant ripped off the shorts.

Defendant called Andrews a “punk,” and said, “Watch him kiss my dick.” Defendant pulled his penis through the fly of his boxer shorts and ordered Andrews to kiss it. Andrews refused. Defendant told Andrews, “If you just kiss it, I’ll leave you alone.” Andrews kissed the head of defendant’s penis. Defendant said, “I ought to fuck him.” Defendant asked Bond and Benjamin if they wanted to “fuck” Andrews “or get their dicks sucked”; they declined. Defendant backed away from Andrews, and said, “I told you he was a punk, a piece of shit,” and, “I ought to kill you.” Defendant started punching and kicking Andrews.

Bond unsuccessfully tried to pull defendant away from Andrews. Defendant began slamming Andrews against the cell lockers, and Bond again unsuccessfully tried to stop him. Defendant continued hitting Andrews, “slinging him into the locker, throwing him on the ground, [and] stomping on him.” Andrews yelled, “Leave me alone. Why are you doing this to me?” Defendant then grabbed a towel and wrapped it around Andrews’s throat, pulling on both ends of the towel. Defendant said he was going to kill Andrews, and that it was people like Andrews who caused the death of his mother.

Andrews passed out, but was still breathing. Bond pulled defendant off Andrews, and defendant told Bond “to stay out of it and mind [his] own business, that the same thing could happen to [him].” Benjamin pushed a call button to alert an officer to contact the cell. An officer’s voice came over the speaker in the cell, defendant told Andrews to be quiet, and yelled out, “What time is it?” The officer informed defendant of the time, the two may have exchanged another word or two, and the conversation ceased. Defendant then choked Andrews with the towel, which was still wrapped around his neck, a second time.

Bond and Benjamin unsuccessfully attempted to intervene. Andrews passed out again. Defendant let go of Andrews, saying, “I killed him.” Bond became “real emotional” and told defendant, “You killed him. You killed him,” but Benjamin could see Andrews was breathing. Benjamin said, “No, he’s alive, he’s not dead. You guys didn’t kill him. It’s all right.” Defendant then jumped back onto Andrews and choked him a third time. Finally, defendant said, “Fuck it, I’m through with it,” and released the towel. Benjamin now thought Andrews, whose face color began to darken, was dead.

Defendant instructed Bond and Benjamin to clean up the cell. Andrews was placed on a mattress, covered with a blanket, and moved underneath the bottom bunk. The cellmates wiped up blood and flushed boxer shorts and towels down the toilet. Defendant also told them that “when the police ask about it, just to say that him and Mr. Andrews got in a fight and that we went to bed and we didn’t know what happened.” About 40 minutes to an hour after the third choking, the cell doors were opened for breakfast. Defendant, Bond, and Benjamin exited the cell.

Defendant later told Bond and Benjamin “not to say anything ... or something would happen to us.” Bond and Benjamin subsequently returned to the cell, shut the door, pushed the call button, and notified the officer that there was a body in the cell. A responding jail nurse testified that when she examined Andrews there was a towel wrapped around his neck and he had no heartbeat or pulse.

During the night of April 8 to 9, inmate Albert Martinez heard “somebody calling for help, screaming ‘Just leave me alone,’ and . .. what sounded like a body being thrown against a wall and the toilet.” Martinez also heard a voice call out something to the effect that “he wanted to fuck him and stuff.” Nelson heard fighting, and heard Andrews plead, “Somebody, please get me out of this cell,” and later say, “You might as well go ahead and kill me.” c. Evidence after the attack on Andrews Nelson went to Andrews’s cell to wake him for breakfast.

He discovered Andrews was dead, and returned to his cell, informing his cellmates of what he had observed. Defendant arrived at Nelson’s cell. Defendant was aware Nelson had been in cell No. 8, “was mad,” and “told me to stay the fuck out of his cell.” Defendant then asked Nelson if he would help him drag the body out of the cell onto the tier. Nelson declined. Defendant knew Nelson and Andrews had been friends, and said that if Nelson said anything, he would be dead. Defendant placed his left hand on Nelson’s chest and with his right hand drew his finger across Nelson’s throat.

Williams testified that as soon as the cell doors were opened for breakfast, he observed defendant calmly “going from cell to cell letting everybody know if they got any knives or weapons, to get rid of them because he had killed a guy upstairs.” Inmate Martinez, who was an acquaintance of defendant’s, heard defendant bragging about having “killed the punk.” Defendant visited Martinez’s cell and asked Martinez to help him drag a body downstairs. Martinez declined. Martinez later heard defendant ask other inmates to remove the body from his cell, and heard defendant describe the attack on Andrews.

Defendant said he beat Andrews, and Martinez was “pretty sure [defendant] mentioned that he was choking him, strangling him.” Martinez heard defendant say that “he was trying to go up in the guy,” which Martinez said meant, “trying to fuck him.” Martinez was uncertain whether defendant said “he had fucked the guy” or that “he had killed him because he didn’t want to let him fuck him.” According to Martinez, defendant told him and other inmates that if he “got rolled up, the two people that knew what had happened were his two cellies and that they needed to do something to him.” On the morning Andrews’s body was found, Criminalist Michael Giberson physically examined defendant.

There was a one-and-one-half-inch-diameter red and swollen area on defendant’s right middle knuckle and an abrasion and cut on the “web” portion near his right thumb. The back of the web on his left hand also bore a small abrasion. The outside edge of his right big toe was bruised and there was a bruise on his left shin about six inches below the knee. Fresno County Sheriff’s Office Detective Bradley Christian accompanied defendant to the hospital so that he could receive medical treatment for his injured hand.

During informal conversation, Christian mentioned defendant’s wife and a friend of hers named Tom Rutledge. Defendant said he knew Rutledge, that he and Rutledge were enemies, and that Rutledge had disrespected him. Defendant subsequently asked Christian “what the name of the subject was that had gone to sleep.” Christian said, “Greg Andrews.” Defendant nodded his head and said, “He was a friend of Tommy’s.” In March and April 1993, defendant sent inmate Trinidad Ybarra “kites,” or jailhouse letters, portions of which were read to the jury. (See post, pt.

II.B.3.) In the kites, defendant appeared to admit responsibility for Andrews’s murder. An autopsy revealed blunt trauma injury to Andrews’s head and body. Four of his ribs had been fractured by blunt trauma; these injuries were more consistent with a kick than with a blow from a fist. His frenulum, or the tissue attaching the upper lip to the jaw area, was tom, and his hands bore defensive wounds. There was a horizontal abrasion on the front and sides of his neck. The blunt trauma injury contributed significantly to Andrews’s death, but the cause of death was ligature strangulation. 2.

Defense evidence Donald Moore, Anthony Williams’s parole agent, testified that he had advised Williams that if a subpoena were issued for defendant’s Fresno trial, it would be in Williams’s best interest to satisfy his obligations under the subpoena before moving to Southern California.

Once Moore learned Williams was going to have to testify, Moore told Williams that “as soon as he got finished testifying . . . , he could come back to my office and we’d go ahead and give him the paperwork and he could head on down to Palmdale.” Moore wrote a note in Williams’s file that read: “ ‘Advised would not release suspect to Palmdale area if he did not cooperate with their investigation.’ ” The note, however, referred to a conversation Moore had with the district attorney’s investigator. Moore did not tell Williams he could not go to the Palmdale area unless he cooperated. Dr.

Eric Hickey, a criminologist at the California State University, Fresno, testified as an expert concerning prison argot, or slang. According to Dr. Hickey, prison slang included a great deal of machismo and bravado, and it was very common for inmates to exaggerate or falsify their past exploits in order to attain status. “No one wants to appear to be weak in an institution because the weaker ones are the ones who are preyed upon.” Dr. Hickey testified that the term “tag” had a variety of meanings. These included to kill, physically assault, or hurt an individual in some way.

If used in reference to a family member, it could mean to silence that individual so he would not speak about other offenses. If used in reference to a stranger, it could mean to let that individual know the speaker is in charge, or is the boss, perhaps by a sexual assault. The term “I’m going to do him” could have a sexual connotation. The term “punk” usually meant “somebody who is used sexually, he’s owned by another inmate, . . . sometimes shared or sold to other inmates.” Dr.

Hickey also testified that although the threat of sexual attack is used to intimidate another inmate, there may be no intent to actually commit such an assault. Sexual assaults were sometimes used to punish a fellow inmate. Dr.

Hickey agreed with defense counsel that depending on the relationship between two inmates, inmates can use kites to “try to puff themselves up and . . . make themselves more . . . fearsome than they already are.” If the writer is friends with the recipient of the kite, “he may say very confidential things to him.” If the writer is just an acquaintance, “he may say things which are somewhat embellished.” Fresno County Sheriff’s Office Detective Linda Lee testified that on April 9, 1992, the day Andrews’s death was reported, she interviewed Anthony Williams.

Williams indicated he did not want to say anything unless Lee could help him with his case. Lee did not make a deal with him. After further conversation, Williams said he was not going help Lee unless she helped him, and that he knew who had committed the crime but would not tell her. Lee explained she was not in a position to help Williams. In June and July 1994, Irvin Basquez was at times in a holding cell in the court building in which defendant’s trial was being held.

On one such occasion in the week or two before Basquez’s testimony, a man who had short hair and a mustache coming down the sides of his mouth was being held in the cell next to Basquez’s. The man was yelling loudly at police officers and identified himself as “Bond.” Some female inmates were brought through and one of the women asked Bond, “What are you in here for?” Bond replied, “Killing my cellie.” The woman responded, “Scared of you,” and left. Basquez was aware Bond was a witness in a related case in federal court. He subsequently conveyed the conversation to defendant, with whom he was acquainted. B.

Prior-murder Special-circumstance-allegation Phase The parties stipulated that on or about September 26, 1991, defendant was convicted of the second degree murder of David Raymond Dement. The jury found true the prior-murder special-circumstance allegation. (§ 190.2, subd. (a)(2).) C. Penalty Phase 1. Prosecution evidence The parties stipulated to and the prosecution introduced evidence regarding the details of defendant’s murder of his brother, 35-year-old David Dement. On June 2, 1991, David and his wife were socializing at the Fresno home of Joel Parker and his girlfriend, Robin Rynes.

Late that afternoon, defendant arrived and asked to speak with David. Parker asked defendant to leave. Parker learned the dispute involved money defendant alleged David had taken from him, and David contended he had repaid. Over the next five and a half to six hours, defendant returned to the Parker residence several times. On one of these occasions, he said, “I’m going to kill my brother.” On the last occasion, David left the house and defendant shot him. David died early the next morning as a result of a single gunshot wound.

The parties also stipulated that defendant suffered a conviction for the 1991 willful and unlawful infliction of corporal injury on a spouse. (§ 273.5.) Defendant committed the assault on Lisa Dement several hours before he shot his brother, David. The prosecution introduced evidence that in 1983 defendant suffered three robbery convictions, one of which had a firearm use enhancement. (§§ 211, 12022.5.) In 1986, he suffered a conviction for possession of a concealed weapon. (Former § 12020; Stats. 1986, ch. 1421, § 1, p. 5113.) The prosecution also introduced evidence of misconduct in jail by defendant.

On November 17, 1992, and February 1, 1993, while defendant was incarcerated in the Fresno County jail, he was found to be in possession of a “shank.” On September 3, 1993, after Fresno County Sheriff’s Office Correctional Officer Joseph Burgen removed defendant’s leg shackles and handcuffs for his recreation time, defendant punched Burgen in the face twice, and then grabbed him by the throat and pushed him backward. Another officer intervened, and after a struggle defendant was ultimately subdued. 2.

Defense evidence Numerous witnesses testified regarding defendant’s childhood, his marriage to Lisa Dement, and his character. Defendant also presented expert testimony. a. Background and character evidence Defendant was bom on December 3, 1963. His sister Theresa Thacker, who was nearly five years older, testified defendant was the youngest of five children and had two older brothers, David and Larry, and two older sisters, Lorraine and Theresa. Theresa’s father was Keith Thacker, and Lorraine, David, and Larry’s father was Raymond Dement; neither man ever resided with the family.

Defendant introduced into evidence his birth certificate, which stated Floyd Hutchins was defendant’s father. Theresa testified that when defendant was five or six years old, the family home was frequented by many individuals who used drugs and alcohol, and who sometimes parked motorcycles in the living room. George Disbrow testified that he met defendant’s mother Láveme in 1971 and married her in 1972, when defendant was nine years old. He described defendant as a very congenial and attentive child who would immediately do what was asked of him.

Defendant called Disbrow “Dad.” Disbrow smoked marijuana with Láveme and drank alcohol heavily. Between 1971 and 1974, defendant lived in about 10 different residences. At one point, Láveme was sent to jail for six months for selling barbiturates, and Disbrow cared for defendant and his older sister Theresa. Theresa testified that Disbrow would beat her about the head in defendant’s presence. She sought assistance from other adults and was eventually placed in foster care. Theresa unsuccessfully tried to have defendant removed also.

At the end of 1974 or the beginning of 1975, when Láveme was released from jail, defendant, who was about 11, was living with Disbrow in Southern California. At Láveme’s request, defendant returned to Fresno, and that was the last time Disbrow saw defendant. At the time of her testimony, Theresa was an eligibility worker for the department of social services. Theresa considered herself a recovering drug addict and alcoholic. All of her siblings had experienced problems with drug and alcohol abuse, and all of her brothers had trouble with the law.

Theresa described defendant as someone who cared about his family and was intelligent. Clyde Willis, the former principal of Nelson Elementary School, knew defendant when he was in the fourth through sixth grades. Defendant was not regarded as a troublemaker. Willis recalled that in the sixth grade, defendant attended a trip to the regional learning center in the Sonora mountains; he seemed very friendly and popular with the other boys. Guy Wilson, defendant’s sixth grade teacher, described defendant as a “pleasant child” who made a reasonable effort in the classroom and got along well with Wilson.

Susan Cabrera met defendant when he was about 11 and knew him at that time for a year or two. Cabrera, who was married and had a young child, was a neighbor and became acquainted with defendant’s mother Láveme. Láveme’s home was filthy and frequently smelled of marijuana. Láveme, who was a very large woman, was physically abusive to defendant.

Once, when defendant had not done a chore, she slapped him with the back of her hand so hard that he “just flew.” Cabrera often heard Láveme yelling at defendant and saying, “ ‘Ronnie, you didn’t do this, and I’m going to beat the shit out of you.’ ” Defendant visited Cabrera’s house daily, and Cabrera would babysit defendant when his mother had to ran errands or go out of town. Láveme would tell Cabrera she was leaving defendant with her for two days to visit friends and would end up leaving him for two weeks.

Cabrera and defendant developed a mother-son relationship, and his grades went from D’s and F’s to A’s and B’s. Defendant asked Cabrera and her husband to adopt him. Cabrera spoke to Láveme about doing so, but Láveme declined, saying defendant was her only means of support. After this conversation, Láveme moved from the area with defendant, and Cabrera was unable to locate them. Cabrera next saw defendant when he was 18. Defendant, who still called Cabrera “Mom,” visited her with his wife, Lisa, and his daughter at Cabrera’s new home in Fresno.

The two resumed their relationship, and at the time of trial were close friends. Lisa Dement, defendant’s wife, testified that she met defendant in 1978 or 1979 when she was 14 and he was 15. When they had their first child in 1980, defendant was in the California Youth Authority. When he was released, he went to live with Lisa at her parents’ home. They were married in 1982 and eventually had two more children. Defendant introduced into evidence photographs of the children.

When defendant was not incarcerated, he worked and provided for the children, taught them to “go the right way,” and was “there for them.” Lisa was with defendant when he shot his brother, David. She testified she had never seen defendant so intoxicated, or act in that manner. At one point that day defendant was crying, and said he just wanted his brother to apologize to him. At the time of her testimony, Lisa no longer considered herself married to defendant. Defendant wrote to and telephoned their children, and Lisa’s mother took the children to visit him in jail about twice a month.

Defendant was close to his children, and if he were executed, it “would hurt them a lot.” Ruth Martinez Escobedo, Lisa’s mother, testified that defendant was very helpful performing chores around the house, and worked at various jobs, including at one point assisting the Escobedos with their janitorial business. Ruth described defendant as a loving, patient, and compassionate father. Both she and Solomon Escobedo, Lisa’s father, testified that they regarded defendant as a son. Lori Escobedo, Lisa Dement’s sister, testified that defendant was a good influence on her 13-year-old son Joshua.

Joshua and defendant often spoke on the telephone, and defendant told Joshua to listen to his mother and go to school, and that jail was “no place to end up.” Cathy Olage, another of Lisa Dement’s sisters, testified she had known defendant since she was nine, and he was like a brother to her. Defendant always told her to do the right thing, to go to school, to avoid drug use, and to listen to her parents. At the time of trial, Cathy was married with children, had her own home, and was a tax examiner. She had never been in any kind of trouble, and often thought about the advice defendant gave her.

Defendant had expressed regret for his life of crime and drug use. Defendant’s sister, Lorraine, testified that if defendant were executed, a piece of Lorraine would also die. Michael Wilson worked with defendant at a construction site, and was later incarcerated with him. Defendant worked long hours at the construction site, was very dependable, and his lead man had “good things to say about him all the time.” A1 Medina, a member of Jehovah’s Witnesses, had visited defendant in jail every week for about two and a half years. The two prayed and read scripture.

Defendant appeared remorseful about “everything he’s done in the past,” and had begun to have a more positive attitude toward law enforcement officers. Joe Mora and Christopher Jackson, who had been incarcerated with defendant, testified regarding defendant’s advice to other inmates to get an education and otherwise better themselves. Tamara Scobee, who at the time of trial was incarcerated in a women’s state prison for cocaine possession, testified that she had met defendant in the Fresno County jail. The two were very close, and Scobee hoped to marry defendant.

Scobee described herself as a drug addict and said that defendant had assisted her in her resolve to stop using drugs. Maria Karacha testified she had known defendant for three years while he was incarcerated. Karacha had been romantically involved with defendant for nearly all of that time, but had ultimately decided they should just be friends. Defendant understood and was supportive of her decision. He sent her poetry and was “a very intelligent guy.” His advice and experience had motivated her to work, stop using drugs and alcohol, and make plans to attend college in the fall.

Fresno County Sheriff’s Office Correctional Officer George Lira testified he had transported defendant from court on several occasions as well as to other locations within the jail. He experienced no difficulty or security problems transporting defendant. Lira described defendant as an obviously “pretty smart guy” who enjoyed reading. His cell was very organized and clean. b. Expert testimony Dr. Howard Terrell, a psychiatrist, evaluated defendant. Terrell interviewed defendant twice, in January and May 1994.

He also relied on a “wealth of information” regarding defendant’s childhood background drawn from interviews with family members and other individuals, which had apparently been performed by an investigator. He opined that defendant suffered from an antisocial personality disorder, and that his manifestation of antisocial personality traits was quite severe. Individuals with this disorder lead lives that involve criminal behavior and violating the rules of society, and have manifested a strong pattern of improper behavior by the age of 15.

As individuals with this disorder reach their 40’s and 50’s, the disorder tends to diminish or go into remission. According to Dr. Terrell, defendant had never met his biological father, and had no healthy father role model.

The men his mother brought into the house were typically criminals and drug addicts, “people who were about the most horrible and awful role models you could ... set before a child.” When an individual is bom with certain biological traits, such as an antisocial personality makeup, and then placed in an environment in which breaking the law is the norm or even encouraged, it is more likely that the person will develop an antisocial personality. In elementary school, defendant was a good student and an exceptional athlete.

He lived in an area where street gangs were prevalent, and at some point after the age of 12, defendant joined a Hispanic gang. His older brother Larry was a member of a White supremacist gang, which created conflict between defendant and his brother. Defendant told Dr. Terrell that he had been a heavy drinker and had used cocaine, heroin, methamphetamine, and a combination of heroin with cocaine or methamphetamine called “speedbafling.” He had also sniffed either gasoline or paint fumes.

Defendant told Terrell he had been using methamphetamine, cocaine, heroin, and alcohol continuously for at least three days before he shot his brother. Cocaine and methamphetamine tend to make the user more paranoid and violent. Individuals who were violent while on cocaine were only so in the short term, but chronic users of methamphetamine “can be paranoid, psychiatrically violent for days, weeks, months, even up to a year after the time they use the drug.” Alcohol has variable effects depending on the user; some individuals become angry and engage in violent behavior.

When these drugs are combined, the “potential for a disastrous outcome is even greater.” Dr. Terrell noted that all of defendant’s siblings also suffered from substance abuse. Terrell would not generally expect every child in a family to have that problem, and opined that the cause was both genetics and the “horrible environment in which they were raised.” Dr. Terrell testified that when overcrowding of individuals was combined with the effects of alcohol, there was a greater propensity for violence.

Terrell was familiar with the Fresno County jail, and opined that four individuals in a jail cell “would be a very unpleasant experience.” Dr. Hickey, who appeared at the guilt phase for the defense, testified that the California State Prison, Corcoran and Pelican Bay State Prison were high security prisons. Based on defendant’s record, Hickey would expect that if he received a sentence of life imprisonment without the possibility of parole, he would be sent to one of these two prisons. At Corcoran, inmates who posed a danger to other inmates were placed in the security housing unit, or SHU.

In the SHU, inmates were locked down 23 hours a day and had one hour a day to exercise. They enjoyed fewer privileges, such as working in a prison industry, than other inmates. They were not, however, always confined to a single cell, and were often allowed to mingle with other inmates. Some inmates were considered too dangerous to mingle, but even individuals within that group were sometimes allowed to do so on a trial basis.

It is common for correctional facility inmates to possess shanks, and even within the SHU “weapons can be secured.” Inmates such as defendant could eventually be transferred out of the SHU based in part on their behavior. By contrast, an individual on death row had the status of being a “marked man,” and in Hickey’s view, received “perhaps a little better treatment” than he might have in an SHU unit. n. Discussion A.

Pretrial Issue: Asserted Discrimination in Exercising Peremptory Challenges Defendant contends that the prosecutor exercised his peremptory challenges in a discriminatory manner to exclude female prospective jurors in violation of various state and federal constitutional rights. (J. E. B. v. Alabama ex rel T. B. (1994) 511 U.S. 127, 129 [128 L.Ed.2d 89, 114 S.Ct. 1419]; Batson v. Kentucky (1986) 476 U.S. 79, 89 [90 L.Ed.2d 69, 106 S.Ct. 1712]; People v.

Wheeler (1978) 22 Cal.3d 258, 272, 276-277 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler).) We agree with the trial court that defendant made no prima facie showing that these prospective jurors were challenged because of their gender. 1. Factual background After the prosecutor exercised his 13th peremptory challenge, defendant made a Wheeler motion. By agreement, argument on the motion was reserved until after the jury was sworn. The jury as sworn was comprised of six men and six women.

At the hearing on the Wheeler motion, defense counsel asserted that the prosecutor’s exercise of challenges against six women “in a row,” and exercising 10 of his 13 peremptory challenges against women when women constituted about half of the jury panel, demonstrated a prima facie case that the prosecutor “has exercised his challenges disproportionately against women which are [a] cognizable subgroup.” Defense counsel also opined that “[w]omen as a whole on this jury panel have shown that they . . . would be more merciful, less adamant in imposing the death penalty, possibly more compassionate and more likely to entertain life without possibility of parole as an option.” She argued that was the reason the prosecutor excused these women and that such an excusal would constitute impermissible group bias.

The prosecutor responded that women “are as fairly represented” on the jury “as they possibly can be.” The court found no prima facie showing of impermissible discriminatory use of peremptory challenges. 2. Analysis The use of peremptory challenges to exclude prospective jurors based on gender violates both the federal and state Constitutions. (J. E. B. v. Alabama ex rel. T. B., supra, 511 U.S. at p. 129; People v.

Bonilla (2007) 41 Cal.4th 313, 341 [60 Cal.Rptr.3d 209, 160 P.3d 84] (Bonilla).) “There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination.” (Bonilla, at p. 341.) To do so, the following procedures apply: “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citation.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the [gender] exclusion’ by offering permissible [gender]-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a [gender]-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful [gender] discrimination.’ ” (Johnson v.

California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 125 S.Ct. 2410], fn. omitted.) “When, as in this case, it is unclear whether the trial court used the recently disapproved ‘strong likelihood’ standard, rather than the correct ‘reasonable inference’ standard, ‘we review the record independently to determine whether the record supports an inference that the prosecutor excused a juror on a prohibited discriminatory basis.’ ” (People v.

Davis (2009) 46 Cal.4th 539, 582-583 [94 Cal.Rptr.3d 322, 208 P.3d 78].) We conclude that the totality of relevant facts here is inconsistent with an inference of discriminatory purpose. The circumstance that the prosecutor exercised 10 of his 13 peremptory challenges against women is not dispositive. (People v.

Carasi (2008) 44 Cal.4th 1263, 1291, 1295 [82 Cal.Rptr.3d 265, 190 P.3d 616] [prosecutor exercised 20 out of 23 peremptory challenges against female prospective jurors; no prima facie case demonstrated]; Bonilla, supra, 41 Cal.4th at pp. 345, 349 [prosecutor used 20 out of 30 peremptories against female prospective jurors; no prima facie case demonstrated].) The prosecutor used only 13 of his 20 available peremptories. Moreover, the Attorney General asserts and defendant does not dispute that the prosecutor knew which prospective juror would replace a prospective juror excused by a peremptory challenge.

Yet nine of the 13 peremptory challenges exercised by the prosecutor resulted in women being seated in the jury panel. Although the prosecutor also excused some of those women, our examination of the sequence of the prosecution’s peremptory challenges reveals no discernible pattern of discrimination towards female prospective jurors. Given that 20 of the 40 prospective jurors subject to peremptory challenge were female, it cannot be said the prosecutor struck most or all of the women from the venire. (People v.

Taylor (2010) 48 Cal.4th 574, 615 [108 Cal.Rptr.3d 87, 229 R3d 12] (Taylor).) In addition, the jury as sworn included six women. (People v. Snow (1987) 44 Cal.3d 216, 225 [242 Cal.Rptr. 477, 746 P.2d 452] [although the circumstance that the prosecutor accepted a panel containing members of the cognizable group is not conclusive, it is “an indication of the prosecutor’s good faith in exercising his peremptories”].) We also note that neither defendant nor the murder victim was female.

Although this circumstance does not affirmatively demonstrate the absence of discrimination, it “identifies a factor that, because it is absent, fails in this case to support an inference of discrimination.” (People v. Bell (2007) 40 Cal.4th 582, 600 [54 Cal.Rptr.3d 453, 151 P.3d 292] (Bell).) Defendant notes that the prosecutor asked Prospective Jurors K.M. and A.H. no questions, and asked few of Prospective Jurors L.M., K.S., M.S., and P.T., before exercising peremptory challenges against them.

Although relevant (Taylor, supra, 48 Cal.4th at p. 615), this circumstance is of little importance here given the information otherwise available to the prosecutor regarding the prospective jurors. In addition to individual questioning, the prospective jurors in the jury box received instruction by the court and were asked questions as a group by the parties that did not require a response unless a prospective juror had a question or comment about that area. Even without an audible reply, the prosecutor could observe the prospective jurors’ demeanor as each instruction was given or question was asked.

In addition, the prosecutor could observe the voir dire of these prospective jurors by the court and defense counsel.

Moreover, before voir dire, the prosecutor had reviewed the 21-page questionnaire containing 87 questions with subparts filled out by each prospective juror. (Taylor, supra, 48 Cal.4th at pp. 615-616 [that the prospective juror had completed a 98-question questionnaire was notable when the prosecutor failed to ask any questions]; Bell, supra, 40 Cal.4th at pp. 598-599, fn. 5 [noting the trial court’s comment that “ ‘when you have a questionnaire, it can never be a perfunctory examination’ ”].) Indeed, the prosecutor at one point told the prospective jurors: “I don’t want you folks to think that I don’t care about the case because I’m going through these quickly.

It’s just that there really is quite an adequate amount of information in your questionnaire. They’re so chock full of information that we don’t normally get when we’re asking and looking at a jury. We have to ask all the questions. But this is actually kind of easier for us because everything is in writing, [and] we’ve had time to look it over.” “A party is not required to examine a prospective juror about every aspect that might cause concern before it may exercise a peremptory challenge.” (People v.

Jones (2011) 51 Cal.4th 346, 363 [121 Cal.Rptr.3d 1, 247 P.3d 82].) Under these circumstances, we place little weight on the prosecutor’s failure to individually or more thoroughly question a prospective juror before exercising a peremptory challenge. Defendant asserts that in determining whether he established a prima facie case of purposeful discrimination, this court should engage in comparative juror analysis for the first time on appeal.

We have concluded such analysis is neither mandated nor helpful in a first-stage case. “Whatever use comparative juror analysis might have in a third-stage case for determining whether a prosecutor’s proffered justifications for his strikes are pretextual, it has little or no use where the analysis does not hinge on the prosecution’s actual proffered rationales, and we thus decline to engage in a comparative analysis here.” (Bonilla, supra, 41 Cal.4th at p. 350.) B. Guilt Phase Issues 1.

Admission of extrajudicial statements Defendant contends that the trial court erred by admitting the prior inconsistent statements of Eric Johnson and Albert Martinez. We disagree. a. Factual background On direct examination in the prosecution’s case-in-chief, Johnson testified that on April 9, 1992, the morning the victim’s body was discovered, he was interviewed by a law enforcement officer. Johnson testified he did not know defendant, and either did not recall or denied having made certain statements during that interview.

On cross-examination, Johnson said he knew of no one else who had the same name as he did, and that he had suffered three prior felony convictions. Defense counsel did not inquire regarding his prior statement to law enforcement. Fresno County Sheriff’s Office Detective Sherman Lee subsequently testified regarding Johnson’s April 9 statement. (See ante, at p. 7.) Counsel stipulated that the “Eric Johnson” who had made the statement was the same person who testified at trial.

Defendant does not refer us to, and we have not found, an objection to introduction of the prior statement, although defendant did move to strike one sentence of Johnson’s statement as testified to by Lee, and objected at times during Lee’s testimony on the grounds of hearsay, relevance, lack of foundation, calling for a narrative, and speculation. Hence it appears the trial court made no express ruling regarding admission of that statement. On direct examination, Martinez denied knowing defendant or being able to recognize his voice.

He did not recall or denied having made several observations or hearing certain statements during the night of April 8 to 9, the night the victim was killed. On cross-examination, Martinez testified that he was interviewed by a law enforcement officer on April 9, the morning the victim’s body was discovered, but did not recall being interviewed again on April 13, the date of his prior statement. Martinez also said that before his testimony at trial, the prosecution had shown him an April 13 statement.

Martinez started to read it, but “didn’t remember saying any of that.” When asked if “anyone in law enforcement tried to get you to say things about what happened that night that didn’t happen that night,” Martinez responded, “No.” Martinez also testified on cross-examination that he had been arrested once or twice for giving false information to police officers, had suffered three prior felony convictions, agreed with defense counsel that it was “fair to say that sometimes you tell law enforcement officers the truth and sometimes you don’t,” and stated that half of what inmates said in jail or prison regarding what they had done or were going to do was exaggeration.

Outside the presence of the jury, defense counsel questioned Detective Christian, who had participated in the April 13 interview, regarding whether the Martinez who was interviewed on that date was the same person who testified at trial.

After Christian identified Martinez as the individual he had interviewed, defense counsel saw no “reason to voir dire this witness,” and stated they did not “have any evidence ... to dispute that this is the same person.” The trial court ruled that Martinez’s “lack of memory [was] feigned and contrived,” and overruled defendant’s confrontation clause objection to admission of the April 13 statement.

Christian subsequently testified regarding Martinez’s prior statement. (See ante, at p. 9.) The court instructed the jury: “Evidence that on some former occasion a witness made a statement or statements that were inconsistent or consistent with the testimony in this trial may be considered by you not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on such former occasion.

If you disbelieve a witness’[s] testimony that he or she no longer remembers a certain event, such testimony is inconsistent with a prior statement or statements made by him or her describing that event.” b. Analysis As defendant did not object to admission of Johnson’s prior statement, no exception to the general requirement of an objection is applicable, and thus defendant has forfeited on appeal his claim that admission of the statement violated his right to confrontation of witnesses. (See People v.

Williams (1976) 16 Cal.3d 663, 667, fn. 4 [128 Cal.Rptr. 888, 547 P.2d 1000] [“It is the general rule, of course, that questions relating to the admissibility of evidence will not be reviewed on appeal absent a specific and timely objection at trial on the ground sought to be urged on appeal.”].) The claim also lacks merit. Both Johnson’s and Martinez’s prior statements were properly admitted because both of these individuals testified. There was no dispute at trial that the individuals interviewed in the two statements were the same Johnson and Martinez who testified at trial.

When a declarant “appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. [Citation.] It is therefore irrelevant that the reliability of some out-of-court statements ' “cannot be replicated ....’” [Citation.] The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” (Crawford v. Washington (2004) 541 U.S. 36, 60, fn. 9 [158 L.Ed.2d 177, 124 S.Ct. 1354] (Crawford); see California v.

Green (1970) 399 U.S. 149, 161 [26 L.Ed.2d 489, 90 S.Ct. 1930] [“[N]one of our decisions interpreting the Confrontation Clause requires excluding the out-of-court statements of a witness who is available and testifying at trial.”].) The testimony by Johnson and Martinez at trial gave the jury the opportunity to assess their demeanor as they denied making or asserted lack of recollection regarding their prior statements. (People v. Martinez (2005) 125 Cal.App.4th 1035, 1050 [23 Cal.Rptr.3d 508]; see California v.

Green, at p. 160.) Defendant “received what the confrontation clause requires: a full opportunity to confront and cross-examine” Johnson and Martinez. (People v. Stevens (2007) 41 Cal.4th 182, 199 [59 Cal.Rptr.3d 196, 158 P.3d 763] (Stevens).) Relying on Douglas v. Alabama (1965) 380 U.S. 415, 420 [13 L.Ed.2d 934, 85 S.Ct. 1074], defendant contends that “ ‘effective confrontation of [Johnson and Martinez] was possible only if [these witnesses] affirmed the statements]’ ” as their own.

Because Johnson and Martinez did not affirm the statements, defendant contends they could not “defend or explain” them as that language is used in Crawford. (Crawford, supra, 541 U.S. at p. 60, fn. 9.) The high court later characterized as dictum the language in Douglas v. Alabama on which defendant relies, and noted that “[o]f course, a witness can be cross-examined concerning a statement not ‘affirmed’ by him . . . .” (Nelson v. O’Neil (1971) 402 U.S. 622, 627 [29 L.Ed.2d 222, 91 S.Ct. 1723].) Moreover, unlike the witness in Douglas v.

Alabama, Johnson and Martinez did not invoke their Fifth Amendment privilege against self-incrimination and refuse to answer any questions about the crime, a circumstance that would have rendered them “totally unavailable at the trial for any kind of cross-examination.” (Nelson v. O’Neil, at p. 628; see Douglas v.

Alabama, supra, 380 U.S. at p. 416.) Finally, the phrase “defend or explain” in footnote 9 of Crawford does not mean that when a witness denies making, or claims lack of recollection of, a particular statement, admission of the statement violates a defendant’s right to confrontation. (Crawford, supra, 541 U.S. at p. 60, fn. 9.) This is made clear by the first sentence of the same paragraph of the footnote, which broadly states that when a declarant “appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” (Ibid.) Nothing in Crawford casts doubt on earlier cases holding that the confrontation clause is not violated by the introduction of out-of-court statements a witness denies or does not recall making. (Nelson v.

O’Neil, at pp. 629-630 [a defendant is “denied no rights protected by the Sixth and Fourteenth Amendments” when a “codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts”]; United States v.

Owens (1988) 484 U.S. 554, 555-556, 559 [98 L.Ed.2d 951, 108 S.Ct. 838] [the confrontation clause does not bar “testimony concerning a prior, out-of-court identification when the identifying witness is unable, because of memory loss, to explain the basis for the identification”].) 2. Asserted Edwards violation Defendant contends that the trial court erred in admitting statements he made to Detective Christian at the hospital after he had invoked his right to counsel. We disagree. a.

Factual background Detective Christian testified outside the jury’s presence and, without objection, read into the record a written report regarding his hospital conversation with defendant. On April 9, 1992 about 12:15 p.m., Christian attempted to interview defendant about Greg Andrews’s murder. After being advised of his Miranda rights, defendant invoked his right to counsel. (Miranda v. Arizona (1966) 384 U.S. 436, 479 [16 L.Ed.2d 694, 86 S.Ct. 1602].) The interview was immediately terminated.

Detective Christian and Detective Burke then transported defendant to Valley Medical Center for treatment of injuries to his right hand and foot. Defendant expressed concern he might have broken a bone in his foot, and his hand was “substantially swollen” and appeared possibly broken. Christian was also interested in obtaining an X-ray of defendant’s hand to investigate whether the hand could have been a weapon in the homicide. Detective Christian and defendant waited at the hospital for some time, probably around “two hours, maybe less,” before defendant received medical treatment.

Christian had previously been involved in a homicide investigation in which the defendant was Thomas Rutledge. Rutledge had been arrested in South Lake Tahoe with defendant’s wife, “Patricia” Dement. At some point, to “make conversation,” Christian mentioned to defendant that he had recently interviewed his wife regarding a February 1992 homicide. Christian also told defendant that his wife had been “picked up” with Rutledge, and that Rutledge was in custody for the homicide. Defendant responded that he knew that, and that he was going to take care of Rutledge for getting his wife involved in that incident.

Christian asked defendant if he knew Rutledge. Defendant said he did, that he and Rutledge were enemies, and that Rutledge had disrespected him. Defendant also said that he knew Rutledge was under investigation for murder, and had heard a rumor that Rutledge was involved in the murder. Defendant then stated that if law enforcement were to get Rutledge into jail with defendant, they would not have to worry about “the murders anymore” (according to Christian’s report) or “taking him to court” (according to Christian’s in limine testimony). Defendant then asked Christian what the name of the subject was.

Christian asked defendant who he was referring to, and defendant said, “ ‘You know, the guy that went to sleep.’ ” Christian said, “Greg Andrews.” Defendant nodded his head, and said, “ ‘He was a friend of Tom’s.’ ” Defendant “would say no more regarding the incident.” Detective Christian further testified that the names “Tom Rutledge” and “Patricia Dement” had not previously arisen in the investigation of Greg Andrews’s death. At the time Christian was speaking with defendant at the hospital, Christian had no information that would link Tom Rutledge to Greg Andrews.

Christian had “no intent whatsoever to ask him any questions related to this incident or draw any statements from him that would be incriminatory” because Christian understood such statements would not be admissible. The trial court ruled that no interrogation had occurred. Christian subsequently testified before the jury regarding the conversation with defendant. (See ante, at p. 10.) b. Analysis If a suspect receives Miranda warnings, and thereafter requests counsel, the interrogation generally must cease until an attorney is present. (Edwards v.

Arizona (1981) 451 U.S. 477, 482 [68 L.Ed.2d 378, 101 S.Ct. 1880]; People v. Bradford (1997) 14 Cal.4th 1005, 1033 [60 Cal.Rptr.2d 225, 929 P.2d 544]; see Maryland v.

Shatzer (2010) 559 U.S._, - _ [175 L.Ed.2d 1045, 130 S.Ct. 1213, 1222-1225, 1227] [a break in custody, which includes a return to the general prison population, of at least 14 days ends the Edwards presumption of involuntariness].) “ ‘[interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.

The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” (Rhode Island v. Innis (1980) 446 U.S. 291, 301 [64 L.Ed.2d 297, 100 S.Ct. 1682], fns. omitted.) “Clearly, not all conversation between an officer and a suspect constitutes interrogation. The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response.” (People v.

Clark (1993) 5 Cal.4th 950, 985 [22 Cal.Rptr.2d 689, 857 P.2d 1099] (Clark).) We also keep in mind “the purpose behind [the] decisions in Miranda and Edwards: preventing government officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment.” (Arizona v.

Mauro (1987) 481 U.S. 520, 529-530 [95 L.Ed.2d 458, 107 S.Ct. 1931].) If the defendant, after invoking his right to counsel, initiates a statement to police, “nothing in the Fifth and Fourteenth Amendments . . . prohibits] the police from merely listening to his voluntary, volunteered statements and using them against him at the trial.” (Edwards v. Arizona, at p. 485.) Here, Detective Christian’s statement telling defendant that he had interviewed defendant’s wife regarding an apparently unrelated February 1992 homicide, and asking whether defendant knew Tom Rutledge, did not constitute interrogation.

Given the circumstances that neither the name of defendant’s wife nor that of Tom Rutledge had arisen in the investigation of Greg Andrews’s murder, and Christian had no information that would link Tom Rutledge to Andrews, we cannot say that Christian should have known that defendant “would suddenly be moved to make a self-incriminating response.” (Rhode Island v.

Innis, supra, 446 U.S. at p. 303; see id. at pp. 294—295, 303 [declining to conclude officers should have known that their brief conversation with one another in the suspect’s presence expressing concern that children in the area might discover a missing shotgun and hurt themselves was reasonably likely to elicit an incriminating response]; People v.

Huggins (2006) 38 Cal.4th 175, 198 [41 Cal.Rptr.3d 593, 131 P.3d 995] [telling the defendant “he was a murder suspect did not call on him to confess”]; Clark, supra, 5 Cal.4th at p. 985 [there was no reason for the officer to “have known that his casual estimate of possible penalties would produce an incriminating response from this defendant”].) Although defendant’s question regarding the name of the person who “went to sleep” concerned Andrews’s homicide, and not an unrelated homicide, Detective Christian’s response—merely telling defendant the victim’s name—was also not the type of statement Christian should have known was likely to elicit an incriminating response.

Unlike in People v. Sims (1993) 5 Cal.4th 405, 442 [20 Cal.Rptr.2d 537, 853 P.2d 992], on which defendant relies, Christian’s response to defendant’s inquiry did not “pursue[] a line of conversation far exceeding the scope of any” legitimately responsive answer. Defendant asserts that Christian’s initiation of a conversation regarding defendant’s wife “and her involvement with another man and a murder investigation” was “likely to induce an emotional response, e.g., anger, sadness, [or] humiliation.” Christian testified that he did not “know what the relationship” between Lisa Dement and Rutledge was.

Moreover, officers do not have to avoid all remarks that might make a suspect upset or angry, but only those that are “reasonably likely to elicit an incriminating response.” (Rhode Island v.

Innis, supra, 446 U.S. at p. 301.) Nor, contrary to defendant’s further assertion, does the circumstance that while waiting for defendant’s medical treatment Detectives Christian and Burke teased defendant about his F-14 tattoo by referring to defendant as a fighter pilot demonstrate that the atmosphere was “essentially hostile, and intended to provoke an ill-considered incriminatory response which could be used in prosecuting” defendant.

Defendant notes that in Detective Christian’s report, after defendant made the comment that the murder victim Andrews was a friend of Rutledge’s, the detective commented that defendant “would say no more regarding the incident.” Defendant argues this language suggests that Christian “attempted to get [defendant] to say more.” However, even if Christian had interrogated defendant after his statement connecting Andrews and Rutledge, that interrogation produced no statements; hence defendant could not have been prejudiced by any such interrogation. 3.

Admission of written statements by defendant Defendant contends that the trial court erred by admitting evidence of defendant’s written statements, or kites, because they were surreptitiously obtained by a government agent, they contained irrelevant information, their probative value was substantially outweighed by their prejudicial nature, and they amounted to inadmissible criminal propensity evidence. (Massiah v. United States (1964) 377 U.S. 201 [12 L.Ed.2d 246, 84 S.Ct. 1199] (Massiah).) We disagree. a. Factual background During trial a hearing was held outside the presence of the jury on the Massiah claim.

Fresno County jail inmate Trinidad Ybarra, who received from defendant the kites introduced at trial, Detective Christian, and Michael Castro testified.

(1) Ybarra’s testimony Ybarra testified that in about 1991, when he was imprisoned in the Corcoran SHU, he volunteered to begin a debriefing process to leave his gang, the Nuestra Raza. He gave prison officials a written statement relaying everything he knew about the gang, and a copy of the gang constitution. Ybarra also met with a gang coordinator, who told Ybarra to relay everything he knew about the gang. Ybarra understood he was to share this information as long as he lived.

The gang coordinator also told Ybarra he wanted him to infiltrate prison gangs and work undercover to “prove to him I wanted out.” Ybarra was unable to infiltrate because one of the gang members “pulled [his] cover.” Once his cover was “blown,” Ybarra was not asked if he would still try to obtain as much information as he could about some gang members. Ybarra wrote to the gang coordinator explaining his cover was gone, and he could not infiltrate, but he never received a response. In about February 1991, Ybarra was released on parole in Fresno County.

Ybarra spoke to his parole officer about the debriefing process. Ybarra did not ask for a shorter parole, or for leniency if he violated his parole, because “they’re not going to give you something special just because you’re going to debrief.” Ybarra simply wanted “to get out of the gang.” In January 1993 Ybarra was incarcerated in the Fresno County jail on a drug-related charge. Ybarra’s cell was near defendant’s cell. Ybarra could tell defendant was either a Nuestra Raza member or a “sympathizer” with that gang. Ybarra started obtaining names of gang members from defendant for debriefing.

After Ybarra learned defendant was in jail on a murder charge, Ybarra “got the idea of he’s giving me all these names, maybe I can work him on confessing, and I knew that if I could get that, I pretty much knew that I’d get a deal from the D.A.” Ybarra said that “[ajnybody ¿lows that. . . if you know about a murder, ... of course [law enforcement is] going to want to know about it.” No one told Ybarra they wanted him to report any statements defendant made about Greg Andrews’s murder: “No one ever told me to do anything.” Ybarra acted on his own.

Ybarra wrote a note to law enforcement saying he could obtain information on the murderer of Greg Andrews. Detective Christian met with him. Before Ybarra met with Christian he had already received kites from defendant, including the second kite admitted at trial. Ybarra thought, but was not positive, that he received the first kite admitted at trial after he met with Christian. Christian did not tell Ybarra to collect kites from defendant.

Christian told Ybarra he could not tell him to do something like that, and that if he did obtain information, the best thing Ybarra could do was turn them in, and law enforcement would show them to the district attorney, and Ybarra could possibly work out a deal. Christian did not promise Ybarra anything specific, or tell him he would work with the district attorney to try to do something for Ybarra. Christian told Ybarra he could not guarantee anything, that all Christian could do was turn over the kites to the district attorney and then the district attorney would contact Christian.

After meeting with Detective Christian, Ybarra continued writing to defendant. Ybarra was trying in a “roundabout way for him to confess to me on paper that he did the murder” of Greg Andrews. He wanted it “on paper because homeboy pretty much bragged about it anyways.” Ybarra was hoping he “could get a deal so I could get out.” Ybarra “believe[d] that [defendant] never actually confessed to me in any letter.” After Ybarra had collected more kites, he contacted Detective Christian. Ybarra met with Christian a second time, and gave him the kites.

Christian said that all he could do at that stage was turn the kites over to the district attorney, and “there was no guarantee he was going to get back at me.” Ybarra was released from jail after he signed the contract for his testimony. Ybarra never debriefed, and was still a member of the Nuestra Raza gang at the time of trial.

(2) Detective Christian’s testimony Detective Christian testified that on or about April 1, 1993, Ybarra sent a note to jail staff requesting to be interviewed “regarding this matter.” As a result, Christian interviewed Ybarra for about 10 minutes. Ybarra said he and defendant were writing to each other nearly every day, and he had letters from defendant to give Christian. Ybarra had no letters with him, but asked if anything could be done regarding his current charges if he could produce the letters for Christian.

Christian told Ybarra that was up to his attorney and the district attorney’s office; Christian “could make him no promises.” Christian advised Ybarra to retain anything he received from defendant, but did not tell him to write letters to defendant. Christian informed Ybarra that he could not ask defendant anything “specific to this case” because defendant had invoked his right to counsel.

Christian also told Ybarra that “he was not to elicit information from him on our behalf, that he was not to discuss the case with him and then bring me those letters, that I didn’t want those.” Ybarra said that he wanted to speak with his attorney regarding a deal before he gave Christian the letters, and Christian asked Ybarra to have his attorney contact him. Christian spoke to Ybarra’s attorney, Bill Femside, on the telephone about a week after his meeting with Ybarra, and requested he be present when Ybarra turned over the kites because Ybarra wanted him there.

Christian also spoke with the prosecutor in defendant’s case, who said that any deal for Ybarra’s testimony would depend on what information Ybarra possessed, and apparently also on what charges Ybarra was facing. On April 21, 1993, Ybarra and Femside met with Detective Christian and gave him the kites. At the meeting, Christian told Femside that he was interested in having the prosecution enter into a deal with Ybarra for the kites, but Femside “would have to work [any deal] out with the District Attorney’s Office themselves.

I was in no position to tell him what could be offered.” Detective Christian testified that Ybarra had described specific statements in some of the letters and “[t]here is one for sure that... he told me that he had in his possession prior to our first meeting.” Defense counsel asked, “[W]hich one is this?” and as Christian started to answer, said, “Your Honor, let me say, I’m asking this not for the tmth of the matter asserted, but to show this witness’s frame of mind relative to good faith bad faith and a Massiah motion, because he obviously can’t know the tmthfulness of the . . . .” The trial court interjected, “You’re asking this not be received for its tmth?” Defense counsel replied, “That’s correct.” The court asked the prosecutor if he objected, and the prosecutor said, “No.” Christian then identified the first kite admitted at trial containing the language “[d]ude was my brother.”

(3) Testimony of Michael Castro Michael Castro testified that he was an assistant unit supervisor with the Fresno adult parole unit, a division of the Department of Corrections, and the gang institutional coordinator for the parole units in Fresno. “Debriefing” is a “process for gang members who wish to disassociate themselves from a prison gang or street gang,” in which they meet with an institutional coordinator, or a parole officer if they are not in custody, and orally “give information about their past experiences and membership in the gang.” The interviewer then asks the inmate or parolee to write a history of or document his gang involvement.

The interviewer reviews the document to see if the information is adequate, and in some cases administers a polygraph exam. After completing a series of reviews, the person can be considered “unaffiliated and dropped from the gang.” If, however, the information is inadequate, the Department of Corrections maintains “gang status on that person.” An individual who passes debriefing and then commits another offense and is sent to prison will likely be placed in “protective custody status.” Debriefing is not a lifelong process. Castro met with Ybarra apparently sometime before January 1993 when he was on parole.

Ybarra provided Castro with a copy of a written history he said he had submitted to an institutional investigator before being paroled. Much of the information was old, and when Castro asked Ybarra about individuals who might be involved in gang activity in the Fresno area, he was evasive. Castro did not feel Ybarra was “being totally honest” with him concerning current information. Castro did not tell Ybarra to get any additional information.

Rather, he advised Ybarra that if he went back into custody with the Department of Corrections he should contact an institutional investigator and tell him he wanted to provide specific and additional information regarding his gang activity. Castro also told him, “You seem to be doing very well. If you keep doing well, debriefing will never be an issue for you because you won’t go back to prison.” Although Castro subsequently saw Ybarra in the parole office, they did not converse, and Castro had no other contact with him.

(4) Ruling on the motion and evidence and instruction at trial The prosecutor conceded Ybarra had interrogated defendant, but contended he was not a government agent. The trial court found no Massiah violation. Following this ruling, the prosecutor limited the evidence he sought to introduce to statements in two kites, and the court heard argument on defendant’s Evidence Code

section 352 and relevance objections. Defense counsel asserted that the prejudice of referring to the brother’s murder outweighed its probative value of adding meaning and clarity to defendant’s statement. She proposed that the first kite introduced simply read: “On this other trip, hey, shit happens Homme, the shit ain’t over but I’ll say this, Dude had it coming. I feel no different, it don’t bother me.

I’m looking at the chair but I don’t think they will get me this time anyway.” Defense counsel also asserted that the availability of Ybarra’s testimony that defendant boasted about killing Andrews, and that Ybarra tried to get defendant to confess to this murder in writing, undercut the prosecution’s need for the reference to the brother’s murder in the kites. The trial court admitted the written statements. It ruled: “One of four [sic] men could have performed this killing,” and “those who have testified . . . have been impeached from wall to wall on a variety of subjects.

They could also be found to be co-participants. . . . That gives the chief relevance to the statement attributed to [defendant]. It is highly relevant [and] . . . very prejudicial. . . . [The] first letter . . . should be admitted in its entirety. I tried to read this without the reference to the brother, and it doesn’t make sense. It doesn’t show that they were talking about a killing when they were talking about trips and tags. If it does, that point is for the jury to decide whether you have varying

interpretations.” The court also admitted the second letter, ultimately removing at the parties’ stipulation a reference to the brother being an “AB” runner, which the prosecutor contended was a reference to the Aryan Brotherhood. Ybarra did not testify at trial. Rather, a stipulation regarding the circumstances surrounding the kites, including their language and identifying defendant as the author, was read to the jury. A portion of Ybarra’s redacted April 1994 “Contract for Testimony” was also read to the jury.

Immediately after the reading of these two documents, the court admonished the jury: “Ladies and gentlemen, evidence has been introduced which includes a reference showing that the Defendant committed a crime other than that for which he is on trial. Such evidence, if believed, was not received and may not be considered by you to prove that the Defendant is a person of bad character or that he has a disposition to commit crimes. The evidence was received and may be considered by you only for the limited purpose of providing context and meaning to the written statement made by the Defendant.

The Defendant in a criminal action has the right to expect that his guilt or innocence will be decided by the evidence brought before the jury and without regard to any alleged prior conduct. Therefore, you must only consider this evidence for the limited purpose for which it was introduced.” The court reminded the jury of this limiting instruction before the close of evidence. In addition, the admonishment was repeated during the court’s instructions to the jury at the end of the guilt phase.

During closing argument, the prosecutor asserted the kites were a confession to murdering Andrews, but urged the jury to follow the cautionary instruction, and stated that it would be a “misuse to conclude” language about a prior killing “means the [defendant has a predisposition.” b. Analysis Under Massiah when, after adversarial judicial criminal proceedings have been initiated and in the unwaived absence of counsel, a government agent deliberately elicits from a defendant incriminating statements, those statements are inadmissible at a trial on the charges to which the statements pertain. (Fellers v.

United States (2004) 540 U.S. 519, 523 [157 L.Ed.2d 1016, 124 S.Ct. 1019]; Maine v. Moulton (1985) 474 U.S. 159, 170,180 [88 L.Ed.2d 481, 106 S.Ct. 477]; Massiah, supra, 377 U.S. at p. 206.) Such a Sixth Amendment violation occurs when the government intentionally creates or knowingly exploits a situation likely to induce the defendant to make incriminating statements without the assistance of counsel, but not when the government obtains such statements through happenstance or luck. (Maine v. Moulton, at p. 176; United States v.

Henry (1980) 447 U.S. 264, 274 [65 L.Ed.2d 115, 100 S.Ct. 2183] (Henry).) “ ‘Specifically, the evidence must establish that the informant (1) was acting as a government agent, i.e., under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage, and (2) deliberately elicited incriminating statements.’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 67 [17 Cal.Rptr.3d 710, 96 P.3d 30] (Coffman and Marlow).) Here, the trial court properly determined that Ybarra was not a government agent at the time he received the kites from defendant.

Unlike the informant in Henry, on which defendant relies, Ybarra had no preexisting position as an informant. (Henry, supra, 447 U.S. at p. 266.) Contrary to defendant’s assertion, Ybarra did not become an agent for purposes of Massiah simply because he began a debriefing process with Corcoran prison authorities to end his gang affiliation two years before he met defendant. Rather, we have held that a “general policy of encouraging inmates to provide useful information does not transform them into government agents.” (People v.

Williams (1988) 44 Cal.3d 1127, 1141 [245 Cal.Rptr. 635, 751 P.2d 901] [that the “sheriff’s department followed the practice of accepting information provided by inmates, and, when feasible, of rewarding inmates for providing that information,” and inmates were “probably aware of that policy,” was insufficient to demonstrate the informant was a government agent].) Nor, contrary to defendant’s assertion, did Detective Christian give “his imprimatur to Ybarra’s scheme ... in the hope that Ybarra would obtain incriminating information or statements by” defendant.

Indeed, as a preliminary matter, it appears both kites admitted at trial were received by Ybarra before his first meeting with Detective Christian on or about April 1. (People v. Fairbank (1997) 16 Cal.4th 1223, 1234, 1248 [69 Cal.Rptr.2d 784, 947 P.2d 1321] (Fairbank) [no U.S. Const., 6th Amend, violation with respect to notes and information the defendant gave a fellow inmate before the inmate first contacted the police].) Ybarra testified that he had received the second kite before ever meeting with Christian.

In addition, Christian testified that Ybarra described certain kites he had in his possession before his first meeting with Christian, including the first kite containing the language “[d]ude was my brother.” Although this statement was not admitted for its truth, apparently because Christian had no means of knowing whether Ybarra actually possessed such a letter, it is evidence that Ybarra described a kite containing this language at his first meeting with Christian.

The circumstance that such a letter was ultimately produced at the second meeting indicates that Ybarra most likely had the letter before his first meeting with Christian. Even assuming the first kite was received after Ybarra’s first meeting with Detective Christian, nothing in Christian’s statements to Ybarra demonstrates that Christian intentionally created or knowingly exploited a situation likely to induce defendant to make incriminating statements without the assistance of counsel. (Maine v.

Moulton, supra, 474 U.S. at p. 176; Henry, supra, 447 U.S. at p. 274.) Defendant relies on Christian’s statement that Ybarra should retain anything he received from defendant. Such passive behavior on the part of Ybarra was unlikely to induce defendant to make incriminating statements.

More critically, Christian did not tell Ybarra to write to defendant, and “specifically told him that he was not to elicit information from [defendant] on our behalf, that he was not to discuss the case with him and then bring me those letters, that I didn’t want those.” He also told Ybarra he could not ask defendant anything “specific to this case” because defendant had invoked his right to counsel. Ybarra testified that no one told him to report statements defendant made about Greg Andrews’s murder; “[n]o one ever told me to do anything.” Moreover, Ybarra was promised no benefit if he produced the kites.

Rather, Detective Christian told Yharra he “could make him no promises,” and did not tell him he would work with the district attorney on Ybarra’s behalf.

Christian told Ybarra he could not guarantee anything, that all he could do was turn over the kites to the district attorney and then the district attorney would contact Christian. “The requirement of agency is not satisfied when law enforcement officials ‘merely accept information elicited by the informant-inmate on his or her own initiative, with no official promises, encouragement, or guidance.’ ” (Coffman and Marlow, supra, 34 Cal.4th at p. 67; see id. at p. 66 [the defendant failed to demonstrate that “the government did anything more than accept information that [an inmate] elicited from [the defendant] on her own initiative”]; People v.

Hartsch (2010) 49 Cal.4th 472, 490, 492 [110 Cal.Rptr.3d 673, 232 P.3d 663] (Hartsch) [inmate who was not prompted by police to obtain statements from defendant, given no instructions or advance notice regarding a meeting with defendant, and not told the meeting would be taped, was not a police agent]; Fairbank, supra, 16 Cal.4th at p. 1248 [although police believed inmate “would continue to try to obtain information from [the] defendant,” and a deputy district attorney prevented defendant’s move away from inmate, no implicit agreement between police and inmate was demonstrated when police made no promises to inmate about a possible deal, “did not direct him to obtain more information,” and “did not suggest that obtaining more information would benefit him”]; see also Fairbank v.

Ayers (9th Cir. 2011) 650 F.3d 1243, 1255-1256 [even if an informant subjectively believed that the officer’s statement was a request to ask the defendant for information, “this does not constitute the requisite state involvement” to make the informant a government agent].) No Massiah violation appears. We turn now to defendant’s other objections. Although defendant cites Evidence Code

section 1101, the evidence of defendant’s prior commission of murder was not introduced as prior criminal behavior, but merely to give context and meaning to defendant’s admission to killing Andrews. Hence, the analysis is properly one under Evidence Code

section 352. Under

section 352, a trial court may “exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time.” (People v. Riggs (2008) 44 Cal.4th 248, 290 [79 Cal.Rptr.3d 648, 187 P.3d 363].) “ ‘Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable “risk to the fairness of the proceedings or the reliability of the outcome.” ’ ” (Ibid.) We conclude no such intolerable risk was present here.

Contrary to defendant’s assertion, the kites, which were stipulated to have been written by defendant, were relevant and probative as an admission of Andrews’s murder. Although the prosecution also presented the eyewitness testimony of Benjamin and Bond, the trial court observed that these witnesses had been impeached from “wall to wall.” Moreover, the probative value of this evidence decreased significantly if the first kite was redacted in the manner suggested by defense counsel because the redaction removed portions of the kite that indicated defendant was admitting responsibility for Andrews’s murder.

Nor did admission of the kites create a substantial danger of undue prejudice. Although the kites could be understood to include defendant’s assertion he had killed someone he referred to as a brother (a word he also used when referring to Ybarra), they also included a reference to the circumstance that defendant was serving a sentence of 29 years to life for that crime.

The fact that any prior murder by defendant had resulted in a criminal conviction and a substantial prison term decreased the potential for prejudice because “the jury was not tempted to convict defendant of the charged offenses, regardless of his guilt, in order to assure that he would be punished for” any prior murder. (People v. Balcom (1994) 7 Cal.4th 414, 427 [27 Cal.Rptr.2d 666, 867 P.2d 777].) The court instructed the jury that the reference to defendant’s earlier crime could only be considered to give context and meaning to defendant’s written statement, and could not be used as evidence

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