THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL LOPEZ, Defendant and Appellant, 56 Cal. 4th 1028

Opinion CANTIL-SAKAUYE, C. J. An information filed in February 1997 charged defendant Juan Manuel Lopez and his brother Ricardo Lopez with the April 1996 murder of Melinda Carmody (Pen. Code, § 187) and four other counts: kidnapping (§ 207, subd. (a)), assault by means of force likely to produce great bodily injury and/or with a deadly weapon (§ 245, subd. (a)(1)), first degree residential burglary (§ 459), and second degree burglary of a vehicle (§ 459).

The information also alleged a special circumstance that the murder was committed for the purpose of preventing the victim’s testimony in a criminal proceeding and that a principal was armed with a firearm in the commission of the offense. (§§ 190.2, subd. (a)(10), 12022, former subd. (a)(1), as amended by Stats. 1995, ch. 377, § 8, p. 1948.) A jury convicted defendant of murder and found true the special circumstance and weapon allegations. The jury also convicted defendant of all charged crimes except the vehicle burglary count, as to which it was unable to reach a decision.

The jury then returned a verdict of death, which the trial court declined to modify. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment. I. FACTS A. Guilt Phase 1. Prosecution evidence In 1995, defendant was the leader of the Parthenia Street gang. In March 1995, when she was 14 years old, Melinda “Mindy” Carmody was “jumped into” the Baby Locas—the female adjunct of defendant’s gang. One of the girls who initiated her into the gang was the leader of the Baby Locas, Sandra Ramirez, who became Mindy’s friend.

Mindy’s gang moniker was “Crazy” and Ramirez’s was “Shy Girl.” Shortly after she joined the gang, Mindy began a relationship with defendant. She eventually ran away from home and moved in with defendant’s family. In September 1995, Mindy returned home but continued her relationship with defendant. Mindy broke up with defendant in February 1996. According to Mindy’s preliminary hearing testimony, defendant called her at her mother’s home on the morning of March 13, 1996, and asked if he could come by to pick up some papers. Mindy said no, because she was afraid of defendant.

While they were still dating, defendant had told her that if she ever broke up with him, he would kill her. About an hour after he called, defendant entered Mindy’s house through the garage. He asked her if she wanted to leave with him. When she said no, defendant approached her with a knife. He stabbed her with the knife in the back of the neck and she fell onto the couch. Defendant started choking her. While he was choking her, he told her that if he “can’t have [her], no one can.” She fell off the couch and he released her, then he pulled her to her feet by her hair and forced her upstairs to her bedroom.

Defendant put Mindy in her closet and grabbed a bag and told her to get some clothes because they were leaving. After packing the bag he pulled her downstairs. Outside of the house, he placed her into the backseat of a waiting car. Another man Mindy had never seen before was in the driver’s seat. Before they left, defendant told her to change her shirt because there was blood on it. At the preliminary hearing Mindy testified further that they drove first to defendant’s house where Mindy waited in the car while defendant went inside to retrieve a bag.

They then went to the house of defendant’s aunt, Maria Hernandez, and defendant left her there. Hernandez helped clean the back of Mindy’s neck, which was bleeding, and she changed her shirt again. Mindy remained at Hernandez’s house for four hours but was unable to communicate with her because Hernandez spoke Spanish and Mindy did not. Eventually, Hernandez drove Mindy home. Later that same day, about 5:00 p.m., Los Angeles Police Officer Robert Denton responded to a call at Mindy’s home. According to the officer, Mindy was upset and nervous and started crying while he was talking to her.

He took her to the police station. Photographs taken at the station showed fingerprint bmising and scratch marks around Mindy’s throat and a wound to the back of her neck that had been oozing blood since Officer Denton first saw it. Police arrested defendant on the night of the incident when, responding to a report of a car break-in at a condominium complex near where Mindy lived, they found him in a dirt area beneath a balcony.

Defendant told the arresting officers that he “didn’t do anything,” but “was in the area to see his girlfriend.” He kept repeating that he “loved her too much.” Detective Morritt interrogated defendant. After waiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]), defendant told Morritt that Mindy had given him permission to come to her house to pick up some papers. Defendant said he took a bus to Mindy’s house and, once there, they argued and he hit and choked her. Nonetheless, according to defendant, Mindy voluntarily went with him to his house.

From there, a friend drove them to the home of defendant’s aunt. Sometime after his arrest, defendant telephoned Sandra Ramirez, the leader of the Baby Locas, telling her that he had stabbed Mindy in the neck and kidnapped her. He also told her that he wanted to take Mindy to Mexico to marry her. Mindy testified against defendant at the preliminary hearing on the kidnapping and assault charges on March 28, 1996. According to Detective Morritt, Mindy appeared frightened and upset, and cried at times during her testimony.

At one point during Mindy’s testimony, defendant sat forward in his chair and said, “I don’t have to sit here and listen to this shit.” Defendant called Ramirez on March 26 and March 27, 1996, from the cell area at the court where his preliminary hearing was held. In the first call, he again admitted to Ramirez that he had stabbed and kidnapped Mindy. He told Ramirez to tell Mindy not to go to court. In the second call, he asked Ramirez to come to court and pick up a letter that he had written to Mindy and deliver it to her. Defendant was held to answer on the kidnapping and assault charges on March 28, 1996.

Defendant’s sister, Patricia (Patty), told police that defendant called her during the first week of April and asked her to set up a three-way call with their brother Ricardo, also known by his gang name “Diablo,” and Jorge Uribe, a gang member who was known as “Pelón.” Patty set up the call but did not listen to the conversation. On April 11, defendant again called Ramirez while she was talking to Alma Cruz, another member of the Baby Locas. Ramirez, Cruz, and defendant all spoke together on a three-way call.

Defendant told them they had to go to a gang meeting that was scheduled for the following night to discuss paying dues to the Mexican Mafia. They also talked about the girls’ plan to jump in a new member, a girl called “Happy,” who was Mindy’s friend. The plan was to jump Happy in at a park outside the gang’s territory. Defendant insisted, however, that the girls jump her in at an alley claimed by the gang. Defendant explained that if Happy was jumped in at the park she would not be from the gang-controlled neighborhood.

Ramirez did not believe it mattered where the new gang member was jumped in, but because defendant was the gang leader she agreed. According to Cruz, defendant asked her “if [she] could kill one of [her] homegirls.” Cruz replied that it depended on whether “[the homegirl] would do something to me.” Defendant said, “I already have someone doing it for me.” Records showed that on April 10, the day before defendant’s conversation with Ramirez and Cruz, there were a number of phone calls from defendant’s cellblock in the jail to the Lopez residence where his brother Ricardo lived with their parents.

On April 11, the same day defendant spoke to Ramirez and Cruz, calls were made from the superior court cell area at Van Nuys, where defendant was arraigned, again to the Lopez residence. Three calls were also made the following day, April 12, the day Mindy was killed, from where defendant was being held in custody, to the Lopez residence. On Friday, April 12, 1996, Baby Locas leader Ramirez drove various members of the gang, including Mindy, to an alley off Schoenbom Street to attend the gang meeting and to initiate Happy into the Baby Locas.

When they arrived, the sole male gang members present were Ricardo and Uribe. According to Ramirez, Mindy seemed frightened by Ricardo’s presence, but Ramirez told her not to worry because he “wasn’t going to do nothing.” Ricardo was drinking beer, as were other gang members including Mindy and Ramirez. Ricardo, Uribe, and other male gang members were on one side of the street and the females were on the opposite side. At some point, Ramirez went to talk to Ricardo, who was standing with Uribe.

Ricardo asked, “Why did you bring them?” and told her, “[Y]ou know what’s going to happen.” According to Ramirez, she did not know what he meant by that, nor what he meant when he also told her that “if anything happened, to say it was a drive by.” Ricardo then took a gun out of his waistband, pointed it at Ramirez and said he was going to shoot her. Ricardo put the gun away and Ramirez walked away. Uribe crossed the street and told Mindy that Ricardo wanted to talk to her. Mindy made a face as if she did not want to speak to him, but she went. Ramirez noticed that Mindy was talking to Ricardo.

She saw his gun at the side of his leg and then she heard Mindy scream, “Shy Girl, let’s get out of here.” She looked and saw Mindy coming toward her quickly with Ricardo following her. He was pointing his gun at Mindy and then he started shooting. Ramirez heard approximately five shots. Mindy fell into the street. Ricardo walked up to her and shot her while she was on the ground. One of the girls present heard Ricardo say something about his brother. After Ricardo shot Mindy, he walked away with the gun to his own head.

Ramirez and the other girls ran to Mindy and tried to move her, but ultimately left her at the scene because they were afraid to say anything to the police. The girls got into Ramirez’s car and drove to a convenience store where one of them called 911. Meanwhile, Leticia Corona, who lived on Schoenbom Street, was returning home around 9:00 p.m. when she saw Mindy lying in the street. She and her sister got out of the car to help. There was a pool of blood beneath Mindy’s head but she was still alive. Although her eyes remained closed, she tried to lift herself off the road. Eventually, the paramedics arrived.

The next morning Corona returned to the scene and found a smashed-up bullet near the gutter. She gave it to police who later matched it to a gun taken from the Lopez residence. A Los Angeles firefighter-paramedic transported Mindy to a nearby hospital. He and the hospital chaplain testified that Mindy’s pager had a message that read “187” and a phone number later identified as belonging to Mindy’s mother. Mindy died at the hospital several hours after her arrival. The cause of death was multiple gunshot wounds.

On April 13, 1996, the day after the shooting, defendant called Sandra Ramirez and asked, “What happened?” She told him that Ricardo had shot Mindy. Defendant asked Ramirez if she knew where Ricardo was and hung up after she told him she did not. Later that day, Ricardo called Ramirez and told her to say that Mindy’s killing was a driveby shooting. Defendant then called Ramirez a second time and asked if she had spoken to police.

When she said no, he told her, “Don’t say anything.” Ricardo then called Ramirez again, this time telling her to tell the “girls” to attend a meeting that night so they would know what to say about the shooting. According to Ramirez, when she told him she could not go, he told her that “if [she and other Baby Locas] didn’t go [to the meeting], the same thing [as had happened to Mindy] was going to happen to us.” Phone and inmate locator records for that day show four calls were made to the Lopez residence from where defendant was being held in custody.

Detective Oppelt interviewed defendant 12 days after the shooting. Defendant denied having anything to do with Mindy’s_ death and said that he had learned of it only one week earlier when the lawyer representing him on the kidnapping and assault case mentioned it to him. He said he was both mad and sad at things Mindy testified to at the preliminary hearing. He also told the detective he was depressed about her death. Defendant volunteered that Mindy told him that she had been receiving the number 187 on her pager and that he had assured her the message was not from anyone in his family.

Defendant asserted that since his arrest on the assault and kidnapping charges he had not spoken to his brother Ricardo and he also denied having spoken to Jorge Uribe. He also initially claimed not to have spoken to Sandra Ramirez but then acknowledged that he had talked to her about jumping a girl into the gang. In January 1997, before the preliminary hearing in the present case, Sandra Ramirez’s boyfriend received a letter from Ricardo sent from a jail facility. The letter instructed him to tell Ramirez “not to go to court or else” Ricardo would “have the homeboys take care of her.” 2.

Defense evidence Defendant presented the testimony of his mother, aunt, and his aunt’s husband. They each testified that they saw Mindy on the day she was allegedly kidnapped by defendant and that she did not appear to be frightened, nor was she injured. Defendant’s mother testified further that defendant and Mindy wanted to go to Mexico to get married. His aunt testified that she talked them out of this plan. Defendant’s uncle testified that he, not his wife, drove defendant and Mindy from his house to Mindy’s neighborhood. He also testified that Mindy did not appear frightened or injured.

In his defense, Ricardo introduced a portion of Ramon Ramos’s preliminary hearing testimony after Ramos refused to testify. Ramos, whose gang moniker was “Oso,” testified that Ricardo was drinking beer before he shot Mindy and that after he shot her, he put the gun to his own head and clicked it. He also testified that after he took the gun from Ricardo, Ricardo said, “It’s for my carnal,” meaning his brother, defendant. 3.

Prosecution rebuttal evidence The prosecution presented Mindy’s diary entry for the day of the assault in which she had written that “Bird [(defendant)] broke in and stabbed me and choked me and kidnapped me. Went to Police station, went to Grandma’s.” She also told one of her schoolteachers about the incident. B. Penalty Phase Evidence 1. Prosecution evidence The prosecution presented evidence of defendant’s violent acts while in custody. Sheriff’s Deputies Romo and Perez testified that defendant had been injured in a fight with another inmate.

After defendant had been treated in the jail infirmary, Perez prepared to use some handcuffs to transport him to the disciplinary building. Defendant said, “Fuck you, I ain’t going to the hole,” and tried to elbow and punch Perez in the face. In the ensuing struggle, the deputy suffered scratches, swelling and bruising. Several deputies eventually subdued defendant. The prosecution also presented victim impact testimony from Mindy’s stepmother, her grandmother, and her mother. Each testified that she had had a close relationship with Mindy and that Mindy’s death had been devastating to her. 2.

Defense evidence Defendant declined to present a penalty phase case. II. DISCUSSION A. Jury Selection Issues 1. Limitation on voir dire The juror questionnaire in this case included four questions that touched on racial or ethnic bias—defendant is Hispanic and Mindy was Caucasian— including a question that asked prospective jurors whether they believed there was racial discrimination against Latinos in Southern California. (Question No. 86.) Prior to voir dire, the court indicated it would not ask followup questions of those jurors who did not respond to this question. Both defendants objected.

On appeal, defendant contends the court abused its discretion by failing to ask such followup questions. We conclude otherwise. a. Background At the time of defendant’s trial, the trial court alone conducted voir dire. (See Code Civ. Proc., former § 223, added by Prop. 115, § 7, approved by the electorate eff. June 6, 1990 [voir dire from counsel permitted only for “good cause”].) Nonetheless, prior to voir dire, the court and counsel collaborated on the juror questionnaire. Four questions on the questionnaire addressed the issue of racial or ethnic bias.

Question No. 86 stated: “If you believe that there is racial discrimination against Latino/Mexican-Americans in Southern California, please describe the problem as you see it.” Question No. 82 informed prospective jurors that they were to use “the same standards (which will be given to you by the court) to judge all witnesses’ credibility regardless of their occupation, lifestyle, race, ethnic background, language, sex, or sexual orientation.

If you do not believe you can do this, or if you believe it would be difficult for you to do so, please set forth your thoughts about this.” Question No. 87 asked prospective jurors: “Have you ever been afraid of another person because of their race,” and, if so, “what was the circumstance?” Question No. 88 asked: “Are you a member of any private club, civic, professional or fraternal organization which limits its membership on the basis of race, ethnic origin, sex or religious convictions,” and, if so, “please identify the club(

s) or organization(s).” Before the first group of prospective jurors entered the courtroom, the trial court made the following statement with respect to question No. 86: “I noticed in reading the questionnaires, as I’m confident you did as well, that a number of people did not respond to the question about racial prejudice. I don’t have any intention of following up on that question, ladies and gentlemen .... In some of those responses, some showed a great sensitivity to the question, others showed less than great sensitivity to the question.

For other people it was apparently something they had a ready answer to, and that suggests perhaps something about them one way or the other as any person would choose to infer; but inasmuch as the non-Hispanic who is part of the information before the court goes, that is, the alleged victim, she is the only non-Hispanic, I believe, with respect to the charges themselves, and there does not seem to have been any kind of discriminatory prosecution here.

I mean it’s a simple and regular charging; and so if those people did not answer that, I do not intend to go over that subject matter.” Ricardo’s counsel objected “on behalf of my client, reserving any possible appeal rights, both on federal and state constitutional grounds.” Defendant’s counsel joined “for the same purpose.” b. Discussion “At the time of trial in this matter, Code of Civil Procedure

section 223, enacted by Proposition 115 (approved by the electorate effective June 6, 1990), provided for court-conducted examination of prospective jurors in a criminal case, including death penalty cases, in the presence of the other jurors.” (People v. Avila (2006) 38 Cal.4th 491, 534 [43 Cal.Rptr.3d 1, 133 P.3d 1076].) “An appellate court applies the abuse of discretion standard of review to a trial court’s conduct of the voir dire of prospective jurors.” (People v.

Benavides (2005) 35 Cal.4th 69, 88 [24 Cal.Rptr.3d 507, 105 P.3d 1099].) “Where the jury in its discretion is responsible for determining whether a defendant lives or dies, the need for juror impartiality is obviously most acute.” (People v. Williams (1989) 48 Cal.3d 1112, 1131 [259 Cal.Rptr. 473, 774 P.2d 146], original italics.) Given the gravity of the stakes in a capital case, the United States Supreme Court has held that “a capital defendant accused of an interracial crime is entitled to have prospective jurors . . . questioned on the issue of racial bias.” (Turner v.

Murray (1986) 476 U.S. 28, 36-37 [90 L.Ed.2d 27, 106 S.Ct. 1683].) Mindful of these admonitions, we nonetheless conclude that the trial court did not abuse its discretion in this case by declining to question prospective jurors who left blank question No. 86 regarding potential racial bias. Unlike decisions cited by defendant, this is not a case in which prospective jurors were not questioned at all about potential racial bias. (See, e.g., Turner v.

Murray, supra, 476 U.S. at pp. 36-37 [refusal of trial court to question prospective jurors about racial bias in capital case involving murder of Caucasian shopkeeper by African-American defendant]; Ham v.

South Carolina (1973) 409 U.S. 524, 526-527 [35 L.Ed.2d 46, 93 S.Ct. 848] [where defendant was a young African-American civil rights worker who asserted that his prosecution for drug possession was in retaliation for his civil rights activities, the trial court’s refusal to ask questions about racial bias violated the 14th Amend.].) Here, the juror questionnaire clearly addressed the issue of potential bias with four questions, including question No. 86. Defendant also cites People v. Holt (1997) 15 Cal.4th 619 [63 Cal.Rptr.2d 782, 937 P.2d 213], in support of his claim.

In Holt, we agreed that “adequate inquiry into possible racial bias is . . . essential in a case in which an African-American defendant is charged with commission of a capital crime against a White victim.” (Id. at p. 660.) However, we went on to observe: “Unless the voir dire by a court is so inadequate that the reviewing court can say that the resulting trial was fundamentally unfair, the manner in which voir dire is conducted is not a basis for reversal.” (Id. at p. 661.) We cannot so conclude in this case.

Here, four questions on the jury questionnaire addressed the issue of the prospective jurors’ possible ethnic or racial bias. Question No. 86 inquired directly about the attitudes of prospective jurors on the issue of bias against Latinos in Southern California. As the trial court observed, the responses showed various levels of sensitivity on that issue, which presumably were useful to the parties during the selection process. Defendant claims, however, that the trial court should have questioned jurors who did not respond to that particular question because their silence may have masked bias against Hispanics.

We disagree. Question No. 86 was constructed as an “if/then” question. Given that construction, a blank response indicated that the prospective juror did not believe that there existed racial discrimination against Latinos in Southern California. The trial court did not abuse its discretion by declining to inquire about every blank response to ensure that this is what the prospective juror meant.

Further, to the extent a prospective juror responded to the question, as the trial court observed, the answer would stand for itself and give the parties relevant information. (Indeed, even a blank response was informative of a prospective juror’s attitude on the issue.) Thus, given that “the juror questionnaire gave the prospective jurors a clear opportunity to disclose views about racial bias that would warrant their excusal from the jury” (People v.

Taylor (2010) 48 Cal.4th 574, 609 [108 Cal.Rptr.3d 87, 229 P.3d 12]), the trial court’s decision not to follow up on a question that did not require an answer and, as to which, any answer would speak for itself, fell within the appropriate exercise of its discretion. Moreover, the remaining three questions that touched upon the issue of racial bias (questions Nos. 82, 87, and 88) were, unlike question No. 86, constructed in a manner that required a response from the- prospective jurors.

Thus, prospective jurors were required to answer whether they could apply the same standards of credibility to all witnesses despite, among other characteristics, their ethnic background; whether they had ever been afraid of a person of a different race and, if so, under what circumstances; and whether they belonged to any organization that excluded people from membership for, among other reasons, their race or ethnic origin.

Therefore, whether or not prospective jurors answered question No. 86, their answers to these other questions would have provided the parties with some insight into their attitudes about race and ethnicity. Indeed, and notwithstanding its earlier pronouncement, the trial court asked three prospective jurors followup questions based on their answers to these questions. At the request of Ricardo’s attorney, the trial court asked Prospective Juror No. 1032 question No. 83 regarding witness credibility.

The trial court repeated question No. 87 to Prospective Juror No. 7502 regarding whether the juror had ever been afraid of another person because of race and posed a number of followup questions. Among the questions the court asked was: “Obviously the defendants who are before the court are Hispanic ....

Is there anything in the fact that they are Hispanic that would prejudice you against the defense before you know anything about the case at all?” When the prospective juror seemed to hesitate, the court pressed, “You’re confident of that?” and, “Will you reflect on that and if it’s problematic please let me know?” In response to the court’s inquiry, Prospective Juror No. 0886 indicated that the prospective juror’s affirmative answer to question No. 88 was wrong.

Defendant suggests the court’s questions were inadequate because “[vjery few jurors would answer these questions in such a way that they would admit to racial prejudice.” As we have seen, the record does not support this assertion. In People v. Booker (2011) 51 Cal.4th 141 [119 Cal.Rptr.3d 722, 245 P.3d 366], in which the defendant was African-American and his victims were not, the defendant claimed the trial court erred by failing to question prospective jurors about racial bias.

We rejected the claim, observing that “other than the bare fact of the difference between the races of defendant and the victims, nothing about the circumstances of this crime suggests race played any role.” (Id. at p. 169.) The same is true here. (See People v. Roldan (2005) 35 Cal.4th 646, 695 [27 Cal.Rptr.3d 360, 110 P.3d 289] [“This was not a case in which racial prejudice was an obvious issue.”].) In these circumstances, we find no abuse of discretion in the trial court’s decision not to question prospective jurors who left blank question No. 86.

Although we find no abuse of discretion here, we take this opportunity to remind trial courts in capital cases to “closely follow the language and formulae for voir dire recommended by the Judicial Council in the Standards [of Judicial Administration] to ensure that all appropriate areas of inquiry are covered in an appropriate manner. Failure to use the recommended language may be a factor to be considered in determining whether a voir dire was adequate, but the entire voir dire must be considered in making that judgment.” (People v. Holt, supra, 15 Cal.4th at p. 661.) 2.

Prosecutor’s exercise of peremptory challenges Defendant contends the trial court erroneously denied his claim under People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] that the prosecutor used peremptory challenges in an allegedly impermissibly discriminatory manner. a. Background After the prosecutor used a peremptory challenge to excuse an African-American juror—after having excused another African-American juror the day before—defense counsel lodged a Wheeler objection.

Defense counsel pointed out that, with the excusal of this prospective juror, “there appear to be ... no other Blacks in the entire pool,” and maintained that the dismissed juror “seems otherwise qualified. She has prior jury experience, including sitting on a jury on a murder case [and] indicated in her questionnaire she could personally impose the death penalty if it was appropriate . . . .” The trial court rejected defendant’s Wheeler claim, concluding that a prima facie case of discrimination had not been made with respect to the dismissed juror.

The court found that the prospective juror “doesn’t seem to be quite tuned in sometimes,” and noted that she worked “a swing shift at night so that she’s in court all day and working during the night. I noticed when she was sitting in the audience when we originally met her, [she] seemed to be behaving in a relatively unusual kind of way, leaning over her seat, not tuning in and paying attention to what we were doing.

She had to leave once during the proceedings, as you may recall, and I can’t say that that’s what the exercise [of the peremptory challenge] was based on, but it would certainly appear to me from what she said and from the information, that might explain her . . . relatively noticeable conduct in court, that perhaps added together, that was sufficient.” Although the court did not find a prima facie case, it invited the prosecutor to state his position for the record.

The prosecutor said, “I think there was quite enough evidence in the way—in the uncandid manner she answered particularly on her jury experience to justify my exercise of a peremptory.” Ricardo’s counsel, but not defendant’s, objected to the sufficiency of the prosecutor’s explanation for his exercise of his peremptory challenge. Ricardo’s counsel said she disagreed that any lack of candor by the prospective juror was sufficient to justify excusal. The court replied, “If it [were] for cause, I would certainly disagree as well, but it’s not for cause. It’s peremptory and it is a sufficient reason.” b.

Discussion We recently summarized the law governing defendant’s claim in People v. Clark (2011) 52 Cal.4th 856 [131 Cal.Rptr.3d 225, 261 P.3d 243]. “ ‘ “Under Wheeler, supra, 22 Cal.3d 258, ‘[a] prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds”—violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under

article I,

section 16 of the state Constitution. [Citations.]’ [Citation.] ‘Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment. [Citations.]’ ” ’ (People v.

Taylor[, supra,] 48 Cal.4th 574, 611 [108 Cal.Rptr.3d 87, 229 P.3d 12].) [][] In ruling on a motion challenging the exercise of peremptory strikes, the trial court follows a three-step procedure. ‘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 racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ (Johnson v.

California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 125 S.Ct. 2410], fn. omitted (Johnson).) [][] Under Johnson, a defendant establishes a prima facie case ‘by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ (Johnson, supra, 545 U.S. at p. 170; see also People v. Taylor, supra, 48 Cal.4th at p. 614.) . . .

When, as here, it is unclear from the record whether the trial court employed [a former, now] disapproved-of standard, ‘ “we review the record independently to ‘apply the high court’s standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror’ on a prohibited discriminatory basis.” [Citations.]’ [Citation.]” (Id. at pp. 903-904.) Defendant contends the statistical disparity in the prosecutor’s use of peremptory challenges in which half (two out of four) were directed at the only African-American prospective jurors raises an inference of discriminatory purpose.

In an analogous factual situation we rejected a similar claim. “Bonilla relies principally on the fact that all African-Americans—two of two—were struck from the juror pool. It is true that the prosecution used peremptories to challenge both African-Americans in the pool, but ‘the small absolute size of this sample makes drawing the inference of discrimination from this fact alone impossible. “[Ejven the exclusion of a single prospective juror may be the product of an improper group bias.

As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.” ’ [Citations.]” (People v. Bonilla (2007) 41 Cal.4th 313, 342-343 [60 Cal.Rptr.3d 209, 160 P.3d 84], fn. omitted.) As in Bonilla, the size of the sample in this case does not lend itself to an inference of discriminatory purpose. Defendant also contends that the trial court’s reference to the dismissed juror’s work

schedule as the potential cause of her noticeable inattentiveness relied on knowledge not in the prosecutor’s possession. However, the issue is not whether the prosecutor knew the reason for the prospective juror’s inattentiveness and, for purposes of our analysis, we do not consider the trial court’s hypothesis regarding the reason for her inattention.

Our focus is solely on the trial court’s observations regarding the prospective juror’s lack of attention, which it referred to as “unusual” and “noticeable.” These observations are relevant to the question whether the record supports an inference of discriminatory excusal because they suggest a race-neutral reason for excusing the prospective juror. Defendant does not challenge the trial court’s observations that the prospective juror was unusually and noticeably inattentive.

The existence of such an apparent race-neutral reason further supports our conclusion that defendant has failed to raise the inference that the prosecutor excused the prospective juror on the basis of her race. (See People v.

Taylor, supra, 48 Cal.4th at p. 616 [no inference of discriminatory purpose where review of the record disclosed race-neutral reasons for excusing an African-American prospective juror].) Finally, defendant argues that the trial court should not have credited the prosecutor’s proffered explanation for excusing the prospective juror—her asserted lack of candor in responding to questions about her prior jury service—and suggests that a comparative analysis also undermines the prosecutor’s explanation.

If, however, we determine that the trial court correctly found no prima facie case of discriminatory purpose in the prosecutor’s exercise of his peremptory challenges, we need not address his proffered explanation or engage in comparative analysis. “We have found it proper for trial courts to request and consider a prosecutor’s stated reasons for excusing a prospective juror even when they find no prima facie case of discrimination; indeed, we have encouraged this practice. [Citations.] However, the trial court is not required to do this at the first stage of a Wheeler/Batson analysis, and the trial court’s invitation [to have done so here] did ‘not convert [this] first-stage Wheeler/Batson case into a third-stage case.’ [Citations.] [CJ[] Finally, because the trial court’s request did not ‘convert [this] first-stage Wheeler/Batson case into a third-stage case’ [citation], we also ‘decline defendant’s invitation to engage in comparative juror analysis’ [citation].” (People v.

Taylor, supra, 48 Cal.4th at pp. 616-617.) Accordingly, we conclude that the trial court correctly denied defendant’s Wheeler motion on the ground that he failed to make a prima facie showing that the prosecutor’s use of his peremptory challenge was motivated by group bias. 3. Defendant’s absence from in-chambers voir dire questioning Defendant contends the trial court violated his statutory rights under

section 977 as well as his state and federal constitutional rights to due process and a trial by jury by conducting some voir dire questioning in chambers and outside his presence. His argument is without merit. During voir dire, the trial court said it wished to speak to some prospective jurors privately to determine if they were subject to excusal for cause. The court indicated that it preferred to do so in chambers to avoid having to send the rest of the prospective jurors into the hallway.

The court told defense counsel: “If your clients are willing, and if you are willing, I’ll bring [the prospective jurors] in here one at a time, we’ll do it on the record, and you can talk to your clients about anything you want to talk about with them in between, or whatever. So we’ll go back out [into open court], and I’ll list who it is I want to talk to privately, and then I’ll ask you if we can come back here or if we’ll do it in the courtroom.” Both defense counsel agreed to this procedure.

The trial court returned to the courtroom, called the names of two prospective jurors, and obtained both sides’ agreement that these prospective jurors could be questioned in chambers. After questioning, the court excused one of the two prospective jurors for cause, over defendant’s objection. The prosecution eventually exercised a peremptory challenge against the remaining prospective juror. The following day the court followed the same procedure with two other prospective jurors. The parties stipulated to the excusal of one of these jurors because of his wife’s medical condition.

Defendant eventually exercised a peremptory challenge against the other juror. The trial court also employed this procedure during the selection of alternate jurors, questioning five prospective jurors in chambers. One of those questioned was excused for cause because of her language difficulties. “ ‘[A] criminal defendant has a right to be personally present at certain pretrial proceedings and at trial under various provisions of law, including the confrontation clause of the Sixth Amendment to the United States Constitution, the due process clause of the Fourteenth Amendment to the United States Constitution,

section 15 of

article I of the California Constitution, and sections 977 and 1043. [Citation.]’ [Citation.] The right is not absolute, however.

Under federal constitutional principles, a defendant is entitled to be present at a certain proceeding only if his or her appearance ‘is necessary to prevent “interference with [his] opportunity for effective cross-examination” ’ or if the proceeding represents a ‘ “stage . . . that is critical to [the] outcome” and “his presence would contribute to the fairness of the procedure.” [Citation.]’ [Citation.] Our state Constitution’s right to personal presence is circumscribed in a similar manner, as are sections 977 and 1043, which codify that right. [Citations.]” (People v.

Clark, supra, 52 Cal.4th at pp. 1003-1004, fn. omitted.) “This court has made it clear that neither the state nor the federal Constitution, nor the statutory requirement that a defendant be present at ‘all . . . proceedings’ (§ 977, subd. (b)(1)), provides a criminal defendant with the right to be personally present in chambers or at bench discussions outside the jury’s presence on questions of law or other matters as to which his presence bears no reasonable, substantial relation to his opportunity to defend the charges against him.” (People v.

Harris (2008) 43 Cal.4th 1269, 1306 [78 Cal.Rptr.3d 295, 185 P.3d 727], fn. omitted.) In circumstances analogous to this case, we have rejected the claim that a defendant’s absence from sidebar or chambers conferences during which prospective jurors were questioned violated the defendant’s right to be present. For instance, in People v. Ochoa (2001) 26 Cal.4th 398 [110 Cal.Rptr.2d 324, 28 P.3d 78], the trial court questioned two prospective jurors during sidebar conferences at which the defendant’s counsel was present but the defendant was not.

We rejected his claim that his absence from these conferences deprived him of his right to be present at trial. We observed: “Defendant has not indicated any way in which his presence at the sidebar conferences bore a reasonably substantial relation to his opportunity to defend himself. He admits the impossibility of knowing what sudden impressions and unaccountable prejudices he might have formed.

Because there must be a ‘reasonably substantial relation’ to defendant’s ability to defend himself, and not a mere ‘shadow’ benefit, we must reject such claims based on undue speculation. [Citations.]” (Id. at p. 433.) In this case, defendant asserts that his exclusion from these conferences “made it impossible for [him] to assist his counsel when jurors were challenged and excused,” but he fails to offer any specific explanation as to how his absence inhibited his ability to defend himself.

Defendant also suggests that because he remained in the courtroom with the rest of the jury panel, the “prospective jurors were left with the impression that [defendant] was either too dangerous to participate in the proceedings, in chambers or not interested in doing so.” This assertion is unsupported by the record and, in any event, irrelevant to the claim he is making, which is that his exclusion from sidebar conferences made it impossible for him to have assisted defense counsel regarding juror selection. We reject defendant’s claim. B. Evidentiary Claims 1.

Admission of three-way call evidence Defendant contends that admission of evidence that he, his brother Ricardo, and another gang member were on a three-way telephone call before Mindy’s murder violated a stipulation entered into by the parties to exclude reference to that call. Alternately, he contends the evidence was either irrelevant or, if relevant, more prejudicial than probative. We reject these claims. a. Background After defendant’s brother Ricardo was arrested he was interrogated by police. During the interrogation, he revealed that he, defendant, and Jorge Uribe (also known as Peló

n) had a three-way telephone conversation initiated by defendant, who was then in custody on the kidnapping and assault charges involving Mindy. Ricardo told police that in the course of that conversation, defendant made statements implicating himself in the plan to murder Mindy. Defendant brought a pretrial motion to sever his case from Ricardo’s based solely on his concern that introduction of Ricardo’s statement to police would violate defendant’s confrontation rights because neither Ricardo nor Uribe would be testifying at the joint trial.

This type of motion is commonly known as an Aranda/Bruton motion after People v. Aranda (1965) 63 Cal.2d 518 [47 Cal.Rptr. 353, 407 P.2d 265] and Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620]. The Aranda/Bruton rule “declares that a nontestifying codefendant’s extrajudicial self-incriminating statement that inculpates the other defendant is generally unreliable and hence inadmissible as violative of that defendant’s right of confrontation and cross-examination, even if a limiting instruction is given.” (People v.

Anderson (1987) 43 Cal.3d 1104, 1120 [240 Cal.Rptr. 585, 742 P.2d 1306].) As defendant acknowledged in his motion, as an alternative to severance, Ricardo’s statement to police would be admissible against Ricardo if it was redacted to omit any portion that incriminated defendant. For this proposition he cited Richardson v. Marsh (1987) 481 U.S. 200 [95 L.Ed.2d 176, 107 S.Ct. 1702] (Richardson).

In Richardson, the United States Supreme Court held “the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to ehminate not only the defendant’s name, but any reference to his or her existence.” (Id. at p. 211.) At the hearing on defendant’s motion, the prosecutor informed the court that to avoid severance he intended to confer with defense counsel to reach an agreement regarding Ricardo’s statement.

At the next pretrial conference, the prosecutor read into the record the agreed-upon stipulation: “[0]ur agreement is that any reference to [defendant], anything that he said, the fact that he was involved in any conversations with Mr. Ricardo Lopez, the fact that there were even three-way [telephone] conversations [between defendant, Ricardo and Uribe], which would indicate that this was a missing third party there, those will be deleted.

Our agreement is, however, that any references to those conversations, since they were three-party conversations, will only include reference to the fact that this was a conversation between Ricardo Lopez and this person George [sic] Uribe, also known as Felon, during which the murder of Miss Carmody was discussed, but there will not be any reference to the fact that this was a three-way conversation or that [defendant] was involved, [f] I believe we’ve looked this over. We’ve looked together.

We’re aware of what the prevailing case law is in this area, and we believe that this is in conformance with Richardson v. Marsh.” Defense counsel added: “So stipulated, with the further proviso, so I understand that [the prosecutor] will instruct his investigating officers, if they testify to any portion of Ricardo Lopez’s statement, that they will not inadvertently, or otherwise, refer to those passages that have been redacted.” The prosecutor agreed to this condition and the court accepted the stipulation.

In the prosecutor’s opening statement, he told the jury that he would be calling Patty Lopez, defendant’s sister, to testify that in the days before Mindy’s killing Patty arranged a three-way call among defendant, Ricardo and Uribe. Defense counsel objected, arguing that evidence that Patty set up a three-way call violated the stipulation. According to counsel, “The agreement was not only that the content of the conversation not be admissible, not be presented to the jury, but the very fact of a three-way conversation likewise [be] totally off limits.” He requested a mistrial.

The prosecutor maintained that the stipulation related solely to Ricardo’s statement to the police and did not preclude other, independent testimony about the existence of the three-way call. He stated that he had disclosed to defense counsel that he intended to call Patty Lopez. The court found, however, that the prosecutor’s opening statement “appeared to be violative of the spirit, if not the absolute language of the stipulation,” and took the mistrial motion under submission. The next day, there was further discussion of the matter.

The prosecutor insisted that the stipulation applied only to Ricardo’s statement and that its sole purpose was to comply with Richardson, supra, 481 U.S. 200, and avoid severance. The following day, the court reviewed the stipulation on the record and agreed with the defense that it precluded “mention of a three-way conversation.” Again, however, the prosecutor argued that the stipulation covered only Ricardo’s statement, adding, “I would no way enter into any agreement limiting my ability to present other evidence in this case.

And I did not do that, and it was never my intention to do that.” The prosecutor pointed out that Patty Lopez’s testimony about setting up the three-way call impeached defendant’s statement to police that he had not spoken to his brother in the days before the shooting. He observed further that, unlike Ricardo, who did not plan to testify, Patty Lopez would testify and could be cross-examined, as could other witnesses who would be testifying regarding the phone records and what they showed. At the conclusion of the hearing, the trial court denied the mistrial motion.

In the court’s view there was “not a meeting of minds” with regard to the stipulation and it considered any agreement to be “limited as set forth by [the prosecutor].” Defendant’s counsel argued that if the content of the three-way conversation was inadmissible under the stipulation, the existence of any such call would be irrelevant or lead to impermissible speculation about the content. The court disagreed, observing that the existence of the call itself had some relevance.

Defendant renewed his objection prior to Patty Lopez’s testimony, making the further argument that, even if relevant, the testimony would be more prejudicial than probative. The trial court again remarked that the stipulation was not clear and overruled the objection. When questioned about the call, Patty Lopez initially claimed a loss of memory, even when confronted with her statement to police admitting that she set up three-way calls before and after the shooting. Ultimately, she admitted she had told police she had set up a three-way call among defendant, Ricardo, and Uribe the week before the shooting.

The prosecution later called Detective Michael Oppelt, who interviewed defendant after the shooting. Oppelt explained that defendant told him the last time he had spoken to Ricardo was when defendant was initially arrested on the kidnapping and assault charges several weeks before the shooting. According to the detective, defendant also said he had not spoken to Uribe after he was arrested. b. Discussion Defendant contends that the admission of Patty Lopez’s testimony violated the stipulation regarding the redaction of Ricardo’s statement to police.

As noted, the prosecutor argued—and the trial court ultimately agreed— that the stipulation was intended solely to avoid severance of defendant’s trial from Ricardo’s trial by redacting Ricardo’s statement to eliminate any reference to defendant pursuant to Richardson, supra, 481 U.S. 200. Defendant contends that the stipulation could be given effect only by interpreting it to exclude all references to the three-way phone conversation, including Patty Lopez’s testimony, and that the trial court erred by interpreting the stipulation to permit her testimony.

The trial court initially agreed that the stipulation was at first blush broad enough to lend some support to defendant’s

interpretation of it. After hearing the prosecutor’s explanation, which evidently the court credited, the court concluded there had been no meeting of the minds between the parties. It then construed the stipulation to limit it to Ricardo’s statement to the police. We conclude that the stipulation itself was broadly worded in parts and that the trial court’s ultimate

interpretation of it was reasonable in light of the circumstances that led the parties to agree to the stipulation and defense counsel’s further proviso. The record reveals that those concerns dealt exclusively with the admissibility of Ricardo’s statement to police in such a way that would not require severance. To achieve this goal, Richardson required the redaction of Ricardo’s statement but not the preclusion of ‘Patricia Lopez’s testimony. The trial court’s

interpretation of the stipulation gave the parties what they had bargained for. In the analogous case of People v. Dyer (1988) 45 Cal.3d 26, 54 [246 Cal.Rptr. 209, 753 P.2d 1] (Dyer), the defendant made a motion under People v. Beagle (1972) 6 Cal.3d 441, 451-454 [99 Cal.Rptr. 313, 492 P.2d 1], to exclude his three prior felony convictions for impeachment purposes should he testify in his defense. The prosecutor orally agreed that he would not impeach defendant with those prior convictions.

Defense counsel asked whether the prosecutor also intended to refrain from asking character witnesses about the defendant’s prior convictions.

The prosecutor replied, “ ‘It would apply to that,’ ” and explained he would ask his witnesses not to volunteer any information about the defendant’s prior convictions. (Dyer, supra, at p. 55.) He stated further, “ ‘we assent to [the defendant’s] request not to bring out in any way before this jury in this [guilt] phase of the trial any evidence of any nature concerning any prior convictions suffered by the defendant in this phase of the trial.’ ” (Ibid.) Later, defense counsel asked a defense witness about the defendant’s reputation.

The trial court interrupted the witness’s testimony to confer with counsel regarding the extent of the prosecutor’s stipulation. The question on which the court sought clarification was whether the prosecutor had intended by the stipulation to refrain from asking a witness who testified to the defendant’s reputation for nonviolence about the prior convictions. Defense counsel argued that the stipulation barred the prosecutor from asking about the prior convictions with respect to any character evidence. The prosecutor rejected that

interpretation, arguing it was never his intention to allow the defendant to present unchallenged reputation evidence “ ‘because then it would be basically asking me if I would let the jury hear false information about the defendant. ... So it was never clearly stated to me [by the defense] that there was an attempt to get me to be silent when the jury gets this false notion that this defendant has been nonviolent in his past. And I would not have acceded to those things, and I don’t think the Court would require me to do that.’ ” (Dyer, supra, 45 Cal.3d at p. 55.) The trial court agreed.

It found that there had been no “ ‘meeting of the minds’ ” regarding the stipulation. (Dyer, supra, 45 Cal.3d at p. 56.) It concluded further that the prosecutor’s

interpretation in the context in which the stipulation arose—the defendant’s Beagle motion—was correct: that the prosecutor had intended to agree only that he would not raise the issue of the defendant’s prior convictions through his own witnesses. “The court observed that there was no reason for the prosecutor intentionally to forgo his right to impeach defendant’s character witnesses, and defense counsel never indicated that he meant to obtain from the prosecutor a waiver of his right to impeach any witness on defendant’s veracity or his lack of violent propensities.” (Ibid.) We found the trial court’s ruling to be proper.

We observed that a party may seek relief from the burdensome effect of a stipulation “ ‘by enforcement of the stipulation in a reasonable and nonburdensome way.’ [Citation.] The court followed that procedure here; it did not purport to release the prosecutor from his stipulation, but merely interpreted it to reflect the probable intention of the parties.” (Dyer, supra, 45 Cal.3d at p. 57.) We noted that the “court could have simply released the prosecutor from the stipulation,” but, instead, “in effect found here that the stipulation, as interpreted by defense counsel, should not be binding.” (Ibid.) Although factually distinguishable, Dyer provides some guidance in the present case.

As in Dyer, the trial court in the present case found there was no meeting of the minds regarding the meaning and scope of the stipulation at issue. The defense argued the purpose of the stipulation- was to prohibit any evidence of the existence of the three-way call. The prosecutor argued the sole purpose of the stipulation was to comply with Richardson and to permit the admission of Ricardo’s confession and avoid severance. The trial court concluded the prosecutor’s

interpretation was the more reasonable one. We agree. Defendant’s severance motion specifically referred to redaction under Richardson as an alternative to severance. The prosecutor’s initial comments to the court indicated that he hoped to reach agreement with the defense to redact Ricardo’s confession to avoid the need for severance. Additionally, when the stipulation was entered into the record the prosecutor stated that it was “in conformance with Richardson v.

Marsh.” These circumstances support the trial court’s conclusion that the prosecutor did not intend by the stipulation to preclude evidence about the existence of the three-way call other than by Ricardo’s statement to the police. The trial court’s ruling is consistent with Richardson itself. Under Richardson, a defendant’s confrontation clause rights are protected at a joint trial by the redaction of any reference to the defendant in his or her codefendant’s confession even if the redacted confession incriminates the defendant when linked to other evidence introduced at trial. (People v.

Mitcham (1992) 1 Cal.4th 1027, 1046-1047 [5 Cal.Rptr.2d 230, 824 P.2d 1277].) In accordance with this principle, compliance with Richardson did not require the exclusion of Patty Lopez’s testimony even if that testimony, when linked to Ricardo’s redacted confession, might incriminate defendant. Defendant next contends that any ambiguity in the stipulation should be construed in his favor. He provides no decisional support for such a rule.

As the stipulation was construed by the court, defendant received what he was entitled to receive under Richardson—the redaction of Ricardo’s statement to eliminate any reference to him. As noted, Richardson does not require the exclusion of other evidence that, when linked with the redacted statement, might incriminate defendant. That evidence, moreover, had relevance beyond any possibly incriminatory effect when linked to Ricardo’s redacted statement in that it impeached defendant’s statement to police that he did not speak to Ricardo or Uribe in the days leading up to Mindy’s killing.

We also reject defendant’s argument that any ambiguity should be construed in his favor because the prosecutor caused the uncertainty. The record reveals that the stipulation was the fruit of negotiations between both parties. Defense counsel had an opportunity to speak up before accepting the stipulation and did, in fact, add to it his understanding that the prosecutor would instruct his police witnesses to refrain from referring to any portion of Ricardo’s interview that had been redacted. We see no reason to hold any ambiguity against the prosecution.

Nor are we persuaded by defendant’s claim that he relied on the stipulation when he withdrew his severance motion because he believed it protected defendant’s confrontation clause rights. In line with the requirements of Richardson, the stipulation did protect his rights, even as ultimately construed by the trial court. Defendant next argues that the evidence was either irrelevant or, if relevant, that its probative value was outweighed by its prejudicial effect. (Evid.

Code, § 352.) “ ‘Except as otherwise provided by statute, all relevant evidence is admissible.’ [Citations.] ‘Evidence is relevant if it tends “ ‘logically, naturally, and by reasonable inference’ to establish material facts (People v. Clark, supra, 52 Cal.4th at p. 892.) “[T]he trial court has broad discretion to determine the relevance of evidence. [Citation.]” (People v.

Cash (2002) 28 Cal.4th 703, 727 [122 Cal.Rptr.2d 545, 50 P.3d 332].) Applying this standard, we conclude that Patty Lopez’s testimony was clearly relevant both as tending to show defendant’s participation in the planning of Mindy’s killing and to impeach defendant’s statement to police that he had not spoken to either Ricardo or Uribe after his initial arrest for the kidnapping and assault. Nor, contrary to defendant’s claim, did the trial court abuse its discretion when it denied his motion to exclude the testimony as more prejudicial than probative under Evidence Code

section 352. Under this section, the court may exclude even relevant evidence if “its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) We review the trial court’s rulings under this

section for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 724 [94 Cal.Rptr.2d 396, 996 P.2d 46].) “The prejudice which exclusion of evidence under Evidence Code

section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. . . . ‘The “prejudice” referred to in Evidence Code

section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying

section 352, “prejudicial” is not synonymous with “damaging.” ’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638 [250 Cal.Rptr. 659, 758 P.2d 1189].) The evidence that defendant participated in the three-way call with his brother and Uribe was undoubtedly damaging to him. But it was not prejudicial under Evidence Code

section 352, as articulated above. Defendant’s arguments to the contrary are not persuasive. Defendant asserts that Patty Lopez’s testimony was only minimally probative because defendant’s denial that he had spoken to Ricardo or Uribe did not show a consciousness of guilt about anything related to the crime. Patty Lopez testified that defendant spoke to the two men responsible for Mindy’s murder in the days before the shooting. Given this evidence, defendant’s denial that he had spoken to Uribe or Ricardo in that timeframe raised a strong inference of consciousness of guilt.

Defendant asserts furthermore that the testimony was prejudicial because the jury could have inferred that defendant’s conversation with Ricardo and Uribe was in furtherance of the plan to kill. Indeed, that was one of the purposes for which the evidence was introduced. Although the evidence arguably “prejudiced” defendant in the same way that all evidence linking him to the crime was “prejudicial,” it did not prejudice him within the meaning of Evidence Code

section 352. (People v. Karis, supra, 46 Cal.3d at p. 638.) Defendant also argues that Patty Lopez’s testimony was cumulative to other evidence that he called and spoke to a number of people while in custody. But her testimony was the only direct evidence that defendant spoke to Ricardo and Uribe in the days before the murder. The only other evidence was the Lopez family’s phone records and records of defendant’s location while in custody. These records established that defendant called his family’s residence from custody but did not establish to whom he spoke.

Patty Lopez’s testimony was not cumulative of other evidence. Moreover, to the extent her testimony was cumulative, it weakens defendant’s claim that it was prejudicial within the meaning of Evidence Code

section 352. The inferences to be drawn from Patty Lopez’s testimony that he finds objectionable—that he planned the killing with Ricardo and Uribe—could also have been drawn from the documentary evidence cited above. The court did not abuse its discretion when it admitted Patty Lopez’s testimony. 2. Ramon Ramos’s preliminary hearing testimony Defendant contends the trial court erred when it admitted evidence against him of codefendant Ricardo’s state of mind on the night of the murder. We agree with defendant but conclude that the error was harmless.

Ricardo presented the preliminary hearing testimony of Ramon Ramos in his defense after Ramos refused to testify at the trial and the trial court declared him unavailable. (Evid. Code, § 240.) Ricardo’s counsel requested that only certain portions of Ramos’s prior testimony be read into evidence, including his statements that he and Ricardo were drinking on the night of the murder, that Ricardo and Mindy spoke to each other in loud voices, and that after Ricardo shot Mindy he put the gun to his own head.

The prosecutor requested that other portions of Ramos’s testimony also be read, specifically his statement that when Ricardo pointed the gun to his head, he said, “It’s for my carnal,” which meant, “It’s for my brother.” Defendant’s counsel objected that the statement was inadmissible hearsay and improper rebuttal.

The prosecutor countered that the statement “was consistent with other testimony we received from the other witnesses, and that one of the witnesses testified that she heard the word ‘brother’ when [Ricardo] was doing it.” The court overruled the defense objection, concluding that the phrase did not refer to any conversation between Ricardo and defendant, but only to Ricardo’s state of mind at the time of the shooting. After Ramos’s testimony on this point was admitted, defendant’s counsel renewed his objection and added an objection that the testimony “calls for a conclusion.” The court overruled the objection.

The parties agree that the trial court admitted the statement for the nonhearsay purpose of showing Ricardo’s state of mind at the time of the shooting. (Evid. Code, §§ 1250, 1251.) They disagree, however, as to whether the state of mind evidence was relevant. (People v. Bunyard (1988) 45 Cal.3d 1189, 1204 [249 Cal.Rptr. 71, 756 P.2d 795] [“[A]n out-of-court statement is not made admissible simply because its proponent states a theory of admissibility not related to the truth of the matter asserted. . . . ‘ .

The trial court must also find that the nonhearsay purpose is relevant to an issue in dispute.’ ”].) Defendant maintains that Ricardo’s state of mind was irrelevant to any issue involving him. He contends further that the evidence was improper rebuttal because he had not placed Ricardo’s state of mind at issue. The Attorney General argues that Ricardo’s state of mind was relevant in that Ramos’s prior testimony suggested that Ricardo’s act of shooting Mindy was unplanned and unpremeditated. There are two problems with the Attorney General’s theory.

The first is that the statement, “It’s for my camal” is as consistent with an impulsive action as a planned one. The second problem is that such evidence would tend to show premeditation only if it were admitted for its truth—that Ricardo shot Mindy on behalf of, or at the behest of, his brother. We agree with defendant that the evidence was improper rebuttal because he had not placed Ricardo’s state of mind at issue and to the extent the evidence was used against defendant, it was admitted in error. We disagree, however, with defendant’s further assertion that the error was prejudicial.

This testimony was fleeting and-—as we discuss more fully below (pt. H.C., post) in addressing defendant’s sufficiency of the evidence claim— there was more than sufficient evidence that Ricardo committed the murder at defendant’s behest. Indeed, as the Attorney General points out, the prosecution had presented testimony in its case-in-chief that when Ricardo was shooting Mindy he said something to her about his brother. On this record, we conclude that the error was harmless. (People v.

Jablonski (2006) 37 Cal.4th 774, 820-821 [38 Cal.Rptr.3d 98, 126 P.3d 938] [in light of overwhelming evidence of the defendant’s guilt, the erroneous admission under Evid. Code, § 1250 of the victim’s statement that she feared the defendant was harmless under either state or federal standards of assessing prejudice].) 3. The 187 evidence Over defendant’s objection, the trial court admitted the testimony of two witnesses who indicated that they saw the number 187—inferentially a reference to

section 187, the murder statute—on the victim’s pager after she was shot. A paramedic saw the number 187 on the pager as he transported Mindy to the hospital. The hospital chaplain also saw a series of 187’s and a phone number later identified as belonging to Mindy’s mother. The pager indicated the message had been received at 8:42 p.m. The precise time of the shooting was not established, but a witness testified that it was about 9:00 p.m. when she found Mindy lying in the street, still alive.

When defendant spoke to police two weeks after the shooting, he spontaneously said that Mindy told him that she had been receiving the number 187 on her pager. He assured her the message was not from anyone in his family. Defendant contends that the 187 evidence was irrelevant and speculative or, even if relevant, its probative value was outweighed by its prejudicial effect. We find no abuse of discretion.

Evidence that a shorthand reference to the Penal Code’s murder statute appeared on the victim’s pager near the time she was shot tended to support the prosecution’s theory that the shooting was premeditated and not the result of Ricardo’s impulsive action. Defendant asserts that the evidence was speculative because the identity of the person who sent the message was not established. Although no direct evidence proved the sender’s identity, the existence and timing of the message tended to raise the reasonable inference that the page was sent by defendant or at his request.

Notably, during defendant’s custodial interrogation, he spontaneously volunteered that Mindy had told him the number 187 had appeared on her pager. The jury reasonably could have disbelieved defendant’s claim that he had learned of this from the victim herself, particularly because there was no evidence that he had spoken with Mindy in the days before her murder. Rather, the jury could have concluded that defendant offered this explanation to police preemptively before the police could confront him with the evidence that the number had been observed on her pager after she was shot.

The appearance of the number 187 on the victim’s pager when coupled with defendant’s spontaneous attempt to deflect any responsibility for it was indisputably relevant to the issue of defendant’s involvement in the shooting. Nor was the probative value of the evidence outweighed by its prejudicial effect under Evidence Code

section 352. It was simply not the kind of evidence that “ ‘ “ ‘uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’ ” ’ ” (People v. Doolin (2009) 45 Cal.4th 390, 439 [87 Cal.Rptr.3d 209, 198 P.3d 11].) Accordingly, the trial court did not abuse its discretion in admitting the pager evidence. 4. Limitations on cross-examination of Susan Carmody Defendant contends the trial court erroneously sustained prosecution objections to three questions that his counsel asked during cross-examination of the victim’s mother, Susan Carmody.

Specifically he asserts that the trial court erred when it prevented counsel from asking (1) how many times Mindy had run away from home before she moved in with defendant’s family, (2) whether Mindy returned home of her own volition or because she was tightened, and (3) whether Carmody had once said that Mindy dressed “like a [W]hite girl” when she and Carmody were together but “like a chola” when they were not. (Defendant explains that “chola” is a slang word for a Latina gang member.) The trial court did not abuse its considerable discretion in sustaining the prosecutor’s objections to these questions.

Carmody testified that Mindy had run away from home before she moved in with defendant’s family and that at the time Mindy moved in with defendant, she was 14 or 15 years old. Carmody testified further that she did not demand that Mindy return home because she felt Mindy was safe and being cared for at the home of defendant’s family. Defendant contends that evidence regarding the number of times Mindy ran away from home was necessary because otherwise he might have been perceived as the person responsible for, or as having contributed to, the victim’s problems with her mother. This is not persuasive.

Testimony by a mother that her 14- or 15-year-old daughter had run away from home more than once before she moved in with her boyfriend’s family was plainly indicative of a troubled family dynamic that predated defendant’s relationship with Mindy. Indeed, Carmody’s further testimony that she allowed her daughter to remain with defendant’s family because Mindy was safe and being cared for would have put defendant and his family in a positive light. The exclusion of testimony regarding the number of times Mindy had run away from home was not an abuse of discretion.

Nor did the court abuse its discretion when it sustained the prosecution’s objection to defense counsel’s question whether the police had tightened Mindy into returning home from defendant’s house. Carmody had already testified it was possible Mindy returned home because “some police officers scared her into doing so.” She testified further that Mindy maintained her relationship with defendant even after she returned home.

Defendant asserts the court should have allowed him further examination of Carmody concerning the circumstances under which Mindy returned home to dispel any implication that Mindy did so because she had rejected defendant. But the jury was aware that Mindy continued her relationship with defendant after she returned home and that her return home may have been the result of police intervention. The court did not err in declining to allow further questioning on this minor and peripheral point.

Finally, defendant asserts the trial court erred in prohibiting him from questioning Carmody regarding her reputed statement concerning Mindy’s manner of dressing because it was relevant to explore Carmody’s state of mind and her bias in this case as a result of her daughter’s relationship with defendant. Defense counsel had already elicited testimony from Carmody that she was upset about Mindy’s relationship with defendant and that she had chosen to live with him. Moreover, Carmody’s bias would have been unmistakable to the jury, given that defendant stood accused of arranging Mindy’s killing.

The trial court did not abuse its discretion in prohibiting a question the main point of which appeared to be to attempt to establish that Carmody was generally prejudiced against Latinos. 5. Evidence of the victim’s demeanor at the kidnapping preliminary hearing After the victim’s preliminary hearing testimony was read into the record, the prosecutor questioned one of the detectives who had been present when Mindy testified, regarding Mindy’s demeanor. Defendant objected that the testimony was irrelevant and speculative. The objection was overruled.

The detective testified briefly that Mindy was “frightened, upset and sometimes crying,” and, at one point, was given tissues by the trial judge, who asked her, “ ‘Would you like to go on?’ ” Defendant renews his claim that testimony regarding the victim’s demeanor at the preliminary hearing was irrelevant and may have led the jury to speculate that she was frightened to be giving testimony against defendant. The Attorney General asserts the evidence was relevant to the jury’s assessment of Mindy’s demeanor for purposes of judging her credibility at the prior hearing. (Evid.

Code, § 780.) Defendant responds that such assessment must be made contemporaneously with the witness’s testimony and not by secondhand evidence in the witness’s absence. Evidence Code

section 780 provides in pertinent part: “Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [f] (

a) His demeanor while testifying and the manner in which he testifies.” “[A] witness’s ‘demeanor is always relevant to credibility.’ [Citations.]” (People v. Scott (2011) 52 Cal.4th 452, 493 [129 Cal.Rptr.3d 91, 257 P.3d 703].) The Attorney General argues that Evidence Code

section 780 does not limit demeanor evidence to the jury’s firsthand observations of the witness as he or she is testifying before the jury but, when the witness is unavailable, such evidence may be supplied by other witnesses. Defendant contends that permitting secondhand testimony regarding demeanor may violate the confrontation clause because the defendant is unable to effectively challenge such evidence. We need not decide whether admission of this testimony was error because any error would have been harmless under any standard of prejudice.

The testimony was brief and the prosecutor did not emphasize the officer’s observations in his closing argument. Furthermore, the jury reasonably could have found from Mindy’s preliminary hearing testimony that she was frightened by defendant. Mindy testified, for example, that she refused to allow defendant to come to her house because “I’m scared of him,” and that she was frightened when defendant pushed her into his car. We conclude any error in permitting the officer to testify regarding Mindy’s demeanor at the preliminary hearing was harmless. 6.

Evidence of Mindy’s diary entry and her statements to one of her teachers During the defense case, defendant’s mother, aunt and uncle testified that, on the day Mindy was allegedly kidnapped and assaulted, she appeared to them to have been uninjured and unafraid and that she was with defendant of her own volition. In rebuttal, and over defendant’s objection, the prosecution introduced a passage from Mindy’s diary and a statement she made to one of her teachers that were consistent with her testimony at the preliminary hearing that defendant had assaulted and kidnapped her.

The diary entry read: “[Defendant] broke in and stabbed me and choked me and kidnapped me. Went to Police station, went to Grandma’s.” Mindy’s teacher testified that Mindy told him defendant had broken into her house, threatened her, held a knife to her neck and taken her to his aunt’s house. On appeal, defendant argues the rebuttal evidence was improperly admitted because it did not constitute a prior consistent statement and it violated his confrontation and due process rights and his right to a reliable capital trial. His argument is meritless.

Defendant’s confrontation clause claim is not preserved on appeal because he did not object to the admission of the rebuttal evidence on that ground. (People v. Riccardi (2012) 54 Cal.4th 758, 801 & fn. 21 [144 Cal.Rptr.3d 84, 281 P.3d 1] (Riccardi).) His claim, based on Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354], also is without merit.

In Crawford, the United States Supreme Court held that “ ‘[testimonial statements of witnesses absent from trial [can be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.’ ” (Williams v. Illinois (2012) 567 U.S. _ [183 L.Ed.2d 89, 132 S.Ct. 2221, 2232].) But neither the diary entry nor Mindy’s statement can be deemed testimonial within the meaning of Crawford.

Under the circumstances of this case, Mindy’s recording of the day’s events in her private diary and her disclosure of the incident to a trusted teacher, like other “informal statement[s] to a person not affiliated with law enforcement,” fall outside the scope of the confrontation clause, which is concerned with “formal and solemn accusatory statements ... in the context of criminal investigations or inquiries.” (People v.

Cage (2007) 40 Cal.4th 965, 987 [56 Cal.Rptr.3d 789, 155 P.3d 205], italics omitted; see id. at pp. 986-991 [assault victim’s statement to a hospital physician identifying the defendant as his assailant was nontestimonial].) Defendant’s Crawford claim fails.

We turn now to whether this evidence was properly admitted, over defendant’s objection, under the exception to the rule against admitting hearsay to prove prior consistent statements. “To be admissible as an exception to the hearsay rule, a prior consistent statement must be offered (1) after an inconsistent statement is admitted to attack the testifying witness’s credibility, where the consistent statement was made before the inconsistent statement, or (2) when there is an express or implied charge that the witness’s testimony recently was fabricated or influenced by bias or improper motive, and the statement was made prior to the fabrication, bias, or improper motive. (Evid.

Code, §§ 791, 1236.)” (Riccardi, supra, 54 Cal.4th at p. 802.) Here, as in Riccardi, we “are presented with the latter situation—an express or implied charge t

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