THE PEOPLE, Plaintiff and Respondent, v. DANIEL NUNEZ and WILLIAM TUPUA SATELE, Defendants and Appellants, 57 Cal. 4th 1

Opinion KENNARD, J. A jury convicted defendants Daniel Nunez and William Tupua Satele of the first degree murders of Renesha Ann Fuller and Edward Robinson. (Pen.

Code, §§ 187, subd. (a), 189.) The jury also found true special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)), and sentence enhancement allegations that defendants committed the murders to benefit a criminal street gang and used firearms to commit them. (§§ 186.22, subd. (b)(1), 12022.53, subd. (d).) Special circumstance allegations that defendants intentionally killed the victims because of their race (§ 190.2, subd. (a)(16)) were found not true, as were enhancement allegations that defendants committed the murders in concert because of the victims’ race (§ 422.75, former subd. (c), now subd. (b)).

At the penalty phase, the jury returned death verdicts, and the trial court entered judgments of death. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).) For the reasons that follow, we vacate the true findings for the street gang and firearm use enhancements, as well as one multiple-murder special-circumstance finding for each defendant, and otherwise affirm the judgments. I. Factual Background A. Guilt Phase 1.

Prosecution evidence On October 29, 1998, about 11:00 p.m., a Black couple, Edward Robinson and his girlfriend Renesha Ann Fuller, were shot and killed outside Robinson’s town house at 254th Street and Frampton Avenue in Harbor City. Robinson’s sister heard the shots, looked out her second-story window, and saw a big, older model car with horizontal taillights driving away. Four shell casings were found at the scene. An autopsy revealed that Robinson was shot three or four times. Fuller was shot twice, but one of the bullets may have first traveled through Robinson.

Ernie Vasquez, who was in the area that night, testified that even though few cars were on the road the night of October 29, 1998, on several occasions during a period of 15 to 20 minutes he saw an older Buick Regal or similar model sedan, burgundy or dull red in color, driving near the area of the murders. The car, which contained three or four people Vasquez did not know, had horizontal taillights.

Vasquez later identified Juan Carlos Caballero as the driver. (Caballero was murdered shortly after the murders in this case.) Persons resembling defendant Satele (also known as “Wilbone”) and defendant Nunez (also known as “Speedy”) were, respectively, in the front passenger seat and backseat of the vehicle. After about 11:00 p.m., while Vasquez was parked in a hotel driveway, he heard shots, ducked down, and then drove away. After driving for about a minute, he saw a body lying in the road, and stopped to assist the victim, who he later learned was Robinson.

Around midnight that same night, about an hour after Robinson and Fuller were murdered, Joshua Contreras met both defendants and Caballero at a neighborhood park. Defendants and Contreras were members of the West Side Wilmas gang. Contreras heard defendant Satele say, “We were out looking for niggers,” and heard Satele or Nunez say, “I think we hit one of ’em.” The next evening, Contreras was at a friend’s house with several people, including both defendants.

Satele appeared nervous, and told Contreras that the murders of the “Black guy and Black girl” that he had shot were “in the news.” Satele told Contreras “he was driving right there in Harbor City and he saw a Black guy or Black girl hugging or kissing or something and he just shot them.” Later that night around 3:40 a.m., Los Angeles Police Officers Adam Greenburg and Vinh Nguyen were in a marked police car when they saw a car, later identified as a four-door Chrysler, driving with its headlights off. The Chrysler pulled over to the curb.

As the officers pulled in front of the Chrysler and activated their car’s emergency lights, three occupants fled the Chrysler. (At trial, Officer Greenburg identified defendant Nunez as the person who had been driving and defendant Satele as the person who had been seated in the front passenger seat.) The police pursued Satele and arrested him. On the Chrysler’s driver’s seat was a white baseball cap with the word “west” on the front and the name “Speedy” on the back. Between the driver’s and passenger seats was a large semiautomatic Norinco Mak-90, an AK-47-type assault rifle.

The rifle was identified as the murder weapon through ballistics testing. A magazine attached to the weapon contained 26 live rounds of jacketed hollow-point cartridges; the magazine was capable of carrying 30 rounds.

Joshua Contreras, who had joined the West Side Wilmas gang shortly before the two murders, told police that both defendants were “riders”— persons who “kill[ed] their enemies”—and that they had an AK-47 rifle they called “Monster.” Contreras saw defendant Satele put the AK-47 into the “car that Speedy [(defendant Nunez)] had” shortly before defendant Satele was arrested. (At trial, Contreras denied or claimed not to remember his statements to police, and those statements were introduced as prior inconsistent statements.) On December 3, 1998, several weeks after the two murders, Ernie Vasquez and defendant Satele were in a cell in a Los Angeles County jail.

When Satele heard that Vasquez was from Harbor City, he asked if Vasquez had heard about the killings there. When Vasquez said, “I think so, yes” or “something ... to that nature,” Satele said, “Well, we did that,” or possibly “I did that,” adding, “I AK’d them,” or “We AK’d them.” Vasquez mentioned these statements to police officers on January 6, 1999, after his fingerprint had been found on victim Fuller’s car. At Vasquez’s request, he was then transferred to the Lynwood jail, which was closer to his home. On January 7, 1999, defendant Nunez, who was a trusty at Lynwood jail, approached Vasquez.

Nunez asked if Vasquez was from Harbor City, and Vasquez said, “Yes.” Nunez said he had killed “those niggers ... in your neighborhood.” Nunez mentioned that he had been driving down the street when one of the victims “looked at him wrong,” so Nunez “turned back around and blasted” the victim. On February 9, 1999, Los Angeles Police Detective Robert Dinlocker showed both defendants a photograph of the four-door Chrysler in which they were seen on the night after the murders, and asked them if that car was used in the homicide.

Two days later, defendants were falsely told they were going to be booked on murder charges; while being transported together to and from the courthouse their conversations were recorded. Defendant Satele said: “I not even really sweating it dog, because all that shit that they got, that shit’s wrong. . . . But if them mother fuckers would have shown me the car that we fuckin’ actually did that shit in, fuck, I’d be stressing like a mother fucker.” At defendants’ murder trial, Ruby Feliciano testified that she owned the four-door Chrysler in which defendants were seen on the night after the murders.

A week earlier, she had taken the car to defendant Nunez for repairs, and he had promised to return the car that evening. He did not do so, and a week later she saw a woman driving her car. When she later told Nunez she was going to report her car as stolen, he threatened her life. After the car was impounded by police shortly after the two murders, Feliciano received a telephone call from Nunez’s girlfriend; Nunez, who was in jail, was also on the line.

During this three-way conversation, Nunez asked Feliciano to change what she had told the detectives, and his girlfriend asked Feliciano to say that she had spoken to Nunez and his girlfriend at a certain time on the night police recovered the car, and that Nunez had been home at the time. The prosecution presented evidence of defendant Nunez’s animus against Blacks. Esther Collins, who is Black, testified that in September 1997, defendant Nunez, who was intoxicated, came up to her in her garage and, calling her a “nigger,” asked for money or drugs.

When Collins said she had none, Nunez again called her a “nigger” and spat on her. He then hit Collins in the mouth with a hard object, fracturing her jaw, and said, “Nigger, get up nigger.” Collins’s husband, who is also Black, came out to the garage with a “pop gun” in an effort to scare Nunez off. Nunez laughed at him, threw “the word ‘nigger’ around,” and left. Collins, who was afraid of the West Side Wilmas gang (of which Nunez was a member), did not report the incident to the police that day because she did not want trouble. When Collins later reported the assault, she did not mention that Nunez was drunk.

At the time Collins testified against defendants, she was incarcerated. She testified that on one occasion when she and defendant Nunez were on the bus from jail to court, he said, “Are you testifying? Don’t testify. Something like that.” Nunez also asked, “Where is your son? Is he in custody?” Collins denied she was personally afraid to testify, but said she feared reprisal against her son, who was also in prison, because “[ijt’s a black and racial thing in jail.” Los Angeles District Attorney’s Office Investigator John Neff testified he had spoken to Collins the week before her testimony.

Collins told him she was afraid to testify because, while on the transportation bus, “one of the defendants had made a veiled threat by asking how her son was,” and then saying, “ ‘You’re not going to testify, are you?’ ” The prosecution presented evidence that West Side Wilmas gang members other than defendants had committed crimes. Detective Dinlocker testified that Ruben Figueroa and Brian Dominic Martinez were West Side Wilmas gang members, and the prosecution introduced records of Martinez’s conviction for assault with a firearm and Figueroa’s convictions for murder and assault with a deadly weapon.

Los Angeles Police Officer Julie Rodriguez testified as an expert on the West Side Wilmas gang. She said the gang’s primary activities are “anything that’s going to benefit the gang,” including narcotics sales and murder. “Associates” of the gang are younger boys who are “trying to prove themselves,” and “hang out with the gang members,” but who “aren’t quite yet” gang members. The area of the two murders was not claimed by the West Side Wilmas but by rival gangs.

According to Rodriguez, murdering a Black couple with no gang ties would cause defendants to “move ... up in the gang.” In her view, if defendants here murdered Robinson and Fuller (a Black couple with no gang ties), they did so with the specific intent to promote, further or assist in the criminal activity of West Side Wilmas.

Los Angeles County Deputy Sheriff Scott Chapman, who was assigned to the gang unit at the Men’s Central Jail, testified that while rival gang members in the street will attack each other, “[o]nce they come into county jail it becomes a race issue . . . [and] [t]hey bond together to protect themselves.” Hispanic gangs sometimes include persons who, like defendant Satele, are of Samoan descent. 2. Defense evidence a.

Defendant Nunez Yolanda Guaca, defendant Nunez’s girlfriend and the mother of his two children, testified that Nunez was at home with her from about 9:00 or 10:00 p.m. on October 29, 1998 (the night of the murders), until the next morning. Guaca’s mother, Sandra Lopez, gave similar testimony. Lopez, who lived with defendant Nunez and Guaca, said that the only way in and out of their home was through the front door.

Because the front screen door was damaged, once everyone was home she ordinarily tied a string to it in such a manner that the door could not be entered from the outside unless a person inside the house opened it. When she awoke on the morning of October 30, the string had not been disturbed. Defendant Nunez testified that he was bom in National City and was 24 years old. Between the ages of 10 and 12 he stole bicycles for the West Side Wilmas. When he was “[m]aybe 12” years old he became a member of the gang and began selling rock cocaine and sometimes marijuana.

Between the ages of 14 and 20 he was incarcerated for auto theft and selling cocaine. While incarcerated, he and three other inmates assaulted two other Latino gang members. After his release at age 20, defendant Nunez moved into the Norwalk home his mother shared with her husband, defendant’s younger sister, and his younger brother. He worked in a warehouse for several months, but he had difficulty getting a ride to work and did not know how to take the bus. He was accepted at Cerritos College, but left the area before the semester began.

Defendant Nunez left his mother’s home after two months because he did not want to interfere with his mother’s life. His father, who lived in San Diego, had not helped in raising him, and he did not want to ask his father for anything. He returned to Wilmington and to the West Side Wilmas gang because he “didn’t know anything else” to do and did not want to ask for help. He lost his identification documentation, which impeded the few efforts he made to find a job. He started selling crack cocaine and methamphetamine.

Between the time of his release at age 20 and his arrest in November 1998 shortly after the two murders here, Nunez had three additional convictions, apparently for gun possession and drug sales or possession. He said: “Practically everything I did was against the law. I wasn’t living right.” On the night of the two murders, Yolanda Guaca picked defendant Nunez up about 9:00 p.m. They bought takeout food and went home, and defendant went to bed. He woke once during the night to speak with a visitor, went back to sleep, and then woke up again in the morning.

On cross-examination, he conceded that he sometimes left in the middle of the night without Yolanda’s knowledge. He denied meeting Joshua Contreras at a park a half-hour after the murders, and denied that he had ever been a jail trusty. Defendant Nunez said that Ruby Feliciano rented her car to him in exchange for drugs. When he was arrested in November 1998 shortly after the two murders, he thought he was being charged with stealing her car. He asked Yolanda to call Feliciano and ask her to tell the police “the truth,” which was that he had not stolen her car.

He “sort of threatened” Feliciano, telling her that if she visited, she should bring the money she owed him. Defendant Nunez admitted assaulting Esther Collins. He said that he had been drunk and had hit Collins with a small, hard handball because she had not paid a debt. He had “no excuse” for hitting her, but he denied that he hit her because she was Black. On cross-examination, the prosecutor introduced defendant Nunez’s statements during a December 1998 interview with detectives. In the interview, Nunez was asked if he had a history of “hating Black people.” He replied, “I don’t hate them.

I believe in segregation, but I mean, why would I go and shots [sic] any Black person, there is a lot of them in Wilmington.” He also said, “I can’t stand how they get loud. ... I just believe in segregation. I don’t like them [too] much by me, that’s what I’m saying.

Why I would go all the way to Harbor City to just shoot a Black person?” The prosecutor played a segment of the February 11, 1999, tape recording of defendants’ conversation in the jail van transporting them to court (see p. 7, ante), in which Nunez said he wanted “no Black people, woods straight woods.” After listening to this segment, Nunez testified that the term “woods” means “White people.” He said he and defendant Satele did not discuss the murders in the van.

Jacqueline Oree testified that her 16-year-old twin sons, Jayson and Jonathan Brooks, who are Black, were friends with both defendants for about six years when Oree lived in Wilmington, and that defendant Nunez came over two or three times a week. Defendant Satele watched her house while she was on vacation, never spoke derogatorily about Black persons or used the word “nigger,” and never harmed her sons physically or emotionally. Oree’s two sons were involved with the West Side Wilmas gang, an activity she did not approve of. Oree moved out of the West Side Wilmas’s territory in August 1999.

Jayson Brooks, Oree’s son, testified that he had known both defendants for about three or four years, that all three of them were in the West Side Wilmas gang, and they spent their time doing recreational activities such as playing basketball, swimming, and having barbecues. Byron Wilson, who had been convicted of murder and sentenced to death, testified that he knew defendant Nunez in jail from September 1999 to April 2000. For most of this period, defendant Nunez was a jail trusty.

Wilson never heard him use “the N-word.” Vondrea Williams, who was in custody awaiting trial on charges of aggravated mayhem and assault with a deadly weapon, testified that he had met defendant Nunez in jail about eight or nine months earlier. Williams and Nunez were jail trusties, and the two alternated shifts. Williams, a Black man, said that Nunez showed no prejudice and treated Black inmates with respect. Jesus Esparza, who was in jail while awaiting trial on an attempted murder charge, testified that he had been in a cell next to Nunez’s for several weeks.

He never heard Nunez refer to Blacks in disparaging terms, nor were there any incidents between Nunez and any Black inmate. On one occasion in December 1999, when the cells were going to be searched, Esparza threw a four-foot-long hard object made from tightly wrapped paper out of his cell into the hall. The guards assumed the object belonged to defendant Nunez, even though Esparza claimed it was his. Nunez stood silent, and was punished with 20 days in the “hole,” a place Esparza described as “sort of’ like solitary confinement.

David Butler, a firearms examiner, retired Los Angeles police officer, and “distinguished member” of the Association of Firearm and Tool Mark Examiners, testified that the casings found at the murder scene bore marks consistent with having been fired from the gun found in the car in which defendants were riding the night after the two murders. The magazine attached to this gun held 30 rounds. The bullets contained steel penetrators, and were originally designed to penetrate light armor on military vehicles. In Butler’s view, the shooter was fairly stationary when the shooting occurred.

He could not tell whether the shooter fired from inside a car, but if so, the car was stopped at the time of the gun’s discharge. b. Defendant Satele Lawrence Kelly testified that he had been a member of the West Side Wilmas for 12 to 13 years. The gang had between 30 to 40 active members. One way the gang made money was by selling narcotics; some gang members may also have committed robbery and assault with a deadly weapon, but the gang did not do driveby shootings. A gang member who testified against another gang member would be “beat up” or even killed.

About midnight on the night of the murders (committed around 11:00 p.m.), Kelly met defendant Satele at a park playground. Also present were defendant Nunez, Joshua Contreras, and Juan Carlos Caballero. Kelly was at the park for “a minute or two,” and then walked with defendant Satele to the nearby home of Kelly’s girlfriend.

Contrary to what Contreras told the police, Kelly did not hear defendant Satele say, “We were out looking for niggers,” nor did he hear either defendant say, “I think we got one.” At this time, Kelly owned a 1980 brown Buick Regal. (As previously mentioned, prosecution witness Ernie Vasquez testified that on the night of the murders he saw an older Buick Regal or similar model sedan driving near the area of the murders, and that persons resembling Nunez and Satele were passengers in the car.) Kelly identified exhibit No. 48, the murder weapon, as a gun to which everyone in the West Side Wilmas gang had access, adding that the gun was used to protect gang members engaged in drug transactions.

Kelly had known defendant Satele for about two years and had never heard defendant Satele “use the ‘N’ word” or display disrespect for Black persons. Kelly knew Joshua Contreras (a prosecution witness), and saw him nearly every day during 1998, the year of the two murders here. On most occasions, Contreras was under the influence of crystal methamphetamine and “[v]ery paranoid.” Kelly explained: “He would think people were after him or what not or saying things.

His mind was just playing tricks on him and stuff.” Richard Satele, defendant Satele’s father, testified that his son had never exhibited racial bias and had been taught to “respect all races and all people.” Darnell Demery, the husband of defendant Satele’s cousin, testified that he had never heard Satele say anything derogatory about Blacks or “use the ‘N’ word,” nor had he seen Satele being verbally or physically aggressive. Satele did not have a bad temper and got “along with everybody.” Demery was not aware that Satele was involved with the West Side Wilmas gang.

Willy Guillory, a teacher at defendant Satele’s high school and a longtime family friend, testified that Satele caused no problems at school, had never referred to Black persons as “niggers,” and had never behaved “against any racial component in our society.” The parties stipulated that, if called to testify, Los Angeles Police Officer Simmons would testify that she had interviewed murder victim Edward Robinson’s sister on October 29, 1998, at the scene of the shooting, and that her report stated that the sister had said: “We were all inside my apartment playing cards, it was time for [murder victim Fuller] to go home.

My brother walked her outside to her car. I went outside on my patio that overlooked the street, to ask my brother if he locked the front door. . . . Before I had a chance to ask him anything, I heard about seven shots or more. Then I saw a small gray-colored car driving down the street.” Dr. Lewis Yablonski, a gang expert, testified that to familiarize himself with the West Side Wilmas gang, he had interviewed four members— defendant Satele, Lawrence Kelly, and Jayson and Jonathan Brooks. Dr. Yablonski was of the view that defendant Satele had no “special hostility towards Black people.” According to Dr.

Yablonski: “[W]hen a gang member is in jail, there is an issue of survival. Consequently, he may . . . brag a lot to indicate he’s bad.” People in custody, Dr. Yablonski said, brag about crimes they did not commit to gain a reputation. If defendant Satele, while in jail, told a rival gang member of Hispanic descent, “We did a shooting,” this would mean he was trying to impress the other person with the fact that his gang was tough and violent, and to warn the other person to leave him alone.

The word “we” in this context would not necessarily mean the person making the statement was involved in the crime, but rather would refer to the gang’s activity, much as one might say of one’s basketball team, “We beat Indianapolis.” If an inmate was bragging about something he personally did, he would be more likely to say “I” than “we,” but if one inmate said “we” committed a double murder, and another inmate said “I” committed the same murder, the pronoun used would not necessarily be significant in ascertaining who committed the crime. 3.

Rebuttal evidence Glenn Phillips testified that in November 1999, defense witness Lawrence Kelly visited Phillips’s home in Redondo Beach, where Kelly spoke to Warren Battle, who was Black and worked for Phillips. Kelly asked if Battle would like to “make a hundred bucks to do a job for him.” Battle replied, “Yes, of course” and Kelly then said he needed Battle “to testify we get along with Black people.” Los Angeles County Deputy Sheriff Larry Arias testified that on November 9, 1999, he was escorting a Black inmate named Keys in the Men’s Central Jail.

Keys, who was “waist chained” and could not raise his hands to his face, was punched in the face by defendant Satele and fell to the ground. Keys had not provoked the attack. Los Angeles County Deputy Sheriff John Kepley testified that on December 2, 1999, he conducted a random search of a module in the Men’s Central Jail. Each cell housed one inmate. While standing in front of cell 14, he saw an inmate in cell 16 walk up to the gate, look down the row, and throw the “shaft” of a “spear” into the area in front of the cell. Jail records showed that defendant Nunez was assigned to cell 16.

Kepley did not recall any inmate claiming responsibility for throwing out the object. B. Penalty Phase 1. Prosecution evidence The prosecution presented victim impact testimony and evidence of defendant Nunez’s jail misconduct.

Testifying about 21-year-old murder victim Renesha Ann Fuller were Roberta Hollis (Renesha’s mother) and Simon Hollis (Renesha’s stepfather). (Because each victim has the same surname as several of the penalty phase witnesses, we refer to the victims and witnesses by their first names in this portion of the opinion.) Roberta provided transportation to persons with AIDS, and Simon was an Inglewood police officer, Roberta described Renesha as quiet, sweet, and innocent: a “mother’s . . . dream in a child.” After Renesha’s murder, Roberta missed six months of work.

Roberta and Simon testified that Renesha did well in school, and had just started her first year of college when she was killed. She worked as a teacher’s aide at a school for students who had “dropped out of school and had hard times.” After the murder, Renesha’s students started a college scholarship in her name. Testifying about 22-year-old murder victim Edward Robinson were Leandrea Fields-Robinson (Edward’s stepmother), Albert Robinson (Edward’s father), Rosa Robinson Morris (Edward’s sister), and Renesha Robinson (Edward’s niece).

Leandrea, a former teacher and counselor, was an administrator for the Los Angeles Unified School District. Albert was in the construction industry, and specialized in installing tennis courts. After Edward’s mother died in childbirth, Leandrea raised Edward from the time he was three months old. Murder victim Edward was close to his father, and Leandrea said the two would talk for hours “about being a man and doing the right thing.” Edward attended Harbor City College, and worked part time for his father to help pay for school.

Edward led a prayer group at church, was the church drummer, and was the kind of person “that any mother or father would love to have to call their son.” His father recalled that “a lot of young people his age . . . said because of him they turned their lives around and started going to church and studying the Bible.” Edward was taught to respect women, and it was reflective of his character that he was walking Renesha to her car on the night they were murdered.

Los Angeles County Deputy Sheriff Randall Shickler testified that on August 17, 1999, he and another deputy transported defendant Nunez from court back to jail. Nunez was in the front

section of the bus with about 12 other inmates, and one of his hands was handcuffed to a chain. Shickler heard a ratcheting sound and saw that Nunez, no longer handcuffed, was standing over another inmate. He refused orders to recuff, laughed, and began doing jumping jacks to demonstrate to Shickler that he was free. After the bus reached the jail, when other deputies who had been called out to assist were visible from inside the bus, Nunez put his handcuffs back on. The officers determined that the handcuffs of about 10 inmates on the bus had been altered.

Los Angeles County Deputy Sheriff Lisa Estes testified that on one occasion in the middle of trial she searched defendant Nunez after he arrived from jail and before he appeared in court. She found a razor blade in a Bible Nunez was carrying. Los Angeles County Deputy Sheriff Ronald Baltierra testified that on May 8, 2000, he saw another deputy search defendant Nunez before a court appearance. In Nunez’s mouth, the deputy found a heavy-duty staple, which in Baltierra’s opinion could be used to unlock handcuffs. 2. Defense evidence a.

Defendant Nunez Jorge Flores, defendant Nunez’s father, testified that he and Betty Nunez, defendant Nunez’s mother, lived together while she was pregnant with defendant Nunez. After he was bom they continued to see each other for a couple of years. Jorge had seen defendant Nunez about “seven times.” He did not counsel and guide him as he was growing up. The last time he had seen defendant Nunez was in 1980 or 1981, when Jorge borrowed a car from the family and never returned it.

After about 1984, when he married, he was under the impression that Betty did not want her family to give him any information about defendant Nunez’s location, and wanted Jorge to stay away from him. He regretted not being there for defendant Nunez and guiding him. Antonio Nunez, defendant Nunez’s uncle, testified that Betty Nunez was his half sister. Their mother had a drinking problem. Antonio was 13 or 14 years old and Betty was about 18 years old when defendant Nunez was bom.

At the time, Betty was homeless and stayed with various relatives and friends, including Antonio’s family; she was inexperienced at caring for an infant. Her resources were extremely limited, and often when Betty was at Antonio’s home there was no food or clean diapers for defendant Nunez. Betty was an emotionally distant mother. About a year after defendant Nunez was bom, Antonio left school to support the family. He eventually bought a house in Wilmington, and Nunez (who was eight or nine years old) and Betty lived with him. Antonio worked long hours, and Betty worked at night, so Nunez was left unsupervised.

Nunez was excited when he did well in Little League, and Antonio regretted not going to more of his games or understanding its importance to him. Nunez was jealous of Antonio’s wife when Antonio got married. When Nunez was between 12 and 14 years old, the police raided Antonio’s house looking for gang members. As a result, Antonio became concerned for his family’s safety and asked Betty and Nunez to move out. Yolanda Guaca, defendant Nunez’s girlfriend and the mother of his two young sons, said she loved him and did not want to see him executed. Dr.

Saul Niedorf, a psychiatrist and pediatrician, testified that he had interviewed defendant Nunez, and had also spoken with his mother, his uncle Antonio, two of his aunts, and Yolanda Guaca. He had reviewed Antonio Nunez’s trial testimony and at least some of defendant Nunez’s records from the former California Youth Authority. He did not administer any tests, but he considered it likely that defendant Nunez could read at a high school level. Dr. Niedorf noted defendant Nunez’s lack of bonding with his mother, and said defendant’s uncle Antonio was his first consistent bond.

As a result of Antonio’s influence, Nunez was later a tender and caring father. When Nunez was about 10 or 11, he lost this consistent attachment because Antonio became invested in married life. Nunez looked for teenage boys to be attached to, and found this attachment in gang members. In Dr. Niedorf’s view, defendant was compulsive and obsessive, and methodically and loyally worked at his “job” of selling drugs. He participated in a work program while incarcerated as a teenager, and Dr. Niedorf noted that there are work programs in the California prison system. In Dr.

Niedorf’s opinion, defendant Nunez was “relatively free of explosive irrational behavior[],” and thought before he did things unless he was provoked. Dr. Niedorf viewed his acts of misconduct in jail as acts of defiance that developed his self-esteem. They were not based on a desire to escape, although that desire was there, nor were they explosive or aggressive.

He agreed, however, with the prosecutor that such misconduct “can create an explosive situation,” and that “going to a rival gang territory with a loaded assault rifle . . . with armor-piercing bullets and driving around in that area and looking to kill someone” was aggressive. In Dr. Niedorf’s view, defendant Nunez “believe[d] he did not kill” and “grieve[d] that there were victims in this crime, who, as he would put it, were innocent.” b. Defendant Satele Testifying on defendant Satele’s behalf were his parents, Richard and Esther Satele.

Richard was 26 years old and Esther was 20 years old when Satele was bom, which occurred four or five months after Richard and Esther were married. Richard worked long hours at two jobs during their first two years of marriage, and started to drink. They had physical fights in Satele’s presence. When Satele was two or three years old, Esther left. Richard quit his night job and moved in with his parents in Carson, who helped to raise Satele until he was about 12 years old. When Richard was not at work, he tried to spend as much time with defendant Satele as he could.

Satele was active in sports, and Richard attended every sports practice and took time off from work to attend the games. Every year from the time Satele was five years old they vacationed in places like Samoa, Hawaii, or Palm Springs. Esther visited her son once or twice a year when he was between the ages of two and a half and five, and about once a month after that. When defendant Satele was about seven or eight years old, he visited Esther on weekends. Every time she brought Satele back to Richard’s house he was in tears and wanted to stay with her.

Esther did not have her own home, but lived with her sister, and she did not think that environment would be best for her son. When Satele was 11 or 12 years old, Esther returned to live with him and his father. She was never involved with Satele’s education, and she did not meet his teachers or attend school functions. When defendant Satele was about 12 years old, Richard bought a house in Redondo Beach. Satele was unhappy that he had to change schools. He was caught “tagging” (spray painting graffiti) at the school and was suspended.

Richard typically disciplined Satele by slapping or using a belt, and on this occasion he “gave him a good beating” with a belt. Satele was caught tagging again a couple of months later, and told the school he did not want to go home because his father would beat him. The school contacted child protective services, which told Richard that corporal punishment was against the law and he could be prosecuted if another incident occurred.

Richard turned to other forms of discipline, such as denying privileges, but “troubles just kept on increasing.” Defendant Satele ran away on one occasion for a weekend, and on another occasion for a week, and Richard did not know where he was during those times. Richard asked Satele what they could do to stop this activity, and Satele said he wanted to return to Carson and live with his grandparents. Richard allowed him to do so, and every day he drove his son to school in Carson. Satele ran away from his grandparents’ house as well, and began cutting classes.

He received A’s and B’s in classes he liked, such as math, and D’s and F’s in classes he disliked, such as English. When defendant Satele was about 15, he was caught tagging again. Because of his previous offenses, he was incarcerated for three months in juvenile camp. Richard and Esther visited him every weekend. After leaving camp, he seemed to communicate more openly with his parents, and was interested in graduating from high school and possibly playing football. When defendant Satele was 16, the police found him carrying a gun.

He was placed in a military boot camp for about four months, and Richard said he received “rav[e] reviews.” Satele acknowledged that he needed discipline and did well in that environment. He was about 17 years old when he was released, and expressed a desire to graduate from school and “do good.” He took night classes in addition to his regular school

schedule so he could catch up. Six months later, when he was still 17 years old, he left home and dropped out of continuation school. Richard eventually found him in Wilmington. Although he knew how to contact Satele if he needed to, he left his son alone to fend for himself. Looking back on defendant Satele’s life, Esther believed she had failed him “constantly” as a mother. Richard asked the families of Renesha and Edward to forgive his son and asked the jury to spare his life. Dr. Samuel Miles, a psychiatrist, testified that he interviewed defendant Satele three times and also interviewed Satele’s parents.

Esther and Richard split up and reconciled many times, and Satele’s lack of consistent interaction with them, according to Dr. Miles, significantly affected the development of his identity. Satele’s first memory was of riding a skateboard about the age of 11; although he also recalled events between the ages of two and six, Dr. Miles could not be certain these were not “indirect memories]” related to Satele by another individual. In Dr. Miles’s view, being in a gang provided defendant Satele a consistent environment where he was accepted, which he could not get at home.

Richard’s physical punishment of Satele alienated Satele, and left Richard with no effective form of discipline when he stopped using it. Although Satele was 20 years old when Dr. Miles first interviewed him, “emotionally he was more like 12.” Dr. Miles acknowledged that despite Satele’s emotional immaturity, he knew the difference between right and wrong. Dr. Miles administered the Minnesota Multiphasic Personality Inventory to defendant Satele; the results were “highly pathological,” showing someone in turmoil who had identity problems and might be psychotic.

He asked for additional testing of Satele by a psychologist, on which Satele scored in the borderline range in intelligence, but not low enough to be considered mentally retarded. On the Wide Range Achievement Test, Satele scored “in the average range for someone who is in high school,” and reported he took no special classes for the learning disabled.

Satele gave few responses on the Rorschach inkblot test, which can occur when a person is “overwhelmed by [the ink blots] and excited or very guarded.” His responses on the “Milikin clinical, multi-axle test” [szc: most likely the Millón Clinical Multiaxial Inventory] showed “some turmoil and a history of some problems with the law.” According to Dr. Miles, defendant Satele did not have hallucinations. Dr. Miles believed that at times Satele may have experienced paranoid delusions, but Satele denied doing so. Satele said he generally became “paranoid when he was up a lot and on . . . amphetamine.” He told Dr.

Miles he drank heavily and used methamphetamine four or five days at a time. According to Dr. Miles, an individual who has experienced paranoia while using amphetamine is more likely to become paranoid when using the drug again. Satele said that around the time of the murders he was “loaded” and had not slept for several days. Dr.

Miles concluded that defendant Satele lost control when he was agitated, was impulsive and aggressive, and had turmoil, identity problems, paranoia, low self-esteem, and “fragility.” The combined effect of these circumstances left Satele with “less than the average amount of control over impulsiveness,” “prone to undue influence[] from others,” and more of a follower than a leader. They also made him subject to substance abuse, and when abusing substances to have “periodically bad experiences” that made him react to others in a hostile fashion. Dr.

Miles diagnosed Satele with amphetamine abuse, alcohol abuse, probable psychosis not otherwise specified, and borderline personality disorder. II. Discussion A. Pretrial Issues 1. Excusal of prospective juror based on her death penalty views a. Factual background On her juror questionnaire, in response to the question “In what ways, if any, might your religious views affect your service as a juror in this case?,” Prospective Juror No. 2066 wrote: “I would not send any person to death.

The Bible say[s] thou shalt not kill.” In response to the question “Would you, because of any views that you may have concerning capital punishment, refuse to find the defendant guilty of first degree murder, even though you personally believe the defendant to be guilty of first degree murder, just to prevent the penalty phase from taking place?” she wrote, “I don’t know yet.” When asked whether, because of her views on capital punishment, she would refuse to find a special circumstance true, even though she personally believed it to be true, “just to prevent the penalty phase from taking place,” she said, “No.” When asked on the questionnaire whether she would “automatically refuse to vote in favor of the penalty of death and automatically vote for a penalty of life imprisonment without the possibility of parole,” Prospective Juror No. 2066 wrote, “Yes.” Asked if she would change her answer to this question if she was instructed and ordered by the court that she must consider and weigh the aggravating and mitigating factors regarding the facts of the crime and the background and character of the defendant before voting on the issue of penalty, she wrote, “I might.” In response to the question “Could you set aside your own personal feelings regarding what the law ought to be and follow the law as the court explains it to you?” she wrote, “I don’t know if I could.” Asked to describe her “general feelings about the death penalty,” she wrote, “I don’t feel at ease with it.” When asked to identify the statement “that best describes your views on the death penalty,” she selected, “While I am strongly opposed to the death penalty, I do believe there are rare cases where a death sentence should be imposed for a deliberate murder.” When asked, “Can you fairly and impartially listen and weigh the evidence, set aside any moral, religious, or personal views and/or beliefs you may have about the death penalty to render a verdict in accordance with law?” she wrote, “I don’t know.” On voir dire, the trial court asked Prospective Juror No. 2066 what she meant by her response of “I don’t know yet” to the question asking whether her views on capital punishment would cause her to find a defendant not guilty of first degree murder, even if she personally believed him to be guilty, to prevent the penalty phase from taking place.

She replied: “Undecided. I would kind of make it lenient.” The court later asked, “[I]f you were to sit as a juror in a case in which the death penalty is sought, and you get to the penalty phase, . . . would you be able, upon consideration of any aggravating and mitigating factors, to impose the death penalty if you feel it is warranted? Would you be able to vote for it, in other words?” She replied: “I probably would be hesitant.

I wouldn’t want to vote for . . . the death penalty.” The prosecutor then said to Prospective Juror No. 2066, “I think that coincides with your answer . . . where you said, T don’t feel at ease with it.’ ” She replied, “Right.” The prosecutor began, “I take it that it’s such a difficult decision for you—” Prospective Juror No. 2066 interrupted to say, “Yes, it is.” The prosecutor continued “—that you could not vote for' the death penalty?” She said, “Yes.” Defendant Nunez’s counsel asked, “Is it correct that after you hear all of the evidence you will follow the instructions on the law and do what the law requires you to do in this state based upon how you find the facts to be?” Prospective Juror No. 2066 replied, “I’ll do my best, yes.” The trial court asked Prospective Juror No. 2066 whether she would automatically exclude the possibility of voting to impose the death penalty if she concluded the facts of the case warranted such a penalty.

She replied, “If there were other alternatives, I would probably . . . look at those first before choosing the death penalty.” The court stated there would be only two choices at any penalty phase, and asked, “Would you weigh the evidence to decide which alternative between the two you should choose?” Prospective Juror No. 2066 replied, “Yes.” The court subsequently asked, “And if the evidence on the aggravation and mitigation warrants that the . . . death penalty should be imposed, would you be able to vote for death, knowing there is a possibility that you could choose life without possibility of parole?” She replied, “Yes.” The prosecutor explained to Prospective Juror No. 2066 again that her two choices at the penalty phase were voting for the death penalty or for life imprisonment without the possibility of parole, and inquired whether she would “automatically vote for the life in prison sentence.” Prospective Juror No. 2066 said, “Yes.” The prosecutor asked, “Even if I put on a bunch of aggravating factors about various things, would you still vote for that life sentence?” She replied, “Yes, I think I would.” Defendant Nunez’s counsel asked, “Can you conceive of a crime so heinous that you would ever vote for death?” Prospective Juror No. 2066 responded, “No, I don’t think so.” Counsel subsequently asked, “If . . . you see there are only two alternatives, he goes to prison ... for the rest of their natural life, or they go up to prison to be killed; are you saying you could never, ever, no matter what it was, say, ‘Well, I will vote for death?’ ” She replied, “Yes, I’m saying that right now.” Counsel asked, “You didn’t say that a minute ago?” She said, “Maybe the question was presented to me a little different.” The trial court asked, “Do you believe that a case could be so bad that you would vote for death?” Prospective Juror No. 2066 replied, “I believe a case could be that bad, but I still wouldn’t want to vote the death penalty.” The court subsequently asked, “Is it you couldn’t or you don’t want to, or both?” She replied, “Both.” Defendant Satele’s counsel asked, “[I]f you made up your mind that the decision you made up was the prosecution has established to you a belief'this person is a really bad person and that person deserves the death penalty, could you do it?” Prospective Juror No. 2066 replied, “It would be hard for me.” Counsel said: “I understand.

It’s hard for everybody. That is [a] tough decision. Could you?” She replied, “I don’t know if I could.” The prosecutor challenged Prospective Juror No. 2066 for cause. The trial court sustained the challenge, stating: “This court has examined the juror’s state of mind, particularly the demeanor in this case, and the reluctance of the responses, and the equivocal responses that the juror has had, and the conflicting responses that the juror has had. And this court makes the determination as to the juror’s state of mind, and she is incapable of imposing the death penalty.

And the reason [is] . . . because of her reluctance to be able to do that when asked her the leading question as to whether or not she could impose it under certain circumstances she said, yes; but when asked if there’s another choice, life imprisonment, what would she do, she, without reluctance and without equivocation, chose life imprisonment if there’s a choice.

Given that is the case, and given her responses in the questionnaire, her demeanor in the court and her state of mind as observed by this court, with multiple inferences that are given, the court infers based upon her responses that she is not death qualified and excuses her for cause.” b. Analysis Defendants contend that the trial court erroneously excused Prospective Juror No. 2066 based on her views regarding the death penalty, in violation of their rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution.

The Attorney General argues that defendants have forfeited their arguments based on the Fifth and Eighth Amendments because, at trial, they did not challenge the trial court’s excusal of Prospective Juror No. 2066 on these grounds, although the Attorney General acknowledges that no objection was required to the extent defendants’ challenge is based on the Sixth and Fourteenth Amendments. Under the law applicable at the time this case was tried, “an appellate challenge to a Witherspoon/Witt excusal is not forfeited by a failure to object at trial. . .” (People v.

McKinnon (2011) 52 Cal.4th 610, 637 [130 Cal.Rptr.3d 590, 259 P.3d 1186]; see Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]; Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844]), although the forfeiture rule applies to defendants who fail to object in cases tried after McKinnon became final. (McKinnon, at p. 643.) The rule that no objection was necessary applies regardless of the constitutional provision on which the challenge is based.

We therefore address defendants’ claims on the merits. “The federal constitutional standard for dismissing a prospective juror for cause based on his or her views of capital punishment is ‘ “[wjhether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” ’ ” (People v. Friend (2009) 47 Cal.4th 1, 56 [97 Cal.Rptr.3d 1, 211 P.3d 520] (Friend), quoting Uttecht v.

Brown (2007) 551 U.S. 1, 7 [167 L.Ed.2d 1014, 127 S.Ct. 2218].) “ ‘On appeal, we will uphold the triaEcourt’s ruling if it is fairly supported by the record . . . .’ ” (People v. Barnett (1998) 17 Cal.4th 1044, 1114 [74 Cal.Rptr.2d 121, 954 P.2d 384].) “When the prospective juror’s answers on voir dire are conflicting or equivocal, the trial court’s findings as to the prospective juror’s state of mind are binding ... if supported by substantial evidence.” (People v.

Duenas (2012) 55 Cal.4th 1, 10 [144 Cal.Rptr.3d 820, 281 P.3d 887].) Here, Prospective Juror No. 2066 equivocated and gave conflicting responses to questions pertaining to her ability to follow the law concerning imposition of the death penalty. On the one hand, she wrote on her juror questionnaire that she “would not send any person to death” because “[t]he Bible say[s] thou shalt not kill,” and that she would refuse to vote in favor of the death penalty and would automatically vote for a penalty of life imprisonment without the possibility of parole because of her views concerning capital punishment.

On voir dire, she agreed with the prosecutor that she “could not vote for the death penalty.” On the other hand, Prospective Juror No. 2066 also answered “yes,” when asked if she would “weigh the evidence to decide” whether to vote for death or life imprisonment without the possibility of parole, and she said she would be “able to vote for death” if she concluded that “the evidence on the aggravation and mitigation warrants that the . . . death penalty should be imposed.” The trial court was in a position, which we are not, to view Prospective Juror No. 2066’s demeanor, and its determination of her state of mind is binding. “Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors.” (Uttecht v.

Brown, supra, 551 U.S. at p. 9.) “Hence, the trial judge may be left with the ‘definite impression’ that the person cannot impartially apply the law even though, as is often true, [she] has not expressed [her] views with absolute clarity.” (People v. DePriest (2007) 42 Cal.4th 1, 21 [63 Cal.Rptr.3d 896, 163 P.3d 896].) Here, substantial evidence supports the trial court’s determination that Prospective Juror No. 2066’s views on the death penalty would prevent or substantially impair her ability to serve as a juror. The cases on which defendants rely (People v.

Heard (2003) 31 Cal.4th 946 [4 Cal.Rptr.3d 131, 75 P.3d 53]; People v. Pearson (2012) 53 Cal.4th 306 [135 Cal.Rptr.3d 262, 266 P.3d 966] (Pearson)) are inapposite.

Unlike the prospective juror wrongly excused in Heard, Prospective Juror No. 2066 did not indicate on voir dire she “was prepared to follow the law and had no predisposition one way or the other as to imposition of the death penalty,” nor was she generally “clear in [her] declarations that [she] would attempt to fulfill [her] responsibilities as a juror in accordance with the court’s instructions and [her] oath.” (Heard, at p. 967.) Defendant Nunez asserts it is significant that Pearson, supra, 53 Cal.4th 306, involved the same trial judge as in this case. The trial here occurred before the trial in Pearson.

In Pearson, we concluded that the trial court erroneously excused a prospective juror whose views on the death penalty in general were “vague and largely unformed” (id. at p. 330), but who “made no conflicting or equivocal statements about her ability to vote for a death penalty in a factually appropriate case” (ibid.). We observed that the trial court had misunderstood and misapplied People v. Guzman (1988) 45 Cal.3d 915, 956 [248 Cal.Rptr. 467, 755 P.2d 917] (Guzman), overruled on other grounds in Price v.

Superior Court (2001) 25 Cal.4th 1046, 1069, footnote 13 [108 Cal.Rptr.2d 409, 25 P.3d 618], which held that a prospective juror’s use of equivocal phrases such as “I think” or “I believe” when expressing an inability to vote for death did not preclude the trial court from properly finding that the prospective juror’s ability to follow the trial court’s instructions would be substantially impaired. The trial court in Pearson erroneously stated that, under Guzman, it could excuse a prospective juror because the prospective juror expressed equivocal views about capital punishment in general.

This view, we explained, was wrong. Guzman, we said, “does not stand for the idea that a person is substantially impaired for jury service in a capital case because his or her ideas about the death penalty are indefinite, complicated or subject to qualifications . . . .” (Pearson, at p. 331.) Here, defendant Nunez argues that certain comments by the trial court earlier in the jury selection process reflect the same misunderstanding of the holding in Guzman, supra, 45 Cal.3d at page 956, that it expressed during the trial of Pearson.

Whether or not Nunez is correct, the court’s explanation for excusing Prospective Juror No. 2066 does not reflect that misunderstanding.

Unlike the prospective juror wrongly excused in Pearson, Prospective Juror No. 2066 did not merely express equivocal views about the death penalty in general; rather, she made “conflicting or equivocal statements about her ability to vote for a death penalty in a factually appropriate case.” (Pearson, supra, 53 Cal.4th at p. 330, italics added.) Based on those responses, the trial court found that Prospective Juror No. 2066 “is incapable of imposing the death penalty.” This finding was tantamount to a finding that her views about the death penalty would “ ' “substantially impair” ’ ” her ability to perform her duties as a juror. (Friend, supra, 47 Cal.4th at p. 56.) Because substantial evidence supports that finding, the trial court properly excused Prospective Juror No. 2066 for cause. 2.

Denial of defense challenge for cause Defendants contend that the trial court erred in denying their challenge for cause to Prospective Juror No. 8971, who was later sworn as an alternate juror and eventually served on the penalty jury.

Defendants forfeited this claim because defendants did not use an available peremptory challenge to remove Prospective Juror No. 8971. “ ‘As a general rule, a party may not complain on appeal of an allegedly erroneous denial of a challenge for cause because the party need not tolerate having the prospective juror serve on the jury; a litigant retains the power to remove the juror by exercising a peremptory challenge. Thus, to preserve this claim for appeal we require . . . that a litigant actually exercise a peremptory challenge and remove the prospective juror in question.’ ” (People v.

Jones (2012) 54 Cal.4th 1, 45 [140 Cal.Rptr.3d 383, 275 P.3d 496].) Defendants failed to do so, and cannot now complain about the trial court’s asserted error. B. Guilt Phase Issues 1. Challenge to impeachment of Lawrence Kelly a. Factual background Lawrence Kelly testified on behalf of defendant Satele that he had been a member of the West Side Wilmas gang for 12 to 13 years, that he had known defendant Satele for about two years, and that he had never heard Satele “use the ‘N’ word” or display disrespect for Black persons.

This testimony contradicted evidence introduced by the prosecution that Satele had referred to Blacks as “niggers.” Kelly also testified that he was present with both defendants at a park playground about midnight on the night of the murders, and he did not hear defendant Satele say, “We were out looking for niggers,” or either defendant say, “I think we got one.” This contradicted the prosecution’s evidence that defendants made these statements.

On cross-examination, Kelly denied that while at the house of Glenn Phillips, Kelly had offered a Black person $100 either to testify that West Side Wilmas and “African Americans get along,” or to say, “We get along.” When the prosecutor called Glenn Phillips to testify on rebuttal, defendant Nunez objected under Evidence Code

section 352, and defendant Satele objected that the testimony was irrelevant. Outside the jury’s presence, the trial court held a hearing, at which Phillips testified that in November 1999, Lawrence Kelly visited Phillips’s home, where he spoke to Warren Battle, a Black man who worked for Phillips. Kelly asked Battle if he wanted to “make a hundred bucks,” explaining that he needed Battle to testify that “we get along with Black people.” Kelly did not say who he meant by the word “we,” but Phillips assumed he was referring to the West Side Wilmas gang.

The prosecutor offered Phillips’s testimony for the purpose of impeaching Kelly, who had denied offering anyone money to testify. The trial court precluded the prosecutor from asking Phillips whom he thought Kelly was referring to when Kelly used the word “we,” but it allowed the remainder of the testimony, finding that it directly controverted Kelly’s testimony, and that its probative value outweighed its prejudicial effect. Phillips then testified before the jury regarding Kelly’s statement. His testimony was consistent with his testimony at the hearing. (See p. 14, ante.) b.

Analysis Defendants contend the trial court should have sustained their objection to the impeaching testimony by witness Phillips, described above in

part II.B.1.a. We disagree. “Rebuttal evidence is relevant and thus admissible if it ‘tend[s] to disprove a fact of consequence on which the defendant has introduced evidence.’ [Citation.] The trial court is vested with broad discretion in determining the admissibility of evidence in rebuttal.” (People v. Clark (2011) 52 Cal.4th 856, 936 [131 Cal.Rptr.3d 225, 261 P.3d 243]; see People v.

Mills (2010) 48 Cal.4th 158, 195 [106 Cal.Rptr.3d 153, 226 P.3d 276] [the trial court has “broad power to control the presentation of proposed impeachment evidence”].) Here, as the trial court observed, Phillips’s testimony directly contradicted Kelly’s testimony on the issue of whether Kelly had attempted to bribe a witness “to testify we get along with Black people,” and hence was relevant to assessing Kelly’s credibility as a witness. (See People v.

Millwee (1998) 18 Cal.4th 96, 128 [74 Cal.Rptr.2d 418, 954 P.2d 990] [evidence bearing on a witness’s credibility is proper rebuttal].) The trial court therefore did not abuse its discretion in admitting the testimony. Defendants point out that the prosecution made no showing that they authorized or encouraged Kelly to try to influence a witness, and hence the evidence could not be used to demonstrate their consciousness of guilt. But the evidence was not introduced to show defendants’ consciousness of guilt, but to impeach Kelly’s credibility.

Defendants argue that Phillips’s testimony was unduly prejudicial because there was “a high likelihood that the jury [would] misuse the evidence” to “infer consciousness of guilt.” Not so.

No evidence connected defendants to Kelly’s bribery attempt, and the jury was instructed that “[i]f you find that an[] effort to procure false or fabricated evidence was made by another person for the defendant’s benefit, you may not consider that effort as tending to show[] the defendant’s consciousness of guilt unless you also find that the defendant authorized that effort.” Defendants point out that Kelly’s testimony that he had never offered money to Battle to testify for the defense was first elicited by the prosecution on cross-examination; Kelly had not testified about that subject on direct examination.

The prosecution, defendants contend, used its cross-examination questions to Kelly for the purpose of creating the necessity for witness Phillips’s testimony impeaching Kelly. The trial court, they assert, should have forestalled this tactical maneuver by excluding Phillips’s testimony. Even if we assume for the sake of argument that defendants’ objection at trial was adequate to preserve this claim, it lacks merit. The prosecutor was free to explore on cross-examination whether Kelly had attempted to bribe a witness because such evidence was relevant to Kelly’s credibility.

Once Kelly denied the event, Phillips’s testimony was admissible to impeach Kelly. Although defendants are correct that Phillips’s testimony would not generally have been admissible if Kelly had admitted that the bribery attempt conversation had occurred, that does not mean Kelly’s attempted bribe was a collateral issue. Defendants assert that in closing argument, the prosecutor misstated the purpose for which the trial court had admitted Phillips’s impeaching testimony, thereby increasing the likelihood that the testimony would confuse the jury.

The prosecutor argued: “Glenn Phillips was called to show you that. . . [Kelly] offered an African-American a hundred dollars to say we get along. Is [Kelly] a witness . . . you are going to believe in this courtroom? Somebody that. . . would go to the extent of going up to [an] African-American and say if you go into court and say something for us. Mr. Phillips has no axe to grind in here. . . . [Kelly] is the person who hangs around Glenn Phillips [and] . . . offered a hundred dollars to a witness to lie in this case.

What does that tell you about [Kelly], and his testimony here?” The prosecutor also argued, “I’ve already spoken about the fact that [Phillips] said [Kelly] bribed an individual with [a] hundred bucks to come in here and lie.” Defendants did not object to the prosecutor’s argument at the penalty phase or seek an admonition, and no exception to the general rule requiring an objection and request for admonition is applicable. The claim is therefore forfeited. (People v. Samayoa (1997) 15 Cal.4th 795, 841 [64 Cal.Rptr.2d 400, 938 P.2d 2] (Samayoa).) It also lacks merit.

Defendants point out that in the argument quoted above, the prosecutor claimed that Kelly had tried to bribe a witness. But, defendants assert, Phillips’s testimony was admitted only to impeach Kelly’s testimony, not to show that an attempted bribe occurred. The prosecutor’s argument, they reason, most likely caused the jury to draw the improper inference that defendants had asked Kelly to offer the bribe. We see nothing improper in the prosecutor’s argument, nor is there a reasonable likelihood that it would have caused the jury to draw the improper inference described above.

While the prosecutor was not entitled to invite the jury to infer that defendants were responsible for Kelly’s bribery attempt, nothing in the prosecutor’s challenged comments asked the jury to draw such an inference. Thus, contrary to defendants’ contention, the prosecutor’s argument was not confusing, did not ask the jury to draw improper inferences, and did not increase the likelihood that they would be prejudiced by Phillips’s testimony. 2. Challenge to evidence on rebuttal that defendant Satele hit an ' inmate a.

Factual background During the defense case, Darnell Demery, the husband of defendant Satele’s cousin, testified that he had never heard Satele say anything derogatory about Black persons or “use the ‘N’ word.” Nor had he seen Satele being aggressive, argumentative, or physical with anyone.

Satele, Demery claimed, did not have a bad temper and got “along with everybody.” At sidebar, the prosecutor sought the trial court’s permission to ask Demery if he was aware that defendant Satele had attacked other inmates in jail when those inmates were restrained, and whether those incidents would affect his opinion of Satele. Satele’s counsel appeared to note that one victim was Black and the other Asian.

The trial court precluded this line of cross-examination, finding its “probative value outweighed by the prejudicial effect.” After this ruling, three defense witnesses testified that defendant Satele was not prejudiced against Blacks. Satele’s father testified that his son had never exhibited racial bias and had been taught to “respect all races and all people.” Dr.

Lewis Yablonski, the gang expert who had interviewed Satele and several other West Side Wilmas gang members, testified that he did not detect any racial animus, and was of the view that Satele had no “special hostility towards Black people.” And Willy Guillory, a teacher at Satele’s high school and a longtime family friend, testified that Satele caused no problems at school, had never referred to Black persons as “niggers,” and had never behaved “against any racial component in our society.” At the end of Guillory’s testimony on direct examination, the prosecutor again sought to introduce evidence that defendant Satele had assaulted handcuffed inmates on two occasions.

He argued that these attacks showed racial animus and that Satele had opened the door to the testimony. The trial court allowed the inquiry. The prosecutor then asked Guillory if his opinion that Satele treated people of other races appropriately would change if he knew that Satele, while in jail, had punched a handcuffed Black inmate in the face. Guillory said he would “find that highly unusual.” The prosecutor then asked, “What happens if I also told you” that Satele had slugged an inmate who was handcuffed to another inmate.

Guillory responded, “I would say it’s . . . not the young man I knew ... in high school.” On rebuttal, the prosecution called Deputy Larry Arias, who testified that on November 9, 1999, he was escorting a Black inmate named Keys in the Men’s Central Jail. Keys was “waist chained” and could not raise his hands to his face. Defendant Satele punched Keys in the face, and Keys fell' to the ground. Keys had not provoked the attack. In Deputy Arias’s opinion, Satele would improve his standing within the Hispanic gangs in jail by attacking a Black man. b.

Analysis Defendant Satele contends that Deputy Arias’s testimony should have been presented in the prosecution’s case-in-chief, and was therefore improper rebuttal. He did not raise this objection at trial, and the claim is therefore forfeited on appeal. (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 . . . 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.”].) On the merits, it is improper for a prosecutor to withhold “crucial evidence properly belonging in the case-in-chief'' (Friend, supra, 47 Cal.4th at p. 44; see People v. Carter (1957) 48 Cal.2d 737, 753 [312 P.2d 665]), and to present it in rebuttal to take unfair advantage of a defendant.

Here, the information contained a special circumstance allegation that defendant Satele intentionally killed the victims because of their race, and enhancement allegations that he committed the murders in concert because of race, although the jury ultimately found the allegations not true. (§§ 190.2, subd. (a)(16), 422.75, former subd. (c), now subd. (b).) Although evidence that Satele had without apparent provocation assaulted a Black inmate was relevant to these allegations, it cannot properly be characterized as “crucial evidence” on the issue of his racial animus.

Moreover, any error in admitting Deputy Arias’s testimony on rebuttal was harmless under any standard, because the jury found not true the hate-crime special circumstances and the allegations that Satele committed the murders in concert because of race. Defendant Satele contends that Deputy Arias’s testimony that Satele attacked a Black inmate had little probative value in rebutting testimony by defense witnesses that he got along well with Blacks, because the prosecution offered no evidence that the attack was racially motivated.

By contrast, he argues, the' testimony was unduly prejudicial because it showed his commission of a crime and tended to demonstrate his future dangerousness. Thus, he reasons, the trial court should have sustained his objection to the testimony on the ground that its potential prejudicial effect outweighed its probative value. (Evid. Code, § 352.) We disagree. Deputy Arias testified that Satele, without warning and completely without provocation, attacked a defenseless Black inmate.

Because the attack resembled the murders with which defendants were charged, which also occurred in an unprovoked attack on defenseless Black victims, the jury could infer that it was racially motivated. The prejudicial effect of the assault, in which the inmate was apparently not seriously hurt, was minimal when contrasted to the murders with which Satele was charged. Thus, the trial court did not abuse its broad discretion under Evidence Code

section 352 when it ruled that the probative value of Deputy Arias’s testimony about the attack was not substantially outweighed by its prejudicial effect. Defendant Satele contends that the trial court erred by failing to state that it had weighed the probative value and prejudicial effect of Deputy Arias’s testimony when it overruled his objection to the evidence. He is wrong: A trial court is not required to “ ‘expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing function under Evidence Code

section 352.’ ” (People v. Lewis (2009) 46 Cal.4th 1255, 1285 [96 Cal.Rptr.3d 512, 210 P.3d 1119].) Here, the record shows that the trial court properly performed this task. Indeed, the trial court had previously precluded the prosecutor from asking Demery, the husband of defendant Satele’s cousin, about the incident on cross-examination in the defense case because the court found its probative value was outweighed by its prejudice. (See p. 29, ante.) 3.

Asserted prosecutorial misconduct Both defendants contend that the prosecutor committed misconduct during closing argument. “A prosecutor commits misconduct when his or her conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact.” (People v.

Avila (2009) 46 Cal.4th 680, 711 [94 Cal.Rptr.3d 699, 208 P.3d 634].) “As a general mle a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” (Samayoa, supra, 15 Cal.4th at p. 841.) a. Asserted vouching by the prosecutor Here, in closing argument to the jury, the prosecutor said: “He [(Ernie Vasquez)] identified Curly [Caballero] as the driver of that Buick.

Isn’t it amazing that Curly just happened to be with Speedy and [Wilbone] earlier and it was brought out that he was with them later, that Ernie Vasquez hit the nail on the head? He identified Curly. What a coincidence. Because I guarantee that is the truth. What he testified to was corroborated.” (Italics added.) Defendant Nunez objected to the “district attorney’s guarantee that is the truth.” The trial court said: “Your objection is improper argument. Please make a legal basis. Sustained. Carry on.” Defendants did not request an admonition.

In defendant Satele’s closing argument, his counsel asserted that much of the tape recording of defendants’ conversation while they were being transported in the van to and from court (see p. 7, ante) was inaudible. In rebuttal, the prosecutor said: “[A]ll you have to do is listen to his own words. Listen to Daniel Nunez’[s] own words track 2 at 2250, you will hear . . . . [Defendant’s counsel says you can’t hear this stuff on the CD. You will hear it. I will back up my words. You will hear this. You will hear him say, I want Black and then he thinks a—no Blacks. . . . What does that tell you about his feeling?

We know what’s going on in this mind of his. They can’t justify it. The only way they can justify it you won’t hear that on the CD. I will stake my reputation on it. You listen [to] that tape, that CD at that point, and you will hear it.” (Italics added.) The trial court sustained defendant Nunez’s objection to the “guarantee by the district attorney.” Defendants did not ask the court to admonish the jury to disregard the comment. The prosecutor later said, “[W]hen I was talking about the CD tape and transcript, you listen to it. ... I shouldn’t say I sta[k]e my reputation.

You be the judge . . . .” “[Y]ou .... [l]isten you . . . judge for yourself.” Defendants contend that the prosecutor’s comments were misconduct because he relied on his personal beliefs. (See People v.

Medina (1995) 11 Cal.4th 694, 776 [47 Cal.Rptr.2d 165, 906 P.2d 2] [“prosecutors should not purport to rely in jury argument on their outside experience or personal beliefs based on facts not in evidence”].) Defendants failed to seek an admonition as to either statement, no exception to the general rule requiring a request for admonition is applicable, and the claim is therefore forfeited on appeal. (Samayoa, supra, 15 Cal.4th at p. 841.) Moreover, the comments were not prejudicial: In both instances, the prosecutor explained that the evidence in the record supported his view, the trial court sustained defense objections to the challenged comments, and the prosecutor later told the jury as to his argument about the CD, “I shouldn’t say I sta[k]e my reputation.” b.

Asserted inconsistent arguments Defendant Satele asserts the prosecutor committed misconduct when, after arguing at the guilt phase that he did not know and had not proven who fired the murder weapon, he argued at the penalty phase that defendant Satele was the shooter.

Satele claims that as “a result of this shift in theory, the prosecutor used facts to increase [Satele’s] culpability without proving those facts first in the guilt phase.” At the guilt phase, the prosecutor said in closing argument to the jury: “You heard the testimony of Julie Rodriguez . . . [about] what they do when they commit driveby murders like this. They have a driver, they have a shooter, and they have people in the back to look for law enforcement, to look for witnesses. ... I will be the first one to tell you that I did not prove to you who the actual shooter was.

Whether it was defendant Nunez or defendant Satele. But you know they were in the car. An[d] whether they’re in the backseat, the front seat, the driver’s seat, all three of those individuals knew what was going down that day and participated in this murder.” The prosecutor later argued: “What happened? We know at that point the Buick Regal ... is going southbound on Frampton. Curly [Caballero] is driving— from the evidence, remember, Ernie [Vasquez] thought [defendant Satele] was in the front passenger seat. . . . [T]he person in the rear he thought looked like Speedy [(defendant Nunez)], or he resembled Speedy.

So let’s go with it that way.” At the penalty phase, the prosecutor in closing argument to the jury discussed the mitigating factor described in

section 190.3, factor (j), which allows a jury to consider, in deciding whether to impose a sentence of death, “[wjhether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.” The prosecutor said: “[W]hat were the roles of the defendants in the murdering of Edward and Renesha? . . . Neither of these defendants . . . had a role which was minor. They were all major participants in this crime. . . . You . . . remember Ms.

Rodriguez told you what happens in a driveby shooting.” He noted that Vasquez had testified the driver was Caballero, and that as for the person in the passenger seat who was the shooter, the prosecutor argued: “The evidence . . . points to defendant Satele.” The prosecutor said that Contreras had heard defendant Satele say, “I shot the Black guy and that Black girl,” and reminded the jury of Vasquez’s testimony that the person in the passenger seat resembled Satele, and the person in the backseat resembled defendant Nunez.

The prosecutor then asserted that even if defendant Nunez was in the backseat, his role as a lookout for the police and for any witnesses was not minor. Defendant Satele did not object to the prosecutor’s argument at the penalty phase or seek an admonition, and no exception to the general rule requiring an objection and admonition request is applicable. The claim is therefore forfeited. (Samayoa, supra, 15 Cal.4th at p. 841.) It is also meritless because the arguments at the guilt and penalty phases were not inconsistent.

Rather, at both phases of trial the prosecutor observed that the evidence, although inconclusive, indicated that defendant Satele was most likely the shooter. At the penalty phase the prosecutor simply sought to persuade the jury that if it found defendant Nunez was in the backseat of the vehicle, this did not mean his participation was minor within the meaning of

section 190.3, factor (j). No misconduct occurred. 4. Challenge to gang enhancement instruction a. Factual background The prosecution alleged, as sentence enhancements to the murders charged in counts 1 and 2 of the amended information, that defendants committed the murders in violation of

section 186.22’s subdivision (b)(1) (section 186.22(b)(1), sometimes referred to as the gang enhancement). The gang enhancement provides for an increased sentence when the underlying felony was committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (Ibid.) At trial, the prosecution presented evidence that West Side Wilmas gang members other than defendants had committed crimes.

Detective Dinlocker testified that Ruben Figueroa and Brian Dominic Martinez were West Side Wilmas gang members, and the prosecution introduced records of Martinez’s conviction for assault with a firearm and Figueroa’s convictions for murder and assault with a deadly weapon. During the guilt phase instruction conference, the trial court proposed to instruct the jury with CALJIC No. 6.50, stating that this instruction concerned the “gang crime.” CALJIC No. 6.50 does not describe the elements of the gang enhancement with which defendants were charged, set forth in

section 186.22(b)(1); instead, it gives the elements of a crime described in

section 186.22’s subdivision (a) (hereafter the gang crime), which makes it a felony to “actively participate[] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity.” Defendant Satele’s counsel said he did not object to the proposed instruction. The prosecutor argued that the “pattern of criminal gang activity” described in the instruction should inclu

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