THE PEOPLE, Plaintiff and Respondent, v. STANLEY BRYANT, DONALD FRANKLIN SMITH and LEROY WHEELER, Defendants and Appellants, 60 Cal. 4th 335

Opinion CORRIGAN, J. On August 28, 1988, Andre Armstrong, James Brown, Loretha Anderson, and Chemise English were shot and killed. Armstrong and Brown had run afoul of the Bryant Family gang and were shot at the entrance to a drug house. Ms. Anderson and her daughter Chemise, age 28 months, were shot in a car parked at the curb. Anderson’s son Carlos, age 18 months, was also in the car. He was not shot and survived. A jury convicted defendants Stanley Bryant, Donald Franklin Smith, and Leroy Wheeler of various related crimes. Bryant and Wheeler were convicted of four counts of first degree murder (Pen.

Code, § 187, subd. (a)) and one count of attempted murder (§§ 187, 664). Smith was convicted of the first degree murder of Armstrong and Brown, second degree murder of Anderson and Chemise, and the attempted murder of Carlos. The jury found the multiple-murder special-circumstance allegation (§ 190.2, subd. (a)(3)) was true as to each defendant. The jury was unable to reach verdicts on allegations against a fourth codefendant, Jon Preston Settle. After a penalty trial, the jury returned verdicts of death. Motions to modify were denied. (§ 190.4, subd. (e).) We affirm the judgments. I.

Factual Background The presentation of guilt phase evidence lasted two and one-half months. It included the testimony of 121 witnesses and more than 270 exhibits including hundreds of pages of documents and a number of video and audio tapes. In the penalty phase, 41 witnesses testified over the course of seven days. We present here for background purposes a synopsis of the significant evidence, generally viewed in the light most favorable to the verdicts. Additional factual and procedural details necessary to resolve defendants’ appellate claims are provided in the pertinent discussion. A. Guilt Phase 1.

Overview The original charges included a number of noncapital offenses with additional defendants involved in the Bryant Family drug operation. The court severed and tried the capital allegations first. The prosecution’s basic theory was that Bryant directed the shootings of Armstrong and Brown because Armstrong was a threat to Bryant’s business. The prosecution maintained that Smith, Wheeler, and codefendant Settle were underlings who participated in the murders at Bryant’s direction. After Armstrong and Brown were killed, the prosecution asserted, Wheeler shot Ms.

Anderson and Chemise and attempted to murder Carlos to eliminate them as potential witnesses. Smith presented no evidence at the guilt phase. Wheeler testified and admitted some low-level activity in the drug business, but claimed he was not involved in the murders. Bryant also admitted he was a member of the organization. He asserted his role was less significant than the prosecution alleged, and that he had no role in the murders. 2. Prosecution Evidence In the 1980’s, Bryant and his older brother Jeff Bryant (Jeff) controlled a large-scale cocaine operation in the suburbs of Los Angeles.

Their organization was known as “the Family” or “the Bryant Family” and had over 100 employees. A number of these testified at trial about Family operations. Seized records indicated the Family took in well over $1 million during three months of 1988. The Family used a number of houses to prepare and sell drugs and process the money from sales. Typically, the houses were fortified.

Windows and doors were covered and locked, metal gates with electronic locks and blackout screens were erected at front entrances to create “sally ports.” Someone entering the house would be enclosed between two locked gates and unable to see farther into the residence. Barricaded or reinforced locked doors inside blocked access between rooms. These fortifications were encountered during interdiction operations in 1984 and 1985. Ultimately, police served search warrants at several Family houses. Service of the warrants required the use of various entry tactics.

Sometimes a vehicle resembling a military tank would break a hole in an exterior wall so officers could enter. As a result of these investigations, Jeff pleaded guilty to charges of selling cocaine and operating a house where narcotics were sold. Defendant Bryant pleaded guilty to conspiracy. He admitted hiring a coconspirator to sell cocaine at a Bryant Family “rock house” on Wheeler Avenue, the same house where the murders later occurred (hereinafter sometimes referred to as Wheeler Avenue). Apparently, these events were only a minor setback; widespread operations continued.

When Bryant was released from custody, he ran the street enterprise. Although Jeff remained imprisoned, he was still considered the overall Family leader. Houses damaged during police raids were repaired, refortified, and returned to service. The Family also engaged in ancillary violent activities. As relevant here, in 1982, Bryant and Jeff hired Andre Armstrong to act as a “hit man.” Armstrong subsequently shot Reynard Goldman for failing to pay a $50 drug debt. He killed Kenneth Gentry, who had vandalized another Bryant brother’s van.

Bryant, Jeff, and Armstrong were charged with the Goldman assault and Gentry murder. After the Family bribed and threatened witnesses, charges against the Bryant brothers were dropped. Armstrong, however, was convicted at trial of felony assault and first degree murder. When his convictions were reversed on appeal, he pleaded guilty to felony assault and voluntary manslaughter. He was paroled in July 1988. While Armstrong was in prison, Bryant and other Family employees sent thousands of dollars to him and his relatives.

Several months before Armstrong was paroled, the Family helped his friend James Brown set up a cocaine operation in Monterey. Nonetheless, Armstrong remained unhappy with the level of support he had received. Weeks after meeting Brown in Monterey, Armstrong decided they should return to Los Angeles. Armstrong told several people, including police officers who had interviewed him in prison, that he intended to “squeeze” the Bryants for money and part of their business. He considered them weak, and felt they failed to honor their promise to prevent his conviction.

While in Monterey, Armstrong began an intimate relationship with Bryant’s ex-wife, Tannis Curry. These decisions proved ill advised. On Friday, August 26, 1988, Brown, Andrew Greer, Elaine Webb, and Loretha Anderson and her two children moved to Los Angeles. Armstrong and Tannis had gone there a few days earlier. Bryant had provided an apartment, but it was dirty. Armstrong wanted Bryant to pay for cleaning before they moved in. On Saturday, the group went to a pool hall to meet Bryant and complain about the accommodations. On Sunday, Armstrong, Brown, and Greer went to Tannis’s separate apartment.

Armstrong paged Bryant, then received a call. He told the others they were to meet “Stan” at a Wheeler Avenue house to pick up $500 and cleaning supplies. Armstrong told Tannis to bring a pistol, which she placed in her purse. Before meeting Stan, the group went to the home of Tannis’s aunt. When they left, Tannis remained behind. Greer was concerned about the meeting and did not attend. Anderson decided she and her children would go along to the meeting so they could all get something to eat afterwards. Several people near the Wheeler Avenue house heard multiple gunshots at approximately 5:00 p.m.

Shortly thereafter, a tall, thin African-American man emerged, went to a car parked outside, and shot into the car. He then got in the car and drove away. One witness identified a photograph of defendant Wheeler as the driver. A witness also saw what might have been a car owned by Bryant leaving the house after the shooting. Another witness saw a large green car with a driver, front seat passenger, and two men in the backseat leaning against each other in an unusual way. Within minutes of the shootings, the victims’ car was found about seven blocks away.

Inside were the lifeless bodies of Loretha Anderson and Chemise English. Anderson had been shot several times with both a shotgun and a handgun. Chemise had been fatally shot in the neck by a handgun at close range. Carlos was also in the car. While not shot, he was injured by flying glass. Four days later the bodies of Armstrong and Brown were found in roadside brush approximately five miles from Wheeler Avenue. Armstrong had been shot twice with a shotgun. A shot to the center of his chest was probably fired from a distance of four feet or less.

A second to his head was apparently fired with the shotgun muzzle almost touching his skin. He was also shot with a handgun. Brown was shot twice with a shotgun and twice in the chest with a handgun. The fatal shot was fired into his heart with the handgun muzzle pressed against him. Evidence at Wheeler Avenue, including blood patterns, bullet holes, and expended cartridges, indicated that Armstrong and Brown had been shot in the front entrance sally port. Their bodies were dragged through the house into the garage.

James Williams, a Bryant Family employee, was present at Wheeler Avenue before and during the crimes. He started working for the Family at the beginning of April 1988 and initially worked at Bryant’s pool hall. His primary duty was to tell cocaine purchasers where to go to acquire drugs. Williams was quickly promoted to working at the Wheeler Avenue “count house.” There, money from drug sales was counted and bundled. Family employees came to the house to pick up their weekly pay. People wishing to purchase larger quantities of cocaine would also arrange purchases at Wheeler Avenue.

Williams, defendant Wheeler, and Lamont Gillon normally worked daily staggered eight-hour shifts at the count house. A fourth employee, Anthony Arceneaux, would fill in for the other three on their days off. Bryant, who was referred to as “Chief,” regularly visited and gave Williams directions. Williams knew defendant Smith worked for the Family because he picked up his weekly pay at the house. Williams did not know Smith’s role in the organization. On the day of the murders Williams was working when Bryant arrived around 2:00 p.m.

At some point, Bryant had Williams contact Arceneaux and tell him not to come to work. Bryant moved money along with counting and adding machines, normally kept in the house, into the garage. He also carried a heavy duffle bag from the garage into a back bedroom. Later, Wheeler and Smith arrived and joined Bryant in the back room. It was unusual for Wheeler and Smith to be there on a Sunday afternoon. Bryant also remarked several times that “Johnny” was late. Subsequently, codefendant Jon Settle, whom Williams had never seen at the house before, arrived and went into the back room also.

Sometime later, Williams heard a gunshot from the rear of the house. Bryant emerged and asked how loud a noise the shot had made. Later, Settle came out, chambered a shotgun round, and returned to the bedroom. Eventually, Bryant, Smith, and Wheeler came to the front room. Bryant said they were expecting some people and told Williams what to do when they arrived. After they entered the sally port, Williams was to release the electronic lock on the outside door so Bryant could leave. When he had done so, Williams was to go out through the garage to a green car parked in the driveway and back it into the garage.

He would then walk to a nearby bus stop, watching to see if any neighbors were looking. Eventually, Williams saw two strangers approach. After they entered the sally port, Williams unlocked the outer gate so Bryant could leave. As Williams walked back toward the garage, he heard gunshots and screams. While backing the green car inside, he saw Wheeler outside with a shotgun. Wheeler approached a car parked at the curb and Williams heard glass breaking. After parking the green car Williams saw Bryant in the garage. Bryant told him to leave.

While walking to the bus stop, he saw Wheeler driving the car that had been parked in front of the house. Bryant drove away in his own car. Smith and Settle left in the green car. Bryant later called Williams and told him not to go back to the house and not to talk about what had happened. Several days later, a Family employee told Williams he had been identified. Williams was told to leave Los Angeles; the Family would cover his expenses. He went to Pennsylvania and received a $500 wire transfer from a Family employee.

Eventually arrested in Harrisburg, he gave several statements about the shootings in exchange for immunity. Bryant’s and Wheeler’s fingerprints were found in the Wheeler Avenue house. Bryant’s prints were found on a portable telephone and on the page of an address book containing an entry for the alias victim James Brown was using. Expended cartridges from three different shotguns were found at the house. An expended .45-caliber casing was also found in a trash can. It had been fired from a handgun later recovered in Bryant’s house.

The day after the shootings, Bryant and Wheeler visited Jeff at Donovan State Prison. Six days after the murders, Bryant bought a new car using the name of a Family employee. He traded in his relatively new car, which matched the description of the one Williams said Bryant had driven to Wheeler Avenue. Examination of the trade-in yielded positive presumptive tests for the presence of blood at the driver’s feet.

Bryant told Ladell Player, a drug dealer supplied by the Family, that the police had been at Wheeler Avenue because “we had some problems, but we took care of them.” Bryant also told Alonzo Smith that, in essence, Brown “had to go.” On September 25, 1988, police officers searched the apartment of Wheeler’s girlfriend, and found a handgun consistent with the one used to shoot Loretha Anderson and her daughter. They also recovered two newspaper articles related to the murders, and $7,650 in cash hidden in the ceiling. On September 29, 1988, police searched Bryant’s house.

They found numerous items related to Family business, the handgun that had fired the expended cartridge found at Wheeler Avenue, several keys to that house, and papers with telephone numbers for James Brown and relatives of Andre Armstrong. Extensive telephone records suggested the following. Bryant and Smith talked to Armstrong or his relatives after he was released from prison. Before the murders Bryant and Smith exchanged numerous phone calls, Bryant and Wheeler called each other repeatedly, and each defendant made several calls to Wheeler Avenue.

In an effort to establish an apparent additional motive for Bryant to murder Andre Armstrong, and to further tie Smith to the murders, the prosecution introduced evidence of two attacks on one Keith Curry. When attacked, Curry, like victim Andre Armstrong, had been involved in an intimate relationship with Bryant’s ex-wife Tannis. He also was friendly with defendant Smith. The prosecution asserted that Bryant was jealous of Armstrong’s affair. Because Smith and Armstrong were friends, Smith’s presence at Wheeler Avenue was designed to place Armstrong at ease before the shooting.

Curry testified that he began dating Tannis when her relationship with Bryant was unstable. Tannis moved into an apartment where Curry typically spent three or four nights a week. On the morning of March 16, 1986, Curry left the apartment and his car exploded. A bomb was triggered by the car’s movement. Curry was slightly injured. Tannis told an acquaintance that Bryant said he put the bomb in Curry’s car and “would do it again . . . until [Curry] was dead.” Tannis divorced Bryant and married Curry. One evening Smith and Curry were engaged in small talk when Smith suddenly shot Curry in the neck, paralyzing him.

Smith was arrested later that night and police found a revolver and what appeared to be rock cocaine packaged for sale in his car. He was later released on bail after several properties connected to the Family were posted as security. 3. Wheeler’s Evidence Wheeler testified he joined the Family in early 1988. He began selling drugs for Eddie Barber, who ran a semiautonomous “crew.” Later, at Barber’s direction, Wheeler started working at Wheeler Avenue.

James Williams ran Wheeler Avenue, and served as an “enforcer.” On the day of the murders, Wheeler completed his shift at 7:00 a.m. then spent the day with his girlfriend visiting their families in Los Angeles. At 3:00 that afternoon and again at 10:45 that evening, he received a page. In response, Wheeler called Williams who told him not to come to work. Eddie Barber had previously instructed Wheeler to visit Jeff in prison the next day to report about drug operations. Wheeler was unaware of the shootings until he heard about them from Bryant, who was also visiting Jeff.

If Wheeler had been involved in the murders he would not have visited Jeff the next day because doing so would have connected Jeff to the murders. If he had been involved, he would have fled, using money he had saved from his drug dealing. All Wheeler knew about Bryant’s role in the Family was he arranged bail when members were arrested. He had not met codefendant Jon Settle before court proceedings began. Wheeler’s girlfriend testified that she did not specifically remember what she and Wheeler did on the day of the shootings; they customarily visited family on Sundays. 4.

Smith’s Evidence Smith offered no evidence at the guilt phase of the trial. 5. Bryant’s Evidence Bryant testified. While admitting his involvement in the drug business, he denied or attempted to refute evidence connecting him to the murders. He claimed he worked for his brother until Jeff went to prison. Bryant then turned the drug business over to William Settle, who was running things when the murders occurred. William Settle was the brother of codefendant Jon Settle. Bryant was never in charge. William Settle paid Bryant for the use of his pool hall in connection with the drug business.

Bryant also worked at Wheeler Avenue counting money. He “probably” had been there every day in 1988. However, he was not there the day of the murders and never subsequently returned. He had never been there with Williams. Bryant’s activities were all done at someone else’s direction. Bryant did not arrange a meeting with Armstrong at Wheeler Avenue. He spent most of the day of the murders at home. He denied that he drove a car like the one seen leaving the house. He never spoke with Ladell Player about what had happened at the house.

He visited Jeff in prison the day after the murders to get advice about how to end his association with William Settle. Bryant was uninvolved with the attacks on Kenneth Gentry, Reynard Goldman, and Keith Curry. He did not know Gentry, and did not hire Armstrong to kill him. After they were arrested for the Gentry murder, Armstrong told Bryant he shot Gentry because they had both been dating the same woman. Armstrong had decided to preemptively kill Gentry before Gentry acted against him. Bryant had not threatened Reynard Goldman about any drug debt.

He denied knowing anything about the attempts to bribe witnesses in the Gentry and Goldman shootings. He had nothing to do with the car bombing of Keith Curry, and never told Tannis that he wanted to kill him. Through the testimony of investigating officers, Bryant presented various inconsistencies between James Williams’s statements to the police and his testimony at trial. 6. Codefendant Settle’s Evidence Codefendant Settle testified and presented other evidence that he was an automobile mechanic and was only peripherally connected to the Family drug business through his brothers William and Frank.

He did not participate in the murders, but did sell Bryant a green 1970 Pontiac Bonneville on the day of the shootings. According to Settle, defendant Wheeler drove Settle’s brother Frank to pay for the Bonneville and to pick up another car Settle had repaired for Bryant. Frank later told Settle that the Bonneville had been used in the murders. B. Penalty Phase 1. Evidence Against Bryant Bryant had twice hired a contract killer. Walter Compton testified that Bryant offered him $10,000 to kill Sofinia Newsome, a cooperating witness in the Kenneth Gentry murder prosecution.

Jeff gave Compton a handgun and getaway car. Compton followed Newsome for several days, but ultimately decided against the murder. He surrendered to the police because he feared going to prison or being killed by the Bryants. On March 19, 1985, Clarence Johnson was shot several times while sitting in Bryant’s pickup truck outside the pool hall. Johnson survived; David Hodnett pleaded guilty to the attempted murder. Although Hodnett testified that he shot Johnson for personal reasons, he had previously told police that Bryant and Jeff had hired him to kill Johnson.

Hodnett was supposed to testify against the Bryants in the Johnson case. He told the investigating officer he instead pleaded guilty during the preliminary hearing and stopped cooperating in order to protect himself and his family from retaliation. 2. Evidence Against Smith While in custody for this case, Smith was twice found in possession of prisoner-made weapons. He also assaulted another inmate. Someone held the victim while Smith punched him in the face and upper torso. After deputies separated the inmates, it was discovered that the victim also had three puncture wounds in his back.

Two metal shanks were found in a nearby toilet. Smith had committed a residential burglary on July 30, 1982. The 60-year-old condominium owner came home and found a man in her bedroom. She did not remember what happened next, but was apparently knocked unconscious, suffering a head wound that required 20 stitches. The victim’s daughter saw Smith leaving the residence. He was arrested one block away in possession of the victim’s jewelry.

Documentary evidence established Smith had been convicted of assaulting a woman with intent to commit great bodily injury, attempting to murder Keith Curry, and transporting cocaine. 3. Evidence Against Wheeler Wheeler was adjudged a juvenile ward in 1985 after attempting a robbery. While in custody, Wheeler assaulted another ward with a chair. After his release he argued with one Brian Brown, ultimately pointing a handgun at Brown’s head for several seconds then walking away. While awaiting trial, Wheeler was found to have a four-inch shank hidden in his underwear.

He pleaded guilty to possessing a weapon in jail. He twice attacked other jail inmates. One night after lockdown, Wheeler and another inmate argued over a card game. The inmate was locked in his cell and Wheeler, a trustee for the tier, was outside. Wheeler threw a bucket of water into the cell then told deputies he needed to clean up a spill. When the cell door was opened he attacked the inmate with a shank. He also swung the shank at a responding deputy, cutting his arm. He ignored repeated orders to drop his weapon until deputies threatened to use a Taser gun to subdue him.

The inmate was seriously injured and required extended hospitalization. 4. Bryant’s Evidence in Mitigation Bryant’s former mother-in-law, sister, and two friends testified to his character. He was close to his young daughter and loved by all his relatives. During his divorce from Tannis, Bryant arranged for his daughter to see a therapist. The therapist testified that Bryant was a caring and loving parent. Bryant often gave money to people in the community. He paid for funeral costs and raised funds for youth baseball teams. Many community members liked him.

Bryant’s sister testified that he encouraged her son to attend school and avoid trouble. She believed Bryant had made “spiritual progress” since his arrest. The witnesses considered Bryant a basically good person who did not deserve the death penalty. 5. Smith’s Evidence in Mitigation Smith’s sister testified she and Smith did not live with their parents until they were six and four years old, having previously lived with their grandparents. Their parents showed the children no affection. The father was in the military and seldom present. When at home, he frequently beat Smith; their mother did not intervene.

Smith saw his father molest his sister. The parents eventually separated and the children returned to their grandparents. Smith’s sister had no positive recollections of life with the parents. Clinical Psychologist Donald Hoagland testified about Smith’s neurocognitive and psychological assessments. Smith scored an 84 on an intelligence test, indicating “subnormal” intelligence. His school records suggested attention deficit hyperactivity disorder. Hoagland diagnosed Smith with dyslexia and various cognitive deficits.

Smith had a serious and chronic mental disorder with “the potential to be psychotic under adverse conditions.” He was chronically depressed and anxious, had a “seriously impaired self-image,” was socially and emotionally withdrawn, impulsive, and quick to anger. Smith’s pattern of psychopathology was common in those with particularly adverse family backgrounds. 6. Wheeler’s Evidence in Mitigation A number of Wheeler’s relatives testified about his chaotic and abusive childhood. Wheeler’s mother was a drug-addicted runaway when she met Leroy Wheeler, Sr. She was 17 and he 19 at Wheeler’s birth.

When Wheeler’s brother was born about two years later his father began living apart from the family. Wheeler’s mother could not provide a stable home and moved frequently. The father visited occasionally and the children witnessed violent fights. When Wheeler was six years old his father left for good. Wheeler’s mother had frequent associations with other men, and eventually became involved with Charlie Luster. Luster was able to provide some stability but also physically abused Wheeler.

Luster was a self-described “hustler” and “compulsive gambler,” who was imprisoned part of the time during his relationship with Wheeler’s mother. Wheeler’s mother died the year of the murders. When Wheeler was 12 or 13 years old, he began staying at relatives’ homes. At age 15, he moved out on his own. Soon thereafter, he attempted a robbery and was sent to the California Youth Authority. A counselor testified that Wheeler caused no major problems and was a good worker and student. He was unaffiliated with any gang.

One of Wheeler’s aunts testified that when he stayed at her house, he got along well with other children and attended school. Another aunt described him as smart, industrious, and entrepreneurial. Wheeler gave his brother advice and assistance. Wheeler’s relatives, as well as Charlie Luster, hoped the jury would spare his life. Clinical Psychologist Adrienne Davis evaluated Wheeler. In her opinion, he was intelligent, articulate, and capable of doing well, especially in a structured environment with well-defined expectations.

There were, however, some indications that he could be overly energetic and have difficulty behaving constructively. She believed that Wheeler’s history of transient living, abandonment, neglect, and abuse led him to seek out relationships with older men who would protect him and provide a secure environment. This, in turn, led to his criminal activities. II. Pretrial Issues Before turning to defendants’ claims, we discuss two preliminary matters.

First, in their briefs, each defendant makes a blanket statement that he joins in the claims raised by each of the others, to the extent that the claims are not in some manner adverse to their own interest. It is questionable whether such cursory and unfocused statements are sufficient under the California Rules of Court, rules 8.630(

a) and 8.200(a)(5), to permit joinder of appellate claims in a multiple defendant capital appeal. Each defendant has filed opening briefs of several hundred pages raising numerous claims of error from all stages of the proceedings. In these circumstances, there are likely to be instances when a particular claim simply does not apply to all defendants, or when not all defendants pursued that issue during the trial proceedings to preserve the issue for appeal.

Purporting to join in a claim when no colorable argument can be made that the claim is applicable and preserved is akin to raising a frivolous claim in the first instance. (Cf. In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 [183 Cal.Rptr. 508, 646 P.2d 179].) It is not the task of the opposing party or this court to sort out what claims from the scores presented here are nonfrivolous as to the other defendants who did not identify with particularity the specific claims they wished to join.

Clearly, neither the Attorney General nor this court is required to divine which aspects of a claim might be adverse to a particular defendant, rendering him unwilling to join the particular claim at issue. Appellate counsel for the party purporting to join some or all of the claims raised by another are obligated to thoughtfully assess whether such joinder is proper as to the specific claims and, if necessary, to provide particularized argument in support of his or her client’s ability to seek relief on that ground.

If a party’s briefs do not provide legal argument and citation to authority on each point raised, “ ‘the court may treat it as waived, and pass it without consideration. [Citations.]’ ” (People v. Stanley (1995) 10 Cal.4th 764, 793 [42 Cal.Rptr.2d 543, 897 P.2d 481].) “Joinder may be broadly permitted [citation], but each appellant has the burden of demonstrating error and prejudice [citations].” (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11 [104 Cal.Rptr.3d 616].) We strongly disapprove of this seriously improper tactic.

Nonetheless, we will treat this case as if defendants complied with the Rules of Court regarding the joinder of claims. We take this step solely to avoid further delay. Counsel in future cases should be on clear notice that we will not be inclined to do so going forward. We will not, of course, assume that each defendant has standing to raise each and every claim raised in the briefs or that he preserved a claim for appeal by taking appropriate and timely action below. Second, as to many claims defendants allege for the first time that the error complained of violated their federal constitutional rights.

To the extent that in doing so defendants have raised only a new constitutional “gloss” on claims preserved below, that new aspect of the claims is not forfeited. However, “[n]o separate constitutional discussion is required, or provided, when rejection of a claim on the merits necessarily leads to rejection of [the] constitutional theory . . . .” (People v. Scott (2011) 52 Cal.4th 452, 487, fn. 29 [129 Cal.Rptr.3d 91, 257 P.3d 703] (Scott); see People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 [42 Cal.Rptr.3d 677, 133 P.3d 581] (Boyer).) A.

Denial of Bryant’s Motion to Suppress Evidence Bryant appeals the denial of his motion to suppress evidence seized during the warrantless search of the Wheeler Avenue house and the search of his own residence pursuant to a warrant. The trial court did not err. Bryant ultimately failed to present any competent evidence that he had a legitimate expectation of privacy in Wheeler Avenue when it was searched. The warrant authorizing the search of Bryant’s home was valid. To the extent Smith and Wheeler intended to join this claim, the claim is forfeited and meritless as to them.

They did not join in the motions below, nor have they alleged they had any expectation of privacy in either of the places searched. “ ‘In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court’s resolution of the factual inquiry under the deferential substantial-evidence standard.

The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.’ [Citation.] On appeal we consider the correctness of the trial court’s ruling itself not the correctness of the trial court’s reasons for reaching its decision. [Citations.]” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145 [112 Cal.Rptr.3d 746, 235 P.3d 62] (Letner).) “Pursuant to

article I,

section 28, of the California Constitution, a trial court may exclude evidence under Penal Code

section 1538.5 only if exclusion is mandated by the federal Constitution.” (People v. Banks (1993) 6 Cal.4th 926, 934 [25 Cal.Rptr.2d 524, 863 P.2d 769].) The Fourth Amendment to the federal Constitution prohibits unreasonable searches and seizures. (See Banks, at p. 934.) 1.

Wheeler Avenue In order to challenge a search or seizure, a defendant must allege not only that the police action was unreasonable, but also that the defendant’s personal interests were violated. “The ‘capacity to claim the protection of the Fourth Amendment depends . . . upon whether the person . . . has a legitimate expectation of privacy in the invaded place.’ (Rakas v. Illinois (1978) 439 U.S. 128, 143 [58 L.Ed.2d 387, 99 S.Ct. 421].) A defendant has the burden to establish a legitimate expectation of privacy in the place searched. [Citations.]” (People v.

Rivera (2007) 41 Cal.4th 304, 309, fn. 1 [59 Cal.Rptr.3d 473, 159 P.3d 60].) In considering this question, courts look to the totality of the circumstances. Appropriate factors include “ ‘ “ ‘whether the defendant has a [property or] possessory interest in the thing seized or the place searched; whether he has the right to exclude others from that place; whether he has exhibited a subjective expectation that it would remain free from governmental invasion, whether he took normal precautions to maintain his privacy and whether he was legitimately on the premises.’ ” ’ [Citation.]” (People v.

Roybal (1998) 19 Cal.4th 481, 507 [79 Cal.Rptr.2d 487, 966 P.2d 521].) Essentially, a legitimate expectation of privacy is one “society is prepared to recognize as reasonable.” (Minnesota v. Olson (1990) 495 U.S. 91, 97 [109 L.Ed.2d 85, 110 S.Ct. 1684].) Initially, Bryant points out that the prosecution presented evidence in the preliminary hearings to establish that he was a leader of the Bryant Family drug organization that operated Wheeler Avenue. Thus, he urges, the prosecution conceded he had a legitimate expectation of privacy there.

Accordingly, he contends, the trial court’s contrary finding was erroneous and the Attorney General is estopped from challenging the issue on appeal. Bryant provides no authority for this novel assertion. The circumstance that Bryant ran the organization using Wheeler Avenue as a base of operations does not mean he had a legitimate expectation of privacy in the house when it was searched.

As the high court observed in analogous circumstances, its precedents “clearly establish that a prosecutor may simultaneously maintain that a defendant criminally possessed [a seized item], but was not subject to a Fourth Amendment deprivation, without legal contradiction.” (United States v. Salvucci (1980) 448 U.S. 83, 90 [65 L.Ed.2d 619, 100 S.Ct. 2547].) At the suppression hearing, Bryant tried to establish his expectation of privacy in Wheeler Avenue without testifying on the subject himself. He sought to call Williams as a witness and to introduce the “expert testimony” of Detective Vojtecky.

He also suggested testimony by the prosecutor. The court denied the request to compel Williams, who was in a witness protection program, to appear. The prosecutor did suggest the possibility of stipulating to certain facts that Williams had testified to at the preliminary hearings. The parties, however, never actually entered into a stipulation. In fact, Bryant’s counsel explicitly rejected the idea of preparing a stipulation. As to the testimony of Detective Vojtecky, the court excluded most of it, ruling the testimony was irrelevant hearsay.

It also rejected the suggestion that the prosecutor testify for essentially the same reason. The prosecutor could offer no relevant testimony about Bryant’s privacy expectations. Bryant did not present any evidence, such as legal documents, to show he personally held some property interest in Wheeler Avenue. He chose to testify at the hearing, but limited his testimony to facts about his residence on Judd Street. Accordingly, the court denied the motion to suppress, finding that Bryant had established no reasonable expectation of privacy in Wheeler Avenue.

On appeal, Bryant does not assert that the evidence actually before the trial court compelled a different result regarding his expectation of privacy. As noted, no evidence on the subject was admitted. Bryant’s recitation of the preliminary hearing and subsequent trial testimony regarding his connections to and the search of Wheeler Avenue is irrelevant. That evidence was not before the trial court when it ruled on the pretrial motion. (People v.

Rundle (2008) 43 Cal.4th 76, 132 [74 Cal.Rptr.3d 454, 180 P.3d 224] (Rundle).) Bryant does not challenge the exclusion of Vojtecky’s testimony, except by way of conclusory assertions in his reply brief that the court’s mling was erroneous and unconstitutional. He makes absolutely no assertion that the ruling excluding the prosecutor’s testimony was erroneous. He has therefore waived these issues. (People v. Stanley, supra, 10 Cal.4th at p. 793.) In any event, there is no support for the conclusion that either of these witnesses could have provided admissible testimony.

Clearly, neither witness had personal knowledge of Bryant’s expectations of privacy. Bryant suggested at the hearing that they might testify as expert witnesses about the Bryant Family. It is true that experts may permissibly base an opinion on hearsay or other evidence that might not be directly admissible, but a trial court nonetheless has discretion to “ ‘ “exclude from an expert’s testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.” ’ ” (People v.

Catlin (2001) 26 Cal.4th 81, 137 [109 Cal.Rptr.2d 31, 26 P.3d 357].) “ ‘[Prejudice may arise if, “ ‘under the guise of reasons,’ ” the expert’s detailed explanation “ ‘[brings] before [the trier of fact] incompetent hearsay evidence,’ ” ’ ” and “ ‘disputes in this area must generally be left to the trial court’s sound judgment.’ ” (Ibid.) Moreover, Bryant never clearly articulated how any proper opinion testimony could have assisted his cause.

There is no reason to disturb the court’s exercise of its judgment that these witnesses could offer no competent evidence on Bryant’s expectations of privacy in Wheeler Avenue. Thus, the remaining focus of Bryant’s claim is that the court erroneously declined to compel Williams to appear. He urges the ruling violated his constitutional right to “compulsory process,” preventing him from carrying his burden. The argument fails. The Sixth Amendment provides that “[i]n all criminal prosecutions,” the defendant has the right “to have compulsory process for obtaining witnesses in his favor.” (U.S.

Const., 6th Amend.) This right is applicable to the states under the Fourteenth Amendment’s due process clause. (Washington v. Texas (1967) 388 U.S. 14, 19 [18 L.Ed.2d 1019, 87 S.Ct. 1920].) Our state Constitution has a similar provision. (Cal. Const., art. I, § 15 [a criminal defendant has the right “to compel attendance of witnesses in the defendant’s behalf’].) We will assume without deciding that the compulsory process right applies to a request to compel a witness to appear at a suppression hearing. The procedural context of Bryant’s claim is relevant to determine whether his rights were violated.

A defendant claiming a denial of compulsory process must plausibly show that the missing testimony “would have been both material and favorable to his defense.” (United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 867 [73 L.Ed.2d 1193, 102 S.Ct. 3440]; see In re Martin (1987) 44 Cal.3d 1, 32 [241 Cal.Rptr. 263, 744 P.2d 374].) Moreover, the constitutional right to compulsory process is not “an unfettered right to offer testimony” that “automatically and invariably outweigh[s] countervailing public interests.” (Taylor v.

Illinois (1988) 484 U.S. 400, 410, 414 [98 L.Ed.2d 798, 108 S.Ct. 646].) A defendant claiming a violation of this right must establish both that he was deprived of the opportunity to present material and favorable evidence and that the deprivation was arbitrary or disproportionate to any legitimate purpose. (See Holmes v.

South Carolina (2006) 547 U.S. 319, 324-325 [164 L.Ed.2d 503, 126 S.Ct. 1727].) At bottom, “ ‘[i]n order to declare a denial of [due process based on the denial of compulsory process] we must find that the absence of . . . fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.’ ” (Valenzuela-Bernal, p. 872.) As Bryant acknowledges in his brief, Williams was not the only witness who could have testified on this subject. Bryant himself could have done so.

A defendant’s testimony at a suppression hearing cannot “be admitted against him at trial on the issue of guilt unless he makes no objection” (Simmons v. United States (1968) 390 U.S. 377, 394 [19 L.Ed.2d 1247, 88 S.Ct. 967]), and, as explained in People v. Lightsey (2012) 54 Cal.4th 668, 717 [143 Cal.Rptr.3d 589, 279 P.3d 1072], the due process right to present a defense does not obligate a trial court to admit proffered evidence with the effect of allowing the defendant to testify without subjecting himself to cross-examination.

Bryant was, of course, free to decline to testify at the suppression hearing, but his decision against doing so did not render the hearing fundamentally unfair.

Although “ ‘ “[t]he criminal process ... is replete with situations requiring the ‘making of difficult judgments’ as to which course to follow . . . [and] ... a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.” ’ ” (Letner, supra, 50 Cal.4th at p. 153, citation omitted.) Further, there was no suggestion that Williams could have provided important information that Bryant could not have.

Indeed, as the court here mentioned and some other courts have recognized, given the subjective portion of the expectation of privacy analysis, it is questionable whether a defendant could carry his burden without presenting his own testimony. (See, e.g., U.S. v. Mendoza (7th Cir. 2006) 438 F.3d 792, 795 [“ ‘without an affidavit or testimony from the defendant, it is almost impossible to find a privacy interest’ ”].) Williams’s testimony, therefore was an arguably inferior substitute for Bryant’s.

The trial court reasonably ruled that Bryant had not established a need for Williams’s testimony outweighing the administrative burden and potential safety concern in removing Williams from the safe location where he was housed. In the past the Bryant Family had taken steps to kill or influence witnesses against it. The weighing of Bryant’s interests against these concerns was neither arbitrary nor disproportionate. In sum, the denial of Bryant’s request to compel Williams’s testimony did not prevent a fundamentally fair hearing.

Bryant ultimately presented no competent evidence showing he had an expectation of privacy in Wheeler Avenue. On this deficient record the trial court clearly did not err in denying the suppression motion. 2. The Judd Street House The trial court found Bryant had established a legitimate expectation of privacy in his home on Judd Street. Bryant contends the affidavit supporting the warrant did not establish probable cause. Moreover, any likelihood that evidence would have been found there had grown stale by the time the warrant was served a month after the murders. The court properly rejected these challenges.

The search warrant affiant was the initial murder scene detective. The affidavit encompasses 35 typed pages. It incorporates by reference nine multipage exhibits. Inter alia, the affidavit chronicles observations made at the murder scene, witness statements, and discovery of the victims’ bodies. The blood, human tissue, remains, and evidence of gunshots at both Wheeler Avenue and the body recovery scenes are described in detail. The affidavit sets out the relationship between victim Andre Armstrong and the Bryants. It relates the drug interdiction incidents at Wheeler Avenue and the subsequent repairs made there.

Jeff Bryant is the listed owner of Wheeler Avenue. His leadership of the Family and its operations and multiple criminal activities is extensively recounted. The affidavit states that while Jeff was in prison defendant ran the drug business, implementing Jeff’s directions. Information from multiple sources recounting people and activity at Wheeler Avenue is provided along with background information about Bryant, the victims, and others identified during the investigation.

Largely paralleling the facts adduced at trial, the affidavit recounts details about the shootings of Gentry and Goldman, Armstrong’s intention to “squeeze” the Family, the trip from Monterey to Los Angeles, the dispute over the dirty apartment, Armstrong’s affair with Tannis, the operations at Wheeler Avenue, and Bryant’s activities there. Particularly with regard to the staleness question, the affidavit recites that guns are valuable and difficult to obtain, particularly by ex-convicts and parolees.

Suspects often retain guns along with ammunition, documents, and gun-related equipment after a crime is committed. Blood is difficult to remove from clothing and other fabrics. Forensic analysis of such items is frequently successful in linking suspects to a victim or scene. The affiant relates his belief that these kinds of items, along with documents, address books, photographs, and clothing could be found at the locations or in the automobiles described.

Accordingly, as the request pertained to Bryant, the application was made for authorization to search his home, a car, and the pool hall for a variety of items specifically listed. “Probable cause sufficient for issuance of a warrant requires a showing that makes it ‘ “substantially probable that there is specific property lawfully subject to seizure presently located in the particular place for which the warrant is sought.” ’ [Citation.] That showing must appear in the affidavit offered in support of the warrant. [Citation.]” (People v.

Carrington (2009) 47 Cal.4th 145, 161 [97 Cal.Rptr.3d 117, 211 P.3d 617] (Carrington).) “The showing required in order to establish probable cause is less than a preponderance of the evidence or even a prima facie case.” (Id. at p. 163.) The question of staleness concerns whether facts supporting the warrant application establish it is substantially probable the evidence sought will still be at the location at the time of the search. “No bright-line rule defines the point at which information is considered stale. [Citation.] Rather, ‘the question of staleness depends on the facts of each case.’ [Citation.] ‘If circumstances would justify a person of ordinary prudence to conclude that an activity had continued to the present time, then the passage of time will not render the information stale.’ ” (Id. at pp. 163-164.) The affidavit clearly established probable cause to believe Bryant was involved in the murders, and he does not argue otherwise.

Contrary to his claim, there is ample support for a finding of probable cause to search the Judd Street house. The affidavit is extensive and detailed. It demonstrates a substantial basis to believe that firearms, blood evidence, and other items of evidentiary value would be found at Bryant’s home.

Moreover, based on “ ‘ “the nature of the crimes and the items sought, a magistrate [could] reasonably conclude that a suspect’s residence is a logical place to look for specific incriminating items.” ’ ” (Carrington, supra, 47 Cal.4th at p. 163.) The trial court properly found the affidavit provided timely and sufficient probable cause.

Bryant also contends the warrant was unconstitutionally overbroad because it authorized the police officers to seize “[a]ny articles or personal property tending to establish the identity of persons who have dominion and control over the premises.” “Whether a warrant’s description of property to be seized is sufficiently particular is a question of law subject to independent review by an appellate court. [Citation.] In considering whether a warrant is sufficiently particular, courts consider the purpose of the warrant, the nature of the items sought, and ‘the total circumstances surrounding the case.’ [Citation.] A warrant that permits a search broad in scope may be appropriate under some circumstances, and the' warrant’s language must be read in context and with common sense.” (People v.

Eubanks (2011) 53 Cal.4th 110, 133-134 [134 Cal.Rptr.3d 795, 266 P.3d 301].) We recently rejected a similar claim in Eubanks. As in that case, the warrant here was sufficiently particularized under the circumstances. At the time the warrant was requested, police could not have realistically described the personal property with any greater particularity, and it was necessary to establish Bryant’s control over any evidence seized. (See id. at pp. 134-135; People v. Nicolaus (1991) 54 Cal.3d 551, 575 [286 Cal.Rptr. 628, 817 P.2d 893].) B.

Denial of Bryant’s Motion for Pretrial Hearing Concerning Admission of Other Crimes Evidence The trial in this case began in late January 1995. In September 1992 Bryant had made a great many pretrial motions, including a request for a hearing on the admissibility of any uncharged crimes evidence to be offered under

section 1101, subdivision (b), of the Evidence Code. The trial court held no such hearing. Bryant contends the court’s failure to do so violated his statutory rights under Evidence Code sections 402 and 403, and his constitutional right to due process. The argument fails. To the extent Smith and Wheeler intended to join this claim, it is forfeited because they did not join the motion below, and, in any event, it is equally meritless as to them.

Bryant acknowledges the record does not disclose whether the court ever ruled on the request, either when it was initially made, or shortly before the trial actually began. Bryant’s failure to secure a ruling on his motion forfeits any appellate claim of error. Here, there is simply no ruling for this court to review. Even if Bryant could demonstrate the motion was denied, there was no error. Bryant points to no authority establishing that the court must conduct a pretrial hearing on the admissibility of anticipated evidence, much less do so years before the trial starts.

A trial court is not required in all cases to conduct a “• ‘preliminary inquiry’ ” regarding the sufficiency of proffered other crimes evidence. (People v. Clair (1992) 2 Cal.4th 629, 677-678 [7 Cal.Rptr.2d 564, 828 P.2d 705].) During trial the court ruled on Bryant’s numerous objections to specific evidence. We reject the notion that asserted errors in those rulings somehow give rise to a retroactive violation of Bryant’s rights based on the absence of an earlier pretrial hearing. C.

Denial of Defendants’ Motions to Recuse the Los Angeles County District Attorney’s Office During pretrial proceedings before severance of the capital offenses and defendants, the court granted a motion to recuse the entire Los Angeles County District Attorney’s Office (LADA). The Attorney General sought review and the Court of Appeal reversed for abuse of discretion. Bryant contends that permitting the LADA to prosecute him violated his statutory rights under

section 1424 and his rights under the state and federal Constitutions. We assume Smith and Wheeler have properly joined in this claim. Defendants establish no statutory or constitutional error. 1. Background Recusal was sought based on two separate pretrial events. First, during a pretrial writ proceeding, the lead prosecutor asserted that Bryant Family employees had “infiltrated” the district attorney’s office. The defense had not been provided with discovery on that subject. Second, the prosecution delayed disclosing unredacted interview notes of a deputy district attorney.

The notes expressed the deputy’s belief that a police investigator and the lead prosecutor had questioned a witness in a way that affected her recollections and her testimony at a preliminary hearing. This witness ultimately did not testify at trial. In addressing the infiltration issue, the trial court conducted a series of in camera ex parte meetings with LADA personnel and later took testimony in open court. The court found no infiltration by the Family and denied the motion to recuse. As to the interview notes, the prosecution had provided redacted copies of the notes that omitted the prosecutor’s concerns.

The fact that the notes had been redacted was not apparent from these copies. The prosecution later requested in camera review of the complete notes. It sought a ruling on whether the previously redacted portions constituted privileged work product. The court declined to undertake that review and the prosecution produced the unredacted copies. In light of this delayed disclosure, defendants renewed their recusal motion. The trial court heard testimony from a number of LADA supervisors and line deputies. There was a dispute among the prosecutors whether the witness questioning had been improper.

The court ultimately granted the recusal motion, finding that there had been “an intentional, deliberate holding back of evidence,” and that essentially all the high-level supervisors in the office had been involved. Part of the trial court’s concern was that during its review of the infiltration issue the court had asked the prosecutors whether there was any other information that it should know. No one had mentioned the notes or the internal conflict.

The Attorney General appealed. (See § 1424, subd. (a)(1).) The Court of Appeal concluded that the failure to disclose the complete notes did not support recusal of the entire office. We denied defendants’ petitions for review. The LADA removed from the case the lead prosecutor who had made the infiltration assertion. The prosecutor who wrote the notes about the interview had previously been removed and the witness was not called at trial. 2. Applicable Law

Section 1424 provides, in relevant part, that a motion to recuse a prosecutor “may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.” (§ 1424, subd. (a)(1).) The statute provides a two-part test: (1) whether there is a conflict of interest, and (2) whether the conflict is so severe as to disqualify the district attorney from acting. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711 [76 Cal.Rptr.3d 250, 182 P.3d 579].) Recusal under

section 1424 requires “a showing of a real, not merely apparent, potential for unfair treatment, and further requires that that potential ‘rise to the level of a likelihood of unfairness.’ [Citation.] Although the statute refers to a ‘fair trial,’ we have recognized that many of the prosecutor’s critical discretionary choices are made before or after trial and have hence interpreted

section 1424 as requiring recusal on a showing of a conflict of interest ‘ “so grave as to render it unlikely that defendant will receive fair treatment during all portions of the criminal proceedings.” ’ [Citation.]” (People v.

Vasquez (2006) 39 Cal.4th 47, 56 [45 Cal.Rptr.3d 372, 137 P.3d 199] (Vasquez).) If a defendant seeks to recuse an entire office, the record must demonstrate “that the conduct of any deputy district attorney assigned to the case, or of the office as a whole, would likely be influenced by the personal interest of the district attorney or an employee.” (Id. at p. 57.) As a constitutional matter, we acknowledged in Vasquez that “[n]either this court nor the United States Supreme Court has delineated the limitations due process places on prosecutorial conflicts of interest.” (Vasquez, supra, 39 Cal.4th at p. 60.) Indeed, “[a]s . . . prosecutors [cannot] completely avoid personal influences on their decisions, to constitutionalize the myriad distinctions and judgments involved in identifying those personal connections that require a . . . prosecutor’s recusal might be unwise, if not impossible.

The high court’s approach to judicial conflicts generally leaves that line-drawing process to state disqualification and disciplinary law, with only ‘the most extreme of cases’ being recognized as constitutional violations. [Citation.] [¶] To show a due process violation arising from a prosecutor’s conflicting interest should be more difficult than from a judge’s, for the ‘rigid requirements’ of adjudicative neutrality [citation] do not apply to prosecutors.” (Id. at p. 64, italics added.) In Vasquez, we concluded the defendants had failed to establish a violation of due process when the prosecutors’ conflicts did not arise from “a direct, substantial interest in the outcome or conduct of the case separate from their proper interest in seeing justice done,” and any prosecutorial conflict that existed was not “ ‘so severe as to deprive [defendants] of fundamental fairness in a manner “shocking to the universal sense of justice.” ’ ” (Id. at pp. 64-65.) 3.

Discussion The Attorney General initially contends that review of the recusal issue is partially precluded by the law of the case doctrine. Not so. The Court of Appeal determined that the factual basis for the order was the untimely disclosure of the complete interview notes. Thus, it concluded there was “no basis for recusal in the delayed discovery of the one sentence in the [witness interview] notes which was improperly redacted.” Defendants’ claim here is broader. They urge the LADA should have been recused based on the totality of the evidence before the trial court.

Because the factual basis for the claim here is materially different from that considered by the Court of Appeal, the law of the case doctrine is not applicable. (Boyer, supra, 38 Cal.4th at p. 443; People v. Mattson (1990) 50 Cal.3d 826, 850 [268 Cal.Rptr. 802, 789 P.2d 983].) The Attorney General’s contention that Smith forfeited any appellate claim by initially failing to join in the recusal motion also fails. He joined in the motion resting on the totality of the circumstances. Arguing for reversal, defendants focus primarily on why the past actions of the prosecutors were improper.

That is not the proper inquiry. The prosecutors whose conduct was questioned were removed from the case. The remaining question is whether any Los Angeles deputy district attorney could fairly prosecute. Recusal of a prosecutor under

section 1424 constitutes a statutorily authorized judicial interference with the executive branch’s constitutional role to enforce the law. Accordingly, the decision whether to recuse must be carefully considered. “[Rjecusal of an entire prosecutorial office is a serious step, imposing a substantial burden on the People, and the Legislature and courts may reasonably insist upon a showing that such a step is necessary to assure a fair trial.” (People v. Hamilton (1989) 48 Cal.3d 1142, 1156 [259 Cal.Rptr. 701, 774 P.2d 730] (Hamilton).) Recusal is not a mechanism to punish past prosecutorial misconduct.

Instead, it is employed if necessary to ensure that future proceedings will be fair. “[S]ection 1424 does not exist as a free-form vehicle through which to express judicial condemnation of distasteful, or even improper, prosecutorial actions.” (Hollywood v. Superior Court (2008) 43 Cal.4th 721, 735 [76 Cal.Rptr.3d 264, 182 P.3d 590].) Defendants have failed to demonstrate a likelihood that LADA could not prosecute the case fairly. Nor do they show that, in fact, the ensuing proceedings were unfair. For the most part defendants rely on accusations of overzealous advocacy by prosecutors who were replaced.

Defendants claim those prosecutors made misrepresentations in court documents, tried to taint the jury pool, failed to timely provide discovery, and tampered with a witness. No aspect of these alleged improprieties, however, establishes a conflict of interest that was likely to affect the hundreds of other prosecutors in the office. (See Vasquez, supra, 39 Cal.4th at p. 57, fn. 2; People v.

Gamache (2010) 48 Cal.4th 347, 366 [106 Cal.Rptr.3d 771, 227 P.3d 342] (Gamache).) Even if specific prosecutors had engaged in misconduct, this behavior standing alone would not necessarily evince a likelihood that other prosecutors would exceed the bounds of proper advocacy. “Our cases upholding recusal have generally identified a structural incentive for the prosecutor to elevate some other interest over the interest in impartial justice, should the two diverge.” (People v.

Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 754 [76 Cal.Rptr.3d 276, 182 P.3d 600].) Here, defendants point to nothing in the record establishing that the prosecutors who ultimately tried the case engaged in any improper action due to a conflict of interest.

Defendants also assert that the LADA’s failure to criminally prosecute the suspected office infiltrators was unfairly lax compared to the prosecution of defendants, and that its handling of the witness interview and the prosecutor’s notes similarly amounted to an improper “coverup.” That the office treated accusations of employee improbity differently from charges of a quadruple murder including a child victim is hardly surprising. It certainly does not establish that the LADA suffered from a conflict of interest likely to make defendants’ prosecution unfair.

Even if the events surrounding the witness interview and the prosecutor’s notes could be characterized as a coverup, the LADA did ultimately disclose the matter. Once again, defendants fail to explain how that behavior, remedied by the office’s own actions, establishes a likelihood of future misconduct.

Finally, defendants assert that because various supervisors had become involved in the recusal matters, any prosecutor would have been “under the watchful eye of these personally-involved powers within the office.” They argue that a prosecutor’s objectivity could have been tainted by the impact of the trial on the future of both the trial prosecutors and involved supervisors. As we explained in Vasquez, however, “[district attorneys, as people, inevitably hold individual personal values and allegiances and feel varying emotions relating to their work.

As public officeholders, they may also have political ambitions or apprehensions.

But that a public prosecutor might feel unusually strongly about a particular prosecution or, inversely, might hesitate to commit to a prosecution for personal or political reasons does not inevitably indicate an actual conflict of interest, much less a constitutional bar to prosecution.” (Vasquez, supra, 39 Cal.4th at p. 63.) “Zealous advocacy in pursuit of convictions forms an essential part of the prosecutor’s proper duties and does not show the prosecutor’s participation was improper.” (Id. at p. 65.) Recusal is justified only when the prosecutor has “an interest in the case extraneous to [his or her] official function.” (People ex rel.

Clancy v. Superior Court (1985) 39 Cal.3d 740, 746 [218 Cal.Rptr. 24, 705 P.2d 347].) Defendants fail to establish the existence of such an interest. D. Denial of Bryant’s Motion to Exclude the Investigating Officer Before trial, Bryant sought to “recuse” Detective James Vojtecky from any further investigation in the case and to exclude him from the trial except when testifying, notwithstanding the prosecutor’s authority to designate him as the officer entitled to be present at trial under Evidence Code

section 777, subdivision (c). Bryant asserted that Detective Vojtecky had tampered with a witness, attempted to intimidate a witness during testimony, withheld discovery, and tried to adversely influence Bryant’s jail housing. He also pointed out that the Attorney General, in contesting the LADA recusal motions, had suggested that Detective Vojtecky might instead be removed from the case. Bryant argued that Detective Vojtecky would continue to engage in misconduct and his presence at the prosecution’s table might unfairly bolster the jury’s view of his credibility. The trial court denied the motion.

Assuming there was legal authority to grant it, the court found no indication the defense actually had been or would be prejudiced by the detective’s continued participation in the investigation or his presence at trial. Bryant challenges that ruling. Smith and Wheeler cannot join in this claim because they did not do so below. The trial court did not err. Bryant first contends the Attorney General is “judicially estopped” from arguing that the trial court ruled properly, because-the deputy attorney general opposing recusal had suggested the removal of Vojtecky as an alternative.

In dissuading litigants from taking opposite positions on an issue at different points in a proceeding, the doctrine of judicial estoppel serves to maintain fairness and judicial integrity. (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986 [12 Cal.Rptr.3d 287, 88 P.3d 24].) The fundamental purposes of the doctrine would not be advanced by applying it here. The Attorney General was seeking to prevent recusal of the entire district attorney’s office. The suggestion that recusing the detective would be a less drastic option is not the same as agreeing that such a removal was legally required.

Legitimate and practical advocacy does not undermine the integrity of the judicial system. More importantly, Bryant’s ability to fully litigate his recusal motion has not been negatively affected, nor have the People obtained some other unfair advantage. As to the merits, Bryant relies on

section 1424 and People v. Merritt (1993) 19 Cal.App.4th 1573 [24 Cal.Rptr.2d 177] (Merritt). His argument fails.

Section 1424, subdivision (a)(1) authorizes the filing of a motion “to disqualify a district attorney from performing an authorized duty” that “may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.” As noted, the statute does not authorize the trial court to order recusal as a punishment for past misdeeds. Yet Bryant urges that “recusal” of Vojtecky would have served as an “appropriate sanction” for his alleged misconduct. More fundamentally, Bryant seeks to expand the scope of the statute.

Section 1424 permits a court to disqualify a prosecutor from performing an authorized duty. In Merritt, the defendant filed a motion to dismiss the charges against him based on alleged misconduct by a district attorney investigator for withholding exculpatory material, suggesting that a witness commit perjury, and making sexual advances toward the witness. After the trial court denied the motion to dismiss, the defendant moved to recuse the entire office.

Despite representations regarding the steps prosecutors had taken to exclude the investigator from any aspect of the case, the trial court granted the motion. (Merritt, supra, 19 Cal.App.4th at pp. 1577-1578.) On appeal the recusal of the entire office was held unjustified.

The order was modified “to apply only to preclude participation by [the investigator] in any further investigation or decisionmaking with respect to [the defendant’s] case, and to any other investigators or deputy district attorneys who may be shown to have participated in or approved the activities of [the investigator].” (Id. at pp. 1581-1582.) In essence the Merritt court barred the district attorney from permitting the particular investigator’s continued involvement, because any such participation would have resulted in the likelihood of an unfair trial.

In explaining the basis of the Merritt ruling, we do not necessarily endorse the modified recusal order as valid under the statute. It is arguable the statute was not intended to apply to nonattomey employees, who do not exercise discretionary authority over the actual prosecution of cases. We need not decide here whether the statute grants courts a role in overseeing the inner workings of a prosecutor’s office beyond ensuring that a properly impartial prosecutor handles the case. Detective Vojtecky was an employee of the Los Angeles Police Department.

His investigation of the crimes was not pursuant to any delegation of authority from the district attorney. Bryant does not cite, nor are we aware of, any other authority permitting a judge to direct that a particular police officer be barred from participating in the investigation of a specific crime. Bryant’s contention that the trial court should have overridden the prosecutor’s decision to designate Detective Vojtecky as the investigating officer, and instead excluded him from the trial, fails. By statute, Detective Vojtecky was entitled to be present at the trial. (People v.

Gonzalez (2006) 38 Cal.4th 932, 950-951 [44 Cal.Rptr.3d 237, 135 P.3d 649] (Gonzalez).) Bryant’s allegation of potential unfairness arising from his presence at counsel table is too speculative to establish error. (See id. at p. 951.) The defense remained free to bring to the court’s attention any alleged misconduct that did materialize, and to seek appropriate relief. E. Denial of Defendants ’ Motions for Severance At numerous points before and during the trial, defendants moved to sever their trials from each other and, in particular, from codefendant Settle, who represented himself.

The court, having already severed the noncapital defendants and charges, consistently refused to grant the requests for separate murder trials. Defendants contend the court abused its discretion and their joint trial was grossly unfair. Neither an abuse of discretion nor an unfair trial occurred. “Section 1098 provides in pertinent part: ‘When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.’ Our Legislature has thus ‘expressed a preference for joint trials.’ [Citation.]”(People v.

Avila (2006) 38 Cal.4th 491, 574 [43 Cal.Rptr.3d 1, 133 P.3d 1076] (Avila), italics added.) As the United States Supreme Court explained regarding a similar federal statutory preference, “[j]oint trials ‘play a vital role in the criminal justice system.’ [Citation.] They promote efficiency and ‘serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.’ [Citation.]” (Zafiro v.

United States (1993) 506 U.S. 534, 537 [122 L.Ed.2d 317, 113 S.Ct. 933] (Zafiro).) “[T]he court may, in its discretion, order separate trials ‘in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.’ [Citations.] [¶] We review a trial court’s denial of a severance motion for abuse of discretion based on the facts as they appeared at the time the court ruled on the motion. [Citation.] If the court’s joinder ruling was proper at the time it was made, a reviewing court may reverse a judgment only on a showing that joinder ‘ “resulted in ‘gross unfairness’ amounting to a denial of due process.” ’ ” (Avila, supra, 38 Cal.4th at pp. 574-575.) In the general sense, this was a classic case for a joint trial.

Defendants “were charged with the same crimes arising from the same events.” (Letner, supra, 50 Cal.4th at p. 150.) Defendants’ arguments that certain aspects of this case overrode the preference for a joint trial are unpersuasive. Their arguments overlook three fundamental concepts relating to joint trials. First, there is a difference between when a trial court may order a severance and when it must do so. Second, a joint trial is not equivalent to simultaneous separate trials of the defendants.

Third, severance is not required simply because a joint trial may reduce the likelihood of one or more of the defendants obtaining an acquittal. Defendants also cite as grounds for severance various asserted errors they have raised as independent claims for relief. As explained below those claims also lack merit. 1. Conflicting Defenses A majority of Bryant’s arguments revolve around his assertion that the codefendants, particularly Settle, presented evidence that conflicted with Bryant’s own defense or further incriminated him.

Therefore, the codefendants supposedly acted as “second prosecutors,” bolstering the prosecution’s case against him. Smith and Wheeler raise similar contentions. Simply because the prosecution’s case will be stronger if defendants are tried together, or that one defense undermines another, does not render a joint trial unfair. (People v. Carasi (2008) 44 Cal.4th 1263, 1297-1298 [82 Cal.Rptr.3d 265, 190 P.3d 616].) Indeed, important concerns of public policy are served if a single jury is given a full and fair overview of the defendants’ joint conduct and the assertions they make to defend against ensuing charges.

Avila quoted People v.

Massie (1967) 66 Cal.2d 899 [59 Cal.Rptr. 733, 428 P.2d 869] (Massie), listing several circumstances in which “the court may, in its discretion, order separate trials.” (Avila, supra, 38 Cal.4th at p. 574, italics added.) Among these is the presence of “ ‘conflicting defenses.’ ” (Ibid.) As we have made clear in subsequent decisions, however, the possible or even actual presentation of antagonistic defenses by codefendants does not necessarily require severance. “ ‘If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials “would appear to be mandatory in almost every case.” ’ [Citation.] Accordingly, we have concluded that a trial court, in denying severance, abuses its discretion only when the conflict between the defendants alone will demonstrate to the jury that they are guilty.

If, instead, ‘there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance.’ [Citations.]” (Letner, supra, 50 Cal.4th at p. 150; see People v. Hardy (1992) 2 Cal.4th 86, 168 [5 Cal.Rptr.2d 796, 825 P.2d 781] (Hardy).) Nor does the federal Constitution compel severance when codefendants present conflicting defenses. (See Runningeagle v.

Ryan (9th Cir. 2012) 686 F.3d 758, 776 [“we have explicitly concluded that Zafiro and [United States v.] Lane [(1986) 474 U.S. 438 [88 L.Ed.2d 814, 106 S.Ct. 725]] do not ‘establish a constitutional standard binding on the states and requiring severance in cases where defendants present mutually antagonistic defenses’ ”].) Moreover, when there is sufficient independent evidence of the defendants’ guilt, the actual presentation of conflicting defenses at trial does not reduce the prosecution’s burden or otherwise result in gross unfairness. (Letner, supra, 50 Cal.4th at p. 153.) Here, sufficient independent evidence of each defendant’s guilt was manifest.

If credited by the jury, James Williams’s testimony alone was sufficient for conviction. 2. Evidence Admitted “Against” a Codefendant Defendants, particularly Smith and Wheeler, contend severance was required because evidence presented “against” one defendant negatively affected another defendant’s case. This claim implicates the second and third considerations mentioned above. A joint trial is not equivalent to simultaneous separate trials, and the possibility that one defendant’s chance of acquittal is reduced does not make a joint trial unfair.

Smith and Wheeler argue that, because they were jointly tried with Bryant, a plethora of evidence about the Bryant Family drug business was admitted “against” Bryant. Had they been tried separately a lesser amount of that evidence might have been admitted. Yet, as the high court stated in similar circumstances, the primary error in such a claim is each defendant’s “characterization of the issue presented here as affecting his trial, as opposed to the actual trial in this case — the joint trial of [all of them].” (Buchanan v.

Kentucky (1987) 483 U.S. 402, 418 [97 L.Ed.2d 336, 107 S.Ct. 2906] (Buchanan).) In other words, the issue is not whether a theoretical separate trial of one defendant would have been different, but whether the joint trial that actually occurred was in some manner prejudicially unfair or unreliable. Naturally, anyone facing prosecution would rather be tried on a single charge, rather than multiple counts. Likewise, an accused would rather not be associated in the jury’s mind with other potentially unsavory characters.

Jurors are expected to follow instructions in limiting evidence to its proper function, and the efficiency of trying connected crimes against different defendants “is a valid governmental interest.” (Spencer v. Texas (1967) 385 U.S. 554, 562 [17 L.Ed.2d 606, 87 S.Ct. 648].) Moreover, a joint trial may actually enhance fairness and reliability: “In joint trials, the jury obtains a more complete view of all the acts underlying the charges than would be possible in separate trials.

From such a perspective, it may be able to arrive more reliably at its conclusions regarding the guilt or innocence of a particular defendant and to assign fairly the respective responsibilities of each . . . .” (Buchanan, supra, 483 U.S. at p. 418.) The high court has also observed: “While ‘[a]n important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence,’ [citation] (emphasis added), a fair trial does not include the right to exclude relevant and competent evidence.” (Zafiro, supra, 506 U.S. at p. 540.) Further, the prosecution’s theory regarding Smith’s and Wheeler’s involvement rested on their roles as active Family members who took direction from Bryant.

As a result, much evidence about which they complain would have been relevant even at a separate trial. The argument that some evidence admitted at a joint trial might not have been admitted at a separate trial misses the mark. Similarly unavailing are defendants’ assertions that the joint trial made it more difficult for them to obtain acquittals. Defendants are constitutionally entitled to a fair trial, not one that gives them the best possible chance for an acquittal. An essential goal of a trial is that the fact finder determine what happened through a fundamentally fair and reliable process.

As we stated in the analogous circumstance of joinder of charges, “the benefits of joinder are not outweighed — and severance is not required — merely because properly joined charges might make it more difficult for a defendant to avoid conviction compared with his or her chances were the charges to be separately tried.” (People v.

Soper (2009) 45 Cal.4th 759, 781 [89 Cal.Rptr.3d 188, 200 P.3d 816] (Soper).) “[Defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials.” (Zafiro, supra, 506 U.S. at p. 540.) Similar considerations apply to the evidence regarding the attacks on Keith Curry, the husband of Bryant’s ex-wife. Bryant’s comparable jealousy toward Andre Armstrong would establish a motive for directing his minions Smith and Wheeler to kill him.

If it could be proven, as it was here, that Smith worked for Bryant and carried out his illegal directives, evidence showing Bryant’s state of mind was relevant to establish Smith’s guilt. The circumstance that Bryant’s jealousy was partially established through his statements as

[…]