People v. Avila

Opinion

BAXTER, J.

During the late night and early morning hours of July 31 and August 1, 1991, two young women, Dorothy Medina and Arlene Sanchez, attended a gathering in rural Fresno, where Medina was brutally gang raped. She and Sanchez were then driven to a canal bank and killed.

In 1994, a Fresno County jury convicted defendant Johnny Avila, Jr., codefendant Richard Avila, who is also defendant’s cousin, and codefendant Jeffrey Spradlin, of two counts of first degree murder. (Pen. Code, §§ 187, 189.)

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It acquitted defendant and Richard Avila of one count of rape while acting in concert but convicted Spradlin of that charge. (§§ 261, subd. (a)(2), 264.1.) The jury further found that defendant and Spradlin personally used a firearm (§ 12022.5, subd. (a)), and that Richard Avila was armed with a firearm (§ 12022, subd. (a)(1)). For defendant and both codefendants, the jury further found true multiple-murder (§ 190.2, subd. (a)(3)), rape-murder (§ 190.2, subd. (a)(17)), and witness-killing (§ 190.2, subd. (a)(10)) special-circumstance allegations as to each victim.

For defendant, the trial court subsequently struck the rape-murder special circumstance as to both murder counts and the multiple-murder special circumstance as to the Sanchez murder count.

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The penalty phase trials of the

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three individuals were severed from each other, and defendant’s trial commenced first. The jury sentenced defendant to death.

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Defendant’s appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. FACTS

A.

Guilt Phase Evidence

1.

Prosecution’s Case-in-chief

a.

Background

In July and August 1991, Richard Avila and his wife Tricina lived at 1604 North Hayes (the North Hayes property) in Fresno. There were three trailers on the property: Tricina’s mother Rachael Diaz, 15-year-old brother Zeek, and sister Veronica lived in the main trailer; Richard and Tricina lived in a smaller Wilderness trailer; and the smallest trailer was abandoned.

Late at night on July 31, or in the early morning hours of August 1, 1991, Dorothy Medina picked up Arlene Sanchez to attend a party. Corinna Sanchez, who lived with her sister Arlene and briefly spoke to Medina at the door, saw Michael “Blanco” Rojas get out of the passenger side of a 1963 or 1964 dark-colored Chevrolet with an orange “76” ball on the antenna. Corinna never saw her sister alive again.

b.

Discovery of the Bodies and Investigation

Around 6:00 a.m. on August 1, 1991, a ranch foreman with Quist Farms saw two cars drive past him at the intersection of Cornelia and Church Streets in Fresno. One was a fairly new Pontiac Bonneville, which was wet and had all its windows down. The other was an old light-colored Datsun or Toyota.

Thirty minutes later, an irrigation worker discovered Medina’s body on the south bank of the Houghton Canal (bounded by Chateau Fresno, Grantland Avenue, Belmont Avenue, and Highway 180), which borders a vineyard, in rural Fresno. She was on her back with her arms bent near her head and her legs extended outward. Her blouse was pulled down around her waist, and her bra was pulled up over her breasts. Otherwise she wore only socks and shoes. Nearby, authorities recovered a pair of pink underpants belonging to Medina and a .25-caliber shell casing.

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Medina, whose face and upper body were splattered with blood, died of two gunshot wounds to her head. One was a small contact wound on her right temple made by a .25-caliber copper-jacketed bullet. The other was a large contact wound made by a bullet that entered her forehead and exited the back of her skull. Based on the crime scene evidence, including blood splatter evidence, and the position of Medina’s body, authorities concluded that when she was shot Medina was lying in the position in which she was found, and that she probably was shot in the temple first and in the forehead second. Medina had abrasions and lacerations in her genital region that most likely were inflicted shortly before her death, and a vaginal swab indicated the presence of semen. She also had multiple bruises on her neck, forearms, and inner thigh. She had a substantial level of phencyclidine (PCP) and a .07 percent blood-alcohol level in her system, as well as some cocaine metabolite.

Ten feet from Medina, between two rows of grapevines, detectives discovered Sanchez’s fully-clothed body. Sanchez similarly died of gunshot wounds to the head. One was a contact wound made by a nine-millimeter copper-jacketed bullet that entered her forehead and lodged in the base of her neck. The other was a smaller wound made by a .25-caliber copper-jacketed bullet that entered her left temple and lodged in her brain. Nearby, police found a .25-caliber shell casing and a nine-millimeter shell casing. The .25-caliber slug recovered from Medina’s head and two pieces of the .25-caliber slug recovered from Sanchez’s head were similar, but could not be conclusively shown to have been fired from the same gun.

There was a large amount of blood on Sanchez’s body, indicating that her heart was still functioning when both wounds were inflicted. A vaginal swab was taken but did not detect any semen. Sanchez had a .14 percent blood-alcohol level and substantial levels of PCP and cocaine metabolite in her system. Evidence at the scene indicated Sanchez attempted to flee up the embankment before she was shot and killed. Two types of shoe prints in addition to the victims’ shoe prints were found at the scene.

About the time Medina’s body was discovered, a Pontiac Bonneville was engulfed in flames at the canal bank, on the north side of Annadale Avenue, near Blythe and Cornelia, in Fresno. Authorities concluded the fire was deliberately set. In the car were three nine-millimeter shell casings—two that had been expended and one that had not been expended but had detonated in the fire—and one expended .32-caliber shell casing.

Detective Melinda Ybarra of the Fresno County Sheriff’s Department investigated the murders of Medina and Sanchez. During the course of her investigation, she became aware of a concurrent investigation of an incident

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involving a minor, Spring J., that allegedly occurred at the North Hayes property mere hours before the murders.

On August 2, 1991, Detective Ybarra and sheriffs deputies executed a search warrant at the North Hayes property. On the property was a purple 1964 Chevrolet Impala, which belonged to Richard and had Sanchez’s fingerprints on it. Also on the property was a blue 1978 Chevrolet belonging to David Gomez. Sheriffs deputies also found numerous firearms and various calibers of ammunition. Although .25-caliber ammunition was found on the property, no weapon capable of firing such ammunition was found. One unexpended .25-caliber bullet found on the property and two expended .25-caliber shell casings found at the murder scene had been cycled through the same gun. Two of the expended nine-millimeter shell casings recovered from the burnt car found on Annadale Avenue had been cycled through an Uzi that was seized from the property. No firearms used in the murders were recovered.

On August 30, 1991, sheriffs deputies executed a search warrant at a home owned by Richard Avila’s mother-in-law, located at 355 North Fruit Street in Fresno, and seized several identical pairs of Nike shoes. These items were compared to photographs of footprints found at the crime scene and found to have similar class characteristics as to shoe length, width, sole design, and wear pattern.

c.

Events Surrounding the Double Murder

The testimony of Michael Rojas, Ray Juarez, and Frank Rodriguez formed the heart of the prosecution’s case-in-chief. They testified consistently with each other regarding the identity of the key individuals present and certain events occurring that night. Thus, Rojas, Juarez and Rodriguez testified that, on the night of July 31 to August 1, about 30 people gathered on the North Hayes property in the expectation of a drive-by shooting. Many firearms were on the property, and some individuals were armed. People were drinking beer and smoking marijuana and PCP. Two young women, Spring J. and Kim F., were brought to the gathering, where they remained for a couple of hours and then left. At the end of their stay or shortly thereafter, two different young women, Dorothy Medina and Arlene Sanchez, were brought to the property. After several hours, defendant, Spradlin, and Rodriguez drove them away in a late-model gray Pontiac Bonneville, returning without them.

Rojas, Juarez, and Rodriguez testified inconsistently, at times wildly so, regarding their individual roles and their observations during the night in question. We summarize the relevant portions of their testimony below because the bulk of defendant’s claims assert errors stemming from their testimony.

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(1)

Michael Rojas

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Michael Rojas went to the North Hayes property on July 31, 1991, to back up Richard in case a fight erupted. He arrived about midnight and did not leave until dawn. That night, Rojas drank beer and smoked marijuana cigarettes.

Zeek Diaz and some other youngsters brought Spring J. and Kim F. to the property. Spring smoked PCP, commonly known as “KJ,” with a group of men that included Richard. The group then went inside the main trailer. During this time, Rojas was outside near some trees where others were hanging out. Rojas did not see Spring go into the Wilderness trailer. At some point, Kim left the property with Richard, and Spring left with Mike De Anda and Juarez.

When Spring and Kim were still at the North Hayes property, defendant said he was leaving to pick up girls to “party.” He and David Gomez left in Richard’s car and returned with Medina and Sanchez. A group of six to eight men, including Juarez and Robert Chavez, approached the car carrying the two girls. Medina began smoking KJ.

Forty-five minutes after Medina and Sanchez arrived, Juarez was talking to Sanchez in the backyard when defendant approached and accused him of trying to act as if Sanchez were his “old lady.” The two argued. Defendant had a nine-millimeter gun in his hand, but Rojas told him not to use a gun on any of the homeboys.

Rojas later saw a group of men take Medina to the abandoned trailer near the fence. Richard and De Anda also took her to the Wilderness trailer. At some point, Rojas heard muffled crying and noises coming from the Wilderness trailer. There were many men standing in front of the trailer door and going in and out. Rojas opened the door to the trailer and saw Medina lying on the bed naked. She appeared unconscious, and six or eight men stood over her with their pants down, grabbing at her. Richard, who was wearing a bulletproof vest but no pants, pulled the door closed. Rojas walked back to the tree.

Later, Rojas saw some men, including defendant, Richard, Spradlin, and De Anda, help Medina out of the trailer and toward a late-model gray car. Medina, still naked, was “loaded” and crying. Rojas heard the men tell her

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they were going to give her a ride home and saw them put her in the backseat of the car. Defendant placed Medina’s head facedown on the seat cushion. Someone also placed Sanchez in the back seat with her head facedown on the cushion. Gomez wanted to take the girls home, but defendant told Richard that he did not want them to leave because he was scared they would “snitch” on them and identify him. Defendant told Richard he was “going to handle his business,” meaning he was going to kill the girls. Defendant had a .25-caliber gun in his hand.

Everyone believed Rodriguez would “snitch” on them, and defendant told Rodriguez to get in the car with the girls. Rodriguez did not want to go, but people pushed him into the car. Defendant also got into the car, and Spradlin drove away. Chavez followed in his blue car.

About 40 minutes later, the four men returned together in Chavez’s car without the girls. Defendant immediately started yelling at Richard. Defendant was angry because the gun he was given jammed when he tried to shoot one of the women in the head. He also complained that when he shot the women, blood splashed on his clothes. He told Richard, “I took care of your fucking business,” and that Richard better take care of “stuff’ if anyone said anything. Defendant also yelled at Rodriguez because he tried to run when defendant shot one of the women. Richard told defendant not to worry and to “be cool,” because they would “take care of it.” Richard then told the group that if anyone said anything, then their heads would be blown off. Defendant was also angry because he got blood on his clothes and on his new shoes. Richard arranged for defendant to get a new set of clothing and shoes. De Anda took the old clothes and said he was going to bum them in a barrel in his backyard. Rojas left at daylight.

When detectives initially interviewed Rojas, he denied ever being at the North Hayes property, and denied any and all involvement in Spring J.’s rape and the murders. Rojas was eventually arrested for the Spring J. incident and thereafter admitted to being present at the North Hayes property.

Rojas had prior convictions for assault with a deadly weapon (§ 245) and armed robbery (§ 211). He was on parole when this incident occurred.

(2)

Ray Juarez

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Ray Juarez first went to the North Hayes property about 9:00 p.m. on July 31 to help his friend Richard. He left and returned several times that night.

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During one trip to a nearby store with Gomez, Spring, and Kim in Richard’s car, a car approached from behind with bright lights, and Juarez shot his .25-caliber gun in the air several times in warning.

Back at the North Hayes property, Juarez smoked KJ in the backyard with Spring and Zeek. Later, he saw Spring in the main trailer, and they started “making out.”

At some point, Juarez saw Rojas in the Wilderness trailer with Spring. Rojas had a belt around Spring’s neck and a gun pointed at her head, and told her to “shut up or I’ll kill you.” Spring tried to get up, but Rojas pushed her back down. Juarez had consensual sex with Spring; he did not rape her. He and De Anda later took Spring home. Earn left with Richard.

During the night, Juarez, Rojas, and two other men got in a blue or gray car that Juarez and Spradlin had stolen earlier and followed a Blazer that drove by the property. When the occupants of the Blazer started shooting at them, Rojas shot back at them with a .357-caliber gun and Juarez shot back with an AK-47 or a nine-millimeter gun. They then drove back to the property.

After Spring and Kim left, Medina and Sanchez arrived with Gomez and defendant in Richard’s car. Juarez walked up to the car, looked inside, and recognized Medina, his ex-girlfriend, but not Sanchez.

Defendant gave Medina some KJ. Juarez talked to Medina and smoked KJ. Then defendant started screaming at him for talking to Medina. Defendant pulled out a nine-millimeter Uzi, but Rojas, who had been talking to Sanchez, yanked the gun away. Richard also came to see what was going on and told Juarez and defendant to stop arguing.

A short time later, Juarez joined Rojas, Medina, and Sanchez near Richard’s car. Medina and Sanchez were “loaded” and leaning against the car. By this point, Juarez had drunk about six cups of beer and was a “little bit drunk.” He also had smoked marijuana all day but was feeling fine. Juarez told Medina not to smoke too much, and Medina told him to leave her alone and that she could smoke as much as she wanted.

Juarez went into the main trailer for about 20 minutes and then sat on the porch drinking beer and talking to Zeek. He went to the Wilderness trailer to get some more marijuana and saw “a whole bunch of guys.” Juarez smoked marijuana and then moved closer to the group to see what was going on.

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Medina was lying on the bed naked and Rodriguez was having sex with her.

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Rojas was lying next to her with a belt around her neck and a .357-caliber gun pointed at her head. Every time Medina cried, Rojas would tighten the belt around her neck and tell her to shut up. Medina was crying and asking them to stop. She grabbed Juarez and asked him repeatedly to help her. Juarez just told her to relax and “kick back.” He also told her to give him a “blow job.” She complied, but Juarez threw her back on the bed because he did not feel right about it. Spradlin, Chavez, and Robert Ballesteros also had sex with Medina. Richard then came into the trailer and said, “I want you to take the girls off my property.”

Spradlin and Chavez, the last ones to leave the Wilderness trailer, placed a blanket around Medina and carried her to the abandoned trailer. Medina screamed and broke a window in the abandoned trailer with her hand. Juarez then heard a “pop,” turned around, and saw Sanchez on the ground with Rojas standing over her “cussing her out.” He did not actually see Rojas hit Sanchez.

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Juarez followed Spradlin and Chavez into the abandoned trailer, where Spradlin had sex with Medina. Medina was trying to break loose, but Chavez was holding her down, and someone continued hitting her. When Juarez told the men to stop, they told him to get out. He left the trailer and joined defendant, Richard, Rojas, and Rodriguez at the front of the property. Sanchez, who was standing by Richard’s car, appeared to be crying.

Juarez implored Richard to let him take the women home, but Rojas said no, reasoning: “If we let ’em go, they’re gonna tell on us, what we did to them. And they gonna [szc] raid the house.” Richard replied: “I don’t care what you do, just get ’em off my property. I don’t want ’em on my property.” Around this time, Spradlin and Chavez came out of the abandoned trailer, followed by Medina, who ran toward Sanchez, holding a blanket over herself. Rojas grabbed Medina, pushed her facedown on a chair under a tree, placed a belt around her neck and a gun to her head, and asked her, “Do you know who we are?” She cried, “No, no,” but Rojas said, “You’re lying.” Rojas then let Medina go, and she ran to Sanchez. Rojas said: “We can’t let these girls go home. They know too much. We got to take ’em out.” Defendant agreed. Juarez again implored Richard to let him take the women home, and Richard said he did not care what they did as long as the women were off his property.

Spradlin brought around the car they had stolen earlier. Defendant and Rojas grabbed Medina and placed her in the backseat of the car with her face on the seat cushion. Defendant, who had a nine-millimeter Uzi in his hand,

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also placed Sanchez in the car.

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Defendant also had a .25-caliber gun with two or three bullets in it that Juarez had given him earlier.

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Spradlin had a .380-caliber gun in the waistband of his pants. Rojas pressed Rodriguez, who had a nine-millimeter Uzi, to get in die car. Defendant got in the front passenger seat, and Spradlin drove away.

Twenty to twenty-five minutes later, the men returned without the women. Rojas asked what happened, and defendant said he shot the women in the back of their heads twice. Someone asked where they shot the women, and defendant said he shot one woman on the canal bank and the other in the grapevines. Defendant commented, “You should have seen how [the women’s heads] cracked.” Holding a nine-millimeter Uzi in his hand, defendant told Richard: “Next time you give me a gun, make sure it works. This one got jammed on me.” He told Richard that one of the women tried to run. Defendant also complained to Richard that Rodriguez had dropped the gun and tried to run. Richard asked if they threw the women in the canal. When defendant said no, Richard was angry and said: “It would have been harder for them to find. It would have been a couple more days.” Defendant offered to go back and throw the bodies into the canal, but Richard said they should “[j]ust let it be.” Richard told defendant to change his clothes because they had bloodstains on them. Defendant gave Juarez back the .25-caliber gun, which contained no bullets.

Defendant handed the nine-millimeter gun to Richard, who gave it to Juarez. Juarez cleaned the gun, which had blood on it, and placed it in a bag along with a pair of shorts belonging to Medina. He then gave the bag to De Anda, who said he would bum it at his house. But De Anda returned with the gun later in the day, and Richard told Juarez to bury it elsewhere. Juarez did so near Lake Avocado.

Richard also ordered the stolen car that had carried the women away be washed, taken somewhere far away, and burned. Juarez, Spradlin, Chavez, and Rodriguez washed the car. Spradlin drove off in it, and Chavez followed in his small blue Toyota. Spradlin and Chavez returned together. Spradlin did not say where they burned the car.

Juarez went to the Wilderness trailer, where he heard on a police scanner that two female bodies were found on a canal bank. Juarez then fell asleep

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and awoke at noon. When he woke up, Rojas pulled out a black leather pouch containing some jewelry. Juarez asked Rojas where he got it, and Rojas said he got it “off one of the girls.” Rojas offered a piece of jewelry to Juarez, but Juarez declined.

When Juarez was arrested for the rape of Spring J., he denied any involvement in Spring’s rape and in the murders, and further denied that Rojas was involved. But during an interview sometime after his arrest, Juarez acknowledged having had sex with Spring.

Juarez testified that he had spoken to Rojas on a couple of occasions while he was in jail following this incident. The two concocted a plan to blame defendant, Richard, and Spradlin for the murders. Rojas told Juarez that he had heard Richard was looking out for himself and did not care about anyone else. Rojas said he was going to make a deal with the detectives and encouraged Juarez to do the same. Rojas assured Juarez that if they stuck together they would both get out of jail. Juarez initially went along with Rojas’s plan, but backed out when he found out that Rojas got out of jail while he remained. Sometime in 1992, Juarez told detectives that it was Rojas’s decision to kill the women and that Rojas had ordered Rodriguez to get in the car.

(3)

Frank

Rodriguez

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Shortly after 10:00 p.m. on July 31, 1991, Frank Rodriguez ran into Chavez, Zeek, Spring, Kim, and Juarez. There was a discussion about a possible drive-by shooting at the North Hayes property, and everyone drove there.

On the North Hayes property, Rodriguez drank beer throughout the night and spent most of the evening in the main trailer and in the Wilderness trailer.

Spring went into the main trailer and remained there for some time. Later, Rodriguez saw her go into the Wilderness trailer with Zeek. When Rodriguez walked into that trailer, Rojas asked him for help in holding Spring down. Rodriguez refused and left when Rojas told him to get out.

A couple of hours later, Spring walked out of the Wilderness trailer and left with De Anda. Thereafter, Kim left with Richard. Before Spring and Kim left, two different women arrived on the property with Gomez and defendant.

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Rodriguez saw one of the women coming around the abandoned trailer with defendant, Richard, Spradlin, and Robert Chavez. The group walked toward a 1990 or 1991 gray Pontiac Bonneville. Chavez put one of the women in the backseat. The woman was on her knees on the floor of the car, with her hands on the seat and her head down. She was crying and repeatedly said, “Help me.” The other woman was in the front passenger seat, also crying. Rodriguez did not see who put the woman in the front seat.

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Defendant said, “We got to get rid of these bitches.” Richard said, “Take care of ’em,” and “Got to take care of business. You got to do what you got to do.” Defendant, Richard, and Spradlin told Rodriguez to get in the car, and Rodriguez complied because he was fearful of defendant. Rodriguez was unarmed, and he did not intend to assist in murdering the women. Defendant also got in the car, and Spradlin drove them to the canal bank.

At the canal bank, Spradlin took the woman sitting in the backseat and led her away from the car. The woman was on her knees, and Spradlin was holding her by the back of her neck. Rodriguez turned around and heard a pop. When he turned back, the woman was lying on the ground. Defendant led the other woman toward the grapevines. Rodriguez heard defendant say she was trying to get away and heard him yell for Spradlin’s help. Rodriguez saw the woman attempting to crawl away from defendant. Spradlin then walked down the canal bank toward the grapevines. Rodriguez heard three gunshots, though he did not actually see defendant or Spradlin with a gun. Rodriguez next remembered getting back into the car and defendant yelling at him.

When the men returned to the North Hayes property, defendant continued to yell, telling everyone present that Rodriguez was a “rookie” who should not have gone, and that defendant should have taken him out, too. Rodriguez defended himself, stating that he had not wanted to go in the first place. Richard told Rodriguez to be quiet or he would be next.

When Rodriguez first spoke to detectives after his arrest on September 6, 1991, he told them he had been out of town the night of the murders and did not know who was responsible for them. Rodriguez was placed in a jail cell with Rojas for about five days, during which time Rojas suggested several times to Rodriguez that it would be better if Rodriguez turned state’s evidence.

Rodriguez testified he suffered alcoholic blackouts in the past. He could not remember portions of the night of July 31 and August 1 because he had been drinking excessively and blacked out.

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d.

Other Evidence

Detectives arrested defendant and interviewed him. Defendant initially denied knowing anyone who lived on North Hayes and said that, although he had a cousin named Richard Avila, it had been 10 to 15 years since they had seen each other. He also denied going to a party on North Hayes or taking any women to a party. When shown photos of Medina and Sanchez, he said he had seen Sanchez around town. Midway through the interview, defendant acknowledged he had been at a party but claimed he did not know what happened because he had left.

Defendant eventually told detectives he had met Medina several days before July 31. On July 31, he and Gomez picked up Medina and Sanchez in Richard’s 1964 Chevrolet Impala and took them to a party on the North Hayes property, where about eight people were present.

Defendant told detectives that he drank a six-pack of beer at the party and had a “good buzz.” He first denied there was any KJ on the property but later acknowledged that the women were smoking it. Defendant also said Chavez was going in and out of the Wilderness trailer, and there were a couple of men inside it. He said there were a few guns inside the trailer but denied seeing any handguns on the property.

When detectives intentionally misrepresented to defendant that they had abundant evidence against him, he told them they would probably find his saliva on Sanchez because he kissed her. Defendant admitted having touched the radio inside the car that had been burned. He denied having sex with the women, denied seeing either one raped, and denied shooting them.

Portions of a prior statement made by Richard were read to the jury and admitted at trial against Richard only.

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2.

Jeffrey Spradlin’s Defense Case

Michael De Anda was married to Spradlin’s sister. On July 31, 1991, De Anda lived with his mother on Ashland and Vineland. Two weeks before that, he lived in a home owned by Richard’s mother-in-law on North Fruit Street.

De Anda went to the North Hayes property about 6:00 p.m. on July 31, 1991. He was armed with a .380-caliber gun.

About midnight, De Anda went into the Wilderness trailer and saw Spring crying on the bed, with her dress bunched around her midsection. Rojas was

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holding her down with one hand and holding a large-caliber pistol in her mouth with the other. De Anda told Rojas this was not right, and the two argued. De Anda then told Spring to get out of the trailer.

De Anda guided Spring to the front passenger seat of his car. Juarez then approached, asked to come along, and then sat in the front seat with Spring. On the way to Spring’s house, Juarez asked Spring if he could call her the next day, and she said no. To no one in particular, Spring said that night she had stripped for money and willingly engaged in group sex.

De Anda returned to the North Hayes property and joined some people who were standing beside a tree, drinking beer. He heard an argument and moved toward the commotion. Rojas, who had a gun in his waistband, told Rodriguez to “kick back” and not “worry about it.” Several people gathered around, including defendant, and Richard told Rodriguez and Juarez to stop arguing.

About dawn on August 1, 1991, De Anda gave Juarez a ride home. In the car, Juarez offered to trade a gold chain with a medallion for some marijuana.

De Anda did not see any girls other than Spring on the North Hayes property.

De Anda was eventually arrested. At trial, De Anda admitted that he did not immediately tell detectives the truth, and that he did not mention Rojas in any of his police interviews until a couple of weeks before the multidefendant rape trial involving Spring.

De Anda testified he was currently in custody and had been convicted of five felonies, including auto theft, receiving stolen property, and armed robbery.

3.

Richard Avila’s Defense Case

Richard Avila denied any involvement in Medina’s rape or the murders, and presented evidence of Rojas’s involvement in the offenses.

Robert Ballesteros

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testified he was 15 years old when he went to the North Hayes property on July 31, 1991. Ballesteros saw guns on the property and people armed with guns. He spent most of the night in the main trailer playing Nintendo and listening to the radio. During that time, he saw four

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women. He saw Spring sitting in a car and Kim leaving with Richard on his motorcycle. Rojas, whom Ballesteros met that night, came into the main trailer and told Ballesteros he had something to show him. Grabbing Ballesteros from behind, Rojas carried him outside and into the Wilderness trailer, where Rojas told the men inside to “get off and let the little guy get his.” Ballesteros saw a girl (not Spring J.) lying down, moaning in pleasure, and a man on top of her get up. Rojas pulled Ballesteros’s pants down and pushed him on top of the girl. Ballesteros did not have sex with the girl because he knew it was wrong and because he did not have an erection. Everyone around him was making fun of him, and he felt foolish. He ran outside and into the main trailer. He went home shortly thereafter.

Michael Ramirez testified that he went to the North Hayes property around 5:00 or 6:00 p.m. on July 31, 1991, because Richard called him about a threat of a drive-by shooting. Ramirez, who was armed with a .380-caliber automatic handgun, saw a lot of other firearms on the property. He spent most of the evening in the main trailer with Zeek, Kim, and Ballesteros.

Ramirez testified he had sex with Spring in the Wilderness trailer.

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As Spring was getting up and Ramirez was getting ready to leave, Rojas and Juarez came in. Rojas pushed Spring down and placed a gun against her temple. Holding her by the neck, he said, “You’re going to suck my home boy’s dick.” Ramirez left the trailer and did not know when Spring eventually left the property. He saw Kim leave with Richard.

At some point, Ramirez saw Medina and Sanchez arrive in a purple 1964 Chevrolet with defendant and Gomez. Rojas, Juarez, and a few others approached the women. Later, Ramirez saw Rojas half-carry Medina, who appeared to be intoxicated, into the Wilderness trailer, followed by Juarez. Ramirez went to the porch of the main trailer and drank beer.

Ramirez heard Medina screaming, “Stop, please,” and “Please, someone call the police. I’m being raped.” He walked to the Wilderness trailer and peered inside. Medina was on her back on the bed, Rojas held her by her ankles, and Juarez held her arms down with his hands and knees. While Medina was being raped, Sanchez was sitting on the hood of a car drinking beer, laughing, and talking with defendant. Ramirez spoke to Chavez and, 15 minutes later, returned to the main trailer.

Ramirez heard an argument and walked outside to hear Rojas tell Richard that he had to do something about these girls because they had seen his face

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and they knew him downtown. Rojas said, “We’ve got to take these girls out,” which Ramirez understood to mean they had to be killed. Angry and upset, Richard replied: “You fucked up. I don’t care what you do with these girls, just get ’em off my property.” Richard wanted them off the property because his wife and mother-in-law might show up. Rodriguez told Richard, “This is crazy. This is your home girls. You can’t do this to your home girls.”

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Richard did not reply. Rojas asked Rodriguez, “What are you going to do? Snitch?” Rodriguez did not reply. Rojas went back into the Wilderness trailer and emerged with Medina. Rojas held Medina around the upper half of her body, someone else held her by her feet, and they carried her to the abandoned trailer. Medina was crying and said, “Please leave me alone.” Rojas replied: “Shut up, bitch.” Ramirez thereafter heard glass breaking and thumping noises. He went into the main trailer and did not go outside until sunrise.

In October 1992 Rodriguez told Ramirez he was housed in a jail cell with Rojas, and Rojas had warned Rodriguez not to say anything against Rojas. Rodriguez was scared about being charged with rape and murder. Within six weeks before Ramirez testified, Rodriguez told him he was going to tell the truth and testify on Richard’s behalf because Richard was innocent.

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Richard Avila

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testified in his own defense as follows:

In July 1991, Richard lived in the Wilderness trailer, which was owned by his mother-in-law. On July 31, in anticipation of a drive-by shooting, Richard and his father-in-law placed various weapons around the property. All of the weapons belonged to his father-in-law; Richard did not provide the weapons for the purpose of killing anyone. Richard invited David Cordova, Chavez, and De Anda to help him protect the property. Rojas came, uninvited, with Cordova. Many others came uninvited after dusk.

Spring J. was on the North Hayes property in the evening, left, and returned after midnight.

Sometime during the night, Zeek’s brother arrived and argued with Juarez about a shooting. Richard broke up the argument. He did not break up a fight between defendant and Juarez.

*519

On August 1, a white Blazer drove by the property about 1:00 or 1:30 a.m. and again 15 minutes later. Juarez and Rojas jumped into a late-model four-door car with two others and followed the Blazer.

About 4:00 a.m., Richard took Kim home. When they left, his 1964 purple Chevrolet Impala was not there, as Gomez was out driving it. After Richard dropped off Kim at her house, he drove to a motel on Ashlan and Highway 99 where his wife was staying. He went into the motel room, undressed, and started to go to sleep, but he got up and went back to the North Hayes property because he had a “funny feeling.” When he returned, his car was there. He had been away for less than two hours.

Richard heard mumbling noises coming from the direction of the Wilderness trailer. He walked to that trailer, opened the door, and made eye contact with Rodriguez, who was on his knees on the sofa bed holding a girl’s ankles. Another man standing with his back to Richard was picking up his pants. When Richard stepped inside to find out what was going on, he saw Rojas kneeling next to a girl who was lying on a sofa bed. Rojas was holding her down with one hand and had a gun in the other hand. Richard asked Rojas what he was doing. Rojas pointed a .357-caliber chrome magnum at him and told him to mind his own business. Richard told Rojas that he did not want this happening in the trailer and to get them out. Rojas continued to tell him to mind his own business and cocked back the hammer of his gun. Richard backed out of the trailer. At trial, Richard testified that he did not give anyone permission to use his trailer to rape Medina.

As Richard left the trailer, he asked who had brought the girl, and someone said that defendant

18

and Cordova brought “these girls.” He went into the main trailer, opened the back door, and saw defendant and another girl talking. He called to defendant and asked who the girls were. Defendant replied they were a couple of his “home girls.” Richard told defendant that Rojas was beating a girl in the Wilderness trailer. Defendant told Richard he would go up there shortly.

Richard then walked back toward the Wilderness trailer and heard sounds of glass breaking coming from the area of the abandoned trailer. He then walked to the abandoned trailer and found the door locked. He pounded on the door and told the occupants in the trailer to get out. Someone inside said, “Hold on a minute.” Richard was angry because the people inside would not unlock the door.

Richard left, spoke to defendant again about the situation, and returned to the abandoned trailer. He looked inside through the broken window but did

*520

not see anyone. As he walked toward the Wilderness trailer, he saw Rojas crouching over a girl under a tree and repeatedly asking her, “Do you know who I am?” Rojas was holding her neck with one hand and a gun with the other. Rojas struck the girl twice with the butt of his gun. Richard approached Rojas and demanded that he let the girl go. Rojas pointed his gun at Richard and told him to mind his own business.

Richard saw defendant walking around the comer of the main trailer with the other girl. He approached defendant and told him that Rojas was beating the girl again, that he did not appreciate what was going on, and that he wanted Rojas out of there immediately. Defendant followed Richard. Richard then saw Chavez and Spradlin walking around the abandoned trailer with the girl Rojas had beaten. Richard walked alongside them. Someone, possibly Juarez, asked Richard for permission to use his car. Richard said no. He also said “take them out of the property,” not “take them out.” Someone said he was going to give the girls a ride home. Richard did not hear Rojas talking about what should be done with the girls or have a conversation with anyone on that subject. He never said the girls should be taken out and killed. He thought they would be taken home.

Richard continued walking toward the porch of the main trailer. When he looked back, Chavez was leaning inside die left passenger side of a gray or gold-colored late-model Bonneville.

19

Rojas was facing backwards in the front passenger seat. Angry, Richard went inside the main trailer for a beer. A few minutes later, he heard a car leaving and walked outside to see the Bonneville pulling out onto North Hayes. A girl in the car looked back at him with a sad expression. Frustrated, Richard walked to the backyard and then into the main trailer.

Fifteen minutes later, Richard heard an argument outside. Walking toward the participants, Richard heard defendant yelling at Rodriguez and threatening to kill him. Richard heard defendant say he shot the girls and complain that he was given a gun that jammed. Defendant said that Rodriguez was in the grapevines holding one of the girls and that he (defendant) shot her, but that when his gun jammed he took the gun from Rodriguez, who ran. Richard denied telling defendant it would have been better if he had thrown the girls into the canal. Defendant told Richard, “I took care of your business, now you take care of mine.” Richard did not respond because he did not want defendant to “turn on him.” During this time, defendant was waving his arms, holding a .25-caliber gun in one hand and a nine-millimeter Tec-9 in the

*521

other.

20

Richard tried to calm defendant. Juarez grabbed the .25-caliber gun from defendant, and Richard grabbed the nine-millimeter gun.

When defendant calmed down somewhat, Richard approached Rodriguez, who was preparing to leave, and warned him not to say anything to the police because “Johnny’s crazy. He’ll kill you.”

When Richard returned to defendant, Juarez, Rojas, and Cordova, defendant was angry again because he had blood on the shoes his mother had recently bought him. Richard told defendant to calm down and they would take care of it. Someone brought defendant shoes and clothing.

Richard got some marijuana from the Wilderness trailer and beer from the main trailer. When he walked back outside, he saw some people, possibly Chavez and Spradlin, washing the Bonneville. Richard overheard Chavez discussing burning the car; he did not direct anyone to bum it.

Richard went into the Wilderness trailer with defendant, Rojas, Juarez, Cordova, and De Anda. Listening to a police scanner, they heard about the murders and turned on the news. Between 8:00 and 9:00 a.m., Richard drove defendant home, telling him, “I don’t want to hear about [the murders].” Richard returned to the North Hayes property at 1:00 p.m. At that point, only his parents-in-law were there.

About a week later, Richard found a bag containing a nine-millimeter Tec-9 and a .25-caliber semiautomatic pistol in the back of a woodpile behind the shed in the backyard. They appeared to be the guns defendant was holding on August 1. Richard dismantled the guns and destroyed them using a blowtorch because he knew the police were looking for them.

Prior testimony of Frank Mendez was read into the record.

21

Mendez had known Rojas since Rojas was a child, and had known him to smoke marijuana. During August and September 1991, the two were housed in the same jail, and Rojas spoke to Mendez about the murders in this case. Rojas said he knew who had raped the girl, and that he was present when the girls were taken away to be killed. Rojas also said something about getting rid of the girls because they knew too much, and that Richard was driving some girl

*522

home while this was occurring. Rojas also mentioned pulling a chain necklace off one of the girls and calling his wife to tell her to get rid of some of his clothing in the trunk of a car. Rojas did not mention defendant.

Thomas Richardson, counsel for Rojas, testified that the prosecution entered into a contract with Rojas for his cooperation in this matter, and that one term of the contract was that Rojas take and pass a polygraph examination. When Richardson learned the result of the polygraph examination was inconclusive, he informed the prosecutor. The prosecutor replied that Rojas had fulfilled that term of the contract by taking the examination, and that the inconclusiveness of the result indicated the unreliability of the examination rather than Rojas’s failure.

Ruben Arrechiga, Jr., testified he had suffered felony convictions in 1977, 1981, 1991, and 1993. In 1986 or 1987, Arrechiga lived with Rojas. During that time, Rojas used PCP three or four times a week. Based on his experience with Rojas, Arrechiga did not believe him to be an honest person.

Arrechiga also spoke to Richard’s defense investigator about a convenience store robbery Rojas committed in 1988. Rojas told Arrechiga that as he was fleeing the scene of the crime, he fired shots at two young girls from the neighborhood because they could identify him.

In May 1982, Ronald Tate was walking home at night when he saw a group of teenagers fighting. Rojas, who was with a different group, approached him and repeatedly asked what was happening. Rojas then pulled a knife out of his pocket and stabbed him once in the neck and twice in the back.

4.

Defendant’s Defense Case

Defendant presented evidence that Sanchez was a family friend, implicitly suggesting he would not have killed someone he knew and liked. Specifically, defendant’s three sisters and two cousins and Sanchez’s sister testified that for several years in the mid-1980’s Sanchez dated Chucky Chacon, defendant’s cousin. During that period, Sanchez and defendant, who occasionally met at family gatherings, appeared to get along. After Sanchez and Chacon broke up, she continued to be friendly with defendant. Defendant and Sanchez were last seen together in the late 1980’s at a family gathering.

Spring and Kim testified for defendant. On July 31, 1991, Zeek invited Spring to a party. He picked her up in a purple Impala; Gomez was driving. The three then picked up Spring’s friend Kim and drove to the North Hayes property, arriving about 10:30 p.m. They saw many men carrying firearms,

*523

and various guns were strewn about the property. Some of the men approached the girls and started talking to them. Spring recognized Juarez, whom she had met three weeks before.

Spring and Kim left the North Hayes property twice with some others to buy alcohol from a nearby store. On one return trip, when they were with Gomez and Juarez, a car behind them flashed its high beams. Gomez reached down from under his driver’s seat, pulled out a 16- to 18-inch gun, and started firing at the car behind them. Juarez leaned out the window and also began shooting at the car. When they returned to the property, they learned that Zeek’s brother and his family were in the car behind them.

In the early morning hours of August 1, 1991, Spring, Kim, Zeek, and Juarez smoked KJ outside the back of the main trailer. At one point, Spring and Kim met in Zeek’s bedroom, in the main trailer. Juarez was there, and Rojas, whom neither girl knew, was in the kitchen with a 17- to 18-inch gun strapped over one shoulder.

Richard drove Kim home, arriving there between 3:00 and 4:00 a.m. Meanwhile, Spring found herself in the Wilderness trailer, where, over the course of two and a half hours, she was raped 12 times by six or seven individuals, including Juarez and Rojas. Rojas held her legs open while other men raped her. Rojas also pulled her hair and hit her, placed a belt around her neck and choked her with it, put a revolver to her head, cocked back the hammer several times, and threatened to kill her if she told anyone what happened that night. During the assault, Spring lost a necklace and a pair of earrings. Eventually De Anda came into the trailer and told Rojas to leave her alone. He helped Spring find her shoes and clothes, and they walked to De Anda’s car. Just as they were leaving the property, Juarez jumped into the car, sandwiching her between De Anda and himself. Spring was scared because Juarez had a gun. In the car, Spring did not say that she was paid to strip or willingly engaged in sex. It was past 4:00 a.m. when Spring returned home. Spring did not recall seeing defendant that night.

Spring testified that, when she first arrived at the party, she saw a girl walking toward a trailer. Kim testified that, before midnight, she saw a man escorting a thin young woman from the main trailer.

John Coyle, a correctional sergeant with the California Department of Corrections who became familiar with Rojas while he was assigned to the California Medical Facility in Vacaville for 16 months, opined that Rojas was dishonest.

*524

5.

People’s Rebuttal Evidence

Before trial, Rodriguez discussed with Ray Lopez his upcoming obligation to testify as a witness in this case. Lopez asked Rodriguez if he could change his story about Richard and claim immunity so he would not get in trouble. Rodriguez explained his contract with the prosecution did not work that way. He did not tell Lopez that Richard was uninvolved in the murders.

B.

Penalty Phase Evidence

1.

Prosecution’s Case in Aggravation

The prosecution presented evidence that defendant previously had been convicted of shooting at an inhabited dwelling (§ 246), intimidation of a witness by force or violence (§ 136.1, subd. (a)(1)), and felony possession of PCP (Health & Saf. Code, § 11377).

Medina’s cousin Richard Gonzales testified that Medina’s death devastated her mother and that she had not been the same person since. Similarly, Medina’s sisters found it difficult to talk about Medina, and the mere mention of Medina’s name brought them to tears. Medina’s family believed she was too young to die.

The prosecution presented a photograph of Medina and her two sisters taken in January 1991 and a photograph of Sanchez and her son taken within two months of her death.

2.

Defendant’s Case in Mitigation

Defendant presented extensive evidence about his family background and childhood. He was the second of eight children and the oldest boy. Defendant’s mother, Ester, and father, John Avila, Sr., married in 1956 and moved to Pinedale, California, in 1960, where the family lived until 1979. Defendant’s mother did not work outside the home, and his father typically worked 10- to 12-hour days as a foreman. Defendant’s father was a well-liked and respected member of the community who coached baseball for a boys club and organized other sports.

Defendant’s father demanded the family eat breakfast and dinner together, expected his children to do household chores before and after school, and taught his children the difference between right and wrong. During the summers, he made the children work in the fields picking figs to teach them responsibility and to make extra money. The siblings, especially defendant, helped each other in the fields.

*525

Defendant was a small, skinny, and quiet child, who was placed in special education classes at school because he was a slow learner. Because of his special placement in school and his small size, other children used to pick on and beat him, though he never went looking for a fight. Defendant was also a “mama’s boy,” meaning he would often run errands for his mother. He was generally a happy boy who made others laugh.

Defendant was a member of the boys club and played numerous sports. He was a pitcher on a baseball team coached by his father, and went fishing with him. Defendant was a good brother who played games with his siblings, took them to movies, and stopped them from fighting with each other.

When defendant was 15 years old, an older boy named Russell Mestas picked a fight with him and bit off a part of his ear. Defendant’s father broke up the fight. Defendant never retaliated against Mestas. About this time, defendant dropped out of school and “took up with” a young woman named Yolanda. The two lived with his family.

Defendant’s father helped him with his schoolwork and to get a job with his company. In his late teens and early twenties, defendant was very active, dancing, playing music, working, and raising his own growing family. Defendant was a good listener, and counseled his sisters and cousins, especially about their rocky marriages and relationships.

In February 1978, when defendant was about 20 years old, defendant and some of his family members went to a reception, and Russell Mestas hit his sister Vera in the mouth. At a party later that night, defendant’s father learned about the earlier incident with Mestas and went outside to Mestas’s car to confront him. Someone from inside the car shot him. He fell back into defendant’s arms and died of his wounds.

The Avila family began receiving threats from the Mestas family and the Contreras family (who were related to the Mestases by marriage). Their house was “shot up” several times. Defendant retaliated by shooting at the Contrerases’ house and was sent to the California Youth Authority as a result. The entire Avila clan eventually moved to Fresno. Defendant tried to take his father’s place in the family but found it difficult to do so and became bitter.

In 1990, defendant stayed with his sister Mary and her family for a few months. Defendant was unemployed and appeared to be frustrated because he could not find a job. Mary’s husband helped him fill out an employment application because defendant could not read or write well. During the time defendant stayed with Mary’s family, he played with the children and helped with the household chores.

*526

Julie Cruz dated defendant from mid-1989 to early 1991. Defendant was nice and never disrespected her. Defendant was also very good with her baby. She had never seen defendant use drugs.

Family members testified it would be very hard on their family if defendant were to receive the death penalty.

James Park, an expert on California prisons who had worked for the Department of Corrections for more than 30 years, testified that new inmates in California were classified on a point system, and that an inmate sentenced to life without possibility of parole had enough points to place him in a maximum security prison. Inmates in maximum security prisons have limited movement and loss of privacy, though they have the opportunity to work in factories or buy small items in a cantina. If defendant received a sentence of life without the possibility of parole, he would live in a 60- or 80-square-foot cell with another inmate.

Abel Esquivel, a licensed clinical social worker, testified about the impact of John Avila’s death on defendant generally and from a cultural standpoint. Esquivel opined that defendant’s substance abuse and criminal activity were the result of confusion and isolation stemming from the loss of his father and his inability to successfully take the lead in the family. Defendant also experienced contradictory feelings resulting from his unsuccessful attempt to mesh his Mexican culture with the mainstream one. Esquivel also testified that defendant tended to gravitate toward those half his age and appeared to vacillate between wanting to establish a home and family of his own and wanting to party and meet young women.

Errol Leifer, a clinical psychologist, conducted a neuropsychological evaluation of defendant and found that he consistently performed at a level of intellectual and mental functioning suggesting mild mental retardation. Defendant also showed residual mild diffuse organic brain damage from chronic use of PCP. Given his mental deficiencies and brain damage, if defendant ingested intoxicants such as PCP and alcohol, his ability to engage in an act involving a plan or a scheme would be greatly impaired. Leifer conceded, however, that defendant would be capable of understanding that a witness to a criminal act could be a threat to him and of making a decision to kill.

Another clinical psychologist, Charles Pine, conducted diagnostic tests on defendant on three occasions in 1992, 1994, and 1995, and concluded that he suffers from a cognitive disorder stemming from neuropsychological deficiencies, head trauma, and substance abuse, making it difficult for him to solve abstract problems; posttraumatic stress disorder due to the death of his father

*527

and loss of his way of life; depression stemming from early childhood; and polysubstance dependence disorder involving PCP, alcohol, and marijuana. Pine also testified that defendant functioned at a borderline level of mental retardation, with an IQ of 77.

II. JURY SELECTION ISSUES

A.

Procedure Used to Challenge Prospective Jurors for Cause

Defendant contends that several aspects of the procedure the trial court required the parties to follow in making challenges for cause were arbitrary and unreasonable, and made selecting a fair and impartial jury impossible, in violation of statutory requirements. He also asserts violations of his rights to an impartial jury under the Sixth Amendment, due process and fundamental fairness under the Fifth, Sixth, and Fourteenth Amendments, and a reliable judgment under the Eighth Amendment.

22

1.

For-cause Excusáis on Written Answers Alone

Defendant contends the trial court erroneously excused for cause four prospective jurors based solely on their written answers to a jury questionnaire concerning their views on the death penalty, and without any opportunity for follow up questioning during which the court and counsel might have been able to clarify the responses and determine whether, in fact, the prospective jurors should be disqualified from service. He asserts the excusáis violated various provisions of the federal Constitution enumerated above.

*528

The trial court, after soliciting comment from all counsel, prepared a 24-page written questionnaire consisting of 108 questions. Several pages of the questionnaire focused on the prospective jurors’ views concerning the death penalty.

23

Based on the questionnaires completed by the first 75 prospective jurors, the trial court proposed to excuse for cause 14 individuals without questioning them orally because their responses to the questionnaire “very clearly” indicated that either they were not death qualified—because they would always impose the death penalty or would never consider imposing the death penalty—or they had read or heard something about the case that created a

*529

strong belief in defendant’s guilt. Defendant objected unsuccessfully to the excusal of four of the 14 prospective jurors: C.H., R.V., O.D., and R.W.

24

Decisions of the United States Supreme Court establish the circumstances under which a prospective juror’s views on the death penalty properly may serve as the basis for a challenge for cause. In

Witherspoon

v.

Illinois

(1968) 391 U.S. 510, 522 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ], the United States Supreme Court held that a defendant cannot be sentenced to death if the jury that imposed the penalty was chosen by excluding prospective jurors for cause “simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” In

Wainwright v. Witt

(1985) 469 U.S. 412, 424 [ 83 L.Ed.2d 841 , 105 S.Ct. 844 ], the high court clarified its decision in

Witherspoon

and held that a prospective juror may be excluded for cause because of his or her views on capital punishment if those views would “ ‘prevent or substantially impair’ ” the performance of his or her duties as a juror in accordance with the trial court’s instructions and his or her oath. (Accord,

People

v.

Cunningham

(2001) 25 Cal.4th 926, 975 [ 108 Cal.Rptr.2d 291 , 25 P.3d 519 ].) But neither

Witherspoon

nor

Witt

requires that a prospective juror automatically be excused if he or she expresses a personal opposition to the death penalty. Those who firmly oppose the death penalty may nevertheless serve as jurors in a capital case as long as they state clearly that they are willing to temporarily set aside their own beliefs and follow the law.

(Lockhart v. McCree

(1986) 476 U.S. 162, 176 [ 90 L.Ed.2d 137 , 106 S.Ct. 1758 ]; accord,

People

v.

Rodrigues

(1994) 8 Cal.4th 1060, 1146 [ 36 Cal.Rptr.2d 235 , 885 P.2d 1 ].)

Generally, a trial court’s rulings on motions to exclude for cause are afforded deference on appeal, for “appellate courts recognize that a trial judge who observes and speaks with a prospective juror and hears that person’s responses (noting, among other things, the person’s tone of voice, apparent level of confidence, and demeanor), gleans valuable information that simply does not appear on the record.”

(People

v.

Stewart

(2004) 33 Cal.4th 425, 451 [ 15 Cal.Rptr.3d 656 , 93 P.3d 271 ]

(Stewart).)

But such deference is unwarranted when, as here, the trial court’s ruling is based solely on the “cold record” of the prospective jurors’ answers on a written questionnaire, the same information that is available on appeal.

(Ibid.)

Accordingly, reviewing the record de novo, we conclude the trial court did not err in excusing for cause four prospective jurors based solely upon their written responses to the jury questionnaire.

25

*530

Stewart

is distinguishable. There, we held that the trial court erred in excusing for cause five prospective jurors, over the defendant’s objections, based solely upon their responses to a three-part question on the written jury questionnaire that focused on views concerning the death penalty. We therefore reversed the defendant’s death sentence without an inquiry into prejudice.

( Stewart, supra,

33 Cal.4th at pp. 445-55.)

Our concerns, however, were centered on the particular circumstances of that case. At the outset, we stressed a material flaw in the

Stewart

questionnaire itself. It asked whether the prospective juror had a conscientious opinion or belief about the death penalty that “ ‘would prevent

or make it very

difficult’ ” for the juror to vote for first degree murder, find a special circumstance true, or impose the death penalty.

(Stewart, supra,

33 Cal.4th at p. 442 , italics added.)

As we observed, even one who gave a straightforward “yes” answer to such questions would not necessarily demonstrate disqualification under

Witt ,

because mere

difficulty

in imposing the death penalty does not, per se, prevent or substantially impair the performance of a juror’s duties. The prospective juror might nonetheless be able to put aside his or her personal views and deliberate fairly under the death penalty law. Yet the

Stewart

questionnaire did not inquire whether the prospective juror could do so. Hence, in many cases, followup questioning was essential to assess whether the juror could overcome personal reservations and properly weigh and consider the aggravating and mitigating factors.

(Stewart, supra,

33 Cal.4th at p. 447 .)

Each of the five prospective jurors whose excusáis for cause were challenged in

Stewart

had answered the flawed questionnaire in ways that indicated strong reservations about the death penalty but did not negate the possibility the jurors could set aside their feelings and deliberate fairly. As a result, we held those jurors should have been subject to clarifying follow up examination.

( Stewart, supra,

33 Cal.4th at pp. 444-449.) The court’s failure to conduct such an examination was apparently based on its misunderstanding and misapplication of the standard necessary to excuse a prospective juror for cause based on his or her death penalty views.

(Id.

at pp. 444-445, 447, 451.)

In

Stewart ,

we noted: “[W]e need not and do not hold ... a trial court never may properly grant a motion for excusal for cause over defense objection based solely upon a prospective juror’s checked answers and written responses contained in a juror questionnaire. We are, however, unaware of any authority upholding such a practice.”

( Stewart, supra,

33

*531

Cal.4th at pp. 449-450, fns. omitted.) Indeed, we did not criticize 17 stipulated excusáis for cause, based solely upon written responses to the

Stewart

questionnaire, stating that many of the responses submitted in those 17 cases “revealed unambiguous and entrenched support for or opposition to the death penalty.”

(Id.

at p. 444 & fn. 11.) Thus, nothing in

Stewart

indicates that an excusal without oral voir dire is improper where the prospective juror’s answers to a jury questionnaire leave no doubt that his or her views on capital punishment would prevent or substantially impair the performance of his or her duties in accordance with the court’s instructions and the juror’s oath.

The question left undecided in

Stewart

is squarely presented here, and we now hold that a prospective juror in a capital case may be discharged for cause based solely on his or her answers to the written questionnaire if it is clear from the answers that he or she is unwilling to temporarily set aside his or her own beliefs and follow the law. (See

Lockhart

v.

McCree, supra,

476 U.S. at p. 176 .)

The questionnaire at issue here did not suffer from the defect cited in

Stewart .

It asked whether a prospective juror held such conscientious objections to the death penalty that, regardless of the evidence or the strength of proof, he or she “automatically” would refuse to return a first degree murder verdict, find a special circumstance true, or impose the death penalty. Any juror who “automatically” would vote in ways that precluded the death penalty would clearly be disqualified under

Witt .

Thus, this questionnaire format, unlike the one presented in

Stewart ,

included more expansive and detailed questions on capital punishment and gave jurors the clear opportunity to disclose views against it so strong as to disqualify them for duty on a death penalty case. Moreover, unlike in

Stewart ,

the death-penalty-related answers given by the prospective jurors whose excusáis defendant challenges here were sufficiently unambiguous to allow the court to identify disqualifying biases on the basis of their written responses alone. With respect to each of these excusáis, we conclude that the trial court’s determinations, based solely on the questionnaire responses, were correct.

Prospective Juror R.V. indicated she strongly opposed the death penalty and would in every case automatically vote for life imprisonment without the possibility of parole, regardless of the evidence that might be produced during trial. She indicated she could not set aside her personal feelings and follow the law if the death penalty were involved. Her responses were clear, unequivocal, and internally consistent. The trial court did not err in excusing her for cause based solely on her responses to the jury questionnaire.

*532

Prospective Juror C.H. indicated she strongly opposed the death penalty because her religion taught her that killing was wrong. She indicated she could not set aside her personal feelings and follow the law, explaining: “I would have such difficulty with the death penalty that I don’t think I could weigh evidence without my beliefs influencing me.” To the question inquiring whether she entertained such conscientious opinions about the death penalty that, regardless of the evidence that might be developed during trial she would in every case automatically vote for life imprisonment without the possibility of parole, she wrote, “I couldn’t vote.” Although she did not simply check “Yes” or “No” to this question as directed, we understand her written response to mean that she would be unable to carry out her duties as a juror in the case because of her views about the death penalty. Her responses were internally consistent and unambiguous. The trial court did not err in excusing her for cause based solely on her responses to the jury questionnaire.

Although Prospective Juror O.D. indicated he strongly opposed the death penalty, he also acknowledged that one of the duties of a juror was to follow the law and indicated he could set aside his personal feelings and follow it. Given only these two answers, we might not be able to say that O.D.’s opposition to the death penalty was clear and unequivocal. But he also indicated that he entertained such conscientious opinions regarding the death penalty that he would, in every case and regardless of the evidence presented, automatically vote for something other than first degree murder so as not to reach the penalty phase, automatically vote for a verdict of not true as to the special circumstances alleged so as not to reach the penalty phase, and, automatically vote for life imprisonment without the possibility of parole if there were a penalty phase. O.D. also strongly disagreed with the following three statements, based on his religious beliefs: (1) “Any person who intentionally kills another person, unless the killing was in self-defense or the defense of another, deserves the death penalty”; (2) “Convicted murderers should be swiftly executed once they are convicted”; and (3) belief in the adage “An eye for an eye.” When asked to explain his answers, O.D. answered, “I was taught that there should be no reason to kill and I will continue to think this way.” We find that, taken together, O.D.’s answers to the jury questionnaire professed an opposition to the death penalty that would prevent him from performing

his

duties as a juror. Accordingly, the trial court did not err in excusing him for cause based solely on his responses to the jury questionnaire.

Lastly, Prospective Juror R.W. indicated he strongly opposed the death penalty based on his religious beliefs and believed the death penalty “should never be used.” R.W. also answered “unknown” to questions whether he would in every case automatically vote for something other than murder in the first degree because such a verdict would end the death penalty question

*533

once and for all, and whether he would in every case automatically vote for a verdict of not true as to the special circumstances alleged because such a verdict would end the death penalty question then and there. But he acknowledged he entertained such conscientious objections to the death penalty that, regardless of the evidence that might be developed during trial, he would in every case automatically vote for life imprisonment without the possibility of parole. In other words, he expressed doubt he could put aside his pro-life bias even when voting on guilt and special circumstance issues, and made clear he would not be able to do so if deliberations proceeded to the issue of penalty.

Thus, as with Prospective Juror O.D., we find that R.W.’s responses, taken together, reflected opposition to the death penalty that would prevent him from performing his duties as a juror. Accordingly, the trial court did not err in excusing him for cause based solely on his responses to the jury questionnaire.

26

2.

Time Limitations on Voir Dire

The trial court explained to all parties that it would conduct voir dire in the following manner: 24 prospective jurors would be called and questioned as a group by the court and then by counsel, with counsel for each defendant and the prosecutor allotted 10 to 15 minutes each to question the group; if all the parties passed the group for cause, then peremptory challenges would be directed to the 12 of the 24 seated in the jury box; each prospective juror dismissed on a peremptory challenge would be replaced, in order, by those seated in seat numbers 13 through 24; when the initial group of 24 was reduced to the 12 seated in the jury box, another group of 13 would be called and questioned as a group by the court and then by counsel, with counsel for each defendant and the prosecutor allotted 10 minutes each to question the subsequent group. Subsequent groups of 13 would be called and the process repeated until a jury was impaneled. Using this system, the court predicted that the jury would be selected in five days.

*534

Defendant joined in codefendant Richard Avila’s general objection to the method of jury selection imposed by the trial court. Although defendant did not specifically object to the time limit imposed by the court for counsel to question prospective jurors, he did argue that it was impossible to select a fair and impartial jury in five days. The court, however, reiterated that it would adhere to its proposed system of jury selection. Counsel for the defendants then opted to pool their time allotment, such that counsel for defendant would have 45 minutes to question the first group of 24 prospective jurors on behalf of all three defendants, counsel for Richard Avila would have 30 minutes to question the second group on behalf of all three defendants, counsel for Jeffrey Spradlin would have 30 minutes to question the third group on behalf of all three defendants, and so on.

The court informed counsel that, on request and for good cause shown, it would allow additional time to question prospective jurors. Although the court denied defense requests for sequestered voir dire, it contemplated that some individual voir dire might be necessary “because of either publicity that they’ve heard about concerning the case or because they want to answer some things privately.”

On appeal, defendant contends the trial court arbitrarily and unreasonably limited the amount of time defense counsel could spend questioning prospective jurors during voir dire, in violation of his state and federal constitutional rights.

We conclude that defendant’s general objection to the method of jury selection imposed by the trial court and argument that he could not select a fair and impartial jury in five days preserved the claim for appeal. The claim, however, is without merit.

At the time of trial in this matter, Code of Civil Procedure section 223, enacted by Proposition 115 (approved by the electorate effective June 6, 1990), provided for court-conducted examination of prospective jurors in a criminal case, including death penalty cases, in the presence of the other jurors. Upon a showing of good cause, the court could permit the parties to supplement the examination or itself submit to the prospective jurors additional questions by the parties as it deemed proper. Code of Civil Procedure section 223 further provided that the court’s exercise of discretion in the manner in which it conducted voir dire would not cause any conviction to be reversed absent a miscarriage of justice, as specified in section 13 of article VI of the California Constitution.

27

Because the court was not required to afford defendant any

*535

time at all to question prospective jurors under Code of Civil Procedure section 223 as then in effect, it did not abuse its discretion in setting a time limit on counsel-conducted voir dire, either individually or in the aggregate.

Defendant’s reliance on

People v. Hernandez

(1979) 94 Cal.App.3d 715 [ 156 Cal.Rptr. 572 ] is inapposite. There, the defendant argued that the trial court violated former section 1078 in setting a time limit for voir dire. Although the court ultimately held that the defendant was precluded from arguing that the trial court improperly curtailed voir dire examination of prospective jurors because he did not exercise all of his peremptory challenges, it noted that the “fixing of an arbitrary time limit for voir dire in advance of trial is dangerous and could lead to a reversal on appeal.”

(People v. Hernandez, supra,

94 Cal.App.3d at p. 719 .) But former section 1078, which had required trial courts “to permit

reasonable

examination of prospective jurors by counsel for the People and for the defendant” ( 94 Cal.App.3d at p. 719 ), was repealed in 1988 (see Stats. 1988, ch. 1245, § 36, p. 4155) and thus did not govern defendant’s trial.

In arguing that the trial court erred in placing time limitations on voir dire, defendant identifies a number of prospective jurors who, he contends, should have been further questioned. Contrary to defendant’s view, we do not agree that the court abused its discretion in restricting further voir dire of these prospective jurors. For example, defendant argues that the court abused its discretion in denying his request to further question Prospective Juror T.G. based on her statements during voir dire that she would find it difficult to sit as a juror in a case involving the Bulldog gang, that she did not know if she could be fair to both sides, and that she believed criminal defense attorneys were “slime.”

28

But the court and the prosecutor explored these matters after defense counsel concluded his voir dire, and T.G. stated that she would give all parties a fair hearing, and would follow the court’s instructions and base her decision solely on the evidence presented. In any event, although the court denied the defense’s challenge for cause as to T.G., defendant exercised a peremptory challenge against her.

*536

In another example, defendant argues that the court abused its discretion in denying his request to further question Prospective Juror G.M. based on his statement to the court that his wife was a criminal investigator with the Internal Revenue Service, and that the denial prejudiced him because G.M. was ultimately seated as a juror in this case.

29

The court denied the request as untimely because it was made a day after G.M. had been questioned, and noted that there was no basis for excusing him for cause in any event. Although G.M.’s wife might have been generally aligned with law enforcement, G.M. did not make any responses suggesting he himself might have been so aligned. Accordingly, the court did not abuse its discretion in denying the request for further questioning.

As for other prospective jurors defendant contends were inadequately questioned because of lack of time, defense counsel either did not request additional time or did not make a showing of good cause. Defendant concedes, moreover, that the court did, in some instances, allow counsel to ask additional questions upon request. The court thus did not abuse its discretion in restricting defense counsel’s examination of prospective jurors.

We similarly reject defendant’s federal constitutional claim. The United States Constitution “does not dictate a catechism for

voir dire,

but only that the defendant be afforded an impartial jury.”

(Morgan

v.

Illinois

(1992) 504 U.S. 719, 729 [ 119 L.Ed.2d 492 , 112 S.Ct. 2222 ]; see also

People

v.

Robinson

(2005) 37 Cal.4th 592, 613 [ 36 Cal.Rptr.3d 760 , 124 P.3d 363 ];

People v. Box

(2000) 23 Cal.4th 1153, 1179 [ 99 Cal.Rptr.2d 69 , 5 P.3d 130 ].) The trial court, moreover, has a duty to restrict voir dire within reasonable bounds to expedite the trial.

(People

v.

Wright

(1990) 52 Cal.3d 367, 419 [ 276 Cal. Rptr. 731 , 802 P.2d 221 ].) The court’s logistical planning of voir dire and limitation thereof were reasonable, especially considering the multidefendant nature of the trial. Moreover, as stated, the court’s willingness to permit additional time for counsel-conducted voir dire upon a showing of good cause ameliorated any potential concern that the limitation would somehow be unfair or violate the right to an impartial jury.

3.

Asserted Violation of Code of Civil Procedure Section 226

Defendant contends the trial court’s system of jury selection violated Code of Civil Procedure section 226,

30

as well as the federal Constitution. We disagree.

*537

As stated, counsel for Richard Avila objected to the method of jury selection imposed by the court, instead requesting that the parties be allowed to direct all for-cause challenges against the entire jury panel, that is, all of the prospective jurors in the courtroom (see Code Civ. Proc., § 194, subd. (q)), before they were required to use peremptory challenges. He argued that section 226 of the Code of Civil Procedure mandated such a procedure. Defendant joined in the objection. The court reiterated the procedure it would follow: “[W]e are taking challenges for cause before peremptories. The only question is whether it should be to all of the jurors in the courtroom or only 12 or 18, or in this case 24, and I see nothing in the statute or in any cases that say that you have to question and pass for cause all of the jurors in the courtroom before you can begin exercising peremptories. I think that is one alternative way of doing it.” The court further noted that to conduct voir dire in the manner requested by counsel was “a terribly inefficient way to proceed.”

Peremptory challenges generally are exercised under either of two methods. Under the “jury box” method, which is the system utilized in California, 12 prospective jurors are questioned, subjected to challenges for cause, and replaced until 12 qualified jurors remain. Both sides then exercise peremptory challenges. A juror removed by peremptory challenge is replaced by another juror, who is then questioned and challenged both for cause and peremptorily. This process continues until peremptory challenges have been exhausted or waived.

(People

v.

Wright, supra, 52

Cal.3d at p. 397;

United States v. Thompson

(2d Cir. 1996) 76 F.3d 442, 451 ;

United States v. Blouin

(2d Cir. 1981) 666 F.2d 796, 796 .) Under the “struck jury” method, a large initial panel of prospective jurors is drawn and subjected to challenges for cause before peremptory challenges are exercised. If, after each side exercises its peremptory challenges, there remain more than 12 jurors, the court decides which 12 will constitute the jury.

(People v. Wright, supra, 52

Cal.3d at p. 397;

United States

v.

Blouin, supra,

666 F.2d at pp. 796-797.) The trial court apparently employed a variation of the “jury box” system in this case.

Defendant argues that Code of Civil Procedure section 226 dictates that

all

challenges for cause must be exercised before

any

peremptory challenges may be exercised, and that a procedure (like the one the trial court here used) whereby challenges are exercised in groups, even if within each group challenges for cause are exercised before peremptory challenges, violates the statutory mandate. That section, however, must be read in light of Code of Civil Procedure section 231, which entitles each party to have a full panel before exercising any peremptory challenge—“panel” here apparently always having been understood by California courts as the subset of the members of the whole venire who are called to fill the jury box during voir dire. In other words, defendant was entitled to have a panel of 12 jurors before he exercised any peremptory challenges, but the governing statutes

*538

have never been interpreted to require that the entire venire be subjected to for-cause challenges before the exercise of any peremptory challenges, a procedure that—in a capital case entailing a large venire—would further add to the time-consuming nature of the process. (See, e.g.,

People v. Wright, supra,

52 Cal.3d at p. 396 [where we assumed, without discussion, that, in former Penal Code section 1088, which stated in pertinent part that “ ‘each party shall be entitled to have the panel full before exercising any peremptory challenge,’ ” the phrase “full panel” meant “a full complement of 12 jurors”].) Under the system of jury selection employed by the court here, defendant directed his peremptory challenges against 12 individuals seated in the jury box. No statutory violation occurred.

Defendant maintains that, under the variation of the “jury box” system employed here, he was unable to make informed exercise of peremptory challenges because he did not know the composition of the final jury. Although knowledge of the composition of the entire panel can be relevant to the exercise of a peremptory challenge against an individual juror, the fact that a particular procedure used might have made exercising initial peremptory challenges less informed does not in itself require reversal.

(People

v.

Wright, supra,

52 Cal.3d at p. 397 .)

A court commits reversible error if its procedures deny a party’s right of peremptory challenge.

(People

v.

Wright, supra,

52 Cal.3d at pp. 397-398; see also

Pointer v. United States

(1894) 151 U.S. 396, 408-409 [ 38 L.Ed. 208 , 14 S.Ct. 410 ];

United States v. Blouin, supra,

666 F.2d at p. 797 .) But defendant here was not prohibited from exercising all of his allotted peremptory challenges; indeed, he exercised them all. No error occurred.

4.

Cumulative Prejudice

Because we conclude the trial court did not err in any aspect of its jury selection procedures, we reject defendant’s claim of cumulative error resulting in prejudice under the federal Constitution.

B.

Denial of Defendant’s Challenges for Cause

Defendant claims that the trial court improperly denied his challenges for cause to 12 prospective jurors, thereby violating his federal constitutional rights to an impartial jury under the Sixth Amendment, due process and fundamental fairness under the Fifth, Sixth, and Fourteenth Amendments, and a reliable judgment under the Eighth Amendment. Eleven of these 12

*539

prospective jurors did not sit on defendant’s jury because each was peremptorily challenged.

31

Although he had one peremptory challenge remaining, defendant did not peremptorily challenge J.S. Defendant eventually exhausted his peremptory challenges and did not express dissatisfaction with the jury, which included J.S.

“To preserve a claim based on the trial court’s overruling a defense challenge for cause, a defendant must show (1) he used an available peremptory challenge to remove the juror in question; (2) he exhausted all of his peremptory challenges or can justify the failure to do so; and (3) he expressed dissatisfaction with the jury ultimately selected.”

(People v. Maury

(2003) 30 Cal.4th 342, 379 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ].) Because defendant did not express dissatisfaction with the jury ultimately selected, he did not preserve this claim. Even had the claim been preserved, it would fail on the merits.

As stated, “a juror may be challenged for cause based upon his or her views concerning capital punishment only if those views would ‘prevent or substantially impair’ the performance of the juror’s duties as defined by the court’s instructions and the juror’s oath.”

(People v. Crittenden

(1994) 9 Cal.4th 83, 121 [ 36 Cal.Rptr.2d 474 , 885 P.2d 887 ]; accord,

Wainwright v. Witt, supra,

469 U.S. at p. 424 .)

To prevail on appeal, defendant “must demonstrate that the court’s rulings affected his right to a fair and impartial jury.”

(People

v.

Yeoman, supra,

31 Cal.4th at p. 114.) On appeal, we examine the context in which the trial court denied the challenge in question to determine whether the court’s decision that the prospective juror’s beliefs would not substantially impair the performance of his duties fairly is supported by the record.

(People v. Crittenden, supra,

9 Cal.4th at p. 122 .) If a prospective juror provides “conflicting answers to questions concerning his or her impartiality, the trial court’s determination as to that person’s true state of mind is binding upon the appellate court.”

(Ibid.)

When the trial court asked Prospective Juror J.S. how he felt about the death penalty “versus life without parole,” he answered that the death penalty should be enforced in cases where the murder had been planned, but acknowledged there may be circumstances where life imprisonment would be a “probable alternative.” Later, when counsel for defendant asked basically the same question, J.S. replied that the death penalty should be considered in any murder case, and that, for life without possibility of parole, mental

*540

deficiency should be considered. Upon further questioning, he stated he would be willing to listen to evidence of mitigating circumstances before making a decision to vote for death or life without possibility of parole. He believed he could listen to all the evidence and be fair. Richard Avila challenged J.S. for cause, and defendant joined in the motion. The court denied the challenge, explaining, “I don’t think he’s either an automatic vote or a substantial impairment.” The record amply supports the court’s retention of J.S.

As for the 11 other prospective jurors defendant contends should have been dismissed for cause, they could not have possibly affected the jury’s fairness because they did not sit on the jury. (See

People

v.

Yeoman, supra,

31 Cal.4th at p. 114.) The harm to defendant, if any, was in being required to use peremptory challenges to cure what he perceived as the trial court’s error, thereby reducing the number available to him later in the trial. (See

ibid.;

see also

People v. Boyette

(2002) 29 Cal.4th 381, 418 [ 127 Cal.Rptr.2d 544 , 58 P.3d 391 ].) But the loss of a peremptory challenge does not constitute a violation of the constitutional right to an impartial jury. (See

Ross v. Oklahoma

(1988) 487 U.S. 81, 88 [ 101 L.Ed.2d 80 , 108 S.Ct. 2273 ]; see also

People

v.

Boyette, supra,

29 Cal.4th at p. 419 .)

In short, the trial court’s denial of defendant’s 12 challenges for cause did not violate his constitutional rights.

C.

Denial of Batson/Wheeler Motions

During jury selection, Richard Avila made a series of motions under

People v. Wheeler

(1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ]

(Wheeler),

challenging the prosecutor’s use of peremptory challenges against Black and Hispanic prospective jurors, and defendant joined in some but not all of them.

32

Spradlin also made one motion under

Wheeler ,

in which defendant joined. The trial court denied each motion.

The jury as seated included two Hispanic males, two Hispanic females, and one Black female. One of the three alternate jurors was a Black male.

On appeal, defendant contends the court erroneously denied the

Wheeler

motions, violating his rights under the state and federal Constitutions.

*541

A prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds”—violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution.

( Wheeler, supra,

22 Cal.3d at pp. 276-277; see

People

v.

Griffin

(2004) 33 Cal.4th 536, 553 [ 15 Cal.Rptr.3d 743 , 93 P.3d 344 ].) Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution.

(Batson, supra,

476 U.S. at p. 88 ; see also

People

v.

Cleveland

(2004) 32 Cal.4th 704, 732 [ 11 Cal.Rptr.3d 236 , 86 P.3d 302 ].)

The United States Supreme Court has recently reaffirmed that

Batson

states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.’ [Citation.]”

(Johnson

v.

California

(2005) 545 U.S. 162, 168 [ 162 L.Ed.2d 129 , 125 S.Ct. 2410, 2416 ], fn. omitted.)

We review the trial court’s ruling on the question of purposeful racial discrimination for substantial evidence.

(People v. McDermott

(2002) 28 Cal.4th 946, 971 [ 123 Cal.Rptr.2d 654 , 51 P.3d 874 ].) It is presumed that the prosecutor uses peremptory challenges in a constitutional manner, and we give deference to the court’s ability to distinguish “bona fide reasons from sham excuses.”

(People

v.

Burgener

(2003) 29 Cal.4th 833, 864 [ 129 Cal.Rptr.2d 747 , 62 P.3d 1 ].) As long as the court makes “a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.”

(Ibid.)

1.

Relevant Proceedings

During jury selection, before the start of peremptory challenges, counsel for Richard Avila noted that, after challenges for cause and other hardship excusáis were accounted for in the current jury panel, only a few Hispanic and Black individuals remained. On the basis of the small number of individuals representing minority groups, counsel stated she planned to make a

Wheeler

motion in response to any peremptory challenge exercised by the prosecution with which she did not agree.

*542

Counsel for Richard made her first

Wheeler

motion after the prosecutor exercised his third peremptory challenge to excuse Prospective Juror S.A., who was Black. The trial court denied the motion, ruling that no prima facie showing had been made because there had been “no pattern.”

33

Counsel for Richard made her second and third

Wheeler

motions in response to the prosecutor’s use of peremptory challenges to two Hispanic prospective jurors, N.L. and C.R., and only counsel for Spradlin joined in the motions. At a hearing on these two motions, the trial court found a prima facie case as to N.L. and C.R., and asked the prosecutor to state his reasons for excusing the two. The prosecutor explained he was using peremptory challenges to excuse some prospective jurors who did not believe strongly in the death penalty, and that his decision was based on a mathematical system of scoring prospective jurors’ answers on the questionnaires to certain death-penalty-related questions. The court denied the

Wheeler

motions as to N.L. and C.R.

Later, when the prosecutor peremptorily challenged a second Black prospective juror, V.J., the trial court conferred with counsel, asking them whether or not if it were to grant defendants’ anticipated

Wheeler

motion, a possible remedy would be to keep V.J. seated on the jury. Counsel informed the court that decisional law required that the entire panel be discharged. Counsel for Richard argued that there was no legitimate basis for excusing V.J. because her questionnaire indicated she was strongly in favor of the death penalty and her answers during voir dire were “extremely forthcoming” and “informative.” Richard’s counsel also noted that the prosecutor had earlier used a peremptory challenge to remove a Black prospective juror (S.A.). Defendant and Spradlin joined in counsel’s arguments.

The trial court found that, in view of the small number of African-Americans on the panel, two excusáis constituted a prima facie showing under Wheeler.

34

The prosecutor responded that he challenged Prospective Juror V.J. because she believed that police lie, and because he felt she was not forthcoming about her knowledge of her husband’s drug case. The court denied the motion.

Next, during voir dire of the prospective alternate jurors, counsel for Spradlin made a

Wheeler

motion when the prosecutor peremptorily challenged G.B., who was Black, and defendant and Richard joined in the

*543

objection. The trial court found no prima facie case of group bias, stating, “There’s simply no pattern or circumstances that create that impression to the court that her race had anything to do with her being challenged or that there is any pattern on the part of the prosecutor to challenging people of the black race.”

2.

Asserted Pretextual Justification for Excusing Prospective Juror V.J.

Defendant contends that the trial court erred in accepting the prosecutor’s justification for his peremptory challenge to Prospective Juror V.J.

Preliminarily, we note defendant did not object below to the prosecutor’s peremptory challenge to Prospective Juror V.J. But he did make arguments objecting to the challenge when codefendant Richard’s motion was heard. We thus conclude the claim is preserved for review but that it lacks merit.

Prospective Juror V.J. noted on her jury questionnaire that she served as the jury foreperson in a criminal trial, that her prior jury experience taught her “things [were not] always like they seem,” that someone close to her had been arrested and the experience was “strange” because she did not realize that everyone lies, and that her husband had been in prison and recently had been the victim of a carjacking. To the question asking whether she knew anyone whom she believed to be a drug addict, she wrote, “personal.” VJ. stated she strongly supported the death penalty. But her views were contradictory: she stated she would automatically vote for life imprisonment without the possibility of parole because she entertained conscientious opinions concerning the death penalty, but also stated she would automatically vote for the death penalty for the same reasons. Additionally, she wrote she had read about this case some time ago, that she would have to check the “scrapbook” her grandmother had made, and that she had no impressions about any of the defendants from what she had read.

During voir dire by the trial court, Prospective Juror V.J. clarified that her prior jury service was not on a criminal case but on a civil case involving a crop duster who accidentally sprayed the wrong crop. When asked about her written comment that things were not always like they seemed, she said that accidents “don’t really mean a lot,” referring to the fact that the crop duster was found liable even though it was an accident. Nevertheless, V.J. said she was satisfied with the outcome of that case.

The trial court also asked several questions concerning Prospective Juror V.J.’s husband. V.J. explained that it was her husband who had been arrested, and that he was ultimately sentenced to prison. And when the court

*544

asked V.J. to whom she was referring when she wrote that she did not realize that everyone lies, she answered: “Everybody. Policemen. I mean, everybody.” But she added: “Can’t judge everybody else by what a few people done

[sic].”

She stated that if she were selected as a juror, she would be able to judge the case on its own merits. She also clarified that, if the defendants in this case were to be found guilty, nothing would cause her to automatically vote for one punishment over another.

Later, counsel for Richard Avila questioned Prospective Juror V.J. The juror acknowledged she indicated on her questionnaire that she strongly supported the death penalty, but stated she had since changed her mind. She no longer had such strong convictions. Nevertheless, she would follow the law even if she personally disagreed with it. And when questioned about her conflicting answers about the death penalty, V.J. said she could keep an open mind and would follow the law.

The court and counsel conducted further voir dire of Prospective Juror V.J. out of the presence of the other prospective jurors. In response to the court’s questioning, V.J. said her brother was a drug addict, but that potential evidence about drug usage or alcohol abuse would not prevent her from being a fair and impartial juror in this case. In response to the prosecutor’s questioning, V.J. also said that her husband had spent three and one-half years in prison on a “drug case.” Although she did not know what type of drug case it had been, her husband told her the police and attorneys treated him with respect during his court appearances. When the prosecutor asked V.J. about her statement in the questionnaire that everyone lies, she explained that in connection with her husband’s drug case, the police had raided her house in her presence, and that, when the case went to trial, the police lied on the stand about how many times they had knocked on her door before entering. She stated: “I just figured with them being policemen, they’re supposed— they’re supposed to uphold the law and they’re supposed to always tell the truth. And sometimes—but they’re human, they make mistakes just like anybody else. Maybe he didn’t intend to tell that lie, but I knew it was a lie because I was there.” Notwithstanding her experiences, she stated she could be fair to all the parties in the case.

As stated, a

Wheeler

motion was made, and the trial court found a prima facie case of group bias.

The prosecutor’s principal reason for exercising a peremptory challenge to Prospective Juror V.J. was her view that the police lie. He explained that he did not want V.J. to “infect the jury with her personal experience.” The prosecutor was also concerned because, although V.J. said she did not know what type of a drug case her husband had been convicted of, he felt she knew

*545

“more than she said” about that case, considering that she had been present at the raid that eventually led to her husband’s arrest and conviction.

When counsel for defendant and Spradlin pointed out that M.Y., a White prospective juror who had been arrested and spent 22 days in jail as a result, remained in the jury box, the prosecutor replied that he intended to exercise a peremptory challenge against her for similar reasons.

35

The trial court ruled that the prosecutor had carried his burden of providing an explanation unrelated to group bias for exercising a peremptory challenge to V.J., noting the significance to all parties of the jurors’ views of law enforcement personnel. The court explained that, although VJ. was very “talkative” and “expressive” during voir dire, she was the only prospective juror thus far who had a personal experience with police lying. The court expressly did not base its ruling on VJ.’s stated lack of knowledge about the type of drug case her husband had been involved in, explaining that the prosecutor’s question on that point might have been ambiguous.

Defendant argues that the prosecutor’s challenge to Prospective Juror VJ. was based on group bias because members of racial minority groups are generally arrested more often and on less evidence than White individuals and thus tend to distrust police officers more than others. He further argues that the prosecutor made no attempt to show that V.J.’s belief “would translate into some type of specific bias that would cause her to acquit an accused double murderer even if the prosecution proved he was guilty.” We disagree and conclude the record does not establish that the prosecutor’s justification for excusal was pretextual.

36

The prosecutor’s challenge to VJ. was based on her

personal experience

that police officers lied, not on a theoretical perception that she, a member of a minority group, might view the police with distrust. It was apparent that the prosecutor was concerned about this circumstance, as he probed VJ. on her husband’s criminal history involving drugs and specifically questioned her about her statement that everyone, including the police, lies. The trial court here made a sincere and reasoned effort to evaluate the prosecutor’s justifications for excusing VJ., and its ruling is supported by substantial evidence.

Defendant further contends that the assertedly pretextual nature of the prosecutor’s excusal of Prospective Juror VJ. is demonstrated by a comparison of her voir dire answers with those of two nonchallenged and seated

*546

jurors, B.B. and D.W. Defendant did not engage in a comparative juror analysis of these particular jurors in the trial court.

In earlier cases, we have declined to engage in comparative juror analysis for the first time on appeal, stating that such an analysis was unreliable in evaluating the prosecutor’s justifications for excusing minority prospective jurors.

(People

v.

Box, supra,

23 Cal.4th at p. 1190 ;

People v. Ervin

(2000) 22 Cal.4th 48, 76 [ 91 Cal.Rptr.2d 623 , 990 P.2d 506 ];

People v. Johnson

(1989) 47 Cal.3d 1194, 1220-1221 [ 255 Cal.Rptr. 569 , 767 P.2d 1047 ].) Defendant urges us to reconsider this position in light of the United States Supreme Court’s decision in

Miller-El v. Dretke

(2005) 545 U.S. 231 [ 162 L.Ed.2d 196 , 125 S.Ct. 2317 ]

(Miller-El),

in which comparative juror analysis was employed, albeit not on direct appeal.

In

Miller-El,

the

United

States Supreme Court held that, in the context of a challenge of a Black prospective juror, the defendant had established purposeful discrimination under

Batson

and was entitled to relief on that ground in federal habeas corpus proceedings ( 28 U.S.C. § 2254 ).

(Miller-El, supra,

545 U.S. at p. 266 [ 125 S.Ct. at p. 2340 ].) In so holding, the high court observed: “If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at

Batson’s

third step.”

(Id.

at p. 241 [125 S.Ct. at p. 2325].)

Preliminarily, defendant argues that comparative juror analysis was employed in the trial court because the prosecutor used a numerical scoring system, in which he compared jurors to each other. We disagree. The prosecutor’s system of scoring to which defendant refers produced a numerical score for each prospective juror based on his or her own answers to certain death-penalty-related questions on the questionnaire. Thus the scores attributed to particular prospective jurors were not dependent on the scores of others.

37

Moreover, irrespective of the prosecutor’s use of a numerical scoring system, defendant did not argue at trial that White jurors who were scored as less acceptable than Black jurors were nevertheless retained, and he likewise fails to articulate such an argument on appeal.

Assuming without deciding that comparative juror analysis for the first time on appeal must be undertaken under the circumstances presented, we conclude defendant’s proffered analysis fails to demonstrate purposeful discrimination.

*547

Defendant urges that the prosecutor’s proffered reason for striking Prospective Juror VJ.—negative experience with law enforcement—applied equally to Prospective Juror B.B., who was White, but that the prosecutor nevertheless permitted B.B. to sit on the jury. Initially, we note that defendant’s premise is incorrect: the prosecutor’s proffered reason for striking VJ. was not simply because she had a general negative experience with law enforcement but because she had a personal experience with the police that led her to question the veracity of police officers.

In any event, a side-by-side comparison of Prospective Juror VJ. and Juror B.B. reveals that they were not “similarly situated.”

(Miller-El, supra,

545 U.S. at p. 247, fn. 6 [125 S.Ct. at p. 2329, fn. 6].) B.B. revealed that her brother recently had been arrested on a traffic warrant, and that she believed the sheer number of officers involved in that incident—six police officers in three patrol cars—was unwarranted. B.B. did not witness her brother’s arrest. B.B. also revealed that her brother-in-law, a convicted felon at the time she married her husband, was arrested for bank robbery a few years thereafter. B.B. was not involved in the prosecution of any of her brother-in-law’s cases, and she had no opinion on how he was treated in the criminal court system. According to her brother-in-law, he had been treated well. Thus, B.B. herself did not have any negative experience with the police, much less an experience that caused her to form a negative opinion about their veracity.

Defendant also argues that the prosecutor’s justification for excusing Prospective Juror VJ. must have been pretextual because Juror D.W. was similarly situated to V.J. but nevertheless was allowed to serve on the jury. We disagree. Even if the prosecutor’s justification for striking VJ. applied to D.W., that is not evidence tending to prove purposeful discrimination, for D.W. was Black. (See

Miller-El, supra,

545 U.S. at p. 241 [ 125 S.Ct. at p. 2325 ].) In fact, review of D.W.’s voir dire provides further evidence that the prosecutor’s justification for excusing VJ. was

not

based on racial bias.

At the time of voir dire, Juror D.W. had an aunt who was employed by the sheriff’s department, and D.W. herself was awaiting a response from the sheriff’s department about her recent interview for an identification technician position. She also knew others who were in law enforcement or worked in the legal system. When D.W. was 15 years old, her uncle was arrested in her presence. Although her uncle was convicted in a Fresno court of an unidentified crime and sent to prison, he was later found to be innocent and released. D.W. believed her uncle had been treated unfairly but did not blame anyone for the situation. When the prosecutor asked D.W. whether she could be fair to the prosecution in this case, given her belief that her uncle had been treated unfairly in a Fresno case, the juror answered in the affirmative. Unlike Prospective Juror V.J., D.W. did not have an experience with police officers

*548

lying. And also unlike V.J., although the prosecutor was concerned about D.W.’s views concerning a relative’s arrest and conviction, he was apparently satisfied with her answers.

Accordingly, side-by-side comparisons of Jurors B.B. and D.W. with Prospective Juror VJ. support the trial court’s ruling that no purposeful discrimination occurred.

3.

Excusal of Prospective Juror S.A.

a.

Failure to Seek Reasons for Excusal

Defendant contends that, once the trial court ruled he had made a prima facie showing of group bias regarding the prosecutor’s use of a peremptory challenge against Prospective Juror V.J., who was Black, it was required to seek the prosecutor’s reasons for using a peremptory challenge against S.A., who was also Black, notwithstanding the court’s earlier ruling that no prima facie showing of group bias had been made as to S.A.

As stated, defendant did not object to S.A.’s excusal or otherwise join in codefendant Richard’s objection to her excusal. We nevertheless reach the merits of the claim because defendant argues that the trial court had a sua sponte duty to reexamine S.A.’s excusal once it found a prima facie case of group bias as to V.J., and defendant effectively preserved the issue of VJ.’s excusal.

This case raises the following question: Once a trial court finds a prima facie case of group bias as to the excusal of one prospective juror, must it require the prosecutor to provide race-neutral explanations for all challenges made thus far to the members of the group in question, including those the court had ruled upon earlier? One Court of Appeal decision,

People v. McGee

(2002) 104 Cal.App.4th 559 [ 128 Cal.Rptr.2d 309 ]

(McGee),

addressed this question and answered in the affirmative. As we will explain, we disagree with the Court of Appeal and answer in the negative.

A defendant may make out a prima facie case of group bias in jury selection by showing that “the totality of the relevant facts gives rise to an inference of discriminatory purpose.”

(Batson, supra,

476 U.S. at p. 94 .) The high court recently reaffirmed this principle, stating that a defendant makes out a prima facie case of group bias when he produces “evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.”

(Johnson v. California, supra,

545 U.S. at p. 170 [ 125 S.Ct. at p. 2417 ].) The defendant “ultimately carries the ‘burden of persuasion’ to ‘ “prove the existence of purposeful discrimination.” ’ ”

(Id,

at p. 171.)

*549

In

McGee ,

the Court of Appeal characterized

Wheeler

motions as challenging “the selection of a jury, not the rejection of an individual juror;

the issue is whether a pattern of systematic exclusion

exists.”

(McGee, supra,

104 Cal.App.4th at p. 570 , italics added.) Accordingly, it held that once the trial court has found a prima facie case of group bias in the excusal of one prospective juror, the burden shifts to the prosecutor to provide race-neutral explanations for all challenges to prospective jurors who are members of the same group.

(Ibid.)

The premise of the Court of Appeal’s analysis in

McGee ,

however, is incorrect. When a party makes a

Wheeler

motion, the issue is not whether there is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias.

(Wheeler, supra,

22 Cal.3d at p. 280 .) Although the

McGee

court relied on

People v. Gore

(1993) 18 Cal.App.4th 692 [ 22 Cal.Rptr.2d 435 ], another Court of Appeal decision, the

Gore

decision did not frame the issue in this manner.

Gore

merely recognized, correctly, that a “pattern of systematic exclusion” of a particular cognizable group from the venire raises an inference of purposeful discrimination, and that when such systematic exclusion occurs, everyone (the defendant, the excluded jurors, and the community) is harmed “because the public confidence in the fairness of our system of justice is undermined.”

38

(People v. Gore, supra,

18 Cal.App.4th at pp. 705, 700; see

Batson, supra,

476 U.S. at p. 94 [“[p]roof of systematic exclusion from the venire raises an inference of purposeful discrimination because the ‘result bespeaks discrimination’ ”].) Of course, a single discriminatory exclusion may also violate a defendant’s right to a representative jury.

(People v. Fuentes

(1991) 54 Cal.3d 707, 716, fn. 4 [ 286 Cal.Rptr. 792 , 818 P.2d 75 ]; see also

Johnson v. California, supra,

545 U.S. at p. 169, fn. 5 [125 S.Ct. at p. 2417, fn. 5];

Batson, supra,

at p. 95.)

As will be discussed, we hold that, when a trial court determines that the defendant has made a prima facie showing that a particular prospective juror has been challenged because of such bias, it need not ask the prosecutor to justify his or her challenges to other prospective jurors of the same group for which the

Batson/Wheeler

motion has been denied. Accordingly,

*550

we disapprove of

People v. McGee, supra,

104 Cal.App.4th 559 , to the extent it is inconsistent with this holding.

People v. Gore, supra,

18 Cal.App.4th 692 , provides little guidance on this issue. In

Gore ,

during jury selection, the defendant did not make any

Wheeler

objections to the prosecutor’s exercise of peremptory challenges to four Hispanic prospective jurors, and the jury was sworn. Later, when the prosecutor used his first three peremptory challenges to the only three Hispanic prospective alternate jurors called to the jury box, the defendant finally made a

Wheeler

objection. The defendant argued that the prosecutor was systematically excluding Hispanic jurors, listing the seven Hispanic jurors who had been excused. The trial court limited the defendant’s arguments to the three Hispanic prospective alternate jurors, finding the

Wheeler

objection untimely as to the first four Hispanic prospective jurors because the jury had been sworn. The court then found a prima facie case of group bias as to the three Hispanic prospective alternate jurors, although it ultimately concluded the prosecutor’s reasons for their excusáis were unrelated to group bias.

(Id.

at pp. 697-699.) The Court of Appeal held that the trial court should not have barred the defendant from objecting to the dismissal of the first four Hispanic jurors on a

procedural

finding of untimeliness, given that “the pattern of challenging Hispanic prospective jurors permeated the selection of the 12 jurors and alternates” and the

Wheeler

objection was brought before jury selection was complete.

(Id.

at p. 705.)

Gore

has little application to

McGee ,

where the trial court declined to inquire about the prosecutor’s reasons based on a

substantive

finding that there was no prima facie showing. In other words, the issue raised in McGee—whether the prosecutor must explain earlier challenges that did not create a prima facie showing of group bias once the court finds a presumption of group bias as to a later challenge—was not before the

Gore

court.

In

People

v.

Fuentes, supra,

54 Cal.3d 707 , the defendant made several

Wheeler

motions in response to the prosecutor’s use of peremptory challenges to Black prospective jurors, the first after the prosecutor excused four Black prospective jurors. The trial court asked the prosecutor for an explanation, but the prosecutor was not prepared to give one. Accordingly, the court reserved its ruling on the motions and indicated it would note which prospective jurors were Black, and that it would have the prosecutor’s reasons before trial commenced. After the prosecutor excused three more Black. prospective jurors, the defendant objected, and the court stated it “would ‘consider [counsel’s objection] a continuing motion.’ ”

(Id.

at p. 712.) In total, the prosecutor excused 14 Black prospective jurors, 10 during the selection of the trial jurors and four during the ensuing selection of alternates. At the conclusion of voir dire, the prosecutor made an attempt to explain his challenges. The court ruled that the defendant had failed to make a prima

*551

facie showing, but it nevertheless examined the prosecutor’s purported reasons for excusing a total of 14 Black prospective jurors, ruling on the challenged jurors as a group.

(Id.

at pp. 712-713.) We concluded that the court made an implied finding of a prima facie showing of group bias, and that it violated the defendant’s constitutional right to trial by a jury drawn from a representative cross-section of the community (Cal. Const., art. I, § 16) by failing to carefully evaluate the prosecutor’s explanations.

(People

v.

Fuentes, supra,

54 Cal.3d at p. 710 .) In so concluding, we noted that “every questioned peremptory challenge must be justified.”

(Id.

at p. 715.)

The

McGee

court cited our language in

Fuentes

that “every questioned peremptory challenge must be justified”

(People v. Fuentes, supra,

54 Cal.3d at p. 715 ) in support of its holding. But the

McGee

court read our holding too broadly. Unlike in

McGee ,

the

Wheeler

objection in

Fuentes

was a continuing one, and thus the court’s implied finding of a prima facie showing of group bias applied to all the identified Black prospective jurors. Also unlike in

McGee ,

the trial court in

Fuentes

did not initially deny the defendant’s earlier

Wheeler

motions only to revisit its rulings at the end of voir dire. Accordingly, the point in

McGee ,

that later excusáis can undermine earlier findings of no prima facie showing of group bias, is unsupported.

Admittedly, a prosecutor’s use of peremptory challenges to several prospective jurors in a particular racial or ethnic group may appear more suspect than if he or she exercised merely one. Accordingly, even if a defendant’s

Batson/Wheeler

motion pertaining to the first prospective juror of a particular cognizable group excused is denied for a lack of a prima facie showing, he is likely to make one or more subsequent

Batson/Wheeler

motions after a prosecutor peremptorily challenges several more prospective jurors of that same group. And if a trial court finds a prima facie showing of group bias at a later point in voir dire, the court need only ask the prosecutor to explain “each suspect excusal.”

(People

v.

Arias

(1996) 13 Cal.4th 92, 135 [ 51 Cal.Rptr.2d 770 , 913 P.2d 980 ].) Each suspect excusal includes the excusáis to which the defendant is objecting and which the court has not yet reviewed.

We addressed the converse situation in

People v. Alvarez

(1996) 14 Cal.4th 155 [ 58 Cal.Rptr.2d 385 , 926 P.2d 365 ]

(Alvarez).

There, the defendant made a

Batson/Wheeler

motion after the prosecutor challenged seven African-American and Latino prospective jurors. The trial court found a prima facie case of group bias, and the prosecutor satisfactorily explained his reasons. The defendant made a subsequent motion after the prosecutor challenged another African-American prospective juror, and the court denied the motion after determining that he had not made a prima facie showing of group bias.

(Id.

at pp. 194—195.) On appeal, the defendant argued that the court’s determination he had made a prima facie showing of group bias as to

*552

his first

Batson/Wheeler

motion extended to his subsequent motion. We disagreed and explained that the presumption that a prosecutor uses his peremptory challenges in a constitutional manner is “suspended when the defendant makes a prima facie showing of the presence of purposeful discrimination” but “reinstated . . . when the prosecutor makes a showing of its absence.”

(Id.

at p. 199.) Thus, on a later motion, the defendant must make a prima facie showing anew.

(Id.

at p. 199; see also

People v. Irvin

(1996) 46 Cal.App.4th 1340, 1351 [ 54 Cal.Rptr.2d 450 ] [“Although

Wheeler

motions may be made seriatim, each

Wheeler

motion is itself separate and discrete and is resolved definitively and independently of each other”].)

McGee ,

which fails to acknowledge our decision in

Alvarez ,

is inconsistent with the premise that each

Wheeler

objection is a discrete event and should be resolved independently of each such motion.

Applying these principles to the record before us, we conclude that the trial court was not required to ask the prosecutor to provide race-neutral explanations for excusing Prospective Juror S.A. because the only suspect excusal before the court was that of VJ. It is true that defendant noted VJ. was the second Black prospective juror peremptorily challenged and the court likewise noted that, in view of the small number of African-Americans on the panel, two excusáis constituted a prima facie showing, both alluding to the earlier excusal of S.A. But the earlier excusal of S.A. was merely a part of the totality of the relevant facts to be considered in determining a prima facie case of group bias on the

Wheeler

objection, which was made as to VJ. only.

Although we hold that the court has no sua sponte duty to revisit earlier

Batson/Wheeler

challenges that it had previously denied, upon request it may appropriately do so when the prosecutor’s subsequent challenge to a juror of a protected class casts the prosecutor’s earlier challenges of the jurors of that same protected class in a new light, such that it gives rise to a prima facie showing of group bias as to those earlier jurors. But the burden is on the party making the later motion to so clarify, for that party ultimately has the burden of proof. (See, e.g.,

People v. Panah

(2005) 35 Cal.4th 395, 423 [ 25 Cal.Rptr.3d 672 , 107 P.3d 790 ] [defendant bears the burden of establishing that denial of a continuance request was an abuse of discretion];

People v. Navarette

(2003) 30 Cal.4th 458, 484 [ 133 Cal.Rptr.2d 89 , 66 P.3d 1182 ] [defendant bears the burden of proof on his motion for a change of venue];

People

v.

Kraft

(2000) 23 Cal.4th 978, 1030 [ 99 Cal.Rptr.2d 1 , 5 P.3d 68 ] [the party seeking severance has the burden to clearly establish there is a substantial danger of prejudice requiring that charges be separately tried].) Defendant did not do so here.

*553

b.

Trial Court’s Assessment of Prima Facie Showing of Group Bias

Alternatively, defendant contends that, when the trial court addressed the

Wheeler

motion as to Prospective Juror S.A., it might have applied the wrong standard in assessing whether a prima facie showing of group bias had been made, and thus might have erred in denying the motion.

As stated, Richard made a

Wheeler

motion when the prosecutor excused Prospective Juror S.A., and defendant did not join the motion. Accordingly, he failed to preserve this issue for appeal. (See

People v. Coffman and Marlow

(2004) 34 Cal.4th 1, 48 [ 17 Cal.Rptr.3d 710 , 96 P.3d 30 ].) The issue is without merit in any event.

Wheeler

states that, to make a prima facie case of group bias, the objecting party must show “a strong likelihood” of bias

(Wheeler, supra,

22 Cal.3d at p. 280 ), and the trial court must determine “whether a reasonable inference arises that peremptory challenges are being used on the ground of group bias alone”

(id.

at p. 281). In

People v. Johnson

(2003) 30 Cal.4th 1302 [ 1 Cal.Rptr.3d 1 , 71 P.3d 270 ], we held that

“Wheeler’s

terms ‘strong likelihood’ and ‘reasonable inference’ state the same standard”

(id.

at p. 1313), and that

Wheeler’s

standard, which has always been compatible with

Batson,

means that to state a prima facie case the objecting party must show that “it is more likely than not the other party’s peremptory challenges, if unexplained, were based on impermissible group bias”

(id.

at p. 1318). The high court recently held that our “ ‘more likely than not’ standard is an inappropriate yardstick by which to measure the sufficiency of a prima facie case.”

(Johnson

v.

California, supra,

545 U.S. at p. 168 [ 125 S.Ct. at p. 2416 ]). Instead, the objecting party “satisfies the requirements of

Batson’s

first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.”

(Id.

at p. 170 [125 S.Ct. at p. 2417].) Proof of a pattern or practice is not required because “ ‘ “a single invidiously discriminatory governmental act is not immunized by the absence of such discrimination in the making of other comparable decisions.” ’ ”

(Johnson

v.

California, supra,

545 U.S. at p. 169, fn. 5 [125 S.Ct. at p. 2416, fn. 5].)

The trial court here did not articulate the standard it used in ruling that no prima facie case of group bias had been shown as to the excusal of Prospective Juror S.A. The court, however, noted that “no pattern” had been established, and when Richard asserted there need not be more than one excusal for the court to find a violation, it disagreed, stating case law indicated there must be a “pattern or a prima facie case.” Although there is no indication that the court applied a standard other than that articulated in

*554

Batson,

because the court appeared to have been under the impression that only a pattern of discrimination, revealed in multiple excusáis, would suffice to make a prima facie showing, we will assume, arguendo, that the court’s decision is not entitled to deference. Instead, we are able to apply the high court’s standard articulated in

Johnson v. California, supra,

545 U.S. 162 , and “resolve the

legal

question whether the record supports an inference that the prosecutor excused a juror on the basis of race.”

(People v. Cornwell

(2005) 37 Cal.4th 50, 73 [ 33 Cal.Rptr.3d 1 , 117 P.3d 622 ].) As we will explain, the record does not support such an inference.

At trial, Richard Avila relied on the following facts that he claimed raised an inference of group bias: Prospective Juror S.A. was the only individual out of her group of 24 called to the box who was Black; the prosecutor did not ask S.A. any questions; and S.A.’s answers to the questionnaire and the court’s questioning were evenhanded.

On her written questionnaire, S.A. wrote that she had served as a juror in a criminal case, and that the experience had left her with “mixed feelings.” This experience nevertheless gave S.A. an impression that the judicial system “overall . . . runs well,” but when asked whether she had any unpleasant memories of the trial in which she served as a juror, she answered, “I just wonder sometimes if I made a difference.” S.A. also wrote that she had a relative who had been arrested for manslaughter, and that the experience for her was “devastating.” She indicated she would consider the death penalty, although she had no opinion on whether the death penalty was used too often, not often enough, or too randomly. She had no opinion on life imprisonment without possibility of parole.

During oral voir dire, when the trial court inquired about her “mixed feelings” about her previous jury duty experience, S.A. explained that she had learned that the defense counsel had wanted her as a juror because he believed that, as a member of a minority group, she would “hold out longer than anybody else.” Nevertheless, she did not believe her previous jury experience would “carry over” into her consideration of this case. S.A. also explained that it was her brother who had been arrested and convicted for manslaughter. But she also said she believed her brother had been fairly treated by the criminal justice system, and nothing about her brother’s experience would affect her ability to be fair and impartial in this case.

In sum, Prospective Juror S.A.’s written answers to the questionnaire and her responses during oral voir dire disclosed a number of “reasons other than racial bias for

any

prosecutor to challenge her”

(People v. Cornwell, supra,

37 Cal.4th at p. 70), including but not limited to her personal experience as a trial juror and experience with her brother’s involvement in the criminal

*555

justice system, notwithstanding S.A’s assurances that her prior experiences would not carry over to this case if she were chosen as a juror. (See, e.g.,

People v. Farnam

(2002) 28 Cal.4th 107, 138 [ 121 Cal.Rptr.2d 106 , 47 P.3d 988 ] [“close relative’s adversary contact with the criminal justice system” is one ground upon which the prosecutor might reasonably have challenged prospective jurors].) Moreover, although S.A. might have been the only Black individual in her group of 24 called to the box, at the time S.A. was challenged, several Black prospective jurors remained on the panel. The record thus does not support an inference that the prosecutor excused S.A. on the basis of race.

4.

Excusal of Prospective Juror G.B.

Defendant contends the trial court either used an incorrect standard or abused its discretion in determining that a prima facie case of group bias had not been established as to the excusal of Prospective Juror G.B. Assuming without deciding that the court’s decision is not entitled to deference (see

ante,

pt. II.C.3.b.), we are able to resolve the legal question whether the record supports an inference that the prosecutor excused G.B. on the basis of group bias. We conclude the record does not support such an inference.

Prospective Alternate Juror G.B., who identified herself as Black, indicated in the written questionnaire that she was a psychiatric nurse, had a degree in psychology, and valued the opinions of psychologists or psychiatrists most of the time, as she worked closely with them in her job as a nurse in a psychiatric ward. She had had an unpleasant experience with a law enforcement officer. G.B. also did not strongly support the death penalty. On her written questionnaire, G.B. indicated she would consider the death penalty and wrote: “[E]ach circumstance is individual to me.” She had no opinion on whether the death penalty was used too often, not often enough, or too randomly. She “[s]omewhat” agreed with the statement that any person who intentionally kills another person, except in cases of self-defense or defense of another, deserved the death penalty, and she was neutral on whether convicted murders should be swiftly executed once they were convicted. She did not believe in the adage “An eye for an eye.”

Although G.B. had given the issue of the death penalty “much thought prior to being called as a prospective juror on this case,” she did not answer the question on the questionnaire asking whether, regardless of the evidence and because of her conscientious objections to the death penalty, she would in every case automatically vote for life imprisonment without the possibility of parole.

39

Some of G.B.’s answers on the questionnaire also were not fully

*556

and directly responsive to the questions. For example, although G.B. indicated that her opinion on the death penalty had changed over the years, when asked to explain how and why it changed, she answered in general terms, “Its

[sic]

a moral issue and depends on where you are in your own life at the time you are thinking about it.” Similarly, on the question asking about her general feelings regarding life imprisonment without parole, G.B. wrote, “Is there rehabilitation would be my question.” Thus, based on the questionnaire as a whole, there were many reasons other than racial bias for any prosecutor to challenge her, including but not limited to her negative experience with a law enforcement officer, her background as a nurse in a psychiatric ward where she worked closely with and valued the opinions of psychologists and psychiatrists, and her nonresponsive answers to some questions about penalty in this case.

G.B.’s responses to oral voir dire further support this view. At one point, the prosecutor asked G.B. whether she could apply the beyond-a-reasonable-doubt standard in the guilt phase of trial, regardless of her thoughts on penalty, and G.B. answered yes. When the prosecutor further asked, “[I]s there a subjective side to that answer,” G.B. answered, “You’re asking me to follow the law, and I said yes, I can follow the law. My—my answer would be yes.” G.B. further stated that she did not have any “subjective” feelings as of that point but that, as human beings, everyone had a subjective side. The suggestion of tension between counsel and the juror is one good reason for any prosecutor to challenge her.

Moreover, when G.B. was excused, W.H., who was Black, remained as a prospective alternate juror and eventually served as a juror for the guilt and penalty phases. (See

People v. Cornwell, supra,

37 Cal.4th at pp. 69-70 [evidence that the prosecutor challenged one of two African-American prospective jurors is insufficient to establish a prima facie showing, particularly in view of the circumstance that the other African-American prospective juror ultimately sat on the jury].) After examining the totality of the relevant facts, we conclude that the record fails to support an inference that the prosecutor excused G.B. on the basis of race.

Defendant argues, however, that because the trial court had found a prima facie showing in an earlier

Wheeler

motion responding to the prosecutor’s use of a peremptory challenge to Prospective Juror V.J., he was not required to make a prima facie showing in a subsequent motion objecting to the prosecutor’s use of a peremptory challenge to Prospective Juror G.B. We disagree. A prima facie showing at one point in the proceedings does not require a statement of reasons for excusal of all subsequent members of the same cognizable group.

( Alvarez, supra,

14 Cal.4th at pp. 198-199.) In any case, as discussed, the record does not support an inference of discriminatory purpose.

*557

5.

Excusal of Prospective Jurors A.R. and R.P.

The prosecutor also exercised peremptoiy challenges against Prospective Jurors A.R. and R.P. Defendant contends the prosecutor improperly excused these individuals, both Hispanic, solely on the ground of group bias, and that the trial court erred in failing to rule on his

Wheeler

motion pertaining to them.

No one objected on

Wheeler

grounds to the prosecutor’s use of peremptory challenges against A.R. and R.P. During the hearing on the

Wheeler

motion as to Prospective Juror G.B., however, counsel for defendant noted that A.R., a death penalty advocate, had been excused, and that there was “some question” about R.P. but that he indicated he could be fair and follow the law. He argued that G.B. exhibited no biases and concluded: “Given the circumstances, I believe that a

Wheeler

motion is present and that a new jury should be impaneled.”

Defendant argues the above statements about A.R. and R.P. constituted a timely

Wheeler

motion objectioning to their excusal, and that the trial court erred in failing to address it. We disagree. Defense counsel’s brief comments regarding their excusal came in the context of arguing that G.B. had been improperly excused based on group bias, and we do not construe counsel’s comments as a

Wheeler

objection regarding the excusal of A.R. and R.P. Accordingly, he failed to preserve this claim for appeal. (See, e.g.,

People

v.

Stankewitz

(1990) 51 Cal.3d 72, 105 [ 270 Cal.Rptr. 817 , 793 P.2d 23 ].)

D.

Use of Peremptory Challenges to Eliminate Those Who Did Not Strongly Support the Death Penalty

Defendant contends that the prosecutor’s use of peremptory challenges to eliminate four prospective jurors who did not wholeheartedly support the death penalty violated the principles set forth in

Witherspoon v. Illinois, supra,

391 U.S. 510 , and his federal constitutional rights to due process under the Fifth and Fourteenth Amendments, a fundamentally fair trial by an impartial jury under the Fifth, Sixth, and Fourteenth Amendments, and a reliable judgment under the Eighth Amendment.

During voir dire, the prosecutor peremptorily challenged Prospective Jurors N.L., C.R., J.E., and S.H. Counsel for Richard Avila objected to each challenge on

Wheeler

grounds, noting that these prospective jurors were Hispanic. Defendant joined in counsel’s motions as to J.E. and S.H. but not as to N.L. or C.R. The court denied the motions.

Defendant did not object below to the prosecutor’s use of peremptory challenges to N.L. and C.R. And, as to J.E. and S.H., defendant objected on

*558

the ground of

Wheeler

only. Accordingly, defendant has failed to preserve the issue for appeal. (See

People v. Box, supra,

23 Cal.4th at p. 1187.) The issue is without merit in any event.

In

Witherspoon v. Illinois, supra,

391 U.S. at page 522 , the United States Supreme Court held that “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Defendant acknowledges that the high court has since held that a prospective juror may be excluded for cause because of his or her views on capital punishment if those views would prevent or substantially impair the performance of his or her duties as a juror (see

Wainwright v. Witt, supra,

469 U.S. at p. 424 ), but maintains that the rationale of

Witherspoon

is sound and should be extended to situations where venirepersons are peremptorily challenged because of their views on the death penalty. In support, he cites a federal district court case that held it was unconstitutional for prosecutors to use peremptory challenges consistently to exclude potential jurors who express reservations about the death penalty. (See

Brown v. Rice

(W.D.N.C. 1988) 693 F.Supp. 381, 393 .) But as defendant acknowledges,

Brown

v.

Rice

was reversed on this point on appeal. (See

Brown v. Dixon

(4th Cir. 1989) 891 F.2d 490, 498, fn. 15 [declining to hold that

Witherspoon

was “a command liberally to examine the exercise of the peremptory challenge”].) We decline to extend

Witherspoon

in this manner.

Moreover, in

People v. Turner

(1984) 37 Cal.3d 302, 315 [ 208 Cal.Rptr. 196 , 690 P.2d 669 ], overruled on another ground in

People

v.

Anderson

(1987) 43 Cal.3d 1104, 1115 [ 240 Cal.Rptr. 585 , 742 P.2d 1306 ], we held, inter alia, that there was no “constitutional infirmity in permitting peremptory challenges by both sides on the basis of specific juror attitudes on the death penalty.” We have consistently adhered to this view. (See, e.g.,

People

v.

Brown

(2004) 33 Cal.4th 382, 403 [ 15 Cal.Rptr.3d 624 , 93 P.3d 244 ];

People

v.

Burgener, supra,

29 Cal.4th at p. 864;

People

v.

Cox

(1991) 53 Cal.3d 618, 648-649 [ 280 Cal.Rptr. 692 , 809 P.2d 351 ].) Defendant argues that we should reexamine

Turner .

He does not persuade us to do so.

Alternatively, defendant argues

Turner

is inapplicable because that case “expressly relied on the presumption that each side had an equal number of challenges, so the final result would still be fair.” But defendant’s argument here is not that he had an unequal number of peremptory challenges. Rather, he argues that, because the majority of the jury panel called to service in his case consisted of those who strongly favored the death penalty, exercising an equal number of peremptory challenges in his case resulted in a jury heavily favoring the death penalty. But as we said in

Turner .

“We recognize that a

*559

jury shorn of significant community viewpoints on an issue in the case is not ideally suited to the ‘purpose and functioning of a jury in a criminal trial.’ [Citation.] That, however, is a result inherent in the parties’ historic and important right to exclude a limited number of jurors for fear of bias.”

(People v. Turner, supra,

37 Cal.3d at p. 315 .) Defendant’s objection to the use of peremptory challenges to prospective jurors who did not wholeheartedly support the death penalty must fail.

E.

Individual Death-qualification Voir Dire

Defendant contends that the trial court erred in failing to conduct individual death-qualification voir dire, thereby violating his federal constitutional rights to a fair trial by an impartial jury, to due process, and to a reliable judgment under the Fifth, Sixth, Eighth, and Fourteenth Amendments.

In

Hovey v. Superior Court

(1980) 28 Cal.3d 1, 80 [ 168 Cal.Rptr. 128 , 616 P.2d 1301 ], we stated that, to minimize the potentially prejudicial effects of voir dire conducted in open court, in future capital cases, the portion of the voir dire of each prospective juror involving death qualification should be done individually and in sequestration. Our holding in

Hovey

has been abrogated by Code of Civil Procedure section 223, as added in 1990 by Proposition 115.

(People v. Vieira (2005) 35

Cal.4th 264, 288 [ 25 Cal.Rptr.3d 337 , 106 P.3d 990 ].) Code of Civil Procedure section 223 provides, in pertinent part: “Voir dire of any prospective jurors shall, where practicable, occur in the presence of the other jurors in all criminal cases, including death penalty cases.” Because defendant’s trial occurred after section 223 of the Code of Civil Procedure was enacted, that section governs here.

Notwithstanding Code of Civil Procedure section 223, defendant contends that the trial court’s failure to hold individual voir dire as set forth in

Hovey

violated his federal constitutional rights. We disagree. We adopted the rule in

Hovey

pursuant to our supervisory authority over California criminal procedure and not under constitutional compulsion.

(People v. Anderson, supra,

43 Cal.3d at p. 1135 ; accord,

People v. Vieira, supra,

35 Cal.4th at p. 287.) Code of Civil Procedure section 223 was intended to overrule Hovey’s holding that individual sequestered voir dire is required during death qualification

(People v. Vieira, supra,

35 Cal.4th at p. 288;

People v. Waidla

(2000) 22 Cal.4th 690, 713-714 [ 94 Cal.Rptr.2d 396 , 996 P.2d 46 ]), and defendant cites no authority in support of his argument that sequestered voir dire is constitutionally compelled.

In the alternative, defendant contends the trial court abused its discretion in conducting group death-qualification voir dire. We disagree. Although the

*560

court denied defense requests to conduct the entire death-qualification voir dire individually, it allowed for “some private sequestered voir dire as to some jurors because of some information they have about the case or for some other reason.” The court clearly recognized its obligation to comply with section 223 of the Code of Civil Procedure. Defendant fails to convince us that the court’s procedure on this matter constituted an abuse of discretion or violated the federal Constitution.

III. GUILT PHASE ISSUES

A.

Asserted Trial Court Errors Involving Accomplice Testimony and Related Instructions

1.

Richard Avila

Defendant contends the trial court erred in refusing to instruct the jury that the testimony of codefendant Richard Avila required corroboration under section lili

40

and should be viewed with caution, and further erred in forbidding counsel to refer to Richard as an accomplice during argument. He claims these errors violated his federal constitutional rights to a fair trial, to due process, and to present a defense, as protected by the Fifth, Sixth, and Fourteenth Amendments, and to a reliable judgment under the Eighth and Fourteenth Amendments.

During a conference on jury instructions, defendant questioned whether, by virtue of Richard’s status as a codefendant, his testimony could be considered independent evidence to corroborate other accomplices’ testimony. He argued the court should instruct the jury to determine whether Richard was an accomplice, and the court agreed.

When defendant requested that Richard’s name be inserted into the instruction on whether a witness is an accomplice (CALJIC No. 3.19), Richard objected. The prosecutor suggested a separate instruction be formulated so as

*561

not to confuse the jury about the burden of proof necessary to find Richard guilty. Defendant agreed, and the court asked him to draft the instruction.

41

Richard objected, arguing that a cautionary instruction telling the jury to view his testimony with distrust would be highly prejudicial to him. The trial court wondered whether, if an accomplice instruction identifying a testifying codefendant were not given, the other two codefendants (defendant and Spradlin) nevertheless would get the benefit of a general accomplice instruction that precluded the prosecution from obtaining a conviction based on the uncorroborated testimony of a testifying codefendant. The prosecutor responded that Richard’s testimony should be viewed like that of any other witness as against himself, but by the rules of accomplice testimony as against his codefendants. After further discussion, the court concluded that the law precluded an accomplice instruction in this case, and that Richard’s credibility should be judged by the same standards as that of any other witness.

Shortly before the start of closing arguments, the trial court instructed all counsel to refrain from referring to Richard Avila as an accomplice, but permitted counsel to refer to Richard’s involvement in the crimes based on the evidence. It concluded: “So I’m instructing all counsel not to refer to Richard Avila as an accomplice and not to make any argument which infers or argues that his testimony because he is an accomplice must be corroborated under the law, because I have ruled that it does not have to be corroborated.”

We have discussed in several cases the issue of how the jury should be instructed to view the testimony of an accomplice who is also one of multiple defendants in a single criminal trial. In

People

v.

Hill

(1967) 66 Cal.2d 536 [ 58 Cal.Rptr. 340 , 426 P.2d 908 ], where a confessing codefendant was an accomplice as a matter of law, we held the trial court did not err in leaving to the jury the determination of his role as an accomplice, thus avoiding imputations of guilt of the other two codefendants which might have flowed from the court’s direction that the confessing codefendant was an accomplice as a matter of law.

(Id.

at p. 556.) In

People

v.

Terry

(1970) 2

*562

Cal.3d 362 [ 85 Cal.Rptr. 409 , 466 P.2d 961 ]

(Terry),

overruled on another point in

People

v.

Carpenter

(1997) 15 Cal.4th 312, 381-382 [ 63 Cal.Rptr.2d 1 , 935 P.2d 708 ], we held that, generally, instructions on accomplice testimony must be given on the court’s own motion only when the accomplice witness is called by the prosecution or when a defendant, in testifying, implicates his codefendant while confessing his own guilt. But “where a defendant testifies in his own behalf and denies guilt while incriminating a codefendant, it is at most for the discretion of the trial judge whether to give accomplice testimony instructions on his own motion.”

(Terry,

at p. 399.)

After the trial in this case, we decided

Alvarez, supra,

14 Cal.4th 155 . There, we held the trial court did not err in giving accomplice instructions, where two codefendants each testified in his or her own behalf, denied guilt, and incriminated the other to some extent. We explained that the testimony of an accomplice who testifies against a defendant deserves “close scrutiny” because “he has the motive, opportunity, and means to attempt to help himself at the other’s expense,” and that this rationale “remains true when the accomplice who testifies against a defendant is himself a defendant.”

(Id.

at p. 218.)

Similarly, in

People

v.

Box, supra,

23 Cal.4th 1153

(Box),

we held the trial court should have instructed the jury that codefendant Flores’s testimony should be viewed with care and caution to the extent it tended to incriminate the defendant. Just as in the case of an accomplice who testifies for the prosecution, Flores’s testimony in his own defense was subject to the taint of an improper motive—promoting his own interest by inculpating the defendant. Accordingly, we held there was no persuasive reason not to require an instruction that an accomplice’s testimony should be viewed with care and caution when requested by a defendant in a case where the codefendant testified.

(Id.

at p. 1209.)

Thus, decisional law existing at the time of trial recognized it was within the trial court’s discretion not to give accomplice instructions with respect to Richard’s testimony. But

Alvarez

and

Box

make clear that a trial court should instruct the jury that, to the extent a codefendant’s testimony tends to incriminate a defendant, it should be viewed with care and caution and is subject to the corroboration requirement. We need not decide, however, whether the court erred because any error in this regard was nonprejudicial.

A trial court’s failure to instruct on accomplice liability under section 1111 is harmless if there is “sufficient corroborating evidence in the record.”

(People v. Lewis

(2001) 26 Cal.4th 334, 370 [ 110 Cal.Rptr.2d 272 , 28 P.3d 34 ].) To corroborate the testimony of an accomplice, the prosecution must present “independent evidence,” that is, evidence that “tends to connect the

*563

defendant with the crime charged” without aid or assistance from the accomplice’s testimony.

(People v. Perry

(1972) 7 Cal.3d 756, 769 [ 103 Cal.Rptr. 161 , 499 P.2d 129 ].) Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime.

(Ibid,.;

accord,

People v. Lewis, supra,

26 Cal.4th at p. 370 .) “ ‘[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.’ [Citation.]”

(People v. Perry, supra,

7 Cal.3d at p. 769 .)

Here, Richard Avila’s testimony was sufficiently corroborated by independent evidence. When defendant was interviewed after his arrest, he initially denied being at a party, denied knowing anyone living on North Hayes, denied knowing Medina or Jeffrey Spradlin, and claimed he had not seen his cousin, Richard Avila, in years. Defendant’s initial attempt to conceal from the police his involvement in the activities culminating in the murders implied consciousness of guilt constituting corroborating evidence. (See

People v. Perry, supra,

7 Cal.3d at p. 772 [attempts of an accused to conceal his identity or his whereabouts may warrant an inference of consciousness of guilt and may corroborate an accomplice’s testimony]; see also, e.g.,

People

v.

Garrison

(1989) 47 Cal.3d 746, 773 [ 254 Cal.Rptr. 257 , 765 P.2d 419 ] [“evidence of flight supports an inference of consciousness of guilt and constitutes an implied admission which may properly be considered as corroborative of an accomplice’s testimony”].) Defendant eventually admitted he brought Medina and Sanchez to the party. He also admitted that he might have been inside the car in which the victims were taken to their deaths and that his saliva might be found on Sanchez. Michael Ramirez also implied that defendant was present during the discussion of what was to be done with Medina and Sanchez shortly before they were taken away from the property.

42

(See, e.g.,

People v. Hathcock

(1973) 8 Cal.3d 599, 618 [ 105 Cal.Rptr. 540 , 504 P.2d 476 ] [corroborating evidence included testimony that defendant was in the presence of the two victims shortly before their deaths].) In sum, the evidence adduced at trial sufficiently corroborated Richard’s testimony.

*564

2.

Frank Rodriguez and Michael Rojas

During a conference outside the presence of the jury on the applicability of accomplice instructions, defendant argued that Ray Juarez, Frank Rodriguez, and Michael Rojas were all accomplices as a matter of law. The prosecutor argued that only Juarez was an accomplice as a matter of law. The trial court ruled that Juarez was an accomplice as a matter of law but that the jury should determine whether Rodriguez and Rojas were accomplices. The court gave the following instructions relevant to accomplice testimony: CALJIC No. 3.10 (accomplice defined); CALJIC No. 3.11 (testimony of accomplice must be corroborated); CALJIC No. 3.12 (sufficiency of evidence to corroborate an accomplice); CALJIC No. 3.13 (one accomplice may not corroborate another); CALJIC No. 3.14 (criminal intent necessary to make one an accomplice); CALJIC No. 3.18 (testimony of accomplice to be viewed with distrust); and CALJIC No. 3.19 (burden to prove corroborating witness is an accomplice).

Defendant contends the trial court erred in not ruling that Rodriguez and Rojas were accomplices as a matter of law and in failing to so instruct the jury, in violation of section 1111 and his federal constitutional rights to a fair trial, to due process, and to present a defense protected by the Fifth, Sixth, and Fourteenth Amendments, and a reliable judgment under the Eighth and Fourteenth Amendments.

An accomplice is “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (§ 1111.) To be so chargeable, the witness must be a principal under section 31. That section defines principals as “[a]ll persons concerned in the commission of a crime, whether . . . they directly commit the act constituting the offense, or aid and abet in its commission . . . .” (§31.) An aider and abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense. Like a conspirator, an aider and abettor is guilty not only of the offense he intended to encourage or facilitate, but also of any reasonably foreseeable offense committed by the perpetrator he aids and abets.

(People

v.

Hayes

(1999) 21 Cal.4th 1211,1271 , fns. 19 & 20 [ 91 Cal.Rptr.2d 211 , 989 P.2d 645 ].)

*565

Whether a person is an accomplice within the meaning of section 1111 is a factual question for the jury to determine in all cases unless “ ‘there is no dispute as to either the facts or the inferences to be drawn therefrom.’ [Citation.]”

(People v. Hayes, supra,

21 Cal.4th at p. 1271 .) Thus, a trial court can determine “as a matter of law whether a witness is or is not an accomplice only when the facts regarding the witness’s criminal culpability are ‘clear and undisputed.’ [Citations.]”

(People

v.

Williams

(1997) 16 Cal.4th 635, 679 [ 66 Cal.Rptr.2d 573 , 941 P.2d 752 ].)

As we explain below, the trial court correctly declined to instruct the jury that Rodriguez and Rojas were accomplices.

There was no evidence that Rodriguez actually shot and killed either Medina or Sanchez. And although it was undisputed that he rode in the car with the victims to the canal bank, there was evidence he did not do so voluntarily.

43

Thus, Rodriguez’s status as an accomplice turns on whether, as a conspirator or an aider or abettor, he was aware that Medina and Sanchez were to be killed or was engaged in any other crime the foreseeable result of which might be murder. (See, e.g.,

People v. Hayes, supra,

21 Cal.4th at p. 1271 .)

Circumstantial evidence showed that Rodriguez was an accomplice to the murders. For example, as stated, Juarez testified that Rodriguez was armed when he got in the car with Medina and Sanchez. And Rodriguez himself testified that he thought the women might be killed. Such evidence, however, does not compel the conclusion that he was an accomplice. Because the record does not dictate the conclusion that Rodriguez aided defendant and Spradlin knowing their homicidal intent, the court did not err in determining that he was not an accomplice as a matter of law.

For the first time on appeal, defendant argues Rodriguez was an accomplice in the murders because he was engaged, as a conspirator or an aider and abettor, in kidnapping Medina and Sanchez, and the foreseeable result of the kidnapping was murder. The prosecution, however, did not contend that Medina and Sanchez were kidnapped, much less that the foreseeable result of the kidnapping was murder.

44

In any event, given the evidence that Rodriguez

*566

did not have the intent to encourage or facilitate the commission of any particular offense when he got in the car with Medina and Sanchez, the record does not compel such a conclusion.

As for Michael Rojas, strong circumstantial evidence suggested he was an accomplice to both Medina’s rape and the murders. Juarez, Rodriguez, and Ramirez all testified they saw Rojas assault Medina while she was being gang raped in the Wilderness trailer and later overheard him say that Medina and Sanchez must be “taken care of’ or killed because they knew too much. Richard also testified that he saw Rojas assault Medina in the Wilderness trailer and saw him in the car that took Medina and Sanchez away from the North Hayes property to their deaths.

Rojas himself, however, denied any involvement in Medina’s rape and in the murders. Defendant claims Rojas was an accomplice as a matter of law because his testimony contradicted that of prosecution and defense witnesses and was “inherently unbelievable.” In particular, defendant notes Rojas denied raping Spring, contrary to other witnesses’ testimony. Arguing it would be impossible to believe that someone who took a leading role in Spring’s rape did not likewise take such a role in a similar rape of Medina, defendant contends Rojas must have lied about his involvement in Spring’s rape (for which he was given immunity from prosecution on the condition that he testify truthfully in the present case) so that he could deny involvement in Medina’s rape (for which he was not given immunity from prosecution). But such a contention is speculative.

Further, citing

People v. Johnson

(1980) 26 Cal.3d 557, 578 [ 162 Cal.Rptr. 431 , 606 P.2d 738 ], defendant concludes that the trial court erred in ruling that Rojas’s accomplice status was a jury question because his self-serving testimony did not amount to evidence that was reasonable, credible, or of solid value. But we have found no case that has applied the reasoning of

Johnson,

which involved the standard of review of a claim of sufficiency of the evidence to support a conviction, to a case involving asserted trial court error in failing to declare a witness an accomplice as a matter of law. “It is axiomatic that cases are not authority for propositions not considered.”

(People

v.

Ault

(2004) 33 Cal.4th 1250, 1268, fn. 10 [ 17 Cal.Rptr.3d 302 , 95 P.3d 523 ].)

Thus, although circumstantial evidence indicated Rojas was an accomplice in Medina’s rape and in the murders, such evidence did not compel a conclusion that he was an accomplice, in light of his denial of involvement in

*567

those crimes. Accordingly, the trial court did not err in ruling that Rojas’s accomplice status was a jury question.

3.

Instructional Errors

Assuming that the accomplice status of Frank Rodriguez and Michael Rojas was for the jury, defendant contends the instructions on this issue were incomplete. Specifically, defendant contends that the trial court should have instructed the jury, sua sponte, that Rodriguez could be considered an accomplice to murder if it found he aided and abetted a kidnapping, based on the natural and probable consequences doctrine, and that Rojas likewise could be considered an accomplice if it found he aided and abetted a rape, also based on that doctrine. Defendant contends the court’s errors lightened the prosecution’s burden of proof in violation of his federal constitutional rights to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments, and a reliable judgment under the Eighth Amendment.

A trial court “must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial.”

(People

v.

Ervin, supra,

22 Cal.4th at p. 90.) When the evidence at trial would warrant the jury’s concluding that a particular witness was a defendant’s accomplice in the crime or crimes for which the defendant is on trial, the court must instruct the jury to determine whether the witness was an accomplice.

(People v. Hayes, supra,

21 Cal.4th at pp. 1270-1271.)

At common law, a person who encouraged or facilitated the commission of a crime could be held criminally liable for the crime he encouraged or facilitated, as well as for “any other offense that was a ‘natural and probable consequence’ of the crime aided and abetted.”

(People v. Prettyman

(1996) 14 Cal.4th 248, 260 [ 58 Cal.Rptr.2d 827 , 926 P.2d 1013 ].) The natural and probable consequences doctrine is based on the recognition that those who aid and abet should be responsible for the harm they have naturally, probably, and foreseeably put in motion.

(Ibid.)

When the prosecution relies on the natural and probable consequences doctrine to hold a defendant liable as an aider and abettor, the trial court has a sua sponte duty to identify and describe any potential target offense or offenses allegedly aided and abetted by the defendant, because such instructions are “ ‘general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case.’ ”

(Id.

at p. 264.)

*568

Although the holding in

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