People v. Lewis

75 Cal.Rptr.3d 588 (2008)

181 P.3d 947

The PEOPLE, Plaintiff and Respondent,

v.

John Irvin LEWIS II, Defendant and Appellant.

No. S031603.

Supreme Court of California.

April 28, 2008.

*604 Lynne S. Coffin and Michael J. Hersek, State Public Defenders, under appointment by the Supreme Court, and Kathleen M. Scheidel, Assistant State Public Defender, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanka, Assistant Attorney General, Keith H. Borjon, John R. Gorey, Sharlene A. Honnaka and Deborah J. Chuang, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

A jury found defendant John Irvin Lewis II [1] guilty of the first degree murder (Pen.Code, § 187; further undesignated statutory references are to the Penal Code) and robbery (§ 211) of Jose Avina and Agustine Ramirez and of the first degree murder, robbery, kidnapping for robbery (§ 209, subd. (b)), and kidnapping (§ 207, subd. (a)) of Willie Sams, Elizabeth Nisbet, and Shirley Denogean. As to each of the five murders, the jury found true special circumstances of murder by means of lying in wait (§ 190.2, former subd. (a)(15)), and murder during the commission of robbery (§ 190.2, former subd. (a)(17)(i) [now subd. (a)(17)(A)]). The jury found true special circumstances of murder during the commission of a kidnapping or kidnapping for robbery (§ 190.2, former subd. (a)(17)(ii) [now subd. (a)(17)(B)]) for the Sams, Nisbet, and Denogean murders, and it found true a multiple-murder special circumstance (§ 190.2, subd. (a)(3)).

The jury also found defendant guilty of the robbery, kidnapping for robbery, and kidnapping of Eugene Valdez, Juan Rios, and Sonia Aguirre; one count of receiving stolen property (§ 496, former subd. (1) [now subd. (a) ]); and one count of conspiracy (§ 182, subd. (a)(1)). The jury found that defendant had personally used a firearm (§ 12022.5, subd. (a)) during each of the murders, robberies, kidnappings for robbery, and kidnappings.

After a penalty phase, the jury fixed defendant's penalty at death for each of the murders. The trial court denied defendant's automatic motion to modify the verdicts (§ 190.4, subd. (e)) and imposed death sentences for those counts. The court imposed prison terms for the other counts and enhancements, stayed pending imposition of the death penalty.

*605 This case is before us on defendant's automatic appeal. (§ 1239, subd. (b).) For the reasons set forth below, we vacate the lying-in-wait special-circumstance findings related to victims Avina, Sams, Nisbet, and Denogean; reverse defendant's six convictions for simple kidnapping (counts 7, 12, 13, 17, 21, and 25); modify the judgment to reflect a single sentence for conspiracy (count 27); and order stayed the sentences for the conspiracy conviction in count 27 and for the robbery convictions in counts 5, 8, 9, 15, 19, and 2. Otherwise, we affirm the judgment, including the sentence of death.

I. FACTUAL BACKGROUND

During July and August 1991, defendant and codefendants Robbin Monique Machuca, Vincent Gerald Hubbard, and Eileen Marie Huber engaged in a crime spree in Los Angeles County involving the robberies, kidnappings, and/or murders of eight separate victims, Defendant was linked to the crimes by eyewitness accounts, automated teller machine (ATM) photographs, fingerprints, ballistics and other forensic evidence, and defendant's statements to police. Defendant his three codefendants were tried together. [2]

A. Guilt Phase

1. Prosecutions's case-in-chief

Viewed in the light favorable to the judgment ( People v. Posey (2004) 32 Cal.4th 193, 201 , 8r.3d 551, 82 P.3d 755 ; People v. Neal (2003) 31 Cal.4th 63, 69 , 1 Cal.Rptr.3d 650 , 72 P.3d 280 ), the evidence at trial established the following. [3] In July and August 1991, defendant was living in apartment E of the Woodside Village Apartments in West Covina with codefendants Huber (defendant's girlfriend), Machuca (defendant's half sister), and Hubbard (Machuca's boyfriend).

a. Robbery and murder of Jose Avina (counts 1 & 2)

About 10:00 p.m. on July 5, 1991, in Monrovia, defendant was riding in codefendant Huber's car, following Derrick Colbert (defendant's brother-in-law) and Timmy Lane, who were in Lane's car. Lane's car bumped a red truck driven by Jose Avina, who pulled over and stopped. Defendant approached Avina and demanded the keys to the truck. Defendant then shot Avina once in the head with a 12gauge sawed-off shotgun. The truck rolled onto a lawn in front of an apartment complex. Defendant pulled Avina's body from the truck, jumped into the driver's seat, and drove to Baldwin Park, where defendant and his companions removed stereo equipment from the truck. Defendant then drove the truck to Pomona and abandoned it. Defendant later put an amplifier from the truck into his own car, a brown 1983 Oldsmobile Cutlass.

Avina died from a shotgun blast to the left side of his face, which obliterated most *606 of the left temporal and occipital lobes of his brain. Several copper-coated pellets or fragments were removed from his head.

b. Robbery and murder of Agustine Ramirez (counts 3 & 4)

Agustine Ramirez owned the Magic Mushroom restaurant in West Covina. His wife, Linda Ramirez, worked with him at the restaurant. Linda was friends with Sylvia Medina, who lived with her daughter Barbara Espinoza in apartment A of the Woodside Village Apartments, where defendant and his three codefendants were occupying apartment E. During July and August of 1991, Espinoza went on a few dates with defendant. One evening in early or mid-July, 1991, codefendant Machuca accompanied Sylvia Medina to the Magic Mushroom, where she stayed for over an hour.

On the morning of August 3, 1991, Agustine and Linda Ramirez drove to the restaurant in separate cars. About midnight, they decided to go home. Agustine walked Linda to her car in the alley behind the restaurant, then began walking to his car. Linda started her car and turned on the headlights. When Agustine was about 15 feet from Linda, a car occupied by defendant and driven by another person drove up to Agustine and stopped, blocking his way. Agustine talked to defendant. Linda noticed that defendant was holding an 18-inch shotgun. As Linda struggled to get out of her car, defendant shot Agustine once in the abdomen, then was driven away.

Agustine Ramirez was taken to a hospital, where he died from a single gunshot wound to his left abdomen. Stippling around the wound and on his left forearm indicated the shot was fired from a distance of about two feet. Thirteen copper-coated double-aught shotgun pellets were removed from his body. The next morning, five of Ramirez's credit cards were found near a dumpster on the grounds of the Edgewood Middle School in West Covina.

c. Kidnapping and robbery of Eugene Valdez (counts 5, 6 & 7)

Eugene Valdez worked as a salesman for a car dealership in the City of Industry. In late July or early August, 1991, Valdez bought a brown 1983 Oldsmobile Cutlass from the dealership. About 9:00 p.m. on August 9, 1991, Valdez left the dealership driving the Cutlass to return to his home in Victorville, about 70 miles away. After driving about 30 minutes, Valdez became sleepy and decided to stop and rest. He piled into a restaurant parking lot, shut off the engine, locked the doors, and fell asleep.

About two hours later, Valdez awoke to find defendant and codefendant Hubbard banging on the car and yelling for him to open the door. They held a sawed-off shotgun between them. The two men forced Valdez to lie facedown on the back-seat. Hubbard top of Valdez's legs, holding the shot against Valdez's neck. Defendant sat in the driver's seat, chose a music station radio, and began driving.

As they were driving, Hubbard threatened several times to kill Valdez, but defendant urged him not to, saying, "Don't do it, we can use the car." Hubbard also asked defendant, "Why are you going this way?" Deferred, "I can get there just as fast." Hubbard hit Valdez with his fists, spit on him, and demanded his valuables and credit cards. Valdez surrendered his money, billfold, and watch.

Some 30 minutes later, Valdez felt the car climbing mountains. The car then pulled into a turnout near the Morris Dam, about 10 miles north of West Covina. Defendant and Hubbard got out of the car and order to get out as well. *607 Valdez noticed that a second car occupied by a woman had pulled up beside his car.

The men ordered Valdez to walk toward the edge of the turnout, where the land dropped off steeply. Hubbard still held the shotgun. As Valdez walked toward the edge, he heard one man say to the other, "You shoot the mother fucker." Fearing he would be killed, Valdez threw himself over the precipice. As he did so, he heard a clicking sound as if a shotgun had misfired.

Valdez tumbled about 150 feet down a steep incline. He remained at the bottom of the slope for several minutes. When he was sure the kidnappers had left the area, he climbed up the slope and flagged down a passing motorist, who took him to a phone to call the police.

Defendant removed the front fenders, front grille and bumper, hood, and left rear taillight assembly from Valdez's car and installed them on his own brown 1983 Cutlass. He also put the battery, tires, car radio, and speaker covers from Valdez's car in or on his car. Defendant then abandoned Valdez's car in Baldwin Park, where it was found about six days after the kidnapping. Defendant's car still had the installed parts from Valdez's car when a Los Angeles County Sheriffs detective examined it on September 3, 1991, at an auto body shop in Rosemead to which it had recently been towed.

d. Thefts from, Gary Huber (count 26)

Codefendant Huber's father, Gary Huber, lived in Baldwin Park. On the morning of August 13, 1991, Gary left home with codefendant Huber and her brother to drive to Pismo Beach. When he returned the next day, the house had been broken into and ransacked. Several firearms were missing, including five rifles of various types, a Ruger .357 Magnum handgun, and a .38-caliber Smith & Wesson handgun. Also missing were two boxes of ammunition, a gun case, two holsters, a bayonet, and a survival knife.

e. Kidnapping and robbery of Juan Rios and Sonia Aguirre (counts 8, 9, 10, 11, 12 & 13)

About 10:00 p.m. on August 14, 1991, Juan Rios, accompanied by his fiancee Sonia Aguirre, pulled Aguirre's car up to the drive-through ATM at a Security Pacific Bank in West Covina. As Rios was inserting his bank card into the ATM, a man ran up to the driver's side of the car, pointed a gun at him, and ordered him to take as much money as possible out of the ATM or be shot. At the same time, another man approached the passenger side window and pointed a gun at Aguirre, demanding that she hand over her diamond engagement ring. She did so. Rios tried several times to withdraw money, but the ATM was not functioning. One of the men, whom Rios and Aguirre later identified as defendant, got in the backseat behind Rios. The other man, whom Rios and Aguirre identified as codefendant Hubbard, got in next to defendant, behind Aguirre. Rios drove to the front of the bank while defendant held a gun to the back of his head. Defendant ordered Rios to go to the walk-up ATM and withdraw $200, threatening to shoot Aguirre or Rios if Rios "tried anything." Rios complied. When Rios returned to the car, defendant was in the driver's seat. Rios got in and gave the men the $200. Rios also surrendered his watch, gold chain, and ring. When Hubbard asked defendant what they were going to do, defendant said, "I have a plan."

Defendant began to drive. Defendant and Hubbard assured Rios and Aguirre that they would not be harmed because they were cooperating. About three miles from the Security Pacific Bank, defendant pulled over and let Rios and Aguirre out of *608 the car, telling them not to "try anything" or they would be killed. Rios and Aguirre walked to a nearby store and called the police.

Police located Aguirre's car early the next morning in a shopping center parking lot across the street from the bank where Rios and Aguirre had first been accosted. Fingerprints lifted from the outside of the car on the driver's side matched defendant's prints.

f. Kidnapping, robbery, and murder of Willie Sams (counts U, 15, 16 &17)

About 9:30 p.m. on August 18, 1991, Willie Sams drove his car to the same Security Pacific Bank from which Rios and Aguirre had been abducted on August 14. From a gas station across the street, defendant saw Sams drive up to the drive-through ATM machine. Defendant and codefendant Hubbard approached Sams's car and got in. Pointing the Ruger handgun at Sams, defendant forced him to withdraw $200 from that ATM machine and then to drive to another Security Pacific Bank and withdraw another $600.

Defendant drove Sams to Edgewood Middle School, the same school where Agustine Ramirez's credit cards had been found in early August. Defendant and Hubbard forced Sams to get into the dumpster near the baseball field. Defendant and Hubbard each fired several shots at Sams, killing him. Defendant later removed the radio from Sams's car, attempted to wipe his fingerprints off the car, and abandoned the car in a shopping center parking lot.

Shortly after 11:00 p.m., West Covina police officers found Sams's body. Several copper-jacketed bullets or bullet fragments were recovered from the dumpster.

A couple of hours later, at 1:07 a.m., $60 was withdrawn from Sams's bank account using an ATM machine.

On August 19, 1991, codefendants Hubbard and Machuca attempted to use Sams's credit card to purchase about $700 worth of clothing from a store in El Monte. When the attempted purchase was denied, Hubbard and Machuca hurriedly left the store.

Sams's car, minus its radio, was recovered two days later in the shopping center parking lot. Fingerprints on the car and on papers found in the car matched defendant's prints. Machuca's prints were found on papers in the car.

Sams died of gunshot wounds to his head, trunk, and legs. One wound perforated his heart; several others were potentially fatal. Four shots entered the right side of the body and traveled to the left, while three shots entered the left side and traveled to the right, indicating the shots were fired from two sources. Three bullets were removed from Sams's body.

A criminalist compared the bullets and bullet fragments recovered from Sams's body and from the dumpster in which he was found with bullets test-fired from the Ruger and Smith & Wesson handguns stolen from Gary Huber, codefendant Huber's father. He concluded that the bullets removed from Sams's body and one bullet fragment from the dumpster could have been fired from the Smith & Wesson, and that three bullet fragments found in the dumpster were fired from the Ruger.

g. Kidnapping, robbery, and murder of Elizabeth Nisbet (counts 18, 19, 20 & 21)

Around 11:30 a.m. on August 24, 1991, Neil Nisbet and his wife Elizabeth drove their car to the Puente Hills Mall. Elizabeth was wearing or carrying several items of jewelry, including a gold ring with 17 diamonds, a gold bangle bracelet, and a gold rope chain bracelet. Elizabeth waited in the car while Neil entered the mall to *609 run an errand. When Neil returned about 10 minutes later, the car and Elizabeth were gone. Neil searched for Elizabeth for several hours and then called the police.

Meanwhile, defendant, codefendant Machuca, and possibly one or more other codefendants arrived at the Puente Hills Mall in codefendant Huber's car, parked, and saw Elizabeth Nisbet in her car. Defendant forced his way into the car and pointed his gun at Nisbet. One or more of the codefendants bound Nisbet's hands and feet with duct tape. Defendant drove the Nisbets' car to the Covina branch of First Interstate Bank, where he and codefendant Machuca used Nisbet's ATM card to withdraw $400. Defendant then drove to a convenience store in Covina, where an additional $100 was withdrawn from Nisbet's account through an ATM machine. Defendant then drove north on the 605 freeway, followed by codefendant Huber's car. After stopping along the side of the freeway, defendant shot and killed Nisbet. Defendant or one of his codefendants removed Nisbet's jewelry, and they departed in Huber's car.

About 3:10 p.m. that same day, California Highway Patrol officers found the Nisbets' car on the northbound 605 freeway. Elizabeth Nisbet's body was under a blanket on the rear floorboards. The body was not yet cold.

Elizabeth Nisbet had a gunshot wound to her left temple, which caused her death, and there were several gunshot wounds to her left arm and hand. She had a large blunt force trauma injury between her eyes, lacerations on her cheeks and lips, blackened eyes, and bruises on her wrists and hands. Holes in the blanket covering her indicated shots were fired through the blanket. Fragments of duct tape were attached to her socks and to her right forearm, and a twisted ring of duct tape was found underneath her body at approximately waist level. Three bullets were recovered from various locations inside the car.

Several fingerprints lifted from the Nisbets' car and from an ATM receipt found in the car matched defendant's fingerprints. A forensic scientist from the Los Angeles County Sheriffs Department determined that the duct tape used to bind Elizabeth Nisbet's feet came from a roll of tape that was recovered from a nightstand in the bedroom of apartment E in West Covina after defendant's arrest.

Two bullet fragments were removed from Nisbet's brain and two from her forearm. A criminalist concluded that the Smith & Wesson revolver stolen from Gary Huber could have fired the bullets removed from Nisbet's body as well as three bullets recovered from the Nisbets' car.

h. Kidnapping, robbery, and murder of Shirley Denogean (counts 22, 23, 2h & 25)

Between 12:15 p.m. and 1:00 p.m. on August 27, 1991, Shirley Denogean drove her Mercedes Benz car to the Puente Hills Mall. Meanwhile, defendant, codefendant Huber, and at least one other codefendant drove to the mall. Defendant brought along the Ruger handgun and some plastic ties. Defendant saw Denogean arrive, enter the mall, and return about 20 minutes later. As she was getting into her car, defendant forced his way at gunpoint into the car. One or more of the codefendants tied Denogean's hands in front of her with the plastic ties. Defendant drove Denogean to the First Interstate Bank's City of Industry branch, where $400 was withdrawn from Denogean's account. Defendant then drove Denogean to another branch of the same bank, where Huber withdrew another $100 from Denogean's account. Several unsuccessful attempts to *610 withdraw more money from Denogean's account were made at various ATM machines.

Defendant drove Denogean's car west on the Pomona Freeway, stopping between the Rosemead and San Gabriel Boulevard exits. Codefendant Huber followed in her car. Defendant forced Denogean at gunpoint to walk down an embankment, to an area surrounded by bushes. Once there, defendant fired three shots at Denogean, killing her. Defendant and his codefendants then drove away.

About 12:04 a.m. the next day, $220 was withdrawn from Denogean's bank account through an ATM at a convenience store. Denogean's car was found in El Monte that same day. Fingerprints on the car and on papers found in the car matched defendant's and codefendant Machuca's prints.

Denogean died from two gunshot wounds to her head. Both bullets entered the right side of her head and exited the left side. Gunshot residue around one of the wounds indicated the shot was fired at close range. Denogean also had gunshot wounds to her left hand and to both legs. A criminalist concluded that the bullets removed from Denogean's body and bullets recovered from the scene of her murder were fired from the Ruger handgun stolen from Gary Huber.

i. Arrests and defendant's confessions

Codefendant Huber was arrested about 2:30 a.m. on August 30, 1991. At 3:15 a.m., defendant and codefendants Machuca and Hubbard were arrested at apartment E in West Covina. Gary Huber's Ruger handgun, loaded with bullets bearing defendant's fingerprints, was on the living room floor a few feet from defendant. Gary Huber's loaded Smith & Wesson revolver was found under a child's bed in the bedroom.

Gary Huber's five rifles, rifle case, ammunition clips, and two gun belts were found in various locations in the apartment. His two metal ammunition boxes and his bayonet, as well as a firearm cleaning rod and loose ammunition, were found in the apartment's dishwasher. Several plastic ties of the kind used to bind murder victim Shirley Denogean's wrists were found in the dishwasher and in the hall closet. The roll of duct tape that had been used to bind murder victim Elizabeth Nisbet was found inside the nightstand in the bedroom. An unexploded triple-aught shotgun shell was found in a patch of ivy outside the front door. Gary Huber's black survival knife was found in codefendant Eileen Huber's car.

The search also revealed several items of the victims' property, including Denogean's white purse, credit card, camera, and diamond engagement and wedding ring set, and the radio from murder victim Willie Sams's car. At the time of her arrest, codefendant Machuca was wearing several pieces of murder victim Elizabeth Nisbet's jewelry.

After his arrest, defendant made four statements to law enforcement officers in which he admitted killing Avina, Sams, Nisbet, and Denogean. Defendant denied kidnapping Valdez. Regarding the Avina killing, defendant claimed that he was headed to a party with Lane and Colbert when Lane's car accidentally bumped Avina's truck after Avina stopped suddenly; that Avina then argued with Lane and Colbert, saying, "I should blow your Black ass away, fucking nigger"; and that when defendant approached the truck, Avina reached down to grab a gun, at which point defendant shot him in the face. Defendant said he used double-aught buck ammunition because when he was growing up his stepfather told him, "If you ever buy a shotgun and you want some shit that *611 will blow a mother fucker's head off, this is what you buy."

Regarding the Sams murder, in addition to recounting the basic facts, defendant said that after getting into the dumpster Sams cried and begged for his life, but defendant shot him five times until he "couldn't shoot no more." Defendant admitted he shot Sams because Sams could identify him, but he also claimed he shot Sams because Sams looked like defendant's abusive stepfather.

Regarding the Nisbet murder, defendant said he originally went to the mall intending to rob a jewelry store, but when he saw Elizabeth Nisbet he decided it would be easier to rob her instead. Defendant said that he stopped at the side of the freeway intending to leave Nisbet there isolated from communication, and that he fired one round near her head to scare her into being quiet. When Nisbet began screaming "Don't kill me" and breaking free from her restraints, defendant shot and killed her.

Regarding the Denogean killing, defendant said that he went to the mall intending to "look at" a jewelry store, but he decided to kidnap Denogean after seeing her. He said that while they were driving on the freeway Denogean said, "Go ahead and kill me now," and attempted to strike defendant and grab his gun. After defendant parked and ordered Denogean to walk down the embankment, she said, "I know you are going to kill me so I might as well start screaming now." Defendant shot Denogean only after she screamed and tried to run away. Defendant admitted he shot Denogean because she could identify him. Defendant said he knew that everything he had done was wrong and that he had to suffer the consequences. He said: "I'm not afraid to die. I don't have nothing to live for."

j. Additional evidence

Laroy Johnson testified that in August 1991 defendant tried to recruit him to commit robberies. Woodside Village Apartments resident Laura Pouncy testified that one day in August 1991 defendant came into her apartment and asked to watch the television news. During a broadcast showing helicopters and a body being brought up, defendant jumped up and ran out of the apartment. He appeared happy, as if "he had just hit a homerun." Defendant once told Pouncy, "When you put a gun in a person's face and they think they are going to die their eyes get real big."

2. Defense case

Edwin Bonilla testified that he was standing in front of the Magic Mushroom restaurant in West Covina on the night its owner Agustine Ramirez was killed. When he heard a shotgun blast, Bonilla looked into the alley and saw a brown station wagon parked with the passenger door open. A Hispanic or light-skinned Black man was walking toward the passenger door. The man appeared to be reloading a shotgun with a pumping action. The shotgun depicted in a photo found in apartment E in West Covina was a break-open shotgun, not a slide or pump-action shotgun. [4] About three weeks before the killing, Ramirez had broken up a fight at the Magic Mushroom restaurant. The participants in the fight had threatened to kill the bartender after she refused to serve them.

Defendant also presented evidence that he was in custody from 11:15 p.m. on July 4,1991, until some time before 6:20 p.m. on July 5, 1991, the day Jose Avina was killed.

Codefendant Huber presented evidence that defendant had been seen chasing her with a gun and shooting at her. A Los *612 Angeles County Sheriffs Department detective testified that Huber said she was afraid of guns, but she continued to "hang[ ] around guns and people that had guns" because "`[i]t is also scary that you are told that if you leave they are going to kill you anyway.'" Codefendants Hubbard and Machuca both presented evidence intended to distance themselves from defendant and the crimes.

3. Prosecution's rebuttal

In response to Edwin Bonilla's testimony, a prosecution witness testified that no shotgun shell was recovered at the scene of Agustine Ramirez's murder.

B. Penalty Phase

1. Prosecution's case in aggravation

In January 1987, defendant tried to force 16-year-old Marlene L. to have sex with him.

The prosecution also presented evidence that in November 1989 defendant and several other men and women were involved in five armed robberies or attempted armed robberies: a robbery of a convenience store in El Monte, during which the clerk was shot in the leg; an attempted robbery at a trailer park in Baldwin Park, during which two people were shot; a robbery of a customer at a gas station in El Monte; an attempted robbery of several customers at a gas station in Baldwin Park, during which two customers were shot; and a robbery at a shopping center in Alta Loma.

On November 24, 1989, when defendant was 19 years old, he was arrested. He was convicted of possessing a sawed-off shotgun and was returned to the California Youth Authority for violating his parole for crimes he had committed as a juvenile. Defendant was confined in the California Youth Authority from November 24, 1989, until June 29, 1991, six days before the murder of Jose Avina.

In June 1992, while defendant was in the county jail awaiting trial, a homemade stabbing instrument known as a "shank" was found in his cell. One day in November 1992, during the trial, a deputy sheriff found an 11-inch-diameter hole in the wall of the courthouse lockup where defendant was placed when not attending proceedings in the courtroom.

Friends and relatives of the five murder victims testified about the impact of the murders on them. A correctional officer testified about prison conditions for persons sentenced to life in prison without possibility of parole.

2. Defense case in mitigation

Defendant's older sister Carmen, social worker Linda Witt, and a family friend testified that defendant's stepfather, Donald Deary, abused the children physically and sexually. Defendant was removed from his mother's home at a young age, and thereafter, when not incarcerated, he lived with Carmen, his older sister Bridgette, or his older brother Darryl. Defendant's mother died in 1983. Bridgette was found dead on the street from a drug overdose a few months before defendant's trial.

Family acquaintance Oma Colbert described defendant as a happy child on the outside but sad on the inside. Defendant missed his parents and seemed to want love and attention. A high school teacher testified defendant was an average student.

Francis Crinella, a psychologist specializing in neuropsychology, testified that defendant's violent behavior, as well as his inability to control himself or his impulses, to organize his behavior, or to consider alternatives, were related to organic brain damage and his chaotic childhood. Dr. Crinella based this opinion on defendant's behavior, his inability to profit from experience, *613 his poor achievement in school, his history of seizures, and neuropsychological test results that were consistent with mild diffuse brain damage.

Defendant had "one of the most extraordinarily chaotic childhoods" Dr. Crinella had ever seen. Defendant was abused sadistically by his stepfather from an early age. He began breaking the law when he was 10 years old. Other members of his family abused drugs. His mother died from an apparent drug overdose when he was 13 years old. His stepfather sexually abused defendant and his sisters. Defendant said he used marijuana soaked in phencyclidine (PCP) and often committed crimes when he was high.

In Dr. Crinella's opinion, defendant was a very fearful person with a "predatory world view[]" and a "limited" "emotional repertoire." He "put[ ] on a show of bravado and toughness" to hide his fear. Defendant believed everyone was "out to get him." He also was very manipulative.

On cross-examination, Dr. Crinella acknowledged that California Youth Authority mental health professionals said defendant did not have brain damage but rather had an antisocial personality disorder. Dr. Crinella also acknowledged that during interviews defendant had said he would kill a guard or other inmates in prison.

II. DISCUSSION

A. Prearraignment Delay

Defendant was arrested around 3:15 a.m. on Friday, August 30, 1991, the beginning of the Labor Day weekend. There was no warrant for defendant's arrest. Defendant was arraigned four days later, on Tuesday, September 3, 1991. During the intervening period, while confined in the West Covina Police Department jail, defendant made several statements. At 9:00 a.m. on August 30, defendant waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (Miranda) and made an initial statement. At 10:15 a.m., defendant made a second statement. At 12:36 p.m., defendant invoked his right to an attorney under Miranda , and questioning ceased. About 4:00 p.m. on Sunday, September 1, more than two days after his arrest, defendant initiated contact with police and made a third statement. At 9:58 p.m., defendant made a fourth and final statement.

Defendant moved to suppress evidence of the statements he made on September 1, 1991, as a violation of his rights under Miranda, supra, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 . At the hearing, defense counsel argued that the statements should be suppressed because defendant was questioned after he expressly asked for an attorney but no attorney was appointed. Counsel pointed out that defendant made the statements only after he "sat in jail for two days after asking for an attorney." Counsel argued that this procedure violated the rule of Edwards v. Arizona (1981) 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 , that the police may not question a suspect who invokes his Miranda , rights unless the suspect initiates the questioning. The trial court denied the motion, observing that the police had no obligation to contact the public defender's office, that normally an attorney is not provided until arraignment, and that defendant simply "didn't wait long enough."

Defendant now contends that the four-day delay between his warrantless arrest and his arraignment before a neutral magistrate violated his right under the Fourth Amendment to the federal Constitution to be free from unreasonable seizures as defined in Gerstein v. Pugh (1975) 420 U.S. 103 , 95 S.Ct. 854 , 43 L.Ed.2d 54 ( Gerstein ), and in County of Riverside v. McLaughlin (1991) 500 U.S. 44 , 111 S.Ct. 1661 , 114 L.Ed.2d 49 ( McLaughlin ), and *614 that his two September 1, 1991, statements to the police should have been suppressed because they were made during an unconstitutional detention. [5]

In Gerstein , the United States Supreme Court held that the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention after a warrantless arrest. ( Gerstein, supra, 420 U. S. at pp. 114, 125-126, 95 S.Ct. 854 .) In McLaughlin , the high court held that a jurisdiction may choose to combine the probable cause determination with other pretrial procedures such as arraignment. A jurisdiction that does so generally will comply with the promptness requirement of Gerstein if it provides the probable cause determination within 48 hours of a warrantless arrest. ( McLaughlin, supra, 500 U.S. at p. 56 , 111 S.Ct. 1661 .) If the delay exceeds 48 hours, the government must show that "a bona fide emergency or other extraordinary circumstance" justified the delay. ( Id. at p. 57, 111 S.Ct. 1661 .) Neither the need to consolidate pretrial proceedings nor intervening weekends constitutes extraordinary circumstances justifying delay of a probable cause hearing beyond 48 hours. ( Ibid.; see also Hallstrom v. City of Garden City (9th Cir.1993) 991 F.2d 1473, 1480 [construing language in McLaughlin regarding "weekends" as meaning weekends or holidays].)

Defendant did not raise a McLaughlin claim at trial. At trial, he raised a very different claim that suppression was warranted because the police had violated his Fifth Amendment right to be left alone after his invocation of Miranda rights until an attorney was appointed. (See Edwards v. Arizona, supra, 451 U.S. at pp. 484-487, 101 S.Ct. 1880 .) The trial court properly rejected that claim because defendant had initiated the contact with police on September 1, 1991. Although defendant argued that the delay in supplying him with an attorney was unreasonable, he did not assert that the failure to provide a judicial determination of probable cause within 48 hours of his arrest violated his Fourth Amendment rights under McLaughlin, supra, 500 U.S. 44 , 111 S.Ct. 1661 , 114 L.Ed.2d 49 . Accordingly, the prosecution never had a chance to justify the delay. Defendant therefore forfeited his McLaughlin claim on appeal. ( People v. Sapp (2003) 31 Cal.4th 240, 270 , 2 Cal. Rptr.3d 554 , 73 P.3d 433 ; People v. Hughes (2002) 27 Cal.4th 287, 325-326 , 116 Cal.Rptr.2d 401 , 39 P.3d 432 ; People v. Twiner (1994) 8 Cal.4th 137, 177 , 32 Cal. Rptr.2d 762 , 878 P.2d 521 .)

Defendant asserts that we may reach the McLaughlin claim because it "`merely restates, under alternative legal principles, a claim otherwise identical to one that was properly preserved by a timely motion that called upon the trial court to consider the same facts and to apply a legal standard similar to that which would also determine the claim raised on appeal.'" ( People v. Partida (2005) 37 Cal.4th 428, 436 , 35 Cal. Rptr.3d 644 , 122 P.3d 765 , quoting People v. Yeoman (2003) 31 Cal.4th 93, 117 , 2 Cal.Rptr.3d 186 , 72 P.3d 1166 ; see also People v. Hines (1997) 15 Cal.4th 997, 1061 , 64 Cal.Rptr.2d 594 , 938 P.2d 388 .) We disagree. The focus of the Edwards claim that defendant raised is whether defendant initiated any questioning that occurred *615 after he invoked his Miranda rights. ( Edwards v. Arizona, supra, 451 U.S. at pp. 484-487, 101 S.Ct. 1880 .) The focus of defendant's McLaughlin claim is the very different inquiry into whether there was an, emergency or other extraordinary circumstance justifying the delayed probable cause hearing. ( McLaughlin, supra, 500 U.S. at p. 57 .) As defendant himself points out, there is no evidence in the record on the latter issue. That is because defendant did not object on Fourth Amendment grounds at trial and thus did not give the prosecution an opportunity to make a record justifying the delay. (See People v. Hughes, supra, 27 Cal.4th at p. 326 , 116 Cal.Rptr.2d 401 , 39 P.3d 432 .)

Defendant argues that his McLaughlin claim should be heard on appeal despite his failure to raise it at trial because the United States Supreme Court has held that McLaughlin is retroactive to cases that were pending on direct review when the decision was announced. ( Powell v. Nevada (1994) 511 U.S. 79, 85 , 114 S.Ct. 1280 , 128 L.Ed.2d 1 ; see also Anderson v. Calderon (9th Cir.2000) 232 F.3d 1053, 1069-1070 .) We disagree. The high court in Powell expressly left open for determination on remand "the consequences of Powell's failure to raise the federal question." ( Powell v. Nevada, supra, 511 U.S. at p. 84 , 114 S.Ct. 1280 .) Moreover, retroactivity analysis is beside the point. The high court decided McLaughlin in May 1991, months before the crimes in this case occurred and over a year before defendant moved to suppress his statements. Under these circumstances, defendant is charged with knowledge of the decision in McLaughlin, supra, 500 U.S. 44 , 111 S.Ct. 1661 , and his failure to raise the claim at trial forfeits it.

B. Change of Venue

Defendant asserts that the trial court's denial of his motion for a change of venue violated state law (§ 1033, subd. (a)) and his rights to due process, a fair trial and an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution and under article I, section 16 of the California Constitution. [6]

Before trial, defendant moved for a change of venue, or in the alternative for countywide jury selection, on the ground that otherwise a fair trial could not be had because of prejudicial pretrial publicity. *616 In support of the motion, the defense submitted copies of local newspaper articles about the crimes and court proceedings, and videotapes of televised news coverage. On September 14, 1992, the court held a lengthy hearing, during which it viewed the videotapes.

After entertaining argument, the trial court denied the motion. It concluded that the news coverage was largely factual rather than inflammatory and that the bulk of it had occurred a year before the hearing on the motion; that the juror questionnaires revealed that although the prospective jurors had general knowledge about the crimes, they were not prejudiced against the defendants; that there was no requirement that the jurors be completely ignorant of the facts of the crimes; and that voir dire would reveal if any particular juror was biased and unable to serve.

Defendant renewed his motion for change of venue several times during the trial. Each time, the trial court denied it for essentially the same reasons it had denied the original motion, except the trial court noted additionally that there was no indication the chosen jurors had prejudged the case.

A trial court must grant a change of venue if "there is a reasonable likelihood that a fair and impartial trial cannot be had in the county" in which the charges were brought. (§ 1033, subd. (a); see Sheppard v. Maxwell (1966) 384 U.S. 333, 362 , 86 S.Ct. 1507 , 16 L.Ed.2d 600 ; People v. Bonin (1988) 46 Cal.3d 659, 672 , 250 Cal.Rptr. 687 , 758 P.2d 1217 , overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823 , 72 Cal.Rptr.2d 656 , 952 P.2d 673 ; Maine v. Superior Court (1968) 68 Cal.2d 375 , 66 Cal.Rptr. 724 , 438 P.2d 372 .) Among the factors the trial court considers in ruling on a motion for change of venue are "`"the nature and gravity of the offense, the size of the community, the status of the defendant, the popularity and prominence of the victim, and of course the nature and extent of the publicity."'" ( People v. Massie (1998) 19 Cal.4th 550, 578 , 79 Cal.Rptr.2d 816 , 967 P.2d 29 ; see also People v. Ramirez (2006) 39 Cal.4th 398, 434 , 46 Cal.Rptr.3d 677 , 139 P.3d 64 .) The ultimate question for the trial court is "whether on the peculiar facts of the individual case [citation] there is a reasonable likelihood that the jurors who will be, or have been, chosen for the defendant's trial have formed such fixed opinions as a result of pretrial publicity that they cannot make the determinations required of them with impartiality." ( People v. Bonin, supra, at pp. 672-673 , 250 Cal.Rptr. 687 , 758 P.2d 1217 .) Defendant, as the moving party, bears the burden of proof. ( Id. at p. 673, 250 Cal.Rptr. 687 , 758 P.2d 1217 .) "A denial of a motion for change of venue will be upheld on appeal unless the record shows both that it was `"reasonably likely [that] a fair trial could not be had at the time the motion was made,"' and that it was "`"reasonably likely a fair trial was not in fact had."'" ( People v. Massie, supra, at p. 578 , 79 Cal.Rptr.2d 816 , 967 P.2d 29 .) "Reasonably likely" in this context means something less than "`"more probable than not,"'" but something more than "merely possible." ( People v. Williams (1989) 48 Cal.3d 1112, 1126 , 259 Cal.Rptr. 473 , 774 P.2d 146 ; see People v. Bonin, supra, at p. 673 , 250 Cal.Rptr. 687 , 758 P.2d 1217 .)

Here, the charges included five counts of first degree murder with special circumstances as well as numerous kidnapping, robbery, and other charges. As in People v. Ramirez, a case involving 12 murders, "[t]he `nature and gravity' of the present offenses could not have been more serious, but this factor alone does not require a change of venue." ( People v. Ramirez, supra, 39 Cal.4th at p. 434 , 46 Cal.Rptr.3d 677 , 139 P.3d 64 .) Further, "[n]either defendant nor the victims were known to the *617 public prior to the crimes and defendant's arrest," so two additional factors—the status of the defendant and the popularity and prominence of the victim—do not support a change of venue. ( Ibid.; see People v. Coffman and Marlow (2004) 34 Cal.4th 1, 46 , 17 Cal.Rptr.3d 710 , 96 P.3d 30 .) Defendant notes that he is Black and that two of his victims—Nisbet and Denogean—were middle-class White women. Defendant's other victims, however, were themselves minorities: Sams was Black, while Avina, Ramirez, Valdez, Rios, and Aguirre apparently were Hispanic. Although some prejudice may have arisen from the racial difference between defendant and seven of the victims, "this element of possible prejudice presumably would follow the case to any other venue." ( People v. Prince (2007) 40 Cal.4th 1179, 1214 , 57 Cal.Rptr.3d 543 , 156 P.3d 1015 ; see also People v. Dennis (1998) 17 Cal.4th 468, 523 , 71 Cal.Rptr.2d 680 , 950 P.2d 1035 .)

We focus our attention, therefore, on the two remaining factors: the size of the community and the nature and extent of the media coverage. First, the crimes occurred in Los Angeles County, "the largest and most populous in California" ( People v. Williams (1997) 16 Cal.4th 635, 655 , 66 Cal.Rptr.2d 573 , 941 P.2d 752 ), a factor that normally would weigh heavily against a change of venue (see ibid.). Without citation to the record, however, defendant contends that the jury selection occurred in the San Gabriel Valley, a "discrete segment" of Los Angeles County, while the Attorney General responds, also without citation to the record, that "the selection of the jury from the area surrounding the Pomona courthouse ... represents a population exceeding that of most counties." Assuming the San Gabriel Valley was the primary source for jurors, that area encompasses several cities, including Covina, West Covina, Baldwin Park, Walnut, and Glendora. Juror questionnaires reveal that potential jurors came from all of these cities and from Pomona, Claremont, La Puente, Duarte, Hacienda Heights, Rowland Heights, La Verne, Diamond Bar, Valinda, and San Dimas. These cities all are part of the greater Los Angeles area, a "`populous metropolitan area'" in which we assume "the `adversities of publicity [were] considerably offset.'" ( People v. Harris (1981) 28 Cal.3d 935, 949 , 171 Cal. Rptr. 679 , 623 P.2d 240 (plur. opn. of Clark, J.).) Under these circumstances, we conclude that defendant failed to meet his burden (see People v. Bonin, supra, 46 Cal.3d at p. 673 , 250 Cal.Rptr. 687 , 758 P.2d 1217 ) of establishing that the small size of the relevant community weighed in favor of a venue change.

Further, this case did not involve the type of political controversy that has justified changes of venue from Los Angeles County in past cases. (See, e.g., Powell v. Superior Court (1991) 232 Cal.App.3d 785, 798-802 , 283 Cal.Rptr. 777 [White police officers charged with videotaped beating of Black motorist Rodney King]; Smith v. Superior Court (1969) 276 Cal.App.2d 145, 148-149 , 80 Cal.Rptr. 693 [bribery and perjury charges against city commissioner].)

The final factor we consider is the extent and nature of the media coverage. The defense presented 39 articles from four newspapers, spanning a period of 13 months from August 1991 through September 1992. The defense also presented approximately 95 minutes of videotaped television coverage. [7] Certainly, the evidence of media coverage was considerably *618 less extensive than in other cases in which we have affirmed denials of motions to change venue. (See, e.g., People v. Prince, supra, 40 Cal.4th at pp. 1210-1214, 57 Cal.Rptr.3d 543 , 156 P.3d 1015 [270 newspaper articles and extensive television coverage]; People v. Ramirez, supra, 39 Cal.4th at p. 434 , 46 Cal.Rptr.3d 677 , 139 P.3d 64 [trial court described media coverage as "`saturation, as much as they possibly can give'"]; People v. Sully (1991) 53 Cal.3d 1195, 1237 , 283 Cal.Rptr. 144 , 812 P.2d 163 [193 newspaper articles, 300 pages of television transcripts, and eight videotapes].)

The nature of the media coverage weighs a bit more in defendant's favor. We agree with the trial court that much of the coverage was "largely factual, and noninflammatory." (See Murphy v. Florida (1975) 421 U.S. 794, 800-801, fn. 4 , 95 S.Ct. 2031 , 44 L.Ed.2d 589 [distinguishing "largely factual publicity from that which is invidious or inflammatory"]; see also id. at p. 802, 95 S.Ct. 2031 .) Nonetheless, many articles and broadcasts used inflammatory terms such as "execution-style," "rampage," "cold-blooded," "spree of terror," and "execution bandits" to describe the crimes and the defendants. The articles and broadcasts emphasized how the crimes had gotten "under the skin" of San Gabriel Valley residents and "reached into the mainstream of suburban life" due to the random selection of victims who were engaged in everyday activities. One article quoted a detective as stating the victims were "all of us."

Additionally, some of the articles and broadcasts revealed facts about the crimes and defendant that were inadmissible against defendant at trial, including defendant's prior incarceration, his gang affiliations, and the content of codefendant Huber's confessions. The articles and broadcasts also revealed potentially prejudicial information, such as defendant's status as a suspect in several other unsolved offenses, and that he had confessed in detail to several of the murders.

On balance, however, we find this factor did not compel a change of venue. Most of the coverage—and nearly all of the potentially inflammatory coverage—occurred in September and November 1991, nearly a year before jury selection occurred. Although a brief flurry of articles appeared in September 1992, immediately before jury selection, those articles focused on codefendant Hubbard's competency hearing and recounted the facts of the crimes only in summary form. As we have noted, the passage of time diminishes the potential prejudice from pretrial publicity. ( People v. Bonin, supra, 46 Cal.3d at p. 677 , 250 Cal.Rptr. 687 , 758 P.2d 1217 ; see also People v. Ramirez, supra, 39 Cal.4th at pp. 434-436, 46 Cal.Rptr.3d 677 , 139 P.3d 64 ; People v. Williams, supra, 16 Cal.4th at p. 655 , 66 Cal.Rptr.2d 573 , 941 P.2d 752 .) Moreover, some of the potentially prejudicial information revealed in the articles and broadcasts, such as the content of defendant's confessions, was admitted against him at trial, so no prejudice resulted. ( People y. Ramirez, supra, at p. 436 , 46 Cal.Rptr.3d 677 , 139 P.3d 64 .)

Further, although a large portion—72 percent, according to defense counsel—of potential jurors who responded to questionnaires had heard something about the case, the trial court concluded that most of those jurors remembered the case only in general terms, seemed to have no independent recollection of the facts, and had not prejudged defendant's guilt. Defendant does not dispute that assessment. As we have explained, the vagueness of jurors' recollections of past news coverage may "suggest[] the absence of prejudice." ( People v. Prince, supra, 40 Cal.4th at p. 1215 , 57 Cal.Rptr.3d 543 , 156 P.3d 1015 .) Moreover, there is no requirement *619 that jurors be totally ignorant of the facts of a case, as long as they can lay aside their impressions and render an impartial verdict. ( People v. Williams, supra, 16 Cal.4th at p. 655 , 66 Cal.Rptr.2d 573 , 941 P.2d 752 .) In sum, we conclude defendant did not meet his burden of establishing a reasonable likelihood that a fair and impartial trial could not be had in Los Angeles County.

We further conclude that on appeal defendant has not shown a reasonable likelihood that he did not receive a fair trial before an impartial jury. The jury voir dire bore out the trial court's conclusion that a fair jury could be chosen. Each juror assured the trial court that he or she could be unbiased notwithstanding exposure to media reports about the case. Although the jurors' assurances of impartiality are not dispositive (see People v. Jennings (1991) 53 Cal.3d 334, 361 , 279 Cal.Rptr. 780 , 807 P.2d 1009 ; Murphy v. Florida, supra, 421 U.S. at p. 800 , 95 S.Ct. 2031 ), neither are we free to ignore them (see Smith v. Phillips (1982) 455 U.S. 209, 217, fn. 7 , 102 S.Ct. 940 , 71 L.Ed.2d 78 ; DeLisle v. Rivers (6th Cir. 1998) 161 F.3d 370, 384 ). We have in the past relied on jurors' assurances that they could be impartial. ( People v. Panah (2005) 35 Cal.4th 395, 448 , 25 Cal.Rptr.3d 672 , 107 P.3d 790 ; People v. Coffman and Marlow, supra, 34 Cal.4th at p. 46 , 17 Cal.Rptr.3d 710 , 96 P.3d 30 .) Absent a showing that the pretrial publicity was so pervasive and damaging that we must presume prejudice (see Patton v. Yount (1984) 467 U.S. 1025, 1031 , 104 S.Ct. 2885 , 81 L.Ed.2d 847 ; Murphy v. Florida, supra, at pp. 798-799 , 95 S.Ct. 2031 ), we do the same here. Considering all the circumstances, defendant has not established a reasonable likelihood, as opposed to a mere possibility, that he did not in fact receive a fair trial before impartial jurors. (See People v. Bonin, supra, 46 Cal.3d at pp. 673-679, 250 Cal.Rptr. 687 , 758 P.2d 1217 .)

Finally, defendant asserts that the trial court abused its discretion by considering only one of the five factors relevant to the weighing process—the nature and extent of media coverage. We disagree. Although the court did not discuss all of the five factors in considering defendant's motion for a change of venue, it focused on the salient inquiry—whether it was reasonably likely that pretrial publicity had caused potential jurors to form such fixed opinions of defendant's guilt that they could not render an impartial verdict. (See People v. Bonin, supra, 46 Cal.3d at pp. 672-673, 250 Cal.Rptr. 687 , 758 P.2d 1217 .) No abuse of discretion occurred.

C. Joint Trial Issues

In this part, we consider defendant's closely related claims that the trial court erred in denying his pretrial motion for severance and in admitting in evidence at the guilt phase the redacted statements of codefendant Huber.

1. Denial of severance

Defendant contends that the trial court's denial of his motion for severance or for separate juries was erroneous and violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and corresponding provisions of California law, requiring reversal of the guilt and penalty judgments. For the reasons outlined below, we conclude defendant is not entitled to relief.

a. Facts

After his arrest, defendant made several statements to law enforcement officers implicating himself and his codefendants in the Avina, Sams, Nisbet, and Denogean crimes. After her arrest, codefendant Huber made several statements to law enforcement *620 officers implicating defendant, herself, and her other codefendants in the Avina, Valdez, Sams, Nisbet, and Denogean crimes. Codefendants Hubbard and Machuca made no postarrest statements to law enforcement officers, although some of Hubbard's prearrest statements were introduced into evidence at trial.

Before trial, defendant and his codefendants, each moved to sever his or her trial or, in the alternative, for a separate jury. Each argued that a joint trial would be unfair because, among other reasons, the prosecution intended to introduce into evidence the statements defendant and codefendant Huber had made to police that implicated other defendants, in violation of People v. Aranda (1965) 63 Cal.2d 518 , 47 Cal.Rptr. 353 , 407 P.2d 265 ( Aranda ) and Bruton v. United States (1968) 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 ( Bruton. ) The prosecutor opposed the motion, arguing the statements could be redacted to remove references to the other codefendants. The prosecutor submitted proposed redacted statements to the court. At the hearing on the motion, defendant argued that a joint trial would be unfair because codefendant Huber's statements implicated him in the charged crimes and because the proposed redaction of his own statements inaccurately portrayed him as the sole perpetrator of several of the crimes. The trial court denied the motions, concluding that the proposed redactions sufficiently protected each defendant's rights. Later, during trial, the court ordered further redactions. The redacted statements of defendant and codefendant Huber were read to the jury during trial. The jury was instructed to consider these statements against the speaker only and not against any other defendant.

b. Legal framework

Our Legislature has expressed a preference for joint trials. ( People v. Boyde (1988) 46 Cal.3d 212, 231 , 250 Cal. Rptr. 83 , 758 P.2d 25 .) Section 1098 provides in pertinent part: "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials." The court may, in its discretion, order separate trials if, among other reasons, there is an incriminating confession by one defendant that implicates a codefendant, or if the defendants will present conflicting defenses. ( People v. Avila (2006) 38 Cal.4th 491, 574-575 , 43 Cal.Rptr.3d 1 , 133 P.3d 1076 ; People v. Massie (1967) 66 Cal.2d 899, 917 , 59 Cal.Rptr. 733 , 428 P.2d 869 .) Additionally, severance may be called for when "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." ( Zafiro v. United States (1993) 506 U.S. 534, 539 , 113 S.Ct. 933 , 122 L.Ed.2d 317 [addressing severance under Fed. Rules Crim. Proc., rule 14,18 U.S.C.]; People v. Coffman and Marlow, supra, 34 Cal.4th at p. 40 , 17 Cal.Rptr.3d 710 , 96 P.3d 30 .)

We review a trial court's denial of a severance motion for abuse of discretion based on the facts as they appeared when the court ruled on the motion. ( People v. Hardy (1992) 2 Cal.4th 86, 167 , 5 Cal.Rptr.2d 796 , 825 P.2d 781 .) If we conclude the trial court abused its discretion, reversal is required only if it is reasonably probable that the defendant would have obtained a more favorable result at a separate trial. ( People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41 , 17 Cal.Rptr.3d 710 , 96 P.3d 30 ; People v. Keenan (1988) 46 Cal.3d 478, 503 , 250 Cal. Rptr. 550 , 758 P.2d 1081 .) If the court's joinder ruling was proper when it was made, however, we may reverse a judgment only on a showing that joinder "`resulted *621 in "gross unfairness" amounting to a denial of due process.'" ( People v. Mendoza (2000) 24 Cal.4th 130, 162 , 99 Cal. Rptr.2d 485 , 6 P.3d 150 .)

Here, defendant was charged along with at least one of his codefendants in each count with having committed "common crimes involving common events and victims." ( People v. Keenan, supra, 46 Cal.3d at p. 500, 250 Cal.Rptr. 550 , 758 P.2d 1081 .) The court accordingly was presented with a "`classic case'" for a joint trial. ( People v. Coffman and Marlow, supra, 34 Cal.4th at p. 40 , 17 Cal. Rptr.3d 710 , 96 P.3d 30 , quoting People v. Keenan, supra, at pp. 499-500 , 250 Cal. Rptr. 550 , 758 P.2d 1081 ; see also People v. Avila, supra, 38 Cal.4th at p. 575 , 43 Cal.Rptr.3d 1 , 133 P.3d 1076 .) Defendant contends, nonetheless, that severance was warranted because (1) the admission of the statements of his codefendants Huber and Hubbard prejudiced him; (2) the redaction of his own statements denied him crucial exculpatory and mitigating evidence; and (3) the defenses presented by his three codefendants were antagonistic to his defense. We address each contention below.

c. Statements of codefendants Huber and Hubbard

Defendant first argues that severance was required because the joint trial resulted in the introduction into evidence of out-of-court statements by codefendants Huber and Hubbard that implicated defendant, in violation of defendant's rights under Aranda and Bruton . Consideration of defendant's claim requires that we review the governing law in some detail.

A criminal defendant has a right, guaranteed by the confrontation clause of the Sixth Amendment to the United States Constitution, to confront adverse witnesses. The right to confrontation includes the right to cross-examination. ( Pointer v. Texas (1965) 380 U.S. 400 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 .) A problem arises when a codefendant's confession implicating the defendant is introduced into evidence at their joint trial. If the declarant codefendant invokes the Fifth Amendment right against self-incrimination and declines to testify, the implicated defendant is unable to cross-examine the declarant codefendant regarding the content of the confession.

In Bruton , the United States Supreme Court held that the admission into evidence at a joint trial of a nontestifying codefendant's confession implicating the defendant violates the defendant's right to cross-examination guaranteed by the confrontation clause, even if the jury is instructed to disregard the confession in determining the guilt or innocence of the defendant. ( Bruton, supra, 391 U. S. at pp. 127-128, 135-137, 88 S.Ct. 1620 .) The high court reasoned that although juries ordinarily can and will follow a judge's instructions to disregard inadmissible evidence, "there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored." ( Id. at p. 135, 88 S.Ct. 1620 .) Such a context is presented when "the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial." ( Id. at pp. 135-136, 88 S.Ct. 1620 .)

Three years before Bruton , we had come to a similar conclusion on state law grounds, but we also concluded that the codefendant's confession may be introduced at the joint trial if it can be edited to eliminate references to the defendant without prejudice to the confessing codefendant. ( Aranda, supra, 63 Cal.2d at pp. 530-531, 47 Cal.Rptr. 353 , 407 P.2d 265 .) *622 If not, and the prosecution insists on introducing the confession, the trial court must sever the trials. ( Ibid.)

The high court limited the scope of the Bruton rule in Richardson v. Marsh (1987) 481 U.S. 200 , 107 S.Ct. 1702 , 95 L.Ed.2d 176 (Richardson) . There, defendant Marsh was jointly tried with one Williams for murder. Williams's confession was introduced into evidence, but it was edited to remove any reference to Marsh. The high court held that admission of Williams's confession with a limiting instruction did not violate Marsh's confrontation rights. The court explained that Bruton recognized a narrow exception to the general rule that juries are presumed to follow limiting instructions, and this narrow exception should not apply to confessions that are not incriminating on their face, but become so only when linked with other evidence introduced at trial. ( Richardson, supra, at pp. 206-207 , 107 S.Ct. 1702 .) That is because, "[w]here the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence." ( Id. at p. 208, 107 S.Ct. 1702 .) Accordingly, the high court held, "the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when ... the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." ( Id. at p. 211, 107 S.Ct. 1702 , italics added.)

In People v. Fletcher (1996) 13 Cal.4th 451 , 53 Cal.Rptr.2d 572 , 917 P.2d 187 , we addressed a question expressly left open in Richardson : whether the admission into evidence of a codefendant's confession in which the defendant's name has been replaced with a blank space, the word "delete," a symbol, or a neutral pronoun violates the confrontation clause. (See Richardson, supra, 481 U.S. at p. 211, fn. 5 , 107 S.Ct. 1702 .) We reasoned that "editing a nontestifying codefendant's extrajudicial statement to substitute pronouns or similar neutral terms for the defendant's name will not invariably be sufficient to avoid violation of the defendant's Sixth Amendment confrontation rights." ( People v. Fletcher, supra, 13 Cal.4th at p. 468 , 53 Cal.Rptr.2d 572 , 917 P.2d 187 .) We explained that "the sufficiency of this form of editing must be determined on a case-by-case basis in light of the statement as a whole and the other evidence presented at trial." ( Ibid.) We acknowledged that because the issue we faced was one of federal constitutional law, our holding "may not be the last word." ( Id. at p. 469, fn. 6, 53 Cal.Rptr.2d 572 , 917 P.2d 187 .)

The high court reached a similar conclusion in Gray v. Maryland (1998) 523 U.S. 185 , 118 S.Ct. 1151 , 140 L.Ed.2d 294 ( Gray ). There, the defendant and his codefendant were jointly tried for murder. Admitted into evidence was the codefendant's edited confession in which a blank space or the word "deleted" was substituted for the defendant's name wherever it appeared in the confession. The high court concluded that the admission of the edited statement violated Bruton, supra, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 , because "[r]edactions that simply replace a name with an obvious blank space or a word such as `deleted' or a symbol or other similarly obvious indications of alteration... leave statements that, considered as a class, so closely resemble Bruton's unredacted statements that ... the law must require the same result." ( Gray, supra, at p. 192 , 118 S.Ct. 1151 , italics added; see id. at p. 197, 118 S.Ct. 1151 .) That was because in context such statements operate just like a confession that names the defendant—they point an accusatory finger at the person "sitting at counsel table," i.e., the defendant on trial. ( Id. at p. 193, 118 S.Ct. 1151 .) The court acknowledged that a jury had to use inference *623 to connect the blanks in the redacted statement to the defendant, and that "Richardson placed outside the scope of Bruton's rule those statements that incriminate inferentially." ( Id. at p. 195, 118 S.Ct. 1151 .) The court concluded, however, that Richardson's application depended "in significant part upon the kind of, not the simple fact of, inference." ( Id. at p. 196, 118 S.Ct. 1151 .) When, despite redaction, the statement "obviously refer[s] directly to someone, often obviously the defendant, and ... involve [s] inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial" ( id. at p. 196, 118 S.Ct. 1151 , italics added) the Bruton rule applied and introduction of the statement at a joint trial violated the defendant's rights under the confrontation clause. ( Gray, supra, at pp. 196-197 , 118 S.Ct. 1151 .)

i. Codefendant Huber's statements

The trial court denied defendant's motion to sever after the prosecution proposed to introduce codefendant Huber's statements in a redacted form that eliminated direct references to defendant but did not eliminate all references to the existence of one or more accomplices. Judging the circumstances as they appeared at the time of the ruling on the motion (see People v. Cleveland (2004) 32 Cal.4th 704, 726 , 11 Cal.Rptr.3d 236 , 86 P.3d 302 ), the trial court did not abuse its discretion. Although we assume below that the admission of codefendant Huber's redacted statements violated defendant's rights under Aranda , and Bruton , our assumption is based on Gray, supra, 523 U.S. 185 , 118 S.Ct. 1151 , 140 L.Ed.2d 294 , decided in 1998, six years after defendant's 1992 trial. Before Gray , the law regarding the admissibility of redacted codefendant confessions was unsettled. (See, e.g., People v. Fletcher, supra, 13 Cal.4th 451 , 53 Cal. Rptr.2d 572 , 917 P.2d 187 .) Although Gray is retroactive to this case and we apply it here, we cannot fault the trial court for failing to anticipate Gray's holding. Moreover the trial court could have excluded Huber's statements altogether. Therefore, no abuse of discretion appears in the denial of severance.

Nor did the joint trial itself result in gross unfairness depriving defendant of a fair trial. Any assumed error occurred not when the trial court denied severance, but when the court made the related but separate ruling admitting codefendant Huber's redacted statements. Moreover, as we shall explain, any assumed error was harmless.

ii. Codefendant Hubbard's statements

Defendant also contends that the trial court erred in denying severance because of two statements admitted at the joint trial for use against codefendant Hubbard only. Evidence was introduced that codefendant Machuca's teenage son, Donald, said that Hubbard told him that Hubbard and defendant together shot Sams. The trial court immediately instructed the jury to ignore this statement when considering defendant's guilt. Evidence also was introduced of a letter Hubbard wrote to Donald from jail stating that defendant had gotten Hubbard and Machuca "in here with his bullshit." Because the trial court was not made aware of this testimony at the time of the severance motion, no claim of abuse of discretion may be predicated on it. (See People v. Hardy, supra, 2 Cal.4th at p. 167 , 5 Cal.Rptr.2d 796 , 825 P.2d 781 .) Further, although introduction of the first statement violated Aranda, supra, 63 Cal.2d 518 , 47 Cal.Rptr. 353 , 407 P.2d 265 , and Bruton, supra, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 , because it expressly incriminated defendant, any error was harmless beyond a reasonable doubt ( Chapman v. California *624 (1967) 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 ) in light of the voluminous evidence linking defendant to the Sams murder, including defendant's own statements acknowledging that he shot Sams. (See People v. Cummings (1993) 4 Cal.4th 1233, 1288, fn. 27 , 18 Cal.Rptr.2d 796 , 850 P.2d 1 .) The meaning of the second statement is so unclear that it cannot even be said to incriminate, much less to powerfully incriminate, defendant. Accordingly, the admission at the joint trial of these two statements did not result in gross unfairness to defendant.

d. Editing of defendant's statements

Defendant next argues that the trial court abused its discretion in denying severance because the denial resulted in the introduction of his own statements, edited under Bruton, supra, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 , and Aranda, supra, 63 Cal.2d 518 , 47 Cal.Rptr. 353 , 407 P.2d 265 , to remove references to his codefendants. Defendant asserts that the redacted statements inaccurately portrayed him as the sole perpetrator of the crimes to which he confessed, violating his rights to due process and a fair trial. He further contends that the trial court's ruling—because it prevented him from bringing out the omitted portions of the statements on cross-examination unless he testified—violated his state statutory and federal constitutional rights.

Severance may be necessary when a defendant's confession cannot be redacted to protect a codefendant's rights without prejudicing the defendant. ( Aranda, supra, 63 Cal.2d at p. 530 , 47 Cal.Rptr. 353 , 407 P.2d 265 .) A defendant is prejudiced in this context when the editing of his statement distorts his role or makes an exculpatory statement inculpatory. ( People v. Douglas (1991) 234 Cal.App.3d 273, 285-287 , 285 Cal.Rptr. 609 .)

Ordinarily, in ruling on a severance motion, a trial court should review both the unredacted and the redacted statements to determine whether the redactions so distort the original statement as to result in prejudice to the defendant. ( People v. Douglas, supra, 234 Cal.App.3d at p. 286 , 285 Cal.Rptr. 609 ; People v. Matola (1968) 259 Cal.App.2d 686, 693 , 66 Cal.Rptr. 610 .) Here, the trial court declined to read the unredacted statements before ruling on the severance motion because, during the hearing, codefendant Hubbard's counsel orally pointed out the differences between the two versions. Although the better practice might have been for the trial court itself to read the unredacted statements, any error was harmless because, as we will explain, the redacted statements did not distort the meaning of defendant's statements or make an exculpatory statement inculpatory.

We first note that although defendant's edited statements excluded references to his codefendants, it is evident the jury did not believe defendant had acted alone, for it found at least one of his codefendants guilty along with him in each set of crimes to which he confessed. Further, the participation of others was clear from the redacted statements' use of the passive voice. For example, Detective Graves testified that defendant stated "the victim's [Nisbet's] hands and feet were bound with duct tape," implying that someone other than defendant bound Nisbet's hands and feet.

Moreover, the redactions did not distort defendant's role in the crimes or alter any of his explicit admissions as to his own actions in any material way. To be sure, some of the changes—such as changing "we went to the mall" to "I went to the mall"—did change the meaning of defendant's statements and impliedly overstated *625 defendant's role. (See People v. Tealer (1975) 48 Cal.App.3d 598 , 603-604 & fn. 10, 122 Cal.Rptr. 144 [changing "we" to "I" in defendant's confession was error because "the effect of the modification was to throw the entire onus of the planned robbery on defendant"]; cf. People v. Duarte (2000) 24 Cal.4th 603, 622 , 101 Cal.Rptr.2d 701 , 12 P.3d 1110 (cone. & dis. opn. of Baxter, J.) [statement of accomplice that was redacted to remove references to defendant impliedly overstated accomplice's role].) Further, some of the redactions made it appear that defendant acknowledged participating in conduct that he actually had attributed to codefendant Hubbard. [8] Such instances were immaterial, however, in light of defendant's consistent admissions in both the unredacted and the redacted versions as to acts he himself performed that constituted the elements of the charged offenses. Finally, nothing that was omitted was exculpatory. In each of the unredacted statements regarding the Sams, Nisbet and Denogean crimes, defendant admitted planning and participating in the robberies with one or more of his codefendants, as well as kidnapping and personally shooting the victims. In his unredacted statement about the Avina crime, defendant admitted personally shooting Avina and taking his truck. That his codefendants also participated in some way could not relieve defendant of liability for his own criminal acts.

Defendant contends that the trial court's ruling preventing him from cross-examining witnesses as to the omitted portions of his statements violated section 356 of the Evidence Code, which provides in pertinent part: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party." This provision permits the introduction of statements that are necessary for the understanding of, or to give context to, statements already introduced. ( People v. Harrison (2005) 35 Cal.4th 208, 239 , 25 Cal.Rptr.3d 224 , 106 P.3d 895 ; People v. Zapien (1993) 4 Cal.4th 929, 959 , 17 Cal.Rptr.2d 122 , 846 P.2d 704 .) But limits on the scope of evidence permitted under Evidence Code section 356 may be proper when, as here, inquiring into the "whole on the same subject" would violate a codefendant's rights under Aranda or Bruton. (See People v. Ervin (2000) 22 Cal.4th 48, 87 , 91 Cal. Rptr.2d 623 , 990 P.2d 506 .) Here, the trial court did not prevent defendant from cross-examining the witnesses to bring out his own hearsay statements that exculpated him or lessened his own role in the crimes. Nor, as in Ervin , did the trial court prevent defendant from presenting nonhearsay testimony or evidence that implicated his codefendants. (See ibid. ) Rather, the trial court precluded defendant only from bringing out his own hearsay statements that expressly inculpated his codefendants. These limits were permissible notwithstanding Evidence Code section 356.

Defendant also relies on cases interpreting Federal Rules of Evidence, rule 106 (28 U.S.C.), the federal counterpart to Evidence Code section 356. Even wee this rule binding on the states (but see People *626 v. Chatman (2006) 38 Cal.4th 344, 381, fn. 15 , 42 Cal.Rptr.3d 621 , 133 P.3d 534 ), it would not aid defendant. Also called the "rule of completeness," rule 106 is violated only if redaction of the defendant's statement "`distorts the meaning of the statement or excludes information substantially exculpatory of the declarant,' United States v. Kaminski 692 F.2d 505 , 522 (8th Cir.1982)." ( United States v. Dorrell (9th Cir.1985) 758 F.2d 427, 434-435 ; see also United States v. Washington (D.C.Cir. 1991) 952 F.2d 1402, 1404 .) Here, as we have explained, the redactions did not distort the meaning of defendant's statements or exclude substantially exculpatory matter.

Finally, defendant claims that the trial court's ruling restricting him from cross-examining as to the redacted parts of his statement unless he testified violated his Sixth Amendment right to confront and cross-examine witnesses and his Fifth Amendment right against self-incrimination. (See United States v. Walker (7th Cir.1981) 652 F.2d 708, 713 , quoting 1 Weinstein, Evidence (1st ed.1979) § 1106[01], pp. 106-109 ["`Forcing the defendant to take the stand in order to introduce the omitted exculpatory portions of [a] confession is a denial of his right against self-incrimination'"].) We disagree. Restricting cross-examination to protect the rights of a codefendant does not violate the Fifth or Sixth Amendments to the federal Constitution when the restriction does not materially affect the defense or when the probative value of the excluded evidence is slight. (See United States v. Washington, supra, 952 F.2d at p. 1404 .) As we have seen, that was the case here.

Further, even assuming it was error to admit the statements in redacted form and to restrict cross-examination as to the redacted portions at this joint trial, the error was harmless under any standard. Pointing to evidence that codefendant Hubbard was known to carry the Smith & Wesson revolver and that the bullets removed from the bodies of Sams and Nisbet could have been fired from that gun, defendant argues that if the jury had heard his unredacted statements naming Hubbard as his partner in those crimes, the jury might have concluded that it was Hubbard who actually fired the bullets that killed both Sams and Nisbet. This argument is unpersuasive in light of defendant's consistent admissions in his unredacted statements that he personally shot Sams and Nisbet after switching guns with Hubbard. Further, the unredacted versions of defendant's statements contain all the evidence necessary to render defendant guilty at a minimum as an accomplice to murder and thus eligible for the death penalty, regardless of Hubbard's participation. (See Tison v. Arizona (1987) 481 U.S. 137, 157-158 , 107 S.Ct. 1676 , 95 L.Ed.2d 127 [a capital sentence does not violate the Eighth Amendment where a defendant both possesses a mental state of "reckless indifference to the value of human life" and is a major participant in a felony that resulted in murder].)

Defendant further contends that the redacted portions of his statements regarding the Sams, Nisbet, and Denogean crimes included material that was relevant to several penalty phase factors, particularly section 190.3, factor (j), which allows the jury to consider "[w]hether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor." Nothing in defendant's unredacted statements would have shown his participation in these crimes was "relatively minor." Defendant argues that his edited statements regarding the Avina and Sams crimes omitted crucial mitigating evidence, such as defendant's statements that his stepfather, Donald Deary, had killed his mother, and that defendant's deceased mother had *627 visited defendant as a spirit. He asserts that this editing violated his Eighth Amendment rights to counter aggravating evidence and to present mitigating evidence. Nothing prevented defendant from bringing out this information at the penalty phase, however. Moreover, the jury heard ample evidence at the penalty phase regarding Deary, including that defendant believed Deary killed defendant's mother.

Finally, defendant argues that the jurors were falsely informed that the statements were his "own words," and that the trial court did not correct the misimpression. We disagree with defendant's premise. We do not think the jury would have assigned much weight to the interrogating police officer's introductory statement, which was read to the jury, that defendant had been asked to tell the officers in "his own words" what had occurred. Moreover, defendant did not request a curative instruction, so he may not complain now of the trial court's failure to give one.

In sum, the introduction of defendant's redacted statements and the restriction on cross-examination regarding the unredacted statements, even if erroneous, were harmless under any standard. Therefore, the trial court did not abuse its discretion in denying severance on this ground. ( People v. Hardy, supra, 2 Cal.4th at p. 167 , 5 Cal.Rptr.2d 796 , 825 P.2d 781 .) Nor did the denial of severance result in "gross unfairness" justifying a new trial. ( People v. Mendoza, supra, 24 Cal.4th at p. 162, 99 Cal.Rptr.2d 485 , 6 P.3d 150 .)

e. Antagonistic defenses

Defendant next argues that severance was warranted because the defenses presented by his three codefendants were antagonistic to his defense. For example, he asserts that codefendant Huber's defense that she committed the crimes because she was afraid of defendant was inconsistent with defendant's defense that in his confessions he exaggerated his own role to protect his codefendants. Defendant did not raise the antagonistic defenses issue at trial, however, so the trial court's failure to grant severance on this ground was not an abuse of discretion. (See People v. Mitcham (1992) 1 Cal.4th 1027, 1043-1048 , 5 Cal.Rptr.2d 230 , 824 P.2d 1277 .) In any event, antagonistic defenses do not warrant severance unless the acceptance of one party's defense would preclude acquittal of the other. ( People v. Hardy, supra, 2 Cal.4th at p. 168, 5 Cal.Rptr.2d 796 , 825 P.2d 781 .) Here, defendant's defense and those of his codefendants were not so irreconcilable that only one could be guilty. The prosecution presented independent evidence supporting each defendant's participation in the group's mutual criminal endeavors. No gross unfairness resulted from the joint trial. (See People v. Avila, supra, 38 Cal.4th at pp. 574-576, 43 Cal.Rptr.3d 1 , 133 P.3d 1076 ; People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41 , 17 Cal.Rptr.3d 710 , 96 P.3d 30 ; People v. Box (2000) 23 Cal.4th 1153, 1195-1197 , 99 Cal.Rptr.2d 69 , 5 P.3d 130 .)

Defendant further contends that the joint trial prejudiced him at the penalty phase because both the prosecutor and his codefendants' counsel urged the jury to compare defendant with his codefendants, whose penalty phase presentations were "more compelling" than defendant's. Defendant asserts that the joint penalty trial thus violated his right under the Eighth Amendment to the United States Constitution to an individualized determination of his sentence based on his own character and background. (See Lockett v. Ohio (1978) 438 U.S. 586, 605 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 ; Woodson v. North Carolina (1976) 428 U.S. 280, 304 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 .) We disagree. The trial court instructed the jury: "In this case *628 you must decide separately the question of the penalty as to each of the defendants." The trial court also told the jury at the guilt phase not to consider against one defendant evidence that had been admitted only against another defendant. We have held that such instructions are adequate to ensure individualized sentencing in joint penalty trials. ( People v. Taylor (2001) 26 Cal.4th 1155, 1173-1174 , 113 Cal.Rptr.2d 827 , 34 P.3d 937 .) Here, as in Taylor , nothing in the record indicates the jury was unable to assess the penalty separately for each defendant. No gross unfairness to defendant resulted from the joint penalty trial.

2. Aranda/Bruton

Defendant contends that the admission into evidence at his joint trial of codefendant Huber's out-of-court statements violated state law and deprived him of his rights to confront and cross-examine witnesses under the Sixth Amendment to the United States Constitution. ( Bruton, supra, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 ; Aranda, supra, 63 Cal.2d 518 , 47 Cal.Rptr. 353 , 407 P.2d 265 .) As we will explain, we need not decide whether the admission of codefendant Huber's statement about the Avina crimes deprived defendant of his Sixth Amendment right of confrontation because, even if there was error, it was harmless beyond a reasonable doubt ( Chapman v. California, supra, 386 U.S. at p. 24 , 87 S.Ct. 824 ) in relation to defendant's convictions for the first degree murder and robbery of Avina and the robbery-murder special circumstance, and we will vacate the lying-in-wait special circumstance attendant to that murder on other grounds. With respect to codefendant Huber's statements about the Valdez, Nisbet, Sams and Denogean crimes, we need not decide whether their admission deprived defendant of his confrontation rights because, even if there was error, it was harmless beyond a reasonable doubt (ibid.) for the reasons explained below.

a. Codefendant Huber's statements—adequacy of limiting instruction

At the outset, defendant asserts that the limiting instruction given to the jury was inadequate to protect his Sixth Amendment rights because it was phrased solely in terms of the male pronoun. The jury was instructed under CALJIC No. 2.08: "Evidence has been received of a statement made by a defendant after his arrest. Do not consider the evidence of such statements against other defendants." Because other instructions included both male and female pronouns, defendant asserts that the jury would not have understood CALJIC No. 2.08 to apply to statements by Huber, who was his girlfriend and codefendant. We disagree. In addition to the quoted instruction, the jury was instructed: "Evidence has been admitted against one or more of the defendants and not admitted as against the others. Do not consider such evidence against the other defendants." The jury also was instructed: "The word `defendant' applies equally to each defendant unless you are expressly instructed otherwise." Considering all the instructions together, we conclude the jury would have understood CALJIC No. 2.08 in a commonsense manner to refer to the statements of both male and female defendants.

b. Codefendant Huber's statement regarding the Avina crimes

Codefendant Huber's redacted statement about the Avina crimes, as recounted by Deputy Gentzvein at trial, can be summarized as follows: On the evening Jose Avina was killed, Huber was driving her car and following another car owned and driven by Timmy Lane. Derrick Colbert *629 was a passenger in Lane's car. Huber was aware of a plan to find a nice car, bump it so the driver would pull over, and then forcibly take the car and any valuables in it. Huber stated: "Then if they cooperated they would be all right and if they didn't, then they were going to shoot him." Colbert and Lane spotted a red truck and began to follow it, with Huber behind them. Lane's car bumped the red truck. A few blocks later, the red truck stopped. The driver was approached and told to get out of his truck. As he was trying to drive away, the driver was shot once in the head with a 12-gauge sawed-off shotgun. The truck rolled onto a lawn in front of a house. The driver's body was pulled out of the truck and dumped on the lawn. The truck started and sped down the street; Huber and Colbert followed. They drove to Colbert's house in Baldwin Park. Stereo equipment and some CD's were removed from the truck and placed in Lane's car. The truck then was driven to Pomona and abandoned.

Codefendant Huber's statement does not fall neatly within either the Gray or the Richardson rule. Unlike in Gray , the names of Huber's accomplices were not replaced with a blank or a symbol. On the other hand, the statement does not completely eliminate any reference to the "existence" of accomplices (cf. Richardson, supra, 481 U.S. at p. 211, 107 S.Ct. 1702 ), for it uses the passive voice to describe the actions of others. For example, the jurors heard that Huber told Detective Gentzvein "she observed the victim [Avina] try to drive away, at which time he was shot one time in the head." Thus, the statement "obviously refer[s] directly to someone." ( Gray, supra, 523 U.S. at p. 196 , 118 S.Ct. 1151 , italics added.) Because only defendant and Huber were on trial for the Avina crimes, the jurors might have concluded that the "someone" implicated in Huber's statement was defendant. (See id. at p. 193, 118 S.Ct. 1151 ["[a] juror who ... wonder[ed] to whom the blank might refer need only lift his eyes to [defendant], sitting at counsel table, to find what will seem the obvious answer"].) But because the statement also mentioned Colbert and Lane, the jurors might have concluded that the "someone" implicated was one or both of them.

In People v. Archer (2000) 82 Cal. App.4th 1380 , 99 Cal.Rptr.2d 230 , the Court of Appeal held that the admission of a codefendant's statement edited in a similar manner—replacing subjects and active verbs with passive voice phrasing—violated the defendant's confrontation rights in the joint murder trial of the defendant and his codefendant. The Court of Appeal in Archer reasoned that given the manner of editing, the existence of a participant other than the codefendant was obvious from the statement itself. Further, other evidence admitted at trial revealed that the murder occurred at the defendant's house, and there was no evidence that anyone other than the defendant and his codefendant participated. Because the average juror under those circumstances could not have avoided drawing the inference that the defendant was the other participant, the statement was "`"powerfully incriminating"'" and its admission violated the defendant's Sixth Amendment right of confrontation. ( Id. at p. 1390, 99 Cal.Rptr.2d 230 .)

We need not decide whether the reasoning of Archer is correct or whether similar reasoning would compel a similar conclusion in this factually distinct case. Even if it was error to admit Huber's redacted statement about the Avina crimes, any assumed error was harmless beyond a reasonable doubt in relation to the jury's consideration of the robbery count, the robbery-felony-murder theory, and the robbery-murder special circumstance. This conclusion permits us to affirm *630 defendant's convictions for the robbery and first degree murder of Avina and the jury's true finding on the robbery-murder special circumstance. Further, we need not decide if any assumed error affected the lying-in-wait special circumstance, because we will vacate the jury's true finding on that special circumstance on other grounds.

We turn first to the murder conviction. The prosecution advanced, and the jury was instructed on, three theories of first degree murder in relation to the Avina homicide: felony murder based on robbery, deliberate and premeditated murder, and murder by means of lying in wait. The jury returned a general verdict finding defendant guilty of the first degree murder of Avina. If any of these three theories was legally insufficient because it was infected with prejudicial Aranda/Bruton error, we must reverse the murder conviction "absent a basis in the record to find that the verdict was actually based on a valid ground." ( People v. Guiton (1993) 4 Cal.4th 1116, 1129 , 17 Cal.Rptr.2d 365 , 847 P.2d 45 , italics added; see also People v. Green (1980) 27 Cal.3d 1, 69 , 164 Cal. Rptr. 1 , 609 P.2d 468 .)

Here, there is a basis in the record for finding that the first degree murder verdict rested on the robbery theory of felony murder: the jury's true finding on the robbery-murder special-circumstance allegation. "`Because a jury must unanimously agree that a special circumstance finding is true (§ 190.4), and the jury in this case was so instructed, the jury's finding that defendant killed [the victim] in the course of committing [a robbery] indicates that the jury unanimously found defendant guilty of first degree murder on the valid theory that the killing occurred during the ... commission of a [robbery].'" ( People v. Hughes, supra, 27 Cal.4th at p. 368 , 116 Cal.Rptr.2d 401 , 39 P.3d 432 , quoting People v. Marshall (1997) 15 Cal.4th 1, 38 , 61 Cal.Rptr.2d 84 , 931 P.2d 262 , brackets added in Hughes . ) Thus, assuming the robbery-felony-murder theory is valid—that is, not infected by any assumed Aranda/Bruton error—we may affirm the first degree murder conviction.

Robbery is the taking of "personal property in the possession of another against the will and from the person or immediate presence of that person accomplished by means of force or fear and with the specific intent permanently to deprive such person of such property." (CALJIC No. 9.40.) Both robbery and felony murder based on robbery require that the intent to rob arise before force or fear is applied. Thus, "[i]f the defendant does not harbor the intent to take property from the possessor at the time he applies force or fear, the taking is only a theft, not a robbery." ( People v. Davis (2005) 36 Cal.4th 510, 562 , 31 Cal.Rptr.3d 96 , 115 P.3d 417 .) Similarly, "an intent to steal that arises after the infliction of the fatal wounds cannot support a felony-murder conviction." ( Id. at pp. 564-565, 31 Cal. Rptr.3d 96 , 115 P.3d 417 .) Finally, the special circumstance of murder during the commission of a robbery requires that the murder be committed "in order to advance [the] independent felonious purpose" of robbery. ( People v. Green, supra, 27 Cal.3d at p. 61 , 164 Cal.Rptr. 1 , 609 P.2d 468 ; see People v. Davis, supra, at p. 568 , 31 Cal.Rptr.3d 96 , 115 P.3d 417 .) A robbery that is merely incidental to a murder does not suffice. ( People v. Green, supra, at p. 61 , 164 Cal.Rptr. 1 , 609 P.2d 468 .)

Here, there was strong evidence that defendant committed the crime of robbery—that is, that he took Avina's truck from Avina's immediate presence against Avina's will by means of force or fear with the specific intent permanently to deprive Avina of the truck. There also was strong evidence that defendant killed Avina during *631 the commission of that robbery, and that he killed Avina to advance the commission of the robbery. (See People v. Green, supra, 27 Cal.3d at p. 61 , 164 Cal. Rptr. 1 , 609 P.2d 468 ). Defendant told police that he was in a car headed to a party when his friend's car accidentally collided with Avina's truck, and that he approached Avina, demanded the keys to his truck, and shot him when he refused. Defendant stated: "I put the gun to his face and told him I want the keys to his car. He tried to be smart. Told him, he smile at me, didn't get it right, reached down and I shot him in the face." Defendant also told police that he then drove off in the truck, and later removed the truck's cassette player, speakers, and other items. Avina's CD player, speakers, amplifier, and CD case were found in cars and apartments linked to defendant and his friends. This evidence supports an inference that after Avina refused to hand over the keys to the truck, defendant killed him to take the truck and some of its contents. It also supports a strong inference that defendant formed the intent to take the truck before shooting Avina. (See People v. Combs (2004) 34 Cal.4th 821, 852 , 22 Cal.Rptr.3d 61 , 101 P.3d 1007 .)

Although defendant claimed that he shot Avina in self-defense after Avina reached for a gun, the physical evidence suggests otherwise. Avina suffered a large wound to the left side of his face and head. The shot penetrated the side panel of the truck to the rear of the driver's door, at the level at which Avina's head would have been if he had been sitting upright in the driver's seat. Shotgun pellets were recovered from the interior of the truck's passenger door and from the floor between the passenger door and the seat. All of this evidence reasonably suggested that defendant shot Avina while Avina was sitting up and facing forward, and not, as defendant claimed, while Avina was reaching down to grab a gun.

The strong evidence of guilt—including defendant's own statements in which he admitted all of the elements supporting the robbery-related counts and the robbery-murder special circumstance—weighs heavily in favor of a conclusion that any assumed error in the admission of Huber's redacted statement was harmless. We acknowledge that the prosecutor in closing argument relied heavily on Huber's statement in his description of the Avina murder. Nonetheless, he did not explicitly urge the jury to rely on Huber's statement when discussing the robbery-related counts and the special circumstance, and he pointed out defendant's own statement that he demanded Avina's keys before shooting Avina. In light of the powerful evidence supporting the jury's verdicts and findings and the prosecutor's minimal use of Huber's statement in the relevant portions of his closing argument, we conclude that any assumed error in the admission of Huber's redacted statement at the joint trial was harmless beyond a reasonable doubt ( Chapman v. California, supra, 386 U.S. at p. 24 , 87 S.Ct. 824 ) in relation to the jury's consideration of the Avina robbery count, the robbery-felony-murder theory of first degree murder, and the special circumstance of murder during the commission of a robbery.

Because any assumed error was harmless beyond a reasonable doubt in relation to the robbery theory of felony murder, and because there is a basis in the record for determining that the jury's first degree murder verdict in fact rested at least in part on the robbery-felony-murder theory, we may affirm defendant's conviction for the first degree murder of Avina without addressing whether any assumed error in the admission of Huber's redacted statement affected the jury's consideration of the other two theories of first degree murder presented to it. (Cf. People v. Boyd (1985) 38 Cal.3d 762, 770 , 215 Cal.Rptr. 1 , *632 700 P.2d 782 , cited with approval in People v. Guiton, supra, 4 Cal.4th at p. 1130, 17 Cal.Rptr.2d 365 , 847 P.2d 45 .) We also affirm defendant's conviction for the robbery of Avina and the jury's true finding on the robbery-murder special circumstance. We need not address whether the admission of Huber's redacted statement about the Avina crimes affected the jury's true finding on the lying-in-wait special circumstance because, as we will explain below, we vacate that special circumstance on other grounds.

c. Codefendant Huber's statements concerning the Valdez, Sams, Nisbet, and Denogean crimes

Codefendant Huber gave the police detailed narrative statements about the Valdez and Denogean incidents. The statements were redacted and read to the jury in that form. Like her statement about the Avina crimes, each of those redacted statements recounted, in the passive voice, the actions of one or more other persons and therefore implicated someone. For example, the jury heard that Huber said she "observed [Valdez] to be forcibly abducted," she observed Valdez exit the car in Azusa Canyon, and "a gun misfired" as Valdez jumped off a cliff. [9] Similarly, the jury heard that Huber stated her car " was driven " around the mall parking lot until Denogean was spotted, Denogean "was overcome and her hands were bound," money and an ATM card "was [sic ] removed " from Denogean's purse, and Huber saw Denogean walk down an embankment and then heard shots fired. [10] Each of these statements implies the existence of one or more accomplices. In that sense, they are similar to the statements in Gray which "obviously refer directly to someone." ( Gray, supra, 523 U.S. at p. 196 , 118 S.Ct. 1151 , italics added.)

On the other hand, it is impossible to determine from the redacted statements how many accomplices were involved in the Valdez and Denogean crimes. Because three people in addition to Huber were on trial for those crimes, reasonable jurors could have concluded that the statements referred not to defendant, but to codefendants Hubbard or Machuca. Some courts have held that when a redacted confession, as here, avoids a "one-on-one correspondence" between the confession and an easily identifiable defendant, the confrontation clause is not violated. ( United States v. Hoover (7th Cir.2001) 246 F.3d 1054, 1059 ; see also United States v. Sutton (7th Cir.2003) 337 F.3d 792, 800 [where only two people were involved in the crime together, any reference to "another" person would necessarily refer to *633 the defendant; but where there were many individuals involved, "another individual" could refer to many people besides the defendant]; accord, People v. Fletcher, supra, 13 Cal.4th at p. 466 , 53 Cal.Rptr.2d 572 , 917 P.2d 187 [redaction to substitute neutral, nonidentifying terms for the name of a codefendant will be sufficient if the codefendant "was just one of a large group of individuals any one of whom could equally well have been the coparticipant mentioned in the confession"].)

The jury also heard that codefendant Huber told the police she was not present when Sams was murdered, but she later came into possession of his ATM card and used it to withdraw $60 from his bank account. This statement again implicates someone because Huber implied she was aware that a murder had occurred. It is not clear from the statement itself, however, who or how many persons committed the murder, and both Hubbard and Machuca were charged along with defendant for the crimes committed against Sams. Thus, the statement is similar to Huber's statements regarding the Valdez and Denogean crimes. Regarding the Nisbet crimes, the jury heard that Huber said "someone" gave her Nisbet's ring "as an engagement ring." Although the jury could have figured out the "someone" was defendant because of other evidence that Huber and defendant were dating, the statement does not directly accuse "someone" of Nisbet's murder.

In any event, we need not decide whether the admission of codefendant Huber's statements about the Valdez, Sams, Nisbet, and Denogean crimes violated defendant's rights under Bruton, supra, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 , or Aranda, supra, 63 Cal.2d 518 , 47 Cal.Rptr. 353 , 407 P.2d 265 , because any assumed error was harmless beyond a reasonable doubt. ( Chapman v. California, supra, 386 U.S. at p. 24 , 87 S.Ct. 824 .) Voluminous independent evidence—including fingerprints, ATM security camera photos, ballistics evidence, and most importantly defendant's own statements—connected defendant to the robbery, kidnapping, and murder of Sams, Nisbet, and Denogean. Indeed, defendant's own statements supplied all of the elements of the charged offenses and special circumstances related to those victims. Although defendant denied involvement in the Valdez robbery and kidnapping, Valdez identified defendant at trial as one of his kidnappers, and the evidence suggested that parts of Valdez's car had been removed and placed on defendant's car. Valdez's testimony supplied all of the elements of the charged offenses related to his kidnapping and robbery. Codefendant Huber's statements added little to support defendant's convictions for the Valdez, Sams, Nisbet, and Denogean offenses. In argument, the prosecutor did not urge the jury to rely on Huber's statements to convict defendant of the charges involving Valdez, Sams, Nisbet, or Denogean. Therefore, even assuming the jury considered Huber's statements against defendant as to those crimes and special circumstances, such consideration could not have affected the verdicts. ( People v. Ervin, supra, 22 Cal.4th at p. 88 , 91 Cal.Rptr.2d 623 , 990 P.2d 506 [no prejudice from admission of codefendants' redacted statements in light of other incriminating evidence].)

D. Jury Selection Issues

1. Prosecution's peremptory challenges

During jury selection, defendant's counsel made four separate motions for a mistrial based on People v. Wheeler (1978) 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 , challenging the prosecutor's use of peremptory challenges to remove five Black prospective jurors and prospective *634 alternate jurors from the panel. The trial court denied each motion after listening to the prosecutor's reasons for the strikes. The trial court also rejected defendant's Wheeler motion challenging the prosecutor's use of peremptory challenges to remove young people from the jury. The jury that tried defendant included two Black jurors, one of whom served as the foreman at the guilt phase. The jury also included one Hispanic juror, who served as the foreman at the penalty phase.

Defendant now contends that the prosecutor's use of peremptory challenges to remove Black, Hispanic, and young persons from the jury violated his rights under the Fourteenth Amendment to the United States Constitution and article I, section 16 of the California Constitution. (See Batson v. Kentucky (1986) 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 ; People v. Wheeler, supra, 22 Cal.3d 258 , 148 Cal. Rptr. 890 , 583 P.2d 748 .)

It is well settled that "[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." ( People v. Avila, supra, 38 Cal.4th at p. 541, 43 Cal.Rptr.3d 1 , 133 P.3d 1076 , quoting People v. Wheeler, supra, 22 Cal.3d at pp. 276-277, 148 Cal. Rptr. 890 , 583 P.2d 748 .) "Such a practice also violates the defendant's right to equal protection under the Fourteenth Amendment to the United States Constitution." ( People v. Avila, supra, 38 Cal.4th at p. 541, 43 Cal.Rptr.3d 1 , 133 P.3d 1076 , citing Batson v. Kentucky, supra, 476 U.S. at p. 88 , 106 S.Ct. 1712 .)

When a defendant moves at trial to challenge the prosecution's use of peremptory strikes, the following procedures and standards apply. "First, the defendant must make out a prima facie case `by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citation.] Second, once the defendant has made out a prima facie case, the `burden shifts to the State to explain adequately the 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 , 125 S.Ct. 2410 , 162 L.Ed.2d 129 , fn. omitted; see also Snyder v. Louisiana (2008) ___ U.S. ___, ___, 128 S.Ct. 1203, 1207 , ___ L.Ed.2d ___, ___; Miller-El v. Dretke (2005) 545 U.S. 231, 239 , 125 S.Ct. 2317 , 162 L.Ed.2d 196 .)

"[T]he critical question in determining whether [a party] has proved purposeful discrimination at step three is the persuasiveness of the prosecutor's justification for his peremptory strike." ( Miller-El v. Cockrell (2003) 537 U.S. 322, 338-339 , 123 S.Ct. 1029 , 154 L.Ed.2d 931 .) The credibility of a prosecutor's stated reasons for exercising a peremptory challenge "can be measured by, among other factors ... how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy." ( Id. at p. 339, 123 S.Ct. 1029 .)

The existence or nonexistence of purposeful racial discrimination is a question of fact. (See Miller-El v. Cockrell, supra, 537 U.S. at pp. 339-340, 123 S.Ct. 1029 .) When the trial court has made a "`sincere and reasoned attempt'" to evaluate the prosecutor's race neutral explanations for his exercise of peremptory strikes, we review the trial court's ruling *635 on the question of purposeful discrimination under the deferential substantial evidence standard. ( People v. McDermott (2002) 28 Cal.4th 946, 971 , 123 Cal.Rptr.2d 654 , 51 P.3d 874 , quoting People v. Silva (2001) 25 Cal.4th 345, 385-386 , 106 Cal. Rptr.2d 93 , 21 P.3d 769 ; see also People v. Huggins (2006) 38 Cal.4th 175, 227 , 41 Cal.Rptr.3d 593 , 131 P.3d 995 .)

Because different considerations apply to each group that defendant contends was improperly excluded, we examine each group separately below.

a. Black prospective jurors

i. Prospective Jurors C.S. and P.B.

Defendant made his first Wheeler motion [11] after the prosecutor peremptorily challenged Prospective Jurors C.S., a Black man, and P.B., a Black woman. Without stating whether it had found a prima facie case, the trial court asked "Mr. Urgo [prosecutor]?" The prosecutor explained that his reasons for dismissing C.S. and P.B. were "based entirely on their views on the death penalty." After hearing argument from defense counsel, the trial court denied the motion.

Before addressing whether substantial evidence supports the trial court's ruling, we address a preliminary matter. After defendant made his Wheeler motions as to Prospective Jurors C.S. and P.B. (as well as S.F. and G.W., discussed below) and explained the basis for each motion, the trial court solicited an explanation of reasons from the prosecutor without stating whether or not it had found a prima facie case. As to Prospective Juror R.W., the prosecutor volunteered his reasons without waiting for the trial court to ask. Here, "[b]y requesting the prosecutor to explain his reasons for these challenges, the trial court impliedly found that defendant had established a prima facie case." ( People v. Hayes (1990) 52 Cal.3d 577, 605 , 276 Cal.Rptr. 874 , 802 P.2d 376 ; see also People v. Anas (1996) 13 Cal.4th 92, 135 , 51 Cal.Rptr.2d 770 , 913 P.2d 980 ; People v. Fuentes (1991) 54 Cal.3d 707, 716-717 , 286 Cal.Rptr. 792 , 818 P.2d 75 .) Contrary to the Attorney General's contention, this is not a case like People v. Bittaker (1989) 48 Cal.3d 1046 , 259 Cal.Rptr. 630 , 774 P.2d 659 , where we concluded that the trial court had not impliedly found a prima facie case. In Bittaker , after soliciting the prosecutor's response, the trial court expressly found that a prima facie case had not been established. ( Id. at pp. 1091-1092, 259 Cal.Rptr. 630 , 774 P.2d 659 .) Here, by contrast, "nothing in the record suggests" that the trial court had not found a prima facie case. ( People v. Hayes, supra, at p. 605, fn. 2 , 276 Cal.Rptr. 874 , 802 P.2d 376 .)

Moreover, by proffering his reasons for excusing R.W., the prosecutor rendered moot the question whether a prima facie case existed. (See Hernandez v. New York (1991) 500 U.S. 352, 359 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 ["Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot"].) We proceed to the second and third steps of the Batson/Wheeler inquiry.

Defendant does not dispute that the prosecutor met his burden at the second step of articulating a race-neutral explanation for each of the peremptory strikes defendant challenged. (See Johnson v. California, supra, 545 U.S. at p. 168, 125 *636 S.Ct. 2410; Purkett v. Elem (1995) 514 U.S. 765, 767-768 , 115 S.Ct. 1769 , 131 L.Ed.2d 834 .) Defendant argues, however, that the trial court erred at the third step by finding that the prosecutor's reasons for excusing these prospective jurors were genuine and not pretextual. In this regard, defendant asserts that we should not defer to the trial court's findings because that court did not make a "sincere and reasoned attempt" to evaluate the credibility of the prosecutor's proffered reasons, but rather denied each motion without any comment or discussion. (See People v. Silva, supra, 25 Cal.4th at pp. 385-386, 106 Cal.Rptr.2d 93 , 21 P.3d 769 ; People v. Hall (1983) 35 Cal.3d 161, 167-168 , 197 Cal.Rptr. 71 , 672 P.2d 854 .)

We disagree. The trial court denied the motions only after observing the relevant voir dire and listening to the prosecutor's reasons supporting each strike and to any defense argument supporting the motions. Nothing in the record suggests that the trial court either was unaware of its duty to evaluate the credibility of the prosecutor's reasons or that it failed to fulfill that duty. ( People v. McDermott, supra, 28 Cal.4th at p. 980 , 123 Cal.Rptr.2d 654 , 51 P.3d 874 ; People v. Williams (1997) 16 Cal.4th 153, 189-190 , 66 Cal.Rptr.2d 123 , 940 P.2d 710 .) Moreover, the trial court was not required to question the prosecutor or explain its findings on the record because, as we will explain, the prosecutor's reasons were neither inherently implausible nor unsupported by the record. ( People v. Silva, supra, 25 Cal.4th at p. 386 , 106 Cal.Rptr.2d 93 , 21 P.3d 769 .) Under these circumstances, we apply the usual substantial evidence standard. ( People v. McDermott, supra, at p. 980 , 123 Cal. Rptr.2d 654 , 51 P.3d 874 ; People v. Williams, supra, at pp. 189-190, 66 Cal. Rptr.2d 123 , 940 P.2d 710 .)

The prosecutor explained that he struck Prospective Juror C.S. because C.S. "preferred the reform approach rather than vote for death." Substantial evidence supports the conclusion that this reason was credible. On his questionnaire, C.S. wrote that he was not a strong supporter of the death penalty. In response to a question about how he felt about the death penalty, C.S. wrote: "I don't agree or disagree with the death penalty[.] [T]ry to reform that person reather [sic ] than the death penalty." His answers to several other questions emphasized the possibility of reform. When the prosecutor asked about those responses during voir dire, C.S. stated: "I think that you could be reformed, yes." Although C.S. also stated that he felt he could make the decision between life imprisonment without parole and the death penalty if asked to do so, on balance the record provides substantial support for the trial court's finding that the prosecutor reasonably was concerned that C.S. might be reluctant to impose the death penalty. A prospective juror's feelings about the death penalty are reasonably related to trial strategy (see Miller-El v. Cockrell, supra, 537 U.S. at p. 339 , 123 S.Ct. 1029 ) and are a legitimate raceneutral reason for exercising a peremptory challenge (see People v. Ledesma (2006) 39 Cal.4th 641, 678 , 47 Cal.Rptr.3d 326 , 140 P.3d 657 ; People v. Montiel (1993) 5 Cal.4th 877, 910, fn. 9 , 21 Cal.Rptr.2d 705 , 855 P.2d 1277 ).

Defendant asserts that a comparison of C.S.'s responses with the responses of non-Black jurors whom the prosecutor did not excuse demonstrates that the prosecutor's reasons were pretextual. The United States Supreme Court has instructed that such a comparative analysis may be a useful tool in proving purposeful discrimination: "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 *637 to be considered at Batson's third step." ( Miller-El v. Dretke, supra, 545 U.S. at p. 241, 125 S.Ct. 2317 ; see also Snyder v. Louisiana, supra, ___ U.S. at p. ___, 128 S.Ct. at pp. 1211-1212.)

In recent cases, we have assumed without deciding that comparative juror analysis is appropriate for the first time on appeal at the third step of the Batson/Wheeler analysis. ( People v. Stevens (2007) 41 Cal.4th 182, 196 , 59 Cal.Rptr.3d 196 , 158 P.3d 763 ; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1017-1024 , 47 Cal.Rptr.3d 467 , 140 P.3d 775 ; People v. Ledesma, supra, 39 Cal.4th at pp. 679-680, 47 Cal.Rptr.3d 326 , 140 P.3d 657 ; People v. Avila, supra, 38 Cal.4th at p. 546, 43 Cal.Rptr.3d 1 , 133 P.3d 1076 ; People v. Huggins, supra, 38 Cal.4th at pp. 232-235, 41 Cal.Rptr.3d 593 , 131 P.3d 995 ; People v. Guerra (2006) 37 Cal.4th 1067, 1106 , 40 Cal.Rptr.3d 118 , 129 P.3d 321 .) We do the same here. In doing so, we bear in mind that "the question is not whether we as a reviewing court find the challenged prospective jurors similarly situated, or not, to those who were accepted, but whether the record shows that the party making the peremptory challenges honestly believed them not to be similarly situated in legitimate respects." ( People v. Huggins, supra, at p. 233 , 41 Cal.Rptr.3d 593 , 131 P.3d 995 .)

Defendant points to two non-Black jurors whom the prosecutor did not challenge who, like C.S., wrote on their questionnaires that they were not strong supporters of the death penalty and who mentioned the role of rehabilitation. Unlike C.S., however, neither of those jurors stressed the importance of rehabilitation. J.A. stated in response to a question about the costs of imprisonment that "[t]here may be a possibility of rehabilitation to help others in prison."

And in response to a question about what government can do to solve the crime problem, M.K. suggested "programs to rehabilitate." [12] In contrast, in response to questions about whether the death penalty would be warranted in particular situations, C.S. repeatedly stated that he "strongly disagreed" with the statement because of the possibility of reform. In light of these responses, the prosecutor reasonably could have believed that J.A.'s and M.K.'s views on rehabilitation and reform were not similar to C.S.'s. Thus, the prosecutor's failure to challenge them does not undermine the credibility of his stated reason for exercising a peremptory challenge against C.S.

The prosecutor struck Prospective Juror P.B. because she initially indicated she felt unable to sit on a death penalty case and because in her questionnaire she wrote she was unsure how she felt about the death penalty. The record supports the trial court's implied finding that these reasons were credible. On her questionnaire, P.B. wrote she was not a strong supporter of the death penalty and answered "not sure" in response to questions regarding whether the death penalty would always be warranted in certain circumstances and to the question, "Tell us how you feel about the death penalty." On voir dire, when the prosecutor asked the panel, "Is there anyone here now who feels that they just could not sit on a death penalty case, they do not want to make that decision," P.B. volunteered, "I have to admit I'm not sure?" When questioned a few minutes later, she said: "I could probably do it, but you know, it is just—right now I wouldn't be sure, but if I had to, I would." These facts support the trial court's assessment that the prosecutor's stated race-neutral *638 reasons for peremptorily challenging P.B. were genuine.

A comparative analysis again does not aid defendant. Defendant does not claim that any of the non-Black sitting jurors, alternates or prospective jurors whom the prosecutor did not strike volunteered, in response to a question to the panel, that they felt they might not be able to sit on a death penalty jury. Accordingly, the prosecutor reasonably could have believed that his proffered reason for striking P.B. did not apply just as well to any other juror.

ii. Prospective Juror R.W.

Defendant made another Wheeler motion after the prosecutor used a peremptory challenge to strike Prospective Juror R.W., a Black woman. Without prompting by the trial court, the prosecutor volunteered his reasons for excusing R.W.: "She seemed to have been educated, as most of the jurors, as to the exact answers that will keep her on the jury, and I think the best as to what she said originally, she said that she is not a strong supporter of death on [questionnaire question No. 3]. She said that everyone is entitled to live, the death question [No. 6], and death [question No. 11], she indicates that it is not always the answer. [¶] I think when the time comes to it, she could not impose the death penalty, regardless as to what she said in open court and that is why I kicked her." The trial court denied defendant's Wheeler motion.

R.W.'s questionnaire responses support the prosecutor's assessment that she had scruples about the death penalty. R.W. wrote she was not a strong supporter of the death penalty. Asked to explain her feelings on the death penalty, she wrote: "It depends on the circumstances. I would have to know the crimes involved." In answer to a question about whether the death penalty helps society, she wrote: "In a way yes and no. Yes because others may see what can happen to them if they commit such a crime. And no because everyone is entitled to life." R.W. "agreed somewhat" that the death penalty should always be imposed for intentional murder and when the defendant intentionally killed more than one person in separate incidents, but in the former situation she "would need to know the circumstances involved." Asked whether the death penalty was always warranted in the case of a murder during the course of a burglary and sexual attack, she wrote she "agreed somewhat" because the "death penalty is not always the answer." She strongly disagreed that "convicted murderers should be swiftly executed." On balance, these answers reflect some hesitation about the death penalty, and the prosecutor reasonably could have believed they reflected R.W.'s true feelings and undermined her assurance on voir dire that she would not automatically vote for life imprisonment without possibility of parole.

Nothing in the record causes us to. doubt the sincerity of the prosecutor's assessment. Defendant points to R.W.'s questionnaire responses that he asserts reflect a stance favorable to the prosecution. For example, R.W. believed that criminal sentences should be harsher. Both her fiance and her uncle were in law enforcement, and she had been a victim of crime and was fearful of being victimized again. She described crimes that "deserve" the death penalty as intentional murder, killing children, and "killing someone to where they are unrecognizable." None of these expressed feelings was inherently in conflict with the prosecutor's assessment that R.W. might be hesitant to impose the death penalty in this case, which did not involve child victims or mutilation. R.W. also wrote in her questionnaire that she would expect the defendant to testify. Her written explanation, however, reflected a defense orientation; she stated, *639 "I feel they should be able to tell their own side." And on voir dire, she assured defense counsel that she would not hold it against a defendant if he or she did not testify. In sum, R.W. did not express leanings so favorable to the prosecution that the prosecutor could not honestly believe that she was hesitant about the death penalty.

Defendant further argues that a comparative analysis shows that the prosecutor's reasons for striking Prospective Juror R.W. were pretextual. He points to 14 non-Black jurors and prospective jurors whom the prosecutor did not strike who, like R.W., wrote on their questionnaires they were not strong supporters of the death penalty. But the prosecutor reasonably could have felt that eight of these 14 panelists would be more willing than R.W. to impose the death penalty, given their views about its social value. Thus, unlike R.W. (who, in response to the question about whether the death penalty helps society, answered "yes and no" because "everyone is entitled to life"), seven of these panelists (K.F., C.H., D.S., M.H., R.S., M.S., and H.D.) stated unequivocally in their questionnaires that they believed the death penalty helps society in one or more ways, such as by deterring crime, incapacitating the offender, saving the taxpayers money, or maintaining social order. The other panelist (G.P.) did not believe the death penalty helped society, but only because it was not used frequently enough to have any deterrent value. The prosecutor's failure to excuse these eight panelists thus provides no evidence that his peremptory challenge against R.W. was based on her race.

Regarding the other six non-Black jurors and prospective jurors defendant identifies whom the prosecutor did not strike and who were not strong death penalty supporters, their overall responses reflected more pro-death-penalty views than R.W.'s. D.N. wrote that "there is a place for the death penalty"; that there was "no other option" but the death penalty for some "horrendous" crimes; that someone who kills more than one person in separate incidents should get the death penalty because that person "has no respect for human life"; and that convicted murderers should be swiftly executed. R.P. previously had served as a juror on a death penalty case in which a verdict was reached, and stated on voir dire that he had no problem with how the judicial system worked in that case. P.M. wrote on her questionnaire that her support of the death penalty was 7 on a scale of 1 to 10, in part because "I see no need for us to pay to house someone in prison for life"; she believed that convicted murderers should be swiftly executed; and she strongly agreed that a person who kills more than one person on separate occasions should always receive the death penalty (although she retreated somewhat from that view on voir dire). J.A. stated on her questionnaire that she strongly agreed that a person who kills more than one person in separate incidents should always get the death penalty and that convicted murderers should be swiftly executed because "if a person has been given the death penalty I see no reason to wait." M.K. stated that she would lean in favor of the death penalty for a person who kills more than one person on separate occasions. J.G. stated on her questionnaire that she was in favor of the death penalty but would have to "be sure the circumstances of the crime warranted it," and that she believed serial killers should get the death penalty. On the whole, the prosecutor reasonably could have believed that these six prospective and selected jurors would be more favorably disposed toward the death penalty than R.W., so his failure to excuse them does not support an *640 inference that his excusal of R.W. was based on her race. [13]

Finally, defendant contends that the prosecutor's failure to ask R.W. any questions on voir dire and his exercise of a peremptory challenge against her immediately after passing her for cause reflect a "predetermined intention to challenge her based on her race." The United States Supreme Court has noted that a party's failure to engage in meaningful voir dire on a topic the party says is important can suggest the stated reason is pretextual. ( Miller-El v. Dretke, supra, 545 U.S. at pp. 246, 250, fn. 8, 125 S.Ct. 2317 .) Here, the prosecutor's failure to explore R.W.'s views on voir dire is somewhat troubling. The prosecutor, however, had the opportunity to observe R.W.'s demeanor during questioning by the trial court and defense counsel, and, as explained above, no other of the 14 identified non-Black, nonstricken jurors or prospective jurors expressed quite the level of hesitation about the death penalty on his or her questionnaire that R.W. did. Therefore, the prosecutor's failure to question her on voir dire does not undermine the trial court's conclusion that the prosecutor's stated reasons for striking her were not pretextual.

iii. Prospective Juror S.F.

Defendant made another Wheeler motion after the prosecutor used a peremptory challenge to strike Prospective Juror S.F., a Black woman. Counsel for codefendant Machuca joined and noted that the prosecutor several times had accepted a jury that included S.F. Turning to the prosecutor, the trial court asked: "All right. Any comment?" The prosecutor explained that although he had been willing to accept a jury that he was "not totally pleased with" on a number of occasions, since he now had many more peremptory challenges available than the defense did he had decided to use those challenges to dismiss jurors that he was "not totally comfortable with." He explained that he struck S.F. because she had a degree in psychology, had taken many classes in psychology and sociology, and had been a correctional counselor who evaluated committed felons. The prosecutor expressed concern that S.F. would rely on her educational and occupational background when evaluating anticipated psychiatric testimony at the penalty phase and would not be inclined to vote for the death penalty. The trial court denied defendant's Wheeler motion.

The record supports the trial court's conclusion that the prosecutor's stated reasons were credible. S.F. was a Parole Agent III for the State of California who in her questionnaire described her previous occupation as "Correctional counselor—Diagnostic evaluations from a sociological standpoint on committed felons" in a men's prison. In response to a question about whether she had taken courses in the behavioral sciences, she wrote: "Many, many, many, B.S. Psychology, minor Sociology. You name it, I probably took it to get the degree." In light of this educational and occupational background, the prosecutor reasonably could have been concerned that S.F. would rely on her background and would be disinclined to vote for the death penalty.

Defendant contends that the prosecutor's failure to peremptorily challenge several *641 White jurors and prospective jurors with backgrounds similar to S.F.'s undermines the credibility of the prosecutor's stated reason for peremptorily challenging S.F. But none of the jurors or prospective jurors whom the prosecutor did not challenge had the extensive educational background in psychology and sociology, nor the occupational background evaluating prisoners, that S.F. had. [14] Accordingly, the prosecutor's failure to peremptorily challenge these panelists does not support an inference that the prosecutor's challenge to S.F. was pretextual.

Defendant points out that the prosecutor asked no questions of S.F. on voir dire before peremptorily challenging her. But the prosecutor reasonably could have believed that voir dire would do nothing to clarify S.F.'s questionnaire responses, which were unambiguous and themselves sufficient to support the exercise of a peremptory challenge. (See People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1018, fn. 14, 47 Cal.Rptr.3d 467 , 140 P.3d 775 .) Moreover, the prosecutor exercised a peremptory challenge against C.G., a White prospective juror with an occupational background similar to S.F.'s. C.G. was an intake counselor at the California Institute for Men, responsible for preparing social evaluations of incoming prisoners. Assuming comparative analysis is appropriate for the first time on appeal, the prosecutor's peremptory challenge of C.G. supports an inference that his challenge to S.F. was not pretextual. (See People v. Wheeler, supra, 22 Cal.3d at p. 282 , 148 Cal.Rptr. 890 , 583 P.2d 748 [prosecutor may sustain burden of justification by, among other things, demonstrating "that in the course of this same voir dire he also challenged similarly situated members of the majority group on identical or comparable grounds"].) The totality of the circumstances thus supports the trial court's conclusion that the prosecutor's stated reasons for striking S.F. were not pretextual. [15]

*642 iv. Prospective Alternate Juror G.W.

Defendant made a final Wheeler motion after the prosecutor used' a peremptory challenge to strike Prospective Alternate Juror G.W., a Black woman. Again without stating whether it had found a prima facie case, the trial court stated: "All right. Mr. Urgo [prosecutor]?" The prosecutor responded: "She was dismissed for her views on the death penalty, your Honor. She stated so clearly in the questionnaire that she could never vote for the death penalty, yet she stated here that just because she heard the charges read that she could do it and she also indicated she could give up her religious beliefs to do it. [¶] I frankly don't believe that someone who is as adamant as she was in saying that she could never vote for the death penalty can change like that." The trial court denied defendant's Wheeler motion.

The record supports the credibility of the prosecutor's assertions. Although G.W. did not state in her questionnaire that she could never vote for the death penalty, [16] her answers to several questions revealed strong religious and other scruples about the death penalty. She wrote she was not a strong supporter of the death penalty. In response to the question "tell us how you feel about the death penalty," she wrote: "I feel that you are just as bad as the person that did the crime. This person may repent if he get life in prison. David in the Bible did. He killed someone." She answered "no" to a question about whether the death penalty helps society. In response to a question about whether there are any murders that do not deserve the death penalty, G.W. wrote: "I do not think anyone deserve the death penalty. Person may repent if he *643 get life in prison." When asked whether certain crimes always warrant the death penalty, she answered "Person will be punish more if he stay in prison for life," and "[t]his person may have a chance to repent while he is in prison." And she stated that life imprisonment without the possibility of parole was a more severe punishment than the death penalty.

During voir dire questioning by the trial court, Prospective Juror G.W. asserted that she could be fair and impartial and could consider both sentencing alternatives, death or life imprisonment without the possibility of parole, if the case reached the penalty phase. When defendant's counsel asked G.W. about her questionnaire answers, G.W. explained: "Well, at the time I was answering those questions I didn't have my glasses and I did the best I could. If I had taken it—been able to take it home, it would have been different." She then assured counsel that she could impose the death penalty if she felt it was appropriate after hearing the evidence. During questioning by the prosecutor, G.W. said that she recalled her questionnaire responses, but that being in court and listening to the judge read the charges had caused her to change her mind about whether she could impose the death penalty. She said she did not think she would "hold by those same [religious] beliefs" that caused her to write the answers she did in the questionnaire. In light of G.W.'s strongly expressed opposition to the death penalty in her questionnaire and her dubious explanation on voir dire of her purported change of mind, the record supports the trial court's conclusion that the prosecutor's skepticism about G.W.'s ability to impose the death penalty was genuine.

A comparative analysis again does not aid defendant. He points to no sitting or prospective juror whom the prosecutor did not challenge who expressed religious scruples against the death penalty as strong as those G.W. expressed. Accordingly, the prosecutor honestly could have believed that no panelist was similar to G.W.

Finally, we note that at the end of selection of the jurors, and before selection of the alternate jurors, three Black jurors—R.D., A.R., and J.Y.—were seated in the jury box. [17] The presence of these jurors on the panel is "`an indication of the prosecutor's good faith in exercising his peremptories.'" ( People v. Huggins, supra, 38 Cal.4th at p. 236, 41 Cal.Rptr.3d 593 , 131 P.3d 995 , quoting People v. Snow (1987) 44 Cal.3d 216, 225 , 242 Cal.Rptr. 477 , 746 P.2d 452 .) For all of these reasons, the trial court did not err in finding that defendant did not establish purposeful discrimination in the prosecutor's exercise of peremptory challenges.

b. Hispanic prospective jurors

After defendant's counsel made his Wheeler motion with respect to Prospective Juror R.W., but before the trial court had ruled, the following exchange took place:

"Mr. Tyre [Machuca's counsel]: Your Honor, I would join in that. The other reason also is I think his other peremptories, besides the Blacks, I believe that there is [sic ] three to four Hispanics that he has also kicked off, so it appears to be a systematic excusal of minorities.

"Mr. Coleman [defendant's counsel]: [J.L.] was one, the last Spanish that he kicked out.

"Mr. Gornik [Hubbard's counsel]: I join in the motion and if it hasn't been explicitly stated, [R.W.], who was just released, is *644 Black and three of the four defendants are Black."

The prosecutor responded by making a Wheeler motion of his own contesting defense counsel's use of peremptory challenges against Hispanics. He then explained his reasons for challenging R.W. The trial court intervened, saying, "Well, let's handle one thing at a time." After ascertaining that there would be no further argument regarding R.W., the trial court denied that motion. Defendant's counsel then joined the prosecutor's Wheeler motion regarding Hispanics. When codefendant Machuca's counsel stated, "We have no reasons, your Honor," the prosecutor withdrew his Wheeler motion. The court then took a recess. After the recess, voir dire continued without further discussion of the Wheeler motions.

Defendant now contends that the trial court erred in denying his Wheeler motion as to Hispanic Prospective Jurors CP. and J.L. We disagree. The failure to articulate clearly a Wheeler/Batson objection forfeits the issue for appeal. ( People v. Gallego (1990) 52 Cal.3d 115, 166 , 276 Cal.Rptr. 679 , 802 P.2d 169 .) Here, it is not clear that defendant made a Wheeler motion regarding the prosecutor's excusal of Hispanics. Machuca's counsel's comment that the prosecutor had "kicked" Hispanics appears to have been intended to bolster the argument that the prosecutor's excusal of R.W. violated Wheeler because there was "systematic excusal of minorities." Defendant's counsel's comment—"[J.L.] was one, the last Spanish that he kicked out"—hardly clarified the matter, and it was followed immediately by Hubbard's counsel's comment that three of the four defendants were Black. In context, these comments seem intended to support the defense motion regarding Blacks, not as a separate motion regarding Hispanics.

Even assuming defendant properly made a Wheeler/Batson motion regarding the prosecutor's excusal of Hispanics, we conclude the issue is not preserved for appeal. Failure to press for a ruling on a motion to exclude evidence forfeits appellate review of the claim because such failure deprives the trial court of the opportunity to correct potential error in the first instance. ( People v. Ramos (1997) 15 Cal.4th 1133, 1171 , 64 Cal. Rptr.2d 892 , 938 P.2d 950 .) The situation here is analogous. When defense counsel mentioned the prosecutor's excusal of Hispanic prospective jurors, the trial court was confronted with simultaneous argument on two other Wheeler motions: the defense motion regarding R.W., and the prosecutor's motion regarding defense excusals of Hispanics. Under the circumstances, defense counsel at least had an obligation to remind the court that it had not yet addressed the prosecutor's excusal of Hispanics, so that the court would have the opportunity to correct the alleged error. Here, the record does not reflect whether the trial court ignored counsel's comments about Hispanics, or simply forgot about them. Either way, it was incumbent on counsel, if they wished to pursue the matter, to secure a ruling from the trial court. The failure to do so forfeits the claim.

c. Young prospective jurors

Defendant argues that the trial court erroneously denied his motion challenging the prosecutor's use of peremptory challenges to exclude young persons from the jury. As defendant acknowledges, neither this court nor the United States Supreme Court has ever held that young persons are a cognizable group under Batson or Wheeler . Indeed, existing authority holds, to the contrary, that young persons are not a cognizable group. ( E.g., People v. McGhee (1987) 193 Cal.App.3d *645 1333, 1351-1352, 239 Cal.Rptr. 28 [young persons not a cognizable class under Wheeler ]; United States v. Pichay (9th Cir.1993) 986 F.2d 1259, 1260 [young persons not a cognizable group for purposes of equal protection challenge to petit jury under Batson ]; see also People v. Ayala (2000) 23 Cal.4th 225, 257 , 96 Cal.Rptr.2d 682 , 1 P.3d 3 ["`California courts have not been receptive to the argument that age alone identifies a distinctive or cognizable group within the meaning of [the representative cross-section] rule'"].) We decline to extend Batson and Wheeler beyond their current parameters.

2. Excusals for cause

Defendant asserts that the trial court erroneously excused for cause two prospective jurors who were equivocal about whether their attitude toward the death penalty would affect their deliberations at the penalty phase, violating his right to an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 16 of the California Constitution. (See Morgan v. Illinois (1992) 504 U.S. 719, 726-728 , 112 S.Ct. 2222 , 119 L.Ed.2d 492 ; People v. Williams, supra, 16 Cal.4th at pp. 666-667, 66 Cal.Rptr.2d 573 , 941 P.2d 752 ; People v. Johnson (1992) 3 Cal.4th 1183, 1210 , 14 Cal.Rptr.2d 702 , 842 P.2d 1 .) "To achieve the constitutional imperative of impartiality, the law permits a prospective juror to be challenged for cause only if his or her views in favor of or against capital punishment "would "prevent or substantially impair the performance of his [or her] duties as a juror"' in accordance with the court's instructions and the juror's oath. [Citations.]" ( People v. Blair (2005) 36 Cal.4th 686, 741 , 31 Cal. Rptr.3d 485 , 115 P.3d 1145 .)

"`"A prospective juror is properly excluded if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate." [Citation.]' [Citation.] In addition, `"[o]n appeal, we will uphold the trial court's ruling if it is fairly supported by the record, accepting as binding the trial court's determination as to the prospective juror's true state of mind when the prospective juror has made statements that are conflicting or ambiguous." [Citations.]'" ( People v. Jenkins (2000) 22 Cal.4th 900, 987 , 95 Cal.Rptr.2d 377 , 997 P.2d 1044 .)

At the outset, defendant asserts that "the current rule which this Court is applying—holding that a trial court may rely on a prospective juror's equivocal responses to discharge that juror in a capital case," is inconsistent with United States Supreme Court precedent, including Adams v. Texas (1980) 448 U.S. 38 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 and Gray v. Mississippi (1987) 481 U.S. 648 , 107 S.Ct. 2045 , 95 L.Ed.2d 622 . We have rejected the contention that our rule is inconsistent with Gray v. Mississippi. (People v. Moon (2005) 37 Cal.4th 1, 14-15 , 32 Cal. Rptr.3d 894 , 117 P.3d 591 .) The high court's most recent ruling on this subject reaffirms that deference to the trial court is appropriate when the prospective juror's remarks are ambiguous or equivocal. The high court explained that "deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors." ( Uttecht v. Brown (2007) ___ U.S. ___, ___, 127 S.Ct. 2218, 2224 , 167 L.Ed.2d 1014 ; accord, Wainwright v. Witt (1985) 469 U.S. 412, 426 , 105 S.Ct. 844 , 83 L.Ed.2d 841 ["deference must be paid to the trial judge who sees and hears the juror"].) Moreover, "when there is ambiguity in a prospective juror's statements, 'the trial court, aided as it undoubtedly [is] by its assessment of [the venireman's] demeanor, *646 [is] entitled to resolve it in favor of the State.'" ( Uttecht v. Brown, supra, at p. ___, 127 S.Ct. at p. 2223 , quoting Wainwright v. Witt, supra, at p. 434, 105 S.Ct. 844 .) These statements foreclose defendant's claim that our rule is inconsistent with federal law. Accordingly, we pay our usual deference to the trial court's resolution of the factual question of the prospective jurors' true state of mind based on that court's unique ability to "`observe and listen to the prospective jurors.'" ( People v. Griffin (2004) 33 Cal.4th 536, 559 , 15 Cal.Rptr.3d 743 , 93 P.3d 344 , quoting People v. Cain (1995) 10 Cal.4th 1, 60 , 40 Cal.Rptr.2d 481 , 892 P.2d 1224 .)

Turning to the merits, we conclude that substantial evidence supports the trial court's conclusion that Prospective Jurors H.G. and L.H. held views about capital punishment that would prevent or substantially impair their ability to perform their duties as jurors.

On her questionnaire, Prospective Juror H.G. expressed general opposition to the death penalty, stating several times that no murder deserves the death penalty and that she did not "believe in the death penalty." On voir dire, the trial court asked her: "Is there anything that you would like to bring to the court's attention that might in any way affect your ability to be a fair and impartial juror in this particular case?" She answered: "No, other than that I at this point do not believe in the death sentence." When the court and counsel attempted to clarify her views, she said she would not automatically vote for death or life imprisonment without possibility of parole if the case reached the penalty phase, and also that she would follow the court's instructions, would consider both sentencing options, and would fairly consider all the evidence before deciding on the penalty of death or life imprisonment without possibility of parole. During questioning by the prosecutor, H.G. reiterated that she believed there were alternatives to the death penalty, that she did not "like" the death penalty, and that she did not "believe you should take a life." The prosecutor then asked H.G. whether she could "put aside" her personal beliefs and vote for death "if the aggravating circumstances outweighed the mitigating." H.G. answered, "I don't think with my frame of mind now that I could vote for death." (Italics added.) The exchange continued:

"Mr. Urgo: You don't think you could?

"Prospective Juror H.G.: No.

"Mr. Urgo: Is there anything anybody cart say to change your mind about that? That is, do you think—do you think if some of these attorneys got back up here and they started to talk to you, do you think could you change your mind and say, well, yeah, I could do it?

"Prospective Juror H.G.: Well, with my entire self right now, I don't think I would change. It is just—I just don't believe in the death penalty. [¶] ... [¶]

"Mr. Urgo: This is—the death penalty, though, is something that you yourself could not impose; is that correct?

"Prospective Juror H.G.: I don't think that I could impose the death penalty. [¶] ... [¶]

"Mr. Urgo: You, however, believe that you at least don't think you could impose the death penalty?

"Prospective Juror H.G.: I don't think and I say it loudly, I don't think I could impose the death penalty. I think that—I think there could be other options. I just—it is my belief. I just don't believe in the death penalty.

"Mr. Urgo: Well, what would you do at the end of the trial if after all the—after all the penalty phase evidence came out, if you believe that the aggravating circumstances *647 outweigh the mitigating circumstances, would you nonetheless vote—vote for death, or would you say, no, I can't do that, I'm going to look at other options?

"Prospective Juror H.G.: I would not— unless some big change comes to my mind, I would not vote for the death penalty." (Italics added.)

This exchange amply supports the trial court's conclusion that Prospective Juror H.G.'s views on capital punishment would prevent or substantially impair her ability to perform her duties as a juror in this capital case. H.G. stated, no less than four times, both "loudly" and "with my frame of mind now," that she did not think she could impose the death penalty or vote for the death penalty if the case came to the penalty phase. She also said "with my entire self that she did not think there was anything that would change her mind. With these statements, H.G. emphatically expressed her belief that she could not consider the death penalty as an option in this case. The trial court did not err in excluding H.G. for cause.

Defendant argues that Prospective Juror H.G. was not excludable for cause because her responses show only that she did not "think" she could impose the death penalty and because she left open the possibility of a change of mind. We disagree. In Wainwright itself, the United States Supreme Court held a prospective juror was properly excluded where, in response to a question whether her view on the death penalty would interfere with her judging the guilt or innocence of the defendant, the juror responded, "I think it would." ( Wainwright v. Witt, supra, 469 U.S. at pp. 415-416, 105 S.Ct. 844 .) Moreover, the trial court was entitled to resolve any ambiguity created by the statement "unless some big change comes to my mind" in favor of the prosecution, based on its assessment of H.G.'s demeanor. (See Wainwright v. Witt, supra, at p. 434, 105 S.Ct. 844 .) As the high court has explained, "many veniremen simply cannot be asked enough questions to reach the point where their bias has been made `unmistakably clear.'" ( Id. at pp. 424-425, 105 S.Ct. 844 ; accord, Uttecht v. Brown, supra, ___ U.S. at p. ___, 127 S.Ct. at p. 2223 .) Here, H.G.'s responses to the questions posed to her enabled the trial court to determine that she would not consider the death penalty as an option and that it was unrealistic to expect her to change her mind. No more was required.

Like H.G., Prospective Alternate Juror L.H. expressed general opposition to the death penalty in her questionnaire. She stated that if the case reached the penalty phase she would always vote for life imprisonment without possibility of parole, that she was not a strong supporter of the death penalty because "in almost all circumstances it is inappropriate for the government to kill," that the death penalty does not deter criminals, that murderers who torture their victims deserve the death penalty but most others do not, and that it was not right for the government to kill someone.

On voir dire, the trial court and counsel attempted to clarify L.H.'s views. When the court asked L.H. whether there was "anything that you would like to bring to our attention that might affect your ability in any way to be a fair and impartial juror," L.H. answered, "Well, I think I would be [sic ] a problem inflicting capital punishment." L.H. then answered "no" to a question whether she would always vote for the death penalty if the case reached the penalty phase, but "yes" to a question whether she would always vote for life imprisonment without possibility of parole if the case reached that phase. When asked whether there were any circumstances under which she could vote for the death penalty, L.H. responded, "I really don't think so."

*648 Codefendant Hubbard's counsel then questioned L.H. Qualifying her previous statements, L.H. admitted she could conceive of a type of case that would cause her to vote for the death penalty, so she was not "totally precluding" that possibility. Under questioning by the prosecutor, however, L.H. clarified that there were only a "very few circumstances" under which she could vote for the death penalty, giving as an example the Jeffrey Dahmer case.

The following colloquy between the trial court and L.H. then ensued:

"The Court: And so there are circumstances under which you might vote for the death penalty? You are not totally opposed to it?

"Prospective Alternate Juror L.H.: That's correct.

"The Court: And depending upon what you find out as a result of having heard this case, in the event that you find them guilty and find a special circumstance to be true, conceivably you could vote for the death penalty?

"Prospective Alternate Juror L.H.: Conceivably, but I think it unlikely. [¶] ... [¶]

"The Court: Does that mean you've made up your mind?

"Prospective Alternate Juror L.H.: I think actually it does mean I've made up my mind.

"The Court [to counsel for defendants]: Well, now do you want to pursue that any more?

"Mr. Gornik: Well, your Honor, I think she has indicated there is the possibility. I think that is enough.

"The Court: Well, the last expression was she has made up her mind and the answer is no." (Italics added.) The trial court then excused L.H. for cause.

This record provides ample support for the trial court's finding that, because L.H. had "made up her mind," her views on the death penalty would impair her ability to fulfill her duties as a juror in this case. We bear in mind that in assessing challenges for cause, the crucial inquiry is "whether the juror's views about capital punishment would prevent or impair the juror's ability to return a verdict of death in the case before the juror." ( People v. Visciotti (1992) 2 Cal.4th 1, 45, fn. 16 , 5 Cal.Rptr.2d 495 , 825 P.2d 388 , italics added; accord, People v. Heard (2003) 31 Cal.4th 946, 958 , 4 Cal.Rptr.3d 131 , 75 P.3d 53 .) Here, L.H.'s questionnaire and voir dire responses demonstrate that she was familiar with the facts of this case from media coverage, and the charges had been read to her. With those facts and charges in mind, L.H. said she "conceivably" could vote for the death penalty in this case, but she thought it unlikely. When pressed, she acknowledged that she had made up her mind. Although L.H. stated that she might be willing to consider the death penalty in certain very narrow circumstances, she gave as an example the Jeffrey Dahmer case, a case with facts far removed from those here. [18]

*649 Defendant contends that L.H.'s final answer, that she had "made up [her] mind," was ambiguous and therefore the trial court was obligated to question her further. In People v. Heard, we stated: "If the trial court remained uncertain as to whether [Prospective Juror] H.'s views concerning the death penalty would impair his ability to follow the law or to otherwise perform his duties as a juror, the court was free, of course, to follow up with additional questions." ( People v. Heard, supra, 31 Cal.4th at p. 965, 4 Cal.Rptr.3d 131 , 75 P.3d 53 .) Here, however, the trial court was not uncertain. Rather, after observing L.H.'s demeanor, the court interpreted her response as an unambiguous statement that she had made up her mind not to vote for the death penalty in this case. The court therefore was not obliged to question L.H. further. Moreover, defense counsel's decision not to conduct further questioning suggests they believed L.H. could not be rehabilitated. (Cf. Wainwright v. Witt, supra, 469 U.S. at pp. 434-435, 105 S.Ct. 844 .)

3. Denial of defendant's challenge for cause

Defendant contends that the trial court's denial of his challenge for cause to Prospective Juror S.H. violated his rights to due process and an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution. As we have explained, a prospective juror may be removed for cause only if that juror's views in favor of or against capital punishment "would `prevent or substantially impair the performance of his [or her] duties as a juror'" in accordance with the trial court's instructions and the juror's oath. ( Wainwright v. Witt, supra, 469 U.S. at p. 424 , 105 S.Ct. 844 , quoting Adams v. Texas, supra, 448 U.S. at p. 45 , 100 S.Ct. 2521 .) "[T]he qualification standard operates in the same manner whether a prospective juror's views are for or against the death penalty." ( People v. Cash (2002) 28 Cal.4th 703, 720 , 122 Cal.Rptr.2d 545 , 50 P.3d 332 , citing Morgan v. Illinois, supra, 504 U.S. at pp. 726-728, 112 S.Ct. 2222 .) Here, the trial court properly declined to excuse S.H. under this standard.

Prospective Juror S.H. expressed strong pro-death-penalty views on his questionnaire. For example, he stated that he strongly supported the death penalty because "if someone kills a human being wrongfully then that person may be capable of killing more," that there were no murders that did not deserve the death penalty, that multiple murderers and murderers who kill during a burglary and sexual attack should always receive the death penalty, and that intentional murderers should get the death penalty except when a person kills so that the victim "would not have to suffer a slow death." In his view, the death penalty helps society by reducing overcrowding in prisons and by providing "relief for the people involved. On the other hand, he affirmed he would follow the trial court's instructions even if they conflicted with his beliefs or opinions, and he stated he would want information about a defendant's background and family before deciding which penalty to impose.

On voir dire, S.H. made conflicting statements. For example, he said that he would not automatically impose either the death penalty or life imprisonment without possibility of parole if the case reached the penalty phase, and that he would not vote for the death penalty "almost every time." On the other hand, he said he stood by his questionnaire responses that there were *650 no murders that did not deserve the death penalty and that the death penalty should always be imposed in cases of multiple murder. Defendant's counsel asked: "Now, if we get to the penalty phase in this trial and the defendants in this case are convicted of more than one killing, according to what you said, and you have answered affirmative, that you are going to impose the death penalty; isn't that correct?" S.H. answered, "Yes." The voir dire continued for some time in this ping-pong manner, with S.H. stating in response to questioning from defense counsel that he would always vote for the death penalty if he found a defendant guilty of multiple murders with use of a weapon, but reaffirming in response to questioning from the prosecutor and the court that he would consider life imprisonment without parole as an option even in cases of multiple murder. These exchanges culminated with the following:

"Mr. Gornik [codefendant Hubbard's counsel]: ... It may come down to you believing beyond a reasonable doubt that a particular defendant is guilty of five separate murders and special circumstances and gun use, all right? [¶] What I want to know is if you conclude that beyond a reasonable doubt to where you've convicted that person, is there any other penalty that you could give that person but death?

"Prospective Juror S.H.: Life without parole.

"Mr. Gornik: Okay. [¶] So you are saying that you would be open to hearing evidence that would be set forth in the penalty, phase?

"Prospective Juror S.H.: Yes.

"Mr. Gornik: Do you honestly believe that there may be some circumstances or evidence that we could bring out during the penalty phase that might cause you to vote for something other than death?

"Prospective Juror S.H.: It could be." (Italics added.)

The trial court denied defendant's challenge for cause, and defendant exercised a peremptory challenge against S.H.

Substantial evidence supports the trial court's conclusion that Prospective Juror S.H. did not hold views regarding capital punishment that would prevent or substantially impair the performance of his duties as a juror in this case. ( People v. Williams, supra, 16 Cal.4th at p. 668, 66 Cal.Rptr.2d 573 , 941 P.2d 752 .) In response to questioning by the prosecutor, the court, and defense counsel, S.H. said that he would "weigh out the evidence, in addition to the murders" before deciding on the penalty; that he would listen to the penalty phase evidence from both sides; that after hearing the penalty phase evidence he might change his mind about the death penalty, even if he concluded the defendant had killed three or four people; that he would not always vote for the death penalty; and that there could be evidence that might convince him to vote for life without possibility of parole. Although he also gave responses that conflicted with those views, the trial court was entitled to resolve the conflicts in favor of the prosecution based on its observations of S.H.'s demeanor ( Wainwright v. Witt, supra, 469 U.S. at p. 434 , 105 S.Ct. 844 ), and its determination is binding on us ( People v. Jenkins, supra, 22 Cal.4th at p. 987, 95 Cal.Rptr.2d 377 , 997 P.2d 1044 ).

Defendant asserts that People v. Boyette (2002) 29 Cal.4th 381 , 127 Cal.Rptr.2d 544 , 58 P.3d 391 compels the conclusion that the trial court erred by declining to excuse Prospective Juror S.H. for cause. There, we held the trial court should have sustained the defendant's challenge for cause t

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