People v. Powell

Filed 9/17/18

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S043520

v. )

)

CARL DEVON POWELL, )

) Sacramento County

Defendant and Appellant. ) Super. Ct. No. 113126

____________________________________)

A jury convicted defendant Carl Devon Powell of first degree murder,

robbery, and grand theft. It found that the murder occurred during the robbery and

that defendant personally used a firearm. It then returned a verdict of death.1 The

court imposed that sentence, as well as an aggregate determinate sentence of eight

years four months. This appeal is automatic. We affirm the death judgment.

1 Two codefendants, John and Terry Hodges, were tried with defendant, but

before a separate jury. At the end of the guilt phase, the Hodges brothers were

granted mistrials because the prosecutor, in his opening statement, informed their

jury of testimony he anticipated from defendant that incriminated them.

Defendant, however ultimately exercised his constitutional right not to testify. All

references to defendant are to Mr. Powell.

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I. FACTS

A. Guilt Phase

Keith McDade and his wife Colleen owned and managed a Kentucky Fried

Chicken (KFC) franchise in Sacramento. Between 10:30 and 11:00 on the night of

January 19, 1992, Keith left the building with a box of chicken and the day’s

receipts. While sitting in his parked car, he was shot in the head at point-blank

range. A KFC box and a bank bag were later found by the roadside two or three

miles away. The bank bag had been cut open. Inside were a deposit slip, a

personal check of the McDades, and some KFC gift certificates.

Defendant, an 18-year-old former employee, was soon arrested. His

fingerprints were lifted from the recovered chicken box and gift certificates. He

gave several versions of the killing. First, he claimed he waited in a car while

someone else robbed and killed McDade. Next, he said he shot McDade, but the

gun went off accidentally after McDade threatened to have him killed. Then, he

admitted he shot intentionally, but only because he was frightened by McDade’s

threats. Finally, after identifying Terry and John Hodges as his accomplices, he

said the brothers had insisted he kill McDade to eliminate him as a witness. This

last version was consistent with the testimony of Daryl Leisey, an acquaintance of

Terry Hodges. Terry told Leisey that “the other guy” had been taking too long, so

Terry had to tell him to “get it over with” and “just whack the motherfucker.”

Terry wanted no witnesses. The shooter was a “wimp” who had “no heart,” so

Terry had to “jack him up.” Eric Banks, a cellmate of John Hodges, gave similar

testimony. John told Banks that defendant had not wanted to kill anyone, but John

ordered him to kill McDade so he could not identify them.

On a car trip from Stockton to Sacramento, defendant confessed his role in

the crimes to Angela Littlejohn, the mother of a friend. He said McDade had

threatened him and “had it coming.” When Littlejohn learned that defendant had

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the murder weapon with him, she demanded he give it to her. She was afraid he

might use it against her or get her son into trouble with it. Defendant surrendered

the weapon, but later asked Littlejohn to return it. She refused and eventually

threw it in a dumpster. Officers retrieved the weapon. The bullet recovered

during the autopsy was damaged, but bore markings consistent with the barrel of

the recovered gun.

Eight to nine months before the murder, the McDades had discovered that

three of their franchise’s daily deposits were not reflected on their bank records.

The amounts were about $800, $1,500, and $2,000. Defendant had worked on the

days these deposits were to be made. The McDades told all their employees they

would hire an investigator unless the money was returned. The next day,

defendant called and said he had to leave town. They told him he had to complete

his schedule for the week or lose his job, as was their policy. Defendant did not

come to work. After he left his job, he spoke to another KFC employee about

robbing the restaurant. Later in the summer, he began asking for his job back.

They did not want to rehire him, given the circumstances of his departure. During

his police interview, defendant admitted to three thefts from the business in the

amounts of $1,600, $2,200, and either $800 or $1,100.

B. Penalty Phase

Widow Colleen McDade testified that she and Keith had a good

relationship with defendant. They tried to help him, and he would talk to them

about personal problems at school or with girls. He played with their children at

the store. They would give him bus money if he needed an advance on his

paycheck. Initially he was a good worker, but his performance declined. He came

in late and missed shifts, then the thefts occurred. Colleen recounted the impact of

Keith’s murder on her and their children. Her mother gave similar testimony.

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Witnesses described previous assaults in which defendant participated,

several of them gang-related. A detective testified that in late 1991 defendant was

known as a “main player” in the Freeport Crips gang.

In mitigation, the defense presented testimony from defendant’s mother,

brothers, and a family friend about his upbringing in a South Central Los Angeles

neighborhood rife with gangs and drugs. His father left the family when defendant

was one or two years old. His mother struggled to raise six children, sometimes

working two jobs. Defendant participated regularly in church activities. When he

was 16, his family wanted him to get out of the neighborhood, so they sent him to

live with his brother in Sacramento. He attended high school there and helped

care for his brother’s children. He liked his job at KFC, but had difficulty with

school.

His family did not know defendant belonged to a gang. His relatives

acknowledged the pain caused by the murder and expressed their sympathy. An

expert testified about the social structure of gangs and how older members

manipulate those younger and less sophisticated. A psychologist testified that

defendant’s intelligence quotient was in the fourth percentile, bordering on

intellectual disability. On a personality test, he scored high for paranoia, deviant

thought patterns, anxiety, and introversion. He was incapable of complex

planning but susceptible to manipulation. Jail officers testified that defendant was

a trustworthy inmate worker.

II. DISCUSSION

A. Pretrial Issues

1. Use of Dual Juries

Early in pretrial proceedings, Terry Hodges moved for a severance,

anticipating that defendant’s statements to the police would implicate the Hodges

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brothers. He argued admission of defendant’s hearsay statements would deprive

them of the opportunity to confront him as a witness. (See Bruton v. United States

(1968) 391 U.S. 123, 126; People v. Aranda (1965) 63 Cal.2d 518, 524.) The

severance motion was granted, but the court considered whether to hold separate

trials or one trial with separate juries.

The prosecutor requested dual juries. At the first court hearing, defendant’s

counsel said defendant would testify in the prosecution’s case-in-chief that the

Hodges brothers had forced him to commit the killing. This unusual defense

strategy was to have a transformative impact on the trial. The court pointed out

that there could be no assurance defendant would actually waive his privilege

against self-incrimination and take the stand. The prosecutor said defense counsel

“seems pretty firm that his client is going to testify,” and defense counsel

confirmed that intent. At the next hearing, the court observed that if defendant

testified, the need for either a severance or dual juries would be eliminated.

However, the prosecutor and defense counsel agreed that no one could know for

certain whether defendant would take the stand when the time came.

Nevertheless, defendant’s counsel repeated his expectation that his client would do

so, and the prosecutor maintained his request for separate juries. Defendant’s

counsel concurred with that preference, noting he had not joined in Terry

Hodges’s severance motion. Counsel for John Hodges stated a preference for

separate trials.

At a later hearing on the admissibility of statements made by the Hodges

brothers, John’s counsel emphasized the conflicting interests among the

defendants. Defendant’s counsel responded that antagonistic defenses were not

necessarily a ground for severance and contended the Hodges brothers were

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attempting to “escape, basically, from a joint trial.” He conceded that on certain

issues, his position was closer to the prosecutor’s than to the Hodges brothers’.2

Counsel adhered to his promise that defendant would testify and also to his

preference for a joint trial. Subsequently, the prosecutor mentioned the possibility

of trying defendant with one of the brothers and conducting a separate trial for the

remaining brother. Defendant’s two lawyers said their first choice was for one

jury. Otherwise, they preferred a single trial with separate juries. The prosecutor

finally opted for dual juries. Defendant’s counsel said, “Sounds reasonable to

me.” The court chose that procedure.

The prosecutor’s opening statement was given to both juries. Ultimately,

despite his counsel’s repeated assurances, defendant elected not to testify. He now

contends the court erred by employing two juries. He recognizes that dual juries

are an accepted means of honoring the statutory presumption favoring joint trials.

(Pen. Code, § 1098;3 People v. Jackson (1996) 13 Cal.4th 1164, 1207-1208

(Jackson); People v. Harris (1989) 47 Cal.3d 1047, 1075.) Nonetheless, he

contends he was prejudiced by the prosecutor’s opening statement, which related

defendant’s expected testimony that the Hodges brothers had coerced him into

shooting McDade. Defendant urges that the jury would have drawn a negative

inference against him when no such testimony was forthcoming. He also argues

he was prejudiced by the brothers’ antagonistic defenses, their attacks on the

credibility of Leisey and Banks, and their disappearance after mistrials were

2 Both the prosecution and defendant’s counsel wanted defendant’s

testimony against the Hodges brothers. The defense sought to shift blame to them.

The prosecutor acknowledged that if defendant did not testify, the case against the

brothers would rest on the testimony of Daryl Leisey and Eric Banks, both of

whom had credibility problems.

3 Further undesignated statutory references are to the Penal Code.

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declared upon his refusal to testify. He further complains of the logistical

difficulties posed by having two juries in a courtroom designed for one and the

likelihood that his jury speculated about the evidence it did not hear when excused

from the courtroom.4

The Attorney General contends defendant has forfeited these claims by

failing to object below and, indeed, invited any error by endorsing the idea of dual

juries. We agree. Defendant’s counsel repeatedly made it plain that they wanted

to go to trial with the Hodges brothers. If one jury were not possible, counsel

consistently favored two. Given this oft-stated tactical preference, defendant is in

no position to claim error. (People v. Coffman and Marlow (2004) 34 Cal.4th 1,

49.) He asserts his counsel’s objection to a severance encompassed the dual jury

question. The argument fails. Counsel steadfastly opposed the idea of separate

trials, but never objected to dual juries. To the contrary, they affirmatively

expressed their approval of the procedure on a number of occasions.

In any event, defendant fails to demonstrate error in the use of two juries.

“Whether the court abused its discretion by denying complete severance and

impaneling separate juries is decided on the basis of the facts known at the time of

the ruling on the severance motion.” (People v. Cummings (1993) 4 Cal.4th 1233,

1287 (Cummings).) Defendant concedes that when the trial court made its ruling,

dual juries were a proper option. He cannot show, based on subsequent events,

any “identifiable prejudice or ‘gross unfairness [that deprived him] of a fair trial or

due process of law.’ ” (Ibid.) His primary ground for asserting prejudice arises

4 Defendant asserts violations of his right to a fair trial under the Fourteenth

Amendment, his right to remain silent under the Fifth Amendment, his rights to

trial by jury and effective assistance of counsel under the Sixth Amendment, and

his right to a reliable guilt and penalty determination under the Eighth

Amendment.

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from his own decision not to testify, which disrupted the trial strategy of his

defense team. As discussed more fully below, no cognizable prejudice or

unfairness resulted from defendant’s exercise of his privilege not to testify.

His remaining arguments fail as well. Claims of antagonistic defenses and

attempts by codefense counsel to discredit witnesses are insufficient. (Jackson,

supra, 13 Cal.4th at pp. 1208-1209; see People v. Letner and Tobin (2010) 50

Cal.4th 99, 150, 153.) As to the Hodges brothers’ absence after their mistrials, the

trial court instructed the jury not to speculate about their status and to decide

defendant’s case based solely on the evidence about him. Logistical difficulties,

and the potential for jury speculation about evidence received in its absence, are

not necessarily an impediment to the use of dual juries. (People v. Harris, supra,

47 Cal.3d at pp. 1071-1072.) Defendant’s description of the inconveniences

caused by having two juries falls well short of establishing identifiable prejudice

or gross unfairness. (Cummings, supra, 4 Cal.4th at p. 1287.)

2. Refusal To Exclude Jurors for Cause

The juries for defendant and the Hodges brothers were selected separately.

Defendant contends the court erroneously failed to exclude two of his jurors for

cause, requiring the defense to use peremptory challenges to remove them.5 The

defense eventually exhausted its peremptory challenges but expressed no

dissatisfaction with the jury as empaneled. The Attorney General urges this

failure to protest forfeited any claim of error. (See People v. Crittenden (1994) 9

Cal.4th 83, 121, fn. 4.) Defendant correctly notes we have not required expressed

5 He claims violations of his rights to a fair trial under the Sixth Amendment

and article I, section 16 of the California Constitution; to due process under the

Fifth and Fourteenth Amendments and article I, sections 7 and 15 of the California

Constitution; and to a fair and reliable penalty determination under the Eighth and

Fourteenth Amendments and article I, section 17 of the California Constitution.

8

dissatisfaction when, as here, the trial took place before our decision in Crittenden.

(People v. Wallace (2008) 44 Cal.4th 1032, 1055 (Wallace); People v. Boyette

(2002) 29 Cal.4th 381, 416.)

We need not examine the merits of defendant’s claim because he cannot

establish prejudice. He argues that if he had not been required to use peremptory

challenges on two prospective jurors, he could then have struck Juror Nos. 1 and

5. He now claims both of these jurors were constitutionally inadequate. The

argument is not sustainable. The defense challenged neither juror for cause.

Subsequently, with peremptory challenges still available, defendant’s counsel

twice expressed their willingness to accept panels including Juror Nos. 1 and 5.

Accordingly, defendant cannot now claim he was forced to keep these jurors.

3. Defendant’s Absence from Certain Proceedings

Defendant claims his absence from certain pretrial proceedings violated his

rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal

Constitution and article I, section 15 of the California Constitution. Defendant

fails to demonstrate prejudice.

“ ‘Under the Sixth Amendment’s confrontation clause, a criminal defendant

does not have a right to be personally present at a particular proceeding unless his

appearance is necessary to prevent “interference with [his] opportunity for

effective cross-examination.” ’ [Citation.] [¶] ‘Similarly, under the Fourteenth

Amendment’s due process clause, a criminal defendant does not have a right to be

personally present at a particular proceeding unless he finds himself at a “stage . . .

that is critical to [the] outcome” and “his presence would contribute to the fairness

of the procedure.” ’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1231 (Cole); see

People v. Castaneda (2011) 51 Cal.4th 1292, 1317-1318.) “ ‘The state

constitutional right to be present at trial is generally coextensive with the federal

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due process right.’ ” (People v. Butler (2009) 46 Cal.4th 847, 861.) “Under

article I, section 15 of the California Constitution, ‘a criminal defendant does not

have a right to be personally present “either in chambers or at bench discussions

that occur outside of the jury’s presence on questions of law or other matters as to

which [his] presence does not bear a ‘ “ ‘reasonably substantial relation to the

fullness of his opportunity to defend against the charge.’ ” ’ ” ’ ” (Cole, at p.

1231; see Castaneda, at p. 1318.)6 “Erroneous exclusion of the defendant is not

structural error that is reversible per se, but trial error that is reversible only if the

defendant proves prejudice.” (People v. Perry (2006) 38 Cal.4th 302, 312; see

People v. Delgado (2017) 2 Cal.5th 544, 569, fn. 14 (Delgado).)

Defendant complains he was absent from several proceedings when the

court and counsel discussed whether he would testify, the substance of his possible

testimony, and whether the prosecutor would mention his anticipated testimony in

opening statements. As set out below, however, defendant was present for

numerous other hearings at which these subjects were thoroughly covered.

Moreover, the court directly advised him that the decision was his alone and made

sure he understood its consequences. Any possible error was harmless beyond a

reasonable doubt.

Defendant was absent from a chambers hearing on April 18, 1994, when

the court and counsel discussed the theory of his defense and its impact on

whether dual juries would be required. At that hearing, his counsel disclosed that

6 Defendant develops no distinct arguments under the Fifth, Sixth, or Eighth

Amendments. He mentions his statutory right to be present under sections 977

and 1043, but makes no explicit argument for statutory error. In any event, for the

reasons we discuss in connection with his constitutional arguments, it is not

reasonably probable that he would have obtained a more favorable result at either

phase of trial had his statutory rights been strictly observed. (See People v.

Weaver (2001) 26 Cal.4th 876, 968.)

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defendant was prepared to testify for the prosecution that the Hodges brothers had

coerced him to shoot McDade. However, on the afternoon of the same day,

defendant was present when the court explained that if he did in fact testify, there

would be no need for dual juries because he would be subject to cross-

examination. Only if he decided not to testify would separate juries be required.

(See Bruton v. United States, supra, 391 U.S. at p. 126; People v. Aranda, supra,

63 Cal.2d at p. 524.) In defendant’s presence, it was made abundantly plain that

no one could be sure whether he would testify until he actually took the stand. His

counsel agreed, adding that while defendant was expected to testify, he could

change his mind.

Defendant was absent from a portion of an April 19 discussion about

whether to hold a conditional examination to determine the substance of his

testimony. This option was not pursued. Defendant was present the next day

when his counsel outlined strategies for preserving the Hodges brothers’

confrontation rights. Counsel said, “We are willing to go forward with any

procedure that the Court can fashion to guarantee that the codefendants have an

effective right to cross-examine.”

Defendant was present on May 3 when his possible testimony was

discussed again. The court mentioned the potential for conflicts between his

anticipated testimony and his statements to the police. His counsel again made it

clear that an “ironclad guarantee” of defendant’s testimony was impossible and

mentioned that the prosecutor might have to redact his opening statement to avoid

exposing the jurors to evidence that might not be presented. Defendant was

present on May 9 when his possible testimony and its effect on the dual jury

question were yet again subjects of discussion. On May 17, in defendant’s

absence, the court and his counsel considered whether the possibility that

defendant might not testify should be mentioned during jury selection. One of his

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lawyers initially resisted the notion, expressing confidence that defendant would

testify. However, after consulting with cocounsel, he changed his mind and asked

the court to address the question.

On the morning of July 6, defendant was evidently present for an extensive

discussion of the order of proof in the event he did not testify.7 During that

discussion, the court and all counsel explored at length the issues that might arise

from the prosecutor’s inclusion of defendant’s expected testimony in his opening

statement. At the end of the hearing, counsel for Terry Hodges moved to preclude

the prosecutor from mentioning the subject. After a recess, and in defendant’s

absence, there was further consideration of the topic. The court declined to bar the

prosecutor from bringing up defendant’s expected testimony. It acknowledged

that the Hodges brothers might be entitled to mistrials if the prosecutor went into

the subject and defendant then decided not to take the stand. It ordered

defendant’s counsel to disclose to them any consideration defendant may have

received from the prosecution in exchange for his testimony. Counsel and the

prosecutor insisted that no such consideration had been offered or received.

On July 11, defendant was absent when the prosecutor briefly indicated that

his opening statement would include defendant’s expected testimony and his

conflicting statements to the police. The following day, however, defendant was

present when these subjects were discussed at length. The prosecutor made clear

his opening statement plans. Moreover, at this hearing the court questioned all the

defendants to make sure they understood their constitutional right not to testify,

7 The clerk’s transcript states that all defendants were present with counsel.

The reporter’s transcript does not reflect defendant’s presence in the opening

summary of attendance at this hearing, but the court stated that “everyone” was

present, except for one of defendant’s attorneys and one of John Hodges’s

attorneys. Ordinarily, the court noted on the record if the defendants were absent.

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telling them that “when the case is over that will have been your decision and not

simply because your attorney told you not to or made you testify.” Defendant said

he understood. The court told all defendants that if they did not testify, the jury

would be told not to consider their refusal as a factor in its deliberations. The

court commented that “no counsel, no one in the world . . . can understand and

know that a defendant — any defendant — in any actual case is going to testify.”

This review of the proceedings shows that defendant had ample

opportunity, early and often, to participate in the preparation and discussion of his

defense during pretrial hearings. He knew the prosecutor’s opening statement

would include the substance of his anticipated testimony and fully understood the

consequences of his decision whether to testify. No significant subject was

discussed in his absence that was not thoroughly covered in his presence.

Accordingly, defendant cannot demonstrate prejudice on this record. (See

Delgado, supra, 2 Cal.5th at p. 569 [exclusion from in-chambers conference

harmless]; People v. Thompson (2016) 1 Cal.5th 1043, 1098 [same as to ex parte

hearings].)

B. Guilt Phase Issues

1. The Prosecutor’s Opening Statement

In opening statement, the prosecutor said “it is my understanding that Carl

Powell is going to testify.” Defendant would testify that he and the Hodges

brothers discussed robbing the KFC. When they went there on the day of the

murder, defendant learned that “they’re hiring again.” Later, “they went back . . .

Keith [McDade] was just leaving, locking the door. They pulled into a parking

carport . . . next door and in back.”

The prosecutor continued: “Carl got out and went to talk to Keith. Carl left

the gun in the car. It was fully loaded. Carl talked to Keith 10 to 15 minutes.

13

Keith said: ‘Talk to me Monday about getting . . . your job back.’ Terry and John

[Hodges] then came walking up. Carl did not have the gun. Terry and John now

started talking about robbing Keith McDade. Terry and John were going to take

the money. John had a two-shot derringer with him, and Terry had a short shotgun

. . . . John said, ‘We’re going to take the money.’ Keith was just sitting there.

John had the derringer out. Terry reached into the car and got the money. Or

Keith handed Terry the money. Carl . . . does not remember which, according to

his proposed testimony. John handed Carl his gun. Carl Powell could tell there

was only one round in it based on its weight. Carl started to point the gun at John.

Terry drew down on Carl with a shotgun. Terry said, ‘don’t even think about it.’

Carl knew he had only one bullet. John put the derringer to Carl’s chest, said, ‘We

ain’t leaving no witnesses.’ Carl said there was nothing he could do; Carl pointed

the gun at Keith and pulled the trigger.” The prosecutor then related defendant’s

expected testimony about the getaway, during which defendant cut open the bank

bag and threw some papers from the car.

Defendant ultimately declined to testify in either the prosecution’s case or

his own. After the defense rested, the Hodges brothers were granted mistrials.

Defendant also sought a mistrial. He argued that the prosecutor’s opening

statement amounted to a comment on his failure to testify in violation of Griffin v.

California (1965) 380 U.S. 609 (Griffin). The court pointed out that the defense

had never objected to the prosecutor’s comments and, in fact, had “orchestrated

this thing to the point of having the D.A. do your bidding and make a

representation of what Carl Powell would testify to.” Counsel were well aware

that defendant could change his mind. Nevertheless, they “elected not to object to

the D.A. putting that in front of the jury.” The court denied the motion for a

mistrial, finding that “whatever error was committed was invited,” and its effect

could be mitigated by a proper admonition to the jury.

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The court gave the usual jury instructions that statements by counsel are not

evidence, and a defendant’s failure to testify is not to be considered during

deliberations. It also gave a specially tailored instruction, approved by

defendant’s counsel, that “any references in the prosecutor’s opening statement

concerning the expected content of the testimony of the defendant is to be

disregarded and not enter into your deliberations in any way. The fact that the

defendant elected to exercise his right not to testify may not in any way be held

against the defendant nor affect your verdict.”

Defendant contends the prosecutor’s “false promise” of his testimony

invited the jury to draw an adverse inference from his silence and amounted to

Griffin error. He also claims prosecutorial misconduct and violation of his rights

to due process and a fair trial.8 In a supplemental brief, defendant additionally

argues the trial court erred by allowing the prosecutor to mention defendant’s

potential testimony during opening statements. These arguments lack merit. As

the trial court ruled, any error was invited by the defense’s calculated strategy to

have defendant testify during the prosecutor’s case-in-chief. (People v. Coffman

and Marlow, supra, 34 Cal.4th at p. 49.) In any event, the prosecutor made no

comment on defendant’s failure to testify. He adopted the defense’s

representation of the expected testimony. That choice cannot be deemed

misconduct or court error in light of defense counsel’s repeated assurances that

their client intended to take the stand and their decision not to object to the

opening statement.

Nor can defendant claim he was denied a fair trial because he elected to

ignore his counsel’s advice. The implications of the defense strategy were

8 Defendant cites the Fifth, Sixth, and Fourteenth Amendments and article I,

sections 7 and 15 of the California Constitution.

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thoroughly explored pretrial in his presence. (See pt. II.A.3, ante, pp. 9-13.) He

knew that his lawyers expected him to testify and that the prosecutor would

present that expected testimony to the jury. Indeed, the only reason the prosecutor

had that information was because the defense revealed it to him as a matter of

tactics. Defendant also knew all along that the final decision whether to take the

stand was his alone. He understood the consequences of that choice. During trial,

at a hearing on a request by defendant for new counsel, the court told him that if

he elected not to testify, the jury would decide the case based on the evidence that

was presented. It advised him that his failure to testify would not be a ground for

mistrial. (See pt. II.B.3, post, pp. 24-25.) Defendant’s fully informed decision to

remain silent cannot be transmuted into prosecutorial misconduct or court error.

Defendant claims the jury would have inferred that he did not testify

because his statements implicating the Hodges brothers were false. We disagree.

The jury was specifically instructed not to give any consideration to defendant’s

exercise of his right not to testify. In any event, there is no reason to believe jurors

would surmise that defendant decided not to take the stand to avoid giving false

testimony. We note that his anticipated testimony was already questionable

because it conflicted with the various versions of the shooting he had given to the

police and Littlejohn.

Defendant relies on Ouber v. Guarino (1st Cir. 2002) 293 F.3d 19. There, a

habeas corpus petitioner claimed her counsel was ineffective for promising in

opening statement that she would testify but later deciding not to call her as a

witness. It appeared the petitioner wanted to testify, but counsel persuaded her

otherwise. (Id. at pp. 22-24.) Ouber, of course, is not binding precedent. (People

v. Collins (2010) 49 Cal.4th 175, 233; People v. Williams (1997) 16 Cal.4th 153,

190.) It is also not on point. Defendant makes no claim of ineffective assistance,

and it was he alone who decided not to testify. Nor does he claim his decision was

16

uninformed. (Cf. Ouber, at p. 31.) The Ouber court affirmed a grant of relief,

finding that “counsel’s belated decision not to present the petitioner’s testimony

sabotaged the bulk of his efforts prior to that time (and, in the process, undermined

his own standing with the jury, thereby further diminishing the petitioner’s

chances of success).” (Id. at p. 34.) No such error occurred here. Defense

counsel did not belatedly change plans. It was defendant who chose to abandon

their strategy.

Defendant also relies on Lockett v. Ohio (1978) 438 U.S. 586 (Lockett),

claiming it shows that Griffin error can arise from the unfulfilled promise of a

defendant’s testimony. He misreads the case. There, the defense argued that “the

prosecutor’s repeated references in his closing remarks to the State’s evidence as

‘unrefuted’ and ‘uncontradicted’ constituted a comment on her failure to testify

and violated her Fifth and Fourteenth Amendment rights. See Griffin[, supra,]

380 U.S. [at p.] 615.” (Id. at pp. 594-595.) The court disagreed, reasoning that

“Lockett’s own counsel had clearly focused the jury’s attention on her silence,

first, by outlining her contemplated defense in his opening statement and, second,

by stating to the court and jury near the close of the case, that Lockett would be

the ‘next witness.’ When viewed against this background, it seems clear that the

prosecutor’s closing remarks added nothing to the impression that had already

been created by Lockett’s refusal to testify after the jury had been promised a

defense by her lawyer and told that Lockett would take the stand.” (Id. at p. 595.)

Lockett cuts strongly against defendant’s position. Like defendant, Lockett

refused to testify in a capital case against counsel’s advice after the jury was told

what the defense would be and that she would take the stand. (Lockett, supra, 438

U.S. at pp. 589, 592-593.) The claim of Griffin error was summarily rejected, and

the court found no fundamental unfairness in the unexpected absence of Lockett’s

17

testimony. In sum, defendant cannot show prosecutorial misconduct or court error

on this record.

2. Removal of a Juror for Cause

On a Monday morning, during a break in guilt phase testimony, the court

informed counsel that it had received a phone message from a juror who said she

had not been able to sleep for five days and needed counseling. The same juror

had earlier expressed fear to the court attendant about the defendants looking at

her and some concern over questioning by counsel. The court brought the juror in

and asked if she was requesting to be excused or seeking some other

accommodation. She replied, “there’s some facts of the case that relate really

closely to some personal things that have happened to me, so I feel very — I need

somebody to talk to, and I don’t know who to talk to.”

The court asked if the situation was affecting her ability to be impartial.

The juror replied, “not necessarily. But it’s just — it’s gotten me to the point of

— because I started losing sleep the weekend before, so it’s been — it’s been all

week. And from my past experience when I get like that, I start exploding.”

Asked if she had mentioned her past experiences in the jury selection process, the

juror said, “no. They’re just unresolved issues.” Asked to elaborate, she said,

“well, I have had other instances where I — for example, about five years ago or

so, I started receiving harassing phone calls at home and — I never knew who it

was or anything. But it started on Friday night, and they continued all

weekend. . . . Luckily, my parents were there. . . . My dad picked up the phone,

and the guy just insisted that he had to talk to me. He had to talk to me. Well, I

was afraid for my life.” The police and the phone company were unable to do

anything because it was a Friday, so the juror unplugged the phone and went out

of town. But she “left the answering machine on, and the guy fills up a tape with

18

obscenities. It was pretty bad; it was a very frightening experience. And it — it

caused me to — it caused me to do all kinds of things that I don’t normally do.”

The calls stopped after the juror changed her phone number. The police or

the phone company told her it was probably a random incident. The court asked if

any other past experience was causing her distress. She said, “well, I did have an

episode again, and I’m having trouble — 1992, when I injured my back, was also

— resembled something.” She told the court she had never received counseling

and would like to get it now. The court inquired what it was about the case that

was evoking these past experiences. The juror said, “I find myself identifying

with all of the parties and feeling sympathy for everybody.” Asked what she

meant by “everybody,” she answered, “as each issue is brought up, I identify it

with myself. But I think that’s just because of the sleep deprivation.”

Counsel also questioned the juror. She told defense counsel that it would

help if there could be a break in the proceedings “when things get really intense.”

The court asked if she could continue to participate if the normal schedule were

followed. She replied, “the reason I called yesterday is because I felt like I had

come to the end, like to the end of my rope. And I need somebody to talk to.”

Counsel asked how she was feeling presently. She said, “I feel okay. I took some

sleep medication last night.” She admitted she was “very tired.” Counsel said he

would like her to continue on the jury. She said, “that’s what my supervisor told

me, that I have a lot of time invested in this. And I should make this the main

focus.” Asked if she thought she could regain her composure and continue to

serve, the juror said, “well, in my line of work, I deal with issues as they come in.

Situations, if there’s an explosive situation, I handle it. But when I’ve lost sleep,

19

I’m unable to handle it. And so the reason I talk to my supervisor is I don’t want a

relapse.”9

The juror told the prosecutor that she found herself identifying with the

defendants. She explained, “well, I put myself in their shoes. I — it’s just — it’s

a very — it’s very confusing . . . . On Wednesday, I became very confused and

very frightened.” The prosecutor asked in what way she was confused. She said,

“um, I guess it was the pressure. . . . I just became frightened. . . . I was

frightened of the defendants sitting over there, just because they were looking at

me. And then later, it dawned on me, that’s not what I’m frightened of; I’m

frightened of the situation.” She explained, “like I said, I closely identified —I

was identifying with the witness.” The prosecutor asked if it was because Daryl

Leisey said he had been threatened. The juror said, “yes. And because of what

I’ve gone through.” Asked if she could be impartial, the juror affirmed that “I’m a

fair and impartial person.” The prosecutor inquired whether she could be fair

when she was putting herself in the defendants’ shoes. She answered, “well,

remember, though, I started losing sleep last weekend, and then — and then I

wasn’t able to sleep at all. So I get confused when that happens.” She said she

was not confused at present, “just a little upset is all.”

The juror said she was not currently afraid of the defendants. She felt she

could continue “if I can resolve these personal issues . . . and if I have somebody

to talk to.” She did not have anyone to talk to, however, and agreed that her issues

might not be resolved if she could not discuss them with someone. In that case, “it

would frighten me more and more. And because I would continue to lose sleep.

And I get to the point where I — when this happens to me.” The prosecutor

9 The juror worked as a workers’ compensation insurance representative.

20

sought clarification. She said she was “frightened of — every night I’m afraid that

I’m not going to be able to sleep. It’s a general fear.” The fear increased the less

she slept. Asked what she would like to do, the juror said she would like to talk to

somebody about her issues. She could talk to her doctor and get a referral for

counseling. She said she did not know how many counseling sessions she would

need. The prosecutor asked, “three, four, five, ten?” She said, “yeah.”

At this point, the court, after asking the juror to step out of the courtroom,

commented: “She appears to be very fragile emotionally and physically . . . she

moves very slowly. She talks slowly . . . . Whether she understands counseling

with one session or multiple sessions, my concern is that she is seeking assistance

from another person dealing with the pressures of the trial, and what is going on in

the trial; that is creating pressure to her. And that is necessarily going to

contaminate a juror having to counsel with someone about dealing with the jury

function, and how this relates to her prior difficulties.” For these reasons, the

court leaned toward excusing the juror. “Requiring her to continue with the case

without undergoing counseling or assistance would be asking too much of her.

And to the point where she may have a significant emotional breakdown.”

Defense counsel objected; the prosecutor sought removal. The court discharged

the juror.

Defendant contends this action violated his rights under the Sixth and

Fourteenth Amendments and article I, section 16 of the state Constitution. “ ‘If at

any time, whether before or after the final submission of the case to the jury, a

juror dies or becomes ill, or upon other good cause shown to the court is found to

be unable to perform his or her duty, or if a juror requests a discharge and good

cause appears therefor, the court may order the juror to be discharged . . . .’

(§ 1089.) Removal of a juror under section 1089 is committed to the discretion of

the trial court, and we review such decisions by asking whether the grounds for

21

such removal appear in the record as a demonstrable reality.” (People v.

Thompson (2010) 49 Cal.4th 79, 137.) “The most common application of [section

1089] permits the removal of a juror who becomes physically or emotionally

unable to continue to serve as a juror due to illness or other circumstances.”

(People v. Cleveland (2001) 25 Cal.4th 466, 474.) “We have recognized that both

trial-related and non-trial-related stress can provide good cause for discharging a

juror. (See People v. Collins (1976) 17 Cal.3d 687, 690–691, 696 [inability to

cope with the experience of being a juror]; People v. Fudge (1994) 7 Cal.4th 1075,

1099–1100 [anxiety about new job].)” (Thompson, at p. 138.)

Here, the excused juror was experiencing extreme stress caused by issues

both trial-related and personal. Her answers to questioning by the court and

counsel were less than clear, even though she said she was feeling better at the

time. She stated that her problems would continue if she could not resolve them

through counseling, but she had never received counseling. Neither she nor

anyone else could say how much counseling might be required or if it would help.

Defendant emphasizes that the juror did not ask to be excused, but that is not a

dispositive factor. Defendant faults the trial court for being concerned that

counseling might lead the juror to improperly discuss trial matters. Yet it was

logical to conclude that counseling necessitated by the stress of trial would involve

some discussion of trial proceedings and her reactions to jury service. Any such

conversation by a sitting juror would be highly inappropriate. It also appears the

juror had told her supervisor about her jury service and the problems it was

causing her.

The court was confronted with an emotionally fragile, frightened, and

confused juror whose past experiences led her to identify herself both with

prosecution witness Leisey and with the defendants. At the same time, she

became fearful of the defendants when they looked at her. On this record, the

22

court was well within its discretion to find that the juror was emotionally unable to

discharge her duty to decide the case impartially. We defer to the trial court’s

assessment of her mental and physical condition based “on firsthand observations

unavailable to us on appeal.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1053.)

Here, as in Barnwell, “the trial court’s conclusion is manifestly supported by

evidence on which the court actually relied.” (Ibid.)

3. Marsden Claim

After the juror was excused, the court read into the record a note from

defendant, saying he wanted “to make a mistrial motion for myself” because of

“misrepresentation” by his lead counsel, who was “siding with the D.A.” and

“hasn’t been fair for me at all” because he “hasn’t made one motion on my

behalf.” Defendant also asked “that I have new counsel to represent me.” The

court held a hearing with only defendant and his counsel present. (People v.

Marsden (1970) 2 Cal.3d 118 (Marsden).) Defendant complained about counsel

being friendly in court with the prosecutor but said, “I don’t want to fire him; I just

feel that I should have a mistrial.” Defendant said counsel had “basically given

the case to the D.A., because he hasn’t filed any motions to try to get anything that

could hurt me thrown out.” The court declined to grant a mistrial and noted that

defendant was not requesting new counsel.

Two days later, near the close of the prosecution’s case, defendant again

asked for a mistrial. The court informed him that the motion had to be made

through counsel. Defendant said, “Well, I’ll again make a motion to — Marsden

— to fire him because he ain’t making no motion.” The court held another

Marsden hearing, at which defendant complained that his attorneys were

cooperating with the prosecutor and not doing “the defense job.” The court asked

if that was the extent of his complaint, and defendant said, “yeah, basically.” The

23

court explained to defendant that this was a difficult case for his counsel given the

strong evidence of his identity as the shooter and that they were “attempting to

save you by shifting some of the responsibility and blame on to the other

defendants,” which is why they were not objecting to evidence supporting the

Hodges brothers’ role as “manipulators.”

The court told defendant that there were no grounds to exclude the evidence

that had come in against him and no grounds for a mistrial. Defendant said he

understood what the court had said. The court asked if he had any other reason to

ask for new counsel. Defendant said counsel “should have at least . . . tried to

attack my confession, because . . . well, I wasn’t under the full influence of

alcohol, but I had been drinking before I got arrested.” Counsel explained that he

could find no basis for excluding the confession and pointed out that defendant’s

statements to Littlejohn about the shooting were equally damaging. He said the

reason the defense decided not to join in the Hodges brothers’ mistrial motions

was because the evidence that had come in against them was helpful to defendant.

The court observed that it would be logistically difficult for another attorney to

take over the case at such an advanced stage of trial and “not necessary.”

The court told defendant that “the big issue in this case” was whether he

was going to testify, emphasizing that the decision was his alone. Defendant said

he understood. The court advised him that, either way, he would not be heard to

complain about his decision later. Defendant asked whether a mistrial would be

granted if he did not testify. The court said, “It wouldn’t be a basis for you to ask

for a mistrial because you elected not to testify. If you don’t testify, your jury is

going to decide the case based on what they’ve heard without your testimony. If

you do testify, they’re going to decide your case based on what they’ve heard,

including your testimony. And you may either help or hurt your case when you

testify. That all remains to be seen.” Defendant said he understood. The court

24

suggested that he listen to the advice of his attorneys and then “just make the

decision yourself.” Defendant again said he understood. He did not renew his

request for new counsel.

Five days later, defendant made another Marsden motion. By this point, he

had decided not to testify, and the court had denied his counsel’s request for a

mistrial based on Griffin error. (Griffin, supra, 380 U.S. 609; see pt. II.B.1, ante,

pp. 14-18.) Defendant said the basis for his motion was counsel’s failure to object

to the prosecutor’s opening statement, which the court had noted when it refused

to grant a mistrial. Counsel explained that they had not objected because they

expected defendant to testify. The court denied the motion.

Defendant contends the court failed to make an adequate inquiry into

whether he had an irreconcilable conflict with counsel.10 (Marsden, supra, 2

Cal.3d at pp. 123-124.) The record shows the opposite. At each Marsden hearing,

the court ascertained the basis for defendant’s complaints. Initially, defendant

explained that he did not want a new attorney, only a mistrial. At the second

hearing, the court took care to explain the theory being pursued by defense counsel

in light of the strong evidence against defendant. It made sure he understood that

his own testimony would be an important factor and one that was under his sole

control. Defendant repeatedly said he understood. At the third hearing, defendant

made it plain that his dissatisfaction arose not from any irreconcilable conflict but

from a belated disagreement over trial strategy. The court gave him ample

opportunity to state his reasons for wanting new counsel.

10 He claims violation of his rights under the Sixth Amendment and article I,

section 15 of the California Constitution.

25

4. Firearm Evidence

The murder weapon was a .38-caliber revolver, which defendant gave to

Angela Littlejohn after the shooting. She threw it in a dumpster but later assisted

the police in its recovery. On appeal, defendant claims evidence that he possessed

other firearms was improperly admitted. No objection was made on this ground.

In any event, the other firearm evidence was largely tangential and could not have

affected the outcome of either the guilt or penalty phases.

Two KFC employees testified that several months before the murder,

defendant came to the business and showed them a handgun. One witness said

this gun did not resemble the murder weapon; the other was not sure. Asked by

John Hodges’s counsel about defendant’s connections with guns, one witness said

he heard that defendant had sold a shotgun. No objections were made to this

testimony.

Later in the trial, just before defendant’s videotaped statement to the police

was played, his counsel asked the court to redact portions in which defendant

talked about owning a .32 automatic handgun and about a picture showing him

with that weapon. Counsel was concerned that this part of the statement would

open the door to admission of the photograph itself, in which defendant and a

friend were making gang signs. The court noted that the statement included no

mention of gangs, and the gun “may or may not be a weapon that witnesses have

testified he had possession of earlier.” The prosecutor assured the court that he

did not intend to present the photograph, which the court had earlier ruled

inadmissible. The court pointed out, “what that means is that what the jury will

have is no more and no less than this reference to a .32, and that he took a picture

with it. It doesn’t suggest gangs. It doesn’t infer gangs in any way. It does admit

ownership of another firearm. And I don’t agree with you that it is irrelevant,

prejudicial, or inadmissible.” Counsel conceded there were no gang connotations

26

in the statement and said that, as long as the picture was not going to be presented

in evidence, “I would still object to it, but I feel a little bit better.”

Defendant now complains that this evidence of his firearm possession

amounted to inadmissible bad character evidence and improper collateral

impeachment of his statement to the officer that the .32 was the only gun he had

ever owned.11 These grounds were not asserted below and are forfeited. (Evid.

Code, § 353; People v. Carey (2007) 41 Cal.4th 109, 126 (Carey).) Counsel’s sole

objection was based on the gang connotations of his client’s weapons possession.

There is no merit to defendant’s claim that the court’s ruling on this objection

shows that others would have been futile. In any event, the “other firearm”

evidence was of minor significance. Given the strong evidence of defendant’s

possession and use of the murder weapon, evidence that he had other firearms

earlier added little.

5. Gang Evidence

Before trial, defendant’s counsel requested that “no mention be made of

any gang involvement.” In response, the prosecutor asked that he be allowed to

impeach defendant with evidence of his membership in the Crips gang. The court

did not rule on the defense request but said “at least as far as articulated so far, I

will deny the D.A.’s motion to permit evidence concerning Carl Powell’s alleged

gang affiliation as . . . reflecting on his credibility and moral turpitude.”

Subsequently, the court ruled that “no references in opening statements be made to

claims of . . . gang affiliations of various defendants or other persons.”

11 He relies on his rights to a fair trial under the Fourteenth Amendment and a

reliable penalty determination under the Eighth Amendment.

27

In his opening statement, the prosecutor mentioned that Ruben Martinez,

one of defendant’s fellow employees, would testify that defendant had two

nicknames: “Scrooge” and “Baby Hoove.” Defendant did not object. The

prosecutor also read the transcript of defendant’s police statement, which included

an exchange in which the detective asked defendant if he went by any other

names. Defendant replied, “Scrooge and Baby Hoove,” explaining that “Scrooge

was my house name. Baby Hoove was my street name.” Asked if he got his street

name when he was in Los Angeles, defendant said “yeah.” The defense did not

object, nor did it object when the prosecutor read a passage in which the detective

asked about the street name of Roosevelt Coleman, Angela Littlejohn’s son.

Defendant said it was “Baby Snake.” The prosecutor omitted an earlier portion of

the transcript in which defendant affirmed that Coleman was a Crip.

When Martinez testified, the prosecutor asked if he knew defendant’s

nicknames. The defense objected. The court initially sustained the objection but

then asked if the prosecutor’s purpose was “what had been detailed in your

opening statement?” The prosecutor said “yes,” and the objection was overruled.

Martinez answered that defendant told him “Baby Hoove or Scrooge,” and the

questioning moved on to other matters. At a subsequent hearing, defense counsel

referred to the court’s ruling against gang evidence and pointed out that the

prosecutor had questioned Martinez about defendant’s nicknames. The court

asked, “How does that imply gang membership? If you have a nickname, you’re a

member of a gang?” The court noted that the defense intended to ask Martinez

about gang membership in relation to defendant’s anticipated testimony, though

such questions would be allowed only if defendant did in fact testify.

Witness Charlie Schuyler saw defendant near the scene around the time of

the murder. Outside the presence of the jury, Schuyler told the court that he was

unsure whether he should testify about defendant’s “gang way of dressing.” His

28

pants were “dropped in the back,” a style Schuyler identified with Crips. No

advisement was requested or given as to how Schuyler should describe

defendant’s appearance to the jury. Under cross-examination by Terry Hodges’s

counsel, Schuyler said he had noticed defendant’s pants and said “the only way I

really know how to word it is in my book he was crippin’.” He added a little later,

“the way I was brought up it was how you identified a Crip.”

There was no objection at the time, but, during the next recess, John

Hodges’s counsel objected to Schuyler’s gang reference and requested a jury

admonition. Defendant’s counsel said, “I concur with that, although the

description of the way the pants were worn was appropriate, and I think that’s

relevant to the jury. I think it’s relevant to what . . . the witness would perceive in

aiding his identification. But his characterization of cripping, I think, should be

. . . there should be some admonishment. Since it was in before anybody could

say anything . . . I think a simple admonition would be appropriate.” He

explained, “the jury should . . . receive some caution . . . that it’s admissible . . .

not to show gang involvement or anything, but simply as a description.”

The court refused an admonishment “at this time,” but said, “depending on

what is developed in further testimony, by the end of the case . . . I will consider

orders as to the limited admissibility of this and any other evidence. I will agree

that the prejudice outweighs the probative value to further question this witness

concerning his beliefs as to what it meant for someone to be dressed as they were.

And the witness may describe the dress . . . and not volunteer opinions as to

whether that meant a gang affiliation.”

Before defendant’s videotaped statement was played, his counsel requested

that the portion in which defendant gave his “house name” and “street name” be

taken out because the jurors would think they were gang names. The court

pointed out that there had already been references to the Scrooge and Baby Hoove

29

nicknames. The prosecutor noted the court had already said that nicknames do not

necessarily carry a gang connotation. The court overruled the objection. Counsel

further objected to the inclusion of the references to Coleman as one of

defendant’s “homies” and his “road dog.” The court overruled that objection as

well. The jury saw and heard the entire videotape, including defendant’s answer

that Coleman was a Crip.

Defendant claims he was prejudiced by these references.12 The Attorney

General correctly responds that the claim is forfeited as to many of the references

by defense counsel’s failure to timely object. Nor did he request a limiting

instruction at the close of evidence, even though the court had expressly left that

possibility open. If the defense considered these references damaging, counsel

should have requested limiting instructions.

6. Defendant’s Statements to Littlejohn

Angela Littlejohn, who had made defendant give her the murder weapon,

told the investigating detective that he “kept pushing” her to give it back to him.

“He say to me, I need that gun, that gun will get me some money.” She also said

she asked defendant why he needed the gun, and he replied, “Well, that’s the only

way I’m going to get the money, with the gun.” Littlejohn added that another of

defendant’s associates had tried to get the gun as well, but she refused because she

feared it might get her son in trouble.

Early in the trial, defense counsel moved to bar Littlejohn from testifying

about defendant’s desire get the gun back to make money. He argued that such

statements about future intentions did not qualify as character evidence under

12 Defendant refers to his rights to a fair trial under the Fourteenth

Amendment and to a reliable penalty determination under the Eighth Amendment.

30

Evidence Code section 1101 and were irrelevant. The prosecutor responded that

defendant’s intent to use the gun to commit more robberies days after the murder

tended to prove that he used the gun to rob McDade. Counsel for the Hodges

brothers agreed. The court denied the motion, finding that Littlejohn’s testimony

on this point amounted to an implied admission by defendant that he committed

the earlier robbery and was relevant to show consciousness of guilt.

Just before Littlejohn testified, counsel renewed the objection. He asked

the court to bar testimony about defendant saying he wanted the gun to commit

robbery. Counsel conceded the evidence was relevant on the issue of intent but

claimed it was unduly prejudicial under Evidence Code section 352. He argued

that if the jurors heard this evidence, the defense would not have a fair chance to

persuade them that defendant had approached McDade not to rob him, but to get

his job back. The court adhered to its earlier ruling, finding that the probative

value of the evidence with respect to defendant’s state of mind at the time of the

murder outweighed its prejudicial impact. On the stand, Littlejohn claimed she

did not remember defendant saying he wanted the gun for robbery. Counsel

stipulated to providing the jury with a video of Littlejohn’s police statement,

including the parts where defendant asked for the gun back so he could use it to

get money.

Defendant now argues that, while probative to some extent, this evidence

was speculative and highly prejudicial, violating his right to due process. The

abuse of discretion standard applies to rulings on admissibility and is particularly

appropriate when the trial court’s determination involved questions of relevance

and state of mind. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.) The court’s

ruling will not be disturbed unless made “in an arbitrary, capricious, or patently

absurd manner that resulted in a manifest miscarriage of justice.” (Ibid.)

Defendant falls well short of that standard. There was evidence that he had stolen

31

from his employers and had spoken to a KFC employee about robbing the

business. He had shown two employees a handgun, though it was evidently not

the murder weapon. His requests to recover the murder weapon from Littlejohn so

he could “get money” were relevant to his intent to rob McDade. Counsel was

correct that this evidence undermined the theory of the defense. However, that

impact was what made the evidence relevant.

“ ‘The prejudice that [Evidence Code] section 352 “ ‘is designed to avoid is

not the prejudice or damage to a defense that naturally flows from relevant, highly

probative evidence.’ [Citations.] ‘Rather, the statute uses the word in its

etymological sense of “prejudging” a person or cause on the basis of extraneous

factors. [Citation.]’ [Citation.]” [Citation.] In other words, evidence should be

excluded as unduly prejudicial when it is of such nature as to inflame the emotions

of the jury, motivating them to use the information, not to logically evaluate the

point upon which it is relevant, but to reward or punish one side because of the

jurors’ emotional reaction. In such a circumstance, the evidence is unduly

prejudicial because of the substantial likelihood the jury will use it for an

illegitimate purpose.’ ” (People v. Doolin (2009) 45 Cal.4th 390, 439.)

Defendant claims his statements to Littlejohn were likely to lead the jury to

view him as part of a dangerous group of young African-Americans predisposed to

rob and kill. We disagree. The defense sought to show that defendant did not

mean to rob or harm McDade. His statements were properly admitted to rebut that

claim. There is no reason to believe the jury would have indulged in the

speculative and emotional response defendant imagines.

7. Photographic Evidence

Before trial, the Hodges brothers moved to exclude photographs of

McDade’s body at the crime scene and the autopsy, contending they were

32

cumulative and unduly prejudicial. The court made a preliminary ruling that three

of four crime scene photographs were admissible, but that one labeled T-4 was

duplicative of T-3. Both pictures show the body in the car; T-4 was taken at closer

range. The court said it would reconsider if the prosecutor had a witness who

could use T-4 to prove something T-3 did not show. During the testimony of the

first responding police officer, the prosecutor established that T-4 showed the

powder burns on McDade’s temple better than any other photograph. All

defendants objected to the photograph’s admission. The court observed that T-4

did most clearly show the powder burns, which was something “I didn’t even

notice . . . the first time.” It admitted T-4 as relevant to demonstrate the manner of

the shooting.

Defendant claims error, arguing that the powder burns were visible in T-3,

and T-4 was inflammatory because it showed a large amount of blood on

McDade’s chest.13 We disagree. T-4 reveals the nature of the wound, including

the powder burns, much more clearly than T-3. “ ‘This court is often asked to rule

on the propriety of the admission of allegedly gruesome photographs. [Citations.]

At base, the applicable rule is simply one of relevance, and the trial court has

broad discretion in determining such relevance. [Citation.] “ ‘[M]urder is seldom

pretty, and pictures, testimony and physical evidence in such a case are always

unpleasant’ ” [citation] . . . . [W]e rely on our trial courts to ensure that relevant,

otherwise admissible evidence is not more prejudicial than probative (Evid. Code,

§ 352). A trial court’s decision to admit photographs . . . will be upheld on appeal

unless the prejudicial effect . . . clearly outweighs their probative value.

[Citation.] Finally, prosecutors, it must be remembered, are not obliged to prove

13 Again, defendant refers to his federal due process rights.

33

their case with evidence solely from live witnesses; the jury is entitled to see

details of the victims’ bodies to determine if the evidence supports the

prosecution’s theory of the case. [Citations.]’ ” (People v. Lewis (2009) 46

Cal.4th 1255, 1282, quoting People v. Gurule (2002) 28 Cal.4th 557, 624.) The

court did not err in this case.

8. Refusal To Instruct on Duress

While initially inclined to instruct on duress, the court ultimately decided

not to do so. It found nothing in the evidence to support an inference that

defendant had acted under an immediate threat against his life. It noted the

defense could argue that defendant’s mental state was affected by pressure from

the Hodges brothers. Defendant claims the refusal to instruct was error.14 Not so.

“The defense of duress is available to defendants who commit crimes,

except murder, ‘under threats or menaces sufficient to show that they had

reasonable cause to and did believe their lives would be endangered if they

refused.’ (§ 26; see People v. Anderson (2002) 28 Cal.4th 767, 780.) Although

‘duress is not a defense to any form of murder,’ (People v. Anderson, supra, 28

Cal.4th at p. 780) ‘duress can, in effect, provide a defense to murder on a felony-

murder theory by negating the underlying felony. [Citations.] If one is not guilty

of the underlying felony due to duress, one cannot be guilty of felony murder

based on that felony.’ (Id. at p. 784.) A trial court is required to instruct sua

14 Defendant asserts violations of his rights to due process under the

Fourteenth Amendment, to counsel and a jury trial under the Sixth Amendment,

and to a reliable penalty determination under the Eighth Amendment. For the first

time on appeal, he contends that section 26, subdivision Six, which rules out

duress as a defense to crimes punishable with death, is unconstitutional. We need

not reach that argument, because the court correctly found the evidence

insufficient to support a duress defense.

34

sponte on a duress defense if there is substantial evidence of the defense and if it is

not inconsistent with the defendant’s theory of the case. (See People v.

Breverman (1998) 19 Cal.4th 142, 157.)” (People v. Wilson (2005) 36 Cal.4th

309, 331.) This requirement does not extend to any evidence, no matter how

weak. To be “substantial,” evidence must be sufficient to deserve the jury’s

consideration. (Ibid.)

Here, there was no evidence that either of the Hodges brothers was armed

at the crime scene. Defendant observes that in a videotaped statement played for

the jury, Banks said John Hodges “probably had a pistol,” but Banks was talking

about a time before the shooting when the robbery was being planned. As to the

robbery, Banks said John simply “told” defendant to shoot McDade. Defendant

also points to Leisey’s testimony that Terry Hodges had to “coach” defendant to

shoot, but coaching is far from duress. In his police statement, defendant said the

brothers were not armed. He did not claim they threatened him in any way, only

that he felt “pressured.” This evidence is insufficient to support an inference of

duress. It is true that the version of events in defendant’s anticipated testimony

included elements of duress. However, defendant elected not to provide that

version and the jury was properly instructed to disregard the prosecutor’s

summary of it in his opening statement.

9. Failure To Instruct on Theft

When discussing jury instructions, defendant’s counsel both agreed it made

no sense to instruct the jury on theft as a lesser included offense of robbery. On

appeal, however, defendant contends the evidence would have supported a finding

that he formed the intent to steal only after shooting McDade. Therefore, he

35

claims, there was a sua sponte duty to instruct on theft.15 (See People v. Zamudio

(2008) 43 Cal.4th 327, 360; People v. Breverman, supra, 19 Cal.4th at p. 162.)

The claim fails. Defendant relies on the following portion of his statement to the

police, made just after he admitted shooting McDade:

“Lee [the detective]: Alright. It’s no secret. I know. I know you pulled

the trigger. He wouldn’t give it to you because he looked at you and he says, man,

. . . get out of here. What did he say to you? Just tell me what he said when you

walked up to him.

“Powell: I was talking to him about getting my job back and he was like,

come back tomorrow. And I, he didn’t say nothing. You know, he just gave me

the money. And then he just started talking, just you know, cause there was a lot

of stress on my mind, my brother, he was killing me, it’s like my brother don’t

want me around no more.

“Lee: Calvin’s getting on your butt because you ain’t got a job, right? [16]

“Powell: Yeah, exactly.

“Lee: Okay.

“Powell: You know, and that hurt me. That’s why I kept going to Keith

cause that’s the only job . . . that I’m really good at . . . .

“Lee: So let me ask you, did you wait for him to come out?

“Powell: Uh hmm.

“Lee: Okay. Then he got in the car. And then you walked up to him.

“Powell: That’s when I started talking to him.

15 Defendant claims violations of his rights to due process, trial by jury, and

reliable guilt and penalty verdicts under the Fifth, Sixth, Eighth, and Fourteenth

Amendments, and his rights to due process and trial by jury under article I,

sections 7 and 15 of the state Constitution.

16 Calvin was the brother with whom defendant was living in Sacramento.

36

“Lee: When you walked up to him, just tell me, . . . what did you say to

[him]?

“Powell: I said . . . when you gonna let me get my job back. He said . . .

we’re kinda full right now. And . . . he offered me some chicken. I was like no, I

don’t want no chicken man, you know.

“Lee: So when you asked him for [your] job, . . . what’d he say, come back

and see me tomorrow?

“Powell: Yeah, come back and see me tomorrow.

“Lee: And then what’d you say?

“Powell: I said, okay. And then I was like, what you got in the bag.

“Lee: Uh huh.

“Powell: [Inaudible] money. And then I said, hand it over.

“Lee: Uh hmm.

“Powell: And then he was like, . . . he wanted to get out of the car and hurt

me. But I was like, I pulled my gun out and he’s like kinda just sat back down.

And then he started talking on off the wall stuff like, you know (inaudible) . . . .

It’s bad enough my brother was killing me and then he was saying stuff . . . .

“Lee: So it was really getting you down?

“Powell: Yeah.

“Lee: Putting some pressure on you?

“Powell: It hurt, it hurt me real bad.

“Lee: Okay. So you pulled your gun out.

“Powell: Uh hmm.

“Lee: And what’d he say?

“Powell: He looked at it.

“Lee: What’d he say?

37

“Powell: He looked and I just said, hand it over and he handed it over and

then he really started talking crazy . . . .”

Defendant urges the jury could have gleaned from this passage that

McDade freely handed the money to defendant, who only later formed the intent

to steal it. The argument beggars belief. The court was not required to instruct on

theft.

10. Instructions Given

a. CALJIC No. 2.50

The parties discussed CALJIC No. 2.50, regarding evidence of other

crimes, based on defendant’s weapon possession before the night of the crimes.17

The prosecutor argued that the possession tended to show that defendant intended

to commit an armed robbery. Defense counsel disagreed, arguing that mere

possession of a weapon reflects no such intent. The prosecutor pointed out that

defendant had told a KFC employee about his robbery plan. Defense counsel

briefly disputed that evidence, but the witness did, in fact, clearly relate several of

defendant’s statements indicating he was contemplating robbery. The court said it

would instruct that the evidence could be considered for the limited purposes of

showing intent, identity of the perpetrator, and knowledge or possession of means

to commit the crime. The court added, “And if you want to make a note about

objecting when we go back over the instructions, counsel, do so.” No subsequent

objection was made.

17 In addition to defendant’s display of a handgun at the KFC, there was

testimony that he had a handgun with him when he visited a park with friends

about a week before the crime.

38

Although defendant failed to lodge an objection to this instruction, he may

nevertheless raise a claim that it affected his substantial rights.18 (§ 1259; People

v. Benavides (2005) 35 Cal.4th 69, 111.) He contends the instruction invited

irrational inferences based on mere propensity. The claim fails. Defendant

concedes that his possession of the murder weapon shortly before the shooting was

relevant. The jury could also properly consider his exhibition of a gun to KFC

employees some months earlier, around the time he was talking about robbing the

establishment. This evidence was relevant as to intent, identity, and knowledge.

The connection between the charged offenses and the earlier gun display was

sufficiently close that the evidence did not merely reflect general criminal

propensity. (See 1 Witkin, Cal. Evidence (5th ed. 2012) Circumstantial Evidence,

§ 95, p. 490.) In any event, the instruction included an admonition not to consider

the evidence to prove bad character.

b. CALJIC No. 2.06

The prosecutor requested CALJIC No. 2.06, on suppression of evidence,

based on Angela Littlejohn’s disposal of the murder weapon in a dumpster.

Defense counsel objected, noting that defendant was trying to get the weapon

back, not conceal it. The court gave the instruction, which told the jury: “If you

find that a defendant attempted to suppress evidence against himself in any

manner such as by concealing evidence, such attempt may be considered by you as

a circumstance tending to show a consciousness of guilt. However, such conduct

18 Defendant invokes the due process clauses of the Fourteenth Amendment

and article I, sections 7 and 15 of the state Constitution, and his right to reliable

guilt and penalty determinations under the Eighth Amendment and article I,

section 17 of the state Constitution.

39

is not sufficient by itself to prove guilt, and its weight and significance, if any, are

matters for your consideration.”

Defendant argues that nothing in Littlejohn’s account of her disposal of the

weapon implicated him.19 She demanded that he give her the gun not for disposal

but to prevent further misuse. Defense counsel correctly pointed out that

defendant was trying to retrieve the weapon, not hide it. The Attorney General

suggests the instruction might apply to defendant’s false statements in his police

interview or to his disposal of the bank bag and KFC containers after the murder.

We need not address these alternative theories. Any error in giving CALJIC No.

2.06 was harmless because the inference it permitted was superfluous.

Defendant’s consciousness of guilt was not in question given his statements to the

police.

c. CALJIC No. 2.52

Defense counsel did not object to CALJIC No. 2.52, which allowed the jury

to infer consciousness of guilt from his flight after the crime. Again, because of

the failure to object, we review the claim of error only to determine “if the

substantial rights of the defendant were affected” by the instruction. (§ 1259.)

They were not. As noted, defendant’s consciousness of guilt was established in

his police interview. It has long been recognized that flight may support an

inference to the same effect. (People v. Abilez (2007) 41 Cal.4th 472, 521-523.)

We decline to consider defendant’s arguments, raised for the first time on appeal,

based on the definition of “flight.”

19 He claims the instruction violated his federal due process rights.

40

d. CALJIC No. 2.71.7

Defense counsel also raised no objection to CALJIC No. 2.71.7, which

advised the jury to consider with caution an “oral statement of intent, plan, motive

or design . . . made by the defendant before the offense.” Defendant contends the

jury could have applied this instruction to Eric Banks’s testimony that John

Hodges told him defendant had said he did not want to kill McDade. He argues

that the cautionary aspect of CALJIC No. 2.71.7 pertains only to statements

harmful to the defense. It is true that this instruction properly applies to “any

extrajudicial oral statement by the defendant that is used by the prosecution to

prove the defendant’s guilt.” (People v. Diaz (2015) 60 Cal.4th 1176, 1187, italics

added; see CALCRIM No. 358.) Even so, defendant fails to establish any impact

on his substantial rights.20 (§ 1259.) Any “caution” on the jury’s part regarding

Banks’s testimony would not have affected the verdict. Defendant himself

repeatedly said in his police statement that he did not want to kill McDade.

Moreover, Terry Hodges’s account of the crime, as related by Daryl Leisey,

clearly portrayed defendant as a reluctant shooter. It included no statement by

defendant.

e. CALJIC No. 3.16

The court asked defense counsel whether he preferred CALJIC No. 3.16,

which would tell the jury the Hodges brothers were accomplices as a matter of

law, or CALJIC No. 3.19, which would leave that determination for the jury.

Counsel asked for the former, while the prosecutor favored the latter. The court

gave CALJIC No. 3.16, which said that “[i]f the crimes of robbery or murder . . .

20 He relies on the due process clause of the Fourteenth Amendment, his right

to a jury trial under the Sixth Amendment, and his right to a reliable penalty

determination under the Eighth Amendment.

41

were committed by anyone, Terry and John Hodges were accomplices as a matter

of law and the statements of each to the extent they incriminate Carl Powell are

subject to the rule requiring corroboration.” Defendant contends this instruction

improperly led the jury to view him as the direct perpetrator.21 This asserted error

was invited by his counsel’s own request. (People v. Harris (2008) 43 Cal.4th

1269, 1293 (Harris).) In any event, defendant fails to show any impact on his

substantial rights. (§ 1259.) The instruction was entirely consistent with the

defense theory that the Hodges brothers pressured defendant into shooting

McDade. Defendant now claims the jury could have credited the first version of

events he gave to the police that he remained in the car while the brothers

committed the crimes. No rational jury would have so concluded given

defendant’s subsequent confession and his statements to Littlejohn taking

responsibility for the shooting.

f. CALJIC No. 8.81.17

Without objection, the court instructed: “[T]o find that the special

circumstance referred to in these instructions as murder in the commission of

robbery is true it must be proved, one, the murder was committed while the

defendant was engaged in the commission of a robbery, or, two, the murder was

committed in order to carry out or advance the commission of the crime of robbery

or to facilitate the escape therefrom or to avoid detection. In other words, the

special circumstance referred to in these instructions is not established if the

robbery was merely incidental to the commission of the murder.” (See CALJIC

No. 8.81.17.)

21 He asserts his rights to a jury determination under the Sixth and Fourteenth

Amendments and article I, sections 7, 15, and 16 of the state Constitution, and to a

reliable penalty determination under the Eighth Amendment.

42

Defendant contends the use of the conjunctive “or” in the first sentence of

this instruction allowed the jury to find the special circumstance true based on

commission of the murder during the robbery, even if the robbery was merely

incidental to the murder. He is correct that we have disapproved the use of “or” in

this context. (Harris, supra, 43 Cal.4th at p. 1299.) However, he fails to show

any impact on his substantial rights.22 (§ 1259.) As in Harris, there was no

evidence to support an inference that defendant killed McDade without the intent

to steal. (Harris, at p. 1300; see pt. II.B.9, ante, pp. 35-38.) Defendant claims the

jury could have found that he shot McDade out of frustration over not being

rehired and only later decided to take the money. No objective view of the

evidence supports such a theory. Neither the prosecution nor the defense

advanced it. Multiple witnesses testified that defendant was contemplating a

robbery before the shooting. In his statement to the police, defendant denied

killing McDade because of his job situation and repeatedly acknowledged the

robbery plan.

g. First Degree Murder Instruction

Defendant contends it was improper to instruct the jury on first degree

murder because the information charged him with murder “in violation of section

187,” which he claims pertains only to second degree murder.23 No such

22 Defendant invokes his rights to a jury trial under the Sixth Amendment, to

due process under the Fourteenth Amendment, and to a reliable penalty

determination under the Eight Amendment.

23 Defendant claims violation of his rights to due process under the Fourteenth

Amendment and article I, sections 7 and 15 of the state Constitution, to a jury trial

under the Sixth and Fourteenth Amendments and article I, sections 7, 15, and 16

of the state Constitution, and to reliable guilt and penalty determinations under the

Eighth and Fourteenth Amendments and article I, section 17 of the state

Constitution.

43

objection was raised below. As defendant acknowledges, we have repeatedly

rejected this argument and the claim that it is supported by Apprendi v. New Jersey

(2000) 530 U.S. 466. (E.g., People v. Moore (2011) 51 Cal.4th 386, 412-413;

Harris, supra, 43 Cal.4th at pp. 1294-1295; People v. Morgan (2007) 42 Cal.4th

593, 616-617.) Defendant fails to persuade us to change our view.

11. The Prosecutor’s Guilt Phase Closing Argument

Defendant claims the prosecutor committed misconduct during closing

argument on a number of occasions.24 He objected only once, however.

Accordingly, the rest of defendant’s claims of prosecutorial misconduct have been

forfeited. “To preserve such a claim for appeal, ‘a criminal defendant must make

a timely and specific objection and ask the trial court to admonish the jury to

disregard the impropriety.’ ” (People v. Clark (2011) 52 Cal.4th 856, 960.) The

lack of a timely objection and request for admonition will be excused only if either

would have been futile or if an admonition would not have cured the harm. (Ibid.;

see People v. Hill (1998) 17 Cal.4th 800, 820.) Here, there is no merit in

defendant’s argument that the court’s ruling on his single objection rendered it

futile for him to object again.

The objection was lodged when the prosecutor said “witnesses were able to

be manipulated by the defense attorneys with these leading type questions.” The

court overruled it, telling defense counsel “this is argument; you can respond to it

in your argument.” Nothing in this exchange suggested that objections to other

arguments would have been futile. Nor was the prosecutor’s remark improper. It

is fair comment to argue that witnesses were confused or misled. “ ‘A

prosecutor’s misconduct violates the Fourteenth Amendment to the United States

24 Defendant recites the Fifth, Sixth, Eighth, and Fourteenth Amendments.

44

Constitution when it “infects the trial with such unfairness as to make the

conviction a denial of due process.” [Citations.] In other words, the misconduct

must be “of sufficient significance to result in the denial of the defendant’s right to

a fair trial.” [Citation.] A prosecutor’s misconduct that does not render a trial

fundamentally unfair nevertheless violates California law if it involves “the use of

deceptive or reprehensible methods to attempt to persuade either the court or the

jury.” [Citations.]’ ([]Cole, supra, 33 Cal.4th at p. 1202; accord, People v. Redd

[(2010)] 48 Cal.4th [691,] 733–734.)” (People v. Clark, supra, 52 Cal.4th at p.

960 (Clark).) Here, the “manipulation” remark fell far short of fundamental

unfairness or deception.

With respect to defendant’s other claims, there was no prejudicial

misconduct, as his counsel’s silence would suggest. Defendant complains that the

prosecutor denigrated defense counsel by calling their theory of the case “the

Svengali defense.” This description, however, logically referred to the claim that

the Hodges brothers forced defendant to shoot McDade. Defendant also objects to

an assertion that defense counsel “doesn’t care about a just verdict. He cares

about the defense of his client, which he’s supposed to. That’s his professional

duty. But don’t buy for a second that he just wants a just verdict.” It is not

misconduct to comment on the role of defense counsel as an advocate. (See

People v. Gionis (1995) 9 Cal.4th 1196, 1216-1218.) In any event, there was no

likelihood of prejudice to defendant. (See People v. Fierro (1991) 1 Cal.4th 173,

212-213.)

Defendant contends the prosecutor made various improper statements of

personal belief. None of the examples he cites were remotely objectionable, save

one: “Carl Powell is a cold-blooded murderer. That’s what Carl Powell is, and

that’s what I think he is.” “ ‘We have held [that a prosecutor] may not express a

personal belief in defendant’s guilt, in part because of the danger that jurors may

45

assume there is other evidence at his command on which he bases this

conclusion.’ ” (People v. Sandoval (1992) 4 Cal.4th 155, 183.) No prejudice

appears on this record. The prosecutor’s statement of belief was made in passing

in the context of urging what the evidence showed. Accordingly, the jury was

unlikely to have understood the comment as referencing evidence beyond the

record.

Defendant claims the prosecutor made an improper emotional appeal to the

jury when he questioned the supportiveness of defendant’s family. These

comments came in response to defense counsel’s argument that defendant feared

the Hodges brothers because they posed a threat to his family. The prosecutor’s

statements may not have been particularly logical or persuasive, but they were

hardly likely to provoke an irrational, purely subjective response from the jury.

(See People v. Redd, supra, 48 Cal.4th at p. 742.)

Defendant also faults the prosecutor for emphasizing defendant’s lack of

remorse, based on Banks’s testimony about a conversation with John Hodges and

Littlejohn’s account of her conversations with defendant. We have said that

“unless a defendant opens the door to the matter in his or her case-in-chief (People

v. Clark (1993) 5 Cal.4th 950, 1016), his or her remorse is irrelevant at the guilt

phase.” (People v. Jones (1998) 17 Cal.4th 279, 307; accord, People v. Riggs

(2008) 44 Cal.4th 248, 301.) Here, the theory of the defense was that defendant

did not want to shoot McDade but was pressured into doing so by the Hodges

brothers. Evidence that he displayed no remorse in the aftermath of the killing

was relevant to rebut that theory.

12. Jury Misconduct Claim

After the Hodges brothers’ mistrials, the court told the jury there might be

media reports about the case, adding, “all I can do is ask you to continue to be

46

mindful of avoiding any contact with any of the news reports about any of the

cases and not speculate also as to the status of the case against Terry and John

Hodges.” Several days later, defense counsel noted that the mistrials were

reported in the Sacramento Bee on August 27. He requested an inquiry to the jury

and an admonition that the article “is of no relevance in our situation.” The

prosecutor agreed. Defense counsel added, “I would anticipate the vast majority

[of the jurors], when they saw the headlines in the paper as before, just quit right

there, but . . . .” The court suggested asking the jurors if they could give their

assurance that the article would not affect their deliberations and, if any said it

might, following up with questions outside the presence of the other jurors.

Defense counsel agreed.

When the jurors came in, the court asked whether any of them had seen

“the short article” or the headline in the newspaper on Saturday concerning the

charges against the Hodges. It asked for a show of hands. One juror responded

“title.” Six jurors and two alternates raised their hands. The court then asked if

the article or headline would in any way affect their deliberations. No hands were

raised, nor did any juror respond when the court inquired, “if I were to direct you

to disregard what you’ve read in either the headline or the article, are there any of

you that feel you would have any problem disregarding any of . . . that in making

your decision in this case?” The court asked if counsel were satisfied or if they

wanted any further inquiry. Defense counsel replied, “no, I think that’s

appropriate, your Honor; that’s fine.”

After deliberations began, counsel advised the court that defendant wanted

to know if the jury would be questioned about another article in the Sacramento

Bee. Counsel noted that the jury had been advised about the August 27 article but

that on August 24 a similar article discussing the mistrials had appeared. Counsel

added, “my feeling is that . . . the court’s inquiry on the last one it would probably

47

cover both of them. Maybe [the] court has different feelings on that.” The court

pointed out that its last advisement had been specific to the August 27 article.

Defense counsel explained, “the reason I said that is I heard several of them say

yeah. We saw the caption. But that’s where we stopped. . . . I think that — from

what several said I assume maybe they were doing the same thing with the

previous articles.”

The court noted that there had been no further inquiry on the August 27

article because defense counsel were satisfied with simply asking how many jurors

had seen the article and the headline without going into the content of the article.

Counsel observed that the August 24 article might be more damaging to the

defense than the August 27 article because it included some comments from jurors

in the Hodges brothers’ case. Counsel were uncertain as to how or even whether

to make an inquiry while the jury was deliberating. Ultimately, they agreed with

the court’s suggestion that it send the jury a written question, asking simply if they

had seen the August 24 article and, if so, would they have any difficulty

disregarding it. When the court asked if there had been any other articles, counsel

pointed out that there had been others that had been brought up, but no request was

made to include those in the query. Counsel expressly approved the court’s

proposal, saying, “that sounds good — just the way you said it.” Five jurors

responded they had read the August 24 article or its headline. None indicated they

would be unable to disregard whatever they had read.

Defendant claims it was misconduct for jurors to have read the articles.25

However, the record does not show that any juror actually read either article.

25 He relies on his rights to an impartial jury under the Fourteenth

Amendment and article I, sections 7, 16, and 17 of the state Constitution, and to a

reliable penalty determination under the Eighth Amendment.

48

Indeed, defense counsel stated their belief that the jurors who said they saw the

articles had probably stopped reading after the headlines, as they had become

accustomed to doing throughout the trial. Accordingly, defendant fails at the

outset to show any misconduct. He further contends the court’s inquiry was

inadequate. That claim has been forfeited by counsel’s approval of the court’s

approach and failure to seek any broader investigation. (People v. Holloway

(2004) 33 Cal.4th 96, 126-127 (Holloway).) In any event, no prejudice appears.

(See People v. Tafoya (2007) 42 Cal.4th 147, 192.) The jury clearly understood

that the articles were not to be considered during deliberations. Even if it could be

inferred that any juror read one or both of them, neither article is part of the

record. Thus, there is no basis to conclude that the articles affected the verdict.

C. Penalty Phase Issues

1. Restrictions on Testimony of Defense Expert

In his penalty phase opening statement, defense counsel said the jury would

hear from a psychologist, Larry Nicholas. The prosecutor objected when counsel

began detailing what defendant told Nicholas about the murder. The court

excused the jury and heard argument. Counsel said Nicholas would report a

version of events similar to the testimony the prosecutor had told the jury it would

hear from defendant himself at the guilt phase: Defendant had approached

McDade to talk about his job, then the Hodges brothers walked up, announced a

robbery, gave defendant a gun, and pressured him into shooting McDade.

Counsel contended this testimony was relevant to mitigation. The

prosecutor argued that he would be deprived of his ability to cross-examine

defendant if the defense presented his story through Nicholas’s testimony and that

such testimony would significantly enhance the testimony of Leisey and Banks,

which tended to shift blame to the Hodges brothers. The court observed it could

49

instruct the jury not to consider defendant’s statements for their truth but only as

the basis for the doctor’s opinion. The prosecutor was skeptical the jury would be

able to make that distinction. The court asked defense counsel whether he could

limit the doctor’s description by simply having him testify that defendant gave him

a version of the events similar to the evidence the jury had heard during the guilt

phase. Counsel responded that defendant’s credibility during his interview with

the doctor was a critical issue, and he wanted the doctor’s opinion on defendant’s

credibility to be clearly based on defendant’s statements.

The prosecutor objected to Nicholas vouching for defendant’s credibility.

Defense counsel agreed this would have been improper at the guilt phase but

argued that he was entitled to elicit lingering doubt during the penalty phase. The

court asked for the psychologist’s report and said it would conduct research during

the noon recess. It ultimately sustained the prosecutor’s objection, ruling that

defendant’s statements to Nicholas were inadmissible hearsay. Subsequently, the

court explained that its ruling was based on People v. Coleman (1985) 38 Cal.3d

69 (Coleman) and People v. Price (1991) 1 Cal.4th 324 (Price). It drew from

these cases the rule that “otherwise inadmissible hearsay that prejudices one side”

cannot be presented through expert testimony. The court said Nicholas could be

asked hypothetical questions based on the evidence presented to the jury. What he

could not do was “give a self-serving albeit somewhat incriminating and

somewhat exonerating statement of an out-of-court declarant.”

Defendant claims the court erred by reading Coleman and Price as

requiring the automatic exclusion of hearsay statements from expert testimony if

50

no exception applies.26 He relies on the proposition that experts may rely on

statements that would otherwise be hearsay in forming their opinions because the

statements are not being offered for their truth. (People v. Montiel (1993) 5

Cal.4th 877, 918; Coleman, supra, 38 Cal.3d at p. 92.) 27 Defendant

mischaracterizes the trial court’s reasoning. The court applied no rigid rule of

exclusion but made clear its view that, under Coleman and Price, it had discretion

to exclude matters relied upon by an expert if their content was unduly prejudicial.

At one point, the court noted that the error in Coleman was that “the trial judge

should have exercised discretion to disallow that prejudicial content from being

utilized in cross examination of the doctor.” (See Coleman, at p. 93; Price, supra,

1 Cal.4th at p. 416 [“A trial court has considerable discretion to control the form in

which the expert is questioned to prevent the jury from learning of incompetent

hearsay”]; see also People v. Pollock (2004) 32 Cal.4th 1153, 1172 [“Although an

expert may base an opinion on hearsay, the trial court may exclude from the

expert’s testimony ‘any hearsay matter whose irrelevance, unreliability, or

potential for prejudice outweighs its proper probative value’ ”]; People v.

Carpenter (1997) 15 Cal.4th 312, 403 [prejudice may arise if, under the guise of

26 He refers to his rights to due process under the Fifth and Fourteenth

Amendments, to present a defense under the Sixth Amendment, and to a reliable

penalty determination under the Eighth Amendment.

27 Defendant does not rely on Green v. Georgia (1979) 442 U.S. 95, which

held that even if certain penalty phase evidence was barred by state hearsay rules,

due process required its admission when it was “highly relevant to a critical issue

in the punishment phase of the trial” and “substantial reasons existed to assume its

reliability.” (Id. at p. 97.) We have noted that Green applies only to evidence

having “ ‘special indicia of reliability.’ ” (People v. Eubanks (2011) 53 Cal.4th

110, 150, quoting People v. Weaver, supra, 26 Cal.4th at p. 981.) As discussed

post, defendant’s statements to Nicholas bore no such indicia.

51

reasons, an expert’s detailed explanation presents the jury with incompetent

hearsay evidence].)

We have recently clarified the law in this area, holding that “[w]hen any

expert relates to the jury case-specific out-of-court statements, and treats the

content of those statements as true and accurate to support the expert’s opinion,

the statements are hearsay.” (People v. Sanchez (2016) 63 Cal.4th 665, 686

(Sanchez).) We disapproved a number of cases, including Coleman, supra, 38

Cal.3d 69, to the extent they held that a limiting instruction and a trial court’s

evaluation of the prejudicial impact of such statements may sufficiently address

the hearsay and confrontation problems. (Sanchez, at p. 686, fn. 13.) Here,

because the trial court excluded defendant’s statements to Nicholas, no such

problems arose. Moreover, the court’s ruling was fully consistent with Sanchez,

under which defendant’s statements were inadmissible as “[c]ase-specific facts . . .

relating to the particular events and participants alleged to have been involved in

the case being tried.” (Id. at p. 676.)

In this case, the version of events defense counsel wanted to introduce

through Nicholas’s testimony was significantly more exculpatory than the versions

properly admitted into evidence, including those defendant himself provided in his

police interview. Defense counsel made plain his intent to use the doctor to

enhance defendant’s credibility, making it clear that defendant’s self-serving

statements were being offered for their truth. Thus, they were “incompetent

hearsay evidence.” (Coleman, supra, 38 Cal.3d at p. 92.) The court did not abuse

its discretion by excluding defendant’s self-serving account to Nichols.

2. Gang Evidence

Defendant challenges the admission of two forms of gang evidence in the

penalty phase. The first was a photograph of him and William Akens taken in

52

November 1991. It shows them pointing guns at each other and curling their free

hands into a “C” shape, standing for “Crips.” The second was testimony from a

gang unit detective that defendant had a reputation as a “main player” in the

Crips.28

During an in limine discussion of penalty phase evidence, the court ruled

that the photograph did not qualify as evidence of a threat of violence for purposes

of the aggravating factor set out in section 190.3, subdivision (b). However, the

court noted that gang evidence would be admissible in connection with any violent

conduct by defendant that was gang-related. Akens testified for the prosecution at

the penalty phase. He identified himself as a Freeport Crip but was evasive about

defendant’s gang membership. He said his association with defendant “wasn’t

about a gang; it was about who had each other’s back.” Akens acknowledged that

defendant had been a Crip when he was in Los Angeles but said he did not “look

at him as a Crip,” and refused to identify him as a Freeport Crip. Akens testified

that in the fall of 1991, defendant had remained outside when Akens entered a

high school classroom and confronted Zeke Moten, a student who had left the

Crips and joined the Bloods. The teacher in the room, however, testified that

defendant had entered with Akens and also threatened Moten.

Akens testified that as he and defendant drove by the high school some

days later, they saw Moten at a bus stop with other people. Moten’s group shot at

their car, so they returned fire. Akens said defendant had been a shooter.

However, on cross-examination, he insisted he had not seen defendant shoot and

was only told about it later. On redirect, he conceded he had told a police officer

that defendant was the shooter but said he was on medication at the time and was

28 Defendant relies on his rights to due process under the Fourteenth

Amendment and to a reliable penalty determination under the Eighth Amendment.

53

only relating an assumption. Akens claimed he did not know if defendant owned a

gun at that time but admitted he had taken “some pictures” with defendant in

which they both had guns. He repeated that he did not know whether defendant

had been armed during the bus stop shooting or had fired any shots.

The prosecutor called Ronald Aurich, a detective who questioned Akens

after the shooting. Aurich had been a gang detective from 1984 until 1994. He

said Akens had identified defendant as the shooter. The defense objected,

unsuccessfully, when the prosecutor asked about the dispute that led to the

shooting. Aurich said that, according to Akens, the dispute had been between

defendant and a person named Andre Whitaker. The prosecutor asked if Aurich

recognized defendant’s name. When the defense objected, the court restricted the

question to the issue of defendant’s reputation. Aurich said defendant had a

reputation as a “Freeport Crip and was a main player.”

The prosecutor moved to admit the picture of Akens and defendant. The

defense argued that after Akens’s testimony, there was no doubt he and defendant

were Crips, so the photograph was cumulative. Counsel also claimed it was

inflammatory, because it suggested defendant and Akens “were on some sort of

a[n] endless trail of crime.” The court ruled the photograph was relevant to show

defendant’s gang membership and not unduly prejudicial. The court noted that the

thrust of the penalty phase defense was that defendant only committed the crime

because of the Hodges brothers’ influence. The photograph indicated that

defendant had “considered doing such a thing previously,” even if he was joking

when holding the gun to Akens’s head.

Defendant renews his arguments on appeal. The photograph, however, was

neither cumulative nor prejudicial. Akens did not identify defendant as a Freeport

Crip during his testimony. Although Detective Aurich testified to defendant’s

reputation as a Freeport Crip and Nicholas testified for the defense that defendant

54

continued his association with the Crips after moving to Sacramento, the

prosecutor was not required to rest his case on such attenuated sources. Further,

the photograph was admitted in rebuttal after defendant attempted to minimize his

gang involvement. His gang membership was directly relevant to his participation

in the classroom incident and drive-by shooting, which were gang-related. It was

also relevant to another assault against a rival gang member, Harold Rigsby, who

testified at the penalty phase. Additionally, the photograph shows defendant in

possession of a gun around the time of the drive-by shooting, something Akens

was not willing to confirm. The court did not abuse its discretion.

Defendant claims there was insufficient foundation for Detective Aurich’s

testimony that he was reputed to be a “main player” in the Freeport Crips. In a

supplemental brief, defendant argues the testimony improperly conveyed hearsay

and violated confrontation principles, relying on Sanchez, which concluded that

“[w]hen any expert relates to the jury case-specific out-of-court statements, and

treats the content of those statements as true and accurate to support the expert’s

opinion, the statements are hearsay. It cannot logically be maintained that the

statements are not being admitted for their truth. If the case is one in which a

prosecution expert seeks to relate testimonial hearsay, there is a confrontation

clause violation unless (1) there is a showing of unavailability and (2) the

defendant had a prior opportunity for cross-examination, or forfeited that right by

wrongdoing.” (Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.)

Initially, the Attorney General argues defendant forfeited his claim because

he raised no hearsay or confrontation objection to Aurich’s testimony, nor did he

challenge the evidence as improper reputation testimony. We agree under the

present circumstances. Defense counsel objected on grounds of “relevance” and

“one of your prior rulings as well,” an apparent reference to the court’s pretrial

ruling against the admission of gang-related evidence unless incidents of gang

55

violence were at issue. On cross-examination, counsel explored the basis for

Aurich’s assessment of defendant’s reputation but did not move to strike his

testimony.

It is true that Sanchez postdated the trial here. However, Sanchez would

only excuse a lack of objection if an objection would have otherwise been futile

under prior law. The issue in Sanchez was whether an expert may properly relate

to the jury out-of-court statements to explain the bases for the expert’s opinion

testimony. Pre-Sanchez law characterized such statements as nonhearsay,

reasoning that “matters admitted through an expert go only to the basis of his

opinion and should not be considered for their truth.” (People v. Montiel, supra, 5

Cal.4th at p. 919; see Coleman, supra, 38 Cal.3d at p. 92.) As such, a hearsay

objection to such expert testimony would generally have been futile unless it was

shown that the jury could not “properly follow the court’s limiting instruction in

light of the nature and amount of the out-of-court statements admitted.” (Sanchez,

supra, 63 Cal.4th at p. 679.)

Here, however, Aurich did not testify as an expert. Aurich initially testified

regarding his interview of Akens. He was then asked about defendant’s reputation

for gang activity, whereupon he testified he “was receiving” information that

defendant was a “Freeport Crip and was a main player,” explaining the latter

phrase. Aurich was not testifying as an expert by conveying his own opinion

about defendant’s gang activity or offering hearsay in support of such an opinion.

Rather, he was relating what he had been told about defendant’s gang activity.

(Cf. People v. Jones (2017) 3 Cal.5th 583, 603, fn. 4.) Whether such testimony

fell within the ambit of the hearsay exception for reputation concerning character

(Evid. Code, § 1324) or otherwise violated the right of confrontation, the bases for

challenging it predated Sanchez. (See, e.g., People v. Eli (1967) 66 Cal.2d 63, 78-

80 [finding error in the admission of reputation evidence].) As such, defendant’s

56

failure to object forfeited his claims. (See People v. Abel (2012) 53 Cal.4th 891,

924.)

In any event, even assuming error, the admission of the “main player”

statement was harmless beyond a reasonable doubt. As the Attorney General

observes, evidence was presented at the penalty phase of defendant’s involvement,

along with Akens, in a shooting of a rival gang member. Additionally, evidence

reflected that defendant had been a gang member since he was 12 years old and

continued his involvement in the Crips when he moved to Sacramento at age 16.

A photo depicted defendant and Akens holding guns and displaying gang signs.

Aurich described “main players” as “a little more hardcore, gang members who

promote their gang, be involved in gang activity, be involved in gang related type

crimes, be a little more blatant about who they are and what they do.” The

evidence already reflected defendant’s significant gang involvement without

Aurich’s shorthand characterization. (Cf. People v. Banks (2014) 59 Cal.4th 1113,

1199 [improper reputation evidence harmless].)

3. Victim Impact Evidence

Edwina Pama, Colleen McDade’s mother, testified about the impacts of the

murder on the McDade family. After she spoke about Colleen and the two

McDade children, the prosecutor asked her about Keith’s mother and siblings.

Defense counsel objected, stating he had been “holding back on my objections,”

but argued that “if counsel wants to ask one witness about the effects on another, I

suggest he bring the other witness in.” The court overruled the objection “to the

extent that the witness may describe things she has perceived as opposed to

opinions she has otherwise.”

Pama said the murder had been “very, very hard” on Keith’s mother. “At

first it seemed like she didn’t want to talk about Keith. To me it was like, you

57

know . . . if you don’t say anything about it, it will go away.” Defense counsel

renewed his objection, asking that the testimony be struck and that questioning be

restricted to what the witness had seen or heard. The court again overruled the

objection, stating that Pama could give her “lay opinion” “as to what she actually

perceived and what she believed concerning those perceptions.” Counsel objected

again when the prosecutor asked how Keith’s murder had affected his brother.

The court sustained this objection, telling the prosecutor to restate the question so

as to focus on “what she has perceived other than what she may know from any

other hearsay source.”

Defendant challenges these rulings.29 First, he claims Pama’s testimony

should have been excluded as improper lay opinion. He cites People v. Chatman

(2006) 38 Cal.4th 344, 397 for the proposition that “[g]enerally, a lay witness may

not give an opinion about another’s state of mind.” But as the Chatman court

continued to say, “a witness may testify about objective behavior and describe

behavior as being consistent with a state of mind.” (Ibid.) There, a penalty phase

witness testified that he had seen the defendant kicking a school custodian. The

prosecutor asked whether the defendant “ ‘seemed to be enjoying it.’ ” (Ibid.)

The witness’s affirmative answer was held to be proper. Similarly here, Pama was

qualified to testify about her own direct perceptions of how McDade family

members reacted to the murder. The trial court’s responses to the objections made

plain to the jury and the witness what the proper scope of her testimony was.

Defendant’s attempt to parse the record for examples of Pama’s projection of her

own feelings is not persuasive. Any defects in the testimony in this regard were

merely semantic and cannot be deemed prejudicial.

29 He claims violations of the Fifth, Sixth, Eighth, and Fourteenth

Amendments.

58

Defendant further contends that Pama’s testimony was so inflammatory as

to invite an irrational, purely subjective response from the jury. (See Payne v.

Tennessee (1991) 501 U.S. 808, 824-825; People v. Edwards (1991) 54 Cal.3d

787, 835-836.) As defendant concedes, he failed to raise such an objection below,

forfeiting this claim. (People v. Simon (2016) 1 Cal.5th 98, 139 (Simon).) What

we said recently in Simon also applies here: “Even if [the] claim were not

forfeited, his argument fails on the merits because the victim impact evidence was

not unduly prejudicial. The family members’ testimony here properly described

the nature of their relationships with the victims, how they learned about the

crimes, and how the crimes impacted their lives. [Citations.] Furthermore, neither

the number of witnesses . . . nor the amount of testimony . . . was excessive.” (Id.

at pp. 139-140, citing People v. Romero and Self (2015) 62 Cal.4th 1, 46 [no error

where victim impact testimony consisted of six witnesses spanning 96 pages of the

reporter’s transcript]; People v. Pearson (2013) 56 Cal.4th 393, 464–467 [victim

impact testimony of 13 witnesses]; People v. Nelson (2011) 51 Cal.4th 198, 219–

221 [victim impact testimony of one victim’s six family members].)

“Moreover, the content of the victim impact evidence was not so emotional

that it became unduly prejudicial. [Defendant] is likely correct that the testimony

painted a picture of ‘the complete devastation of two families,’ but that is to be

expected when loved ones have been brutally murdered. [Citations.] The question

is not simply whether victim impact evidence was emotional or demonstrated the

devastating effect of the crime; rather, it is whether the testimony invited an

irrational response from the jury. [Citation.] [Defendant], however, provides no

persuasive basis for us to conclude that the testimony presented in this case

triggered such a response. And our review of the record indicates the testimony

was not so emotional that the trial court’s failure to exclude it amounted to an

59

abuse of discretion or rendered [the] trial fundamentally unfair.” (Simon, supra, 1

Cal.5th at p. 140.)

4. The Prosecutor’s Penalty Phase Closing Argument

Defendant argues, at great length, that the prosecutor committed

misconduct during his penalty phase argument.30 No objection was made below.

As noted, a claim of prosecutorial misconduct is forfeited when there was neither a

timely and specific objection nor a request for admonition. (Clark, supra, 52

Cal.4th at p. 960.) Defendant refers to the court’s rejection of his single objection

to a guilt phase argument when the prosecutor asserted that “witnesses were able

to be manipulated by the defense attorneys with these leading type questions.”

(See pt. II.B.11, ante, pp. 44-45.) On this basis, he asserts that any objections at

the penalty phase would have been futile. The claim is meritless. Nor do we

accept defendant’s contention that the effects of the prosecutor’s misconduct could

not have been cured by admonition. None of the alleged instances of misconduct

were so provocative that an advisement would have been ineffective, assuming

one were called for.

Although defendant’s claims are forfeited, we address them in summary

fashion. Defendant contends the prosecutor’s comments comparing him to a

Bengal tiger constituted a “thinly-veiled racist allusion” that dehumanized him and

thus constituted an improper argument regarding his future dangerousness. We

have previously rejected claims based on similar comments and find no ground to

reach a different result here. (See People v. Brady (2010) 50 Cal.4th 547, 585;

People v. Duncan (1991) 53 Cal.3d 955, 976-977.) It goes without saying that a

30 He asserts violations of the Fifth, Sixth, Eighth, and Fourteenth

Amendments.

60

prosecutor may not compare a defendant to a beast for the purpose of

dehumanizing him before the jury or in an effort to evoke the jury’s racial biases.

The prosecutor may, however, properly remind a penalty phase jury of the

circumstances of the offense, including the brutality of the murder, and caution the

jury against judging defendant solely based upon his calm demeanor in the

courtroom. Here, as in our prior cases, the record makes clear that the prosecutor

was using the Bengal tiger analogy only to make the latter point. Under the

circumstances of the case, we find no prejudicial misconduct.

Defendant acknowledges that, under our precedent, the prosecutor could

urge the jury to give him the same degree of sympathy he gave to McDade. (E.g.,

People v. Collins, supra, 49 Cal.4th at p. 230; People v. Ochoa (1998) 19 Cal.4th

353, 464-465.) He does not persuade us to change our view. Similarly, we

decline to overrule our cases holding that the jury may be asked to consider the

crime from the victim’s point of view. (E.g., People v. Scott (1997) 15 Cal.4th

1188, 1220; People v. Garceau (1993) 6 Cal.4th 140, 206.) The prosecutor’s

arguments here were based on reasonable inferences from the evidence about the

circumstances of the shooting. The evidence also supported the prosecutor’s

observation that defendant could have killed someone when he fired at the crowd

around the bus stop. In general, the prosecutor’s use of the aggravating evidence

of defendant’s gang activity was proper.

“The prosecutor is entitled to note the absence of the mitigating

circumstance of remorse. . . .” (Burney, supra, 47 Cal.4th. at p. 266.) To the

extent the prosecutor’s arguments here could have been construed by the jury to

employ defendant’s lack of remorse as an aggravating factor, such a

misapplication could easily have been remedied by the court if an objection were

made. (See People v. Jurado (2006) 38 Cal.4th 72, 141.)

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The prosecutor’s comments on defendant’s supportive family were not an

improper use of extenuating circumstance evidence under section 190.3,

subdivision (k). (See People v. Caro (1988) 46 Cal.3d 1035, 1062-1063.)

“Although it is misconduct to misstate facts, the prosecutor ‘enjoys wide

latitude in commenting on the evidence, including the reasonable inferences and

deductions that can be drawn therefrom.’ ” (People v. Collins, supra, 49 Cal.4th

at p. 230.) Here, the prosecutor did not materially misrepresent the evidence of

defendant’s relationship with the McDades or Nicholas’s testimony regarding

whether defendant was pressured into shooting Keith. His comments with respect

to whether the Hodges brothers were present at the moment of the shooting were

based on defendant’s own statements to the police. Any misstatement could easily

have been corrected by the court upon timely objection. Further, the jury was told

to determine the facts from the evidence and not from the arguments of counsel.

The Attorney General concedes the evidence did not support the

prosecutor’s argument that William Akens was on probation, giving him an

incentive to testify truthfully. However, defense counsel made no effort to correct

the mistake. The record shows that Akens was, in fact, on parole from the

California Youth Authority (now the Division of Juvenile Justice), though the jury

was not informed of this. However, the jury heard evidence that Akens had just

been released from the custody. Defendant was not prejudiced by the prosecutor’s

misstatement.

Defendant asserts the prosecutor denigrated defense counsel by claiming

they were trying to shift blame to the Hodges brothers. That was the essence of

the defense strategy. The argument was a proper comment on this tactic. (See,

e.g., People v. Seaton (2001) 26 Cal.4th 598, 663; People v. Bemore (2000) 22

Cal.4th 809, 846.) Defendant also contends the prosecutor improperly attacked

the credibility of Nicholas, claiming he was “bought and paid for” and disputing

62

his assessment of defendant’s IQ. The prosecutor’s remarks were not improper.

(See Clark, supra, 52 Cal.4th at p. 962 [“our decisions make clear that ‘harsh and

colorful attacks on the credibility of opposing witnesses are permissible’ ”];

People v. Arias (1996) 13 Cal.4th 92, 162 [argument that defense expert

“ ‘stretch[ed]’ ” a principle “ ‘for a buck’ ” was permissible comment suggesting a

paid witness may be biased].)

Finally, defendant claims the prosecutor improperly invoked biblical

authority when he argued, “If you make certain choices in your life theology-wise

you go to hell. If you make other certain choices in your life, you go to heaven.

That’s the way it is.” “As we have explained, ‘[t]he primary vice in referring to

the Bible and other religious authority is that such argument may “diminish the

jury’s sense of responsibility for its verdict and . . . imply that another, higher law

should be applied in capital cases, displacing the law in the court’s

instructions.” ’ ” (People v. Hughes (2002) 27 Cal.4th 287, 389.) Any possible

misconduct was harmless. These comments came in response to the defense

argument that the Hodges brothers made defendant shoot McDade, in an effort to

persuade the jury to hold him responsible for his actions. The prosecutor did not

urge the jury to apply a source of law other than the court’s instructions. (See

People v. Huggins (2006) 38 Cal.4th 175, 208.)

5. News of an Unrelated Case

After the jury announced it had reached a penalty verdict, but before it was

brought in to announce it, defense counsel commented, “I’m sure we’ve all read

[about] the incident that happened here the other day, the McDonald’s on Florin

Road, the shooting and probably some gang relationship to that as well. What I’m

thinking is, that perhaps the Court might make some inquiry whether the jurors

have, number one, have they read that article, and if they did, whether it

63

influenced them in any way? And however the Court wants to handle that, I

would leave it up to you.” Counsel observed that the coverage of this incident

occurred during the arguments and continued during the jury’s deliberations.

Counsel agreed with the court’s suggestion that it question the jury as a panel

rather than individually. Counsel further agreed with the prosecutor that the

inquiry take place after the jury disclosed its verdict.

After the verdict was entered, the court asked the panel, “Which, if any of

you, were exposed to any of the news reports . . . of the recent McDonald’s fast-

food robbery-murder case? Were there any of the deliberating jurors who heard or

read any of those reports?” Only two jurors were unaware of the incident. The

court asked, “those who did receive any information about that, were there any of

you that were influenced in your decision by any of the news reports concerning

that?” No juror gave a positive response.

Defendant contends the court conducted an inadequate inquiry into jury

misconduct.31 However, defense counsel fully acquiesced in the court’s approach

and made no request for further inquiry, forfeiting any claim of error. (Cf.

Holloway, supra, 33 Cal.4th at pp. 126-127.) In any event, the claim is

unfounded. The court need not have conducted any inquiry at all. We have held

that the effects of a jury’s exposure to coverage of other crimes is too speculative

to require investigation by the court. (Clark, supra, 52 Cal.4th at pp. 966-967, and

cases therein cited.)

31 He invokes his fair trial rights under the Sixth and Fourteenth Amendments

and article I, sections 7, 15, and 16 of the state Constitution, as well as his right to

a reliable penalty determination under the Eighth Amendment.

64

6. Refusal of Instructions Proposed by the Defense

a. Victim Impact Evidence

The court declined to give the following instruction proposed by the

defense: “Evidence has been introduced for the purpose of showing the specific

harm caused by the defendant’s crime. Such evidence, if believed, was not

received and may not be considered by you to divert your attention from your

proper role of deciding whether defendant should live or die. You must face this

obligation soberly and rationally, and you may not impose the ultimate sanction as

a result of an irrational, purely subjective response to emotional evidence and

argument. On the other hand, evidence and argument on emotional though

relevant subjects may provide legitimate reasons to sway the jury to show mercy.”

We have rejected claims of error based on the refusal to give this instruction or to

instruct sua sponte on the proper use of mitigating evidence. (People v. Russell

(2010) 50 Cal.4th 1228, 1265-1266; Carey, supra, 41 Cal.4th at p. 134.) We do so

again here.32 The jury was adequately instructed with CALJIC Nos. 8.84.1 and

8.85.

b. Mitigating Evidence

Defendant contends the court erred by failing to give several proposed

instructions with regard to mitigating evidence.33 First, he challenges the rejection

of an instruction stating: “If the mitigating evidence gives rise to compassion or

sympathy for the defendant, the jury may, based upon such sympathy or

compassion alone, reject death as a penalty. A mitigating factor does not have to

32 Defendant refers to the Sixth, Eighth, and Fourteenth Amendments and

article I, sections 7, 15, 16, and 17 of the state Constitution.

33 He claims violations of his rights under the Fifth, Sixth, Eighth and

Fourteenth Amendments and article I, sections 7 and 15 of the state Constitution.

65

be proved beyond a reasonable doubt. A juror may find that a mitigating

circumstance exists if there is any evidence to support it no matter how weak the

evidence is.” The court did instruct the jury that mitigating factors need not be

proven beyond a reasonable doubt and that a mitigating factor may be found to

exist “if there is any credible evidence to support it.” The court’s instructions on

this point, together with the standard CALJIC instructions on mitigation evidence,

were entirely sufficient. (CALJIC Nos. 8.85 & 8.88.) We have rejected claims

that the jury must be told that sympathy or compassion alone may justify rejection

of the death penalty. (People v. Davis (2009) 46 Cal.4th 539, 621-622; People v.

Loker (2008) 44 Cal.4th 691, 744.) We have also held that the court has no duty

to instruct the jury that it may find a mitigating circumstance if there is “any

evidence to support it.” (People v. Brasure (2008) 42 Cal.4th 1037, 1069.)

Defendant also asked for the following instruction on mental impairment:

“The mental impairment referred to in this instruction is not limited to evidence

which excuses the crime or reduces defendant’s culpability, but includes any

degree of mental defect, disease or intoxication which the jury determines is of a

nature that death should not be imposed. That the jury has rejected a defense of

insanity, diminished capacity or diminished actuality at a previous stage of the

proceedings does not prohibit its consideration of evidence showing some

impairment as a reason not to impose death.” The court declined to give this

instruction, saying it would instead modify CALJIC No. 8.85, factor (i) to permit

the jury to consider defendant’s “chronological or psychological age at the time of

the crime.” (Italics added.) Defense counsel said, “I think that’s appropriate, your

honor.”

The court’s instructions were adequate. The passage in defendant’s

proposed instruction regarding the defenses of insanity, diminished capacity, or

diminished actuality were irrelevant. None of these defenses were presented to the

66

jury. CALJIC No. 8.85, factor (h) advised the jury that in deciding which penalty

to impose, it must consider “[w]hether or not at the time of the offense the

capacity of the defendant to appreciate the criminality of his conduct or to

conform his conduct to the requirements of law was impaired as a result of mental

disease or defect or the effects of intoxication.” The portion of the proposed

instruction that was not irrelevant was duplicative of this standard instruction.

Finally, defendant contends the court erred by refusing to instruct the jury

that “[t]he mitigating circumstances that I have read for your consideration are

given merely as examples of some of the factors that a jury may take into account

as reasons for deciding not to impose a death sentence in this case. A juror should

pay careful attention to each of those factors. Any one of them may be sufficient,

standing alone, to support a decision that death is not the appropriate punishment

in this case. But a juror should not limit his or her consideration of mitigating

circumstances to these specific factors. . . . Any mitigating circumstance may

outweigh all the aggravating factors.”

The court decided these instructions were duplicative of CALJIC No. 8.85,

factor (k), which required the jury to consider: “Any other circumstance which

extenuates the gravity of the crime even though it is not a legal excuse for the

crime and any sympathetic or other aspect of the defendant’s character or record

that the defendant offers as a basis for a sentence less than death, whether or not

related to the offense for which he is on trial. . . .” The court also referred to the

portion of CALJIC No. 8.88 that instructed the jury, “you are free to assign

whatever moral or sympathetic value you deem appropriate to each and all of the

various factors you are permitted to consider.” The latter instruction also told the

jury that the weighing process is not “a mere mechanical counting of factors on

one side of an imaginary scale, or the arbitrary assignment of weights to any of

them.” (Ibid.)

67

Defendant argues that the instructions given did not inform the jury that just

one mitigating circumstance can be sufficient to justify a sentence of life without

the possibility of parole. As he points out, we have approved instructions making

that point. (E.g., People v. Anderson (2001) 25 Cal.4th 543, 599; People v.

Sanders (1995) 11 Cal.4th 475, 557.) The Attorney General responds that we

have never required such an instruction to be given and have held that “CALJIC

No. 8.85 is both correct and adequate,” and that “CALJIC No. 8.88 properly

instructs the jury on its sentencing discretion and the nature of its deliberative

process.” (People v. Valencia (2008) 43 Cal.4th 268, 309, 310.) Here, the court

did not abuse its discretion by relying on instructions that were standard at the

time of trial. There is no constitutional requirement that the jury be told a single

mitigating factor may be enough to support its decision. The court’s instructions

left ample room for counsel to argue that any one factor may be sufficient to

justify life without the possibility of parole, and counsel pressed that point in his

closing argument.

7. Asserted Repetition of Guilt Phase Instructional Error

Defendant contends the court repeated three guilt phase instructional errors

at the penalty phase.34 First, he claims he was prejudiced because the jury

received a written copy of CALJIC No. 2.71.7, advising the jury to consider “an

oral statement of [intent, plan, motive or design] . . . made by the defendant before

the offense” with caution. There was no objection below, and defendant shows no

impairment of a substantial right. (§ 1259.) He repeats the argument we have

rejected in part II.B.10.d., ante, page 41: That the instruction improperly applied

34 He asserts violation of his right to a reliable penalty determination under

the Eighth and Fourteenth Amendments.

68

to John Hodges’s statement, reported by Eric Banks, that defendant had said he

did not want to kill McDade. Defendant argues that his penalty phase defense

centered on the claim that he shot McDade only because he feared and felt

pressure from the Hodges brothers. As we have noted, however, there is no reason

to think that extra “caution” would have influenced the jurors’ consideration of

Banks’s testimony. Defendant’s own recorded statements to the police

emphasized that he had not wanted to kill McDade, and Terry Hodges’s

description of the crime to Daryl Leisey conveyed the same impression.

Next, defendant contends the court should have given a duress instruction

at the penalty phase. The court refused counsel’s request for one, saying “there’s

no more evidence to support it than there was in the guilt phase.” The court was

correct. As discussed in part II.B.8, ante, pages 34-35, there was no guilt phase

evidence supporting a conclusion that defendant shot McDade because of an

imminent threat against his life. Defendant claims Nicholas’s penalty phase

testimony provided additional support. It did not. The psychologist’s testimony

merely tended to show that defendant was susceptible to manipulation and

intimidation, not that there was any actual duress.

Finally, defendant argues that the court erroneously gave the jury a version

of CALJIC No. 3.16 to the effect that the Hodges brothers and Akens were

accomplices as a matter of law. No objection was made, and defendant cannot

show that this instruction had an impact on his substantial rights at the penalty

phase. (§ 1259.) For the reasons stated in part II.B.10.e., ante, pages 41-42, the

instruction was helpful to the defense with regard to the Hodges brothers, and

defendant’s admissions left no doubt that they were accomplices, not perpetrators

of the murder. Defendant contends Akens took responsibility for the threat against

Moten in the classroom and the drive-by shooting, and, thus, the instruction

erroneously cast defendant in the role of perpetrator. However, the accomplice

69

instruction would not have led the jury to believe that defendant was a perpetrator

as a matter of law with respect to these incidents. To the contrary, the court

modified the penalty phase instruction to state that the rule requiring corroboration

of Akens’s statements applied “to the extent they incriminate [defendant].” Thus,

the instruction aided the defense.

8. Denial of Automatic Modification Motion

The trial court stated its reasons on the record for denying the motion for

modification of the verdict mandated by section 190.4, subdivision (e). “In ruling

on the application to modify, the trial court does not make an independent penalty

determination, but instead reweighs the evidence of aggravating and mitigating

circumstances and then determines whether the weight of the evidence supports

the jury verdict.” (Wallace, supra, 44 Cal.4th at p. 1096.) Here, the court

primarily emphasized three circumstances: Defendant took advantage of his

relationship with McDade, who had treated him with care and concern; defendant

committed an execution-style murder knowing the impact it would have on a

young family; and McDade himself was a relatively young man.

Defendant does not take issue with the court’s reliance on these factors.

Instead, he claims the court erred by giving aggravating weight to other factors

that can only be mitigating and by failing to consider certain mitigating

evidence.35 The Attorney General concedes that the court erred by weighing in

aggravation whether the victim was a participant in or consented to the homicide

(§ 190.3, subd. (e)), and whether defendant reasonably believed his conduct was

justified or extenuated (§ 190.3, subd. (f)). However, he urges the errors were

35 Defendant cites his rights to a reliable penalty determination under the

Eighth Amendment and to due process under the Fourteenth Amendments.

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harmless as they were in People v. Hamilton (1989) 48 Cal.3d 1142, 1186-1187.

We agree. As in Hamilton, the court stressed that the murder was “brutal and

cold-blooded” (id. at p. 1186), “the mitigating evidence was comparatively weak”

(id. at pp. 1186-1187), and “the court did not deem the issue of penalty to be a

close on” (id. at p. 1187). A proper weighing of mitigating factor (e) and (f)

evidence would not have led to leniency. The aggravating evidence on which the

court placed primary and proper weight was substantial.

Defendant also claims the court gave improper aggravating effect to

defendant’s positive family atmosphere and support, which was extenuating

evidence under factor (k). Not so. The court specifically stated that it was

considering this evidence in mitigation, and its observation that defendant “should

have been the product of a loving and caring family” is reasonably understood as a

comment on the weight of this mitigating evidence. Defendant faults the court for

not mentioning the environment of his youth in Los Angeles and the difficult

circumstances his family faced there. Similarly, defendant complains that the

court did not mention his positive personality traits. However, “[i]n ruling on an

automatic motion to modify a death verdict, a trial court need not recount details

of, or identify, all evidence presented in mitigation or in aggravation. [Citation.]

The trial court’s only obligation was to provide a ruling that allows effective

appellate review. [Citation.] The trial court here did: It identified what it viewed

as mitigating and aggravating evidence of significance to its ruling, and it engaged

in the requisite weighing.” (People v. Romero (2008) 44 Cal.4th 386, 427.)

Defendant further objects that the court refused to consider his youth as a

mitigating factor. On this subject, the court said: “The age of the defendant at the

time of the crime, that could in some jurors’ or fact finders’ minds be a mitigating

factor because the defendant was relatively young at the time of the offense, but I

don’t find this to be of — the defendant’s age at the time of the offense to

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constitute a mitigating factor. At best, it’s a neutral factor.” These comments

show that the court understood that a defendant’s youth can be a mitigating factor.

In reweighing the evidence before the jury, however, the court concluded that its

impact was negligible. We note that the court was not required to find that

evidence of youth was actually mitigating in light of all the evidence. (Wallace,

supra, 44 Cal.4th at pp. 1095, 1097.) Defendant points out that the Eighth

Amendment prohibits the execution of persons under the age of 18. (Roper v.

Simmons (2005) 543 U.S. 551, 568 (Roper).) Therefore, he contends the

circumstance that a capital defendant is only 18 years old at the time of the murder

must always be considered mitigating. This conclusion does not flow from

Roper’s reasoning, which recognized that 18 is necessarily a somewhat arbitrary

line to draw, given human variability. (Id. at p. 574.)

In any event, our review of the trial court’s ruling is independent.

(Wallace, supra, 44 Cal.4th at p. 1096.) Considering all the evidence before the

jury, including defendant’s youth and childhood environment, we cannot say the

penalty verdict is unsupported. The aggravating evidence of the McDades’

supportive relationship with defendant, as well as the brutality of the murder he

committed with full knowledge of its impact on their family, was sufficient to

sustain the verdict.

9. Cruel and Unusual Punishment

In his supplemental brief, defendant contends his death judgment

constitutes cruel and unusual punishment in violation of the federal and state

Constitutions in light of his youth and intellectual shortcomings. With respect to

the former, defendant acknowledges he was 18 years old at the time of the killing

here. “We previously have rejected the argument that a death penalty scheme that

treats differently those who are 18 years of age and older, and those younger than

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18, violates equal protection. [Citations.] Indeed, the United States Supreme

Court has concluded the federal Constitution draws precisely this line, prohibiting

the death penalty for those younger than 18 years of age, but not for those 18 years

of age and older.” (People v. Gamache (2010) 48 Cal.4th 347, 405.)

Defendant suggests that Roper, supra, 543 U.S. 551 and Atkins v. Virginia

(2002) 536 U.S. 304, “stand for the principle that it is cruel and unusual, by

evolving standards of decency, to execute someone who is over 18, but whose

brain functions at a level equivalent to a juvenile.” Defendant misreads those

cases. In adopting a categorical rule, Roper expressly acknowledged that “[t]he

qualities that distinguish juveniles from adults do not disappear when an

individual turns 18. By the same token, some under 18 have already attained a

level of maturity some adults will never reach. . . . The age of 18 is the point

where society draws the line for many purposes between childhood and adulthood.

It is, we conclude, the age at which the line for death eligibility ought to rest.”

(Roper, at p. 574.) Atkins adopted a similar categorical rule prohibiting the

execution of “mentally retarded” persons. (Atkins, at pp. 313-321.)

Roper teaches that a death judgment against an adult is not unconstitutional

merely because that person may share certain qualities with some juveniles.

Likewise, nothing in Atkins suggests that the execution of someone who is neither

a juvenile nor developmentally disabled may nevertheless be unconstitutional

based on a showing that person is actually immature. (Cf. People v. Mendoza

(2016) 62 Cal.4th 856, 908-912 [rejecting claim that Roper and Atkins precluded a

death judgment against mentally ill persons].)

In support of his claim, defendant asserts his IQ is 75, he had “high levels

of paranoia and suffered from symptoms of schizophrenia,” he had trouble

reading, and he performed poorly in school. He claims these factors made him

prone to manipulation and impulse. To the extent defendant suggests he is entitled

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to relief on a showing less than that required in Atkins, the suggestion is not well-

taken. In any event, “[p]ostconviction claims of mental retardation should be

raised by petition for writ of habeas corpus . . . .” (In re Hawthorne (2005) 35

Cal.4th 40, 47.) After Atkins, the Legislature enacted section 1376. To make out a

prima facie case, a petitioner must file a declaration “by a qualified expert stating

his or her opinion that the defendant is a person with an intellectual disability”

(§ 1376, subd. (b)(1)), defined as “the condition of significantly subaverage

general intellectual functioning existing concurrently with deficits in adaptive

behavior and manifested before 18 years of age” (§ 1376, subd. (a)). (See In re

Hawthorne, at pp. 47-48.) Defendant makes an Atkins claim in his separate habeas

corpus petition, which is currently pending before us. (See In re Powell, S208154

[Claim XII].) We reject defendant’s claim on direct appeal without prejudice to

resolution of the issue in his separate habeas petition.

10. Challenges to the Death Penalty Statute

Defendant raises a number of challenges to the constitutionality of

California’s death penalty statute that we have consistently rejected. He argues

that all of these flaws, considered together, amount to a “wanton and freakish”

system that randomly selects some murderers for the death penalty. (See Furman

v. Georgia (1972) 408 U.S. 238, 310 (conc. opn. of Stewart, J.).) We decline to

deviate from settled precedent.

“ ‘The death penalty law adequately narrows the class of death-eligible

defendants. [Citations.]’ (People v. Boyce (2014) 59 Cal.4th 672, 723 (Boyce);

see also People v. Linton (2013) 56 Cal.4th 1146, 1214 (Linton).)” (People v.

Salazar (2016) 63 Cal.4th 214, 255 (Salazar).)

“ ‘ “The sentencing factor of ‘circumstances of the crime’ (§ 190.3, factor

(a)) is not unconstitutionally vague and does not result in the arbitrary and

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capricious imposition of the death penalty.” [Citation.]’ (People v. Scott (2015)

61 Cal.4th 363, 407 []; see also People v. Merriman (2014) 60 Cal.4th 1, 105–

106.)” (Salazar, supra, 63 Cal.4th at p. 255.)

“Except for evidence of other crimes and prior convictions, jurors need not

find aggravating factors true beyond a reasonable doubt; no instruction on burden

of proof is needed; the jury need not achieve unanimity except for the verdict

itself; and written findings are not required.” (People v. Johnson (2015) 60

Cal.4th 966, 997; see People v. Sánchez (2016) 63 Cal.4th 411, 487.) “Nor is the

death penalty unconstitutional ‘for failing to require proof beyond a reasonable

doubt that aggravating factors . . . outweigh the mitigating factors . . . .’ ” (Simon,

supra, 1 Cal.5th at p. 149; see People v. Case (2018) 5 Cal.5th 1, 50.)36

“ ‘ “Intercase proportionality review is not required.” [Citation.]’ ” (Salazar,

supra, 63 Cal.4th at p. 257; see People v. Scott, supra, 61 Cal.4th at p. 408; People

v. Boyce, supra, 59 Cal.4th at p. 725.)

“The jury may properly consider evidence of unadjudicated criminal

activity under section 190.3, factor (b) (People v. Whisenhunt [(2008)] 44 Cal.4th

[174,] 228), [and] jury unanimity regarding such conduct is not required (People v.

Kelly (2007) 42 Cal.4th 763, 800. . . .” (People v. Lee (2011) 51 Cal.4th 620,

653.) The death penalty statute is not unconstitutional because it allows the

36 In his supplemental brief, defendant asserts we should reconsider our

precedents in light of Hurst v. Florida (2016) 577 U.S. ___ [136 S.Ct. 616], which

found unconstitutional Florida’s death penalty law. We have rejected this claim,

noting that “[t]he California sentencing scheme is materially different from that in

Florida. Here, a jury weighs the aggravating and mitigating circumstances and

reaches a unanimous penalty verdict that ‘impose[s] a sentence of death’ or life

imprisonment without the possibility of parole. (Pen. Code, § 190.3; see id., §

190.4.) Unlike Florida, this verdict is not merely ‘advisory.’ ” (People v. Rangel

(2016) 62 Cal.4th 1192, 1235, fn. 16; see People v. Henriquez (2017) 4 Cal.5th 1,

45.)

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consideration of juvenile criminal conduct in aggravation. We have repeatedly

rejected this claim, observing that Roper “says nothing about the propriety of

permitting a capital jury, trying an adult, to consider evidence of violent offenses

committed when the defendant was a juvenile.” (People v. Bramit (2009) 46

Cal.4th 1221, 1239; see People v. Lee (2011) 51 Cal.4th 620, 649.) As we

recently explained in People v. Rices (2017) 4 Cal.5th 49: “Defendant did not

receive the death penalty for his juvenile crimes. He received the death penalty

for the execution-style murders of two unresisting robbery victims committed

when he was an adult. No legal principle prohibits admitting evidence of his

violent juvenile conduct on the question of what the punishment for those crimes

should be.” (Id. at p. 87.)

“ ‘The use of the words “ ‘extreme’ ” in section 190.3, factors (d) and (g),

and “ ‘substantial’ ” in factor (g), does not act as a barrier to the consideration of

mitigating evidence in violation of the Fifth, Sixth, Eighth, and Fourteenth

Amendments.’ (People v. Linton, supra, 56 Cal.4th at p. 1216.)” (People v. Cage

(2015) 62 Cal.4th 256, 296 (Cage).)

“ ‘ “ ‘ “[T]he statutory instruction to the jury to consider ‘whether or not’

certain mitigating factors were present did not impermissibly invite the jury to

aggravate the sentence upon the basis of nonexistent or irrational aggravating

factors.” ’ ” ’ (People v. Edwards (2013) 57 Cal.4th 658, 766; accord, People v.

Linton, supra, 56 Cal.4th at p. 1216.) ‘There is no constitutional requirement that

the jury be instructed regarding which of the statutory factors in section 190.3 are

aggravating, which are mitigating, and which could be either aggravating or

mitigating.’ (People v. Merriman [, supra,] 60 Cal.4th [at pp.] 106–107.)” (Cage,

supra, 62 Cal.4th at p. 296.)

“ ‘ “The California death penalty scheme does not violate equal protection

by treating capital and noncapital defendants differently.” [Citation.] “. . .

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California’s death penalty scheme does not violate international law and norms.”

[Citation.]’ (People v. Scott, supra, 61 Cal.4th at p. 408; see also People v. Boyce,

supra, 59 Cal.4th at p. 725.)” (Salazar, supra, 63 Cal.4th at p. 257.)

11. Cumulative Prejudice

Defendant contends the cumulative impact of errors at both phases of his

trial resulted in fundamental unfairness in violation of the due process clauses of

the state and federal Constitutions. We disagree. The guilt phase was complicated

by defendant’s belated decision not to testify. He was fully aware of the

consequences of that decision, however, and no unfairness resulted. Any errors,

actual or arguable, were minor. The claim of cumulative prejudice must be

rejected.

III. DISPOSITION

We affirm the judgment in its entirety.

CORRIGAN, ACTING C. J.

WE CONCUR:

CHIN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

HUFFMAN, J.*

HULL, J.**

__________________________

* Associate Justice of the Court of Appeal, Fourth Appellate District, Division

One, assigned by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.

** Associate Justice of the Court of Appeal, Third Appellate District, assigned

by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Powell

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S043520

Date Filed: September 17, 2018

__________________________________________________________________________________

Court: Superior

County: Sacramento

Judge: James I. Morris

__________________________________________________________________________________

Counsel:

Neoma Kenwood and Kat Kozik, under appointments by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief

Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell, Sean

M. McCoy and Paul E. O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Neoma Kenwood

PMB #414

1569 Solano Avenue

Berkeley, CA 94707

(510) 528-4775

Paul E. O’Connor

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

(916) 210-7750