People v. Wilson

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

BYRON WILSON,

Defendant and Appellant.

S087533

Los Angeles County Superior Court

BA164899

April 12, 2021

Justice Cuéllar authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,

Kruger, Groban, and Krause* concurred.

________________________

*

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.

PEOPLE v. WILSON

S087533

Opinion of the Court by Cuéllar, J.

This automatic appeal follows from defendants Byron

Wilson’s and Aswad Pops’s1 2000 convictions and death

sentences for the murders of four men during the robbery of a

Compton car wash. Wilson was found guilty of four counts of

murder in violation of Penal Code2 section 187, subdivision (a),

four counts of second degree robbery in violation of section 211,

and second degree commercial burglary in violation of section

459. The jury found true that Wilson was armed with, and

personally and intentionally discharged, a firearm causing great

bodily injury with regard to three of the murders in violation of

sections 12022, subdivision (a)(1) and 12022.53, subdivisions

(b)–(d). The jury also found true the robbery-murder, burglary-

murder, and multiple-murder special circumstances in violation

of section 190.2, subdivisions (a)(3) and (a)(17). The jury found

Wilson had suffered a prior serious or violent felony conviction

1

Aswad Pops was pronounced dead at San Quentin State

Prison on August 29, 2019. (California Department of

Corrections and Rehabilitation, News Releases

<https://www.cdcr.ca.gov/news/2019/08/30/condemned-inmates-

death-investigated-as-a-suicide-2/> [as of Apr. 9, 2021]. All

Internet citations in this opinion will be archived by year, docket

number, and case name at <http://www.courts.ca.gov/

38324.htm>.) The appeal was permanently abated as to Pops

on February 11, 2020.

2

All further unspecified statutory references are to the

Penal Code.

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under section 667, subdivisions (a)(1) and (b) through (i). After

a penalty trial, the jury returned a verdict of death.

Wilson contends that several errors occurred during the

guilt and penalty phases of his trial. Because we see no merit

to any of his claims, we affirm the judgment.

I. FACTUAL BACKGROUND

A. Guilt Phase

1. Prosecution Case

a. Wheels ’N Stuff

On January 25, 1998, Super Bowl Sunday, Byron Wilson

and Aswad Pops parked outside of the Wheels ’N Stuff car wash

on Sportsman Drive in Compton. Christopher Williams and

Charles “Spanky” Hurd operated the car wash, which had been

open for several months.

Williams, Hurd, and other employees dealt marijuana

from the car wash, a fact about which Wilson was aware.

Williams testified that he and his coworkers “tend[ed] to smoke

a lot of weed,” and the car wash customers “would want us to

sell [them] some of the weed we were smoking and from time to

time we would.” A soda vending machine was located inside the

car wash, and sometimes marijuana was stored inside of it. The

patrons and workers of the car wash, by and large, knew one

another. Williams saw both patrons and workers of the car

wash with large amounts of cash in their pockets. Williams

testified that the car wash had no official employees, and

Williams did not keep financial records. Williams explained

that anyone who washed cars did so on a volunteer basis, and

Williams made no money from car washing as Wheels ’N Stuff

did not charge for washes, although donations were permitted.

The business sporadically paid its workers, but they generally

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earned money in tips.3 The $1,500 rent for the Wheels ’N Stuff

location was paid from marijuana proceeds.

b. Williams

Williams arrived at the car wash the morning of January

25, 1998, intending to invite his friends to his home for a Super

Bowl party, and to obtain marijuana to smoke. When he got out

of his truck, he noticed a car parked directly beside the car wash

with two people sitting low in the car’s front seats. Williams

went into the car wash, where he saw Michael Hoard working

behind the counter, from whom he obtained a small bag of

marijuana. He also saw two acquaintances, Shawn Potter and

E.T., arriving as he was leaving.

As Williams was leaving he noticed the two people, both

Black men, were still sitting in a car — “probably an eighty

something Honda” — parked beside the car wash. Because he

routinely sold marijuana from the car wash, he assumed the two

men were interested in buying some and asked them what they

needed. The passenger — who Williams later identified as Pops

— replied they were interested in “sounds,” which the driver —

later identified as Wilson — confirmed; Williams directed them

to a nearby store that sold car stereos.

Williams then left the Wheels ’N Stuff parking lot. Later

that day he received a call at his home from a friend who told

him, “[H]ey man, as soon as you left the people you talked to

went straight in there and killed everybody.” Williams returned

to the car wash, which had already been cordoned off with police

3

The Wheels ’N Stuff owners permitted workers to retain

tips for car washes, but asked that tips for larger services be

shared with them.

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tape. From there, he was taken to the Compton Police

Department and interviewed. He described the men he had seen

sitting in the Honda earlier, explaining that the driver had a

lighter complexion than the passenger, and appeared to be a

little older. He believed both men had short hair, although he

described the driver as having worn a cap.

c. Bowie

Randy Bowie, who washed cars at the Wheels ’N Stuff

from time to time, walked to work the day of the shooting,

arriving just as Williams was leaving. Bowie stopped to use the

payphone right outside of the car wash, which was where he first

saw the car parked next to the car wash. The driver was about

six feet from where Bowie stood. Bowie identified the driver at

trial as Wilson. While on the payphone, the passenger of the car

— who Bowie identified at trial as Pops — raised what Bowie

believed was a TEC-9 semiautomatic handgun, pointed it at

him, and told him not to warn anyone. Pops then got out of the

car, grabbed Bowie’s collar, thrust the gun beneath Bowie’s arm,

and used him as a shield. The driver got out of the car while

brandishing a gun, which Bowie believed was a nine-millimeter

or Glock and held it to Bowie’s back. The two men then marched

Bowie into the car wash.

While Bowie was held at gunpoint by the payphone, Hurd

drove up to the car wash. At the same time, Jessie Dunn arrived

in his own car, an El Camino with chrome IROC rims. The

custom 3-bar chrome IROC rims originally belonged to Hurd,

who had them specially retrofitted for his El Camino. Because

the rims were manufactured for use with a Camaro, Hurd had

new holes drilled into them and added distinctive hardware.

Dunn bought the El Camino from Hurd. Following the sale,

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Dunn’s girlfriend, Kimberly Thomas, noticed an oxidation spot

on one of the rims, and Dunn planned to have the rim re-dipped

in chrome to fix the imperfection.

Hurd and Dunn both entered the car wash building after

Pops and Wilson marched Bowie inside. Once in the building,

Pops and Wilson ordered everyone to get on the ground and not

move. The men inside the building after Bowie and his

assailants entered included Hurd and Dunn (who had walked in

after Bowie), Potter and E.T. (who entered as Williams was

leaving), and Hoard (who had been inside all along). Bowie was

afraid that if he alerted Hurd and Dunn to Pops and Wilson’s

presence, he would be shot.

Pops and Wilson asked those inside the car wash where

the money and “shit” were kept. They searched inside of the

building, walking to the opposite side of the building away from

where Bowie lay on the ground. Hurd was the only other person

Bowie could see. Bowie heard a commotion, after which a room

divider slid between him and the area where Wilson and Pops

were searching. Seizing the opportunity, Bowie got up and ran

from the building; as he ran, he heard a number of gunshots.

Bowie hid for some time not knowing whether he was

being pursued, and ultimately ran into a storage facility where

he asked an employee to call the police. He said his shop had

been robbed and his friends may have been shot. Bowie, shaken

by the events, asked an employee of the storage facility to drive

him to his brother’s house. The employee agreed, and as they

drove they passed the car wash, where Bowie saw police

arriving.

While heading toward his brother’s house, Bowie saw his

brother’s car turn into a parking lot, and Bowie asked the driver

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Opinion of the Court by Cuéllar, J.

to go there instead. Bowie, shaking so badly he could hardly

stand, got into his brother’s car. Now a passenger in his

brother’s car, Bowie again drove past the Wheels ’N Stuff where

he saw the car wash taped off and a large crowd gathered. Bowie

was still very frightened, and he did not want to stop or speak

with police. He did not report that he witnessed the crime until

the next day.

Bowie was interviewed by Detective Cat Chavers of the

Compton Police Department. He told Detective Chavers about

what he had witnessed and gave descriptions of the Honda’s

driver and passenger. He described the passenger as darker

skinned than the driver, with braided hair curled up at the ends.

He believed the passenger was between 25 and 30 years old and

described him as wearing dark clothing and having a TEC-9 gun

with a long clip. Bowie described the driver as lighter skinned

and smaller than the passenger. Bowie “guess[ed]” the driver’s

age to be between 25 and 30; in fact, Wilson was 20 years old at

the time of the shooting. Bowie told Detective Chavers he

thought Wilson had a uniquely shaped mouth, and was able to

identify Wilson on February 23, 1998, from a photographic

lineup based on what he described to be “the smirky grin on his

face.”4

d. Brown

Anthony Brown’s testimony from the preliminary hearing

was read to the jury as Brown was unavailable for trial.

Anthony Brown was a Wheels ’N Stuff employee since its

4

Bowie testified that he told Detective Chavers that Wilson

had a “funny shaped mouth,” but admitted on cross-examination

that he did not recall whether he described Wilson’s mouth

when giving his first statement, or only later.

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opening in 1997. The morning of January 25, 1998, Brown

arrived at the car wash in the late morning. Brown planned to

attend a Super Bowl ’98 party with his friends and coworkers

that day and planned to sell T-shirts and wash cars to make

money before going to the party. As he was arriving to the car

wash, Brown saw a man driving Jessie Dunn’s El Camino

abruptly out of the parking lot, moving forward and backward,

skidding the tires, and ultimately knocking over a gate on his

way off of the property. The El Camino sported IROC rims.

Brown did not know the man driving the El Camino but testified

that Wilson resembled the driver. Brown was ultimately unable

to positively identify the driver of the El Camino as Wilson.

As he saw the El Camino driving out of the parking lot,

Brown was also grabbing the T-shirts he’d planned to sell from

his own car. When he did so, he saw Pops walk out of the car

wash office through the front doors. Brown gestured to Pops as

if to remark upon the absurdity of the driver who had just

knocked over the car wash gate. Pops walked to the Honda that

had been parked by the payphone, got in, pointed a TEC-9 at

Brown, and fumbled with the weapon like he was trying to clear

a jam. Brown tried to evade the weapon pointed at him by

crawling through his own car and exiting from the passenger

door. Pops then drove out of the Wheels ’N Stuff parking lot in

the Honda, traveling in the same direction the El Camino had

gone.

Brown went toward the car wash office and yelled into the

building but did not enter. A man wearing a yellow shirt, who

Brown identified as E.T., got up and ran toward him. E.T. told

Brown that the men “shot everybody.” The four remaining men

in the car wash, all of whom had been shot and killed, included

Hoard, Hurd, Potter, and Dunn. From his vantage point at the

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Opinion of the Court by Cuéllar, J.

door, Brown could see Hurd’s body on the floor, and E.T. told

Brown that Hurd had been shot. E.T. went on, “I don’t know

why they didn’t kill me.” E.T. looked for his car keys inside the

building, but was unable to find them and asked Brown for a

ride because he did “not want to be around this kind [of] mess

when the police c[a]me.”

While E.T. was inside the building searching for his keys,

Potter’s mother, Georgetta Hoard,5 along with a friend, stopped

by the car wash. Brown told Georgetta she should not go into

the building, and that E.T. told him it was “a terrible sight”

inside. Brown and E.T. then left in Brown’s car.

Brown called his brother from the car to tell him what had

happened, and Brown’s brother advised Brown and E.T. to

return to the car wash. They did, and both men spoke with the

police already on the scene. Police officers then took Brown and

E.T. to the station to be interviewed, where Brown described

Pops’s height, age, and hairstyle. Officers observed that motor

oil and dirt stains covered E.T.’s yellow shirt.

e. Investigation

Compton police officer Bettye Jones was one of the first

responders to the Wheels ’N Stuff scene, where she saw two

women standing outside — Georgetta and her friend — and

observed that one was crying hysterically. Jones looked through

the front doors into the car wash, and saw a body lying on the

floor. Unsure if suspects remained in the building, she placed

Georgetta and her companion in a patrol car and entered the car

wash with Officer Larry Urrutia. Initially, Jones and Urrutia

5

Georgetta Hoard will be referred to by first name to avoid

confusion with victim Michael Hoard.

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Opinion of the Court by Cuéllar, J.

saw three men — Hurd, Potter, and Hoard, lying in the building,

“obviously dead.” They inspected the building further and found

one additional victim — Dunn — behind a car near the back of

the building. After the officers secured the building, paramedics

came in, checked the pulse of the men on the floor, and

determined that all of them were deceased.

Jones noted there were blood puddles and a bloody

footprint on the floor and was careful to ensure that officers and

paramedics did not step in the blood. A shelf had fallen inside

the car wash, and the contents were strewn on the floor. Jones

also observed that, in the car wash parking lot, broken headlight

fragments were on the ground near the gate. The gate appeared

scratched and had paint transfer damage, suggesting it had

been hit by a car.

Deputy Jeff Walley, a ballistics expert, collected evidence

at the scene. He recovered nine-millimeter and .40 caliber

bullets, bullet fragments, casings, and one live round.

Specifically, he found nine .40 caliber Smith and Wesson

cartridge casings, along with 10 expended .40 caliber bullets or

bullet fragments. Walley determined, based on unique gun

barrel and firing pin manufacturing processes, that a Glock

semiautomatic pistol fired the .40 caliber bullets found at the

scene.

Walley also recovered five nine-millimeter expended

casings and one live nine-millimeter round. He determined

these rounds could have been fired from one of several weapons,

but the only weapon with both a barrel extension and

appearance different than other types of pistols, including the

Glock used to fire the .40 caliber bullets, was an Intratec TEC-

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9.6 A nine-millimeter casing found at the scene was dented,

suggesting the weapon jammed, a malfunction in which the

ammunition does not work as expected and no bullet is fired.

Intratec firearms are not known to be high quality weapons and

are known to jam on occasion. No ballistics evidence other than

from a nine-millimeter and .40 caliber was found at the scene;

Walley concluded only two weapons were used at the scene: a

Glock that fired .40 caliber bullets, and likely an Intratec TEC-

9 with a barrel extension that fired the nine-millimeter bullets.

The Office of the Medical Examiner performed autopsies

on the four victims two days after the shootings. Deputy medical

examiner Christopher Rogers testified that each of the four

victims were shot in their heads. Hurd suffered one fatal

gunshot wound to the back of his head, fired from a distance of

at least two feet. Potter suffered three gunshot wounds to the

back of his head, all of which were fatal. Potter was shot from a

distance of at least two feet. Hoard suffered three gunshot

wounds to the back of his head, all of which were fatal. These

wounds were inflicted from a distance of at least two feet. Hoard

also suffered two nonfatal wounds to his hands from bullet

fragments. Dunn was shot five times, twice in his head, once

under his arm, once in his shoulder, and once to his forearm.

The shots he suffered to his head were both fatal. The shot to

the area beneath his arm was fatal, as the bullet traveled

through a vein next to his heart. The shot he suffered to his

shoulder was likely fatal. The shot to his forearm was

potentially fatal. The shots to Dunn’s head were fired from a

range of less than two feet. The shots to Dunn’s shoulder,

6

Bowie believed the weapon pointed at him was a TEC-9

with a long clip, and Brown saw a TEC-9 pointed at him.

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Opinion of the Court by Cuéllar, J.

forearm, and arm were each fired from a distance of at least two

feet.

f. After the shooting

On the evening of the shooting one of Pops’s relatives

hosted a barbeque. Larry Barnes — a friend of Pops and Wilson

— attended the barbeque, along with Wilson. While there,

Pops’s brother, Aziz Harris, asked Barnes for assistance burning

a stolen car. Barnes, Harris, and Pops’s girlfriend drove in a

Honda to an alley where they burned Dunn’s stolen El Camino.

A nine-millimeter Lorcin pistol was in the filter, in an area

located beneath the car’s carburetor lid. The tires were in poor

condition and the El Camino had no radio.

On February 12, 1998, Detective Richard Conant of the

Long Beach Police Department stopped Pops, who was driving

a Camaro with chrome rims. Detective Conant conducted the

stop because he believed the rims matched the description of

those stolen from a car owned by one of the victims of the car

wash murders. Pops’s Camaro was painted a light color. Three

weeks before the stop, Barnes had joined Pops, Wilson, and

others at a local bowling alley, where Barnes noted that Pops’s

Camaro had been fitted with rims that matched the car’s light

paint color. The Camaro had different rims at the time of the

February 12, 1998 stop.

Wilson, Harris, and Barnes were passengers in Pops’s car

when it was stopped. Wilson became verbally combative with

detectives during the stop, angry that officers were conducting

safety pat downs. Officers arrested Barnes based upon an

outstanding warrant, but did not arrest Pops, Wilson, or Harris

at that time.

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On February 22, 1998, Bowie saw Pops at a gas station in

Long Beach. Pops was driving a Camaro with IROC rims, and

Bowie believed the rims were the same as those that had been

on Dunn’s car. As Pops left the gas station, Bowie paged

Detective Reynolds, and when they spoke Bowie urgently and

fearfully and described what he had seen.

i. The lineups

On February 11, 1998, Detective Reynolds showed

Williams a mug book consisting of 20 photographs spread across

five pages, none of which depicted Pops or Wilson, and Williams

was unable to identify anyone. Reynolds showed the same mug

book to Brown, who was also unable to identify anyone. On

February 12, Reynolds showed Williams a single sheet

containing six images — a “six-pack” — with none of the images

depicting Pops or Wilson. Williams was unable to identify

anyone, but he noted that the individual depicted in the number

one position “almost” looked like one of the men who

participated in the shooting. Reynolds showed that same six-

pack to Brown, who similarly noted that the person in the

number one position looked closest to the driver.

Eight days later, Bowie participated in a photo lineup.

Reynolds showed Bowie a mug book consisting of 20

photographs spread across five pages, as well as a single six-

pack, none of which depicted Pops or Wilson. Bowie was unable

to identify any of the individuals pictured as those involved with

the murders. Reynolds next showed two photographs to Bowie,

who, upon seeing them, became angry and began crying.

Pointing to one of the photographs, which depicted Pops, Bowie

said, “That’s the motherfucker right there.” Reynolds did not

show any photographs of Wilson to Bowie during this lineup.

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On February 23, 1998, Reynolds prepared a second six-

pack, this time containing a photograph of Wilson. Bowie looked

at the images and identified the person in the number two

position — Wilson — as the Honda’s driver. Bowie stated, “I

know for sure that’s him, I know the shape of his mouth.” That

same day, Reynolds showed Williams two different six-packs,

one of which contained a photo of Pops and the other a photo of

Wilson. Williams was unable to identify anyone.

On February 24, Brown participated in a photo lineup,

viewing a six-pack containing an image of Wilson. Brown was

unable to identify Wilson, although he told Detective Reynolds

that the person in the number two position — Wilson — looked

like he had the same complexion as the man he saw driving

Dunn’s El Camino. Brown was also unable to identify Pops from

the six-pack containing his photo, and although Brown indicated

that the photo of Pops was similar in appearance to one of the

assailants, he said that the man he saw had a darker complexion

than the individual depicted.

Several months later, on June 9, 1998, a live lineup was

conducted at the Los Angeles County Jail. Reynolds testified

that Bowie, Brown, and Williams attended the witness lineup,

and that they did not communicate with one another during the

process. All three witnesses identified Pops. Bowie and

Williams identified Wilson as the driver. Brown could not

positively identify Wilson although he believed Wilson was the

person closest in appearance to the man he saw driving Dunn’s

El Camino. Brown wrote on his identification card that he “only

viewed [the suspect] from behind and [got] a quick view of [his]

face but [Wilson] fits best . . . .”

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ii. The searches and arrests

On March 5, 1998, Reynolds obtained warrants to search

and arrest Pops and Wilson. Wilson was arrested in his home,

where he was found lying on his couch with a shotgun. Officers

carried out the search warrants simultaneously, and during

their search of Wilson’s home — where they found and arrested

Harris7 — they discovered a live round of nine-millimeter

ammunition, a man’s wallet, a loaded .12 gauge shotgun, a

three-ring binder, and a blue pad of paper.

Officers found the bullet beneath a couch cushion in

Wilson’s home, where they also located Wilson’s wallet.8 The

wallet held, among other contents, a business card from a gun

store, which listed prices for .26 and .30 caliber Glock firearms,

but not a .40 caliber Glock, the type used in the Wheels ’N Stuff

shooting. Walley, the ballistics expert, identified the bullet as

one ejected from the same nine-millimeter weapon that was

used in the shooting. He testified the bullet could have been

dropped in the home before or after the shooting.

The binder found in Wilson’s home contained a single

newspaper clipping about the car wash murders. Officers found

no other newspapers or clippings in Wilson’s home. The blue

pad of paper found on Wilson’s table contained pages depicting

various drawings and a list of names. According to Barnes’s

testimony, one of the drawings was of Pops’s car with the

addition of IROC rims, and it was labeled “the Monster Beefy.”

There was also a drawing of street signs labeled “55th” and

7

Warrants for Harris’s and Barnes’s arrests were issued at

the same time as the warrants for Pops and Wilson.

8

The wallet was identified as Wilson’s because it contained

a video rental card and calling card in Wilson’s name.

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“Lime,” which was an intersection near Pops’s and Wilson’s

homes. Another drawing was a caricature of Pops labeled with

his moniker, “Nut,” and with the word “Loco.” Another drawing

showed a tattooed arm firing a semiautomatic weapon; the

tattoo said “Y.M.O.,” which stands for “Young Mafia

Organization,” a group to which Wilson, Pops, Harris, and

Barnes belonged. Pops was tattooed on his left and right

forearms with the letters, “Y.M.O.” The pad of paper also held

a page listing the various monikers of the individuals who spent

time with Pops and Wilson.9

During the search of Pops’s home — where Pops was

arrested — a Camaro fitted with IROC rims was seized and

taken to a tow yard. The IROC rims on the car were the same

as those that had been fitted on Dunn’s El Camino. Anthony

Boochee, who originally fit the rims on the El Camino, testified

that the IROC rims had been modified to fit that car by drilling

larger holes to accommodate the necessary screws and Cragar

lugs. Boochee testified that the rims had been modified a second

time to fit a smaller wheel, but still utilized the Cragar lugs

originally placed on Dunn’s El Camino. Kimberly Thomas,

Dunn’s girlfriend, testified she recognized the rims as having

originally been placed on Dunn’s El Camino because there was

an oxidation spot she recognized on one of them.

2. Defense Case and Rebuttal Evidence

Although Williams initially told the prosecution he was

“positive” “from a glance” and had “no doubt” regarding his

9

Pops’s moniker was listed as “Nut.” Wilson’s moniker was

listed as “Bird.” Harris’s moniker was listed as “Scrap.”

Barnes’s moniker was listed as “Smerf,” which he had tattooed

across his stomach.

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preliminary hearing identification of Pops and Wilson, he later

admitted he “really did not get a good look at” one of the men.

Williams explained that he has “a habit of not staring at people

I don’t know so, yeah, I looked over towards them and mind my

own business, then I would maybe look again.”

Williams had a conversation with the driver of the vehicle,

who he described as having a lighter complexion than the

passenger. At one point, Williams conceded during questioning

that he became “confused about who was in the passenger seat

and the driver’s seat. It’s the only thing — a small thing to be

confused about; otherwise, those are the two people in the car.

[¶] Now, right now, they almost look similar so for me to know

which one was driving and which one was in the passenger seat

is hard for me but I do know those are the two people in the car,

yes.” Williams also acknowledged that he lied several times

while giving testimony during the preliminary hearing,

although this dishonesty related to what he knew about the sale

of marijuana from the car wash. Selling marijuana from Wheels

’N Stuff violated the terms of his probation.10

Bowie’s testimony suffered from credibility concerns.

Bowie had numerous prior felony convictions, including battery

against the mother of his child, robbery, and burglary. Bowie

denied on direct examination that he had suffered an armed

robbery conviction, although he acknowledged on cross-

examination that he suffered a robbery conviction as a juvenile

in which a firearm was involved. Bowie maintained that Wheels

’N Stuff was a legitimate car wash business of which he was an

10

Williams was on probation at the time of the shooting,

having suffered felony convictions for possession of marijuana

with intent to sell and possession of stolen property.

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employee, and he was paid up to $300 per week, “assuming that

[he] made that much,” to wash cars. Williams denied paying

Bowie regularly for his work, testifying he sporadically paid

Bowie in small amounts if he was asked, and Bowie paid no

income tax. Bowie claimed never to have seen marijuana being

sold from the Wheels ’N Stuff. His claim was undermined by

Williams’s testimony that the building’s rent was paid from

marijuana sale proceeds, and by the crime scene photographs,

which showed marijuana and related drug paraphernalia visible

in open locations. Bowie also claimed he had never testified at

a trial; this statement was impeached by a minute order from

his own trial showing he testified, but he maintained he had not

recalled doing so as his trial had occurred fifteen years prior to

Wilson’s trial.

When Bowie identified Wilson, he told Chavers he recalled

what the driver looked like because of “the smirky grin on his

face.” Police graphic artist John Shannon testified Bowie’s

description of the driver was not sufficiently specific to permit

him to create a sketch. He testified that Bowie did not say

anything about Wilson’s mouth shape or a smirk, only

describing that the driver had a receding hairline, tight eyes, or

“something like that.” Shannon explained that when a suspect

possessed some unusual feature, witnesses were usually able to

describe that detail to him. Williams and Brown believed the

driver wore a cap with writing on it, while Bowie described the

driver’s hairline. Wilson argued he did not have a receding

hairline in 1998, nor did his eyes appear “tight.”

Brown had testified that he saw the El Camino and the

Honda leaving Wheels ’N Stuff the morning of the shooting. He

began his employment with the car wash weeks after his release

from county jail, where he was incarcerated after suffering

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felony convictions for conspiracy and telephone fraud in 1993.

Brown was unable to identify Wilson as the driver during the

February 24, 1998 photographic lineup, and Wilson argues he

erroneously identified another man as someone who resembled

the driver.

Wilson presented evidence that he was not involved with

burning the El Camino. Joseph Black, a defense expert

employed by one of the manufacturers of IROC rims, testified

that the rims on Dunn’s El Camino appeared consistent with a

1984 rim style, and were not the same style as the rims sold with

the 1988 Camaro. He testified that he did not believe IROC rims

required modification to be fit on an El Camino.

With regard to the binder found in Wilson’s home, no

evidence suggested that Wilson made any of the drawings or

that he composed the list of Y.M.O. members. No drawings of

Wilson appeared in the binder.

None of the fingerprints collected from the car wash could

be traced to Pops or Wilson.

Deputy Public Defender Jeanmarie Klingenbeck, a close

friend of Deputy Public Defender Cheryl Jones (Pops’s attorney)

attended the live lineup in June 1998. She sat a few rows behind

the three witnesses — Bowie, Williams, and Brown — who each

sat about six feet away from one another in a row of school desks

with empty desks between them. Klingenbeck noticed the

witnesses motioning toward each other, “like kids would do

when they were copying off papers.” Klingenbeck took notes

once she noticed what she perceived as “unusual activity,” but

she did not inform the officers at the lineup about her

observations. Klingenbeck told Jones, her friend and fellow

public defender, about what she saw, and she provided a

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statement to Jones a few months before trial. Klingenbeck

testified at trial as to her observations.

Deputy Sheriff William Gilbert of the Los Angeles County

Sheriff’s Department supervised the June 9, 1998 live lineup,

and he testified regarding the procedures and safeguards in

place. Gilbert described how witnesses are generally seated at

a lineup, explaining that because there are seven seats in a row,

three witnesses would be seated with two chairs between each

person. Witnesses are reminded “that there is no talking,

communicating or looking around in any way, shape or form,

[and they are instructed] to look straight ahead.” Gilbert

testified that he monitored the lineup from a window in front of

the stage, where he could see the lineup participants and the

witnesses in the gallery. If any witness communication had

been observed, the lineup would have been cancelled. The

witnesses are illuminated by the light behind a two-way mirror,

and the area where witnesses are seated is too dim to read a

newspaper.

Attorneys attending the lineup are seated between six and

eight rows behind the witnesses, and they are required to

identify themselves, and to state why they’re attending the

lineup, before it begins. Klingenbeck intimated she was an

attorney related to the case, and Gilbert testified that if she had

indicated that she was merely accompanying attorney Jones she

would have been asked to wait outside. The paperwork Gilbert

completed in conjunction with the lineup notes no objections or

incidents related to improper witness communication.

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B. Penalty Phase

1. Prosecution Case

Hurd’s sister, Charmaine Hurd, testified about the toll his

death took on his family, including his five children.

Wilson’s prior robbery conviction was admitted via

stipulation. Wilson pleaded guilty to a robbery in which he

drove the getaway car while his accomplice robbed a 53-year-old

woman of cash from her Aid to Families with Dependent

Children (“AFDC”) check by threatening to kill her companion.

Wilson was 18 years old at the time of that offense and was

ordered to serve 120 days in county jail.

2. Defense Case

Marcellette James, an old family friend, began writing to

Wilson following his incarceration. As a child, James found

Wilson to be happy, smart, and perceptive. She believed he was

fairly well supported by his family, particularly his dad, during

the years of his childhood during which the two were

acquainted. During the first year of Wilson’s incarceration,

James sent him dozens of letters, cards, and Christian

pamphlets. The two spoke frequently on the telephone. James

and Wilson fell in love through their correspondence and

continued writing letters even after Wilson’s telephone

privileges were revoked. James testified that Wilson’s being

charged with murdering four people did not change her feelings

for him. James and Wilson did not speak about the murders,

but James believed Wilson to be innocent and considered him a

“very mature man.” James testified she “matured spiritually”

because of her relationship with Wilson and were he to receive

the death penalty “it could be killing a part of” her.

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Wilson also presented evidence of his childhood and

upbringing. Byron Paul Wilson, Sr., Wilson’s father, testified

the family lived in Long Beach when Wilson was born, and

Byron worked in housekeeping at Fairview State Hospital at

that time. Byron was educated at a local community college and

trade college, after which he gained employment at Univox

doing technical troubleshooting work from 1983–1987. Byron

used alcohol and cocaine during this period. Wilson’s mother,

Tonya Wilson, worked as a secretary in a school district around

this time, from 1982–1990. Byron testified that during the

period he was employed by Univox, Tonya also casually drank

alcohol and used drugs, mainly marijuana.

Byron and Tonya’s marriage was initially “okay,” despite

periods of infidelity. They moved to Avenal for Byron’s work in

1987, and to Novato in 1989 when he became employed by San

Quentin State Prison. Their drug use consistently increased as

the years passed. Following another move for Byron’s job when

Wilson was about 11, he began socializing with Byron’s and

Tonya’s friends, all of whom used drugs together. Tonya

described their family as dysfunctional. When Tonya was under

the influence of drugs “she became a changed person,”

sometimes physically attacking Wilson and Byron.

Tonya oversaw Wilson’s education and spoke with his

teachers when necessary. She testified that in elementary

school Wilson was a “class clown,” and he was placed in special

education classes. Wilson kept to himself with friends and

peers, and when he tried to have friends over to his home Wilson

would become so withdrawn Tonya asked the child’s parent to

come and retrieve their child.

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The family moved to Los Angeles, and although Wilson

preferred living in small towns he eventually adjusted and grew

to like it. Byron’s drug abuse worsened, and he resigned from

his job due to his drug use and a back injury. He and Tonya

separated, and the two divorced in 1997. Tonya’s mother died

in 1997, and following that loss and a drug relapse, she was

arrested and convicted of a felony. Byron and Tonya both lost

contact with Wilson while they lived in Los Angeles.

Tonya testified about an incident in Wilson’s childhood

when he called 911 after she collapsed due to an ectopic

pregnancy. Byron testified that Wilson — then aged seven or

eight — helped care for his mother when she was ill with cancer

and when she was injured in a car accident after having taken

PCP.

Despite their lack of contact, Byron testified that he did

not want Wilson to be executed because Wilson was his only

child. Tonya testified that she loved Wilson and did not want

him to receive the death penalty.

Wilson’s elementary school special education teacher,

Barry Carlson, testified that Wilson suffered from attention

deficit disorder as a child. Wilson was capable of learning well

when given individual attention and appeared happy in grade

school — particularly when his teacher worked with him. He

was easily distracted when left alone, and more hyperactive

than other children with the same diagnosis.

Dr. Efrain Beliz, a clinical psychologist providing expert

testimony for Wilson, opined that it was likely he suffered from

attention deficit hyperactive disorder (ADHD) in elementary

and high school. Over the course of two days, Dr. Beliz

interviewed Wilson for 13 hours. Dr. Beliz explained that

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ADHD sufferers are impulsive and disruptive, and that children

with ADHD face an increased risk of developing substance

abuse issues. Because those suffering from ADHD possess poor

social skills, Dr. Beliz opined they are vulnerable to social

manipulation and gang involvement.

II. GUILT PHASE

A. Identification of Wilson Was Proper

Wilson argues the trial court erred by denying a motion to

suppress Bowie’s and Brown’s identifications of him.11 He

alleges the identification procedures were unduly suggestive

and the resulting identifications unreliable, rendering their

admissions violative of his rights under the Due Process Clause

to the United States Constitution. For the reasons that follow,

we conclude his claim lacks merit.

1. Background

a. Bowie’s Identification

While Bowie was using the payphone outside the Wheels

’N Stuff on January 25, 1998, he saw two men parked outside

the car wash. The passenger, Pops, pointed a semiautomatic

handgun at Bowie, then got out of the car and held the gun

against Bowie’s body. Bowie also saw the driver, whom he later

identified as Wilson, get out of the car and hold a gun against

Bowie’s back. Pops and Wilson marched Bowie into the car

wash, and the events of the shooting transpired.

11

Bowie’s and Brown’s identifications, made in 1998,

predate the enactment of section 859.7, which now mandates

that law enforcement agencies adopt regulations for the

administration of identification processes.

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Bowie went to the police station the day after the

shootings, and although he was unable to describe his assailants

clearly enough for a sketch artist to produce a composite

drawing, he told Chavers that the driver had a “funny shaped

mouth.” Bowie also said that he would be able to identify his

assailants if he saw them again. Bowie participated in a

photographic lineup on February 19, 1998 — less than one

month after the shooting — but was shown no photos of Wilson

and did not identify any of the photos he was shown as being of

Wilson.12 On February 23, 1998, Bowie returned to the police

station to view a different photo lineup that did include a photo

of Wilson and of five other men. Bowie identified Wilson as the

Honda’s driver, saying, “I know for sure that’s him, I know the

shape of his mouth.”

At a subsequent live lineup on June 9, 1998, and at the

preliminary hearing, Bowie had no difficulty identifying Wilson,

highlighting the distinctive shape of Wilson’s mouth. Bowie

testified at the preliminary hearing that he had described

Wilson’s smirk to police officers when he first spoke with them

the day after the shooting. Later, he was unable to recall

whether he had told Chavers that Wilson had a unique mouth

shape when he first gave a statement to her or only sometime

later.

12

Bowie was able to identify Pops. Although Bowie was

shown several photo arrays — four pages with five images each,

one six-pack, and two individual photographs, in that order —

he did not recall the order in which officers showed the photos

to him. The photo of Pops was shown to Bowie last; it was one

of the two photographs shown. We need not decide whether this

procedure was suggestive to address Wilson’s claim of error.

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b. Brown’s Identification

Brown arrived at the car wash right after the shooting as

Wilson and Pops were fleeing the scene. He saw a person he

described as a light-skinned Black man driving Dunn’s El

Camino out of the parking lot. Pops got into his car to leave the

scene, fleeing when the gun he fired at Brown jammed.

Brown participated in a photo lineup on February 11,

1998, but none of the photos he was shown depicted Wilson, and

he was not able to identify anyone. The next day he was shown

a different six-pack, which also did not contain an image of

Wilson, but he pointed to a picture, noting the person looked

closest to the El Camino driver. On February 24, 1998, he

participated in a third photo lineup — this time including a

photo of Wilson — and although he did not identify Wilson, he

noted Wilson had the same complexion as the man he saw

driving the El Camino. At the live lineup on June 9, 1998,

Brown was unable to identify Wilson with certainty, writing on

his identification card that he “only viewed [the suspect] from

behind and [got] a quick view of [his] face but [Wilson] fits

best . . . .” Brown did not positively identify Wilson at the

preliminary hearing, but testified that “[t]he light complected

guy” — Wilson — “would probably best fit the description but I

only seen [sic] him from the rear view and glanced at the front

view.”

Wilson sought to exclude evidence of Bowie’s and Brown’s

pretrial identifications of him under Evidence Code section 402,

arguing the procedures used by the police were unduly

suggestive and the identifications tainted. The trial court heard

the motion to exclude on March 19, 1999; Bowie appeared at the

hearing, but Brown did not. The trial court ruled the procedures

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Opinion of the Court by Cuéllar, J.

employed in connection with Bowie’s identification were not

suggestive and it permitted the introduction of Bowie’s

identification. The trial court deferred ruling on the

suggestiveness of Brown’s identification pending his appearance

at the Evidence Code section 402 hearing. Brown’s appearance

was never secured, and he did not testify at trial; the trial court

instead declared him unavailable and counsel read his

preliminary hearing testimony to the jury.

2. Discussion

Wilson claims his right to due process was violated by the

introduction of Brown’s and Bowie’s identifications. A violation

occurs “ ‘only if the identification procedure is “so impermissibly

suggestive as to give rise to a very substantial likelihood of

irreparable misidentification.” ’ ” (People v. Sanchez (2019) 7

Cal.5th 14, 35.) If we determine the procedure was suggestive,

no due process violation arises if “ ‘ “the identification itself was

nevertheless reliable under the totality of the

circumstances.” ’ ” (People v. Clark (2016) 63 Cal.4th 522, 556

(Clark), quoting People v. Kennedy (2005) 36 Cal.4th 595, 608

(Kennedy).) In assessing the totality of the circumstances, we

consider “ ‘such factors as the opportunity of the witness to view

the suspect at the time of the offense, the witness’s degree of

attention at the time of the offense, the accuracy of his or her

prior description of the suspect, the level of certainty

demonstrated at the time of the identification, and the lapse of

time between the offense and the identification.’ [Citations.]

‘Against these factors is to be weighed the corrupting effect of

the suggestive identification itself.’ [Citation.]” (Sanchez, at pp.

35–36.)

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A defendant’s claim that an identification procedure was

unduly suggestive is a “mixed question of law and fact.” (Clark,

supra, 63 Cal.4th at p. 557; see also Kennedy, supra, 36 Cal.4th

at p. 609.) This standard of review applies because “the facts

are established, the law is undisputed, and the issue” we must

resolve “is whether the law as applied to the established facts is

violated.” (Kennedy, supra, at p. 608.) We review the so-called

“historical facts,” those factual determinations that

underpinned the trial court’s conclusion that the identification

procedure was or was not suggestive, “under a deferential

standard.” (Clark, supra, at p. 557.) This standard

acknowledges that the trial court may have made “credibility

determinations,” that “contribute[d] to deciding the facts of

what had already happened, [but] were not dispositive of the

inquiry because the trial court did not have a ‘first-person

vantage’ ” to whatever “facts occurred outside of court.”

(Kennedy, supra, at p. 609.)

What Wilson argues is that Bowie’s identification of his

photograph was unduly suggestive because the six-pack array

shown to Bowie made Wilson appear distinct from the other five

individuals depicted. As a result, Wilson claims, the lineup was

suggestive because his image stood out to Bowie. In particular,

Wilson contends Bowie found the shape of his mouth

remarkable, and he argues no other person had a similar mouth

shape. Wilson argues there should have been “fillers” in the

photo array; that is, he claims the array should have included

photographs of other individuals who shared the characteristic

mouth shape Bowie found unique. Because Bowie believed

Wilson to be the only individual in the array with the uniquely

shaped mouth, he argues, the procedure was impermissibly

suggestive.

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Wilson did not object on this basis before the trial court,

but claims he has not forfeited the argument because he joined

Pops’s motion to exclude and the motion “cited the correct

objection.”13 Even if the argument is not forfeited (People v.

13

The forfeiture issue in this case is somewhat tangled.

Wilson joined Pops’s motion for an Evidence Code section 402

hearing. In that motion, Pops argued that the way Bowie was

shown his photograph was unduly suggestive because law

enforcement officials presented several photographic arrays to

Bowie, and then showed him just two pictures, one of which was

of Pops. Wilson joined Pops’s motion, and the prosecution’s

response to Pops’s motion included an argument about the

propriety of Bowie’s photographic identification of Wilson. At

the hearing, immediately before Wilson examined Bowie, the

prosecution informed the court it assumed Wilson was joining

Pops’s motion. The trial court agreed, noting that the

prosecution argued Bowie’s identification of Wilson was proper

in its opposition. Wilson then briefly questioned Bowie about

that identification. Pops made further argument to the court to

exclude Bowie’s identification, and Wilson “submitted.”

Wilson claims the issue is not forfeited because the “ ‘court

understood the issue presented.’ ” (People v. Clark (2011) 52

Cal.4th 856, 966.) In People v. Cunningham (2001) 25 Cal.4th

926, 989, we held a suggestiveness claim was forfeited because

defendant failed to object, but the first time suggestiveness was

raised was in connection with a motion for judgment of

acquittal. In finding the suggestiveness claim forfeited in

Cunningham, we cited Evidence Code section 353, which

permits a court’s reversal based on erroneously admitted

evidence only if the defendant moved to exclude the evidence or

objected to its admission, and the reviewing court found the

evidence should have been excluded on the grounds stated in the

objection, or admission constituted a miscarriage of justice. The

only ground for exclusion of Bowie’s identification raised in

Pops’s motion was based on the suggestiveness of Bowie being

shown two photos, one of which depicted Pops, after he was

shown several multiple-photo arrays. Arguably, no motion to

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Cunningham, supra, 25 Cal.4th at p. 989), we conclude it lacks

merit. In evaluating the suggestiveness of a photo array, we

consider “whether anything caused defendant to ‘stand out’ from

the others in a way that would suggest the witness should select

him.” (People v. Carpenter (1997) 15 Cal.4th 312, 367.)

Standing out requires more than the defendant potentially

being a different race than others pictured or having a photo

background slightly different than other images in the array.

(Clark, supra, 63 Cal.4th at pp. 556–558.) We have noted that

identifying “apparent racial or ethnic identity is something that

is harder to quantify and agree on.” (Id. at p. 557.) In Clark,

the defendant was a light-skinned Black man with a

distinctively large mustache, and the other images in the six-

pack showed men of a similar complexion but a potentially

different race, all with similar facial hair. (Ibid.) We concluded

in that case that nothing in the identification procedure made

the witness select the defendant’s photograph from among the

others, even accounting for the background tone and the

potentially distinct races of those pictured. (Id. at p. 557.) We

acknowledged law enforcement faced a challenge in finding

images similar to the defendant’s and met it as best they could.

Like the six-pack shown to the witness in Clark, the

images shown to Bowie all depicted men with similar

complexions. (Clark, supra, 63 Cal.4th at p. 557.) Wilson’s

exclude Bowie’s identification based on the suggestiveness of

Wilson’s mouth shape was made, although the issue was

addressed at the Evidence Code section 402 hearing. Whether

Wilson forfeited this issue is a close question, but even if his

suggestiveness claim is forfeited, nothing prohibits us from

considering the merits of the issue, and we elect to do so here.

(See ibid.; People v. Medina (1995) 11 Cal.4th 694, 753.)

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concern is not primarily with the race of the men depicted, but

with their facial expression; Wilson claims he was the only

person smirking, and Bowie testified he knew Wilson by his

smirky grin. Our review of the images does not reveal anything

unique about the mouth shape in Wilson’s photo, nor does the

shape of his mouth appear distinctive compared to the other

photographs. Even if it had, the identification was not unduly

suggestive because nothing made defendant “ ‘stand out’ ” from

the other men depicted. (People v. Carpenter, supra, 15 Cal.4th

at p. 367.) As in Carpenter, Wilson “was neither the oldest nor

the youngest of the [six-pack] participants, neither the tallest

nor the shortest, neither the heaviest nor the lightest.” (Ibid.)

All of the men in defendant’s six-pack were distinct in

some respect from one another, with varying hairstyles and

clothing, and each of the image backgrounds was somewhat

different. But “nothing in the lineup suggested that the witness

should select defendant.” (People v. Gonzalez (2006) 38 Cal.4th

932, 943.) In Gonzalez, the defendant claimed his identification

from a photo array in which he was the only person with a

“ ‘droopy’ ” eye, and whose photo had a discolored background,

was improper. (Ibid.) Witnesses had not previously described

the defendant as having a distinctive eye, nor did we find

anything particularly unique about the defendant’s eye in the

image. (Ibid.) We held the identification was not unduly

suggestive. Likewise, here, although Bowie testified he was able

to recognize Wilson by his smirk, there was nothing unique

about Wilson’s mouth readily visible in the image. (Ibid.) To

the extent Wilson’s mouth shape was distinct from the other

individuals depicted, we have acknowledged all humans appear

somewhat different from one another. (People v. Lucas (2014)

60 Cal.4th 153, 237; see also People v. Carpenter, supra, 15

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Cal.4th at p. 367 [“Because human beings do not look exactly

alike, differences are inevitable”].) Because nothing made

Wilson’s image stand out, we conclude the identification was not

impermissibly suggestive. (Gonzalez, at p. 943; Carpenter, at p.

367.)

Wilson also argues Brown’s identification was unreliable.

To evaluate this argument, “we consider (1) whether the

identification procedure was unduly suggestive and

unnecessary, and, if so, (2) whether the identification itself was

nevertheless reliable under the totality of the circumstances.”

(People v. Cunningham, supra, 25 Cal.4th at p. 989.) Because

we did not find the identification procedure unduly suggestive,

we turn next to whether the identification itself was reliable

under a totality of the circumstances. We conclude that it was.

Brown did not positively identify Wilson during the photo

lineup that contained his image, but said the image of Wilson

most closely resembled the skin tone of the man who drove away

in Dunn’s El Camino. Brown acknowledged at that time he did

not get a good look at the driver. Brown had selected an image

at a prior photo lineup, but the person selected was not Wilson.

Following his tepid identification of a person who resembled the

driver, Wilson, in a photographic lineup, Brown briefly saw

Wilson and Pops when he appeared for a continuance hearing in

May. A month later, Brown participated in a live lineup. He

did not positively identify Wilson, but indicated he most closely

resembled the person Brown saw driving the El Camino,

acknowledging he did not get a good look at the driver and saw

him from the back. At the preliminary hearing, Brown again

noted that — of the two defendants — Wilson most closely

resembled the El Camino driver, although he was unable to view

that person from the front.

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Wilson argues that Brown’s photo identification was

unreliable because, after failing to select an image of Wilson

during two photo lineups, his participation in a subsequent

photo lineup implied to Brown that he failed to identify the

proper suspect initially. We have previously concluded a

witness viewing multiple photo lineups and making an

identification each time was not the product of unduly

suggestive procedure and conclude that is true here. (See, e.g.,

People v. Johnson (1992) 3 Cal.4th 1183, 1213–1218.) Brown

viewed several photographic lineups, did not positively identify

Wilson in any of them — although he twice noted images

resembled the person he saw, one of which depicted Wilson —

and was given no indication that he failed select the correct

image. We conclude the procedure used in the photographic

lineup was not unduly suggestive and unnecessary.

Wilson also contends that the passage of time between the

crime and his participation in the live lineup rendered it

unreliable. The Attorney General assumes for the sake of

argument, as do we, that Brown’s brief sighting of Wilson at the

continuance hearing rendered the subsequent live lineup

“suggestive to some degree.” Even where an identification

procedure is suggestive, we will find no due process violation if

it was reliable under a totality of the circumstances, as Brown’s

hesitant identification of Wilson was. (Clark, supra, 63 Cal.4th

at p. 556.) The circumstances we evaluate include how well and

attentively the witness viewed the suspect, the accuracy of any

prior description, how much time passed between the offense

and identification, and the witness’s degree of certainty — all

weighed against the “corrupting effect” of the identification.

(People v. Sanchez, supra, 7 Cal.5th at p. 36.)

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Wilson argues that the passage of several months between

the crime and the live lineup rendered the identification

unreliable. Brown’s identifications at the live lineup and

preliminary hearing were uncertain; in both instances he

indicated that, of the choices available, Wilson most closely

resembled the man he saw because his complexion was closest.

Brown acknowledged he was unable to carefully observe the El

Camino’s driver, and he provided no contemporaneous

description of that person. Brown’s failure to definitively

identify Wilson at the live lineup, even after seeing Wilson in

person and in a photograph, indicates the procedure was not

unduly suggestive. The reliability of Brown’s identification was

not undermined. (See People v. Alexander (2010) 49 Cal.4th 873,

902 [witness’s failure to make in-court identification of the

defendant suggests that showing the witness photographs of the

defendant the night before trial was not unduly suggestive].)

The passage of time between crime and identification, like

the other circumstances, must be weighed against the damaging

nature of the identification. (Clark, supra, 63 Cal.4th at p. 556;

People v. Sanchez, supra, 7 Cal.5th at pp. 35–36.) Here, the

“corrupting effect” of the identification was minimal. (Sanchez,

at p. 36.) Identifying Wilson as the driver was not reliant on

Brown’s testimony. His identifications were consistently

uncertain. If useful to any degree they bolstered the more

definitive identifications provided by Bowie, and of Williams —

who also positively identified Wilson as the driver during the

live lineup. Moreover, Brown’s identifications — at the live

lineup months after the crime, but also at the photographic

lineup just weeks after it — were consistently uncertain and

equivocal. Considering the totality of circumstances, we

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conclude Brown’s uncertain identification was reliable, and no

violation of Wilson’s right to due process occurred.

B. Wilson’s Confrontation Right Was Not Violated

by the Trial Court’s Admission of Brown’s

Testimony

Wilson argues his Sixth Amendment confrontation right

was violated by the admission of Brown’s preliminary hearing

testimony. Wilson acknowledges he was able to cross-examine

Brown’s testimonial statements at the preliminary hearing, but

argues Brown was not “unavailable” to testify at his trial as that

term was understood by the framers of the federal Constitution.

Wilson further argues admission of Brown’s preliminary

hearing testimony constituted error because the prosecution

failed to exercise diligence in attempting to secure his testimony

at trial. We conclude that Brown was “unavailable,” the

prosecution exercised diligence in attempting to secure his

testimony, and introduction of Brown’s preliminary hearing

testimony did not violate Wilson’s confrontation right.

1. Background

Brown was initially a cooperative witness. He returned to

the scene of the shooting, spoke with police on several occasions,

and participated in a live lineup. He was subpoenaed to, and

did, testify at the preliminary hearing on June 24, 1998. Nearly

a year later, in March 1999, the prosecution alerted the court to

a potential problem with securing Brown’s testimony at trial.

Brown had received a phone call from Tracy Batts, a man

incarcerated on charges unrelated to this case, who warned

Brown against testifying at trial. The prosecution subsequently

learned that Batts orchestrated a witness killing in his own

case. The prosecution understood Brown took the threat

seriously. Brown told prosecutors he would testify if he was

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“dragged into court,” but the prosecution believed it would be

able to secure his testimony with sufficient time to work with

him.

The prosecution requested that Brown attend a hearing in

March 1999 but did not believe his attendance could be secured

so quickly. That proved prescient, and despite the prosecution’s

efforts to secure his appearance, Brown did not attend the

hearing. The prosecution then subpoenaed Brown to appear for

a hearing in May 1999. Brown signed the subpoena but did not

appear, although he indicated he would meet with Detective

Frederick Reynolds — a law enforcement contact with whom he

had been in touch throughout the investigation — shortly

thereafter. Brown did not attend that meeting.

Trial began on May 26, 1999, and on June 7, 1999, the

prosecution sought — and the court ordered — a body

attachment for Brown with bail set at $50,000. The prosecution

noted that if it could not secure Brown’s presence at trial it

would seek to introduce his preliminary hearing testimony. The

prosecution made efforts — detailed below — to secure Brown’s

testimony, and although Brown agreed to come to court he again

failed to appear.

On June 17, 1999, the court held a hearing to address

whether the prosecution had exercised due diligence in seeking

Brown’s appearance at trial. Detective Reynolds testified about

his efforts to secure Brown’s testimony, which included serving

Brown with a subpoena at his workplace, Melvin Hoard’s

autobody shop, on May 20, 1999. Detective Reynolds returned

to Melvin’s autobody shop the next day, and Brown was not

there. Melvin did not know where he was. Over the next few

weeks, Detective Reynolds attempted to contact Brown at his

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last known address multiple times. He also sought to contact

Brown at the home of his ex-girlfriend, Nicole Washington.

Detective Reynolds spoke with Washington in June 1999, and

she claimed Brown had not been to her home for months, that

Brown would not tell Washington his address, noting he was

afraid to appear in court.

During this period of time, Brown and Detective Reynolds

spoke frequently by telephone, and despite Brown making plans

to meet Detective Reynolds on several occasions, he consistently

failed to keep their appointments. Detective Reynolds searched

for arrest records for Brown and confirmed he had not been

arrested. Neither Detective Reynolds nor the prosecution team

checked local hospital records, voter registration, or the post

office. While Detective Reynolds investigated Brown’s last

known address, employer, and frequent hangouts, he and the

prosecution team did not try to find Brown via public assistance

rosters.

Defense counsel urged the trial court to conclude the

prosecution had not exercised due diligence in seeking Brown’s

appearance at trial. The trial court ruled otherwise, concluding

that Brown made “active efforts to avoid” Detective Reynolds.

The court ruled that had the prosecution team been able to make

contact with Brown on or after May 20, 1999, efforts to secure a

bond or to arrest Brown would have occurred at that time. The

trial court declared Brown unavailable and permitted his

preliminary hearing testimony to be read to the jury.

Brown was not the only reluctant witness in this case. The

prosecution believed that Barnes, a juvenile probationer, would

be hesitant to testify and sought a bond to secure his

appearance, arguing to the court it was likely Barnes would

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make himself scarce during the pendency of the trial. The court

ordered the bond, Barnes failed to post it, and he was remanded

to custody. Barnes did not testify at the preliminary hearing.

The prosecution also sought to secure the appearance of a third

reluctant witness who was subpoenaed and failed to appear at

the preliminary hearing. As with Brown, the prosecution

engaged in a multitude of efforts to secure the witness’s

appearance, speaking to the witness’s family, associates, and

generally saturating the area over a “considerable” period of

time. The prosecutor ultimately released the witness without

bond, having decided not to use the witness’s testimony at trial.

2. Discussion

The Confrontation Clauses of the state and federal

Constitutions guarantee defendants the right to confront the

witnesses against them. (U.S. Const., 6th Amend.; Cal. Const.,

art. 1, § 15.) “The right of confrontation ‘seeks “to ensure that

the defendant is able to conduct a ‘personal examination and

cross-examination of the witness.’ ” ’ ” (People v. Herrera (2010)

49 Cal.4th 613, 620–621.) Via the confrontation right, a

defendant is able to compel prosecution witnesses to appear

before the jury so their credibility may be assessed. (Id. at p.

621.)

Although the constitutional right of confrontation is

important, it is not absolute. (People v. Herrera, supra, 49

Cal.4th at p. 621.) If a witness is unavailable but had previously

testified against the defendant and was subject to cross-

examination at that time, that prior testimony may be admitted.

(Ibid., citing Barber v. Page (1968) 390 U.S. 719, 722; People v.

Cromer (2001) 24 Cal.4th 889, 897.) Evidence Code section 1291

codifies this exception to the Confrontation Clauses, stating,

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“Evidence of former testimony is not made inadmissible by the

hearsay rule if the declarant is unavailable as a witness and: [¶]

. . . [¶] (2) The party against whom the former testimony is

offered was a party to the action or proceeding in which the

testimony was given and had the right and opportunity to cross-

examine the declarant with an interest and motive similar to

that which he has at the hearing.” (Evid. Code, § 1291, subds.

(a), (a)(2).) We have held this exception permits an unavailable

witness’s preliminary hearing testimony to be admitted at trial.

(Herrera, supra, at p. 621; People v. Seijas (2005) 36 Cal.4th 291,

303.)

Wilson argues the trial court erred by admitting Brown’s

preliminary hearing testimony because he was not unavailable

to testify at trial as that term was understood when the federal

Confrontation Clause was drafted, and even under a modern

interpretation of unavailability the prosecution did not exercise

diligence in attempting to secure Brown’s presence at trial.

Wilson argues that because Brown was not “dead, in extremis,

[] detained by the defendant,” or outside the trial court’s

jurisdiction, Brown’s preliminary hearing testimony should not

have been introduced. Wilson urges us to adopt the originalist

interpretation of “unavailability” because the high court’s

decision in Crawford v. Washington (2004) 541 U.S. 36, 68

(Crawford) commands conformity with the common law at the

time of this nation’s founding.

In Crawford, the court underscored that “reliability of

evidence” is a goal embodied in the Confrontation Clause.

(Crawford, supra, 541 U.S. at p. 61.) One way reliability is

tested is “in the crucible of cross-examination.” (Ibid.) In

acknowledging that “[r]eliability is an amorphous, if not entirely

subjective, concept” (id. at p. 63), the court held that “[w]here

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testimonial evidence is at issue” — as it is here — “the Sixth

Amendment demands what the common law required:

unavailability and a prior opportunity for cross-examination”

(id. at p. 68). Crawford did not define unavailability, but in a

pre-Crawford decision, the court explained the “basic litmus of

Sixth Amendment unavailability” as follows: “ ‘[A] witness is

not “unavailable” for purposes of the . . . exception to the

confrontation requirement unless the prosecutorial authorities

have made a good-faith effort to obtain his presence at trial.’ ”

(Ohio v. Roberts (1980) 448 U.S. 56, 74.)14 California law is in

accord. Evidence Code section 240 includes in its definition of

unavailability a witness who is “[a]bsent from the hearing and

the proponent of his or her statement has exercised reasonable

diligence but has been unable to procure his or her attendance

by the court’s process.” (Evid. Code, § 240, subd. (a)(5).)

We recently explained that prior testimony of an

unavailable witness may be admitted if, at that prior hearing,

“the defendant had the opportunity to cross-examine the

witness . . . .” (People v. Sánchez (2016) 63 Cal.4th 411, 440

(Sánchez).) The prosecution must demonstrate that “the

witness is unavailable and, additionally, that it made a ‘good-

faith effort’ [citation] or, equivalently, exercised reasonable or

due diligence to obtain the witness’s presence at trial.” (Ibid.)

14

This aspect of the analysis in Ohio v. Roberts survived

Crawford. (See, e.g., People v. Herrera, supra, 49 Cal.4th at p.

622 [implicitly acknowledging, in a post-Crawford decision, that

although Ohio v. Roberts was disapproved on other grounds by

Crawford, its analysis concerning “[t]he ultimate question [of]

whether [a] witness is unavailable despite good-faith efforts

undertaken prior to trial to locate and present that witness”

remained viable].)

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While due diligence lacks a precise definition, we have explained

that it “ ‘ “connotes persevering application, untiring efforts in

good earnest, [and] efforts of a substantial character.” ’ ” (Ibid.)

We evaluate whether the prosecution timely searched for the

unavailable witness, whether the prosecution “competently

explored” leads on the witness’s location, and the overall import

of the unavailable witness’s testimony. (Ibid.) We review de

novo the trial court’s unavailability determination, although we

defer to the trial court’s determination of historical facts

supported by substantial evidence. (Ibid.)

Wilson argues the trial court erred by finding Brown

unavailable because the prosecution did not exercise good faith

or reasonable diligence in attempting to secure his trial

testimony. We’re not persuaded. The prosecution initially had

no reason to suspect Brown would be a reluctant or unavailable

witness — he willingly participated in identification and

preliminary hearing proceedings in June 1998. It was not until

March 1999 that the prosecution understood Brown was

apprehensive, and not until May 1999 that serious concerns

began to arise about his participation in proceedings. On May

20, 1999, Brown was subpoenaed to appear at trial, but failed to

do so. Detective Reynolds tried to contact Brown at Melvin

Hoard’s body shop, where Brown worked, but failed in his

efforts. Brown and Detective Reynolds spoke several times by

telephone in May and June 1999, and although Brown promised

he would meet with Detective Reynolds those meetings did not

occur. During these calls, Brown consistently refused to reveal

his address or permanent phone number. Detective Reynolds

visited Brown’s last known address three times, but a neighbor

told Detective Reynolds that Brown had not been seen there for

about two months, and Brown’s ex-girlfriend confirmed he had

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moved away to an unknown location after the shootings due to

fear of testifying. Brown’s ex-girlfriend had received collect calls

from people looking for Brown.

Detective Reynolds visited Melvin Hoard’s shop a few

more times in June 1999 — once after Brown told him the two

could meet there — but Brown was never there. Detective

Reynolds visited another location where Brown was said to

frequent, but he did not see Brown there. In mid-June 1999,

after Brown failed to make it to a scheduled meeting with

Detective Reynolds at the police station, Detective Reynolds

confirmed Brown was not in custody. These many efforts

undertaken by Detective Reynolds on behalf of the prosecution

are the very definition of “ ‘ “persevering application, untiring

efforts in good earnest, [and] efforts of a substantial

character.” ’ ” (Sánchez, supra, 63 Cal.4th at p. 440.)

Wilson contends the prosecution could, and should, have

done more to find Brown, and suggests several avenues of

inquiry about his whereabouts that were not pursued. He

argues, for example, that the prosecution could have checked

with Brown’s relatives, assigned multiple investigators to the

task of locating Brown, or sought records from the Department

of Motor Vehicles. Notwithstanding these possibilities, the

prosecution can be said to have “competently explored”

numerous leads, in a manner consistent with its responsibility

under the Confrontation Clause. (Sánchez, supra, 63 Cal.4th at

p. 440.) Wilson argues that the prosecution should have done

more to secure Brown’s testimony. He cites the prosecution’s

efforts in People v. Bunyard (2009) 45 Cal.4th 836 (Bunyard) as

an example of what should have been done here, including:

repeatedly seeking the witness out at his last known address,

asking for information on his whereabouts from acquaintances

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and relatives, and returning to locations the witness was known

to frequent. (Id. at p. 855.) We held those efforts demonstrated

diligence, and conclude here that the prosecution engaged in

equivalently diligent efforts. (Ibid.)

What the prosecution did here contrasts with cases where

courts have found deficiencies — cases where review did not

reveal “adequate diligence, [and where] the efforts of the

prosecutor or defense counsel have been perfunctory or

obviously negligent.” (Bunyard, supra, 45 Cal.4th at p. 855.) In

contrast, “diligence has been found when the prosecution’s

efforts are timely, reasonably extensive and carried out over a

reasonable period.” (Id. at p. 856.) Detective Reynolds’s efforts

to secure Brown’s testimony once it became clear he would no

longer cooperate spanned a month and included pursuit of

multiple avenues of inquiry. The efforts were far from

perfunctory or negligent. Simply because Wilson suggests

Detective Reynolds could have taken different steps does not

mean those he did take lacked diligence.

Wilson correctly notes we consider the import of Brown’s

testimony in evaluating the reasonableness of the prosecution’s

efforts. (Sánchez, supra, 63 Cal.4th at p. 440.) While Brown’s

testimony was helpful to the prosecution’s case, it was not

critical. Brown witnessed his coworker Dunn’s El Camino being

hastily driven out of the Wheels ’N Stuff parking lot the morning

of the shooting, but he was not able to positively identify Wilson

as the driver of that car. Brown noted that Wilson looked like

the driver but acknowledged his uncertainty. In contrast, Bowie

unequivocally identified Wilson as one of the two assailants.

Wilson argues we must also consider the fact that this is a

capital case in our evaluation of the prosecution’s diligence. We

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have not previously held the nature of the charged offense is a

factor in assessing diligence, but nevertheless conclude the

prosecution’s efforts to secure Brown’s testimony were diligent

despite the nature of the charged offenses. (See Cook v. McCune

(10th Cir. 2003) 323 F.3d 825, 835 [“[T]he more serious the crime

for which the defendant is being tried, the greater the effort the

government should put forth to produce the witness at trial”];

McCandless v. Vaughn (10th Cir. 1999) 172 F.3d 255, 266

[same].)

Federal authority also suggests that “a good measure of

reasonableness is to require the State to make the same sort of

effort to locate and secure the witness for trial that it would have

made if it did not have the prior testimony available.” (Cook v.

McCune, supra, 323 F.3d at p. 836.) In McCandless v. Vaughn,

supra, 172 F.3d at page 269, the court concluded a Confrontation

Clause violation arose when unduly minimal efforts were used

to secure the presence of a witness at trial who had provided

prior testimony when compared against what efforts would have

been undertaken to secure attendance by a witness who had not.

Here, the efforts to secure Brown’s testimony are not directly

comparable to the efforts undertaken with the two other

reluctant witnesses. But they were sufficient. The prosecution

believed Barnes would be reluctant at the outset of proceedings

and promptly sought a bond; Barnes was placed in custody after

failing to post the bond, and he did not testify at the preliminary

hearing. A third witness failed to appear at the preliminary

hearing after being subpoenaed, and the prosecution visited the

area where the witness was known to spend time, talking to the

witness’s friends and family members on multiple occasions.

Ultimately, the prosecution elected to proceed without that

witness’s testimony. Compared against this third witness, the

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prosecution expended greater efforts to locate Brown — talking

to friends and family, visiting his last known addresses and

workplace on multiple occasions, and searching arrest records

— and Brown had provided prior testimony. It is harder to

compare the prosecution’s efforts to secure Brown’s testimony

against the effort undertaken with Barnes, because the latter

was reluctant from the outset and a bond was immediately

issued. This difference reflects Brown’s initial willingness to

work with the prosecution, not that he provided prior testimony.

In any event, we conclude the prosecution was reasonably

diligent in its efforts to secure Brown’s testimony.

C. Second Degree Murder Instructional Error

Allegation

Wilson contends the trial court erred by failing to instruct

the jury, sua sponte, on the lesser included offense of

unpremeditated second degree murder. Because there was

insufficient evidence to support that instruction, we conclude no

error occurred.

1. Background

On the morning of the shooting, Wilson and Pops waited

in a car outside Wheels ’N Stuff. Williams approached the car

and asked them what they needed. They told Williams they

were looking for some “sounds,” but after being told they should

go look elsewhere they remained in the car for some time. Bowie

arrived at the car wash, and as he stopped to talk on a payphone

before going inside Wilson and Pops forced him into the car wash

at gunpoint, and ordered everyone inside to lay on the ground.

Wilson was heard asking for money and “shit,” presumably

meaning drugs, and both he and Pops rummaged through the

car wash before shooting and killing four of the men inside.

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Wilson fled the scene in Dunn’s El Camino and Pops left in the

Honda in which the two men had arrived. When police arrived

at the car wash they found the victims’ pockets had been

searched, and saw that empty boxes were scattered across the

floor. Williams testified that from the pictures taken at the

scene, there appeared to be far less marijuana in the shop

following the shooting than there had been that morning.

The information charged Wilson with four counts of

murder “with malice aforethought” in violation of section 187,

subdivision (a). He was also charged with, and the jury found

true, multiple-murder, burglary-murder, and robbery-murder

special circumstances. Despite the charging language, the

prosecutor only pursued a felony-murder theory at trial, and the

jury was only instructed on that theory.

2. Discussion

Wilson claims the trial court erred by failing to instruct

the jury on nonpremeditated second degree murder. We review

such claims of error de novo. (People v. Souza (2012) 54 Cal.4th

90, 113; People v. Licas (2007) 41 Cal.4th 362, 366.) “ ‘ “ ‘[I]t is

settled that in criminal cases, even in the absence of a request,

the trial court must instruct on the general principles of law

relevant to the issues raised by the evidence.’ [Citation.] That

obligation has been held to include giving instructions on lesser

included offenses when the evidence raises a question as to

whether all of the elements of the charged offense were present

[citation], but not when there is no evidence that the offense was

less than that charged. [Citations.]” ’ ” (People v. Valdez (2004)

32 Cal.4th 73, 115.)

To determine if a lesser offense is included in a greater

offense, we consider whether the pleading charging the

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defendant described the offense in such a manner that the

offender, if guilty, must necessarily have also committed the

lesser crime. (People v. Smith (2013) 57 Cal.4th 232, 240.)

There must be, at a minimum, substantial evidence

demonstrating the lesser offense was committed. (People v.

Westerfield (2019) 6 Cal.5th 632, 718 (Westerfield).) In general,

“a trial court errs if it fails to instruct, sua sponte, on all theories

of a lesser included offense which finds substantial support in

the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 162.)

Substantial support requires introduction of “ ‘ “ ‘ “evidence

sufficient to ‘deserve consideration by the jury,’ that is, evidence

that a reasonable jury could find persuasive.” ’ ” ’ [Citation.]”

(Westerfield, at p. 718, quoting People v. Valdez, supra, 32

Cal.4th at p. 116.)

Here, although Wilson was charged with four counts of

murder “with malice aforethought,” the prosecutor exclusively

pursued a felony-murder theory, and the jury was only

instructed on that theory. “[W]e have previously declined to

address the question of whether second degree murder is a

lesser included offense of first degree felony murder.”

(Westerfield, supra, 6 Cal.5th at p. 717.) Wilson argues that,

because he was charged with first degree premeditated murder,

second degree nonpremeditated murder — i.e., “ ‘ “the unlawful

killing of a human being with malice, but without the additional

elements . . . that would support a conviction of first degree

murder” ’ ” — is necessarily a lesser included offense. (People v.

Banks (2014) 59 Cal.4th 1113, 1160 (Banks).) In Banks, the

defendant was charged with “willfully killing [the victim] with

malice aforethought.” What we concluded is that “second degree

murder was plainly a lesser included offense of felony murder as

charged . . . .” (Ibid.)

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As in Banks, second degree murder was “plainly” a lesser

included offense of the murder “as charged.” (Banks, supra, 59

Cal.4th at p. 1160.) Nevertheless, we conclude the trial court’s

decision to forgo a nonpremeditated second-degree murder

instruction was proper. “ ‘ “[T]here is no evidence that the

offense was less than that charged. [Citations.]” ’ ” (People v.

Valdez, supra, 32 Cal.4th 73, 115.) Wilson posits a version of

events in which he and Pops went to the car wash to buy

marijuana and an unexpected confrontation inside the building

occurred, culminating in the shooting and deaths of four

individuals. That version is unsupported.

What the evidence demonstrated is that each of the

murders occurred during a burglary or robbery; indeed Wilson

was convicted of both offenses. There was scant evidence from

which a reasonable jury could have concluded Wilson committed

second degree murder, but not first degree murder. Wilson and

Pops were armed. They waited in their car for between 15 and

20 minutes, with Williams first spotting them when he arrived

at the car wash, spending 15 minutes inside, then approaching

them to ask what they needed. After Williams spoke with Pops

and Wilson, he put water in his radiator and left the car wash;

they were still in their car at this point, suggesting they were

outside of the car wash for at least 15 to 20 minutes. During

their conversation with Williams, they declined his overture to

sell them marijuana. They then led Bowie into the car wash at

gunpoint demanding to know “where . . . the money and where

. . . the shit” were kept. Finally, once inside, Wilson and Pops

forced those in the car wash to lie on the ground while Wilson

and Pops searched through the building before shooting the four

victims. In light of these facts, including the methodical,

execution-style killings of the four victims, Wilson’s theory does

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not “support a second degree murder instruction, but merely

points to evidence that there may have been a struggle,” a fact

not in dispute here. (People v. Valdez, supra, 32 Cal.4th at p.

116.) Indeed, Bowie testified there was “a lot of ruckus,”

“struggling or something,” and “a bunch of commotion.”

Williams testified that there appeared to be far less marijuana

in the shop following the shootings than what was present when

he had been there earlier that morning. Boxes were found

strewn about the car wash following the shooting, and Pops and

Wilson had searched the victims’ pockets. Wilson’s theory that

the struggle resulted from a drug purchase gone wrong is purely

speculative, which we have held “ ‘is an insufficient basis upon

which to require the giving of an instruction on a lesser

offense.’ ” (Westerfield, supra, 6 Cal.5th at p. 718.)

Both first and second degree murder require proof of an

unlawful killing committed with malice aforethought, but only

the former requires evidence of willfulness, premeditation, and

deliberation.15 (People v. Chiu (2014) 59 Cal.4th 155, 325.)

Wilson and Pops brought weapons to the car wash, watched and

waited, and eventually entered, stole marijuana and cash, and

shot four people. Such evidence demonstrates deliberation and

premeditation. (People v. Koontz (2002) 27 Cal.4th 1041, 1081–

1082.) On these facts, no reasonable jury could have concluded

that Wilson acted without willfulness, premeditation, and

deliberation. To the extent some evidence may exist to dispel a

finding of premeditation and deliberation — and there is none

15

“ ‘ “Deliberation” refers to careful weighing of

considerations in forming a course of action; “premeditation”

means thought over in advance.’ ” (People v. Brooks (2017) 3

Cal.5th 1, 58.)

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here — we note the “ ‘substantial evidence requirement is not

satisfied by “ ‘any evidence . . . no matter how weak,’ ” but rather

by evidence from which a reasonable jury could conclude “that

the lesser offense, but not the greater, was committed.” ’ ”

(Banks, supra, 59 Cal.4th at pp. 1160–1161, italics added.) On

this evidence the jury could only conclude that first degree

murder was committed, whether under a premeditation or

felony murder theory. Because no reasonable jury would have

been able to conclude that Wilson committed only the lesser

offense of nonpremeditated second degree murder, the trial

court did not err by failing to instruct the jury on that offense.

(Westerfield, supra, 6 Cal.5th at p. 717.)

Wilson claims the trial court’s failure to provide a second

degree murder instruction runs afoul of the United States

Supreme Court’s decision in Beck v. Alabama (1980) 447 U.S.

625, 638 (Beck). A trial court satisfies Beck when the jury is

provided a noncapital third option beyond the “ ‘all-or-nothing

choice between capital murder and innocence.’ ” (Schad v.

Arizona (1991) 501 U.S. 624, 647.) Where substantial evidence

does not support an instruction on the lesser offense, Beck is not

implicated. (People v. Smith (2018) 4 Cal.5th 1134, 1167.) We

have previously concluded no error under Beck flows from a trial

court’s failure to provide a sua sponte second degree murder

instruction where substantial evidence would not support such

an instruction and we affirm that holding here. (Westerfield,

supra, 6 Cal.5th at pp. 717–718.)

D. Theft as Lesser Included Offense of Dunn

Robbery

Wilson argues the trial court erred by failing to instruct

the jury, sua sponte, on the lesser included offense of theft.

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Although the issue is close, we conclude no instruction on theft

was warranted.

Wilson was found guilty of robbing Dunn of his El Camino

car. He claims the intent to steal could have been formed after

force was used in this case, warranting an instruction on the

lesser included theft offense. (See People v. Powell (2018) 6

Cal.5th 136, 165; People v. Breverman, supra, 19 Cal.4th at p.

162.) As Wilson notes, theft is a lesser included offense of

robbery if the intent to steal is formed “after force was used.”

(People v. Turner (1990) 50 Cal.3d 668, 688.) The Attorney

General may be understood to argue that no instruction is

warranted if the intent to steal preceded the use of force. But

this is not the correct standard. The obligation to instruct on a

lesser included offense arises whenever the evidence “ ‘ “raises a

question as to whether all the elements of the [greater] offense

were present.” ’ ” (People v. Valdez, supra, 32 Cal.4th at p. 115.)

“This substantial evidence requirement is not satisfied by ‘ “any

evidence . . . no matter how weak,” ’ but rather by evidence from

which a jury composed of reasonable persons could conclude

‘that the lesser offense, but not the greater, was committed.’ ”

(People v. Avila (2009) 46 Cal.4th 680, 705, emphasis added.)

Here, the obligation to instruct on theft would have arisen if a

reasonable jury could have concluded that Wilson committed

theft, but not robbery when he took the El Camino, i.e., if there

were evidence from which a reasonable jury could conclude that

Wilson formed the intent to steal the El Camino after force was

used.

Wilson claims Brown saw someone driving the El Camino

only after the car wash assault had concluded. From this

evidence, he argues it is reasonable to surmise the intent to steal

the El Camino was formulated only after the assault, as he

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wished to use the car as a getaway vehicle. He argues this

inference is particularly reasonable in light of the large number

of shots fired and the presence of witnesses. Wilson argues he

could have anticipated a significant police response, and Bowie’s

testimony that he heard sirens and saw police at the car wash

quickly following the shooting confirms that Wilson’s concern

was well founded. Wilson further argues that the decision to

burn the car immediately following its use also suggests no

intent could have been formed prior to the violent act because

there was no intent to sell it or its component parts.

Wilson’s claim lacks merit. Here, little if any evidence

suggests Wilson “formed the intent to steal only after shooting”

the victims. (People v. Powell, supra, 6 Cal.5th at p. 165; see

also People v. Valdez, supra, 32 Cal.4th at p. 115 [“ ‘ “giving

instructions on lesser included offenses [is warranted] when the

evidence raises a question as to whether all of the elements of

the charged offense were present [citation], but not when there

is no evidence that the offense was less than that charged.

[Citations.]” ’ ”].) Overwhelming evidence supports the

conclusion that Wilson and his accomplice formed the intent to

steal the El Camino prior to entering the car wash. Wilson

waited in his car, armed, for some time before entering the

building. The El Camino pulled into the Wheels ’N Stuff parking

lot, at which point Wilson and Pops forced Bowie into the

building at gunpoint. Once inside, they ensured Bowie’s silence

until Dunn had entered the building, then demanded the

building’s occupants — including Dunn — lay on the ground. At

this point they asked where the money and “shit” were kept,

shot the victims, took money and marijuana, and — although it

is not clear whether or how the keys to the El Camino were

obtained — Wilson then stole the El Camino. After the robbery,

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Pops retained the El Camino’s rims, and installed them on his

Camaro.

Wilson argues there was no evidence that Pops knew

about the El Camino or its rims prior to the incident at the car

wash, and merely stole the car as a convenient getaway vehicle.

While it’s conceivable that Wilson and Pops decided to flee the

scene in different cars and the El Camino’s theft was merely

opportunistic, at least two points undermine this theory.

First, even if Wilson and Pops did not know about the El

Camino and its specialized rims before they drove to Wheels ’N

Stuff, a jury could easily conclude the intent to steal the car —

once they were aware of it — was formed prior to the murders.

A jury could so infer from how Pops used the rims after the

shooting. The El Camino’s rims would not have fit most tires,

having been manufactured for use with a Camaro, and requiring

special modification to be placed on an El Camino, as Dunn had

done. The evidence suggested Pops was interested in obtaining

the rims, as he immediately added them to his car, the only

other make of car on which the rims would have fit. Moreover,

Pops’s Camaro already had custom rims that matched the car’s

exterior paint color, suggesting he valued the IROC rims above

those already on his car. A drawing of Pops’s Camaro sporting

the prized IROC rims was found in Wilson’s home after the

crime. This evidence suggests the car was taken not simply as

a convenient getaway, but because Pops and Wilson valued it.

Second, Wilson’s theory that the El Camino was stolen

only after the shootings for use as a getaway car also seems

unlikely because Pops and Wilson arrived at the car wash in

their own car, obviating the need for a getaway vehicle. Further,

we note the El Camino was not the only vehicle at the car wash;

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Pops and Wilson rummaged through a car parked inside the car

wash building but did not take that car — for reasons the record

does not reflect. E.T., one of the men inside the car wash who

was not shot, was unable to find his car keys after the violence

concluded and left the scene with Brown. Even if he possessed

keys or access to multiple vehicles parked at the car wash, Pops

did not take leave the scene using one of those cars. Instead, he

drove away in the same vehicle he brought to the car wash.

Surely Wilson could have done likewise. Accordingly, we

conclude the trial court properly did not provide an instruction

on the lesser included offense of theft. (People v. Friend (2009)

47 Cal.4th 1, 52 [“There was no substantial evidence that

defendant formed an intent to steal only after he . . . fatally

[injured] the victim, and thus no factual predicate for

instructing the jury on theft as a lesser included offense”].)

E. Guilt Phase Instructional Error Claims

Wilson contends the related jury instructions, CALJIC

Nos. 2.01 and 8.83, undermined the requirement of proof beyond

reasonable doubt because they “informed the jurors that if

Wilson reasonably appeared to be guilty, they could find him

guilty — even if they entertained a reasonable doubt as to guilt.”

We have previously rejected similar challenges to these

instructions, and Wilson presents no persuasive reason to do

otherwise here. (People v. Frederickson (2020) 8 Cal.5th 963,

1019.)

Wilson also posits that four other instructions the jury

received, CALJIC Nos. 2.21.2, 2.22, 2.27, and 2.51, “magnified

the harm” caused by instructing the jury with CALJIC Nos. 2.01

and 8.83 because “the instructions implicitly replaced the

‘reasonable doubt’ standard with the ‘preponderance of evidence’

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test, and violated the constitutional prohibition against

convicting a capital defendant on any lesser standard of proof.”

As Wilson acknowledges, we have previously rejected this

argument, and he advances no persuasive reason to reconsider

our prior rejection of substantially similar challenges to these

instructions. Accordingly, we again conclude that CALJIC Nos.

2.21.2, 2.22, 2.27, and 2.51 do not undermine or dilute the

reasonable doubt standard. (People v. Beck and Cruz (2019) 8

Cal.5th 548, 653–654.)

F. Sufficiency of Evidence of Hurd Robbery

Wilson contends the trial court erred by failing to enter

judgment of acquittal of the Hurd robbery because insufficient

evidence supported his conviction for that offense. Following

our independent review of the evidence, we agree with the trial

court’s ruling.

1. Background

Williams and Hurd, lifelong friends, co-owned the Wheels

’N Stuff car wash. They had both suffered prior convictions of

marijuana possession for sale. While washing cars was part of

the business conducted at Wheels ’N Stuff, a major part of the

business activities included selling marijuana. The building’s

rent was paid from marijuana sale proceeds. Williams testified

that marijuana was present at the business on a daily basis.

The individuals who frequented the shop, both customers and

employees, tended to carry large amounts of money — upwards

of $10,000. When Wilson entered the Wheels ’N Stuff on the day

of the shooting, he demanded to know the location of money and

“shit,” by which he presumably meant drugs.

Following presentation of the foregoing evidence during

the prosecution’s case-in-chief, Wilson unsuccessfully moved for

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acquittal of the Hurd robbery charge under section 1118.1,

arguing the prosecution failed to present sufficient evidence to

support a conviction.

2. Discussion

When a trial court rules on a motion for a judgment of

acquittal under section 1118.1, the standard the trial court must

apply is the same as what the appellate court applies when

reviewing the sufficiency of the evidence supporting conviction.

A section 1118.1 motion is used to cull the “ ‘ “few instances in

which the prosecution fails to make even a prima facie case.” ’ ”

(People v. Dalton (2019) 7 Cal.5th 166, 249.) A court resolves a

section 1118.1 motion by determining whether the prosecution

presented sufficient evidence, measured from the moment the

section 1118.1 motion is made, to permit the jury to resolve the

issue. (Ibid.) We review the trial court’s determination de novo.

(Ibid.)

Here is how robbery — the charged offense — is defined:

“the felonious taking of personal property in the possession of

another, from his person or immediate presence, and against his

will, accomplished by means of force or fear.” (§ 211.) Robbery

requires the “specific intent to permanently deprive” the victim

of his or her property. (People v. Young (2005) 34 Cal.4th 1149,

1176.)

Wilson contends insufficient evidence supported the Hurd

robbery charge because, while true that Hurd was a co-owner of

the car wash business, there was no evidence that he was

involved in the marijuana business. Wilson argues, in essence,

that the marijuana enterprise was Williams’s business alone.

This interpretation is not supported by the evidence. Williams

testified that he and Hurd were lifelong friends who owned the

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Wheels ’N Stuff together and paid rent on the building from

proceeds of marijuana sales. Both had been arrested for

possession of marijuana for sale. It was well known that car

wash employees — including Hurd — sold marijuana and

tended to carry large amounts of cash. Wilson likely knew this,

as he and Pops sought the location of money and “shit”

immediately upon entering.

Wilson argues that this evidence was insufficient to

support a robbery charge because Hurd was not part of the

marijuana business, no money or drugs were stolen from him

directly, and he suffered no deprivation sufficient to constitute

robbery. He also claims his motion for acquittal should have

been granted because Hurd lacked constructive possession of

the property — that is, the money and drugs — alleged to have

been taken from Wheels ’N Stuff. We are unpersuaded.

The element of possession under the robbery statute can

be established in multiple ways. Possession or direct physical

control over an object will suffice but neither is essential.

(People v. Scott (2009) 45 Cal.4th 743, 749–750.) Constructive

possession by an employee is also sufficient to establish the

element. (Ibid.) In Scott, we explained that because anyone

committing robbery in a business establishment would perceive

an employee as capable of resisting, “all on-duty employees have

constructive possession of their employer’s property during a

robbery.” (Id. at p. 755.) A wrongdoer’s decision to threaten or

use force against an employee “is not likely to turn on fine

distinctions regarding a particular employee’s actual or implied

authority.” (Ibid.)

Whether the evidence supported Hurd’s constructive or

actual possession, it was sufficient for a jury to have concluded

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Wilson intended to permanently deprive Hurd of money,

marijuana, or both. (§ 211; People v. Dalton, supra, 7 Cal.5th at

p. 249.) The trial court concluded as much, stating the jury

“could find a robbery of the people connected to the business

based on the narcotics.” Our independent review leads us to the

same conclusion. (Dalton, at p. 249.) That a different trier of

fact could have concluded otherwise does not mean the verdict

is not supported by the evidence. (People v. Farnam (2002) 28

Cal.4th 107, 143.) We are not free to reform the verdict simply

because another theory is plausible. (People v. Jackson (2016) 1

Cal.5th 269, 345 [“ ‘If the circumstances reasonably justify the

trier of fact’s findings, reversal of the judgment is not warranted

simply because the circumstances might also reasonably be

reconciled with a contrary finding’ ”].)

A reasonable jury could have inferred from the evidence

presented — and this jury did — that Wilson intended to

permanently deprive Hurd of his money, belongings, and

marijuana. Because it appears the evidence was sufficient to

substantiate a robbery conviction, we conclude the trial court

committed no error in denying Wilson’s motion for acquittal

under section 1118.1.

G. Prejudicial Hearsay Admission Allegation

Wilson argues the trial court erred in admitting the pages

of the writing tablet containing drawings and a list of names.

He claims the documents were improperly authenticated and

constituted hearsay, and their admission violated his

confrontation rights. For the reasons that follow, we conclude

Wilson’s claims lack merit.

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1. Background

Following execution of a search warrant at Wilson’s home,

officers seized — among other items — a writing tablet

containing several drawings and a list of names. The

prosecution sought to introduce some of the documents,

including: (1) a depiction of a firearm being fired; (2) a drawing

of a man holding a firearm with the words “Nut LOCO” at the

top of the page; (3) a caricature-style drawing of a muscled male

standing at a street corner with street signs reading “55th” and

“Lime,” the corner near Wilson’s home, the moniker “Nut” at the

top of the page, and a drawing of a car with what appeared to be

IROC rims labeled “THE MONSTER BEEFY”; (4) a drawing of

a figure’s chest, right forearm tattooed with the letters “Y.M.O.,”

and hand holding a firearm being fired; and (5) a list of 22

nicknames, including Pops, Wilson, and people who spent time

with them.

At a pretrial hearing held under Evidence Code section

402, the prosecutor presented evidence that the home from

which the tablet was seized was Wilson’s residence. He argued

that the drawings and list were admissible as circumstantial

evidence demonstrating that the drawings were prepared close

in time to the shootings, that they were found on Wilson’s

kitchen table in plain view, and that they demonstrated a

relationship between Pops and Wilson. Wilson argued the

drawings and list constituted inadmissible hearsay, that they

were incapable of authentication because they were found in a

common area of his residence, and that there was no evidence

he personally created the documents. The trial court tentatively

ruled the evidence was admissible as “relevant circumstantial

evidence on motive — the connection between the defendants

and circumstantial evidence of the possession of the guns by the

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defendants . . . .” The court affirmed its tentative ruling on June

7, 1999, clarifying the drawings and list would be admitted for

the limited purposes of connecting Pops to Wilson’s residence

where the items were seized, and to confirm the association

between Pops and Wilson.

2. Discussion

Wilson argues the trial court erred by admitting the

drawings and list of names because they constituted improperly

authenticated writings under Evidence Code sections 250 and

1401, and because they constituted inadmissible hearsay with

no applicable exception justifying their admission. We conclude

Wilson’s arguments lack merit.

Evidence Code section 250 defines a “ ‘writing’ ” to include

“every . . . means of recording upon any tangible thing, any form

of communication or representation, including letters, words,

pictures, . . . or combinations thereof, and any record thereby

created, regardless of the manner in which the record has been

stored.” “Authentication of a writing is required before it may

be received in evidence.” (Evid. Code, § 1401, subd. (a).)

“Authentication . . . means . . . the introduction of evidence

sufficient to sustain a finding that it is the writing that the

proponent of the evidence claims it is . . . .” (Evid. Code, § 1400.)

Wilson argues that the list and drawings were writings

within the meaning of Evidence Code section 250 but were

inadmissible because they were not properly authenticated. He

argues there was no direct evidence the documents were

authored by him, and neither the location in which they were

found nor their accessibility was sufficient to prove ownership.

We review a trial court’s determination that a document

constitutes a writing and that it is properly authenticated under

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the abuse of discretion standard. (People v. Lucas (1995) 12

Cal.4th 415, 466; see People v. Guerra (2006) 37 Cal.4th 1067,

1113 [“The abuse of discretion standard of review applies to any

ruling by a trial court on the admissibility of evidence”].) Under

this standard, a trial court’s ruling will not be disturbed, and

reversal of the judgment is not required, unless the trial court

exercised its discretion in an arbitrary, capricious, or patently

absurd manner that resulted in a manifest miscarriage of

justice. (People v. Guerra, supra, at p. 1113, citing People v.

Rodriguez (1999) 20 Cal.4th 1, 9–10.)

A writing can be authenticated by circumstantial evidence

and by its contents. (People v. Skiles (2011) 51 Cal.4th 1178,

1187.) Wilson argues proof of authentication was flawed

because no evidence demonstrated that he brought the tablet

into the residence or that it belonged to him, and nothing

suggested that he authored the writings.

As Wilson concedes, however, authentication of a writing

can occur via numerous methods, including presentation of

circumstantial evidence, and by introducing evidence showing

where documents were found or by whom they were authored.

Here, the trial court concluded that the list of names and

drawings were properly authenticated by location, content, and

circumstantial evidence. The writing tablet was found in

Wilson’s residence. The prosecution had two witnesses testify

as to the contents of the drawings and the list. Tanesha Martin

testified that she believed Pops was the man depicted in the

drawing entitled “Nut LOCO” who was holding a gun. Martin

testified that the drawing entitled “Nut and the Monster Beefy”

looked a bit like Pops and his Camaro. Barnes also identified

Pops as the male figure in the drawing entitled “Nut and the

Monster Beefy.” Barnes additionally identified the car in the

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drawing as Pops’s Camaro with the IROC rims. Barnes

identified the letters “Y.M.O.” on the drawing of the forearm

shooting a gun to mean “Young Mafia Organization,” a group to

which Barnes, Pops, Wilson, and Harris belonged. The parties

stipulated that Pops had the letters “Y M O” tattooed on both of

his forearms. As to the list of monikers, Barnes testified that

the nickname “Nut” on the list was Pops, the nickname “Scrap”

was Pops’s brother Harris, the nickname “Bird” was Wilson, and

the nickname “Smerf” was Barnes’s own nickname.

The trial court did not abuse its discretion by concluding

the writings were adequately authenticated. The purpose for

which any writing is admitted “will determine what must be

shown for authentication.” (People v. Goldsmith (2014) 59

Cal.4th 258, 267.) A trier of fact must be able to determine that

a writing is what it appears to be. (Ibid.) “ ‘As long as the

evidence would support a finding of authenticity, the writing is

admissible.’ ” (Ibid.) Here, the location of the documents

supported authentication: law enforcement officials found them

in Wilson’s residence. The content of the documents also

supported authentication: they referenced Wilson, Pops, and

other witnesses. Finally, Pops and Wilson were connected by

circumstantial evidence. In addition to the documents’ contents,

Martin’s and Barnes’s testimony confirmed that the drawings

depicted Pops, and the list referred to Pops, Wilson, Barnes, and

Harris. (Evid. Code, §§ 1400, 1410, 1421.) Accordingly, we

conclude the trial court did not err in finding the documents

were properly authenticated.

Wilson next argues that the list of monikers and drawings

constituted inadmissible hearsay because they were admitted

for, and the prosecution sought to rely on, the truth of their

implied incriminatory propositions. Our review “focuses on

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whether the documents supported the nonhearsay purposes

identified by the court and whether those purposes were

relevant to an actual issue in dispute.” (People v. Bunyard

(1988) 45 Cal.3d 1189, 1204, quoting People v. Armendariz

(1984) 37 Cal.3d 573, 585.)

When an out-of-court statement is offered for any relevant

purpose other than to prove the truth of the matter stated, the

statement is not hearsay. (People v. Armstrong (2019) 6 Cal.5th

735, 786.) Evidence is generally relevant if it “ ‘tends “logically,

naturally, and by reasonable inference” to establish material

facts such as identity, intent, or motive.’ ” (People v. Riccardi

(2012) 54 Cal.4th 758, 815, quoting People v. Garceau (1993) 6

Cal.4th 140, 177.) Because otherwise relevant evidence not

offered for its truth falls outside the hearsay rule entirely, the

party offering that evidence is not required to demonstrate an

exception to the hearsay rule to justify its admission. (People v.

Dalton, supra, 7 Cal.5th at p. 232.)

Here, the court initially identified the nonhearsay

purposes for admitting the writings as connecting Pops to

Wilson’s residence, associating Pops with Wilson, and

associating both Pops and Wilson with Barnes and Harris to

corroborate Barnes’s testimony regarding his relationships with

Pops, Wilson, and Harris. The court later confirmed the

drawings and list were admissible for the limited purposes of

connecting Pops to Wilson’s home and to confirm their

association. These nonhearsay purposes were relevant to

establish identity — that is, that the alleged shooters, Pops and

Wilson, had a relationship to each other. The existence of this

relationship aided in demonstrating that the two men could

have committed the crime together. What’s more, the

documents were relevant to establish a connection between Pops

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and Wilson’s residence because a nine-millimeter cartridge

expended from the same firearm used in the murders was found

at Wilson’s residence. Barnes’s testimony identifying Pops and

his car in the drawings, as well as his testimony about the

monikers of all four men, further corroborated these various

connections and relationships. Thus, the trial court did not err

by concluding the evidence supported the nonhearsay purposes

for which it was admitted and those purposes were relevant to

issues in dispute.16 (People v. Bunyard, supra, 45 Cal.3d at p.

1204.)

Wilson argues that our decision in People v. Lewis (2008)

43 Cal.4th 415 (Lewis) renders the evidence inadmissible. In

Lewis, we held that caricature drawings found in the

defendant’s residence depicting a sawed-off shotgun were

hearsay because they were offered for the truth of the assertion

that the defendant committed robberies with a sawed-off

shotgun. (Id. at p. 498.) We concluded that because no exception

to the hearsay rule justified their introduction, the court erred

by admitting them. (Ibid.) The erroneous admissions,

16

Because the evidence was admitted for nonhearsay

purposes, defendant’s argument that its admission constituted

a violation of his confrontation rights is unavailing. “Whether a

challenged statement is hearsay is always the threshold

question.” (People v. Turner (2020) 10 Cal.5th 820, fn. 19.)

“[T]he confrontation clause is concerned solely with hearsay

statements that are testimonial, in that they are out-of-court

analogs, in purpose and form, of the testimony given by

witnesses at trial.” (People v. Cage (2007) 40 Cal.4th 965, 984.)

The evidence was neither hearsay nor testimonial; accordingly,

no violation of defendant’s confrontation rights could have

occurred.

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however, did not prejudice the defendant because the drawings

added “next to nothing to the evidence of defendant’s guilt of the

crimes . . . .” (Id. at p. 499.) Lewis does not inform our analysis

here because the list of names and the drawings found in

Wilson’s home, unlike the drawing found in Lewis, were not

offered for their truth. Had these names been offered to

demonstrate that Pops possessed the weapon he was depicted

holding, our analysis might be different. But that is simply not

the case; the list and drawings were instead offered for the

nonhearsay purpose of identity, that is, establishing a

relationship between Pops and Wilson, and connecting Pops to

Wilson’s residence.

In any event, were we to have found error in the trial

court’s admission of the list and drawings, it would have been

harmless under any standard. (Chapman v. California (1967)

386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)

Substantial evidence of Wilson’s guilt and the connection

between Wilson and Pops was introduced, including the nine-

millimeter round found in Wilson’s home that matched the

expended casings found at the scene, evidence that Pops placed

onto his car the IROC rims from the El Camino Wilson stole,

Barnes’s testimony that he was friendly with Pops and Wilson,

and his testimony that he assisted with burning the El Camino

following the murders. Like the drawing in Lewis, the writings

introduced here added “next to nothing to the evidence of

[Wilson’s] guilt of the crimes.” (Lewis, supra, 43 Cal.4th at p.

499.) Any error in their admission would have been harmless.

III. JURY MISCONDUCT

Wilson asserts the trial court erred by denying his motion

for new trial based on alleged juror misconduct. He claims that

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Juror No. 9 committed misconduct by failing to disclose her prior

jury service, and the court’s denial of his new trial motion based

on that misconduct was error. Wilson further alleges the trial

court abused its discretion by failing to adequately investigate

claims of juror misconduct he raised in his new trial motion,

despite holding an evidentiary hearing to address those claims,

by not calling more jurors to testify, not sufficiently questioning

those who did, and not permitting defense counsel to examine

the jurors. For the reasons that follow, we conclude these claims

lack merit.

A. Juror No. 9’s Recollection of Prior Death

Penalty Jury Experience

1. Background

Juror No. 9, a 35-year-old law firm docket clerk, stated in

her jury questionnaire that she had served as a juror in a civil

matter in 1992. She failed, inadvertently, to note her earlier

experience as an alternate on a murder trial. Question 40A

asked prospective jurors to identify whether they had “been a

juror in the past,” and, if so, to list the year the trial occurred,

whether it was civil or criminal, the nature of the charge, and

whether a verdict had been reached. Juror No. 9 listed a 1992

personal injury trial on which she had served as a juror but

listed no other cases.

During voir dire, Juror No. 9 was questioned exclusively

about her views on, and ability to impose, the death penalty.

She indicated she could impose the death penalty if appropriate

and would evaluate the evidence — even if emotional — before

deciding upon the appropriate penalty. The prospective juror in

the number 12 position, who was examined shortly before Juror

No. 9, responded to questions about her prior service as an

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alternate juror on a death penalty case. Later that afternoon,

following a break and additional questioning, Pops and Wilson

utilized a joint peremptory strike to excuse the prospective juror

in the number 12 position, which occurred in front of Juror No.

9. Juror No. 9 was empaneled and served on Wilson’s jury.

Following the death verdict, defense counsel conducted

interviews with jurors. In her interview, Juror No. 9 told

counsel she wanted to put the experience of serving as a juror

on Wilson’s case behind her “because it seemed to be lingering

on and on, and she had been through this experience before,”

having served on a death penalty case many years earlier. This

conversation marked the first time she alerted anyone involved

with this case to the fact that she newly recalled her prior jury

service. In a phone call with defense counsel a few days later,

Juror No. 9 clarified she was as an alternate juror on a murder

trial, and that it may have been a juvenile, not capital, case.

Juror No. 9 said it was difficult to remember the details of the

case because it had occurred some 15 years prior to Wilson’s

trial.

Defense counsel sought a court order of Juror No. 9’s jury

service records. The records indicated that between 1985 and

1999, Juror No. 9 had served on two trials, a 1993 matter and

Wilson’s trial — consistent with her questionnaire responses.

No records were maintained regarding jury service predating

1985; the murder trial on which Juror No. 9 served as an

alternate took place in 1984.

Wilson moved for a new trial, arguing Juror No. 9

committed misconduct by intentionally concealing her prior

service on a murder case. On March 24, 2000, the court

conducted an evidentiary hearing regarding the alleged juror

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misconduct.17 Juror No. 9 testified that she had told defense

counsel, during their post-trial interview, that she had served

on a prior death penalty case as an alternate juror. She did not

list her prior service in her juror questionnaire because she “had

just forgotten about it.” She said the questionnaire was

“lengthy” and she “was trying to get through it,” noting she

simply did not recall her prior service when filling it out. She

also did not mention her prior service during voir dire, although

she was not asked about it, despite another prospective juror

discussing their prior service as an alternate on a capital trial,

who was subsequently peremptorily excused. Juror No. 9

testified that she had remembered her prior service

“months . . . or weeks into” Wilson’s trial, and certainly after the

jury began hearing evidence. When the court asked her why she

did not report her prior service once she remembered it, she

explained she “just really honestly didn’t think about it.”

Wilson’s attorney argued at the evidentiary hearing that

Juror No. 9’s failure to disclose her prior service at any point

during the trial constituted “a concealment of a very material

fact.” When the court pressed counsel on whether he was

asserting Juror No. 9 had lied when she gave testimony before

the court, Wilson’s counsel clarified that he did not believe Juror

No. 9 was being untruthful, and his use of the word

“concealment” was a “term of art.” The court found Juror No. 9

“very credible” and did not believe she “intentionally concealed

anything.” The questionnaire’s phrasing regarding prior

17

Wilson’s counsel unsuccessfully sought the court’s

permission to examine jurors, including Juror No. 9, at the

hearings related to the alleged misconduct. The trial court ruled

it would be the exclusive questioning body, but requested

“counsel . . . make any suggestions for the scope of the inquiry.”

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service, the court noted, was not altogether clear as to whether

service as an alternate should have been included. 18

The court continued the matter to conduct further

research and heard argument again on April 7, 2000. Following

that second hearing, the court denied the new trial motion,

reiterating its finding that Juror No. 9 was “credible.” The court

explained that Juror No. 9’s prior service was 15 or 16 years

before Wilson’s trial, it was unclear whether that service was on

a juvenile matter or a death penalty matter, and in any event

the fact she was an alternate made her service “a lot easier to

forget” because she was not involved in rendering a verdict.

Although Juror No. 9 recalled at some point during the trial that

she had this prior experience, the court concluded nothing in the

questionnaire or the jury’s instructions would have alerted her

that she was obliged to bring it up. Finally, the court concluded

that Juror No. 9’s inadvertent omission did not constitute actual

bias under In re Hamilton (1999) 20 Cal.4th 273.19

2. Discussion

Wilson argues Juror No. 9 committed misconduct by

intentionally concealing her prior service on a murder trial’s

18

Specifically, the questionnaire stated: “If you have been a

juror in the past, please provide the following information,” and

listed categories including year of the case, whether it was civil

or criminal, the charges (if criminal), the type of case (if civil),

and whether a verdict was reached.

19

In In re Hamilton, we explained “that an honest mistake

on voir dire cannot disturb a judgment in the absence of proof

that the juror’s wrong or incomplete answer hid the juror’s

actual bias. Moreover, the juror’s good faith when answering

voir dire questions is the most significant indicator that there

was no bias.” (In re Hamilton, supra, 20 Cal.4th at p. 300.)

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jury once she remembered it during his trial. “The law

concerning juror concealment is settled. . . . ‘[An] accused . . . has

a constitutional right to a trial by impartial jurors. [Citations.]

“ ‘ “The right to unbiased and unprejudiced jurors is an

inseparable and inalienable part of the right to trial by jury

guaranteed by the Constitution.” ’ ” ’ ” (In re Manriquez (2018)

5 Cal.5th 785, 797 (Manriquez).) If a juror actively conceals

factual information or falsifies voir dire responses, the process

of selecting jurors is undermined. (Ibid.) Wilson argues Juror

No. 9’s failure to list her prior jury service in the questionnaire,

disclose it during voir dire, or — in particular — bring it to the

court’s attention once she remembered it — constituted

intentional concealment.

While intentionally concealing juror information may be

sufficient to demonstrate bias warranting disqualification, a

juror’s “ ‘inadvertent or unintentional failure[] to disclose’ ”

information is treated differently. (People v. San Nicolas (2004)

34 Cal.4th 614, 644 (San Nicolas).) In the case of unintentional

failure to disclose, the trial court evaluates whether a juror is so

biased that they cannot perform the duties required of them.

(Ibid.) We accord deference to any credibility determination

made by the trial court in its evaluation of concealment. (Id. at

p. 646.)

Wilson suggests that because Juror No. 9 executed her

questionnaire under penalty of perjury — which attaches

serious consequences to lies and omissions, and because the

questionnaire asked about her prior jury service, her failure to

disclose that prior service at any point in the trial constituted

concealment demonstrating bias. The trial court found Juror

No. 9 credible when she testified that she did not remember her

prior jury service when completing her questionnaire or

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responding during voir dire. It also found credible that she was

not aware she should alert the court when she recalled her prior

service mid-trial. Wilson argues these credibility findings

should be discounted because the conclusion was made with

respect to whether she recalled her prior service at the time she

completed the questionnaire, not as to whether she was credible

about why she failed to disclose it later. The record does not

support this assertion.

A trial court has the discretion to determine whether a

juror’s “ ‘failure to disclose is intentional or unintentional’ ” and

whether the juror is biased. (San Nicolas, supra, 34 Cal.4th at

p. 644.) Unless the record clearly demonstrates a juror’s bias,

the trial judge is best situated to evaluate a juror’s intentions

through the voir dire process. (Ibid.) The court expressly asked

why Juror No. 9 did not report her prior service to the court once

she remembered it, and she responded that she simply did not

think to do so. The court found this testimony “very credible,”

and noted she was never instructed to bring to the court’s

attention something she remembered after completing her

questionnaire or responding to voir dire. We accord this

credibility finding deference, as well. (Ibid.)

Wilson argues that because Juror No. 9 failed to disclose

her prior jury service, her inherently biased presence on the jury

constituted a structural defect warranting reversal. He further

contends that even if her failure to disclose her prior jury service

only raised a presumption of prejudice, that presumption was

not rebutted. Neither of these arguments is meritorious. While

we have acknowledged that, “in a rare case, a court ultimately

may determine that a juror’s innocent concealment masked a

substantial likelihood of actual bias,” Juror No. 9’s failure to

disclose her prior service does not demonstrate such bias.

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(Manriquez, supra, 5 Cal.5th at p. 798.) In Manriquez, a juror

failed to disclose in her questionnaire the fact that she suffered

physical and sexual abuse as a child, despite the questionnaire

inquiring about whether prospective jurors had been the victims

of crimes. (Manriquez, supra, 5 Cal.5th at pp. 793–794.) After

the trial, the juror voluntarily responded to a questionnaire, and

in it she disclosed her childhood abuse to explain why she found

the petitioner’s mitigating evidence of abuse unpersuasive.

(Ibid.) She later attested that she did not conceal her abuse in

filling out her jury questionnaire, but did not believe it was

responsive to questions because she thought the questionnaire

pertained exclusively to her experiences as an adult. (Id. at pp.

794–795.)

Following our order to show cause, the juror testified at a

reference hearing that she had not thought the abuse or violence

she suffered as a child was responsive to the questionnaire’s

inquiries about suffering violence or past criminal activity

because she was a child when it occurred and such abuse was

relatively normalized during the era in which she was raised.

(Manriquez, supra, 5 Cal.5th at pp. 796, 801.) We concluded

substantial evidence supported the referee’s findings that the

juror’s nondisclosure was not intentional and did not indicate

bias (id. at pp. 809–810), and independently concluded that

although it constituted misconduct to fail to complete the

questionnaire accurately, the juror was not actually biased (id.

at p. 819).

In San Nicolas, a juror failed to disclose in his

questionnaire and during voir dire that he had suffered prior

arrests, had been falsely arrested, and had been the victim of a

violent crime as a child. (San Nicolas, supra, 34 Cal.4th at pp.

644–646.) The defendant moved for new trial on the grounds of

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juror misconduct, an evidentiary hearing followed, and the trial

court concluded the juror’s failures to disclose the prior arrests

and false arrest were “inadvertent or unintentional, and there

was no resulting bias.” (Id. at p. 645.) This conclusion was

supported by substantial evidence, as was the court’s conclusion

that the juror’s failure to disclose his status as victim of a violent

crime was not deliberate and he was not biased. (Id. at pp. 645,

648.)

We likewise conclude here that Juror No. 9’s failure to

disclose her prior jury service on a murder trial, even if capital,

did not demonstrate bias, and no misconduct occurred. Juror

No. 3 had prior experience as a juror on a murder trial and Juror

No. 2 had previously served on a jury in a drive-by shooting case

with three victims. Wilson contends all jurors who had prior

capital experience were excused from service via peremptory

challenge. Whether Juror No. 9’s undisclosed prior service was

on a capital trial or a murder trial is beside the point; when

assessing whether it is substantially likely a juror was actually

biased, our inquiry is “ ‘not whether the juror would have been

stricken by one of the parties, but whether the juror’s

concealment (or nondisclosure) evidences bias.’ ” (Manriquez,

supra, 5 Cal.5th at p. 798.) Juror No. 9’s inadvertent

nondisclosure of her prior jury service did not evidence bias, and

the trial court’s denial of Wilson’s new trial motion was not

error.

B. Trial Court’s Alleged Failure to Investigate

Juror Misconduct

In addition to the misconduct alleged regarding Juror No.

9’s prior service, Wilson claims the trial court failed to conduct

an adequate inquiry of alleged misconduct involving Juror Nos.

1, 6, 7, 10, 11, and 12, and remand is warranted to determine

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the extent of the possible misconduct. We conclude the court’s

inquiry was adequate, and that the court did not abuse its

discretion by denying the motion for new trial based on alleged

misconduct.

1. Background

Following the death verdict, Pops’s attorney, Jones,

contacted jurors. One of the jurors complained, and the court

ordered counsel to stop contacting jurors. Before the no contact

order was issued, defense counsel’s conversations with some

jurors revealed a juror had discussed a publicized murder case

during deliberations, which counsel contended constituted

misconduct. Defense counsel asked the court to lift the no-

contact order, and the People opposed their motion but urged

the court to question jurors under oath to bring swift resolution

to the misconduct allegation. The court did not lift the order,

but it called Juror Nos. 6 and 7 to provide sworn testimony

regarding attorney Jones’s assertion.

Juror No. 7 testified that the penalty vote for Wilson had

been split nine to three, with nine jurors voting for death and

three for life. The court dismissed the jurors for a weekend, and

upon returning they took an informal vote, revealing unanimity

in favor of death. Those who had voted for life shared why their

votes had shifted, and Juror No. 7 testified that Juror No. 6 told

the others she had seen a news story over the weekend about a

shooting in Atlanta that made her “take a closer look at the case

that she was on,” and “honestly in her mind” Wilson “deserved

the death penalty.” She had indicated when she voted for life

the week before that her vote had been wavering.

Juror No. 7 testified that he thought the jurors followed

the instructions at all times, and that the discussion regarding

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the Atlanta crime occurred only after the poll indicating the

verdict was unanimous had occurred. Juror No. 7 recalled that

Juror No. 12 had also voted for life the week before, believing it

to be a harsh enough form of punishment, but Juror No. 7 also

thought Juror No. 12 would vote with the majority. Juror No. 7

testified that all of the jurors, including Juror No. 12, exercised

independent judgment in voting, rather than blindly following

the majority; Juror No. 12 actively deliberated and analyzed the

issues.

Juror No. 6 also testified. She confirmed a unanimous poll

was taken after jurors returned from the weekend, and that

some of the jurors who formerly voted for life discussed why

their votes had changed. She remembered addressing her

changed vote, but she did not recall exactly what she said, and

did not remember mentioning the Atlanta crime that day. She

testified that she had read an Internet article and watched a

news program about the Atlanta shootings, and remembered

that the jurors had a discussion about that crime generally, but

she did not know precisely when that conversation occurred.

When asked whether she was emotionally affected by the

Atlanta shootings, Juror No. 6 testified that she was an

emotional person and tended to dwell on things like the Atlanta

shooting “every time something like that happens,” but that the

emotional impact of that crime had dissipated for her before

jurors completed the poll and reached the ensuing penalty

verdict.

After it heard testimony from Juror Nos. 6 and 7 and

argument from the parties, the court sought testimony from

Juror No. 12, as well. Juror No. 12 confirmed that before the

jurors departed for the weekend the vote had been nine to three,

and he was one of the three jurors who had voted for life. He

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believed the poll taken when jurors returned after the weekend

was still nine to three, and he said he would vote with the

majority if 11 jurors voted for death. Juror No. 12 eventually

changed his vote, but did so not simply to go along with the

majority; he testified that the heinous nature of the crime and

his own “scrupulous[]” evaluation of witness testimony

ultimately changed his mind. He did not recall which other

jurors initially voted for life, except that they were both female.

He did not recall a discussion regarding the Atlanta crimes and

testified that it was not a factor affecting his deliberative

process.

After Juror No. 12 testified, defense counsel persisted in

requesting the court grant the parties permission to contact

jurors. The court ultimately agreed to send a letter to jurors

asking if they would consent to contact, and following receipt of

consent from several jurors, the court continued the new trial

motion to provide defense counsel an opportunity to contact

those jurors who had responded.20

Pops’s attorney, Jones, contacted Juror No. 1, who told her

that Juror Nos. 6 and 12 had initially voted for life but their

votes changed in the poll immediately following the jurors’

return from the weekend. Juror No. 1 told Jones that there was

a conversation amongst jurors following the poll during which

jurors discussed the Atlanta crimes. Juror No. 6 purportedly

said she believed she needed to put her sympathy for Wilson’s

family aside after hearing news about the Atlanta crimes; Juror

No. 10 purportedly said his country of origin taught that “[i]f you

20

It was at this juncture that defense counsel spoke with

Juror No. 9 and learned of her prior jury service, as previously

addressed.

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kill someone, then you are killed”; Juror Nos. 10 and/or 11

purportedly asked the jurors why Pops and Wilson should sit in

prison while they — the citizens — paid for it; and, Juror No. 12

said he was “comfortable” with voting for life or for death. Jones

reported that Juror No. 1 initially agreed to sign a declaration

attesting to these impressions, but after relations between Jones

and Juror No. 1 soured, Juror No. 1 ultimately indicated she did

not want to be contacted again, and she did not sign a

declaration. Jones submitted a declaration attesting to her

conversation with Juror No. 1 regarding the juror’s conversation

with fellow jurors. The trial court declined to obtain Juror No.

1’s testimony, because “this juror . . . is, obviously, very

reluctant.” The trial court also declined to call Juror Nos. 10 or

11 to testify because there was no evidence their alleged

statements “were anything other than transitory comments in

passing, provoking no discussion by other jurors.”

Pops’s motion for new trial, joined by Wilson, argued that

Juror No. 12 committed misconduct by siding with the majority

instead of weighing the evidence. In the alternative, they

argued Juror No. 12 relied on evidence outside of the case,

namely Juror No. 6’s statements concerning the Atlanta crime

— which constituted misconduct because it violated his oath as

a juror. They argued Juror No. 6 likewise committed

misconduct by relying on information about the Atlanta crime

to reach a verdict. Defense counsel objected to the court’s refusal

to allow them to question the jurors, claiming the court’s

questioning was leading and permitted the jurors to deny

misconduct.

The court concluded Juror No. 6 had not deliberated over

the weekend before her vote changed, and noted jurors

necessarily thought about the case during their non-deliberative

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time. Wilson claims — incorrectly — that the court did not

expressly rule on his motion for new trial, but at a hearing on

April 7, 2000 — during which Juror No. 9’s alleged misconduct

was addressed — the court stated it was “prepared to deny all

the motions.” On that same day, the trial court denied the

outstanding motions for new trial, including those related to

Juror Nos. 6, 9, and 12.

2. Discussion

Wilson contends the trial court failed to adequately

investigate his allegations of juror misconduct by not exercising

its discretion to permit the parties to call and question jurors at

the hearings on his motions for new trial. We conclude this

claim lacks merit. A trial court has broad discretion to resolve

a motion for new trial. (People v. Manibusan (2013) 58 Cal.4th

40, 52 (Manibusan).) While “a new trial may be warranted if a

jury engages in misconduct that prevents impartial

consideration of the case,” the trial court is obliged only “to

‘ “ ‘make whatever inquiry is reasonably necessary’ ” to resolve

the matter.’ ” (People v. Mora and Rangel (2018) 5 Cal.5th 442,

517 (Mora and Rangel).) When the allegations of misconduct

are based on the hearsay assertions of counsel — as with Jones’s

declaration pertaining to Juror No. 1’s alleged statements — we

have held that evidence “ ‘insufficient to establish an abuse of

discretion in either denying the motion or declining to conduct

an evidentiary hearing.’ ” (Ibid.)

The trial court fulfilled its obligation in this case by

conducting several hearings to determine whether misconduct

occurred. After hearing testimony from Juror Nos. 6, 7, and 12,

the trial court found no misconduct. It was under no obligation

to obtain testimony from every juror, and no error resulted from

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its decision not to obtain testimony from Juror Nos. 1, 10, or 11.

As to Juror No. 1, the only basis to conduct a further inquiry was

Jones’s statement regarding their phone conversation. This

evidence was hearsay; accordingly, no error followed from the

trial court’s decision not to hold an evidentiary hearing or by

denying the new trial motion. (Mora and Rangel, supra, 5

Cal.5th at p. 517.) We might likewise conclude no abuse of

discretion resulted from the trial court’s conclusion that Juror

No. 6 did not commit misconduct (see ibid.), although that is not

Wilson’s assertion.

Instead, Wilson claims the court erred by not adequately

investigating the alleged misconduct. This assertion is both

unfounded — the court conducted multiple evidentiary hearings

— and unavailing; the basis for the alleged misconduct related

to Juror No. 6 was a hearsay statement made by defense

counsel. We have made clear that “[a] court must hold an

evidentiary hearing on alleged jury misconduct only when the

defendant shows ‘a strong possibility that prejudicial

misconduct has occurred. Even upon such a showing, an

evidentiary hearing will generally be unnecessary unless the

parties’ evidence presents a material conflict that can only be

resolved at such a hearing.’ ” (Manibusan, supra, 58 Cal.4th at

p. 55.) No such conflict existed here. To the extent Wilson

presented evidence intimating jurors were influenced by

matters outside the record, the court’s evidentiary hearing

resolved that concern. “As we have explained, deliberating

jurors ‘may be particularly reluctant to express themselves

freely in the jury room if their mental processes are subject to

immediate judicial scrutiny.’ ” (Id. at p. 53.) Once the trial

“court is satisfied that the juror in question ‘is participating in

deliberations and has not expressed an intention to disregard

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the court’s instructions or otherwise committed misconduct,’ ”

the court is not obliged to conduct further inquiry. (Ibid.) After

conducting multiple hearings, the trial court was satisfied that

the deliberations were not tainted by misconduct, and its denial

of Wilson’s new trial motion did not constitute an abuse of

discretion. (Ibid.)

In an effort to avoid this conclusion, Wilson’s argument is

not that the denial of the new trial motion or failure to hold a

hearing constituted an abuse of discretion, but rather that the

court erred by failing to permit him to interview jurors. Wilson

asserts that “[t]he testimony of the jurors was a poor substitute

for the interviews the attorneys were asking to do” because the

court’s hearings did not “clear up the facts” to his satisfaction.

This argument lacks merit. Trial courts are under no obligation

to conduct evidentiary hearings at all when the allegations of

misconduct are based on hearsay, as was the case here, and are

certainly not required to permit the parties — rather than the

court — to examine witnesses. (Mora and Rangel, supra, 5

Cal.5th at p. 517.)

To the extent Wilson is claiming error arose from the

court’s refusal to grant him access to jurors outside of the

courtroom, the argument is even less persuasive; such

interviews would have, at best, resulted in unsworn hearsay

statements alleging misconduct occurred. Even if those

statements had been obtained, the court would have committed

no error in declining to do the very act that occurred here —

conduct an evidentiary hearing. (See Mora and Rangel, supra,

5 Cal.5th at p. 517.) The court did conduct a hearing, and

determined no misconduct occurred. This decision was “ ‘within

the sound discretion of the trial court,’ ” and the trial “ ‘court

d[id] not abuse its discretion simply because it fail[ed] to

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investigate any and all new information . . .’ ” or allegations

raised by Wilson. (Manibusan, supra, 58 Cal.4th at p. 52.)

IV. PENALTY PHASE

A. Constitutionality of California’s Death Penalty

Statutory Scheme

Wilson raises several objections to the constitutionality of

California’s death penalty scheme. We decline to reconsider our

existing precedent and reject these objections, on the merits, as

follows:

The special circumstances qualifying a defendant for the

death penalty, as set out in section 190.2, are not

unconstitutionally overbroad, nor are they so numerous that the

constitutionally required narrowing function cannot be

performed. (People v. Bell (2019) 7 Cal.5th 70, 130; People v.

Williams (2010) 49 Cal.4th 405, 469.)

There is no basis in our precedent to conclude that a trier

of fact imposes the death penalty in an arbitrary or capricious

manner when the trier of fact considers the circumstances of the

crime under section 190.3, factor (a). (People v. Fayed (2020) 9

Cal.5th 147, 213.)

We have previously held that the death penalty is not

unconstitutional “ ‘ “for failing to require proof beyond a

reasonable doubt that aggravating factors exist, outweigh the

mitigating factors, and render death the appropriate

punishment.” [Citation.]’ ” (People v. Henriquez (2017) 4

Cal.5th 1, 45.) We also have consistently held the death penalty

does not constitute an increased sentence. (People v. Scott

(2015) 61 Cal.4th 363, 407.) And we have determined that these

conclusions are unaltered by Apprendi v. New Jersey (2000) 530

U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, Blakely v.

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Washington (2004) 542 U.S. 296, or Cunningham v. California

(2007) 549 U.S. 270. (People v. Scott, supra, 61 Cal.4th at p.

407.)

Defendant does not give us any reason to revisit these

issues or to find that California’s capital punishment scheme

violates the Eighth Amendment’s prohibition against cruel and

unusual punishment, or the Fourteenth Amendment’s

guarantee of due process does not require the jury find

unanimously and beyond a reasonable doubt that aggravating

factors outweigh mitigating factors. (People v. Jones (2017) 3

Cal.5th 583, 618–619.) Nor does defendant give us any reason

to depart from our precedent holding that the death penalty

statutory scheme is not rendered infirm under the federal

Constitution by failing to demand written findings or unanimity

as to the existence of particular aggravating factors. (People v.

Lopez (2018) 5 Cal.5th 339, 370; People v. Silveria and Travis

(2020) 10 Cal.5th 195, 326.)

There is no requirement that the jury be instructed

concerning burden of proof at the penalty phase, nor must it be

instructed on a “ ‘ “ ‘presumption of life’ ” ’ ” to satisfy a

defendant’s constitutional rights to due process, equal

protection, a reliable determination of sentence, or freedom from

cruel and unusual punishment. (People v. Fayed, supra, 9

Cal.5th at p. 213.)

Nor does the use of unadjudicated offenses under section

190.3, factor (b) constitute a violation of due process principles.

(People v. Fayed, supra, 9 Cal.5th at p. 214.) Section 190.3’s use

of the word “ ‘extreme’ . . . in the list of mitigating factors . . .

does not act as a barrier to the jury’s consideration of mitigating

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evidence in violation of the federal Constitution.” (People v.

Mitchell (2019) 7 Cal.5th 561, 588.)

The phrase “ ‘ “ ‘so substantial’ ” ’ ” — when used to

compare mitigating and aggravating factors — does not render

CALJIC No. 8.88 unconstitutional. (People v. Landry (2016) 2

Cal.5th 52, 123.) Nor is the instruction “ ‘ “unconstitutional for

failing to inform the jury that: . . . death must be the appropriate

penalty, not just a warranted penalty.” ’ ” (People v. Mitchell,

supra, 7 Cal.5th at p. 589.) Error does not “flow[] from a failure

to instruct the jury that if mitigating factors outweigh

aggravating factors, life is the appropriate sentence.” (Mora and

Rangel, supra, 5 Cal.5th at p. 519.)

The trial court was not obliged to provide a jury

instruction indicating it was a defendant’s burden to

demonstrate factors in mitigation were present, nor did the

court need to instruct the jury it was required to unanimously

find any mitigating factor was present. (People v. Jones, supra,

3 Cal.5th at p. 620.)

“The trial court has no obligation to delete from CALJIC

No. 8.85 inapplicable mitigating factors.” (People v. Mitchell,

supra, 7 Cal.5th at p. 589.) There is likewise no requirement

“that the court designate which factors are aggravating or

mitigating or instruct the jury that certain factors are relevant

only in mitigation.” (People v. Winbush (2017) 2 Cal.5th 402,

490.)

The federal Constitution does not require intercase

proportionality review, assessing the relative culpability of a

defendant’s case compared to other murders. (People v. Bell,

supra, 7 Cal.5th at p. 131.) “ ‘The capital sentencing scheme

does not violate equal protection by denying to capital

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defendants procedural safeguards that are available to

noncapital defendants.’ ” (People v. Frederickson, supra, 8

Cal.5th at p. 1027.) Defendant does not present a persuasive

argument that international law prohibits application of the

death penalty in this case, or in the United States. This country

reserved the right to impose the death penalty when it signed

the International Covenant on Civil and Political Rights.

(People v. Capers (2019) 7 Cal.5th 989, 1017.)

B. Cumulative Error

Wilson contends the combined guilt and penalty phase

errors require reversal of his conviction and death sentence,

even if the errors are not prejudicial when considered

individually. We have found no error, so no prejudice can

accumulate.

V. DISPOSITION

We affirm the judgment.

CUÉLLAR, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

GROBAN, J.

KRAUSE, J.*

________________________

*

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.

83

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Wilson

__________________________________________________________________

Procedural Posture (see XX below)

Original Appeal XX

Original Proceeding

Review Granted (published)

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________________

Opinion No. S087533

Date Filed: April 12, 2021

__________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Curtis B. Rappe

__________________________________________________________________

Counsel:

Michael J. Hersek and Mary K. McComb, State Public Defenders,

under appointments by the Supreme Court, Joseph E. Chabot, Ryan R.

Davis

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