People v. Mataele

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

TUPOUTOE MATAELE,

Defendant and Appellant.

S138052

Orange County Superior Court

00NF1347

July 21, 2022

Chief Justice Cantil-Sakauye authored the opinion of the Court,

in which Justices Corrigan, Groban, Jenkins, and Guerrero

concurred.

Justice Groban filed a concurring opinion.

Justice Liu filed a concurring and dissenting opinion, in which

Justice Kruger concurred.

PEOPLE v. MATAELE

S138052

Opinion of the Court by Cantil-Sakauye, C. J.

A jury convicted defendant Tupoutoe Mataele of the

murder of Danell Johnson, the attempted murder of John

Masubayashi, and conspiracy to commit the murders of Johnson

and Masubayashi. (Pen. Code, §§ 187, subd. (a), 664, subd. (a),

182, subd. (a).)1 The jury found true a special circumstance

allegation that defendant committed the murder while lying in

wait. (§ 190.2, former subd. (a)(15).) The jury also found true

an allegation that defendant was armed with and personally

used a firearm in the commission of each offense. (§§ 12022,

subd. (a)(1), 12022.5, subd. (a).) Allegations that defendant

suffered a prior strike conviction and a prior serious felony

conviction were found true. (§§ 667, subd. (a), 1170.12, subds.

(a)–(d).)

Following a penalty trial, the jury returned a verdict of

death. The trial court denied defendant’s motions to set aside

the death verdict and for a new trial, and sentenced defendant

to death. It also sentenced him to a life term plus nine years for

the attempted murder count, the firearm enhancements, and

the prior serious felony conviction. The court stayed the

sentence on the conspiracy count pursuant to section 654. This

appeal is automatic. (§ 1239, subd. (b).)

1

All further statutory references are to the Penal Code

unless otherwise indicated.

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We affirm the judgment in its entirety. We also remand

the matter for the limited purpose of allowing the trial court to

consider whether to exercise its newly conferred discretion

under Senate Bill No. 620 (2017–2018 Reg. Sess.) and Senate

Bill No. 1393 (2017–2018 Reg. Sess.) to strike the firearm and

prior serious felony enhancements, respectively.

I. BACKGROUND

A. Guilt Phase Evidence

1. Prosecution evidence

Defendant participated in a criminal enterprise with

numerous individuals. Although the initial enterprise was an

ongoing identity theft and bank fraud scheme, later the venture

included the purchase and sale of methamphetamine. Peter

Song managed the group, which also included Johnson,

Masubayashi, Minh Nghia Lee, James Chung, Ryan Carrillo,

David Song, and Tweeney Mataele (defendant’s brother,

nicknamed “Baby”). At one point, nearly the entire group lived

together in an apartment in Los Angeles referred to as the

“Penthouse.”

Several members of the group also belonged to criminal

street gangs. Masubayashi and Johnson were members of the

Tiny Rascals gang. Chung, Carrillo, and Baby were members of

the Pinoy Real gang. Defendant was a member of the Sons of

Samoa gang, but socialized mostly with Pinoy Real gang

members. Lee was a member of the Asian Mob Assassins gang.

The shooting of Johnson and Masubayashi stemmed from

various disputes within the group. Chung was angry with

Johnson because Johnson had received a speeding ticket when

he was driving Chung’s Jeep Cherokee and had provided the

police officer with false identification. The police went to

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Chung’s house and questioned him. Chung worried that he

would be in violation of his parole because of the car incident.

Chung was also upset with Masubayashi after Chung was

nearly caught committing bank fraud. Chung threatened

Masubayashi with a butcher knife over the incident and told

him to watch his back. Chung called Johnson and Masubayashi

“snitches” based on the incidents. Chung also wanted to replace

Masubayashi as Peter Song’s second-in-command in the

criminal enterprise. Masubayashi and Johnson eventually

moved out of the Penthouse and lived in an apartment in

Anaheim owned by Takahisa Suzuki.

On the evening of November 11, 1997, defendant, Chung,

Carrillo, and Lee were at the Penthouse when Chung began

complaining about Masubayashi and Johnson. Defendant

volunteered to kill Masubayashi, stating, “We’re going to handle

them, take care of them” and “Let’s go smoke those

motherfuckers.” Chung, Lee, and Carrillo responded, “Let’s do

it.” Carrillo noticed that defendant possessed a .357 magnum

handgun, which Carrillo had previously seen defendant carry on

numerous occasions.

Lee drove defendant, Chung, and Carrillo in Chung’s Jeep

Cherokee to the home of Allan Quiambao, another Pinoy Real

gang member. During the drive, defendant repeated that he

would kill Johnson and Masubayashi. The group met Quiambao

outside and told him that they were headed to Anaheim to “do”

Johnson and Masubayashi. Quiambao understood this to mean

the group would kill them.

The group returned to the Jeep and continued driving

toward Anaheim. A police officer stopped the Jeep after Carrillo

threw a cigarette butt out the window. Carrillo saw defendant

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hide his gun inside the crack of the seats prior to the stop and

then tuck it in his waistband after the police officer left.

Lee parked the Jeep in a parking lot near Suzuki’s

apartment complex. The group agreed that only defendant and

Carrillo would go to the apartment because there was no

animosity between them and Masubayashi and Johnson. Lee

and Chung would wait in the Jeep. As they were walking to the

apartment, defendant told Carrillo that he was going to “do,”

meaning kill, everyone in the apartment. Defendant telephoned

Johnson, who had been grocery shopping with his girlfriend, Sia

Her. Johnson and Her met defendant and Carrillo outside the

apartment complex. The four continued to Suzuki’s apartment,

where Masubayashi and his girlfriend, Alexis Huliganga, were

asleep inside. Masubayashi awoke and the men decided to go

out to a strip club or to shoot pool. Defendant, who weighed

more than 300 pounds, was wearing dark jeans and a green-and-

black plaid flannel; Carrillo, who had a thinner build, wore a

white jersey with black letters and a beanie on his head.

As the group walked toward Masubayashi’s car, they

noticed a police patrol car driving by. Masubayashi and Carrillo

saw defendant remove his gun from his waistband and hide it

beneath the tire of a parked car. Defendant and Carrillo

returned to Suzuki’s apartment, where defendant explained to

Her that they had come back because the police were outside

and he was “strapped,” meaning he had a gun. After the patrol

car left, Johnson returned to the apartment to collect defendant

and Carrillo, while Masubayashi continued walking to his

vehicle. Defendant retrieved the gun once outside and

Masubayashi picked the men up in his car, a two-door Nissan.

Carrillo sat behind Masubayashi and defendant sat behind

Johnson.

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Defendant and Carrillo told Masubayashi that they also

wanted to drive and directed him to Chung’s Jeep.

Unbeknownst to Masubayashi and Johnson, Lee and Chung

were hiding inside the Jeep. Masubayashi parked his car next

to the Jeep and Johnson got out of the front seat to let defendant

and Carrillo exit the car. Masubayashi saw Carrillo walk

toward the back of the Nissan while defendant stayed beside the

passenger door. Masubayashi recalled that he had left compact

discs in Chung’s Jeep and opened his car door to retrieve them.

Defendant suddenly drew his gun and shot Johnson in the head.

Masubayashi turned and saw Johnson’s head bobbing.

Defendant next bent inside the Nissan and shot Masubayashi.

Just before he was shot, Masubayashi remembered seeing

defendant’s dark forearm and his green-and-black flannel shirt

inside the car and defendant’s gun pointed at him.

Masubayashi dashed out of the car and ran through the

parking lot toward a Jack in the Box restaurant. Defendant shot

at Masubayashi several more times. Masubayashi ran across

the street as defendant and Carrillo climbed into the backseat

of the Jeep. Lee started the car and drove toward Masubayashi,

saying, “I’m going to run his ass over.” Masubayashi hid behind

a telephone pole, and Lee stopped the Jeep just in front of it.

Masubayashi ran away from the Jeep and collapsed in the

middle of the street. Carrillo became aware of people watching

in front of a nearby restaurant and saw a uniformed security

guard nearby. Defendant told Lee to let him out of the Jeep so

he could “finish John off.” Defendant got out of the Jeep and

walked toward Masubayashi. Lee, Chung, and Carrillo drove

off.

A restaurant patron and private security guard noticed

Masubayashi lying in the street and stopped to help him. Police

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officers arrived at the scene shortly thereafter and found

Masubayashi lying on his back in the middle of the street with

a gunshot wound to his chest. Masubayashi was taken to the

hospital, where he told police officers that defendant had shot

him and Johnson. A forensic pathologist who performed an

autopsy on Johnson testified that Johnson died from a close

range gunshot wound to his neck and brain. An analysis of

bullets and fragments indicated the shots were fired from either

a .38 special or .357 magnum handgun.

Two eyewitnesses — Jose Rodriguez and John Fowler —

testified regarding their observations. In the early morning

hours of November 12, 1997, Rodriguez, Fowler, and Matthew

Towne2 were seated on a bench outside the Gateway Urgent

Care Clinic in Anaheim when they heard what sounded like a

car backfiring. Rodriguez took a few steps forward and peered

around the side of a brick wall. He saw the profile of a man

approximately 50 feet away in a dark parking lot firing a gun in

the direction of the Jack in the Box. Rodriguez described the

shooter as a Black male, approximately 25 years old, about six

feet tall, heavyset, and wearing dark clothing. Fowler looked

around the side of the brick wall and noticed a black car parked

with the engine running. He also saw the silhouette of a man

walking across the parking lot toward the Jack in the Box and

firing a gun. He described the shooter as possibly African-

American, approximately five feet and ten inches tall, thin to

medium build, and possibly wearing a beanie. However, Fowler

also emphasized at trial that it was dark and difficult to

2

As discussed post, Towne was unavailable at the guilt

phase of trial. His statements to police officers, made shortly

after the shooting, were not admitted at trial.

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determine how big the shooter was, and that he simply saw a

“basic shadow” walking across the parking lot. The men ran into

the clinic to call 911.

Carrillo returned to Quiambao’s house after the shooting

and changed clothes. Carrillo seemed scared, paranoid, and

frantic. He appeared to be praying and repeatedly stated, “They

shot him.” When Quiambao asked Carrillo who shot them,

Carrillo replied, “T-Strong.”3

Defendant arrived at Quiambao’s home an hour or two

later. Defendant told Carrillo that he had discarded the gun and

ran from Anaheim to Quiambao’s house. Quiambao repeatedly

asked defendant why he had shot Johnson and Masubayashi,

but defendant did not respond. Quiambao asked defendant

what he did with the gun, and defendant replied that he threw

it away. Defendant left Quiambao’s house; Carrillo stayed there

and fell asleep.

Later that morning, defendant and Carrillo purchased

fake identification cards and used them to travel with Baby to

Utah. They lived with defendant’s relatives in Salt Lake City

for five or six months. In 1998, Carrillo and Baby returned to

Los Angeles and defendant remained in Utah.

In late 1999 or early 2000, Masubayashi began dating

Glenda Perdon (Glenda Bloemhof at trial). Unbeknownst to

Masubayashi, Perdon had previously associated with members

of the Pinoy Real gang, and she had seen defendant at

Quiambao’s house on a few occasions.

In April 2000, Masubayashi spotted defendant in the

parking lot of the Ramona Hotel in Cerritos. Masubayashi had

3 “T-Strong” was defendant’s given name at birth.

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not seen defendant since the shooting. He told Perdon that he

had observed defendant and wanted to notify the police. Perdon

mentioned that she had overheard defendant brag about killing

Johnson when she was at defendant’s house for a barbeque.

According to Perdon, defendant said, “I came in my pants when

I saw that nigger flop after I shot him.” Perdon also relayed that

defendant had mentioned the name “John” when he described

the shooting, which Masubayashi understood to refer to him.

Perdon recalled that this conversation took place around the

time of the shooting and that defendant had then fled to Utah.

Shortly thereafter, Masubayashi and Perdon went to the

Anaheim police station to provide additional information.

Masubayashi informed a police detective that he had seen

defendant. He also told the detective that, based on his

conversation with Perdon, it was possible Clarito Mina had been

driving the Jeep on the night in question. At trial, however,

Masubayashi testified that he was sure Lee had been driving

the Jeep.

In mid-May 2000, defendant was arrested on an

outstanding warrant for unrelated charges. Carrillo, Chung,

and Lee were also eventually arrested. In October 2001, a felony

complaint was filed charging defendant with murder, attempted

murder, and conspiracy to commit murder.

Defendant was jointly tried before a single jury with

codefendant Lee at the guilt phase trial. A death verdict was

not sought against Lee. Chung also was charged with first

degree murder, conspiracy to commit murder, and premeditated

attempted murder, but he was tried separately. Carrillo

testified for the prosecution as part of a plea bargain under

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which he pleaded guilty to voluntary manslaughter and

attempted murder, for which he received a six-year sentence.

2. Defense evidence

Defendant presented evidence suggesting that it was

Carrillo who shot Johnson and Masubayashi. The defense also

sought to portray Carrillo as a liar and an unreliable witness.

Testifying on his own behalf, defendant maintained that

he was on good terms with Johnson and Masubayashi, and

denied shooting them. He said that on the night in question, he

and Carrillo went to Suzuki’s apartment and spoke with

Johnson and Masubayashi about going out. Defendant

acknowledged that he hid a gun, a .357 magnum, under the tire

well of a parked vehicle when a police car approached the group,

but testified that it was Carrillo who subsequently retrieved the

weapon.

According to defendant, the foursome got into

Masubayashi’s car and drove to pick up Chung at his Jeep.

Defendant testified that Masubayashi parked his car next to

Chung’s Jeep and Johnson let defendant out of the car. As

defendant was walking toward the Jeep, he heard two gunshots,

turned around, and saw Carrillo’s arm in Masubayashi’s car.

Defendant related that he pushed Carrillo up against the car

and yelled, “What the fuck are you doing?” Carrillo replied, “It’s

a setup, man. It’s a setup.”

Defendant testified that he saw Masubayashi run from the

car as Carrillo followed and shot at him. Defendant maintained

that Carrillo returned to the Jeep and yelled, “Let’s go, let’s go,

let’s go.” Defendant conceded that he instructed the driver to

“go get” Masubayashi, but maintained that he intended to help

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Masubayashi, not run him over.4 Carrillo began screaming,

“Yeah, we’ve got to get him. We’ve got to get him. He seen us.

He knows where we live. We’ve got to do this. We got to finish

him.” Defendant told the group to stop the Jeep because he

“wasn’t going to be a part of it,” and he got out of the car and

started running.

Defendant testified that he made his way to Quiambao’s

house, where he met Carrillo outside. Defendant asked Carrillo

why he shot Johnson and Masubayashi. Carrillo replied that “it

was a setup” and claimed that Masubayashi had a gun. Once

inside, Quiambao asked defendant why he had shot Johnson.

Defendant did not respond and looked at Carrillo and

Quiambao. He then asked Quiambao to get him something to

drink. When Quiambao left the room, defendant asked Carrillo

what he had told Quiambao. According to defendant, Carrillo

responded that he thought defendant was in jail and he did not

know what to do, so he told Quiambao that defendant shot

Johnson. When Quiambao returned with a drink, he again

asked defendant why he shot Johnson and Masubayashi,

adding, “They are our friends.” Defendant responded, “Why?

Why don’t you shut the hell up?”

Later that morning, defendant testified, he and Baby went

to see someone about getting fake identification. The following

day, defendant, Baby, and Carrillo flew to Salt Lake City. The

group lived in a hotel for several weeks and eventually moved to

a family member’s house. Defendant said that he left

periodically, traveling to San Francisco, Portland, Seattle, and

4

Defendant initially refused to identify who was driving the

Jeep after the shooting, but later testified that Clarito Mina was

the driver, not Lee.

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Los Angeles, until he returned to Los Angeles in late 1999.

Defendant claimed that he went into hiding in Salt Lake City

because he refused to go to jail for a crime he did not commit.

Defendant admitted that he “ran” with the Sons of Samoa

gang, but denied being an actual gang member. He

acknowledged that he had been at Quiambao’s house with

Perdon and discussed Johnson’s murder and the shooting of

Masubayashi, but denied ever making the statement to Perdon

that he shot Johnson.

Carrillo’s sister-in-law, Alana Swift Eagle, testified that

Carrillo drank heavily and used methamphetamine daily. She

also related that Carrillo was a dishonest person and a very

manipulative liar.

The defense presented evidence that, despite Carrillo’s

recollection that one of the rounds fired by defendant hit a metal

pole, there was no ballistic evidence recovered from that

vicinity. Additional evidence was introduced suggesting that

the bullet recovered from Johnson’s body would not have been

fired by a Smith & Wesson-manufactured .357 handgun,

although Carrillo maintained that defendant’s gun was made by

Smith & Wesson. However, the criminologist’s earlier

testimony that either a .38 special or a .357 magnum handgun

fired the bullet that killed Johnson was not called into question.

She also testified that many gun parts are interchangeable and

a person could attach a pair of Smith & Wesson grips onto

another brand of gun.

Correctional nurse Jean Huang treated Carrillo for chest

pain when he was incarcerated at the Orange County Jail.

Huang testified that Carrillo had told her that he had been a

frequent methamphetamine user and heavy alcohol drinker.

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Forensic toxicologist Darrell Clardy testified that a person who

consumed as much alcohol and drugs as Carrillo reported would

likely be disoriented, confused, and susceptible to

misinterpreting what was happening.

Shawn Monroe testified that defendant and Carrillo came

to his home in November 1997, at which time Carrillo inquired

about procuring false identification cards. When Monroe asked

Carrillo why the fake identifications were needed, Carrillo

responded that he “just shot some fools in Orange County and

he “need[ed] to leave town.” Defendant instructed Carrillo to

“shut up.” Based on their interaction, Monroe thought that

Carrillo was the shooter.

Quiambao also testified that in 2001 Carrillo admitted

that he was the shooter. However, Quiambao was impeached on

cross-examination by a taped interview with detectives, in

which he stated that defendant was the shooter.

B. Penalty Phase Evidence

1. Prosecution evidence

The prosecution’s case in aggravation included evidence

regarding defendant’s criminal history and victim impact

testimony.

In March 1988, when defendant was in seventh grade, he

exposed himself to two female students and touched their

breasts and buttocks. In June 1991, defendant and three other

individuals robbed Thomas Kinsey. In December 1993,

defendant robbed another person, John Hagen, at gunpoint.

Two of Johnson’s cousins described their close relationship

with him and explained how his death impacted their families’

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lives. Johnson’s girlfriend described the grief and emotional

struggle she felt after Johnson died.

2. Defense evidence

In mitigation, the defense focused on defendant’s family

history, background and character, brain activity, and

adjustment to prison. Concerning these matters, defendant

presented the testimony of several family members as well as

various experts. He also took the stand on his own behalf once

again.

Professor Inoke Funaki testified as an expert witness on

Tongan culture. He described Tongan parenting style as

authoritarian and strict, adding that it is common for Tongan

husbands to physically abuse their wives and children.

Defendant and several of his family members described

the emotional and physical abuse that occurred in defendant’s

home. Defendant’s parents argued constantly, and defendant’s

father often beat his mother. Defendant’s parents also hit

defendant and beat him with a broom handle. Defendant was

described as a loving brother, protective family member, caring,

courteous, and respectful.

Defendant was the target of ridicule in elementary school

because he was bigger than the other children and did not have

nice clothes. He was respectful to his teachers and

administrators in elementary and middle school. Defendant’s

high school football coach described him as kind, polite, and a

good kid. Defendant quit high school in tenth grade and started

working in construction to help his family financially.

In 1992, defendant provided mouth-to-mouth

resuscitation to Monroe when he was shot by a rival gang

member. Defendant befriended a young woman who had felt

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unsafe when she was walking to school and he became a father

figure to her.

Defendant denied robbing Kinsey. He admitted to robbing

Hagen, but testified that he accepted responsibility when

contacted by the police and expressed remorse.

In July 1997, defendant witnessed the murder of his

cousin, Loma Mataele. Defendant was very close to Loma and

was heartbroken by her death. He testified that Loma’s death

“really messed [him] up in the head.”

Following the shooting of Johnson and Masubayashi,

defendant set up weekly family meetings to encourage family

members to better themselves and help each other. Defendant

recognized that he had made mistakes in his own life.

Several experts testified regarding defendant’s brain

function and ability to benefit from life in prison. Dr. Kenneth

Nudleman testified that defendant’s neurological test results

were generally in the normal range, and there were no

structural changes to the brain associated with violent behavior.

Clinical psychologist and neuropsychologist Dr. Timothy

Collister testified that defendant performed well in the

neurological tests he administered, was very intelligent, and

gave straightforward and honest answers. Collister opined that

defendant could benefit from education and rehabilitation.

Dr. Nancy Kaser-Boyd opined that defendant suffered

from attention deficit hyperactivity disorder and posttraumatic

stress disorder, but his above average intelligence, normal brain

function, and relationships would mitigate some of the risk

factors in defendant’s life, including child abuse, domestic

violence, racism, and poverty. Psychopharmacologist

Dr. Ronald Siegel testified regarding the effects of

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methamphetamine, including paranoia, irritability, impulsivity,

psychosis, and delusions resulting from sustained use.

James Esten, a retired employee from the Department of

Corrections and Rehabilitation, testified as a correctional

consultant. Based on his review of defendant’s custodial history

and an interview with defendant, Esten opined that defendant

was suitable for and adaptable to prison life, and was a good

candidate to lead a productive and nonviolent life in prison.

II. DISCUSSION

A. Guilt Phase Issues

1. Excusal of two prospective jurors for cause

Defendant contends the trial court erroneously excluded

two prospective jurors based on their death penalty views in

violation of the constitutional standards set forth in

Witherspoon v. Illinois (1968) 391 U.S. 510 and Wainwright v.

Witt (1985) 469 U.S. 412 (Witt). We conclude that the record

fairly supports the excusals and therefore uphold the trial

court’s rulings.

a. Legal principles

“Under state and federal constitutional principles, a

criminal defendant has the right to be tried by an impartial jury.

(Cal. Const., art. I, § 16; U.S. Const., 6th & 14th Amends.) With

regard to jury selection in a capital case, decisions by this court

and the United States Supreme Court have made clear that

prospective jurors’ personal opposition to the death penalty is

not a sufficient basis on which to remove them from jury service

in a capital case, ‘ “so long as they clearly state that they are

willing to temporarily set aside their own beliefs in deference to

the rule of law.” ’ ” (People v. Schultz (2020) 10 Cal.5th 623, 646

(Schultz).)

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“Excusal for cause is permissible, however, when the

prospective juror’s beliefs regarding the death penalty ‘would

“prevent or substantially impair the performance of his [or her]

duties as a juror in accordance with [the court’s] instructions

and [the juror’s] oath.” ’ ” (Schultz, supra, 10 Cal.5th at p. 647,

quoting Witt, supra, 469 U.S. at p. 424.) Although “a prospective

juror may not be excused for cause based on ‘general objections’

or ‘conscientious or religious scruples’ against the death penalty

[citation], excusal is proper when a prospective juror cannot

‘consider and decide the facts impartially and conscientiously

apply the law as charged by the court’ [citation].” (Schultz, at

p. 649.) This rule balances the interest of a criminal defendant,

who “has a right to an impartial jury drawn from a venire that

has not been tilted in favor of capital punishment by selective

prosecutorial challenges for cause,” and the state’s “strong

interest in having jurors who are able to apply capital

punishment within the framework state law prescribes.”

(Uttecht v. Brown (2007) 551 U.S. 1, 9 (Uttecht).)

We review a trial court’s determination regarding juror

bias for abuse of discretion. (People v. Jones (2012) 54 Cal.4th

1, 41 (Jones).) “ ‘[A]ppellate courts recognize that a trial judge

who observes and speaks with a prospective juror and hears that

person’s responses (noting, among other things, the person’s

tone of voice, apparent level of confidence, and demeanor),

gleans valuable information that simply does not appear on the

record.’ [Citation.] As such, ‘the reviewing court generally must

defer to the judge who sees and hears the prospective juror, and

who has the “definite impression” that he is biased, despite a

failure to express clear views.’ ” (Ibid.; see also Uttecht, supra,

551 U.S. at p. 9 [“Deference to the trial court is appropriate

because it is in a position to assess the demeanor of the venire,

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and of the individuals who compose it, a factor of critical

importance in assessing the attitude and qualifications of

potential jurors”].)

“During voir dire, jurors commonly supply conflicting or

equivocal responses to questions directed at their potential bias

or incapacity to serve. When such conflicting or equivocal

answers are given, the trial court, through its observation of the

juror’s demeanor as well as through its evaluation of the juror’s

verbal responses, is best suited to reach a conclusion regarding

the juror’s actual state of mind. [Citation.] ‘ “ ‘There is no

requirement that a prospective juror’s bias against the death

penalty be proven with unmistakable clarity. [Citations.]

Rather, it is sufficient that the trial judge is left with the definite

impression that a prospective juror would be unable to faithfully

and impartially apply the law in the case before the juror.’ ” ’

[Citation.] ‘[T]he [trial court’s] finding may be upheld even in

the absence of clear statements from the juror that he or she is

impaired because “many veniremen simply cannot be asked

enough questions to reach the point where their bias has been

made ‘unmistakably clear’; these veniremen may not know how

they will react when faced with imposing the death sentence, or

may be unable to articulate, or may wish to hide their true

feelings.” [Citation.] Thus, when there is ambiguity in the

prospective juror’s statements, “the trial court, aided as it

undoubtedly [is] by its assessment of [the venireman’s]

demeanor, [is] entitled to resolve it in favor of the State.” ’ ”

(Jones, supra, 54 Cal.4th at p. 41, quoting Uttecht, supra,

551 U.S. at p. 7; see also People v. Duenas (2012) 55 Cal.4th 1,

10 [“When the prospective juror’s answers on voir dire are

conflicting or equivocal, the trial court’s findings as to the

prospective juror’s state of mind are binding on appellate courts

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if supported by substantial evidence”].) “Even when ‘ “[t]he

precise wording of the question asked of [the venireman], and

the answer he gave, do not by themselves compel the conclusion

that he could not under any circumstance recommend the death

penalty,” the need to defer to the trial court remains because so

much may turn on a potential juror’s demeanor.’ ” (Jones, at

p. 42, quoting Uttecht, at p. 8.)

With this standard in mind, we turn to whether the trial

court properly excluded the two prospective jurors in question.

b. Analysis

i. Prospective Juror No. 259

In her questionnaire, Prospective Juror No. 259 signaled

a degree of uncertainty and discomfort regarding the death

penalty. Asked whether there was anything that she wanted to

bring to the court’s attention that might affect her ability to be

a fair and impartial juror in this case, Prospective Juror No. 259

wrote: “Little uncomfortable seeing how young the [two] men

were, and finding out the crime was done [eight] years ago. Just

questioning myself if I can be impartial, without being

sympathetic.” She also stated that she did not believe the death

penalty was a deterrent and that it was for “evil people in the

world, who cannot be reformed” and who “will continue to

murder, with no remorse.” She noted that she used to believe

that the death penalty was “for no one,” but “too many crimes

are [by] repeat murderers.” She also stated that she “d[id]n’t

care for” having the responsibility of deciding whether someone

lives or dies and she “would rather give that responsibility to

someone else.” She added that in deciding whether a person

should receive the penalty, she “would have to be sure that it

serves a purpose — life is too precious for a chosen few to take

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it away.” She also indicated in her questionnaire, however, that

she would not have a problem voting for the death penalty if she

believed the individual committed the crime willfully and

without remorse and has no chance of being rehabilitated, that

she could set aside her personal feelings and follow the law, and

that she would look at all the criteria before deciding whether to

vote for death or life imprisonment.

During voir dire for the selection of seated jurors,

defendant’s counsel asked Prospective Juror No. 259 how she

felt about sitting in judgment in a case of this nature.

Prospective Juror No. 259 answered, “I’m hoping the

prosecution doesn’t have enough evidence to get to the second

phase.” She added, “I don’t want to see the second phase. I see

two innocent men, and I’m hoping that he doesn’t have enough.”

Defendant’s counsel clarified that Prospective Juror No. 259

should assume a defendant’s innocence before the

commencement of trial, and asked whether, assuming that they

did get to the second phase, she could engage in the weighing

process and consider the appropriate factors. Prospective Juror

No. 259 responded that she could do so and would keep an open

mind.

Counsel for codefendant Lee asked Prospective Juror

No. 259 whether she had concerns about her ability to give her

individual opinion at the end of the case. Prospective Juror

No. 259 stated that she did not, but defense counsel observed

that she had “hesitated a little bit.” Prospective Juror No. 259

responded, “The only thing I have is I just see these men.

They’re just so young.” She added, “I’ve got sons about that age.

Maybe that might taint my view a little bit.” Counsel explained

that it was okay to feel sympathy for the victims and the

defendant, but that it was not okay to have it affect a juror’s

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decision in the guilt phase. Prospective Juror No. 259 replied,

“I could do that, but it’s going — going to — it’s going to be very

hard.” She reiterated: “It’s something I don’t want to do. I can

do it. I’ve been in trials before where I had to take the facts, but

it’s going to be very hard.”

The prosecutor then questioned Prospective Juror No. 259

about her prior comment that she hoped there would be

insufficient evidence at the guilt phase. Prospective Juror

No. 259 acknowledged that she had said that. She reiterated

that she did not want to get to the penalty phase and hoped the

prosecutor did not have enough evidence. She added: “If you

have enough to convince me, I don’t mind getting to the second

phase. But, you know, if you’re asking me how do I feel about

the second phase, I don’t want to get to the second phase if at all

possible.” She stated that she understood the prosecutor’s cause

for concern, but explained, “I actually think you have the bigger

burden than the other two lawyers. Because I actually see them

as innocent and I actually think you have a bigger burden to tell

me what you believe to make them guilty. And that’s why I say,

yeah, yeah, well, you’re right. I am pulling for them.” She

added: “I’ll tell you right now. Because I don’t want to get to

the second phase. I don’t.” The prosecutor asked, “Because of

the way you feel, do you think that would substantially impair

your ability to render — I use this term that — everybody says

‘I don’t want to say I’m unfair,’ but do you think it would

substantially impair your ability to render a fair verdict, either

at the guilt or the penalty phase?” Prospective Juror No. 259

responded, “Yes.”

The trial court granted the prosecutor’s request to excuse

Prospective Juror No. 259 for cause. The court noted that she

had equivocated in her questionnaire when she stated that she

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“would have to be sure that the death penalty serves a purpose”

and “life is too precious for a chosen few to take it away.” The

court also pointed to her statement in court that she would be

pulling for the defense and subsequent admission that this

would substantially impair her ability to return a death verdict.

Viewed as a whole, Prospective Juror No. 259’s written

and oral responses to questions regarding her ability to impose

the death penalty in this case demonstrated a potential bias.

She acknowledged several times that she was uncomfortable

after seeing how young the defendants were in this case, and

that their age might taint her view and render her biased

toward the defense. She repeatedly and candidly admitted that

she was “pulling for” defendants, and at least six times stated

that she hoped the prosecutor did not have enough evidence to

get to the penalty phase. Above all else, she ultimately admitted

that her views would substantially impair her ability to render

a fair verdict, either at the guilt or penalty phase. We conclude

the trial court acted well within its discretion in excusing

Prospective Juror No. 259.

ii. Prospective Juror No. 190

Prospective Juror No. 190’s questionnaire responses

reflected doubt about her ability to vote for the death penalty.

She wrote that she has “much ambivalence about the death

penalty” and she “[h]ate[s] the death penalty.” When asked

whether she would make any changes to the criminal justice

system, Prospective Juror No. 190 wrote that she would

“eliminate death penalty — speed up system.” In response to a

question regarding whether she would like to bring anything to

the court’s attention that might affect her ability to be a fair and

impartial juror in this case, Prospective Juror No. 190 wrote:

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“Though I am not morally opposed to the death penalty, I would

not vote for it because if a mistake it couldn’t be undone.” She

added that she “formerly considered the death penalty immoral,

but now just am concerned because human error might cause a

wrong decision.” She also wrote that she was “not sure it is our

right” to decide whether defendant should receive the death

penalty. However, she answered in the negative when asked

whether she held an opinion concerning the death penalty that

would make her automatically refuse to vote for the death

penalty in any case. She also checked “Agree Somewhat” in

response to the questionnaire statement “Any person who kills

another should get the death penalty,” adding that although she

was “scared to make a mistake, sometimes it is the only answer.”

She further indicated that she could set aside her personal

feelings regarding what the law ought to be and follow the law

as the court explains it to her.

During voir dire, Prospective Juror No. 190 offered that

she had been “reflecting” since completing the jury

questionnaire and her views had changed. She stated: “And

I found that I — when I filled it out, I thought I was more anti

death penalty than I actually am. I’m coming down more in the

middle.” She added: “Initially when I filled it out, I thought

that I would favor life without parole . . . at all times or in most

circumstances. But in looking at myself, I also think that death

can be a moral decision after examining what I do believe.” She

explained that she “didn’t realize that we would have set factors

to consider. And I’m grateful and relieved that we will, should

we get there.”

Prospective Juror No. 190 also indicated that she “ha[d]

concerns looking at our system as a whole. Whereas 12 people

might find one way, the same exact case, 12 people tomorrow

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might find another way. So it’s the whole system that concerns

me. In this case, I think I can focus just on this case.” When

asked to clarify, Prospective Juror No. 190 reiterated, “I just

think it’s a flaw in the system.” She later stated, “And I do have

concerns about — for the same reason, because the system is

flawed, that a mistake might be made; but I also think that it

could be certain beyond a reasonable doubt. And I could vote for

the death penalty.”

Later in voir dire, the prosecutor questioned Prospective

Juror No. 190 about her change in attitude regarding the death

penalty. The following colloquy occurred:

“[Prosecutor]: [W]hen I see a juror who says, ‘I could not

vote for [the death penalty],’ and then they completely change

and say, ‘It’s moral, and I could vote for it’ —

“[Prospective Juror No. 190]: Right.

“[Prosecutor]: — Can you understand that I’d be

concerned about that?

“[Prospective Juror No. 190]: Absolutely. I can definitely

understand.

“[Prosecutor]: What is it that you heard that hasn’t just

educated you but it’s made you completely change your mind

about whether you could fairly evaluate evidence and vote for a

death verdict?

“[Prospective Juror No. 190]: When I wrote that, I’m

thinking when — especially when you’re a child. But, as you’re

growing up, even though I wake up in the morning and the news

is that somebody has been put to death for a crime, I just get

sick. I mean I really hate that. And the thought that one person

could have been put to death for a crime they didn’t commit

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makes me sick. So that was what I was thinking when I wrote

that. However, in my right and wrong, moral and not moral

world, I believe that the death penalty is a valid punishment, a

moral and right punishment. Okay. But I do have those

concerns, maybe I wouldn’t be fair to you or to — you know, if

we got to the penalty phase.

“[Prosecutor]: Okay.

“[Prospective Juror No. 190]: It’s possible.

“[Prosecutor]: Well, that’s — that’s the crux of where I’m

going.

“[Prospective Juror No. 190]: Okay.

“[Prosecutor]: And any time I pick specific questions it’s

all going to the same place ultimately.

“[Prospective Juror No. 190]: Okay.

“[Prosecutor]: So let me ask you: You say maybe you could

be fair. I’ll use one of [defense counsel]’s phrases. . . . Dig deep

and tell me. Could you be fair to both sides or not? Could you —

would your beliefs substantially impair your ability to be a fair

juror in this case?

“[Prospective Juror No. 190]: No.”

In response to further questioning from the prosecutor

regarding her written response questioning whether it was a

juror’s right to impose the death penalty, Prospective Juror

No. 190 stated: “Exactly. Exactly. I’m not sure.” When the

prosecutor pointed out the inconsistency between her written

and voir dire responses, Prospective Juror No. 190 stated, “I’m

not sure it’s our right to take a life, the state’s right to take a

life,” but added, “I am sure it’s right for the state to — that it is

okay for the state to do that. I am sure. I have an emotional

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reaction, but I’m sure that’s okay.” When the prosecutor asked

her what caused her to change her mind, she responded: “I’m

saying in — where I’m saying there is truth and there is right

and there is morality, that it is moral if — if it’s, you know — if

the truth is found, then it is moral to take a life. However, in

my emotional reaction in my everyday world and knowing that

people are flawed, it would be — it would be — my emotional

reaction is that it’s difficult. It’s — it’s — if a mistake could be

made it would be hard.”

The prosecutor agreed that the job of a capital juror would

be very difficult, but pointed out that Prospective Juror No. 190

wrote on her questionnaire that she hates the death penalty.

She agreed, “I do. I hate that we have to have it.” The

prosecutor responded, “But that’s not what you wrote.” When

Prospective Juror No. 190 was asked whether she believed that

she could be fair and neutral, she responded that she did not

want to be here but she believed she could be fair and neutral.

When asked to confirm that she was neutral now, she

responded: “I hate the death penalty. I hate the death penalty.

I hate that we have to have the death penalty. . . . But I do think

I could vote on it.”

Outside the presence of the jury, defense counsel

expressed concern that the questioning was too extensive and

was becoming adversarial in an effort to establish cause. The

trial court noted that it had granted a challenge for cause raised

by defense counsel the previous day due to an “extreme

inconsistency” between what a prospective juror said in court

and in the questionnaire, and allowed the prosecutor to continue

because Prospective Juror No. 190 was “hugely inconsistent” in

her questionnaire responses compared with her statements

during voir dire.

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In response to further questioning, Prospective Juror

No. 190 explained that she changed her mind regarding her

ability vote for a death penalty after learning that she could

consider aggravating and mitigating factors. She reiterated

that she would rather not have to impose the death penalty, but

it was her position “right now” that she would be neutral. When

asked whether she would be pulling for one side or the other at

the beginning of the penalty phase, she responded: “I . . . would

rather not have to — I think I probably would rather not have

to impose the death penalty.” The prosecutor asked whether

that meant she would be “pulling for the defendant,

Mr. Mataele, hoping that there would be insufficient evidence.”

She conceded, “I probably would. I would probably hope that

I would be able to weigh the factors honestly in favor of the

defendant.”

The trial court granted the prosecutor’s request to excuse

Prospective Juror No. 190 for cause. The court explained:

“I have already commented that she’s equivocal on this and

hugely inconsistent, and her credibility with me in open court is

shattered. I do not believe her when she says that she could be

a fair and impartial juror. She’s all over the map. Her

statements and her [jury] questionnaire are straightforward

and dramatic in terms of her opposition to the death penalty and

when she said she would not vote for the death penalty. So, for

all those reasons, the challenge for cause on [Prospective Juror

No.] 190 is granted.”

We conclude that substantial evidence supports the trial

court’s conclusion that Prospective Juror No. 190’s views

regarding capital punishment would prevent or substantially

impair the performance of her duties as a juror. She indicated

in her questionnaire response that she would not vote for death

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because if it were a mistake it could not be undone, and

expressed concern that human error could result in the wrong

decision. Several times during voir dire, she repeated her

concerns regarding the possibility of a mistake being made and

acknowledged that she might not be fair to the prosecutor at the

penalty phase and that she probably would be pulling for the

defendant. Although she also stated during voir dire that she

thought she could vote for the death penalty and that her views

had evolved since completing the jury questionnaire, the trial

court found her to be “hugely inconsistent” and equivocal, and

stated that it did not believe her when she said that she could

be a fair and impartial juror.

As the high court has observed, “[t]he judgment as to

‘whether a venireman is biased . . . is based upon

determinations of demeanor and credibility that are peculiarly

within a trial judge’s province. Such determinations [are]

entitled to deference . . . on direct review[.]’ ” (Uttecht, supra,

551 U.S. at p. 7.) In Witt, the Supreme Court reaffirmed that

“ ‘[t]he manner of the juror while testifying is oftentimes more

indicative of the real character of his opinion than his words.

That is seen below, but cannot always be spread upon the record.

Care should, therefore, be taken in the reviewing court not to

reverse the ruling below upon a such a question of fact, except

in a clear case.’ ” (Witt, supra, 469 U.S. at p. 428, fn. 9.) Given

Prospective Juror No. 190’s conflicting responses and the court’s

determination that she was equivocal and not credible when she

said she could impose the death penalty, we must defer to the

trial court, which “was in the best position to determine which

of these two conflicting versions represented [the prospective

juror’s] true state of mind.” (People v. Cowan (2010) 50 Cal.4th

401, 441 (Cowan); see Jones, supra, 54 Cal.4th at p. 43 [holding

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that the prospective juror’s “equivocation in response to

questioning requires that we defer to the trial court’s

assessment of her initial and ultimate state of mind”]; People v.

Martinez (2009) 47 Cal.4th 399, 431–432 [when prospective

juror has made statements that support exclusion for cause, the

fact that the juror also made statements that might have

warranted retaining her on the jury does not change the

conclusion that substantial evidence supports the trial court’s

ruling]; People v. Merriman (2014) 60 Cal.4th 1, 55–56

(Merriman) [“Having assessed [the prospective juror’s]

demeanor firsthand during questioning, the trial court could

properly find the questionnaire responses the better reflection

of [the juror’s] true state of mind”].) Accordingly, we conclude

the court acted within its discretion in excusing Prospective

Juror No. 190.

2. Constitutionality of substantial impairment

standard for determining juror bias in capital

cases

Relatedly, defendant contends that the “substantial

impairment” standard used for determining jury bias in capital

cases violates his right to an impartial jury, thereby requiring

reversal of his death judgment. We disagree.

The Sixth Amendment of the United States Constitution

guarantees the right of a defendant in all criminal prosecutions

to a trial by an “impartial jury.” (U.S. Const., 6th Amend.) The

California Constitution independently guarantees the right to

trial by an impartial jury. (Cal. Const., art. I, § 16; see People v.

Thomas (2011) 51 Cal.4th 449, 462 (Thomas).) “The Sixth

Amendment right to an impartial jury and the due process right

to a fundamentally fair trial guarantee to criminal defendants a

trial in which jurors set aside preconceptions, disregard

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extrajudicial influences, and decide guilt or innocence ‘based on

the evidence presented in court.’ ” (Skilling v. United States

(2010) 561 U.S. 358, 438.) “[P]art of the guarantee of a

defendant’s right to an impartial jury is an adequate voir dire to

identify unqualified jurors. [Citations.] ‘Voir dire plays a

critical function in assuring the criminal defendant that his

[constitutional] right to an impartial jury will be honored.

Without an adequate voir dire the trial judge’s responsibility to

remove prospective jurors who will not be able impartially to

follow the court’s instructions and evaluate the evidence cannot

be fulfilled.’ ” (Morgan v. Illinois (1992) 504 U.S. 719, 729–730,

italics omitted.)

“In Witherspoon v. Illinois [ ], the United States Supreme

Court held that a prospective juror cannot be excused for cause

based on his or her views on capital punishment without

violating a defendant’s right to an impartial jury under the

Sixth Amendment, unless, as is pertinent here, the prospective

juror made it ‘unmistakably clear’ that he or she would

‘automatically vote against the imposition of capital punishment

without regard to any evidence that might be developed at the

trial of the case . . . .’ [Citation.] In Wainwright v. Witt [ ],

however, the court revisited Witherspoon and declared that the

proper standard was ‘whether the [prospective] juror’s views

would “prevent or substantially impair the performance of his

duties as a juror in accordance with his instructions and his

oath.” ’ ” (People v. Griffin (2004) 33 Cal.4th 536, 558 (Griffin),

overruled on another ground by People v. Riccardi (2012)

54 Cal.4th 758, 824, fn. 32.)

The high court has on numerous occasions reaffirmed

Witt’s substantial impairment standard in determining jury

bias in capital cases. (E.g., Uttecht, supra, 551 U.S. at p. 9;

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Morgan v. Illinois, supra, 504 U.S. at p. 728; Gray v. Mississippi

(1987) 481 U.S. 648, 658.) In Uttecht, the court reviewed its

jurisprudence in this area, concluding: “These precedents

establish at least four principles of relevance here. First, a

criminal defendant has the right to an impartial jury drawn

from a venire that has not been tilted in favor of capital

punishment by selective prosecutorial challenges for cause.

[Citation.] Second, the State has a strong interest in having

jurors who are able to apply capital punishment within the

framework state law prescribes. [Citation.] Third, to balance

these interests, a juror who is substantially impaired in his or

her ability to impose the death penalty under the state-law

framework can be excused for cause; but if the juror is not

substantially impaired, removal for cause is impermissible.

[Citation.] Fourth, in determining whether the removal of a

potential juror would vindicate the State’s interest without

violating the defendant’s right, the trial court makes a judgment

based in part on the demeanor of the juror, a judgment owed

deference by reviewing courts.” (Uttecht, at p. 9.)

Defendant argues that the substantial impairment

standard is improperly premised on balancing the competing

interests of the State and the defendant, rather than the

intentions of the framers of the United States Constitution. In

making this argument, defendant relies upon several recent

United States Supreme Court decisions addressing the Sixth

Amendment, in which that court emphasized the need to

interpret that provision in light of its historical context. (Alleyne

v. United States (2013) 570 U.S. 99; Blakely v. Washington

(2004) 542 U.S. 296; Crawford v. Washington (2004) 541 U.S.

36; Ring v. Arizona (2002) 536 U.S. 584; Apprendi v. New Jersey

(1999) 530 U.S. 466; Jones v. United States (1999) 526 U.S. 227.)

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As a threshold matter, we are mindful that the high

court’s interpretation of the appropriate standard for

determining jury bias in capital cases under the Sixth

Amendment is binding on this court. (People v. Taylor (2009)

47 Cal.4th 850, 865, fn. 7 [“Because, as defendant recognizes,

this court cannot overrule a decision of the United States

Supreme Court, we do not address his attack on Faretta [v.

California (1975) 422 U.S. 806]”]; Stock v. Plunkett (1919)

181 Cal. 193, 194–195 [decisions of the United States Supreme

Court involving a federal question are binding on this court].)

This is so even if we were to agree with defendant that

subsequent decisions by that court have called into question

whether the substantial impairment standard is consistent with

the Sixth Amendment right to an impartial jury. (See Hohn v.

United States (1998) 524 U.S. 236, 253 [United States Supreme

Court decisions remain binding precedent until high court

“see[s] fit to reconsider them, regardless of whether subsequent

cases have raised doubts about their continued vitality”].)

Moreover, the Supreme Court has reaffirmed the substantial

impairment standard even after issuing the Sixth Amendment

decisions cited by defendant. (White v. Wheeler (2015) 577 U.S.

73, 77 [“ ‘a juror who is substantially impaired in his or her

ability to impose the death penalty under the state-law

framework can be excused for cause’ ”]; Uttecht, supra, 551 U.S.

at p. 9.) Accordingly, Witt’s substantial impairment standard

remains binding on this court, and we are not at liberty to

consider defendant’s federal claim any further.

Nor do we find convincing defendant’s corresponding

contention that the substantial impairment standard violates

his right to trial by an impartial jury under the state

Constitution. “In People v. Ghent (1987) 43 Cal.3d 739, 767, we

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adopted the Witt standard as the test for determining whether

a defendant’s right to an impartial jury under article I, section

16 of the state Constitution was violated by an excusal for cause

based on a prospective juror’s views on capital punishment.”

(Griffin, supra, 33 Cal.4th at p. 558; Thomas, supra, 51 Cal.4th

at p. 462 [same]; People v. Lancaster (2007) 41 Cal.4th 50, 78

[“Under the applicable state and federal constitutional

provisions, prospective jurors may be excused for cause if their

views would prevent or substantially impair the performance of

their duties”].) Defendant offers no persuasive reason for us to

reconsider whether this standard is consistent with the state

Constitution’s impartial jury guarantee.

For the reasons mentioned above, we conclude that the

substantial impairment standard violates neither the federal

nor state Constitutions.

3. Denial of defendant’s motion to dismiss charges

Defendant contends the nearly four-year interval between

the shootings and the filing of an amended felony complaint was

unjustified and prejudiced his ability to defend against the

charges, thereby violating his due process rights under the state

and federal Constitutions. We find no constitutional violation.

a. Background

Johnson and Masubayashi were shot just after midnight

on November 12, 1997, but defendant was not criminally

charged with the resulting offenses until October 2001. Before

trial, defendant moved to dismiss the charges against him,

arguing the passage of time between the shootings and the filing

of charges violated his right to due process because it resulted

in the unavailability of exculpatory witnesses and the loss of

evidence material to his defense. Specifically, defendant

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claimed the asserted delay prejudiced his ability to locate

witnesses and present other evidence to challenge the credibility

of Carrillo and Quiambao. Defendant argued that the

prosecution possessed evidence that he was the shooter based

on Masubayashi’s statements to police shortly after the shooting

occurred, and could have pursued charges at that time.

The trial court reserved ruling on the motion until the

conclusion of the penalty phase. Following trial, the court

denied the motion, determining that the asserted prefiling delay

had not prejudiced defendant. It also found that any “delay” was

caused by defendant’s flight from the crime scene and

subsequent escape to Utah with Carrillo; his procurement of

false identification documents and threatening witnesses who

were involved in the case to get them to say nothing to the police;

Lee and Chung giving false cross-alibis to the police the day

after the shooting; the initial equivocation of Masubayashi

regarding the driver of the Jeep; and legitimate police

investigation in an effort to gather sufficient evidence to prove

the case in court beyond a reasonable doubt, which was made

more difficult because many of the material witnesses were

admitted gang members.

b. Discussion

“The due process clauses of the Fifth and Fourteenth

Amendments to the United States Constitution and article I,

section 15 of the California Constitution protect a defendant

from the prejudicial effects of lengthy, unjustified delay between

the commission of a crime and the defendant’s arrest and

charging.” (Cowan, supra, 50 Cal.4th at p. 430.) A defendant

seeking to dismiss a charge on this ground must first

demonstrate prejudice arising from the delay, “such as by

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showing the loss of a material witness or other missing evidence,

or fading memory caused by the lapse of time.” (People v. Abel

(2012) 53 Cal.4th 891, 908, (Abel).) “ ‘The prosecution may offer

justification for the delay, and the court considering a motion to

dismiss balances the harm to the defendant against the

justification for the delay.’ ” (People v. Nelson (2008) 43 Cal.4th

1242, 1250 (Nelson), quoting People v. Catlin (2001) 26 Cal.4th

81, 107.) However, “[i]f the defendant fails to meet his or her

burden of showing prejudice, there is no need to determine

whether the delay was justified.” (Abel, at p. 909; see id., at

pp. 908–909 [“Prejudice to a defendant from precharging delay

is not presumed”].)

The state and federal constitutional standards regarding

what justifies “delay” differ. (Nelson, supra, 43 Cal.4th at

p. 1251.) However, because the law under the California

Constitution is at least as favorable to defendant as federal law

in this regard, we apply California law to defendant’s claim.

(Ibid.; Abel, supra, 53 Cal.4th at p. 909, fn. 1.)

“[U]nder California law, negligent, as well as purposeful,

delay in bringing charges may, when accompanied by a showing

of prejudice, violate due process.” (Nelson, supra, 43 Cal.4th at

p. 1255.) “[W]hether the delay was negligent or purposeful is

relevant to the balancing process. Purposeful delay to gain an

advantage is totally unjustified, and a relatively weak showing

of prejudice would suffice to tip the scales towards finding a due

process violation. If the delay was merely negligent, a greater

showing of prejudice would be required to establish a due

process violation.” (Id., at p. 1256.) “The justification for the

delay is strong when there is ‘investigative delay, [and] nothing

else.’ ” (Cowan, supra, 50 Cal.4th at p. 431.) “A court should not

second-guess the prosecution’s decision regarding whether

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sufficient evidence exists to warrant bringing charges. ‘The due

process clause does not permit courts to abort criminal

prosecutions simply because they disagree with a prosecutor’s

judgment as to when to seek an indictment. . . . Prosecutors are

under no duty to file charges as soon as probable cause exists

but before they are satisfied they will be able to establish the

suspect’s guilt beyond a reasonable doubt.’ ” (Nelson, at

p. 1256.)

“We review for abuse of discretion a trial court’s ruling on

a motion to dismiss for prejudicial prearrest delay [citation], and

defer to any underlying factual findings if substantial evidence

supports them [citation].” (Cowan, supra, 50 Cal.4th at p. 431.)

Because the trial court deferred ruling on defendant’s motion to

dismiss until after the trial had concluded, we will consider all

evidence that was before the court up to that time. (Ibid.) Thus,

evidence presented at trial may be used to support or reject

defendant’s assertion of unjustified prejudice.

Defendant first claims prejudice from Detective Guy

Reneau’s unavailability at trial due to health problems,

meaning the defense could not examine him about statements

Masubayashi had made. Detective Reneau was the original lead

investigator on the case. He had interviewed Masubayashi at

the hospital on November 12, 1997, and again at Masubayashi’s

home on November 18, 1997. At the hospital, when Reneau first

asked Masubayashi who shot him, Masubayashi said, “I don’t,

I don’t know.” When asked again, Masubayashi said it was

defendant. One week later, Masubayashi told Reneau that he

recalled seeing an arm with defendant’s flannel shirt inside

Masubayashi’s car when he was shot. These interviews were

recorded and made available to the defense. Reneau was

subsequently placed on medical leave and was not among the

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officers who interviewed Masubayashi when he went to the

police in April 2000. Notwithstanding Reneau’s absence from

trial, the defense questioned Masubayashi at the guilt phase

regarding his prior statements to the detective.

We find that defendant has not demonstrated that the

passage of time between the offenses and filing charges

prejudiced him in this respect. Defendant had access to the

taped interviews and transcripts of Reneau’s interviews of

Masubayashi, and he questioned Masubayashi extensively at

trial regarding his prior statements. To the extent

Masubayashi’s interview with Reneau conflicted with

Masubayashi’s testimony, defendant was able to point out the

inconsistencies to the jury without Reneau testifying. To the

extent defendant claims that Reneau could have shed additional

light on Masubayashi’s statements in the taped interviews, his

claim is speculative and unsupported by proof of actual

prejudice. (People v. Alexander (2010) 49 Cal.4th 846, 875

(Alexander).)

Defendant further complains that the passage of time

before charges were brought prevented him from acquiring

evidence to impeach Carrillo’s and Quiambao’s credibility. In

the trial court, defense counsel alleged that Carrillo was

“engaged in various nefarious activities including bank fraud,

money laundering, drug manufacturing and drug sales,” but the

asserted prefiling delay prevented the defense from “locating

and interviewing witnesses who could offer evidence attacking

his credibility by showing his character for dishonesty, the

existence of his bias interest, and motive against

defendant . . . .” Defense counsel alleged that in light of “the

substantial delay in prosecution, the defense is unable to locate

and interview Quiambao because he has changed his life around

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and joined the United States Navy and is geographically

unavailable to the defense.” These speculative claims do not

amount to a showing of actual prejudice. (People v. Jones (2013)

57 Cal.4th 899, 923.) Moreover, Carrillo and Quiambao testified

at trial and defense counsel was able to challenge their

credibility through their prior inconsistent statements, habitual

drug use, and gang involvement.

Defendant argues that the asserted prefiling delay caused

eyewitness Matthew Towne to become unavailable to testify at

the guilt phase of trial. As noted previously, Towne was one of

three bystanders positioned outside of the Gateway Urgent Care

Clinic who saw the shooter. According to defense counsel’s offers

of proof made at the guilt and penalty phases (the circumstances

surrounding which will be described in more detail post), Towne

would have testified that he saw a shooter with a thin build in

the parking lot across the street. At the time of the shooting,

defendant weighed more than 300 pounds; Carrillo was closer to

160 pounds.

We conclude that Towne’s unavailability at the guilt phase

of trial was not caused by any delay in bringing the charges.

Rather, the defense temporarily lost communication with Towne

sometime after charges were filed, for reasons having no

apparent connection to any pretrial delay. A private

investigator for the defense first contacted Towne in February

2004, more than two years after defendant had been charged, at

which time Towne agreed to testify whenever necessary. In

November 2004, Towne moved from Indiana to Nevada, and he

provided the investigator with a current address and telephone

number. The investigator conducted a second recorded

interview with Towne by telephone on January 15, 2005.

However, in April 2005, the investigator was unable to reach

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Towne using the number provided, and he did not regain contact

with Towne until August 2005. At a hearing on the motion to

dismiss, the investigator stated that he chose not to compel

Towne’s attendance at trial through interstate compact because

Towne had always been a cooperative witness and the

investigator thought compulsion was unnecessary and would

only alienate Towne. Thus, even assuming Towne’s testimony

could have served any evidentiary purpose, no connection exists

between Towne’s unavailability and the passage of time before

bringing the charges. (Alexander, supra, 49 Cal.4th at p. 877.)

Defendant next contends the asserted prefiling delay

impaired the defense effort to call witness Perdon to testify that

defendant never made a comment to her in which he bragged

about shooting Johnson. As will be described post, defendant’s

alleged statement to Perdon, which Perdon then relayed to

Masubayashi, was admitted notwithstanding the hearsay rule

as an admission by a party opponent (Evid. Code, § 1220) within

a prior inconsistent statement (id., § 1235). Contemporaneous

police reports documented Perdon’s interview from April 2000,

and Perdon testified that she told police what she knew to be

true at that time and that the incident was fresher in her mind

in 2000 than 2005.

As we have held, prejudice from fading witness memories

due to passage of time is diminished where contemporaneous

police reports exist that may be introduced into evidence or used

to refresh the witness’s recollection. (Scherling v. Superior

Court (1978) 22 Cal.3d 493, 506.) Thus, Perdon’s ability at trial

to independently recall a conversation that took place between

her and defendant was not critical to the prosecution’s case.

Moreover, as will also be described post, the trial court found

that Perdon’s inability to recall whether defendant admitted to

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killing Johnson was evasive and untruthful. Therefore, the trial

court’s ruling suggests that Perdon’s professed inability to recall

defendant’s inflammatory statement was not based on the

passage of time. Furthermore, Perdon’s testimony was “not of

crucial significance” to the prosecution’s case, which rested

primarily on the testimony of Masubayashi, Carrillo, and

Quiambao. (Ibid.)

In sum, defendant’s claims of prejudice are speculative

and inadequately supported. Accordingly, we conclude the trial

court acted within its discretion when it denied defendant’s

motion to dismiss for lack of prejudice. Because we conclude the

trial court properly found defendant was not prejudiced by the

passage of time, there is no need to address defendant’s further

argument challenging the prosecutor’s justifications for any

asserted delay.

4. Exclusion of Towne’s hearsay statements

As noted, eyewitness Towne could not be located at the

time of the guilt phase trial. Defendant contends the trial court

abused its discretion when it excluded Towne’s out-of-court

statements describing the shooter in a manner that was

inconsistent with defendant’s build on the night in question.

Defendant asserts the statements should have been admitted

under the spontaneous statement exception to the hearsay rule.

(Evid. Code, § 1240.) We conclude there was no error.

Officer Terrance Bowers interviewed Towne shortly after

the shooting occurred. Towne told Bowers that he saw a thin

male, approximately five feet and eight inches to six feet tall,

walking through the parking lot away from the driver’s door of

Masubayashi’s car and firing three to four gunshots in an

eastbound direction. Defendant sought to introduce Towne’s

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statements to Bowers as spontaneous statements. After the

prosecution objected on hearsay grounds, the trial court

conducted a hearing to determine the admissibility of the

statements.

At this hearing, Officer Bowers testified that he arrived at

the scene of the shooting approximately five to 10 minutes after

it occurred. There were groups of people standing around,

including Fowler and Towne, who had told other police officers

they had seen something and had been directed to wait at the

scene until officers could speak with them. Upon arrival,

Bowers spent a few minutes assisting Officer Heinzel with the

homicide scene. The officers agreed that Bowers would speak

with Fowler and Towne while Heinzel would speak with other

individuals. Bowers addressed Fowler, and then Towne.

Bowers asked Towne what he had heard and seen. Bowers

recalled that Towne appeared to be “nervous” and “a little

visibly shaken” during the interview, but he could not recall

anything specific that made him think Towne was nervous or

anything else about Towne’s demeanor. In response to further

questioning, Bowers stated that he would not describe Towne as

appearing upset.

The trial court sustained the prosecution’s hearsay

objection to the admission of Towne’s statements. The court

explained, “I don’t think the fact that a witness is nervous

qualifies as a spontaneous declaration . . . where the Code

requires that the statement . . . ‘was made spontaneously while

the declarant was under the stress of excitement caused by such

perception.’ ” The court added, “This seems to be common

nervousness and nothing more. It is almost like any other

witness interview in the sense that just the mere presence of a

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police officer could cause somebody to become nervous. It

doesn’t qualify.”

Evidence Code section 1240 provides: “Evidence of a

statement is not made inadmissible by the hearsay rule if the

statement: [¶] (a) Purports to narrate, describe, or explain an

act, condition, or event perceived by the declarant; and [¶]

(b) Was made spontaneously while the declarant was under the

stress of excitement caused by such perception.” For an out-of-

court statement to fall within the spontaneous statement

exception to the hearsay rule, “ ‘(1) there must be some

occurrence startling enough to produce this nervous excitement

and render the utterance spontaneous and unreflecting; (2) the

utterance must have been before there has been time to contrive

and misrepresent, i.e., while the nervous excitement may be

supposed still to dominate and the reflective powers to be yet in

abeyance; and (3) the utterance must relate to the circumstance

of the occurrence preceding it.’ ” (People v. Poggi (1988)

45 Cal.3d 306, 318 (Poggi).)

“The crucial element in determining whether a declaration

is sufficiently reliable to be admissible under this exception to

the hearsay rule is . . . the mental state of the speaker.” (People

v. Farmer (1989) 47 Cal.3d 888, 903 (Farmer), abrogated on

other grounds by People v. Waidla (2000) 22 Cal.4th 690.)

“A number of factors may inform the court’s inquiry as to

whether the statement in question was made while the

declarant was still under the stress and excitement of the

startling event and before there was ‘time to contrive and

misrepresent[,]’ ” such as “the passage of time between the

startling event and the statement, whether the declarant

blurted out the statement or made it in response to questioning,

the declarant’s emotional state and physical condition at the

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time of making the statement, and whether the content of the

statement suggested an opportunity for reflection and

fabrication.” (Merriman, supra, 60 Cal.4th at p. 64.)

“Whether the requirements of the spontaneous statement

exception are satisfied in any given case is, in general, largely a

question of fact.” (Poggi, supra, 45 Cal.3d at p. 318.) We review

the trial court’s ruling concerning whether a hearsay statement

falls within the spontaneous statement exception for abuse of

discretion. (People v. Lynch (2010) 50 Cal.4th 693, 752 (Lynch),

abrogated on other grounds by People v. McKinnon (2011)

52 Cal.4th 610.) “ ‘[T]he discretion of the trial court is at its

broadest’ when it determines whether an utterance was made

while the declarant was still in a state of nervous excitement.”

(Thomas, supra, 51 Cal.4th at p. 496.)

We have “rarely held” that answers to extensive

questioning by police officers constitute spontaneous

statements. (Farmer, supra, 47 Cal.3d at p. 904.) In such cases,

we have emphasized that the declarant was the victim of the

crime and made the identifying remarks while under the stress

of excitement caused by experiencing the crime. (Ibid.; see also

People v. Morrison (2004) 34 Cal.4th 698, 719 (Morrison).)

Indeed, we held that the trial court abused its discretion when

it admitted as a spontaneous utterance the statements made by

the victim of an attack when her description of the crime was

comprehensive, made in response to questioning, and there was

no evidence that the victim “was excited or frightened when she

spoke, or that her physical condition at the time of her

statements precluded deliberation.” (Lynch, supra, 50 Cal.4th

at p. 754.) We also have cautioned against finding a

spontaneous statement when the declarant was “merely an

uninjured witness whose excitement might wane — and would

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thus be in a position to fabricate answers — through the

sobering interrogation of an investigator.” (Farmer, at p. 904.)

We conclude that the trial court did not abuse its

discretion when it ruled that Towne’s statements to Officer

Bowers did not meet the requirements of the spontaneous

statement exception because the statements were not made

while Towne was under the stress of excitement caused by the

shooting. As noted earlier, Bowers arrived at the scene

approximately five to 10 minutes after the shooting. At that

time, Towne, Fowler, and other individuals were standing

around in groups waiting to be interviewed by police officers.

Although the extent of Towne’s prior communication with other

police officers is unclear, it is uncontroverted that he and Fowler

had told other officers that they had seen something and were

instructed to wait for further questioning. After Bowers spent a

few minutes assisting Officer Heinzel with the murder scene, he

spoke with Fowler separately, and then with Towne. Towne

made the statements in response to Bower’s questions regarding

what he had seen and heard. Bowers testified that Towne

appeared nervous and a little visibly shaken, but not necessarily

upset, and he could not recall anything specific that made him

describe Towne as nervous. Given that the discretion of the trial

court “ ‘is at its broadest’ ” when it determines the declarant’s

mental state (Thomas, supra, 51 Cal.4th at p. 496), on this

record we cannot conclude that the trial court abused its

discretion when it excluded Towne’s statements as inadmissible

hearsay.5

5

The cases cited by defendant do not suggest a different

result, as they either involve statements made by a victim

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5. Exclusion of Carrillo’s hearsay statements

Defendant asserts the trial court abused its discretion

when it excluded as inadmissible hearsay an out-of-court

statement purportedly made by Carrillo to his sister-in-law,

Alana Swift Eagle. We find no error.

Eagle was called as a defense witness. Defense counsel

sought to introduce statements that Carrillo made to Eagle in

2001 when Eagle saw Carrillo on a jail bus. Specifically, Eagle

asked Carrillo if he had killed Johnson, and Carrillo responded

that “everything points to T-Strong” and Carrillo was “going to

run with that.” The prosecution objected on hearsay grounds.

(Morrison, supra, 34 Cal.4th at p. 719 [victim identified

defendants minutes after she was shot multiple times]; Thomas,

supra, 51 Cal.4th at p. 496 [victim “identified defendant minutes

after he was attacked when he still was bleeding and ‘obviously

distressed’ ”]) or an uninjured eyewitness whose demeanor left

no doubt that the person was still reacting to the event (People

v. Blacksher (2011) 52 Cal.4th 769, 810 [declarant was

“hysterical” when she spoke with police officer]; People v. Brown

(2003) 31 Cal.4th 518, 541 [trial court’s finding that the

declarant was still reacting to the events when he made his

statement to his sister-in-law was supported by evidence that

“he could not stop his body from shaking nor stem the flow of

tears”]). Furthermore, in each of these cases we upheld the trial

court’s ruling on the statements in question under an abuse of

discretion standard. Even if the circumstances in which the

statements were made bear certain similarities to the

circumstances in which Towne made his statements, it is not

incongruous to determine that the trial court here also acted

within its discretion when it excluded Towne’s statements. (See

People v. Liggins (2020) 53 Cal.App.5th 55, 63–64 [“Faced with

two competing interpretations of the record, the standard of

review decides the issue. On appeal, we cannot second-guess

the trial court’s assessment of the evidence in determining [the

declarant’s] state of mind”].)

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Defense counsel argued that Carrillo’s statement was

admissible as a prior inconsistent statement because he had

testified during the prosecution’s case-in-chief that defendant

shot Johnson. The trial court excluded the statement for a

variety of reasons, ruling that it constituted inadmissible

hearsay, it was too ambiguous to be relevant, and its prejudicial

effect outweighed its probative value.

“A hearsay objection to an out-of-court statement may not

be overruled simply by identifying a nonhearsay purpose for

admitting the statement. The trial court must also find that the

nonhearsay purpose is relevant to an issue in dispute.” (People

v. Armendariz (1984) 37 Cal.3d 573, 585.) “Relevant evidence is

evidence ‘having any tendency in reason to prove or disprove any

disputed fact that is of consequence to the determination of the

action.’ ” (People v. Jablonski (2006) 37 Cal.4th 774, 821.)

“Under Evidence Code section 352, a trial court may exclude

otherwise relevant evidence when its probative value is

substantially outweighed by concerns of undue prejudice,

confusion, or consumption of time. ‘Evidence is substantially

more prejudicial than probative [citation] if, broadly stated, it

poses an intolerable “risk to the fairness of the proceedings or

the reliability of the outcome [citation].” ’ ” (People v. Riggs

(2008) 44 Cal.4th 248, 290 (Riggs).)

“The proponent of proffered testimony has the burden of

establishing its relevance, and if the testimony is comprised of

hearsay, the foundational requirements for its admissibility

under an exception to the hearsay rule. [Citations.] Evidence

is properly excluded when the proponent fails to make an

adequate offer of proof regarding the relevance or admissibility

of the evidence.” (Morrison, supra, 34 Cal.4th at p. 724.)

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Notwithstanding the general rule that hearsay is

inadmissible for its truth, “[a] statement by a witness that is

inconsistent with his or her trial testimony is admissible to

establish the truth of the matter asserted in the statement

under the conditions set forth in Evidence Code sections 1235

and 770. The ‘fundamental requirement’ of section 1235 is that

the statement in fact be inconsistent with the witness’s trial

testimony.” (People v. Johnson (1992) 3 Cal.4th 1183, 1219,

fn. omitted (Johnson).)

We review the trial court’s rulings regarding the

admissibility of the evidence for an abuse of discretion. (Riggs,

supra, 44 Cal.4th at p. 290.) A trial court’s decision to admit or

exclude evidence “ ‘ “will not be disturbed unless there is a

showing that the trial court acted in an arbitrary, capricious, or

absurd manner resulting in a miscarriage of justice.” ’ ” (People

v. Nieves (2021) 11 Cal.5th 404, 445; People v. Rodriguez (1999)

20 Cal.4th 1, 9–10.) “This standard of review affords

considerable deference to the trial court provided that the court

acted in accordance with the governing rules of law. We

presume that the court properly applied the law and acted

within its discretion unless the appellant affirmatively shows

otherwise.” (Mejia v. City of Los Angeles (2007) 156 Cal.App.4th

151, 158.)

Under this deferential standard of review, we conclude

that the trial court acted within its discretion when it excluded

Carrillo’s statement. At trial, Carrillo testified that defendant

shot Johnson. He also gave detailed testimony regarding his

involvement in the events leading to the shooting. Defendant

asserts that Carrillo’s alleged statement to Eagle that

“everything pointed to T-Strong” being the shooter and he was

“going to run with that” allowed for an inference that Carrillo

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himself shot Johnson, conflicting with his testimony. But the

statement’s ambiguity accommodates a more plausible

interpretation, and one consistent with Carrillo’s testimony, as

another identification of defendant as Johnson’s assailant.

(People v. Najera (2006) 138 Cal.App.4th 212, 218–219; see also

People v. Guillen (2014) 227 Cal.App.4th 934, 1024 [trial court

properly excluded ambiguous statements as having little

probative value, contrary to defendant’s claim that the

statements implied a third party authorized the attack]; People

v. Frye (1985) 166 Cal.App.3d 941, 951.) “Facing ‘two competing

interpretations of the record, the standard of review decides the

issue.’ [Citation.] Since the evidence can reasonably be

interpreted either way, we cannot say the trial court abused its

discretion to rule as it did.” (People v. Roberts (2021)

65 Cal.App.5th 469, 477.)

Moreover, “[t]he statement’s ambiguity, and the weakness

of the inference favorable to [defendant], not only diminished

the statement’s relevance, but enhanced the risk its admission

would have misled the jury.” (Najera, supra, 138 Cal.App.4th at

pp. 218–219.) As such, we conclude that “[i]n excluding the

statement, the trial court did not exercise its discretion ‘ “in an

arbitrary, capricious or patently absurd manner that resulted in

a manifest miscarriage of justice.” ’ ” (Id., at p. 219.)

6. Admission of defendant’s statement to Perdon

Defendant contends the trial court abused its discretion

when it permitted Masubayashi to testify regarding Perdon’s

statement to him that defendant had bragged about killing

Johnson, notwithstanding the hearsay character of this

testimony. Again, we find no error.

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Shortly before trial, District Attorney Investigator Gary

Hendricks interviewed Masubayashi. During the interview,

Masubayashi told Hendricks that in 2000, just before

Masubayashi went to the Anaheim Police Department, Perdon

advised him that defendant had told her, “I came in my pants

when I saw that nigger flop.” Defendant was referring to

Johnson when he purportedly made this statement. Neither

Masubayashi nor Perdon had disclosed this statement in any

prior interview.

The trial court allowed the prosecution to ask Perdon

about defendant’s alleged statement to her. (See Evid. Code,

§ 1220 [hearsay exception for statements made by a party-

opponent].) On direct examination, the prosecution asked

Perdon if defendant ever spoke with her about a shooting that

took place in 1997, or any shooting, or if he ever made the

statement described above. Each time, Perdon responded,

“I can’t remember.” Perdon testified that she may have seen

defendant at Quiambao’s house on a few occasions, but could not

remember telling Masubayashi about her conversations with

defendant.

The trial court found there was a reasonable basis in the

record to conclude that Perdon’s testimony regarding

defendant’s alleged statement to her was evasive and untruthful

such that her prior statements would be considered

inconsistent. It noted that Perdon said she did not recall

whether defendant made this statement, but on other occasions

she seemed to say that certain things were true. The court

explained that Perdon’s inability to recall whether such an

inflammatory statement was made, considered in light of her

ability to remember certain other things from that time period,

was indicative of her being evasive and untruthful.

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Masubayashi subsequently testified to Perdon’s recounting of

defendant’s statement.

As noted, the “ ‘fundamental requirement’ ” of Evidence

Code section 1235 is that a witness’s prior statement must

actually be inconsistent with his or her trial testimony.

(Johnson, supra, 3 Cal.4th at p. 1219.) “ ‘ “Inconsistency in

effect, rather than contradiction in express terms, is the test for

admitting a witness’[s] prior statement . . . .” ’ ” (Cowan, supra,

50 Cal.4th at p. 462.) “Thus, for example, ‘ “[w]hen a witness’s

claim of lack of memory amounts to deliberate evasion,

inconsistency is implied. [Citation.] As long as there is a

reasonable basis in the record for concluding that the witness’s

‘I don’t remember’ statements are evasive and untruthful,

admission of his or her prior statements is proper.” ’ ” (People v.

Homick (2012) 55 Cal.4th 816, 859; see also Johnson, at

pp. 1219–1220.)

In People v. Ledesma (2006) 39 Cal.4th 641, 712, for

example, we held that the trial court properly admitted the

witness’s prior statements to a police officer under the hearsay

exception for prior inconsistent statements because the record

provided a reasonable basis to conclude her subsequent “I don’t

remember” testimony was evasive and untruthful. We noted

that the witness had been the defendant’s friend, admitted she

was reluctant to testify, had failed to appear at a previous

hearing, and claimed that even reading her prior testimony and

listening to a taped recording of her police interview did not

refresh her recollection. (Ibid.; see also People v. Bryant, Smith

and Wheeler (2014) 60 Cal.4th 335, 415 [upholding trial court’s

ruling that witness’s claimed failure of recollection was actually

deliberate evasion tantamount to denial when record showed

that witness was able to recall defendant’s statements during a

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police interview conducted 10 years after the murder, but

claimed memory loss when he testified two and a half years

later].)

We conclude there was a sufficient basis for the trial court

to have concluded that Perdon’s forgetfulness at trial was

deliberately evasive, such that the court did not abuse its

discretion in finding the challenged statement admissible

notwithstanding the general hearsay bar. As observed earlier,

Perdon and defendant’s brother were friends, and she associated

with other Pinoy Real gang members. She recalled spending

time at Quiambao’s house in 1999 and testified that she may

have seen defendant there a few times and had conversations

with him, but she could not remember if defendant had made

the statement in question in which he bragged about shooting

Johnson. The trial court, which had the benefit of observing

Perdon’s demeanor, could find that Perdon was deliberately

evasive when she claimed not to recall whether defendant made

such an inflammatory statement, while at the same time she

could recollect other details associated with that time period.

Accordingly, we find no error in the admission of Perdon’s

statement relaying defendant’s confession. (See People v.

Anderson (2018) 5 Cal.5th 372, 403 [multiple hearsay consisting

of prior inconsistent statement and admission of defendant is

admissible].)

7. Failure to instruct concerning confessions

Defendant contends the trial court erred by not

instructing the jury with CALJIC No. 2.70, the cautionary

instruction defining confessions and admissions. He claims the

court’s failure to instruct the jury to view with caution

defendant’s purported statement to Perdon in which he bragged

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about shooting Johnson was prejudicial because there was

evidence the statement was fabricated. We find that any error

was harmless.

At the time defendant was tried, the trial court had a duty

to instruct the jury with CALJIC No. 2.70 on its own motion if

evidence of a defendant’s oral confession or admission was

presented.6 (People v. Stankewitz (1990) 51 Cal.3d 72, 94; see

People v. Diaz (2015) 60 Cal.4th 1176, 1190 (Diaz) [as of 2015,

CALJIC No. 2.70 no longer required to be given sua sponte].)

The trial court did not do so. However, the trial court did

instruct the jury with CALJIC No. 2.71, the cautionary

instruction defining admissions, which directed the jury to view

with caution any statement of a defendant not made in court

which tends to prove his guilt.7

6

CALJIC No. 2.70 then read: “A confession is a statement

made by a defendant in which [he] [she] has acknowledged [his]

[her] guilt of the crime[s] for which [he] [she] is on trial. In order

to constitute a confession, the statement must acknowledge

participation in the crime[s] as well as the required [criminal

intent] [state of mind]. [¶] An admission is a statement made

by [a] [the] defendant which does not by itself acknowledge [his]

[her] guilt of the crime[s] for which the defendant is on trial, but

which statement tends to prove [his] [her] guilt when considered

with the rest of the evidence. [¶] You are the exclusive judges

as to whether the defendant made a confession [or an

admission], and if so, whether that statement is true in whole or

in part. [¶] [Evidence of [an oral confession] [or] [an oral

admission] of the defendant not made in court should be viewed

with caution.]”

7

The trial court instructed the jury as follows: “An

admission is a statement made by a defendant which does not

by itself acknowledge his guilt of the crimes for which the

defendant is on trial, but which statement tends to prove his

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“We have long recognized that th[e] cautionary instruction

[defining admissions] is sufficiently broad to cover all of a

defendant’s out-of-court statements.” (People v. Clark (2011)

52 Cal.4th 856, 957.) Indeed, as the Attorney General points

out, the only difference between the instructions was that a

confession would have been defined as a statement

acknowledging guilt, whereas an admission is a statement

tending to establish guilt when considered with other evidence.

As such, a jury would reasonably interpret “confessions” to also

be admissions and apply the cautionary instruction provided.

Moreover, it bears repeating that the purpose of CALJIC

No. 2.70, like CALJIC No. 2.71, is “to aid the jury in evaluating

whether the defendant actually made the statement.” (Diaz,

supra, 60 Cal.4th at p. 1184.) That purpose is served when the

instruction advises the jurors, as it did here, that “[t]he jurors

are the exclusive judges as to whether the defendant made an

admission, and if so, whether that statement is true in whole or

in part,” and that “[e]vidence of an oral admission of the

defendant not made in court should be viewed with caution.”

Furthermore, the court also instructed the jury with CALJIC

Nos. 2.20 (believability of a witness), 2.21.1 (discrepancies in

testimony), and 2.22 (weighing conflicting testimony). These

additional instructions also functioned to inform the jury how to

evaluate the credibility of Masubayashi’s testimony regarding

defendant’s statement. Accordingly, defendant fails to show

guilt when considered with the rest of the evidence. You are the

exclusive judges as to whether the defendant made an

admission, and if so, whether that statement is true in whole or

in part. [¶] Evidence of an oral admission of a defendant not

made in court should be viewed with caution.”

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prejudice resulting from the trial court’s failure to give CALJIC

No. 2.70.

8. Use of 1996 version of CALJIC No. 8.71

Defendant asserts the trial court’s use of the 1996 version

of CALJIC No. 8.71, the instruction regarding reasonable doubt

concerning the degree of murder, impermissibly skewed the

jury’s deliberations toward first degree murder and lowered the

prosecution’s burden of proof. We conclude there was no error.

The jury was instructed concerning first degree murder

(on theories of premeditation and lying in wait) and second

degree murder (with malice aforethought but without

premeditation). The jurors also were instructed that if they

found defendant guilty of murder, they must determine the

degree. Using the then-current version of CALJIC No. 8.71 (6th

ed. 1996), the trial court further instructed the jury: “If you are

convinced beyond a reasonable doubt and unanimously agree

that the crime of murder has been committed by a defendant,

but you unanimously agree that you have a reasonable doubt

whether the murder was of the first or of the second degree, you

must give the defendant the benefit of that doubt and return a

verdict fixing the murder as of the second degree as well as a

verdict of not guilty of murder in the first degree.” (Italics

added.)

The jury was additionally instructed with CALJIC

No. 17.10, which provided: “If you are not satisfied beyond a

reasonable doubt that a defendant is guilty of the crime of first

degree murder as charged in count I, and you unanimously so

find, you may convict him of any lesser crime provided you are

satisfied beyond a reasonable doubt that he is guilty of the lesser

crime.” The trial court also instructed the jury with CALJIC

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No. 17.40: “The People and the defendant are entitled to the

individual opinion of each juror. Each of you must consider the

evidence for the purpose of reaching a verdict if you can do so.

Each of you must decide the case for yourself, but should do so

only after discussing the evidence and instructions with the

other jurors. Do not hesitate to change an opinion if you are

convinced it is wrong, however, do not decide any question in a

particular way because a majority of the jurors, or any of them,

favor that decision. Do not decide any issue in this case by the

flip of a coin, or by any other chance determination.” The jury

was further given CALJIC No. 8.74: “Before you may return a

verdict in this case, you must agree unanimously not only as to

whether the defendant is guilty or not guilty; but also if you

should find him guilty of an unlawful killing, you must agree

unanimously as to whether he is guilty of murder of the first

degree or murder of the second degree.” Additionally, the court

directed the jury to read the instructions as a whole and in light

of all the others, and the jury was generally instructed on

reasonable doubt.

We review a claim of instructional error de novo. (People

v. Cole (2004) 33 Cal.4th 1158, 1210.) “When considering a

claim of instructional error, we view the challenged instruction

in the context of the instructions as a whole and the trial record

to determine whether there is a reasonable likelihood the jury

applied the instruction in an impermissible manner.” (People v.

Houston (2012) 54 Cal.4th 1186, 1229.)

In People v. Moore (2011) 51 Cal.4th 386, 411, we advised

that “the better practice is not to use the 1996 revised versions

of CALJIC Nos. 8.71 and 8.72 [relating to manslaughter], as the

instructions carry at least some potential for confusing jurors

about the role of their individual judgments in deciding between

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first and second degree murder, and between murder and

manslaughter.” We declined to decide whether the giving of

CALJIC No. 17.40, addressing the jurors’ duty to render an

individual decision, adequately dispelled the possibility of

confusion, ruling instead that any error in giving the 1996

revised versions of CALJIC Nos. 8.71 and 8.72 was harmless

beyond a reasonable doubt. (Moore, at p. 412.)

In People v. Salazar (2016) 63 Cal.4th 214, 246 (Salazar),

we clarified that Moore did not stand for the proposition that the

1996 revised versions of CALJIC Nos. 8.71 and 8.72 were

erroneous; rather, we simply observed in Moore that “the

instructions created ‘at least some potential for confusing jurors

about the role of their individual judgments in deciding between’

the greater and lesser offenses.” (Salazar, at p. 247.) Salazar

confirmed the “familiar proposition that ‘ “[t]he correctness of

jury instructions is to be determined from the entire charge of

the court, not from a consideration of parts of an instruction or

from a particular instruction.” ’ ” (Salazar, at p. 248.) We

subsequently concluded that the 1996 revised versions of

CALJIC Nos. 8.71 and 8.72 were not erroneous when considered

with the rest of the charge to the jury. (Salazar, at p. 248; People

v. Rivera (2019) 7 Cal.5th 306, 326 (Rivera) [same].)

In Salazar, the jury was instructed with CALJIC Nos. 8.74

(unanimous agreement as to offense — first or second degree

murder or manslaughter), 17.10 (conviction of lesser included or

lesser related offense — implied acquittal), and 17.40

(individual opinion required — duty to deliberate), in addition

to CALJIC Nos. 8.71 and 8.72. (Salazar, supra, 63 Cal.4th at

p. 247.) We held that a reasonable juror, considering the

instructions as a whole, would have understood the phrase

“ ‘unanimously agree that you have a reasonable doubt’ ” to

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“reflect the principle stated in CALJIC No. 17.10: ‘the court

cannot accept a guilty verdict on a lesser crime unless you have

unanimously found the defendant not guilty of the charged

crime.’ ” (Salazar, at pp. 247–248.) We also rejected the very

interpretation advanced by defendant here — that the 1996

revised version of CALJIC No. 8.71 lowered the prosecution’s

burden of proof by making first degree murder the default

verdict. (Salazar, at p. 247.) We pointed out that the 1996

versions of CALJIC Nos. 8.71 and 8.72, “[i]f anything, [ ] skewed

the deliberations in [a defendant’s] favor. They could reasonably

be understood to tell the jurors that if they all agreed there was

reasonable doubt as to the degree of the crime, because some

jurors were not convinced, then [a] defendant was entitled to the

benefit of the doubt and a verdict of the lesser offense. No logical

reading of the instructions leads to a compelled verdict of first

degree murder.” (Salazar, at p. 247.) We also emphasized that

the defendant’s interpretation “assumes the jury would

disregard not only CALJIC Nos. 8.74 and 17.10, but also the

explicit directions of CALJIC No. 17.40 emphasizing each juror’s

duty to decide the case as an individual.” (Salazar, at p. 248.)

More recently, we held that the use of CALJIC No. 8.71 was not

erroneous, when considered in the context of the instructions as

a whole, where the jury was also instructed with CALJIC

Nos. 8.74 and 17.40. (Rivera, supra, 7 Cal.5th at p. 326.)

As in Salazar, the jury here was also instructed with

CALJIC Nos. 8.74, 17.10, and 17.40. And, like in Rivera, there

is no evidence that the jury was confused by the instruction.

(Rivera, supra, 7 Cal.5th at p. 327.) Consistent with our

precedent, we conclude that the trial court’s use of the 1996

revised version of CALJIC No. 8.71 was not erroneous when

considered with the rest of the charge to the jury and “given the

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lack of any indication that the jury was confused or misled into

returning the greater verdict of first degree murder despite a

juror having a reasonable doubt of such a finding.” (Rivera, at

p. 327.) We therefore reject defendant’s argument for reversal

on this basis.

9. Sufficiency of evidence for lying-in-wait special

circumstance

Defendant argues there was insufficient evidence to

support the jury’s special circumstance finding that he killed

Johnson while lying in wait. We disagree.

We analyze a sufficiency-of-the-evidence challenge to a

special circumstance finding under the same standard applied

to a conviction: “Reviewed in the light most favorable to the

judgment, the record must contain reasonable and credible

evidence of solid value, ‘such that a reasonable trier of fact could

find the defendant guilty beyond a reasonable doubt.’ ” (People

v. Stevens (2007) 41 Cal.4th 182, 201 (Stevens).)

At the time of defendant’s capital crime, the special

circumstance required that the murder be committed “while

lying in wait.” (§ 190.2, former subd. (a)(15), italics added; see

People v. Streeter (2012) 54 Cal.4th 205, 246 (Streeter).) Also at

that time, “ ‘ “the elements of the lying-in-wait special

circumstance required an intentional killing, committed under

circumstances that included a physical concealment or

concealment of purpose; a substantial period of watching and

waiting for an opportune time to act; and, immediately

thereafter, a surprise attack on an unsuspecting victim from a

position of advantage.” ’ ” (People v. Suarez (2020) 10 Cal.5th

116, 171.) “ ‘ “ ‘The element of concealment is satisfied by a

showing “ ‘that a defendant’s true intent and purpose were

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concealed by his actions or conduct. It is not required that he be

literally concealed from view before he attacks the victim.’ ” ’ ”

(People v. Combs (2004) 34 Cal.4th 821, 853 (Combs).) The

period of watchful waiting “ ‘ “need not continue for any

particular length ‘ “of time provided that its duration is such as

to show a state of mind equivalent to premeditation and

deliberation.” ’ ” (Suarez, at p. 171; see also Stevens, supra,

41 Cal.4th at p. 202 [“The purpose of the watching and waiting

element is to distinguish those cases in which a defendant acts

insidiously from those in which he acts out of rash impulse”].)

We conclude that the evidence amply supports the lying-

in-wait special circumstance finding. To carry out their plan to

murder Johnson and Masubayashi, defendant, Lee, Chung, and

Carrillo devised a scheme in which defendant and Carrillo

would lure Johnson and Masubayashi from their apartment

under the pretext of going out to a strip club or to shoot pool. As

defendant sat in the backseat of Masubayashi’s car, he was

armed with a gun, waiting for an opportune time to kill

Masubayashi and Johnson. Continuing the ruse of going out,

defendant directed Masubayashi to stop at Chung’s Jeep

Cherokee, where Lee and Chung were hiding and waiting,

claiming that he wanted to drive as well. After Johnson exited

Masubayashi’s car to let defendant out of the back seat,

defendant surprised Johnson by shooting him in the head.

Thus, the evidence is sufficient to establish an intentional

killing, committed from a position of advantage immediately

after a period of concealment and watchful waiting. (See, e.g.,

Combs, supra, 34 Cal.4th at p. 853 [sufficient evidence of lying

in wait when the defendant devised a ruse about needing a ride

to a campsite, sat behind the victim in the car, waited until the

car was in a more deserted location, and then strangled her].)

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10. Constitutionality of lying-in-wait special-

circumstance instruction

Defendant asserts the lying-in-wait special-circumstance

instruction violated his constitutional rights to due process, to a

fundamentally fair trial, and to a reliable verdict and penalty

determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal.

Const., art. I, §§ 7, 15.) Specifically, defendant argues that

CALJIC No. 8.81.15 is unconstitutional because it does not

distinguish lying-in-wait murder from premeditated and

deliberate murder, and because the instruction does not require

a substantial period of watchful waiting or require that the

concealed purpose must be a deadly one. We have previously

rejected these challenges. (People v. Cage (2015) 62 Cal.4th 256,

281 (Cage) [“As we have held before, the special circumstance of

lying in wait instruction is constitutional”]; Streeter, supra,

54 Cal.4th at pp. 251–252 [same]; People v. Bonilla (2007)

41 Cal.4th 313, 332–333 [same].) We find no persuasive reason

to deviate from our prior decisions in the present case.

11. Constitutionality of lying-in-wait special

circumstance

Defendant further contends the lying-in-wait special

circumstance itself is unconstitutional because it fails to

adequately narrow the class of persons eligible for the death

penalty. We have repeatedly rejected these claims (see, e.g.,

People v. Delgado (2017) 2 Cal.5th 544, 576 (Delgado) [lying-in-

wait special circumstance does not apply to all murders and is

not constitutionally infirm]; Cage, supra, 62 Cal.4th at p. 281

[same]; Streeter, supra, 54 Cal.4th at pp. 252–253 [same], and

we continue to do so here for the same reasons.

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12. Cumulative effect of asserted guilt phase errors

Defendant contends his convictions should be reversed

because the cumulative prejudice of the alleged errors during

the guilt phase violated his due process right to a fundamentally

fair and reliable trial under the California and federal

Constitutions. We have identified only one error occurring in

the guilt phase of defendant’s trial — the trial court’s failure to

provide the jury with the cautionary instruction defining

confessions — and have found it harmless. There is no other

error to accumulate.

B. Penalty Phase and Sentencing Issues

1. Refusal to allow Towne to testify at the penalty

phase

Defendant contends the trial court erred when it

prohibited the defense from calling Towne as a witness during

the penalty phase, resulting in a violation of his federal and

state constitutional rights to due process, to a penalty

determination based on all available mitigating evidence, and to

a fair and reliable determination of penalty. We agree that the

exclusion of Towne’s testimony at the penalty phase was state

law error, but find the error harmless beyond a reasonable doubt

because there was no reasonable possibility that it affected the

penalty verdict.

As noted in connection with defendant’s argument

concerning pretrial delay, the defense intended to call Towne to

testify at the guilt phase of defendant’s trial, but their efforts to

locate him were unsuccessful.8 Following the guilt phase

8

We are not asked to decide whether defendant was

prejudiced by defense counsel’s failure to secure Towne’s

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verdicts, however, the defense successfully contacted Towne.

The defense sought to have Towne testify at the penalty phase

regarding his observations of the shooter, under the theory that

this evidence could go to lingering doubt. When the court asked

what Towne would be testifying to, recalling that perhaps he

would say the shooter was short, defense counsel answered:

“Well, not so much short but he was medium build. His

testimony is pretty consistent with Fowler’s testimony so it

would be duplicating pretty much what Fowler said. And then

I have Officer [Bowers] . . . available to testify in case there

might be a discrepancy. I don’t have the police report with me

right now, but I’m certain that he would be in a position to say

the shooter was not a 300-pound Samoan.”

The prosecution argued that Towne’s testimony was

inadmissible at the penalty phase because it was merely an

attempt to relitigate the issue of defendant’s guilt. The trial

court ruled that Towne’s testimony constituted new evidence

regarding the issue of guilt and excluded it on that basis.

Defendant raised the issue again in his motion for new trial,

which the court denied.9

appearance at the guilt phase trial, and we offer no opinion on

that question.

9

Defendant’s motion for new trial included an affidavit

from Towne averring, for the first time, that the shooter

“definitely had a thin build” and was wearing a cap on his head.

However, these added specifics were not before the trial court

when it ruled on the admissibility of Towne’s testimony at the

penalty phase, and we therefore do not consider them in our

determination of whether the court erred. (See People v. Avila

(2004) 117 Cal.App.4th 771, 780, fn. 4 [“We review the

correctness of the trial court’s ruling at the time it was made

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“[A] capital defendant has no federal constitutional right

to have the jury consider lingering doubt in choosing the

appropriate penalty . . . .” (People v. Hamilton (2009) 45 Cal.4th

863, 911; accord, People v. Gay (2008) 42 Cal.4th 1195, 1220

(Gay).) Admissibility of lingering doubt evidence is instead

authorized by statute. (Gay, at p. 1220.) Pursuant to section

190.3, “[i]n the proceedings on the question of penalty, evidence

may be presented by both the people and the defendant as to

any matter relevant to aggravation, mitigation, and sentence

including, but not limited to, the nature and circumstances of

the present offense . . . .” In determining the penalty, the trier

of fact shall consider “[t]he circumstances of the crime of which

the defendant was convicted in the present proceeding and the

existence of any special circumstances found to be true pursuant

to Section 190.1.” (§ 190.3, factor (a).)

In People v. Terry (1964) 61 Cal.2d 137, 146 (Terry), we

held that evidence that may create a lingering doubt regarding

the defendant’s guilt is admissible as evidence in mitigation at

and not by reference to evidence produced at a later date.

[Citation.] Since the [evidence was] proffered in support of

defendant’s new trial motion, [it is] not relevant to an

assessment of the propriety of rulings that were made during

trial”]; People v. Allen (2008) 44 Cal.4th 843, 872, fn. 19 [“To

preserve a contention that evidence should have been admitted,

a party’s offer of proof must make clear the substance of the

proffered testimony”]; In re Zeth S. (2003) 31 Cal.4th 396, 405

[“It has long been the general rule and understanding that ‘an

appeal reviews the correctness of a judgment as of the time of

its rendition, upon a record of matters which were before the

trial court for its consideration’ ”].) Defendant does not

challenge the court’s denial of his motion for new trial, to which

Towne’s affidavit was attached.

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a penalty phase retrial in a capital case.10 We explained:

“Indeed, the nature of the jury’s function in fixing punishment

underscores the importance of permitting to the defendant the

opportunity of presenting his claim of innocence. The jury’s

task, like the historian’s, must be to discover and evaluate

events that have faded into the past, and no human mind can

perform that function with certainty. Judges and juries must

time and again reach decisions that are not free from doubt; only

the most fatuous would claim the adjudication of guilt to be

infallible. The lingering doubts of jurors in the guilt phase may

well cast their shadows into the penalty phase and in some

measure affect the nature of the punishment. Even were it

desirable to insulate the psychological reactions of the jurors as

to each trial, no legal dictum could compel such division, and, in

any event, no statute designs it.” (Ibid.)

We reaffirmed Terry’s holding in Gay, supra, 42 Cal.4th

1195. There, we held that the trial court erred when it excluded

as irrelevant evidence proffered at a penalty phase retrial of a

codefendant’s out-of-court admissions that he was the sole

shooter, and the corroborating testimony of four eyewitnesses.

(Id., at pp. 1216, 1223.) We reiterated that although

“incompetent or irrelevant [evidence] is not admissible at the

penalty phase,” this does not “call[] into question what ‘ “is

certainly the rule that if the evidence would have been

admissible on the trial of the guilt issue, it is admissible on the

trial aimed at fixing the penalty.” ’ ” (Id., at pp. 1220–1221.) We

10

Terry involved an examination of section 190.1, a

predecessor statute to section 190.3, factor (a), which also

permitted “the presentation of evidence as to ‘the circumstances

surrounding the crime . . . and of any facts in . . . mitigation of

the penalty.’ ” (Terry, supra, 61 Cal.2d at p. 146.)

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emphasized: “ ‘[T]hat the defendant cannot relitigate the issue

of guilt or innocence . . . does not preclude the admission of

evidence relating to the circumstances of the crime or the

aggravating or mitigating circumstances, including evidence

which may mitigate a defendant’s culpability by showing that

he actually did not kill the victim. The test for admissibility is

not whether the evidence tends to prove the defendant did not

commit the crime, but, whether it relates to the circumstances

of the crime or the aggravating or mitigating circumstances.’ ”

(Id., at p. 1223, quoting State v. Teague (Tenn. 1995) 897 S.W.2d

248, 252.)

The Attorney General tries to distinguish Gay and Terry

on the ground that those cases involved penalty retrials. He

maintains that “evidence is not admissible at the penalty phase

for the purpose of creating reasonable doubt,” with the exception

of a retrial of the penalty phase. The Attorney General

misunderstands the nature of Towne’s proffered testimony as

well as the significance of a penalty retrial in this context.

First, Towne’s proffered statement regarding the build of

the shooter constituted not reasonable doubt evidence, but

lingering doubt evidence, which is admissible under section

190.3, factor (a). Allowing the jury to consider lingering doubt

evidence does not amount to an improper attempt to “relitigate

the . . . conviction.” (Terry, supra, 61 Cal.2d at p. 145.) Because

of differing standards of proof at the two trial phases, a jury

determination that the defendant is guilty beyond a reasonable

doubt does not preclude a jury from entertaining lingering or

residual doubt as to the nature or extent of the defendant’s

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guilt.11 (Gay, supra, 42 Cal.4th at p. 1229, fn. 1 (conc. opn. of

Werdegar, J.).)

Second, although both Gay and Terry involved penalty

retrials, it is clear that lingering doubt evidence is relevant

under section 190.3, “[w]hether in the penalty phase of a unitary

trial or in a penalty retrial.” (Gay, supra, 42 Cal.4th at p. 1229

(conc. opn. of Werdegar, J.); see ibid. [“Our holding today,

although made in the context of a penalty retrial, logically

applies as well to an ordinary penalty phase. What is relevant

in one is equally relevant in the other”].) People v. Blair (2005)

36 Cal.4th 686 is illustrative. There, the prosecution offered the

testimony of the defendant’s former chemistry teacher at the

penalty phase of a unitary trial to prove that the defendant was

familiar with the dangerous properties of cyanide, which was

used to kill the victim. (Id., at p. 749.) We held the evidence

was relevant to show “that defendant could have been the

individual who placed the cyanide in the gin bottle given to [the

victim and her friend], and that defendant was aware that

inserting cyanide into the gin bottle could cause their deaths.”

(Ibid.) We found the evidence properly admitted under section

190.3, factor (a) as a circumstance of the crime for which the

defendant was convicted or of the special circumstance which

the jury found true. In so concluding, we rejected the

defendant’s argument “that we have placed limitations on

defendants who seek to introduce, at the penalty phase,

evidence relevant to issues of guilt or innocence, and that

parallel limitations should be imposed on prosecution evidence.”

(Blair, at p. 749.) We observed that a defendant is not precluded

11

To the extent language in In re Gay (1998) 19 Cal.4th 771,

814, suggests otherwise, it is disapproved.

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from introducing “any and all evidence relevant to guilt or

innocence at the penalty phase. Indeed, in many circumstances

evidence related to guilt or innocence, and properly designed to

raise a lingering doubt, will be relevant and admissible.” (Id.,

at p. 750, citing cases.)

It is true that “in an ordinary penalty phase, tried before

the same jury that recently heard and decided guilt, the defense

is far less likely to offer lingering doubt evidence, and the court

might legitimately exclude some offered evidence as cumulative

and wasteful of court time.” (Gay, supra, 42 Cal.4th at p. 1229

(conc. opn. of Werdegar, J.); Terry, supra, 61 Cal.2d at p. 146 [“If

the same jury determines both guilt and penalty, the

introduction of evidence as to defendant’s asserted innocence is

unnecessary on the penalty phase because the jury will have

heard that evidence in the guilt phase”].) But “this difference in

the two procedural circumstances does not affect the relevance

of lingering doubt evidence.” (Gay, at p. 1229 (conc. opn. of

Werdegar, J.).)

Towne’s testimony would have been relevant and

admissible at the guilt phase, but he could not be located. And

because he did not testify at the guilt phase, his testimony at

the penalty phase cannot be deemed cumulative or a waste of

judicial resources.12 In short, Towne’s testimony that the

12

The record in this case does not suggest that the delay in

presenting Towne’s testimony was a result of deliberate

gamesmanship or sandbagging by the defense. We therefore

have no cause to comment on that issue, except to note that the

trial court retains discretion to sanction either party for

discovery violations, including by imposing the sanction of

precluding witness testimony. (See People v. Hajek and Vo

(2014) 58 Cal.4th 1144, 1233.)

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shooter had a thin or medium build, which was inconsistent

with defendant’s build but similar to Carrillo’s build, was

admissible at the penalty trial under section 190.3 as a

circumstance of the offense. The trial court abused its discretion

when it excluded this evidence at the penalty trial.

Nevertheless, we conclude the trial court’s error was

harmless under the circumstances. “Error in admitting or

excluding evidence at the penalty phase of a capital trial is

reversible if there is a reasonable possibility it affected the

verdict.” (Gay, supra, 42 Cal.4th at p. 1223.) In other words, to

determine whether an error is harmless under this standard, we

must decide whether it is “ ‘unimportant in relation to

everything else the jury considered on the issue in question, as

revealed in the record.’ ” (People v. Neal (2003) 31 Cal.4th 63,

86.)

The dissenting opinion speculates that Towne’s testimony

may well have played an important role in the penalty phase by

providing a description of the shooter consistent with Fowler’s

testimony that more closely matched the build of Carrillo than

that of defendant. (Dis. opn. of Liu, J., post, at pp. 1, 3, 5.) But

based on our review of the trial record and even taking into

account defendant’s posttrial filings relating to Towne’s

proffered testimony, we can assume that Towne would have

testified that for a few seconds, and from across a dark parking

lot in the middle of the night, he saw a shooter of a thin or

medium build with black skin wearing a cap. And given defense

counsel’s proffer that Towne’s testimony would be “pretty

consistent with Fowler’s testimony so it would be duplicating

pretty much what Fowler said,” we can also take note that

Fowler’s testimony was replete with references to the poorly lit

conditions and difficulty in discerning any of the shooter’s

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distinguishing features, including how big he was. As Fowler

put it, he saw a “basic shadow.” We do not find this to be the

sort of eyewitness testimony that would have “appreciably

weakened the case in aggravation.” (Dis. opn. of Liu, J., post, at

p. 7.)

It also bears noting that the dissent places heavy reliance

only on certain details extracted from defendant’s motion for

new trial. (Dis. opn. of Liu, J., post, at pp. 1, 3, 5.) The dissent

discounts, for example, the defense investigator’s affidavit

attached to that motion declaring that Towne described the color

of the shooter’s skin as black, a description inconsistent with

Carrillo’s skin color and more closely matching that of

defendant. Thus, although Towne’s and Fowler’s testimony

regarding the shooter’s build may have stood in contrast to that

of Rodriguez, the third eyewitness at the Gateway Clinic, who

testified that the shooter was heavyset, Towne’s statement that

the skin color of the shooter was black, which lined up with

Rodriguez’s initial statement to police officers and Fowler’s

subsequent interview with defense investigators, would have

pointed away from Carrillo and toward defendant.

In any event, this evidence pales in comparison to the

evidence at the guilt phase, properly considered at the penalty

phase as circumstances of the case, establishing defendant’s

guilt. To recap: Masubayashi and Carrillo, both of whom knew

defendant and were with him when the shooting took place,

identified defendant as the shooter. Masubayashi testified that

he had observed defendant carrying a gun on the night in

question, saw defendant exit Masubayashi’s car, shoot and kill

Johnson, and then reach into the car and shoot Masubayashi.

Carrillo testified that he was with defendant when defendant

communicated his plan to kill Johnson and Masubayashi, he

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accompanied defendant to Johnson and Masubayashi’s

apartment with the intent to lure them out and kill them, he

saw defendant tuck a gun in his waistband before they set out

for the evening, and he watched defendant shoot Johnson and

Masubayashi. Sia Her also testified that defendant told her he

was “strapped” that night. Masubayashi, Carrillo, and

defendant testified that defendant was carrying a .357 magnum

handgun, which was one of two possible guns identified as firing

the bullet that killed Johnson. Quiambao testified that, after

the shooting took place, Carrillo returned to his apartment and

told him that defendant shot Johnson. And when defendant

arrived at Quiambao’s house, he did not respond to Quiambao’s

question asking why he shot Johnson and Masubayashi.

Instead, when pressed, defendant told Quiambao to “shut the

hell up.” Defendant also admitted to Quiambao that he threw

the gun away. The dissenting opinion ignores the weight of the

testimony from Carrillo and Masubayashi, both of whom the

jury found credible, and downplays the inculpatory testimony of

Quiambao and Her.

Moreover, beyond the circumstances of the crime, which

involved the murder of Johnson by means of lying in wait and

the attempted murder of Masubayashi, the prosecution

presented penalty phase evidence of defendant’s sexual

misconduct and two prior robberies and the testimony from

several of Johnson’s family members and friends regarding the

pain and suffering caused by Johnson’s death.

Significantly, defendant’s penalty phase evidence focused

not on lingering doubt, but on defendant’s family history,

background and character, brain activity, and adjustment to

prison as factors in mitigation. Defense counsel’s closing

argument referenced lingering doubt only briefly, conjecturing

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that perhaps Carrillo would admit on his death bed that he was

the shooter, but he did not mention Fowler’s testimony or any

other details suggesting that defendant was not the shooter.

Thus, to the extent that Towne’s testimony, if admitted, might

have gone to the issue of lingering doubt, defense counsel’s

failure to raise the issue even given Fowler’s admitted

testimony — which was essentially the same as Towne’s

excluded testimony — serves to further underscore the

inconsequential nature of the error. Moreover, the trial court

properly instructed the jury on lingering doubt, and the jury

reached a verdict only a few hours after beginning their

deliberations.

In light of these circumstances, we conclude there is no

reasonable possibility that the additional testimony defendant

could have elicited from Towne would have affected the jury’s

verdict at the penalty phase.

2. Instruction on deliberations with alternate juror

substituted at penalty phase

Following the guilt phase verdicts, the trial court excused

one of the seated jurors, who was replaced with an alternate

juror for the penalty phase. Defendant claims the trial court’s

special instruction requiring the penalty phase jury to accept

the guilt phase verdicts and findings violated his state and

federal constitutional rights to a fair trial, due process, and a

reliable determination of penalty.

The trial court instructed the penalty phase jury that “[f]or

the purposes of this penalty phase of the trial, the alternate

juror must accept as having been proved beyond a reasonable

doubt those guilty verdicts and true findings rendered by the

jury in the guilt phase of this trial.” The court also instructed

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the jury that “if any individual juror has a lingering or residual

doubt about whether the defendant killed the victim, he or she

must consider it as a mitigating factor and assign to it the

weight you deem appropriate.”

We have on numerous occasions considered and rejected

the argument that this special instruction is constitutionally

defective. (See, e.g., People v. Cain (1995) 10 Cal.4th 1, 64–66

(Cain); id., at p. 67 [“An instruction that allows the jurors to vote

against the death penalty phase if they have residual doubt as

to guilt or truth of the special circumstances is sufficient even

though it requires the [alternate] jurors to accept the guilt phase

verdicts”].) Most recently, in People v. Miles (2020) 9 Cal.5th

513, 604, we stated: “We have made clear that ‘[a]s a matter of

law, the penalty phase jury must conclusively accept [the guilt

phase jury’s] findings’ as to the defendant’s guilt and the truth

of the special circumstance allegations beyond a reasonable

doubt. [Citation.] We have also rejected the suggestion ‘that

anytime a juror is replaced at the penalty phase, the jury should

engage in guilt phase deliberations anew.’ [Citation.] And, most

notably, in People v. Cain[ ], we found no constitutional defect in

the trial court instructing the jury, including a new juror who

replaced an excused juror, that it must accept the guilt phase

verdicts and findings at the penalty phase.” We also reiterated

in Miles that an instruction regarding lingering doubt as a

mitigating factor sufficiently apprises alternate jurors that they

may vote against the death penalty if they doubt the defendant’s

guilt. (Miles, at p. 604, citing People v. Kaurish (1990) 52 Cal.3d

648, 708; see also Cain, at p. 67; People v. Nguyen (2015)

61 Cal.4th 1015, 1089 [“There is no reason to think that the

jurors would have interpreted the instructions to permit only

the original jurors, and not the former alternate jurors, to

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consider lingering doubt”].) Defendant offers no reasoned basis

for us to reconsider our previously expressed view.

3. Admission of juvenile criminal history

Defendant asserts the jury’s consideration of his juvenile

criminal history violated his federal constitutional rights under

the Eighth and Fourteenth Amendments. He contends that

recent United States Supreme Court decisions applying the

Eighth Amendment to juveniles undercuts the use of juvenile

criminal activity as an aggravating factor in determining

whether to impose a death sentence. We conclude otherwise.

During the penalty phase, the prosecution presented

evidence that when defendant was 13 years old, he exposed

himself to two female students and touched their buttocks and

breasts. The prosecution also presented evidence that

defendant robbed and assaulted Thomas Kinsey when

defendant was age 16.

Juvenile criminal activity involving the use or attempted

use of force or violence is admissible as aggravating evidence

under section 190.3, factor (b). (People v. Taylor (2010)

48 Cal.4th 574, 652.) We have repeatedly held that the

admission of such evidence is constitutional. (E.g., People v. Lee

(2011) 51 Cal.4th 620, 649; People v. Raley (1992) 2 Cal.4th 870,

909.)

In People v. Bramit (2009) 46 Cal.4th 1221, 1239 (Bramit),

we examined and rejected the defendant’s claim that, in light of

the United States Supreme Court’s decision in Roper v.

Simmons (2005) 543 U.S. 551, the admission of juvenile criminal

activity violates the Eighth and Fourteenth Amendments. We

concluded the defendant’s reliance on Roper was “badly

misplaced,” explaining that Roper “holds that the execution of

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individuals who were under 18 years of age at the time of their

capital crimes is prohibited by the Eighth and Fourteenth

Amendments. It says nothing about the propriety of permitting

a capital jury, trying an adult, to consider evidence of violent

offenses committed when the defendant was a juvenile. An

Eighth Amendment analysis hinges upon whether there is a

national consensus in this country against a particular

punishment. [Citations.] Defendant’s challenge here is to the

admissibility of evidence, not the imposition of punishment.”

(Bramit, at p. 1239; see also Taylor, supra, 48 Cal.4th at

pp. 653–654 [same].)

We have further held that three additional high court

decisions — Hall v. Florida (2014) 572 U.S. 701, Miller v.

Alabama (2012) 567 U.S. 460, and Graham v. Florida (2010) 560

U.S. 48 — do not alter our conclusion that evidence of juvenile

misconduct may be considered on the question of what

punishment a defendant may receive for crimes committed as

an adult. (Rivera, supra, 7 Cal.5th at pp. 342–343; People v.

Rices (2017) 4 Cal.5th 49, 87.) In Rices, we observed that “[t]he

high court has never suggested that evidence of juvenile

misconduct may not be admitted in deciding the proper

punishment for crimes an adult commits” and, furthermore,

“[n]o legal principle prohibits admitting evidence of [an adult’s]

violent juvenile conduct on the question of what the punishment

for those crimes should be.” (Rices, at p. 87.) Consistent with

our prior precedent, we conclude the jury’s consideration of

defendant’s juvenile criminal activity as an aggravating factor

under section 190.3, factor (b), was permissible.

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4. Admission of evidence of unadjudicated robbery

Defendant maintains that the trial court committed

prejudicial error when it failed to instruct the jury on aiding and

abetting liability after the prosecution presented evidence that

defendant robbed Kinsey as an aider and abettor. We conclude

that any error was harmless.

At the penalty phase, the prosecution sought to introduce

evidence under section 190.3, factor (b) that defendant and three

other individuals robbed Kinsey in 1991. Section 190.3,

factor (b) allows the jury to consider “[t]he presence or absence

of criminal activity by the defendant which involved the use or

attempted use of force or violence or the express or implied

threat to use force or violence.” The trial court held a Phillips

hearing (People v. Phillips (1985) 41 Cal.3d 29) to make a

preliminary determination concerning whether there was

substantial evidence to prove that defendant robbed Kinsey.

The court subsequently ruled that the evidence fit within section

190.3, factor (b) as criminal activity involving the use or

attempted use of force or violence and would be admissible

under that provision. Defendant did not object to the trial

court’s ruling.

The prosecution subsequently presented the following

evidence regarding defendant’s participation in the robbery of

Kinsey: Defendant and three other individuals approached

Kinsey when he was walking in Hollywood. Defendant moved

toward Kinsey, commenting on Kinsey’s briefcase. One of the

other individuals grabbed Kinsey’s briefcase and fled.

Defendant then pushed Kinsey and demanded money from him.

As defendant approached Kinsey, he said, “I’m going to fuck you

up.” Defendant also pulled his fist back as if to punch Kinsey.

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A patrolling officer saw three men, including defendant,

cornering and pushing Kinsey. The officer approached the

group, ordered everyone on the ground, and interviewed the

individuals to determine what had occurred. Kinsey told the

officer that defendant had asked Kinsey for more money, pushed

Kinsey, and pulled his arm back as if to punch Kinsey.

The trial court instructed the jury that in determining

which penalty to impose, if applicable, it shall consider “the

presence or absence of criminal activity by the defendant, other

than the crimes for which the defendant has been tried in the

present proceedings, which involved the use or attempted use of

force or violence or the express or implied threat to use force or

violence.” The court further instructed the jury that evidence

was introduced for the purpose of showing that defendant

committed a second degree robbery against Kinsey, and that in

order for a juror to consider the robbery of Kinsey as an

aggravating circumstance, the juror must find beyond a

reasonable doubt that defendant did in fact commit the criminal

activity. The court also instructed the jury on the elements of

robbery. It further instructed: “For the purpose of determining

whether a person is guilty as an aider or abettor to robbery, the

commission of the crime of robbery is not confined to a fixed

place or a limited period of time, and may continue[] so long as

the stolen property is being carried away to a place of temporary

safety.”

Defendant contends the evidence supported a finding of

his involvement in Kinsey’s robbery as an aider and abettor

only, and therefore the trial court should have provided CALJIC

Nos. 3.00 and 3.01, which describe the essential elements of

aider and abettor liability. Defendant maintains that without

such an instruction, the prosecution could proceed only on a

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direct perpetrator theory of liability for the robbery of Kinsey,

and the evidence was insufficient as a matter of law to show that

defendant robbed Kinsey as a direct perpetrator.

We conclude that defendant has forfeited his claim on

appeal by failing to object at trial to admission of other crimes

evidence on the ground it did not meet section 190.3, factor (b)’s

criteria. (See, e.g., Delgado, supra, 2 Cal.5th at p. 580; People v.

Livingston (2012) 53 Cal.4th 1145, 1175 (Livingston); People v.

Lewis and Oliver (2006) 39 Cal.4th 970, 1052; People v.

Carpenter (1999) 21 Cal.4th 1016, 1059–1060.) In Livingston,

the defendant contended that certain evidence in aggravation

should not have been admitted under section 190.3, factor (b)

because the evidence was insufficient for a jury to conclude that

he was guilty of a crime involving violence. We held that this

argument was not cognizable on appeal because defendant did

not object to the evidence on this basis at trial. (Livingston, at

p. 1175.) This was so, we explained, because the evidence was

admitted at the penalty phase of a capital trial as aggravating

evidence, not to support a conviction for that crime. (Ibid.)

“ ‘Even if defendant need do nothing at trial to preserve an

appellate claim that evidence supporting his conviction is legally

insufficient, a different rule is appropriate for evidence

presented at the penalty phase of a capital trial. There the

ultimate issue is the appropriate punishment for the capital

crime, and evidence on that issue may include one or more other

discrete criminal incidents. [Citation.] If the accused thinks

evidence on any such discrete crime is too insubstantial for jury

consideration, he should be obliged in general terms to object, or

to move to exclude or strike the evidence, on that ground.’ ”

(Ibid.)

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We recently reaffirmed this principle in Delgado,

explaining that “because the penalty decision is normative and

the prosecution need not prove that any given aggravating

circumstance exists in order to obtain a death judgment

[citation], [a] defendant may not challenge the verdict on the

ground that the prosecutor failed to prove each of the elements

of an uncharged offense beyond a reasonable doubt. His claim

of error lies in the erroneous admission of such evidence; that

claim must be preserved by a timely objection in the trial court.”

(Delgado, supra, 2 Cal.5th at p. 581.)

Here, as in Livingston and Delgado, defendant’s challenge

on appeal is directed to the sufficiency of evidence admitted at

the penalty phase of a capital trial as aggravating evidence.

(Livingston, supra, 53 Cal.4th at p. 1175; Delgado, supra,

2 Cal.5th at p. 581.) Defendant “ ‘should be obliged in general

terms to object, or to move to exclude or strike the evidence, on

that ground.’ ” (Livingston, at p. 1175.) Defendant’s failure to

raise such an objection at trial constitutes a forfeiture.

Although defendant has forfeited his claim, we also reject

it on the merits. “Although specific instruction on the elements

of other crimes introduced in aggravation under section 190.3,

factor (b) is generally not required” (People v. Gutierrez (2002)

28 Cal.4th 1083, 1154 (Gutierrez)), “ ‘when such instructions are

given, they should be accurate and complete’ ” (People v. Prieto

(2003) 30 Cal.4th 226, 268 (Prieto)). We find the trial court’s

failure to instruct the jury on aider and abettor liability as it

related to the robbery of Kinsey was harmless beyond a

reasonable doubt because, despite any misinstruction, the

evidence overwhelmingly showed that defendant committed an

act involving the use or threat of use of force or violence under

section 190.3, factor (b).

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Gutierrez and Prieto are instructive in this respect. In

Gutierrez, the prosecution sought to introduce as a crime in

aggravation under section 190.3, factor (b), that defendant

resisted, by the use of force or violence, an executive officer in

the performance of that officer’s duty in violation of section 69.

(Gutierrez, supra, 28 Cal.4th at pp. 1153–1154.) Although a

violation of section 69 requires a specific intent to interfere with

the executive officer’s performance of duty, the trial court

provided an instruction on general criminal intent. (Gutierrez,

at p. 1154.) Nevertheless, we found the error was “clearly

harmless beyond a reasonable doubt” because “[t]here was

evidence that defendant harbored the requisite specific intent.”

(Ibid.) Similarly, in Prieto, the prosecution alleged in

aggravation that the defendant possessed deadly weapons while

in jail in violation of section 4574. (Prieto, supra, 30 Cal.4th at

p. 269.) The defendant asserted the trial court’s instruction on

section 4574 was deficient because it did not require the jury to

find that he knew of the weapon’s presence and its nature as a

deadly weapon. (Ibid.) The defendant admitted he possessed

the weapons — two half-foot-long shanks with sharpened ends

hidden under the defendant’s bunk — for protection, and offered

no evidence suggesting that he did not know of the weapons’

presence in his cell and their nature as deadly weapons. (Ibid.)

We held that any instructional error was harmless beyond a

reasonable doubt. (Ibid.)

In the present case, even assuming a deficiency in the

instructions, the evidence pointed unerringly toward

defendant’s culpability in the commission of the robbery of

Kinsey as an aider and abettor. Defendant approached Kinsey

with three other individuals, one of whom grabbed Kinsey’s

briefcase and fled. Defendant pushed Kinsey, threatened to

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“fuck [Kinsey] up,” pulled back his fist as if he was going to

punch Kinsey, and demanded more money from him. Given the

overwhelming evidence, there is no reasonable possibility that

the trial court’s failure to instruct on aider and abettor liability

would have affected the jury’s penalty deliberations. Defendant

does not contend that the evidence would be insufficient to

support a finding that he committed the robbery of Kinsey as an

aider and abettor, nor does he claim that the criminal activity

did not involve the use of force or violence or the express threat

to use violence. (See Cain, supra, 10 Cal.4th at p. 73 [proper

focus for consideration of prior violent crimes in aggravation is

on the facts of the defendant’s past actions as they reflect on his

character, not the labels assigned to the past crimes;

accordingly, the instructions were not essential to the jury’s

consideration of crimes in aggravation under section 190.3,

factor (b)].) And that evidence notwithstanding, we see no

reasonable possibility that defendant would have obtained a

more favorable outcome if the aider and abettor instruction had

been given, in light of the great weight of the aggravating

evidence against him.

5. Challenges to California’s death penalty law

Defendant challenges the constitutionality of numerous

features of California’s capital sentencing scheme. We have

repeatedly considered and rejected such challenges, and

defendant offers no persuasive reason for us to reconsider the

following conclusions:

“Section 190.3, factor (a), under which the jury may

consider the ‘circumstances of the crime’ as a factor in

aggravation or mitigation of penalty, is not so broad as to make

imposition of a death sentence arbitrary and capricious.”

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(People v. Souza (2012) 54 Cal.4th 90, 141–142; People v. Brown

(2004) 33 Cal.4th 382, 401.)

“The death penalty scheme is not unconstitutional for

failing to require . . . findings beyond a reasonable doubt as to

the existence of aggravating factors other than section 190.3,

factors (b) and (c), that aggravating factors outweigh mitigating

factors, or that death is the appropriate penalty.” (People v.

Leon (2020) 8 Cal.5th 831, 853.) The United States Supreme

Court’s decisions in Cunningham v. California (2007) 549 U.S.

270, Blakely v. Washington, supra, 542 U.S. 296, Ring v.

Arizona, supra, 536 U.S. 584, and Apprendi v. New Jersey,

supra, 530 U.S. 466 do not alter these conclusions. (Bramit,

supra, 46 Cal.4th at p. 1250 & fn. 22.)

“Because the decision whether to sentence a defendant to

death is essentially a normative one, we have held the

prosecution bears no burden of persuasion in the penalty phase.”

(People v. Virgil (2011) 51 Cal.4th 1210, 1289.) “Nor does the

federal or state Constitution require an instruction explaining

that there is no burden of proof in the penalty phase.” (Ibid.)

“The death penalty law is not unconstitutional because it

does not require unanimous jury findings, beyond a reasonable

doubt, that particular aggravating factors (other than prior

criminality) exist.” (People v. Amezcua and Flores (2019)

6 Cal.5th 886, 928; People v. McDaniel (2021) 12 Cal.5th 97,

142–148.)

“CALJIC No. 8.88 is not constitutionally flawed or

impermissibly vague because (1) it uses the phrase ‘so

substantial’ to compare aggravating factors with the mitigating

factors [citations]; (2) it uses the term ‘warrants’ instead of

appropriate’ [citations]; (3) it fails to instruct the jury that a life

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sentence is mandatory if the aggravating factors do not

outweigh the mitigating factors [citations]; [and] (4) it fails to

instruct that a verdict of life in prison could be returned even if

the circumstances in aggravation outweighed those in

mitigation.” (People v. Rogers (2009) 46 Cal.4th 1136, 1179.)

“[T]he death penalty law is constitutional though it . . .

does not require that the jury be instructed on the presumption

of life.” (People v. Jones (2003) 29 Cal.4th 1229, 1267, italics

omitted.)

“The trial court has no obligation to delete from CALJIC

No. 8.85 inapplicable mitigating [or aggravating] factors.”

(People v. Cook (2006) 39 Cal.4th 566, 618.)

“[T]here is no Eighth Amendment requirement that our

death penalty procedures provide for intercase proportionality

review.” (People v. Navarro (2021) 12 Cal.5th 285, 346; People

v. Snow (2003) 30 Cal.4th 43, 126.)

“The capital sentencing scheme does not violate equal

protection by denying certain procedural protections to capital

defendants that are available to noncapital defendants.” (People

v. Scully (2021) 11 Cal.5th 542, 612; People v. Molano (2019)

7 Cal.5th 620, 678.)

“California’s death penalty does not violate international

law or international norms of decency.” (People v. Frederickson

(2020) 8 Cal.5th 963, 1027; People v. Powell (2018) 5 Cal.5th 921,

965.)

Because defendant has not demonstrated any basis for

this court to find error in California’s death penalty laws, there

is no reason to conclude that the cumulative impact of the

alleged deficiencies in California’s death penalty scheme

renders it constitutionally infirm. (People v. Williams (2013)

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58 Cal.4th 197, 296; People v. Garcia (2011) 52 Cal.4th 706,

756.)

6. Cumulative effect of asserted guilt and penalty

phase errors

Defendant contends that the penalty judgment must be

reversed due to the cumulative prejudice of the alleged errors

committed during the guilt and penalty phases in violation of

his due process right to a fundamentally fair and reliable trial

under the California and federal Constitutions. We have found

one harmless error in the guilt phase: the trial court’s failure to

instruct the jury on confessions in addition to admissions. We

have found or assumed two errors, but no prejudice, in the

penalty phase: the trial court’s exclusion of Towne’s testimony

as evidence of lingering doubt under section 190.3, and the

court’s failure to instruct on aider and abettor liability after the

prosecution presented evidence pursuant to section 190.3,

factor (b) that defendant committed second degree robbery as an

aider and abettor. We conclude that the cumulative effect of

these errors does not warrant reversal of the penalty judgment.

(People v. Johnson (2019) 8 Cal.5th 475, 525; People v. Panah

(2005) 35 Cal.4th 395, 479–480.)

C. Newly Conferred Discretion Concerning the

Firearm and Serious Felony Enhancements

Defendant contends that certain ameliorative legislation,

enacted after he was sentenced, applies retroactively to his case

and that a limited remand is appropriate to allow the trial court

to consider its newly conferred sentencing discretion. We agree.

On January 1, 2018, Senate Bill No. 620 (2017–2018 Reg.

Sess.) became effective. (Stats. 2017, ch. 682, §§ 1, 2.) The bill

vested courts with authority to exercise their discretion to strike

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or dismiss firearm enhancements imposed under section

12022.5 (see § 12022.5, subd. (c)). Prior to the enactment of

Senate Bill No. 620, these enhancements were mandatory.

(§ 12022.5, former subd. (c).)

On January 1, 2019, Senate Bill No. 1393 (2017–2018 Reg.

Sess.) became effective. (See Stats. 2018, ch. 1013, §§ 1, 2.) This

legislation amended sections 667, subdivision (a) and 1385,

subdivision (b) to permit a trial court to exercise discretion to

strike or dismiss prior serious felony enhancements “in the

furtherance of justice.” (See Stats. 2018, ch. 1013, §§ 1, 2.) At

the time defendant was sentenced, the trial court was required

under section 667, subdivision (a), to enhance the sentence

imposed for conviction of a serious felony by five years for each

qualifying prior serious felony conviction.

The Attorney General agrees that Senate Bill No. 620

(2017–2018 Reg. Sess.) and Senate Bill No. 1393 (2017–2018

Reg. Sess.) apply retroactively to defendant’s case, but

maintains that a remand is unnecessary because

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