# People v. Young

> California Supreme Court · January 31, 2005 · 24 Cal. Rptr. 3d 112

URL: https://www.frixlaw.com/law-library/cases/9786104

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. ROBERT YOUNG, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** January 31, 2005
- **Citations:** 24 Cal. Rptr. 3d 112; 34 Cal. 4th 1149; 2005 Daily Journal DAR 1209; 105 P.3d 487; 2005 Cal. Daily Op. Serv. 856; 2005 Cal. LEXIS 1017
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Brown
- **Judges:** Brown
- **Cited by:** 1,270 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9786104

## How later opinions describe it (automated extraction)

- finding that the trial court has no duty to instruct the jury on the term “ ‘life without parole’ ” and citing People v. Hawthorne, 4 Cal.4th 43, 75-76, 14 Cal.Rptr.2d 133, 841 P.2d 118, 139 (Cal.1992) (finding that trial court did not have to define “death” as such was not a …
- holding that the claim that post-conviction counsel was "burdened by a conflict of interest” was not cognizable because there is no constitutional right to effective assistance of counsel in post-conviction proceedings
- holding that the “[resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact”
- holding an appellate court may evaluate witness testimony where the “the testimony is physically impossible or inherently improbable”

## Opinion text

Opinion
BROWN, J.
This is an automatic appeal (Pen. Code, § 1239, subd. (b)) 1 from a judgment of death under the 1978 death penalty law. Following a jury trial, defendant Robert Young was convicted of the first degree murder of Terry Rivers (§ 187, subd. (a), count 1); the robbery (§ 211, count 2) and attempted murder (§§ 187, 664, count 3) of Manzine Miller; the attempted robbery of Melva Fite (§§ 211, 664, count 4); the first degree murder of Glen Frazier (§ 187, subd. (a), count 5); the attempted murder of Luther Thomas (§§ 187, 664, count 6); the robbery of Gerald Livingston (§ 211, count 7); and the first degree murder of Sylvester Davis (§ 187, subd. (a), count 8). The jury also found true the robbery-murder special-circumstance allegations as to counts 1 and 5 (§ 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A)); the multiple-murder special-circumstance allegation (§ 190.2, subd. (a)(3)); the personal use of a firearm allegation as to all counts (§§ 1203.06, 12202.5); and the great bodily injury allegations as to counts 2 and 3 (§§ 1203.075, 12022.7). The jury further found the robbery-murder special-circumstance (§ 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A)) and burglary-murder special-circumstance (§ 190.2, former subd. (a)(17)(i), now subd. (a)(17)(G)) allegations as to count 8 not true.
In the penalty phase, the jury returned a verdict of death. After denying defendant’s motion for a new trial and reduction of the penalty (§ 190.4), the trial court imposed the death penalty for the first degree murder convictions as to counts 1 and 5, followed by an indeterminate term of 25 years to life with possibility of parole for the murder conviction as to count 8. For the remaining counts and special circumstance allegations, the court imposed determinate terms totaling 45 years but ordered those sentences stayed.
*1166 We affirm the judgment in its entirety.
I. Facts
A. Guilt Phase
1. The Attempted Murder and Robbery of Manzine Miller and the Murder of Terry Rivers
In the early morning hours of January 30, 1989, Manzine Miller and Terry Rivers were selling rock cocaine in front of Miller’s house on East 24th Street in Oakland (Miller’s house). Around 2:30 a.m., Miller observed a black-over-green Ford turn onto Highland Avenue from East 24th Street and park. Moments later, defendant and another man walked from Highland Avenue and approached Miller. Defendant told Miller he wanted to purchase $50 worth of rock cocaine. Miller indicated to defendant that he could sell him the drug, but would have to get it from his supplier. Defendant told his companion to watch the street and then followed Miller along a pathway through a nearby vacant lot known as the “swamp,” towards Miller’s supplier. As they walked, defendant pulled out a gun, told Miller to get on his knees, and robbed him of the rock cocaine he had in his pocket. As Miller begged defendant not to shoot him, defendant shot him above his right hip. Miller survived the gunshot wound and watched defendant walk back towards his (Miller’s) house. Miller heard three gunshots shortly after defendant left. When the police arrived at Miller’s house, they found the body of Terry Rivers lying across the front entryway.
2. Murder of Glen Frazier and Attempted Robbery of Melva Fite
Sometime after 2:00 a.m. on January 30, 1989, on 89th Avenue in Oakland, defendant exited a vehicle and approached Melva Fite and Glen Frazier as they talked with Frazier’s cousin, Ricky Smith. Defendant suddenly began shooting at Smith. Smith ran to a house, and Fite and Frazier ran up 89th Avenue. Defendant followed Fite and Frazier in his vehicle. Defendant’s cousin, Patrick Jackson, was riding in the front passenger seat. When defendant caught up with Fite and Frazier near the intersection of 90th Avenue and Cherry Street, he exited the vehicle and demanded their money. Frazier told defendant they did not have anything. Defendant then accused Frazier of previously robbing him. Frazier replied that he did not know defendant. As he and Fite crouched down on their knees, they begged defendant not to shoot. Defendant told Fite to run, and moments later, Fite heard two shots fired. She saw Frazier slump to the ground. Frazier died later that morning from a gunshot wound to his lower back.
*1167 3. Murder of Sylvester Davis; Attempted Murder of Luther Thomas; Robbery of Gerald Livingston
In the early morning hours of February 19, 1989, defendant crashed through the living room window of a “crack house” on 74th Avenue (74th Avenue house). Luther Thomas, Veronica Robinson, Joseph Lee Batiste, 2 Gerald Livingston, Veronica Hackett, and Sylvester Davis were present in the house. Defendant immediately began shooting at Thomas, the “doorman,” as he ran towards the kitchen. Thomas suffered a gunshot wound to his forearm and escaped from the house.
During the commotion, Davis left the northwest bedroom and entered the southwest bedroom, where he jumped out of the window. Robinson, who had been hiding in the closet, followed Davis out of the window.
Meanwhile, defendant entered the northwest bedroom and robbed Livingston of $40. Defendant then left the bedroom and entered the southwest bedroom. Livingston heard the sound of a window breaking, followed by three gunshots. Within minutes after the shooting stopped, defendant entered the northwest bedroom, looked at Livingston, and then left the house through the front door.
Outside, Robinson had crawled toward the front of the house while Davis had crawled toward the rear of the house. Robinson heard Davis say, “Oh, they going to kill me” and another gunshot.
Shortly after defendant left the house, Livingston went to the front door and looked out. He saw defendant standing on the sidewalk and heard Davis moaning in pain. A vehicle pulled up in front of the house as Livingston went back into the house.
4. Ballistics Evidence
Chester Young, a retired ballistics expert formerly employed by the Oakland Police Department, analyzed six bullets recovered from the three crime scenes in this case: the three bullets recovered from each of the bodies of Miller, Rivers, and Frazier; a bullet recovered from the living room wall at Miller’s house; and two bullets recovered from the 74th Avenue house.
Young explained to the jury that two bullets are declared “a positive match” when they share a particular number and type of identification *1168 characteristics. When the bullets do not share common identification characteristics, the presence of a “pseudo land impression,” a very rare mark that is caused by a defect in the gun, very strongly suggests that the bullets were fired from the same gun. Based on his analyses, Young concluded that because all six bullets had one or two pseudo land impressions, there was a “very strong” likelihood that all of the bullets were fired from the same gun. That gun was never recovered.
B. Penalty Phase
1. Prosecution Evidence
As evidence in aggravation, the prosecution relied upon the guilt phase evidence of the circumstances of the charged offenses and special circumstances (§ 190.3, factor (a)), a prior conviction for the sale of narcotics that defendant admitted (§ 190.3, factor (c)), and evidence of other violent criminal conduct involving defendant’s alleged battery and intimidation of witness Steven Ross on July 16, 1990 (§§ 190.3, factor (b), 136.1, 242).
2. Defense Evidence
As evidence in mitigation, the defense presented the testimony of defendant’s paternal grandmother and grandfather, mother, sister, aunt, three school teachers, and a licensed psychologist.
Family members testified that defendant’s immediate family moved often when defendant was a child. Defendant grew up in Oakland but spent significant periods of time with his grandparents in Alabama. Defendant had “learning” and “adjustment” problems when he began kindergarten. By the time defendant was in the fourth grade, his problems had escalated into fighting and “disrespecting” authority.
Defendant’s father moved out when defendant was eight years old, leaving defendant’s mother with the sole responsibility of raising defendant and his siblings. Defendant had a good relationship with his siblings, but had essentially no relationship with his father. Defendant’s mother sought psychiatric help for defendant when he was 11 years old because he was wetting his bed and soiling his underwear. Although she took defendant to see a psychiatrist, he would not cooperate with or speak to the psychiatrist.
Defendant started smoking marijuana in junior high school. When defendant dropped out of school in the ninth grade, he began to stay out all night with friends. At some point, defendant began to deal crack cocaine to make money.
*1169 Defendant performed below his grade level in elementary school. By age 15, defendant was reading at only a second or third grade level and solved math problems at the fourth or fifth grade level. Defendant failed in alternative school programs that were designed to get him back in the mainstream educational program at his junior high school. Defendant’s aunt, Barbara Warren, a school librarian and creative writing teacher with the Oakland Unified School District, testified that defendant was of “average intelligence” but was not motivated. Warren also thought that defendant was “hyperkinetic,” had a short attention span, and had possible learning disabilities.
Dr. Robert Kaufman, a licensed psychologist, testified as an expert in the area of neuropsychological testing and assessments. Dr. Kaufman met with defendant in the county jail on August 28, 1990, and administered a number of neuropsychological tests over a three-and-a-half-hour period. He testified defendant had an overall IQ of 75, just above the IQ range for the mentally retarded; was “highly impaired” in terms of cognitive dysfunction; had the educational skills of a nine year old; and suffered from a “probable organic mental disorder not otherwise specified.”
H. Discussion
A. Preliminary Issue: Adequacy of Appellate Record
Defendant contends the record on appeal is inadequate to permit meaningful appellate review, in violation of his rights to due process of law under the Fifth and Fourteenth Amendments to the federal Constitution, to competent counsel under the Sixth Amendment, to equal protection of the law under the Fourteenth Amendment, and to a reliable determination of guilt and penalty under the Eighth Amendment.
The appellate record in this case does not include the reporter’s transcripts of the following proceedings or conferences: defendant’s arraignment in the Alameda County Superior Court; a portion of the jury selection proceedings; a conference between the trial court and counsel during which the trial court excused Prospective Juror H. H. by stipulation; two conferences between the trial court and counsel during which the parties agreed to excuse additional jurors by stipulation; a bench conference immediately preceding the testimony of prosecution witness Patrick Jackson; several conferences regarding jury instructions, penalty phase scheduling, and the readback of testimony; and a conversation between the trial court and the jury foreperson. The trial court conducted hearings to settle the record, but the parties were unable to fully reconstruct all of the unreported proceedings. Defendant claims the omission of these proceedings renders the record on appeal inadequate to permit meaningful appellate review.
*1170 A criminal defendant is entitled under the Eighth and Fourteenth Amendments to an appellate record that is adequate to permit meaningful review. (People v. Alvarez (1996) 14 Cal.4th 155, 196, fn. 8 [ 58 Cal.Rptr.2d 385 , 926 P.2d 365 ]; People v. Howard (1992) 1 Cal.4th 1132, 1166 [ 5 Cal.Rptr.2d 268 , 824 P.2d 1315 ] (Howard).) An appellate record is inadequate “only if the complained-of deficiency is prejudicial to the defendant’s ability to prosecute his appeal.” (Alvarez, at p. 196, fn. 8.) The defendant bears the burden of demonstrating that the record is not adequate to permit meaningful appellate review. (People v. Samayoa (1997) 15 Cal.4th 795, 820 [ 64 Cal.Rptr.2d 400 , 938 P.2d 2 ].) Inconsequential inaccuracies or omissions are insufficient to demonstrate prejudice. (Howard, at p. 1165.) If the record can be reconstructed with other methods, such as “settled statement” procedures (see Cal. Rules of Court, rules 7, 32.3), the defendant must employ such methods to obtain appellate review (People v. Hawthorne (1992) 4 Cal.4th 43, 66 [ 14 Cal.Rptr.2d 133 , 841 P.2d 118 ] (Hawthorne)).
Defendant fails to demonstrate prejudice. He argues the omissions from the record are prejudicial because legal discussions may have occurred during these proceedings and because reversible errors may have occurred that are forever shielded from appellate review. He adds that transcripts of these unreported proceedings are also crucial to determine whether trial counsel performed competently. In essence, defendant argues that merely showing that the missing material may have contained matter that demonstrated error or reflected a constitutional violation satisfies his burden of establishing prejudice. But this amounts to nothing more than speculation, which is insufficient. (People v. Pinholster (1992) 1 Cal.4th 865, 923 [ 4 Cal.Rptr.2d 765 , 824 P.2d 571 ] (Pinholster).)
Because we find the appellate record adequate for us to reach the merits of defendant’s claims, defendant was not prejudiced by the omission of portions of the record. (People v. Frye (1998) 18 Cal.4th 894, 941 [ 77 Cal.Rptr.2d 25 , 959 P.2d 183 ] (Frye).) For this reason, his constitutional claims must fail. ( Pinholster, supra, 1 Cal.4th at pp. 919-923; Howard, supra, 1 Cal.4th at pp. 1165-1166.)
B. Guilt Phase Issues
1. Batson/Wheeler Motion
Defendant contends that the trial court violated his state constitutional right to trial by a jury drawn from a representative cross-section of the community (Cal. Const, art. I, § 16; People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] (Wheeler)) when it found no prima facie case of discrimination by the prosecutor in the use of peremptory challenges to strike *1171 prospective African-American female jurors. 3 For the first time on appeal, he also contends this asserted error violated his Sixth Amendment right to an impartial jury and his Fourteenth Amendment right to equal protection of the laws. (Batson v. Kentucky (1986) 476 U.S. 79 [ 90 L.Ed.2d 69 , 106 S.Ct. 1712 ].)
During jury selection, and after the prosecutor exercised his ninth peremptory challenge, defense counsel asserted that the prosecutor had used his peremptory challenges to strike all of the African-American female prospective jurors from the jury panel—namely, D. D., V. S., and B. W. 4 He added that two African-American male prospective jurors were seated on the panel. The trial court indicated it was not, at that time, finding a prima facie case of discrimination. Counsel then noted for the record that “all of the black women called into the jury box at this time have been excused by the prosecution.” 5 The parties proceeded to use their remaining peremptory challenges and ultimately selected a jury and four alternates. Three African-American males were among the jurors selected.
Thereafter, out of the jury’s presence, the trial court addressed defendant’s Wheeler motion. It identified the African-American female prospective jurors by name (D. D. and V. S.), noted they were members of two cognizable *1172 groups, i.e., women and African-Americans, and then ruled that the defense had not made a prima facie case of discrimination.
Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors solely on the basis of a presumed group bias based on membership in a racial or other cognizable group. (People v. Box (2000) 23 Cal.4th 1153, 1187 [ 99 Cal.Rptr.2d 69 , 5 P.3d 130 ] (Box); Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson v. Kentucky, supra, 476 U.S. at p. 89 .) Under Wheeler and Batson , “[i]f a defendant believes the prosecution is improperly using peremptory challenges for a discriminatory purpose, he or she must raise a timely objection and make a prima facie showing that jurors are being excluded on the basis of racial or group identity. [Citations.] To establish a prima facie case, the defendant should first make as complete a record as possible. [Citations.] Second, the defendant must establish that the persons excluded are members of a cognizable group. [Citations.] Third, the defendant must show a strong likelihood or reasonable inference that such persons are being challenged because of their group association. [Citations.]” (People v. Farnam (2002) 28 Cal.4th 107, 134-135 [ 121 Cal.Rptr.2d 106 , 47 P.3d 988 ] (Farnam).) We have held that to establish a “ ‘strong likelihood’ ” or raise a “ ‘reasonable inference,’ ” the defendant must show that the prosecutor’s peremptory challenges, if unexplained, were “more likely than not” based on impermissible group bias. (People v. Johnson (2003) 30 Cal.4th 1302, 1306, 1312-1318 [ 1 Cal.Rptr.3d 1 , 71 P.3d 270 ], cert, granted sub. nom. Johnson v. California (2003) 540 U.S. 1045 [ 157 L.Ed.2d 692 , 124 S.Ct. 817 ], cert, dismissed for lack of final state court judgment (2004) 541 U.S. 428 [ 158 L.Ed.2d 696 , 124 S.Ct. 1833 ].) 6
When a trial court denies a Wheeler motion because the movant failed to establish a prima facie case of group bias, the reviewing court examines the entire record of voir dire for evidence to support the trial court’s ruling. 7 (Farnam, supra, 28 Cal.4th at p. 135 .) The ruling is affirmed if the record “suggests grounds upon which the prosecutor might reasonably *1173 have challenged the jurors in question.” (Ibid.) If the reviewing court concludes the trial court properly determined no prima facie case was made, it need not review the adequacy of the prosecutor’s justifications, if any, for the peremptory challenges. (Ibid.)
“Blacks, of course, are a cognizable group for purposes of both Wheeler ( 22 Cal.3d at p. 280, fn. 26 ) and Batson (476 U.S. at pp. 84-89).” (People v. Clair (1992) 2 Cal.4th 629, 652 [ 7 Cal.Rptr.2d 564 , 828 P.2d 705 ] (Clair).) While this court has held further that Black women are a cognizable group for purposes of Wheeler/Batson analysis (see ibid.; People v. Boyette (2002) 29 Cal.4th 381, 422 [ 127 Cal.Rptr.2d 544 , 58 P.3d 391 ]; People v. Motion (1985) 39 Cal.3d 596, 605-606 [ 217 Cal.Rptr. 416 , 704 P.2d 176 ]), here we conclude the record suggests grounds on which the prosecutor reasonably might have challenged Prospective Jurors D. D. and V. S.
*1174 During voir dire, D. D. revealed that she worked as a therapist and had testified for the prosecution as an expert in a sexual assault case. The prosecutor in this case may have reasonably believed that D. D. would have difficulty setting aside her expertise as a therapist in evaluating the evidence in this case. In addition, the prosecutor reminded D. D. that the penalty phase might involve evidence pertaining to whether extreme mental disturbance or emotional illness was a factor in the case and informed her that a psychologist or psychiatrist might be called to testify on the topic. He then asked a question which, in his own words, was aimed at ascertaining the possibility of “actual bias” on D. D.’s part with respect to any diligent cross-examination he might conduct. Even though D. D. gave assurances she harbored no biases or opinions that would affect her ability to be open-minded and fair, the prosecutor might have reasonably exercised a challenge to excuse D. D. on this basis. Finally, the prosecutor may have reasonably been concerned about D. D.’s apparently negative view of the government—that is, her stated belief that crime had increased, in part, because of an “increase in the double standard of our govemment[] system.”
Regarding Prospective Juror V. S., the prosecutor reasonably might have challenged her because of her experience as an insurance claims specialist. V. S. disclosed she assisted defense attorneys in preparation for litigation and arbitration. In response to questioning, she indicated she sometimes took an active role in the process. Although V. S. stated she might not speak up in settlement conferences or negotiations “[i]f our defense attorney is a strong attorney and he doesn’t need my input,” she said she would “have something to say” if the attorney “doesn’t put forth something that I think is essential to evaluating the claim and helping the judge make a decision as to, you know, what is fair or in helping the judge.” In light of these voir dire responses, the prosecutor might reasonably have challenged V. S. on the basis that she might be overly defense oriented in evaluating and deliberating the charges against defendant.
Accordingly, we affirm the trial court’s ruling denying defendant’s Wheeler motion.
Furthermore, even though the trial court interpreted defendant’s motion as based solely on Wheeler , we may properly consider defendant’s Batson claim on the merits. (See People v. Yeoman (2003) 31 Cal.4th 93, 117-118 [ 2 Cal.Rptr.3d 186 , 72 P.3d 1166 ] (Yeoman) [claim is not waived on appeal when the state and federal standards and the factual inquiry are essentially the same].) Accordingly, it lacks merit for the same reasons as his Wheeler claim.
*1175 2. Sufficiency of Evidence as to the Murder of Terry Rivers
Defendant was convicted of the first degree murder of Terry Rivers. The jury was instructed it could convict defendant of first degree murder based on the theory of robbery felony murder or of premeditated and deliberate murder. Because the jury found true the special circumstance that defendant killed Rivers during the commission of a robbery, it necessarily sustained at least the felony-murder theory. Defendant contends, in substance, the evidence is insufficient under the due process clause of the Fourteenth Amendment to the federal Constitution to support his conviction for the first degree murder of Terry Rivers under either theory.
“In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Rowland, supra, 4 Cal.4th at p. 269 , quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [ 61 L.Ed.2d 560 , 99 S.Ct. 2781 ].) We apply an identical standard under the California Constitution. (Ibid.) “In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576 [ 162 Cal.Rptr. 431 , 606 P.2d 738 ].) The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ].)
“In California, the first degree felony-murder rule ‘is a creature of statute.’ [Citation.] When the prosecution establishes that a defendant killed while committing one of the felonies section 189 lists [including robbery], ‘by operation of the statute the killing is deemed to be first degree murder as a matter of law.’ ” (People v. Mendoza (2000) 23 Cal.4th 896, 908 [ 98 Cal.Rptr.2d 431 , 4 P.3d 265 ].) Under the felony-murder rule, a strict causal or temporal relationship between the felony and the murder is not required; what is required is proof beyond a reasonable doubt that the felony and murder were part of one continuous transaction. (People v. Cavitt (2004) 33 Cal.4th 187, 207 [ 14 Cal.Rptr.3d 281 , 91 P.3d 222 ].) This transaction may include a defendant’s flight after the felony to a place of temporary safety. (People v. Ainsworth (1988) 45 Cal.3d 984, 1015-1016 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ]; People v. Portillo (2003) 107 Cal.App.4th 834, 846 [ 132 Cal.Rptr.2d 435 ].)
*1176 Defendant contends the evidence is insufficient to support his first degree murder conviction of Rivers under a robbery-felony-murder theory because it fails to establish he killed Rivers during the commission of the Miller robbery. Under the foregoing standard, and viewing the evidence in the light most favorable to the judgment, a rational trier of fact could have concluded that defendant robbed and shot Miller and then killed Rivers before completing the Miller robbery.
Miller testified defendant robbed and then shot him around 2:30 a.m. on January 30, 1989. Defense counsel conceded during summation that defendant shot Miller and, on appeal, defendant concedes the evidence is sufficient to prove he shot Miller.
Miller testified that after defendant shot him, defendant walked back towards Miller’s house. Miller heard three additional shots fired, from several seconds to 10 minutes later. He then began crawling towards East 23rd Street to get help.
Police discovered Rivers’s body lying on the front porch of Miller’s house, across the front entryway. Rivers was killed by a single .38-caliber bullet to the back of his head. A dozen small white rocks were found next to Rivers’s body. A second .38-caliber bullet was removed from a living room wall in Miller’s house. Police did not find a third bullet that had penetrated a door to the front porch. A police evidence technician estimated the distance between Miller’s house and the area where defendant shot Miller to be 120 to 150 feet. 8
From these circumstances, a trier of fact could reasonably infer that defendant shot and killed Rivers. The ballistics evidence solidified this conclusion. The prosecution’s ballistics expert opined that, based on the presence of one or two rare “pseudo land impressions” on each of the bullets he examined, including the one taken from Miller’s body, the one taken from Rivers’s body, and the one taken from Miller’s living room wall, all of the bullets were fired from the same gun.
Defendant contends further that even if there existed sufficient evidence that he killed Rivers, the evidence is insufficient to establish the murder occurred during the commission of the Miller robbery.
We disagree. First, the evidence demonstrates overwhelmingly that defendant robbed Miller—that is, defendant took property from Miller by means of force or fear with the specific intent to permanently deprive him of that *1177 property. (§211.) Second, a rational trier of fact could have found the Miller robbery was not complete when defendant shot and killed Rivers.
A robbery is not complete until the perpetrator reaches a place of temporary safety (People v. Salas (1972) 7 Cal.3d 812, 822 [ 103 Cal.Rptr. 431 , 500 P.2d 7 ]), and the jury here was so instructed. 9 Miller testified Rivers had been “fandangling,” i.e., selling fake drugs, in front of the house and may have been outside at the time he left with defendant and headed towards the “swamp” to buy some cocaine from one of his suppliers. The jury thus could have reasonably inferred that defendant killed Rivers in order to eliminate a potential witness against him in a prosecution for the robbery and attempted murder of Miller. (See People v. Fields (1983) 35 Cal.3d 329, 365-368 [ 197 Cal.Rptr. 803 , 673 P.2d 680 ].) In addition, because “[t]he scene of a robbery is not a place of temporary safety . . .” (People v. Ramirez (1995) 39 Cal.App.4th 1369, 1375 [ 46 Cal.Rptr.2d 530 ]), the jury reasonably could have found that the robbery was not yet complete at the front of Miller’s house at 2:30 a.m., approximately 120 to 150 feet from the “swamp” where defendant had robbed Miller moments before.
Accordingly, the record contains sufficient evidence that defendant shot and killed Rivers during the commission of a robbery, and thus committed first degree murder under the theory of robbery felony murder.
Defendant additionally claims the lack of sufficient evidence to support his conviction for first degree murder based on a theory of felony murder also violated his right to a reliable penalty determination under the Eighth Amendment to the United States Constitution. The point is without merit, given we have concluded there was substantial evidence to support his conviction on a felony-murder theory.
Finally, defendant contends that, even if the evidence was sufficient to identify him as the shooter, it nevertheless was insufficient to support his conviction for the first degree murder of Rivers based on a theory of premeditation and deliberation. But because we have concluded defendant’s first degree murder conviction is adequately supported under the theory of *1178 robbery felony murder and the jury found true the robbery-murder special circumstance, we need not address this point. (People v. Berryman (1993) 6 Cal.4th 1048, 1086 [ 25 Cal.Rptr.2d 867 , 864 P.2d 40 ] (Berryman), overruled on another point by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [ 72 Cal.Rptr.2d 656 , 952 P.2d 673 ] (Hill).)
3. Sufficiency of Evidence as to the Murder of Sylvester Davis
The jury found that defendant personally used a handgun during the commission of the offense, but did not find true the robbery-felony-murder or burglary-felony-murder special-circumstance allegations, thus implicitly finding that the Davis killing was premeditated and deliberate first degree murder. Defendant contends that the evidence is insufficient to support his conviction on this theory.
In order to address defendant’s contention, we must set forth the facts at some length. In early 1989, Thomas lived in a room that he rented from Joseph Batiste at the 74th Avenue house in Oakland. The house was a single-story structure with a living room and garage in the front, a kitchen to one side, and a central hallway that led to two bedrooms in the rear. A small concrete porch extended from the front door to the large living room window. Crack cocaine was regularly bought, sold, and used at the house, characterized by one regular visitor as a “smoke house.”
On February 19, 1989, shortly after 2:00 a.m., Thomas was in the living room watching television. Batiste, Livingston, Davis, Hackett, and Robinson were also in the house: Livingston and Davis in the northwest bedroom smoking cocaine, Batiste and Robinson in the southwest bedroom, and Hackett in the kitchen.
Steve Ross, who lived next door, came over to the house and briefly visited with Batiste. After Ross left, Thomas watched through a crack in the open front door and saw Ross speaking with defendant, who had just walked up the street. As Ross and defendant talked, Ross pointed to the house, and defendant looked over his shoulder in Thomas’s direction. After Ross and defendant started walking up the street, Thomas shut the door and continued to watch them through the peephole in the door. When Thomas saw Ross walking towards the house next door, he resumed watching television.
Moments later, defendant knocked on the front door of the 74th Avenue house. Because Thomas did not recognize the name defendant gave, he looked out the peephole. Thomas saw defendant and asked again for defendant’s name. When he still failed to recognize the name, Thomas called for Batiste and again looked out the peephole. Defendant had put his own eye up *1179 to the peephole and looked in. He then rattled the doorknob, took a half-step backwards, and walked towards the living room window.
Thomas stepped back from the door and heard a loud crash in the living room. He turned and ran towards the kitchen. As he did so, he saw the top of defendant’s Yankees baseball cap and an arm with a pistol in the hand come through the window. Defendant shot Thomas through his right forearm as he ran. Thomas continued to run and eventually escaped the house through the garage door. 10
In the northwest bedroom, Davis and Livingston heard loud banging and then two gunshots. Upon hearing the shots, Davis ran out of the bedroom and into the southwest bedroom where he jumped out of the window. Robinson, who was hiding in the closet, followed.
Livingston, meanwhile, had remained in the northwest bedroom. Defendant suddenly kicked open the bedroom door, brandishing a long-barreled black revolver with a brown handle. Defendant told Livingston to “give me your damn money.” Livingston reached into his wallet and handed him two $20 bills. Defendant took the money and walked into the southwest bedroom. Livingston then heard the sound of a window breaking and three gunshots. After the shooting stopped, Livingston stayed in the northwest bedroom for two or three minutes. Defendant returned, looked at Livingston, and walked out of the house through the front door.
Outside the southwest bedroom window, Robinson had crawled to the south side of the house toward the front. Davis had run to the north side. Robinson heard Davis say, “Oh, they going to kill me,” and then another gunshot.
About a minute after defendant left the house, Livingston walked to the front door and looked outside. Livingston heard Davis “hollering” as if he were “in a lot of pain.” Livingston retreated into the house as a dark four-door car pulled in front.
After Robinson had crawled past three or four houses, she was assaulted by someone matching defendant’s description who hit her in the head with his gun. The man told Robinson not to return to the 74th Avenue house “because it was his turf.”
Police discovered Davis’s body lying in the front yard of the house next door. A trail of blood led from the intersection of the fences at the rear of the *1180 house and along the side to where Davis’s body was found. The bullet that struck Thomas was found lodged in the refrigerator and was either a .38-caliber or .357-magnum lead bullet. A second shot, a .38-caliber lead bullet, was found in the hallway. A .32-caliber cartridge was found on a dresser in the southwest bedroom. The bullet that struck and killed Davis was never recovered.
Thomas described the man who spoke with Ross and later knocked on the front door as being in his early 20’s, between five feet six inches and five feet eight inches tall, and approximately 155 pounds. He wore a dark three-quarter-length coat with a hood and a New York Yankees cap. Livingston described the man who robbed him as about six feet tall and wearing a dark knit navy watch cap, black waist-length “Members Only” jacket, and red shirt. Robinson described the man who assaulted her as African-American, five feet nine inches tall, between 26 and 29 years old, and wearing a black leather coat and a baseball cap.
As stated, in reviewing a challenge to the sufficiency of the evidence, the relevant inquiry is whether, on review of the entire record in the light most favorable to the judgment, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. (Rowland, supra, 4 Cal.4th at p. 269 ; see also Jackson v. Virginia, supra, 443 U.S. at pp. 317-320.)
Applying this standard, we conclude the above evidence constituted sufficient proof that defendant shot and killed Davis. The jury reasonably could have found that defendant (1) broke into the 74th Avenue house, (2) shot Thomas as he fled to the kitchen, then (3) robbed Livingston in the northwest bedroom, and (4) pursued and shot Davis after he jumped through the southwest bedroom window.
The testimony of the prosecution’s ballistics expert bolsters this conclusion. The expert testified that the bullet taken from Frazier—whom the evidence overwhelmingly proved defendant shot and killed on January 30, 1989—and the bullet taken from the hallway at the 74th Avenue house were “likely” fired from the same gun. The expert also formed the “very, very strong” opinion that the Frazier bullet and the bullet recovered from the refrigerator at the same house were fired from the same gun. Thus, the expert’s ballistics testimony strongly suggests that the gun used to kill Frazier was used to shoot Thomas at the 74th Avenue house. Because the evidence proved overwhelmingly that defendant had shot and killed Frazier approximately three weeks before, the jury could reasonably conclude that Thomas’s identification of defendant as his assailant was reliable. It follows that, given the jury also found defendant shot at Thomas and attempted to murder him, it reasonably could conclude that defendant also shot and killed Davis.
*1181 Defendant asserts the jury could not reasonably believe that he shot Davis because Livingston and Thomas described different assailants. He acknowledges that both identified defendant at trial but argues nonetheless that their conflicting descriptions and other evidence suggest that at least two gunmen were in the house that night.
In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. (People v. Maury, supra, 30 Cal.4th at p. 403.) Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. (Ibid.) Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. (People v. Allen (1985) 165 Cal.App.3d 616, 623 [ 211 Cal.Rptr. 837 ].)
No inherent improbability appears in the identification testimony of either Livingston or Thomas, and nothing about the evidence shows the Davis murder would have been physically impossible for defendant to perpetrate. The jury, as the sole judge of the credibility of witnesses, could reasonably have rejected defendant’s theory of two gunmen storming the house and instead accepted the prosecutor’s argument that Livingston’s description of the perpetrator’s height and clothing was simply inaccurate. In addition, given the chaos prevailing at the 74th Avenue house in the early morning hours on February 19, 1989, conflicting descriptions would not be particularly surprising. Importantly, though, both witnesses identified defendant at trial as their assailant and identified the jacket worn by defendant on the day of his arrest as similar to the one the perpetrator wore.
Defendant’s reliance on People v. Blakeslee (1969) 2 Cal.App.3d 831 [ 82 Cal.Rptr. 839 ], is misplaced. In Blakeslee , the court reversed the defendant’s conviction for the second degree murder of her mother based on insufficient evidence. (Id. at pp. 837-840.) The evidence established only that the defendant had an opportunity to commit the murder, had previously but not recently quarreled with her mother, had access to her brother’s .22-caliber rifle, which was kept in his bedroom at the home they shared, and had given the police a false alibi. (Id. at pp. 835, 837-839.) The coroner’s testimony established that the victim’s wounds were consistent with those that would have been made by .22-caliber rifle bullets, but the bullets recovered from the body could not be used to identify the gun from which they were fired. (Id. at p. 835.) The court noted that it could draw an almost equally plausible case against the defendant’s brother. (Id. at p. 840.)
In holding the evidence insufficient to prove the defendant committed the murder, the court in Blakeslee expressed particular concern with “the absence of evidence we would normally expect to find in a murder prosecution based *1182 on circumstantial evidence.” (People v. Blakeslee, supra, 2 Cal.App.3d at p. 839 .) This absent evidence included: “(1) evidence of a murder weapon . . . ; (2) evidence linking the bullets which caused the victim’s death to a particular weapon . . . ; (3) in the absence of the first two items, evidence of the type or caliber of weapon used for the murder . . . ; (4) evidence to establish a connection between a murder weapon and the defendant, either tangible evidence such as fingerprints, palm prints, or powder bums, or testimonial evidence linking the defendant in some manner to a weapon . . . .” (Id. at p. 840.)
Here, contrary to defendant’s assertions, there was no lack of evidence regarding the Davis murder. Livingston and Thomas identified defendant as their armed assailant. Although the gun defendant used was not recovered, Livingston described it as a long-barreled black revolver with a brown handle. Jackson testified that defendant possessed a dark revolver with a brown handle and a four- or five-inch barrel when he shot Frazier. And based on the ballistics expert’s conclusions, the gun used to shoot Thomas just moments before Davis was shot was the same gun that fired a bullet into the hallway that led to the bedroom from which Davis fled. Livingston testified that he saw defendant enter the southwest bedroom before he heard three shots fired. He also testified that after defendant emerged from the southwest bedroom and left the house through the front door, he heard Davis outside “hollering” in pain. Livingston then observed defendant on the sidewalk in front of the house, staring at Livingston and to the rear of the house. Thus, unlike the evidence in Blakeslee , sufficient physical and circumstantial evidence linked defendant to the Davis murder.
Defendant contends that even if the evidence is sufficient to prove beyond a reasonable doubt that defendant killed Davis, there is no evidence to establish the killing was premeditated and deliberate and thus, first degree murder. We disagree.
“A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. . . . ‘Deliberation’ refers to careful weighing of considerations in. forming a course of action; ‘premeditation’ means thought over in advance. [Citations.] ‘The process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.” [Citations.]’ ” (People v. Koontz (2002) 27 Cal.4th 1041, 1080 [ 119 Cal.Rptr.2d 859 , 46 P.3d 335 ] (Koontz).)
In People v. Anderson (1968) 70 Cal.2d 15, 26-27 [ 73 Cal.Rptr. 550 , 447 P.2d 942 ] (Anderson), this court surveyed prior cases and developed *1183 guidelines to aid reviewing courts in assessing the sufficiency of the evidence to sustain findings of premeditation and deliberation. (People v. Perez (1992) 2 Cal.4th 1117, 1125 [ 9 Cal.Rptr.2d 577 , 831 P.2d 1159 ].) The court identified three categories of evidence pertinent to this analysis: planning, motive, and manner of killing. (Ibid., citing Anderson , at p. 27.) With respect to these categories, the Anderson court stated: “ ‘Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of [planning] or evidence of [motive] in conjunction with [evidence of] either [planning] or [manner of killing].’ ” (Perez, at p. 1117, quoting Anderson , at p. 27.)
The Anderson guidelines are “descriptive, not normative,” and reflect the court’s attempt “to do no more than catalog common factors that had occurred in prior cases.” (People v. Perez, supra, 2 Cal.4th at p. 1125.) In developing these guidelines, the court did not redefine the requirements for proving premeditation and deliberation. (People v. Welch (1999) 20 Cal.4th 701, 758 [ 85 Cal.Rptr.2d 203 , 976 P.2d 754 ] (Welch).) The categories of evidence identified in Anderson , moreover, do not represent an exhaustive list of evidence that could sustain a finding of premeditation and deliberation, and the reviewing court need not accord them any particular weight. (Perez, at p. 1125; People v. Sanchez (1995) 12 Cal.4th 1, 33 [ 47 Cal.Rptr.2d 843 , 906 P.2d 1129 ].)
Applying these guidelines, we find substantial evidence supports the jury’s finding that defendant premeditated and deliberated the Davis murder. Shortly before it occurred, defendant was talking with Ross in front of the 74th Avenue house. As they talked, Ross pointed to the house, and defendant looked in the direction of Thomas, who was standing in the front doorway. A short time later, defendant knocked on the front door of the house. When asked for his name, defendant gave a name that Thomas did not recognize. Defendant then put his eye up to the peephole and rattled the door handle. He stepped back and walked along the porch towards the living room window. Moments later, defendant crashed through the living room window armed with a pistol. Thus, as defendant concedes, the evidence established defendant planned his entry into the house.
Defendant contends the mere fact of a planned entry, standing alone, is inconsequential because it does not establish premeditation and deliberation of a murder committed outside the home. Defendant, however, executed his planned entry into the house with a loaded gun in his hand. Hence, the jury could infer that defendant “considered the possibility of murder in advance” and intended to kill. (People v. Miller (1990) 50 Cal.3d 954, 993 [ 269 Cal.Rptr. 492 , 790 P.2d 1289 ]; People v. Miranda (1987) 44 Cal.3d 57, 87 [ 241 Cal.Rptr. 594 , 744 P.2d 1127 ].)
*1184 The jury could further infer from the evidence defendant’s motive and a premeditated and deliberate manner of killing. The jury could reasonably conclude that defendant’s killings over this period showed a distinct pattern. He accosted Miller, Rivers, Frazier, Fite, and Smith while in possession of a loaded gun. He killed Rivers and Frazier and wounded Miller. He demanded money or contraband, but the point of this rampage seemed to be to intimidate his victims and to convince the survivors of his seriousness. The Davis murder fit the same pattern. Defendant went to the crack house armed with a gun. When the door remained barred, he smashed a window to get inside. He shot Thomas and took money from Livingston at gunpoint. He tracked Davis down when he made a desperate attempt to escape and cold-bloodedly executed him. Someone matching defendant’s description pointed a gun at Robinson’s back and told her not to go near the crack house again because “it was his turf.” The jury could reasonably infer that this was defendant’s motive and that, like the other incidents, it showed a premeditated and deliberate killing—even if the specific victim was selected more or less at random.
In sum, substantial evidence supports the jury’s verdict that defendant committed the premeditated and deliberate first degree murder of Davis.
Defendant further contends the insufficiency of evidence to support his conviction for first degree murder based on a theory of premeditation and deliberation violated his right to a reliable sentence under the Eighth Amendment to the United States Constitution. Because we have concluded substantial evidence supported his conviction on such a theory, the point is without merit.
4. Alleged Prosecutorial Misconduct
Defendant contends the prosecutor engaged in numerous acts of misconduct. A prosecutor’s conduct violates the federal Constitution when it “infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44 [ 104 Cal.Rptr.2d 582 , 18 P.3d 11 ]; accord, Darden v. Wainwright (1986) 477 U.S. 168, 181 [ 91 L.Ed.2d 144 , 106 S.Ct. 2464 ]; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643 [ 40 L.Ed.2d 431 , 94 S.Ct. 1868 ].) “Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (Morales, at p. 44.) In general, “ ‘ “a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion— *1185 and on the same ground—the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety.” ’ ” (People v. Ayala (2000) 23 Cal.4th 225, 284 [ 96 Cal.Rptr.2d 682 , 1 P.3d 3 ] (Ayala).)
Defendant additionally contends the asserted instances of prosecutorial misconduct violated his rights to an impartial jury under the Sixth Amendment and to due process of law under the Fourteenth Amendment and rendered his sentence unreliable under the Eighth Amendment. Assuming the above federal constitutional claims were properly preserved for review (see People v. Yeoman, supra, 31 Cal.4th at pp. 117, 133) for each asserted instance of misconduct, 11 they are without merit because we have concluded either no misconduct occurred or any misconduct was harmless.
a) References to Uncharged Homicides and the Valente Bullet
Defendant complains the prosecutor improperly implied defendant had committed uncharged homicides during his direct examination of Jackson, defendant’s cousin. Jackson testified that shortly after defendant shot Frazier, defendant told Jackson he did so because Frazier had robbed him earlier. The prosecutor asked, “Aside from what you have testified here as to witnessing, did the defendant, your cousin, tell you that he had killed other people?” Defense counsel objected on relevance grounds. The trial court overruled the objection, and Jackson answered, “No.” The prosecutor then asked, “Did you tell the police on March 13th of 1989 that your cousin had told you of other killings?”
During a conference held outside the jury’s presence, defense counsel objected to the prosecutor’s questions on the ground of irrelevance because there was no evidence defendant was involved in either the Rivers or Davis murders or any other uncharged killings. The prosecutor explained he intended to ascertain only whether defendant told Jackson about the Rivers or Davis murders, and that the factual basis of his question was the transcript of an interview of Jackson by Sergeants Brian Thiem and Ramon Paniagua. The transcript, however, indicated only that the police officers asked Jackson if defendant told him of any other “shootings” and that Jackson responded, “Uh-huh.” When Sergeant Thiem then asked Jackson what defendant said about other shootings, Jackson declined to discuss the matter further. The trial court indicated it was unsure whether there was a factual basis for the prosecutor’s question, because Jackson was questioned only about other *1186 shootings, not other killings, and then sustained defense counsel’s relevance objection on that ground. The trial court granted defense counsel’s subsequent request to strike any references to “any other shootings,” instead of “killings,” and admonished the jury to “disregard any other reference to any other shootings,” again instead of “killings.”
Contrary to respondent’s assertion, we believe defendant has preserved his claim of prosecutorial misconduct for review. Although he did not request an assignment of misconduct or an admonition that the jury disregard the impropriety, through his relevance objection he gave the trial court an opportunity to correct the asserted abuse—an opportunity the court took advantage of by striking any references to “any other shootings” and admonishing the jury to “disregard any other reference to any other shootings.”
Although preserved for review, defendant’s claim of prosecutorial misconduct nonetheless fails on the merits. It is well established that a prosecutor may not “ ‘ask questions of a witness that suggest facts harmful to a defendant, absent a good faith belief that such facts exist.’ ” (People v. Bolden (2002) 29 Cal.4th 515, 562 [ 127 Cal.Rptr.2d 802 , 58 P.3d 931 ].) In other words, “a prosecutor may not examine a witness solely to imply or insinuate the truth of the facts about which questions are posed.” (People v. Visciotti (1992) 2 Cal.4th 1, 52 [ 5 Cal.Rptr.2d 495 , 825 P.2d 388 ].) Here, contrary to defendant’s assertion, the trial court did not find the prosecutor lacked a good faith belief for his question regarding other killings defendant may have mentioned to Jackson; instead, the court concluded it was unsure whether there was a factual basis for the question. Further, the circumstance that the prosecutor failed to distinguish between “other shootings” and “other killings” in his question to Jackson is unremarkable in this case because each of the three murder victims—Rivers, Frazier, and Davis—was killed in a shooting. We therefore conclude the prosecutor’s question about other killings was not improper.
Consequently, People v. Wagner (1975) 13 Cal.3d 612 [ 119 Cal.Rptr. 457 , 532 P.2d 105 ], and People v. Evans (1952) 39 Cal.2d 242 [ 246 P.2d 636 ], upon which defendant relies, are distinguishable. In Wagner, the prosecutor failed to make an offer of proof or to introduce any evidence to substantiate the implications from his questions that the defendant, who was charged with selling marijuana, had been involved in extensive drug sales. (Wagner, at pp. 616-619.) In Evans , the prosecutor, without any evidentiary support, improperly asked the defendant a series of questions insinuating the defendant accosted and molested a girl in a park. (Evans, at pp. 247-249.) In contrast, here, the prosecutor’s question about other killings was based on information contained in the transcript of Jackson’s interview.
*1187 Defendant next complains that during the direct examination of the People’s ballistics expert, the prosecutor improperly insinuated a second time that he had committed uncharged homicides. The expert testified regarding his comparison of the bullet recovered from Frazier’s body with bullets recovered from the 74th Avenue house. The prosecutor then asked the expert whether he had received a “request from homicide” to examine other bullets. The expert responded that he retrieved four bullets from the property room, identifying them as the “Rivers,” “Frazier,” “Miller,” and “Valente” bullets. When the prosecutor began to question the expert specifically regarding his examination of the Valente bullet, defense counsel objected to the question as follows: “If it please the court, it has no relevance.” The prosecutor interjected, “That is why we are getting rid of it right now.” The prosecutor and defense counsel ultimately stipulated the Valente bullet had different characteristics and was not related to this case or to defendant, and this stipulation was read to the jury.
Assuming the contention was preserved for appellate review, any misconduct was harmless given the stipulation that the Valente bullet had nothing to do with defendant’s case.
b) Miller’s “No Remorse” Response
Defendant contends the prosecutor engaged in misconduct by intentionally eliciting inadmissible and prejudicial testimony from prosecution witness Manzine Miller. He further complains this misconduct constituted error under Griffin v. California (1965) 380 U.S. 609 [ 14 L.Ed.2d 106 , 85 S.Ct. 1229 ], by implying, contrary to his Fifth Amendment privilege against compelled self-incrimination, that defendant’s failure to testify supported an inference- of guilt.
At the conclusion of the prosecutor’s redirect examination of Miller, the prosecutor asked, “Is there any doubt in your mind that the defendant shot you?” Miller answered, “There’s no doubt. He still has that same look when he did shoot me, no remorse whatsoever.” Defense counsel objected that the response was “purposely conclusionary on the part of the witness” and moved that the response be stricken. The trial court overruled counsel’s objection and effectively denied the motion to strike.
We reject defendant’s claim of prosecutorial misconduct at the threshold because he failed to request an assignment of misconduct or an admonition that the jury disregard the impropriety on the ground now asserted. (Ayala, supra, 23 Cal.4th at p. 284.)
We also reject the claim on the merits. A prosecutor engages in misconduct by deliberately eliciting inadmissible testimony. (People v. Valdez *1188 (2004) 32 Cal.4th 73, 125 [ 8 Cal.Rptr.3d 271 , 82 P.3d 296 ] (Valdez).) Here, no such misconduct occurred. Miller’s “no remorse” remark was nonresponsive. Further, there is no reasonable likelihood that the jury would have understood Miller’s response as referring to defendant’s failure to testify. (See Clair, supra, 2 Cal.4th at pp. 662-663, citing Griffin v. California, supra, 380 U.S. at pp. 611-615.) Thus, no Griffin error occurred.
c) The Prosecutor’s Closing Argument
Defendant claims the prosecutor engaged in numerous acts of misconduct during closing arguments in the guilt phase. Except as noted below, defense counsel failed to request an assignment of misconduct or an admonition, or both, as to each asserted claim of misconduct. Defendant concedes we have held that, in general, failure to request an assignment of misconduct and an admonition forfeits a claim of prosecutorial misconduct on appeal unless an objection or request for admonition would have been futile or an admonition would not have cured the harm. (People v. McDermott (2002) 28 Cal.4th 946, 1001 [ 123 Cal.Rptr.2d 654 , 51 P.3d 874 ].) He contends the trial court’s responses to defendant’s objections during summation and rebuttal suggested any objection or request for an admonition would have been futile. Citing our decision in Hill, supra, 17 Cal.4th at pages 820-821, defendant also argues he should be excused from the legal obligation to object to prosecutorial misconduct because the prosecutor’s summation was “so poisonous” that repeated objections by counsel would have risked angering the court or the jurors.
Defendant, however, fails to show that any of these exceptions applies to any of his failures to object. We therefore conclude that defendant has forfeited each claim of misconduct.
In any event, we find each claim is without merit. As to each instance alleged, either the prosecutor did not commit misconduct or any misconduct was harmless even absent an admonition.
(1) Alleged Attacks on Defense Counsel
Defendant claims numerous instances of prosecutorial misconduct in which the prosecutor denigrated the honesty and integrity of defense counsel. We address each claim seriatim.
(a) Defense Counsel’s References to Punishment and Partisans
At the guilt phase, the prosecutor began his closing argument in rebuttal with these comments: “I will let you know what it was that I wanted to talk *1189 to you so badly about yesterday. [][] Both Mr. Meloling and Mr. Selvin [defense attorneys] have tried to give you the impression that Mr. Jackson is not being punished and that we are seeking the ultimate in penalty. And I believe both of them have used somewhat that issue. [][] But that is not what we are here for. That type of argument is improper in my mind. ... FI] And it is improper for them to try to persuade you that the punishment is appropriate for you to consider in this phase of this trial. [(J[] Both of them have done that and both of them have argued to you, especially Mr. Meloling with respect to Mr. Jackson. He said the People treat Mr. Jackson like a saint. . . . []□ So when both of these gentlemen get up here and try to sway your feeling about how you should approach your task, it is improper in my mind. And when they ask you to be partisans to this trial rather than being the impartial judges as you have been sworn to be, as Mr. Selvin suggested that you do yesterday, that is improper.”
Defendant contends that, with these comments, the prosecutor impugned defense counsel’s integrity by (1) accusing counsel of improperly arguing that the jury should consider punishment during its deliberations in the guilt phase, and (2) accusing counsel of improperly urging jurors to “be partisans.”
Prosecutorial argument that denigrates defense counsel directs the jury’s attention away from the evidence and is therefore improper. (Frye, supra, 18 Cal.4th at p. 978 .) In evaluating a claim of such misconduct, we determine whether the prosecutor’s comments were a fair response to defense counsel’s remarks. (Ibid., citing U.S. v. Lopez-Alvarez (9th Cir. 1992) 970 F.2d 583, 597 .)
Here, there is no reasonable likelihood the jury construed the prosecutor’s argument as an attack on counsel’s integrity. That the jury, in arriving at a verdict, is not to consider the subject of punishment is well established. (People v. Nichols (1997) 54 Cal.App.4th 21, 24 [ 62 Cal.Rptr.2d 433 ].) At the conclusion of his argument, Selvin stated, “And you know what is at stake.” Although counsel may have intended this statement to be a legitimate reminder of the importance of deliberations, the prosecutor reasonably could have interpreted it in the manner suggested by his argument and thus properly reminded the jury of its duties.
As for the prosecutor’s remark that Meloling, in particular, improperly argued that the jury should consider punishment in regard to prosecution witness Jackson, there is no reasonable likelihood the jury would construe this remark as denigrating defense counsel. Meloling had argued that Jackson had lied about his experience with guns in spite of being granted immunity, and had been treated like a “saint” by the prosecution. The jury likely understood the prosecutor’s rebuttal that counsel’s argument “isn’t true” to be
*1190 proper commentary on the state of the evidence rather than a personal attack on counsel. Although the prosecutor misattributed to Meloling the improper suggestion that the jury consider punishment in its deliberations, the mistake was fleeting and therefore harmless. (People v. Kipp (2001) 26 Cal.4th 1100, 1130 [ 113 Cal.Rptr.2d 27 , 33 P.3d 450 ] (Kipp) [prosecutor’s comment was harmless because it was brief, not repeated, and did not contribute to other errors].)
Finally, contrary to defendant’s contention, the prosecutor did not engage in misconduct in faulting defense counsel for inappropriately requesting that the jurors be partisans in this case. In his attempt to explain the prosecution’s burden of proof, Selvin had improperly asked the jury to “respond” on behalf of the defense to the prosecution’s rebuttal summation. But because Selvin had emphasized that jurors were not partisans, but neutral judges of facts, the jury likely viewed the prosecutor’s remark as a fair response and not a personal attack on defense counsel. (Frye, supra, 18 Cal.4th at p. 978 .)
(b) Robinson’s Knit Cap
Defendant also cites the prosecutor’s comment Selvin had “twisted” the record regarding the limited purpose for which the court admitted the knit cap belonging to Robinson, who was in the southwest bedroom when defendant crashed through the living room window and began shooting. Defense counsel had asked Lieutenant Sims on direct examination whether police officers had shown Hackett, who was in the kitchen, a knit cap and asked her to identify it. The trial court overruled the prosecutor’s hearsay objection and permitted the defense to elicit from Sims that Hackett identified the cap as the one worn by the perpetrator. Based on this information, Sims believed the cap had significance to the case. The trial court then instructed the jury that Sims’s testimony was not offered to prove the truth of what Hackett had said but only to show that upon receiving certain information from Hackett, the police subsequently acted in a certain way.
In closing argument, Selvin discussed Robinson’s testimony identifying the cap as her own and Hackett’s statement to Lieutenant Sims identifying the cap as the one worn by the perpetrator. He implied this inconsistency, combined with the fact that police officers had taken the cap to Hackett to identify, raised a “question of suggestibility.” He then told the jury that although Hackett identified the cap as the one worn by the shooter, “we know, in fact, he was not wearing it.”
At this point, the prosecutor objected to counsel’s argument on the ground that Hackett’s statement was admitted not for its truth but to show its effect on Lieutenant Sims. The trial court overruled the objection, finding the *1191 defense argument a fair comment on the evidence. Thereafter, Selvin added, “Regardless of why the court let it in, I think that it is a suggestibility, how things are suggested and not done necessarily for bad motives. It is just part of a process that occurs, [f] See, . . . [witnesses make mistakes. That is my point.”
In rebuttal, the prosecutor accused Selvin of taking the cap evidence out of context when he implied that Hackett’s statement to Sims was “suggested” to her by the police. The prosecutor reminded the jury of the trial court’s admonition limiting consideration of Hackett’s statement. The prosecutor then asked the jury, “Now, what is going on? . . . The evidence is taken out of context by defense counsel.”
We find no misconduct. “To observe that an experienced defense counsel will attempt to ‘twist’ and ‘poke’ at the prosecution’s case does not amount to a personal attack on counsel’s integrity.” (People v. Medina (1995) 11 Cal.4th 694, 759 [ 47 Cal.Rptr.2d 165 , 906 P.2d 2 ] (Medina).) Here, each side was simply urging the jury to draw different inferences from the evidence. As such, the prosecutor’s comments were a fair response to defense counsel’s remarks.
(c) Terrence Young’s Testimony
Terrence Young, defendant’s brother, was released from juvenile hall around the end of February 1989. He testified that was when he purchased the jacket the police seized on March 1 from the bedroom he shared with defendant. According to Fite, the jacket was similar to the one defendant wore when he shot Frazier. During closing argument, Meloling argued the prosecutor had not presented evidence to rebut Terrence’s testimony that he purchased the jacket after the Frazier murder occurred. In rebuttal, the prosecutor showed the jury Terrence’s jacket and argued the condition of the jacket showed it was obviously more than a couple of days old when the police seized it on March 1. The prosecutor asked, “What is the most crucial piece of evidence that the defense presented? It was Terrence Young. And it was a lie, an unadulterated lie. HD ... [f] And you know yourselves that jacket is not new. And that is the only evidence that the defense presented on that issue. And it was a lie.”
Defendant contends that the prosecutor again denigrated defense counsel’s integrity by calling Terrence a liar and insinuating counsel knew Terrence had lied to the jury. We disagree. “[T]he prosecutor is entitled to comment on the credibility of witnesses based on the evidence adduced at trial.” (People v. Thomas (1992) 2 Cal.4th 489, 529 [ 7 Cal.Rptr.2d 199 , 828 P.2d 101 ].) The general thrust of the prosecutor’s argument was that the *1192 condition of the jacket proved Terrence was not credible, not that defense counsel knew Terrence had lied. “[W]e do not lightly infer that he intended [his remarks] to have their most damaging meaning, or that the jury would draw that meaning from the other, less damaging interpretations available.” (Id. at p. 530; Donnelly v. DeChristoforo, supra, 416 U.S. at p. 647 .)
(d) Defense Counsel’s Erroneous Summary of the Law
During closing argument, Selvin incorrectly explained that the “entry” element of burglary was also included in the definition of robbery murder. In response, the prosecutor argued, “Now this is one of those things I wanted to talk to you about yesterday afternoon. [][]... Selvin gets up . . . and he says, well, [tire prosecutor and Meloling] didn’t discuss the law of homicide [i.e., robbery murder] so it looks like I have the burden of doing it. And then he told you what was the most nonsensical, unintelligible gibberish about the law of homicide as it applies to this case as I have ever heard in my life. . . . HO And whatever garbage [Selvin] was talking about yesterday, I could see your eyes and you were just kind of looking like what is this.”
Defendant claims this argument abusively denigrated defense counsel and improperly injected the prosecutor’s own experience into the proceedings. We conclude no misconduct occurred. A prosecutor is entitled to argue his or her case vigorously and may properly assert that defense counsel’s argument reflected a misunderstanding of the relevant law. (People v. Jones (1997) 15 Cal.4th 119, 175 [ 61 Cal.Rptr.2d 386 , 931 P.2d 960 ] (plur. opn. of George, C. J.), overruled on another point by Hill, supra, 17 Cal.4th at p. 823, fn. 1 .)
A review of the entire argument persuades us the prosecutor was merely determined to correct Selvin’s mistake and inform the jury that the crime of robbery murder did not include an “entry” element. There is no reasonable likelihood that the jury would interpret this remark as a personal attack on the integrity of counsel.
(e) Sergeant Sitterud’s Search Warrant Affidavit
During closing argument, Selvin questioned the accuracy of Thomas’s testimony that he saw defendant holding a gun as he crashed through the living room window of the 74th Avenue house, noting that he did not mention he saw a gun in his initial interview with Sergeant Sitterud. Selvin then implied that the statement in Sitterud’s search warrant affidavit that Thomas described seeing a .38-caliber revolver in defendant’s hand did not come from Thomas, and that Sitterud had obtained the gun information from the *1193 ballistics expert. Selvin further suggested that Thomas’s testimony was not based on personal observation but on facts he learned through what counsel called the “power of suggestion” resulting from police interviews and trial preparation.
Defendant contends the prosecutor engaged in misconduct when he repeatedly referred to defense counsel as “liars” for arguing the gun information Sitterud included in his search warrant affidavit came from the ballistics expert and not Thomas, characterizing counsel’s argument as “idiocy,” and suggesting counsel may have been practicing “the power of deception” throughout trial. Defendant contends the prosecutor further impugned the honesty and integrity of defense counsel when he argued: “Selvin yesterday argued that they did not mention a gun. I remind you, can you shoot yourself with a banana? [][] I mean, what kind of idiots does he think you people are? He knows better than that. By God, we have heard at least a dozen times he has been practicing law for over 20 years.”
We agree that to the extent the prosecutor characterized defense counsel as “liars” or accused counsel of lying to the jury, the prosecutor’s remarks constituted misconduct. (People v. Cummings (1993) 4 Cal.4th 1233, 1302 [ 18 Cal.Rptr.2d 796 , 850 P.2d 1 ].) The remarks, however, were harmless. The prosecutor’s remarks were made in response to counsel’s erroneous argument implying Sergeant Sitterud had received the gun information contained in the search warrant affidavit from the ballistics expert and not Thomas. It is reasonably likely that the jurors viewed the prosecutor’s remarks as mere reciprocal retort in an effort to rehabilitate the integrity of the maligned law enforcement officer and gave it little to no consideration. Further, the trial court instructed the jury that it was to decide the case based on the evidence admitted at trial and that the arguments of counsel were not evidence. Under these circumstances, the prosecutor’s brief remarks resulted in no miscarriage of justice within the meaning of the California Constitution. (People v. Stewart (2004) 33 Cal.4th 425, 499 [ 15 Cal.Rptr.3d 656 , 93 P.3d 271 ].)
We deem the prosecutor’s characterization of Selvin’s argument as “idiocy” as fair comment on counsel’s argument. The prosecutor made the remark in the context of reminding the jury that Thomas’s statement to Sitterud about how the intruder shot him (Thomas) in the forearm logically implied the intruder used a gun. It is not reasonably likely the jurors would have understood it to reflect negatively on counsel’s integrity. Similarly, it is not reasonably likely the jurors would have understood the prosecutor’s query, “what kind of idiots does he think you people are?,” as seriously suggesting Selvin thought they were “idiots” or “disrespected” them.
*1194 (f) Remarks Regarding Surviving Victims
Defendant argues the prosecutor continued to impugn the motives of defense counsel by arguing that they (1) had no “right as human beings” to imply the victims were less important because they used drugs; (2) had “the unmitigated gall ... to suggest that Melva Fite is an unadulterated liar”; and (3) tried “to dirty” certain prosecution witnesses by suggesting their drug use necessarily made them less credible.
Our review of the record reveals no argument by counsel that the victims’ lives were less important because of their drug use. Counsel had properly argued that the jury should consider the prior drug use and felony convictions of some of the witnesses in evaluating the accuracy of their observations and recollections. Thus, the prosecutor misled the jury and committed misconduct to the extent he argued counsel stated the lives of certain witnesses were unimportant and implied the witnesses’ prior drug use and felony convictions were not relevant to their credibility. We conclude, however, defendant was not prejudiced by the remarks. The trial court instructed the jurors as to the factors they could consider in determining the believability of a witness, including prior felony convictions.
We additionally conclude the prosecutor’s remark regarding Fite’s credibility did not constitute misconduct. Counsel had challenged Fite’s testimony by arguing she was involved in a drug transaction shortly before Frazier was murdered. Read in the context of the prosecutor’s broader argument that there was no such evidence of Fite’s drug involvement, the remark that counsel had the “unmitigated gall” to suggest Fite was a liar was a fair response to counsel’s attack on her credibility.
(g) Remarks Regarding Victim Gerald Livingston
Defendant claims the prosecutor ridiculed Selvin by referring to him pejoratively as a “man of all seasons” during the prosecutor’s discussion of the Livingston robbery: “And after [defendant] robs Livingston, and this is where . . . Selvin says, well, I am so good because I can make Livingston change his testimony when he said he put it on the dresser and then he was—handed it to him or whereas he was putting it down, he grabbed it out of his hand, [f] A man of all seasons. He will testify to anything. Who cares? [][] Livingston said the guy took $40. Who cares whether it was sitting on there, was in his hand. Did he take it by force? Did he take it at gunpoint? Livingston said he had a long, dark revolver.”
Whether the prosecutor was characterizing Selvin or Livingston as a “man of all seasons” is unclear. In any event, the remark was brief and vague in *1195 that it was entwined within a multilayered and somewhat confusing argument. It is not reasonably likely the jurors would have understood this remark to reflect a personal attack on counsel’s integrity.
(2) The Prosecutor’s Description of Defendant
Defendant contends that the prosecutor engaged in misconduct on two occasions during rebuttal by improperly appealing to the passions and prejudices of the jurors in arguing: “This is not just a simple killing. This is a serial killing. This man is out to murder people in our community. And it is evidenced by three killings and two almosts.” (Italics added.) The prosecutor later remarked: “[Counsel] would have you think that there were people on this comer and that corner and people shooting a gun and everything. No. No. It was only the defendant. Only the defendant doing on February 19th what he did on [the] 30th of January in two different locations; terrorizing and killing people. That is all it was. Don’t know why.” (Italics added.)
“A prosecutor is allowed to make vigorous arguments and may even use such epithets as are warranted by the evidence, as long as these arguments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury.” (People v. Pensinger (1991) 52 Cal.3d 1210, 1251 [ 278 Cal.Rptr. 640 , 805 P.2d 899 ].) We do not think the prosecutor’s statements exceeded the bounds of proper argument. The statements at issue constituted reasonable comment on the evidence. A fair review of the record supports the description of defendant as someone who posed a threat to the entire community. The prosecutor, moreover, had reminded the jurors that the verdict could not be influenced by their passions and prejudices, and the trial court subsequently so instructed them.
Defendant contends that the prosecutor attempted to shift the burden of proof to the defense when, at the conclusion of his remarks regarding the Davis murder, he summarized as follows:
“What fact—what fact other than conjecture and insinuation do you have to say there is a reasonable interpretation of that evidence that leads to the defendant’s innocence? What? None. You don’t have any. There is none.
“Think of what set of circumstances that are reasonable that will hold water, that will hold together, that would say to you as a jury the defendant did not kill Sylvester Davis. There is no evidence. The only evidence you have is that the defendant went into that place alone and left alone.”
We conclude no misconduct occurred. Although a prosecutor may comment that a defendant has not produced any evidence, he or she may not *1196 suggest that “a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.” (People v. Bradford (1997) 15 Cal.4th 1229, 1340 [ 65 Cal.Rptr.2d 145 , 939 P.2d 259 ].) Here, the prosecutor did not cross the critical line, as there is no reasonable likelihood the jurors would have understood the prosecutor’s argument as imposing any burden on defendant.
Nor is there a reasonable likelihood the jurors would have understood the comments as an indirect reference on defendant’s failure to testify, in violation of Griffin v. California, supra, 380 U.S. at pages 613-615. The prosecutor’s comments here “did not allude to the lack of refutation . . . but rather to the lack of evidence, which might have been presented in the form of physical evidence or testimony other than that of defendant.” (People v. Bradford, supra, 15 Cal.4th at p. 1340.) The comments cannot fairly be interpreted as referring to defendant’s failure to testify.
(3) Alleged References to Matters Not in Evidence
Defendant contends the prosecutor engaged in misconduct when he made several references to matters not in evidence. First, he asserts that during closing argument and rebuttal, the prosecutor improperly referred to, and attempted to read from, the search warrant affidavit executed by Sergeant Sitterud that the trial court had ruled inadmissible. In closing argument, the prosecutor mentioned that Sitterud had obtained a search warrant to search defendant’s home and that Sitterud had filed an affidavit to obtain the search warrant. The trial court overruled a defense objection and deemed the reference fair argument. In rebuttal, the prosecutor attempted to read from the affidavit that Sitterud “talked to Luther Thomas” and that “Thomas described the gun as a large, dark revolver, .38.” The trial court sustained the defense objection to these references on the basis that the affidavit was not in evidence and instructed the jury that the prosecutor was permitted to argue only as to what a witness testified but not as to the contents of the affidavit. We conclude that the prosecutor’s transgression, if any, was minor and neither deceptive nor reprehensible. (See, e.g., People v. Osband (1996) 13 Cal.4th 622, 698 [ 55 Cal.Rptr.2d 26 , 919 P.2d 640 ].) Any prejudice was cured by the court’s prompt admonition. (See, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1146-1147 [ 124 Cal.Rptr.2d 373 , 52 P.3d 572 ].)
Next, defendant cites the prosecutor for arguing as follows: “And [Frazier and Fite] were walking up 89th, and this car . . . drives up. . . . And the guy walks up, turns around and says: What did you say? And Ricky says: Wasn’t talking to you. And the guy starts shooting, [f] Now how many shots are in a gun, handgun, .38 caliber? Six. [f] And you know four were fired at [Miller’s house], ...[]□ And he starts shooting and he fires two or three shots. If he *1197 fires three he would have had to reload.” Defendant contends this argument was sheer speculation because the gun was never recovered and the prosecution’s ballistics expert did not testify regarding the number of bullets in the gun. He claims prejudice because the argument allowed the prosecutor to assert the Frazier killing was premeditated.
We find no misconduct. Counsel may argue facts not in evidence that are common knowledge or drawn from common experiences. (People v. Boyette, supra, 29 Cal.4th at p. 463.) Here, the prosecutor’s argument that the handgun held only six shots was based on common experience that some .38-caliber handguns hold just six shots. While such an argument is indeed speculative, it was also harmless. There is no reasonable likelihood the jurors misconstrued the prosecutor’s remarks as suggesting they should consider facts not before them.
Defendant complains further that the prosecutor erroneously argued he (defendant) told Fite, “Bitch, you get out of here or I’ll kill you too,” and thereby improperly implied he intended to kill Frazier. (Italics added.) Fite actually had testified that defendant told her to run or he would “shoot [her] too.” (Italics added.)
No misconduct appears. Although the prosecutor inaccurately quoted Fite’s testimony, the jury reasonably could infer defendant’s intent to kill Frazier from the totality of the evidence. When defendant warned Fite to run, he was pointing a gun at Fite and Frazier. Frazier was crouched down with his hands over his face, begging for his life. Seconds later, defendant shot and killed Frazier. Thus, there is no reasonable likelihood that the prosecutor’s misstatement misled the jury.
Finally, defendant faults the prosecutor for telling the jury, without a factual basis, that Fite and Livingston did not know each other and met for the first time at the live lineup. The record shows only that Miller attended the same live lineup as Livingston. Nonetheless, the mistake was harmless. “The jury in this case was given the usual advisements that statements by counsel are not evidence, and that it had the duty to determine which facts were proven by the evidence.” (People v. Younger (2000) 84 Cal.App.4th 1360, 1384 [ 101 Cal.Rptr.2d 624 ].)
(4) Alleged Vouching
Defendant contends the prosecutor engaged in misconduct by vouching for the credibility of the ballistics expert: “It is as plain as the nose on your face. There [are] not millions of guns. There is one gun. We don’t know where it is, but there is one gun, and the defendant used it on all of his victims .... *1198 [][]... [][] Now, Chester Young has never seen the defendant except here in the courtroom. He has no idea who is doing the shooting. He is just looking at bullets. He is pure as driven snow looking at bullets.” (Italics added.)
“Prosecutorial assurances, based on the record, regarding the apparent honesty or reliability of prosecution witnesses, cannot be characterized as improper ‘vouching,’ which usually involves an attempt to bolster a witness by reference to facts outside the record.” (Medina, supra, 11 Cal.4th at p. 757 , italics omitted.) Here, the challenged comment merely alluded to the expert’s objectivity in analyzing the ballistics evidence in this case, and did not constitute improper vouching.
Defendant further argues the prosecutor “back-handedly” vouched for the credibility of Melva Fite by twice criticizing defense counsel’s “unmitigated gall” in doubting her veracity. The record shows that counsel called Fite’s credibility into doubt by suggesting she was engaged in drug activities with Frazier shortly before he was shot. In criticizing this attack on Fite’s credibility, the prosecutor stated, “There is no evidence. None that [Fite] was out there for some illicit purpose. It is insinuation and conjecture on the part of [counsel].” The prosecutor’s criticism, thus, was based on the evidence, or lack thereof, and was entirely proper. (Medina, supra, 11 Cal.4th at p. 757 .)
(5) Cumulative Impact
Defendant contends the cumulative impact of the prosecutor’s misconduct violated his rights to due process, a fair jury trial, and a reliable, nonarbitrary penalty determination under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and compels reversal. Assuming these claims were properly preserved for review (see People v. Yeoman, supra, 31 Cal.4th at pp. 117, 133), they nonetheless fail on the merits because he has not shown any prejudicial misconduct.
5. Asserted Trial Court Error in Admitting Rebuttal Testimony
Prosecution witness Melva Fite testified on direct examination that defendant, holding a gun, had exited the driver’s side of the vehicle before he approached Fite and Frazier on 90th Avenue and shot Frazier. On cross-examination, Fite acknowledged she had provided oral and written statements to police that the passenger exited the vehicle and did the shooting on 89th Avenue and 90th Avenue and that the driver never exited the vehicle.
During the defense case, Officers Derrick Norfleet and Brian Thiem both confirmed that Fite had stated the shooter exited the passenger side of the vehicle on 89th Avenue and 90th Avenue. In rebuttal, the prosecution sought *1199 to call Dolores White to rehabilitate Fite’s credibility by testifying that she (White) observed the man who shot Frazier on 90th Avenue exit the driver’s side of the vehicle and that another man was in the passenger seat. Defendant objected to the rebuttal as improper because the defense impeached Fite’s credibility on cross-examination and because White had been available to the prosecution during its case-in-chief. The prosecutor replied the proffered testimony was proper to rebut evidence presented by the defense in its own case-in-chief that corroborated its impeachment of Fite.
Pursuant to People v. Carter (1957) 48 Cal.2d 737, 753-754 [ 312 P.2d 665 ], the court ruled White’s testimony admissible and more probative than prejudicial. On appeal, defendant contends that the trial court erred. We disagree.
The decision to admit rebuttal evidence rests largely within the discretion of the trial court and will not be disturbed on appeal in the absence of demonstrated abuse of that discretion. (§ 1093, subd. (d); People v. DeSantis (1992) 2 Cal.4th 1198, 1232 [ 9 Cal.Rptr.2d 628 , 831 P.2d 1210 ].) In People v. Carter, supra, 48 Cal.2d at pages 753-754, we stated “proper rebuttal evidence does not include a material part of the case in the prosecution’s possession that tends to establish the defendant’s commission of the crime. It is restricted to evidence made necessary by the defendant’s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.” Restrictions are imposed on rebuttal evidence (1) to ensure the presentation of evidence is orderly and avoids confusion of the jury; (2) to prevent the prosecution from unduly emphasizing the importance of certain evidence by introducing it at the end of the trial; and (3) to avoid “unfair surprise” to the defendant from confrontation with crucial evidence late in the trial. (People v. Bunyard (1988) 45 Cal.3d 1189, 1211 [ 249 Cal.Rptr. 71 , 756 P.2d 795 ]; Carter , at pp. 753-754.)
Here, White’s testimony corroborated the portion of Fite’s testimony that had been impeached by defense witnesses Norfleet and Thiem. The substance of White’s testimony, therefore, had already been conveyed to the jury during the prosecution’s case-in-chief. Testimony that repeats or fortifies a part of the prosecution’s case that has been impeached by defense evidence may properly be admitted in rebuttal. (See, e.g., People v. Carrera (1989) 49 Cal.3d 291, 322 [ 261 Cal.Rptr. 348 , 777 P.2d 121 ]; People v. Graham (1978) 83 Cal.App.3d 736, 741 [ 149 Cal.Rptr. 6 ], disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 569 [ 76 Cal.Rptr.2d 239 , 957 P.2d 928 ].) Further, as the trial court determined, the introduction of White’s testimony in rebuttal did not implicate the concerns addressed in Carter . On this record, we find no abuse of discretion in permitting the rebuttal testimony.
*1200 Defendant additionally contends the trial court’s error in admitting the rebuttal testimony violated his Fifth, Sixth, and Fourteenth Amendment rights under the federal Constitution to due process of law and a fair trial and also violated section 1093 (order of trial proceedings), thereby impairing his Fourteenth Amendment liberty interest under Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [ 65 L.Ed.2d 175 , 100 S.Ct. 2227 ]. Assuming these claims were properly preserved for review (see People v. Yeoman, supra, 31 Cal.4th at pp. 117, 133), they are without merit because we have concluded that the trial court did not err in admitting the rebuttal testimony. For the same reason, his contention that the prosecutor engaged in misconduct by reserving White’s testimony for rebuttal is also meritless.
6. Instructional Issues
a) Aiding and Abetting Instructions
Defendant requested that the jury be instructed on an aider and abettor theory of liability, as relevant to the Davis murder, on the basis that there was substantial evidence on which the jury could find he was not the actual perpetrator, but merely an aider and abettor. 12 The trial court denied defendant’s request. Defendant claims this was error.
Even absent a request, the trial court must instruct on the general principles of law applicable to the case. (Koontz, supra, 27 Cal.4th at p. 1085 .) The general principles of law governing a case are those that are commonly connected with the facts adduced at trial and that are necessary for the jury’s understanding of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047 [ 31 Cal.Rptr.2d 128 , 874 P.2d 903 ].) The trial court must give instructions on every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case. (Ibid.) Evidence is “substantial” only if a reasonable jury could find it persuasive. (People v. Hagen (1998) 19 Cal.4th 652, 672 [ 80 Cal.Rptr.2d 24 , 967 P.2d 563 ].) The trial court’s determination of whether an instruction should be given must be made without reference to the credibility of the evidence. (People v. Tufunga (1999) 21 Cal.4th 935, 944 [ 90 Cal.Rptr.2d 143 , 987 P.2d 168 ].) The trial court need not give instructions based solely on conjecture and speculation. (People v. Day (1981) 117 Cal.App.3d 932, 936 [ 173 Cal.Rptr. 9 ].)
*1201 Instructions on aiding and abetting are not required where “[t]he defendant was not tried as an aider and abettor, [and] there was no evidence to support such a theory . . . .” (People v. Sassounian (1986) 182 Cal.App.3d 361, 404 [ 226 Cal.Rptr. 880 ].) In this case, we conclude the trial court did not err in denying defendant’s request for instructions on aiding and abetting as to the Davis murder.
According to defendant, the evidence in the record establishes that at least two gunmen were in the house because: (1) Thomas and Livingston provided the police with different descriptions of the assailant; (2) the police found a .32-caliber cartridge in the southwest bedroom and recovered a .38-caliber bullet from the kitchen and another from the hallway; (3) Robinson heard Davis say, “Oh, they going to kill me”; (4) as Livingston observed the man in the knit watch cap in front of the house, Robinson was being accosted by the man in the baseball cap down the street; and (5) the presence of the dark four-door car in front of the house suggests that a “getaway driver” was used and that defendant did not act alone. Under defendant’s theory, a reasonable jury could have found that he shot Thomas with a .38-caliber gun and a second gunman shot and killed Davis with a .32-caliber gun as defendant accosted Robinson down the street.
Defendant overlooks the fact that both Thomas and Livingston positively identified him at trial as their assailant. These identifications were corroborated by their independent identifications of the jacket taken from defendant on the day of his arrest as “similar” to the one worn by their assailant on February 19, 1989. To find defendant guilty on a theory of aiding and abetting rather than as the actual shooter, the jury would have had to disbelieve either Thomas or Livingston and speculate, based on the descriptions Thomas and Livingston provided to investigators, that defendant and another gunman were in the house. The jury would have had to then speculate that (1) the other gunman shot and killed Davis; (2) defendant shot Thomas and accosted Robinson; and (3) in doing so, defendant acted with the intent of aiding and abetting the second gunman in killing Davis. Such speculation does not mandate instruction on an aiding and abetting theory. (People v. Perry (1972) 7 Cal.3d 756, 785 [ 103 Cal.Rptr. 161 , 499 P.2d 129 ], overruled on another ground in People v. Green, supra, 27 Cal.3d at pp. 27-34; see also People v. Day, supra, 117 Cal.App.3d at p. 936 .) Accordingly, the trial court did not err in denying defendant’s request for aiding and abetting instructions as to the Davis murder.
Defendant further contends that the trial court’s erroneous denial of his request for instructions on an aiding and abetting theory as to the Davis murder deprived him of an impartial jury, a reliable penalty determination, and due process under the Sixth, Eighth, and Fourteenth Amendments to the *1202 federal Constitution, respectively. Assuming these claims were properly preserved for review (see People v. Yeoman, supra, 31 Cal.4th at pp. 117, 133), his point is without merit because we conclude that the trial court did not err in declining the requested instructions.
b) Second Degree Murder Instructions
Prior to instructing on aiding and abetting, the trial court stated: “The following four instructions should be considered by you only as they apply to counts four [attempted robbery of Fite] and five [Frazier murder],” followed by the relevant instructions. 13 Immediately thereafter, the court instructed as to second degree murder pursuant to CALJIC No. 8.30.
Defendant contends that based on the above instructions, the trial court misinformed the jury that it could consider the instruction defining second degree murder only with regard to the Frazier murder, because the jury would have erroneously believed CALJIC No. 8.30 was one of the “following four instructions” to be considered only as it applied to count 4 (attempted robbery of Fite) and count 5 (Frazier murder). We reject the contention.
“If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.” (People v. Smithey (1999) 20 Cal.4th 936, 963 [ 86 Cal. Rptr. 2d 243 , 978 P.2d 1171 ]; see Estelle v. McGuire (1991) 502 U.S. 62 , 72 & fn. 4 [ 116 L.Ed.2d 385 , 112 S.Ct. 475 ].) “ ‘ “ ‘[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.’ ” ’ ” (Smithey, at p. 963, quoting People v. Musselwhite (1998) 17 Cal.4th 1216, 1248 [ 74 Cal.Rptr.2d 212 , 954 P.2d 475 ].) The reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury. (See People v. Garceau (1993) 6 Cal.4th 140, 189 [ 24 Cal.Rptr.2d 664 , 862 P.2d 664 ] [any possibility of confusion about conspiracy instruction was diminished by the parties’ closing arguments], disapproved on another ground in People v. Yeoman, supra, 31 Cal.4th at pp. 117-118; People v. McPeters (1992) 2 Cal.4th 1148, 1191 [ 9 Cal.Rptr.2d 834 , 832 P.2d 146 ] [correct view of the law regarding mitigating factors in penalty phase trial was reinforced by the parties’ closing arguments].)
As a preliminary matter, a defendant’s failure to request a clarification instruction forfeits that claim on appeal. (People v. Marks (2003) 31 *1203 Cal.4th 197, 237 [ 2 Cal.Rptr.3d 252 , 72 P.3d 1222 ].) Here, however, portions of the record regarding the parties’ discussion of the jury instructions before the trial court are missing. Thus, because it cannot be ascertained whether defense counsel specifically requested clarification, we shall give defendant the benefit of the doubt and find the issue preserved for appeal. Nonetheless, defendant’s claim is without merit.
The record contains no inquiries from the jury regarding the application of these instructions. We agree with respondent that if the instructions were susceptible of the interpretation defendant now asserts, counsel likely would have objected at trial on this basis. Such an omission suggests that “ ‘the potential for [confusion] argued now was not apparent to one on the spot.’ ” (People v. Keenan (1988) 46 Cal.3d 478, 535 [ 250 Cal.Rptr. 550 , 758 P.2d 1081 ] [failure to object to trial court’s remarks about potential jury investigation suggested the potential for coercion was not discernible], quoting Lowenfield v. Phelps (1988) 484 U.S. 231, 240 [ 98 L.Ed.2d 568 , 108 S.Ct. 546 ].) Counsel’s arguments, moreover, informed the jury that it could consider second degree murder as to the Rivers, Frazier, and Davis murders. Therefore, we find no basis to conclude the jury misinterpreted the above instructions or was confused in any manner as to the applicability of the second degree murder instruction to all of the charged murders. Accordingly, we conclude the trial court did not erroneously limit the second degree murder instructions to the Frazier murder charge.
Defendant additionally contends that the trial court’s error in this regard violated his rights to an impartial jury under the Sixth Amendment, to a reliable penalty determination under the Eighth Amendment, and to due process of law under the Fourteenth Amendment of the United States Constitution. Assuming these claims were properly preserved for review (see Yeoman, supra, 31 Cal.4th at pp. 117, 133), they are meritless given we conclude that the trial court did not err.
c) CALJIC No. 8.80
Defendant was found death eligible based in part on the robbery-felony-murder special circumstances the jury found true with respect to the Rivers and Frazier murders. The robbery-felony-murder special circumstance applies when “[t]he murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit . . . [f] [jobbery . . . .” (§ 190.2, subd. (a)(17)(A).) Here, the trial court instructed the jury pursuant to CALJIC No. 8.80 [Pre-June 6, 1990 Special Circumstances— Introductory] that if it found “beyond a reasonable doubt that defendant was the actual killer in the Terry Rivers killing in Count One, [and] the Glen *1204 Frazier killing in Count Five, . . . you need not find that the defendant intended to kill a human being in order to find the special circumstances to be true.” Citing Tison v. Arizona (1987) 481 U.S 137, 158 [ 95 L.Ed.2d 127 , 107 S.Ct. 1676 ], and Enmund v. Florida (1982) 458 U.S. 782, 787 [ 73 L.Ed.2d 1140 , 102 S.Ct. 3368 ], defendant asserts that CALJIC No. 8.80 is constitutionally defective under the Eighth and Fourteenth Amendments because it permits a finding of death eligibility in the absence of a jury finding that the defendant either intended to kill the victim or, as a major participant in the underlying felony, exhibited a reckless indifference to human life.
“The United States Supreme Court has made clear that felony murderers who personally killed may properly be subject to the death penalty in conformance with the Eighth Amendment—after proper consideration of aggravating and mitigating circumstances—even where no intent to kill is shown. (Cabana v. Bullock (1986) 474 U.S. 376, 386-387 [ 88 L.Ed.2d 704 , 106 S.Ct. 689 ]; see Tison v. Arizona (1987) 481 U.S. 137, 152 [ 95 L.Ed.2d 127 , 107 S.Ct. 1676 ].) Subsequently, ‘[i]n People v. Anderson [(1987) 43 Cal.3d 1104, 1147 [ 240 Cal.Rptr. 585 , 742 P.2d 1306 ]], we held that with respect to the actual killer, the court need not instruct on intent to kill in connection with felony-murder special circumstances. Such an instruction is required only when there is evidence from which the jury could find that the defendant was an accomplice rather than the actual killer.’ (People v. Gates (1987) 43 Cal.3d 1168, 1193 [ 240 Cal.Rptr. 666 , 743 P.2d 301 ].)” (People v. Belmontes (1988) 45 Cal.3d 744, 794 [ 248 Cal.Rptr. 126 , 755 P.2d 310 ], italics omitted.) Defendant asks that we reconsider our decision in Anderson, but he offers no persuasive reason to do so.
Defendant further asserts that as to the Rivers and Frazier murders, the evidence was insufficient to establish he was the actual killer and intended to kill. “Evidence that the defendant is the actual killer and guilty of felony murder . . . establishes ‘a degree of culpability sufficient under the Eighth Amendment to permit defendant’s execution.’ ” (People v. Smithey, supra, 20 Cal.4th at p. 1016 ; see People v. Hayes (1990) 52 Cal.3d 577, 632 [ 276 Cal.Rptr. 874 , 802 P.2d 376 ] (Hayes).) Moreover, a jury’s guilty verdict satisfies the requirements under Enmund , even though the triad court’s instructions did not explicitly require it to find the Enmund factors, when “the theory on which the case was tried and the evidence received leave no doubt that the jury’s verdict rested on a finding that the defendant killed or intended to kill.” (Cabana v. Bullock, supra, 474 U.S. at p. 391, fn. 6 .)
We conclude that the record and theories presented in this case leave no doubt that as to the Rivers and Frazier murders, defendant was the actual killer and intended to kill.
*1205 With respect to the Rivers murder, the prosecution proceeded against defendant solely on the theory that he actually shot and killed Rivers before he completed his robbery of Miller. As demonstrated above (see ante, at pp. 1175-1192), substantial evidence supports defendant’s conviction for the first degree murder of Rivers based on a theory of robbery felony murder.
The jury’s true finding on the allegation that defendant personally used a handgun during the commission of the Rivers murder is further evidence that the jury concluded he actually killed Rivers. Defendant argues, however, that because a weapon is used, if it is merely displayed in a menacing manner and never fired (see People v. Wims (1995) 10 Cal.4th 293, 302 [ 41 Cal.Rptr.2d 241 , 895 P.2d 77 ]) the gun-use true finding does not necessarily establish that he is the actual killer. Although “[t]he finding of personal use . . . would not in itself prove defendant was the actual killer” (People v. Jones (2003) 30 Cal.4th 1084, 1120 [ 135 Cal.Rptr.2d 370 , 70 P.3d 359 ]), here the evidence shows that only one gun was used to commit the crimes at the Miller residence. The prosecution’s ballistics expert testified that the bullets removed from the bodies of Miller and Rivers were fired from the same gun. The defense, moreover, presented no evidence that anyone else who may have been present at the Miller residence displayed in a menacing manner, or otherwise used, a gun. Thus, all evidence points to defendant as the one who actually shot and killed Rivers.
We conclude the jury necessarily found defendant to be the actual killer of Rivers, “thereby establishing a degree of culpability sufficient under the Eighth Amendment to permit defendant’s execution.” (Hayes, supra, 52 Cal.3d at p. 632.)
With respect to the Frazier murder, the prosecution’s case against defendant was similarly based upon the theory that defendant actually shot and killed Frazier during a robbery. This theory was supported by evidence that just before the Frazier murder, defendant and his cousin, Patrick Jackson, approached Fite and Frazier as they stood on the sidewalk near the comer of 90th Avenue and Cherry Street in Oakland. Defendant exited the driver’s side of the car, approached Fite and Frazier, pointed a dark gun at them, and demanded their money. Fite and Frazier begged for their lives. Moments later, after defendant told Fite to mn, Fite heard two shots and then saw Frazier slump to the ground.
Patrick Jackson, defendant’s cousin, testified under a grant of immunity that defendant was driving a black-over-green Ford LTD on the night in question and pulled into a driveway near 89th Avenue and Cherry Street. According to Jackson, defendant possessed a dark revolver with a brown handle when he initially got into the car. Jackson heard at least one shot and *1206 saw Fite run down Cherry Street. After defendant returned to the car, he drove Jackson to an apartment on 76th Avenue. Along the way, defendant told Jackson that the man he shot had robbed him earlier. At the apartment, defendant parked his car, and Jackson got his own car. Defendant and Jackson then went to a motel room that Jackson had rented during the afternoon of the 29th and spent the rest of the night watching television and sleeping.
The defense argued it was Jackson who exited the driver’s side and shot Frazier and that, at most, defendant was guilty of aiding and abetting. But no evidence indicated that someone other than the actual killer possessed a gun. Thus, in finding defendant guilty of the first degree murder of Frazier and sustaining the allegation that he personally used a gun during commission of the murder, the jury necessarily rejected this defense and found defendant to be the actual killer. We therefore conclude that defendant’s culpability was sufficiently established under the Eighth Amendment to permit his execution. (Hayes, supra, 52 Cal.3d at p. 632.)
Accordingly, we need not address defendant’s contention that, because the jury was also instructed on an aiding and abetting theory as to the Frazier murder, the trial court erred by failing to instruct the jury that it must find defendant was a major participant in the underlying felony (robbery) and acted with reckless indifference to human life before it could find him death eligible pursuant to the robbery-felony-murder special-circumstance (section 190.2, subdivision (a)(17)(A)). Any instructional error was harmless beyond a reasonable doubt. (People v. Jones, supra, 30 Cal.4th at p. 1120; Chapman v. California (1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 ].)
7. Cumulative Error
Defendant contends that the cumulative effect of the guilt phase errors asserted requires reversal regardless of the prejudicial impact of any single error. Because we have determined that no prejudicial error or misconduct occurred at the guilt phase, this contention necessarily lacks merit as well.
C. Penalty Phase
1. Unadjudicated Criminal Conduct
During the penalty phase, the prosecution presented, over defendant’s objection, the following evidence that defendant had committed the unadjudicated battery and witness intimidation of Steven Ross (the Ross battery and witness intimidation), in violation of sections 242 and 136.1, respectively. *1207 (§ 190.3, factor (b) [permitting jury consideration of “criminal activity by the defendant which involved the use or attempted use of force or violence”].)
On July 16, 1990, during this trial, the police arrested Steve Ross and took him to Oakland Municipal Court where he met with the prosecutor and chief investigator in this case. After this meeting, officers took Ross to the Alameda County Jail and placed him in a holding cell with approximately 15 other inmates. The holding cell was equipped with a toilet bowl and washbasin. About 30 minutes later, officers placed defendant in the holding cell.
Ross testified that after defendant was placed in the holding cell, defendant walked over to him, smiled, and began to punch him in the face. Ross fell to the floor, got up, and ran to the cell door. As he banged on the cell door for help, defendant said, “You snitched on me and my lawyer had it in black and white and I should have killed you.” 14
Deputy Sheriff James King heard the disturbance and went to the holding cell where he observed defendant, Ross, and several other inmates inside. Ross was bleeding from his mouth and nose. King observed “barely noticeable” blood splattering on defendant’s jogging suit. One sleeve of defendant’s jacket was apparently wet with water up to the shoulder. The small bloodstains on defendant’s pants appeared washed out and lighter in color. King removed defendant from the holding cell and placed him in the custody of another deputy.
Defendant makes several arguments that his federal constitutional rights were violated as a result of the admission of this evidence.
a) Constitutional Challenges
Defendant asserts that (1) the admission of evidence of the Ross battery and witness intimidation as a factor in aggravation at the penalty phase violated his right to due process under the Fifth and Fourteenth Amendments; (2) section 190.3, factor (b) is unconstitutional under the Fifth and Fourteenth Amendments to the extent that it allows the same jury that has already convicted a capital defendant to be presented with such evidence; and (3) pursuant to Ring v. Arizona (2002) 536 U.S. 584 [ 153 L.Ed.2d 556 , 122 S.Ct. 2428 ], the jury must unanimously find the existence of unadjudicated criminal conduct beyond a reasonable doubt.
We have repeatedly rejected similar contentions and do so again. The jury’s consideration of evidence of unadjudicated criminal conduct *1208 during the penalty phase does not offend a defendant’s right to due process or any rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (People v. Lewis (2001) 26 Cal.4th 334, 395 [ 110 Cal.Rptr.2d 272 , 28 P.3d 34 ]; People v. Balderas (1985) 41 Cal.3d 144, 204-205 [ 222 Cal.Rptr. 184 , 711 P.2d 480 ].) Specifically, due process does not require that penalty evidence be heard by a separate jury. (Balderas, at pp. 204-205.) Jury unanimity is not required on findings of unadjudicated criminal conduct. (People v. Prieto (2003) 30 Cal.4th 226, 265 [ 133 Cal.Rptr.2d 18 , 66 P.3d 1123 ].) “Moreover, Ring [v. Arizona, supra, 536 U.S. 584 ] does not require the jury to unanimously make such a finding beyond a reasonable doubt.” (Prieto, at p. 265; see id. at pp. 262-263 [Ring does not affect the California death penalty scheme].)
b) Notice Requirement
The prosecution’s original notice of evidence in aggravation was filed pretrial on May 15, 1990, and referred to section 190.3, factor (b) evidence of “criminal activity by the defendant which involved the use or attempted use of force or violence.” No specific incident was described in the notice. On July 23, 1990, three weeks into the jury selection proceedings, the prosecution amended the notice of proposed aggravation evidence to include defendant’s alleged battery and witness intimidation of Ross that occurred one week earlier, on July 16, 1990.
Defendant contends that the prosecution failed to give timely notice of its intent to introduce evidence of the Ross battery and witness intimidation as an aggravating factor, and thus violated his rights to procedural due process under the Fourteenth Amendment and to notice under section 190.3. Respondent asserts that the claimed error is not cognizable on appeal as defendant failed to object on this ground. We agree. Defense counsel objected at trial to the admission of the evidence of other criminal conduct on the ground of “fairness,” based on the prejudicial effect of such evidence in light of the charged offenses as well as counsel’s belief that the prosecution manufactured the evidence to “create[] their own case.” Because this objection did not include the ground of inadequate notice, it was insufficient to preserve that issue for appeal. (See People v. Carrera, supra, 49 Cal.3d at p. 334 [objection that testimony was cumulative was not sufficient to preserve inadequate notice claim].)
Nonetheless, any failure to give defendant timely notice of the evidence of the Ross battery and witness intimidation was harmless. Section 190.3 declares in pertinent part that “no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined *1209 by the court, prior to trial.” (Italics added.) “We . . . have held that where the prosecution learns of evidence it intends to use in aggravation at the penalty phase for the first time after trial has commenced, exclusion of this evidence under section 190.3 is not necessarily compelled. [Citation.] Under such circumstances, the defendant is entitled to prompt notice of the newly discovered evidence, and, if necessary, to a reasonable continuance to enable him or her to prepare to meet that evidence. If the prosecution’s delay in affording notice is unreasonable or unexcused, or if the delay would prejudice the defense, the court must exclude the evidence.” (People v. Mitcham (1992) 1 Cal.4th 1027, 1070 [ 5 Cal.Rptr.2d 230 , 824 P.2d 1277 ].)
Here, the original notice filed by the prosecution prior to trial did not mention the evidence of the Ross battery and witness intimidation, as the incident did not occur until two weeks after the jury selection proceedings had commenced. One week after the alleged battery and witness intimidation occurred, however, and some three months prior to commencement of the guilt phase, the defense was notified that the prosecution intended to introduce this evidence in the penalty phase. Disclosure was made promptly under the circumstances, and defendant clearly had adequate time to meaningfully prepare to defend against the evidence. (People v. Daniels (1991) 52 Cal.3d 815, 880, fn. 28 [ 277 Cal.Rptr. 122 , 802 P.2d 906 ] [notice was given months before the penalty trial].) Indeed, counsel’s failure to request a continuance suggests that any defect in the notice was not prejudicial. (Pinholster, supra, 1 Cal.4th at p. 957.) Thus, the absence of a showing of prejudice precludes relief in any event.
c) Phillips Hearing
Defendant contends that the trial court violated his Eighth Amendment right to a reliable determination of penalty and Fourteenth Amendment right to due process when it denied his request for a hearing pursuant to People v. Phillips (1985) 41 Cal.3d 29 [ 222 Cal.Rptr. 127 , 711 P.2d 423 ], to determine the existence of substantial evidence to prove each element of the Ross battery and witness intimidation.
In Phillips , a plurality of this court suggested “that in many cases it may be advisable for the trial court to conduct a preliminary inquiry before the penalty phase to determine whether there is substantial evidence to prove each element of the other criminal activity.” (People v. Phillips, supra, 41 Cal.3d at p. 72, fn. 25 (plur. opn. of Reynoso, J.).) We did not, however, require such an inquiry. (Clair, supra, 2 Cal.4th at p. 677, citing People v. Jennings (1991) 53 Cal.3d 334, 389 [ 279 Cal.Rptr. 780 , 807 P.2d 1009 ].) Nor did we predicate the admission of evidence of unadjudicated criminal conduct on the outcome of such an inquiry. (Jennings, at p. 389.) Therefore, the trial court did not err in denying his request to conduct a Phillips hearing.
*1210 d) Sufficiency of Evidence of a Battery and Witness Intimidation
Defendant asserts that the evidence was insufficient to prove he committed battery and witness intimidation, within the meaning of sections 242 and 136.1, respectively.
The trial court instructed the jury that “[b]efore a juror may consider any such criminal acts as an aggravating circumstance in this case, a juror must first be satisfied beyond a reasonable doubt that the defendant, Robert Young, did, in fact, commit such criminal acts.”
Evidence that defendant, unprovoked, approached Ross in the holding cell and punched him in the face, causing him to bleed from his nose and mouth, is plainly sufficient to constitute a battery. (See § 242; People v. Madison (1969) 3 Cal.App.3d 984, 986 [ 84 Cal.Rptr. 71 ] [evidence that suspect kicked police officer and scratched him about the face and on his right hand was sufficient to sustain simple battery conviction].)
The crime of intimidating a witness requires proof that the defendant specifically intended to dissuade a witness from testifying. (People v. Lyons (1991) 235 Cal.App.3d 1456, 1460-1462 [ 1 Cal.Rptr.2d 763 ]; People v. Ford (1983) 145 Cal.App.3d 985, 989-990 [ 193 Cal.Rptr. 684 ].) Defendant complains that the prosecution did not prove that he had the requisite specific intent. He argues that his statement to Ross in the holding cell that “[y]ou snitched on me and my lawyer had it in black and white and I should have killed you” neither referred to any future testimony by Ross nor constituted a threat to do anything in the future. He adds that even if his statement to Ross were misunderstood as a desire to exact retribution for Ross’s past act of assisting the police in this case, it is nonetheless insufficient to establish the specific intent element to support a conviction for intimidating a witness.
We disagree. It is the combination of defendant’s actions and words in the holding cell that provides sufficient evidence that he intended to intimidate Ross from testifying at trial. Defendant violently punched Ross about the face and told him, “I should have killed you” because he had learned from his attorney that Ross had “snitched” on him regarding this case. Jurors reasonably could have drawn the inference that the message Ross received from defendant’s retribution for Ross’s past cooperation with the police was that defendant would again harm him physically if he continued to cooperate in the future (e.g., by testifying at trial). (See People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344-1345 [ 69 Cal.Rptr.2d 728 ] [the defendant’s words not only expressed dissatisfaction with witness’s past testimony but also attempted to dissuade her from giving any further testimony in the future].) *1211 Defendant knew from his attorney that Ross was cooperating with the police, and that he expected Ross to testify at trial can be reasonably inferred. Also, because Ross spoke with defendant on the sidewalk in front of the 74th Avenue house just moments before Davis was murdered, defendant knew Ross could implicate him in the Davis murder. Thus, jurors could have reasonably inferred that defendant’s jail cell attack on Ross reflected his specific intent to intimidate Ross from testifying against him in the future.
We conclude the evidence was sufficient to prove that defendant committed the offenses of battery and witness intimidation, and was therefore admissible pursuant to section 190.3. Even if the evidence were somehow insufficient to show witness intimidation, it was admissible to show battery.
e) Asserted Error in Instruction on Witness Intimidation
The trial court instructed the jury as follows regarding the offense of witness intimidation, in violation of section 136.1: “Every person who knowingly and maliciously prevents or dissuades, or attempts to so prevent or dissuade any witness from attending or giving testimony at any trial,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9786104. Public record. Not legal advice.