People v. Hajek and Vo

*1157 Opinion

BAXTER, J.

Defendants Stephen Edward Hajek and Loi Tan Vo were convicted of the 1991 murder of Su Hung (Pen. Code, § 187) 1 as to which lying-in-wait and torture-murder special circumstances were found true (former § 190.2, subd. (a)(15), (18)). Additionally, defendants were convicted of four counts of premeditated attempted murder (§§ 664, 187), one count of kidnapping (§ 207, subd. (a)), three counts of false imprisonment (§§ 236, 237), one count of robbery (§§ 211, 212.5, subd. (a)), and one count of first degree burglary (§ 459, former § 460.1). Hajek was separately convicted of dissuading a witness. (§ 136.1, subd. (c)(1).) The jury also found true firearm use allegations as to Hajek and deadly or dangerous weapon use allegations as to Vo, in their commission of the murder, attempted murder, kidnapping, and false imprisonment counts. (Former §§ 12022, subd. (b), 12022.5, subd. (a).)

Following the penalty phase trial, the jury returned verdicts of death as to each defendant, which the trial court declined to modify. The court sentenced each defendant to death for the murder of Su Hung, and on the remaining counts, sentenced Hajek to life plus 21 years and Vo to life plus nine years. This appeal is automatic.

For the reasons set forth herein, we reverse the lying-in-wait special-circumstance findings as to both defendants. (See post, pt. IIB.1.a.) We also order that the firearm use enhancements found true as to defendant Hajek be struck and replaced with deadly or dangerous weapon use enhancements. (See post, pt. II.B.1.d.) In all other respects, the death judgments are affirmed.

I. Facts

A. Guilt Phase

On the morning of January 18, 1991, defendants gained access to the Wang residence, where they held various members of the family hostage for several hours. 2 At some point, they killed Su Hung, the family’s 73-year-old grandmother, who was visiting from Taiwan. The attack on the Wang family was in retaliation for a minor altercation a few days earlier between the family’s teenage daughter, Ellen, defendant Hajek, and a girl named Lori Nguyen, who was a friend of both defendants. On the night before the attack, Hajek told another friend that he was going to the house of an unidentified girl who had threatened him. He said he planned to kill each member of her family *1158 while she watched and then kill her last. The next day, he and Vo went to the Wang residence, where the events transpired that led to the charges in this case.

1. Prosecution Evidence

a. The altercation between Hajek, Nguyen, and Ellen

On January 14, 1991, between 4:30 and 5:00 p.m., Hajek and his friend, Lori Nguyen, were sitting in front of a Baskin-Robbins store eating ice cream. Hajek was 18 years old and Nguyen was 15 or 16. Ellen, also 16, and six Mends walked past the pair on their way to a Fry’s Electronics store. Ellen had once been good friends with Nguyen, but they had had a falling out. She had never seen Hajek before. One of Ellen’s friends, Tina Huynh, testified that Nguyen was “dogging” or giving them “a dirty look” as they passed. Huynh called Nguyen a “bitch,” and Nguyen responded in kind.

Subsequently, as Ellen and her friends crossed a parking lot, Hajek drove up in a white van and stopped. Nguyen was in the passenger seat. She and Huynh exchanged words and began to struggle, while Nguyen was still sitting in the car and Huynh was standing outside. Huynh’s sister, Jacee, and then Ellen joined the fight with Nguyen. Noticing the car’s ignition had been pulled out, Ellen yelled, “The car is picked,” meaning it had been stolen. Hajek exited the van, picked Ellen up, and threw her into some bushes. Ellen and Hajek cursed at each other before Hajek and Nguyen drove off.

Hajek and Nguyen went to Hajek’s house. At some point in the evening Ellen and Hajek spoke on the phone. Ellen asked Hajek if he had a problem with her or wanted to start something with her. The conversation ended with their screaming obscenities at each other. Ellen testified she had no further communication with Hajek, but Nguyen testified that Ellen made a series of “crank calls” to Hajek that evening and threatened to have friends of hers kill him. Nguyen testified that Hajek threatened Ellen in return and “probably” discussed getting revenge. At some point, while Nguyen was still at Hajek’s house, defendant Vo showed up. Vo was present when some of the crank calls from Ellen to Hajek were made.

Vo and Hajek were very close Mends and part of a group of Mends that also included Nguyen. Vo harbored intense feelings for Nguyen that she did not reciprocate because she had a boyMend. Hajek also had romantic feelings toward Nguyen that she did not return.

b. Hajek’s conversation with Tevya Moriarty

On the evening of January 17, 1991, three days after the fight, Hajek telephoned Tevya Moriarty. Moriarty and Hajek had worked together at the *1159 Home Express during the summer of 1990. Moriarty had been on friendly terms with Hajek, though he was not a close friend. Moriarty asked him if he was going out with anyone. Hajek told her that he was going out with an Asian girl and that they had been involved in a fight after getting ice cream a few days earlier. He told her that he had pushed a girl into some bushes during the incident and that he wanted to get back at that girl. He said he was going to go to the girl’s house and kill her and her family. Hajek told Moriarty he planned to kill the girl’s family first and to kill her last because he “wanted to look in her eyes when he killed her.” He also said he was going to make the incident look like a robbery. Hajek said all this in a conversational tone of voice. Moriarty did not believe he was really planning to do these acts.

The next day, Moriarty saw a television report of the crimes at the Wang residence and told her parents about her conversation with Hajek. When she learned that Hajek was one of the culprits, she went to the police. Moriarty talked to the police on January 21, 1991, and told them it was her impression Hajek was going to enlist two other people to commit the murder and robbery. However, at trial, she could not recall what in the conversation had given her that impression and testified that Hajek spoke only of himself.

c. Hajek and Vo gain entry into the Wang residence

On January 18, 1991, the Wang family—parents Cary and Tony, and daughters Ellen and 10-year-old Alice—lived on Silver Leaf Road in San Jose. Also staying with them was 73-year-old Su Hung, Cary’s mother, visiting from Taiwan. On the morning of January 18, only Su Hung and Alice were at home.

Around 10:00 a.m., Hajek and Vo came to the door. Alice answered it. They told her they wanted to see Ellen because they had a sweater for her. Alice told them Ellen was not home. Vo handed her the sweater, and they left. A few minutes later, defendants returned. When Alice answered the door, they said they wanted to write a note to Ellen. Alice testified she did not invite defendants inside the house, but “[t]hey just came in.” Alice gave them a pen and paper. Su Hung was in the kitchen. They wrote the note, and Alice put it on the sweater. They then called Alice over, and Hajek pointed a gun at her. Hajek told Alice to get her grandmother.

Alice had to use the bathroom. Alice testified Vo told her to take her grandmother with her. When Alice and Su Hung came out of the bathroom, Vo tied up Su Hung using rope from the laundry room, which he cut with scissors or a knife. He then blindfolded her. Su Hung was trembling but compliant. Vo took her upstairs while Hajek remained downstairs with Alice, *1160 watching cartoons. Although Hajek had put the gun in his waistband, Alice was frightened. Vo came downstairs, and then Hajek took Alice to the upstairs bathroom, where she remained for what seemed like a long time before defendants told her she could come out. While she was in the bathroom, she heard clattering noises, like marbles or coins. Vo took her downstairs; 10 minutes later Hajek followed. At some point, Alice’s mother, Cary, called the house. Alice was allowed to answer the phone, but defendants told her to speak English.

Alice testified that Cary told her she was coming home and, as previously planned, she was going to take Su Hung to the beauty salon, and then the three of them would go out to lunch. Alice did not typically speak to her mother in English, and Cary asked if anything was wrong. Alice was frightened and said no. Sometime later, maybe a half-hour, Alice heard the garage door open. Vo went into the downstairs bathroom after taking a knife from the kitchen. Before he went into the bathroom, Vo told Alice to stay seated on the sofa and to try to calm her mother down.

Cary testified that when she entered the house through the garage, Vo came out of the bathroom, placed a hand over her mouth, and with the other hand held a knife to her throat. Vo told Cary not to scream, or he would kill her whole family. Both he and Hajek were wearing gloves. Cary was upset and frightened. She told Vo to put down his knife and she would give him anything he wanted as long as he did not hurt her family. She ended up sitting with Vo at the dining room table. Vo told Cary he was looking for Ellen because she had had an argument with his relative at school. At some point, Vo returned the knife to the kitchen. Alice told her mother the men had had a gun and had pointed it at her. Hajek also told her he had two guns, although Cary never saw a gun.

Cary repeatedly begged defendants to allow her to see her mother because Su Hung suffered from high blood pressure. Hajek went upstairs alone, and then a second time he went upstairs with Alice. When Alice went upstairs with Hajek, she was not allowed to go into the room where her grandmother was being held. She stood at the doorway and “peeked” into the room, but could only see her grandmother’s legs. Alice reported to her mother that her grandmother was reading a newspaper. 3

*1161 d. Vo and Cary go to Ellen’s school; Tony comes home

Cary told defendants that Ellen would be home around 3:00 p.m. On direct examination, Cary testified that Vo said he could not wait that long and demanded that Cary take him to Ellen’s school. He told her that Ellen and his relative had had an argument at school and that he had come to the Wang residence to teach her a lesson. He said she would know what kind of lesson when Ellen got home. Cary testified that when Vo said this, he “look[ed] mean.” Before they left, Cary asked if she could cancel some appointments, a ruse to call her husband, Tony. She called Tony and told him she needed to cancel a 1:00 o’clock appointment. Tony was surprised to hear from her. She sounded strange to him. He asked Cary if she meant he should come home at 1:00 o’clock. She said yes. Cary was allowed to make a second call to her office, a travel agency, where she spoke to Sofia Kuo. She told Kuo she had to cancel an appointment because there was an emergency at home “similar to something that happened before.” Cary was alluding to the burglary of her house two years earlier. She hoped the hint would alert Kuo.

Vo and Cary left in Cary’s car. Vo told her he had a gun. When they got to Ellen’s school, Cary was told that Ellen was not there. Vo stayed at her side. After they left the school, Cary told him she had emergency airline tickets that she needed to drop off at her office. When they arrived at the office, Cary managed to tell a man named Paul, who worked next door, to call the police. She and Vo then drove back to the Wang residence. On the way, they passed a police car and Vo asked her whether she had called the police. He had repeatedly threatened to kill her family if she called the police. When they got to her house, Vo ordered her to park in the garage.

While Cary and Vo were out, Tony had come home. He testified that when he entered the house, he saw Alice sitting with Hajek at the dining room table playing cards. Alice told him that defendants had guns and a knife. She also told him he could not use the telephone or go upstairs. Hajek had one of his hands in his pocket. Tony was scared. He sat down at the table and asked Alice where his wife had gone. She told him Cary and another man had gone to look for Ellen. Tony asked Hajek what he wanted. Hajek said there was a problem between Ellen and his girlfriend. He wanted to “bring her home and then scare her.” Tony said if there was a problem, maybe there was something they could do to solve it. Hajek said they had to wait until Ellen was home. Tony played cards with Alice and Hajek. Hajek kept one of his hands in his pocket. He was wearing gloves.

When Cary and Vo arrived, Tony offered defendants money and to have his daughter apologize. One of them said there was nothing to do until Ellen came home. Tony testified that each defendant went upstairs separately *1162 “many times,” but he could not remember how many times or how long they remained upstairs. At one point, Hajek again took Alice upstairs to the room where Su Hung was being held. Alice thought she was sleeping but did not get a very clear look at her. Hajek ordered Alice to tell her parents that her grandmother was okay.

Vo told Hajek that Tony looked very strong and Vo needed to tie him up. Vo tied Tony’s hands behind his back, and Hajek took him upstairs to the master bedroom. Tony asked to see his mother-in-law, but Hajek refused and said she was fine. In the master bedroom, Hajek tied Tony to the bed. Hajek threatened to kill Tony if he screamed. Tony was frightened. Tony asked to speak to Vo because he thought it would be easier to talk to another Asian. Vo came into the room and sat down by the bed. He spoke to Tony in a “very mean” way and threatened to kill him if he yelled. Then Vo gagged him.

e. The police arrive and capture defendants; Su Hung’s body is discovered

While Tony was being taken upstairs, a Mr. Cho called. He worked with Paul, the man Cary had earlier told to call the police. Cary answered the phone. Cho told her to answer yes or no and asked if she needed the police right away. Cary said yes. A few minutes later the doorbell rang—it was the police. Hajek told Alice to answer the door. As they walked toward it, Cary called to Alice in Chinese and they ran into the garage. Cary opened the garage door, and they ran to the waiting police. Cary yelled that people were still inside. She was frightened and agitated. Hajek was apprehended in the backyard as he attempted to flee. He was carrying what appeared to be a black revolver in his hand, but he threw it down when he was ordered to stop and shouted, “It’s a pellet gun.” Vo tried to run out of the house, but ran back in when a police officer pointed his shotgun at him and told him to stop. Vo stumbled and fell, and the police apprehended him. Vo was unarmed.

Police found Tony bound and gagged in the master bedroom. When the gag was removed, he said he was concerned about his mother-in-law. Su Hung was found on the floor of her bedroom, her body covered by a comforter. Her hands were tied behind her back, her mouth was gagged, and her throat had been slashed. The area around her was covered with blood, and she was dead.

f. Physical and medical evidence

In a neighborhood canvass, the police found a stolen minivan parked around the comer from the Wang residence. It was later determined to have been the vehicle defendants used. The car’s ignition switch had been removed, and there was a screwdriver in the center console. Items found in the *1163 minivan included packaging for a pair of leather bike gloves, a plastic grip for a pellet gun that matched the gun Hajek threw to the ground, and two knives.

In the laundry room of the Wang residence, where Vo was arrested, police found a brown paper bag containing five bottles of cooking oil and $278 in cash. At the top of the stairs, police found a black bag containing items taken from various rooms of the house.

Blood found on a glove used by Hajek was consistent with Su Hung’s blood. A bloodstain found on Hajek’s jacket was too small for additional testing to determine whether it was human. The serologist testified the blood on the jacket could have been transferred from the blood on Hajek’s gloves. No bloodstains were found on Vo’s clothing. Another pair of gloves, however, was found on the kitchen table. A knife in the kitchen sink tested positive for blood, but it could not be determined whether the blood was human or animal, fresh or old.

Dr. Angelo Ozoa, the chief medical examiner for Santa Clara County, performed the autopsy on Su Hung. At the time of her death, Su Hung was five feet one inch tall and weighed 87 pounds. Her death was caused by strangulation and an incised wound to her neck. She was first strangled and then, while she was still alive, her throat had been slashed. Ozoa could not provide a time of death. He saw other injuries on the body in addition to the lethal injuries. There was a recent bruise on the right side of Su Hung’s chin caused by blunt force, possibly from a fist. There was a nonlethal stab wound to her left shoulder, one-inch long and one-inch deep, which was inflicted and bled while she was still alive. The left side of Su Hung’s chest had five “very superficial” cuts, which Ozoa indicated could have been inflicted while she was alive, even if these cuts produced no bleeding. He found no defensive wounds or anything that indicated a struggle.

Su Hung had been strangled with a cord and gagged with a towel. The cord had been pulled so tight it left a furrow around her neck, and the towel was saturated with blood. Dr. Ozoa found petechial hemorrhages—burst blood vessels—all over Su Hung’s face, on her eyelids, and on the lining around her eyeballs. The presence of petechiae indicated that she had been strangled before her throat was cut and that sufficient pressure had been applied to her neck to cut off the flow of blood from the head to the heart. Ozoa also found that the victim’s thyroid cartilage—her Adam’s apple—had been fractured while she was being strangled. Ozoa testified the amount of petechiae indicated she had been strangled slowly.

The incised wound on Su Hung’s neck was three and a half inches in length and three-quarters of an inch deep. She had been cut through the *1164 trachea and the jugular vein on the right side of her neck was also partly severed. The amount of bleeding from the cut indicated she was still alive when it was inflicted. Dr. Ozoa could not say how long it had taken for Su Hung to die. Nor could he say whether she experienced extreme pain, because it was possible the strangulation had rendered her unconscious.

2. Defendant Hajek’s Evidence

Hajek conceded his guilt of the kidnapping, false imprisonment, robbery, burglary and dissuading a witness counts, but claimed that because he was mentally ill before and during the commission of the crime, he did not have the specific intent necessary for the murder and attempted murder counts.

Hajek was bom in Florida in September 1972 and was abandoned by his biological mother at birth. He was placed in a series of foster homes before Linda and Bob Hajek adopted him when he was two years old. Hajek suffered from physical and psychological problems at the time he was adopted. He engaged in repetitious behavior and was very withdrawn. He sometimes went into screaming panics when he heard loud noises such as sirens, and he sometimes banged his head against the wall. He was afraid of being dirty and once, when he dropped some food, he turned white and covered himself as though he feared Mrs. Hajek was going to beat him. The Hajeks made every attempt to make Hajek feel safe and secure. Mr. Hajek, a firefighter, resigned from the military rather than accept a transfer to Germany that would have separated him from his wife and son. By the time the Hajeks moved to California, when Hajek was about five, he was more like a normal child, though he still had problems.

When he was 15 or 16, Hajek’s behavior began to deteriorate. Mrs. Hajek described him as “explosive, angry,” and “easily frustrated.” Early in high school, he had belonged to the ROTC, but he dropped out of it and began to surround himself with mostly Asian friends. Hajek became so involved in Vietnamese culture that he claimed to be Asian and would speak in what sounded like an Asian language. Hajek also became obsessed with Japanese animation.

Around this time, Hajek was arrested for indecent exposure after he “streaked” through his neighborhood. Hajek told his probation officer, Sally Lowell, that he had run through his apartment complex naked to get even with a neighbor who was always picking on him. Hajek’s parents told Lowell they believed there was distortion in Hajek’s thought process. The police report of the incident contained a notation that Hajek’s behavior when he was arrested—he was volatile, profane and angry—suggested psychiatric problems. The court ordered counseling. A psychological evaluation confirmed *1165 that Hajek had emotional problems. The doctor who evaluated Hajek described these problems as a lack of trust in others, pervasive loneliness, extreme sensitivity, and an inability to express hostility in a direct manner, which led Hajek to isolate himself.

Lowell had Hajek placed in a school and counseling program. Hajek did not complete the program because he was arrested for driving a stolen car and being in possession of a bank card that was not his own. A third juvenile delinquency petition was sustained after Hajek got into a fight with a coworker and broke that boy’s nose. These arrests all occurred between March and June 1989. Lowell placed Hajek in a second program in the summer of 1989, but he was subsequently expelled.

Dr. James Griffin, a clinical psychologist, treated Hajek from June to December 1989. Based on the results of psychological testing, his review of background information, and his counseling sessions with Hajek, Griffin found Hajek to be “significantly disturbed.” Griffin testified Hajek had an impaired sense of reality and demonstrated an inability to control his emotions, impulsivity, difficulty relating to other people, and a low tolerance for frustration. Ultimately, Griffin decided Hajek needed inpatient care. Griffin recommended that Hajek be hospitalized because he was depressed, decompensating, and moving toward schizophrenia.

Hajek was admitted to Monte Villa Hospital at the end of 1989 and remained there until early 1990. John Hennessey, a social worker, and Dr. Dean Freelander, a psychiatrist, both worked with Hajek and testified about his hospitalization. Both men testified that Hajek’s behavior improved once he was put on the drug lithium, which is used to treat bipolar disorder. While Freelander was reluctant to diagnose Hajek with bipolar disorder because he did not meet all the diagnostic criteria, Freelander had “no doubt” that Hajek was mentally ill and possibly in the early stages of bipolar disorder.

Dr. Rhan Minagawa, a clinical psychologist, testified as the defense mental health expert. Minagawa interviewed Hajek, administered psychological tests, and reviewed material regarding Hajek’s medical, psychological, and social history as well as the circumstances of the crime. Minagawa concluded that when the offenses occurred, Hajek was mentally ill and suffering from a cyclothymic disorder and a borderline personality disorder with antisocial traits. Minagawa explained that a cyclothymic disorder is a mood disorder similar to, but not as serious as, bipolar disorder.

*1166 According to Dr. Minagawa, people with borderline personality disorders have several characteristics, including problems with identity, problems developing relationships, self-destructive behaviors, and suicidal ideation. Minagawa explained the identity problems manifested in the inability of such individuals to “know who they are,” which would cause them to “fluctuate between thinking they are going to be one way or another way.” In Hajek’s case, one indication of this problem might have been his overidentification with Asian culture to the point where he claimed to be Asian. By suicidal ideation, Minagawa was referring to individuals with this condition “talking about suicide.” Such people may also have transient periods of paranoid delusions. Under stress they undergo dissociation, where they “separate themselves out of their bodies.” Minagawa testified that Hajek’s personality disorder was primarily the result of environmental factors. He traced Hajek’s borderline personality disorder to the time of his birth, when his mother abandoned him, and to the disruptions in his attachments while he was moved around in foster care during the first two and a half years of his life.

In Dr. Minagawa’s opinion, Hajek was in a hypomanic state between January 17 and January 21, 1991, encompassing the time just before, during, and just after Su Hung’s murder. Therefore, according to Minagawa, Hajek’s judgment was impaired to the point that he was acting irrationally. Minagawa’s testimony was the basis of Hajek’s “diminished actuality” defense, in which his attorney argued his mental illness prevented him from forming the mental states required for murder and attempted murder.

3. Defendant Vo’s Evidence

Vo conceded his guilt of the false imprisonment counts but argued that he had gone with Hajek only to frighten Ellen, and that Hajek alone had killed Su Hung while he was in the midst of a manic episode. To that end, Vo presented witnesses who testified regarding Hajek’s prior acts of seemingly impulsive violent behavior. James O’Brien testified that when he and Hajek worked at a Round Table Pizza, Hajek had punched the then 15-year-old O’Brien in the face, breaking his nose, apparently because he was upset that O’Brien was getting off work early. Douglas Vander Esch, a Santa Clara correctional officer, testified about an episode involving Hajek at the county jail. Hajek told Vander Esch he wanted to talk to a sergeant without disclosing why. Vander Esch told him he would have to fill out a grievance form, which he would then give to the sergeant for Hajek. Hajek responded by destroying various items in the day room including a television, glass on a bulletin board, glass around a shower, a sink, a coffee pot, and a telephone.

The bulk of Vo’s defense, however, consisted of his own testimony. Vo testified that Hajek came to his house on the morning of January 18, 1991, *1167 and roused him from bed. After driving to a couple of other stops, they ended up at the Wang residence. Vo did not know Ellen. Hajek had a problem with Ellen and wanted to talk to her. Vo testified he was “just a tag along” in case the confrontation became hostile. Hajek said nothing to Vo about killing Ellen or any of her family members.

Vo affirmed they entered the house on the pretext of writing a note to Ellen, because they did not believe Alice when she said Ellen was not home. Vo admitted taking Su Hung upstairs and tying her up because, he said, she “seemed to be angry and hostile” and he did not want “thing[s] [to] get out of hand.”

Vo also admitted he “pulled a knife” on Cary when she came home. He denied pressing it to her neck, testifying that he “flashed it” to “scare her” and that he told her, “Don’t scream and no one will get hurt.” Vo claimed he made a show of putting the knife back into the knife holder so Cary would not be frightened of him. He also testified it was Cary’s idea to go look for Ellen at Ellen’s high school.

Under cross-examination by the prosecutor, Vo confirmed he and Hajek had arrived at the Wang residence in a stolen vehicle and were wearing gloves. He admitted Hajek had a gun and pointed it at Su Hung. Vo also confirmed that he was at Hajek’s house after Hajek’s altercation with Ellen and that he was told about the incident. Vo acknowledged he decided to tie up Tony because he thought Tony “could be a problem.” According to Vo, Hajek took Tony upstairs, and when Hajek came back downstairs, he told Vo that Su Hung was dead. Vo testified he went upstairs to see for himself and was shocked to discover Su Hung’s body. Vo then went to the room where Tony was being held. Tony was “talking and talking,” so Vo gagged him. A couple of minutes later, Vo heard the police at the door downstairs. Vo did not surrender because he was panicked and confused. He gave the police a false name because he was afraid of the media.

Under cross-examination by Hajek’s attorney, Vo admitted he wrote Nguyen a letter in December 1992, in which he said, among other things, “I can’t explain my feeling towards you. It’s both hate and love. I hate you for loving you so much .... When I say I love someone, I always will.” Nonetheless, Vo denied his feelings for Nguyen motivated him to join Hajek in going to the Wang residence.

B. Penalty Phase

1. Prosecution Evidence

The prosecution’s penalty phase case relied almost entirely on the circumstances of the crime. The prosecution called a single victim impact witness, *1168 Ellen. Ellen testified her grandmother Su Hung had taken care of her in Taiwan until she was five. Even after Ellen and her family moved to the United States, she and her grandmother remained close. They spoke weekly on the telephone, and Su Hung came to visit every year, staying three to six months. Ellen missed her grandmother and blamed herself for her death. She did not return to school for several months after the murder because her mother, Cary, was frightened and did not want her children or her husband out of her sight.

After Su Hung’s death, Cary and Tony sold their residence at a loss because it had too many bad memories. Cary sold her business, and she and Tony separated. Cary moved to Taiwan, while Tony remained in the United States. Cary still cried when she thought about her mother or saw her picture.

2. Defendant Hajek’s Evidence

June Fountain, the social worker who oversaw Hajek’s eventual placement with his adoptive parents, testified about that process. Hajek was abandoned by his birth mother in the hospital and placed in foster care with a couple who wanted to adopt him. Because Florida prohibited the adoption of children by their foster parents, Hajek was abruptly removed from the first foster home and placed in a second foster home. Nine months later, Hajek was removed from that second home and placed for adoption with another couple.

This couple already had a six-year-old biological daughter, and they wanted to adopt a son between the ages of two and three. They failed to disclose to Fountain that the wife was pregnant when Hajek was placed in their home. Fountain was concerned that if the wife gave birth to a boy, the husband might reject Hajek. Nonetheless, she did not want to remove Hajek from yet another home. Based on her observations of the couple’s parenting of their daughter, Fountain made some suggestions to improve their skills, which caused friction between the couple and Fountain. After several weeks of silence, Fountain called them. She learned that the husband had lost his job, the wife had given birth to a boy, and Hajek and the couple’s daughter were fighting. The husband asked Fountain to come to their house after the holidays. Fountain was certain they were going to ask that Hajek be removed from their house.

Fountain visited the couple and found them under enormous stress. The wife was worried that she might hurt Hajek. Hajek was removed from the couple’s home and immediately placed in the home of the Hajeks. Fountain testified that under new practices no adoption agency would ever move a child directly from a failed adoption setting into a new adoptive home out of *1169 fear that the child would come to blame the second set of parents for removing him or her from the first set of parents. Fountain believed Hajek was emotionally abused during his stay with the couple.

Dr. Minagawa, who had testified at the guilt phase, testified again at the penalty phase. Minagawa testified that Hajek’s removal from the foster parents who had wanted to adopt him was the most traumatizing event of his first two years of life and that the later failed adoptive placement impaired Hajek’s ability to develop the trust in other human beings necessary for a sense of stability and security in the world. Minagawa testified that the effects of this trauma did not go away but went “underground,” only to emerge during adolescence and in early adulthood. He testified that, at 18, Hajek was still an adolescent in terms of his judgment, maturation, and impulsivity. In the guilt phase, Minagawa described Hajek’s mood disorder as cyclothymia, which is similar to, but not the same as bipolar disorder. In the penalty phase, Minagawa amended the diagnosis to bipolar disorder, which is genetically based and treatable with medication and counseling. Minagawa opined that on the date of the murder, Hajek was under the influence of a bipolar or cyclothymic disorder that impaired his judgment. Additionally, Minagawa testified Hajek was suffering from the personality disorder he had described in his guilt phase testimony.

3. Defendant Vo’s Evidence

Vo called 29 witnesses. They fell into four categories: family and friends; teachers; members of the National Guard; and correctional officers. His witnesses also included an expert on Vietnamese immigration into the United States and a correctional expert.

Vo’s father, Tan Van Viet, testified he had eight children, four bom in Vietnam and four in the United States. Tan Van Viet worked for the United States government in Vietnam, and the family was well off. When Saigon fell to the Communist regime in the north in 1975, the family had only 30 minutes to leave. First they went to Guam, then to an Army base in Arkansas, then to Tennessee, then to Kentucky, and ultimately to California, where the family settled in San Jose. After failed attempts to obtain a college degree and to become a farmer, Tan Van Viet found employment as a school crossing guard. Tan Van Viet claimed his family was happy, and he had never needed to discipline his children.

Vo’s mother, Keen Vo, testified briefly that Vo was a good son and that she did not want him to receive the death penalty.

Vo’s brothers, Dexster and Sparkman Vo, gave accounts of their family life that differed significantly from their father’s. Dexster described the family’s *1170 departure from Vietnam as “chaotic.” In Guam and then in Arkansas, they lived in a military barracks. Their living conditions after Arkansas were not much better, and their San Jose residence was “a shack.” Dexster described his father as very strict and said there was a culture clash between his father’s traditional Vietnamese ways and his children’s American ways. His father used a belt to discipline him. His parents fought, and their fights escalated from verbal to physical violence. These fights frightened him and his siblings, and Vo would shut down and hide his feelings. Dexster joined the military in part to get away from his family.

Dexster testified that during one fight, his mother pulled a knife, and his father and the children ran into a room and locked the door. His father told Dexster to climb out the window and go for help, as his mother pounded on the door. The police arrived. His mother tried to commit suicide and was hospitalized. Sparkman Vo, Vo’s youngest brother, confirmed Dexster’s testimony about their father’s disciplinary methods and the violent arguments between their parents.

Kieu Ngan Vo testified that Vo was a good brother who, even in custody, remained part of the family, and that the family would be devastated if Vo received the death penalty.

A number of Vo’s friends testified to his good character and his difficult home life. Billy McDonald, who met Vo when they were both freshmen in high school, testified that Vo helped McDonald through a suicidal period. Four other school friends also testified Vo was a loyal and dependable friend, as well as personable and honest. They were also aware Vo had problems at home and would stay late at school to avoid having to go home.

Four of Vo’s high school teachers testified on his behalf. Patricia Accoritini, his photography teacher, testified Vo was an eager and conscientious student. Vo would spend his lunch period in Accoritini’s classroom and would also “hang out” there after school. Vo told her that his father abused his mother and that Vo once had to leave home for a while after attempting to protect his mother. Vo bought candy bars from Accoritini because he wasn’t being fed at home. Vo was calm and nonviolent and had friends among the different racial and ethnic groups at the high school. Accoritini would have felt comfortable having Vo in her own home and considered having him live with her family because of his problems at home. Paul Enders and Rudolf Franke, who supervised Vo when he was a staff photographer on the yearbook, confirmed that he worked hard, was helpful beyond what was required of him, and got along with others. Franke formed the impression that Vo’s father was strict.

*1171 Francis Nieman was a German teacher who taught Vo for three years. Vo was an average student, but he worked hard. He was a very active participant in the German club, and he mixed well with everyone and was liked and respected by the other students. Nieman never saw any type of violence from Vo. He was under the impression that Vo’s parents were strict and traditional.

Nora Mazotti was Vo’s high school counselor. Vo told her on more than one occasion that his father was abusive. At one point she wrote up a report of suspected child abuse when Vo told her his father punched him and threatened to throw a chair at him.

Members of the National Guard testified on Vo’s behalf about his record in the National Guard. Two of his commanding officers, David Whittum and Scott Sutherland, testified he had been a satisfactory Guard member. A fellow member of the Guard, Dwayne Talbot, testified Vo was a good soldier.

Nine correctional officers attested that Vo was a model inmate. Frances Paragon-Arias, an art instructor at the Santa Clara County jail, testified Vo was an enthusiastic and motivated student who was helpful, positive, and respectful. Gregory Dalcher, a volunteer tutor at the jail, testified Vo was a dedicated student and a positive and stable person.

Professor Hien Due Do testified as an expert on the Vietnamese immigrant experience in the United States. Do explained that Vo’s family belonged to the first wave of Vietnamese immigrants to the United States who left Vietnam in 1975 after the Communist victory. People like Vo’s father who had worked for the United States government were forced to leave because they feared persecution. They had been educated and were middle or upper middle class in Vietnam, but in the United States they experienced a loss in status. The men were forced to take menial jobs, and their wives, who had not worked in Vietnam, went to work to help support their families. The women became semi-independent, and this change created marital tensions that could lead to domestic violence because the men expected women to keep to their traditional roles. The children of these families were caught in a cultural vise between American individualist and Vietnamese traditional cultures. Moreover, because the children acculturated while their parents did not, there was a role reversal in which the children were in a role of authority. Do opined that the stresses, tensions, and incidents of violence within Vo’s family as described in the testimony of Vo and his family members were consistent with the experiences of the first wave of immigrants.

James Park, a clinical psychologist, testified as an expert in prisoners’ classifications and their adjustment to prison life. Based on his review of Vo’s record, Park opined that Vo would be a productive and nonviolent prisoner.

*1172 II. Discussion

A. Pretrial Issues

1. Severance Motions

Before the start of trial, Vo filed an omnibus motion in limine, which included a motion to sever. Vo argued severance was required on two grounds. First, he argued Hajek had made statements to various individuals incriminating Vo that would be inadmissible at their joint trial under the Aranda/Bruton rule. (People v. Aranda (1965) 63 Cal.2d 518 [ 47 Cal.Rptr. 353 , 407 P.2d 265 ]; Bruton v. United States (1968) 391 U.S. 123 [ 20 L.Ed.2d 476 , 88 S.Ct. 1620 ] [a nontestifying codefendant’s extrajudicial statement that incriminates the other defendant is inadmissible as a violation of the latter’s rights to confrontation and cross-examination].) 4 Second, Vo claimed severance was required because he and Hajek were advancing antagonistic defenses. Hajek’s counsel orally joined in the motion to sever. The prosecution opposed both motions, and the trial court denied them. The court also denied Vo’s oral motion for severance during the penalty phase.

Defendants contend the trial court abused its discretion when it denied their respective severance motions. Alternatively, they argue that, even if pretrial denial of severance was not an abuse of discretion, retrospectively it amounted to a due process violation. For the reasons below, we find no merit to any of these contentions.

“ ‘Our Legislature has expressed a preference for joint trials. [Citation.] Section 1098 provides in pertinent part: “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.” The court may, in its discretion, order separate trials if, among other reasons, there is an incriminating confession by one defendant that implicates a codefendant, or if the defendants will present conflicting defenses. . . . [][] We review a trial court’s denial of a severance motion for abuse of discretion based on the facts as they appeared when the court ruled on the motion. [Citation.] If we conclude the trial court abused its discretion, reversal is required only if it is reasonably probable that the defendant would have obtained a more favorable result at a separate trial. [Citations.] If the court’s joinder ruling was proper when it was made, however, we may reverse a judgment only on a showing that joinder “ ‘resulted in “gross unfairness” amounting to a denial of due *1173 process.’ ” [Citation.]’ [Citation.] Severance motions in capital cases generally receive heightened scrutiny for potential prejudice. [Citation.]” (People v. Homick (2012) 55 Cal.4th 816, 848 [ 150 Cal.Rptr.3d 1 , 289 P.3d 791 ].)

Defendants were charged with having committed common crimes that involved the same individuals and the same series of events. The joinder of their cases was proper. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 150 [ 112 Cal.Rptr.3d 746 , 235 P.3d 62 ] (Letner and Tobin).)

Although Vo advanced two grounds for severance in his pretrial severance motion, on appeal he argues only that severance was required because the “irreconcilable defenses of the co-defendants here resulted in a trial lacking due process of law.” 5

“Severance is not required simply because one defendant in a joint trial points the finger of blame at another. ‘ “ ‘Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.’ ” [Citation.] When, however, there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance.’ [Citation.]” (People v. Homick, supra, 55 Cal.4th at p. 850 ; see Letner and Tobin, supra, 50 Cal.4th at p. 150 .)

Here there was sufficient independent evidence of both defendants’ guilt apart from any potential conflict in the defenses. The evidence showed that both defendants had a motive to commit the charged crimes. Hajek told Tevya Moriarty he was going to kill Ellen and her family in retaliation for his altercation with Ellen. Vo learned about the altercation on the same day it occurred, when he was present with Hajek and Lori Nguyen that night and Hajek and Ellen were exchanging hostile phone calls. Vo had unrequited romantic feelings toward Nguyen and was Hajek’s friend. Vo later told Cary he was looking for Ellen because she had had an argument with his relative at school and said he wanted to teach her a lesson. The evidence showed further that defendants together arrived at the Wang residence, prepared to commit a violent act. They drove a stolen van and parked it around the comer. Wearing *1174 gloves and armed with a pellet gun, they gained entrance into the residence on a pretext. Once inside, Hajek pointed the gun at Alice to force her compliance. At another point, Vo held a knife to Cary’s throat and threatened to kill her and her family if she called out. Working in concert, Hajek and Vo held members of the Wang family hostage for several hours, during which time they repeatedly threatened the victims’ lives and murdered Su Hung.

As described by the Wangs, both defendants took an active part in these events, which included binding and blindfolding the victim and isolating her in an upstairs room that each visited repeatedly. When the police arrived at the scene, Hajek attempted to flee, and Vo, upon being arrested, lied about his identity.

Because sufficient independent evidence existed against both defendants, the trial court’s rejection of the severance motions was not an abuse of discretion.

In any case, their defenses were not truly conflicting. Vo argues that Hajek’s defense was that Vo was the actual perpetrator, creating an irreconcilable conflict because the jury could not have accepted Hajek’s defense without convicting Vo. This mischaracterizes Hajek’s defense. Hajek’s defense was that his mental illness reduced his culpability, not that he was not culpable. While Hajek’s attorney may have suggested in closing argument that Hajek was not the actual killer, she explained that “the heart of [Hajek’s] defense” was that he was in a manic state at the time of the offenses due to his mental illness, and therefore did not premeditate or deliberate. Indeed, Vo’s trial counsel sought to capitalize on Hajek’s mental illness defense by presenting evidence of episodes where Hajek lost control of himself and acted impulsively or violently. Vo’s defense was that Hajek killed Su Hung in a manic state without Vo’s knowledge or assistance and that Vo had accompanied Hajek to the Wang residence merely to confront Ellen, not to commit murder.

A jury need not have believed Vo was guilty to accept Hajek’s mental illness defense. Vo’s defense, if believed, did not require the jury to convict Hajek. “[Tjhis was not a case in which only one defendant could be guilty. The prosecution did not charge both and leave it to the defendants to convince the jury that the other was that person.” (People v. Cummings (1993) 4 Cal.4th 1233, 1287 [ 18 Cal.Rptr.2d 796 , 850 P.2d 1 ].) Again, no abuse of discretion has been shown.

Vo next contends that the denial of his pretrial severance motion—viewed retrospectively—resulted in gross unfairness sufficient to constitute a denial of due process. (See People v. Homick, supra, 55 Cal.4th at p. 852 ; People v. *1175 Hoyos (2007) 41 Cal.4th 872, 896 [ 63 Cal.Rptr.3d 1 , 162 P.3d 528 ].) He argues that much of the evidence adduced at his joint trial with Hajek was prejudicial to Vo and would have been excluded as irrelevant had he been tried alone. 6 But the evidence Vo cites—Hajek’s altercation with Ellen and his telephone conversation with Moriarty, defendants’ jailhouse conversation, and defendants’ close friendship with each other and Nguyen—would likely have been admitted at a separate trial for Vo to provide context and motive for his actions at the Wang residence.

Vo further contends that Hajek’s mental illness evidence prejudiced Vo because the jury must have anticipated that Vo, too, would have presented such a defense. The claim is speculative, unsupported by the record or any relevant authority. Equally unpersuasive is Vo’s claim that the prosecutor at one point used Hajek’s mental illness defense to suggest Vo was the more culpable actor because he was not mentally ill. As the record reflects, Hajek’s attorney had argued that the plan to kill Ellen’s family in retaliation for a minor altercation was so bizarre it could not have been planned but was the product of Hajek’s mental illness. In response, the prosecutor argued that enlisting Vo as a cohort was evidence that Hajek was not mentally ill when he planned and carried out the crime. Thus, the prosecutor’s argument merely refuted Hajek’s mental illness defense and did not suggest Vo was more culpable because he was not mentally ill.

Vo next contends that evidence of Hajek’s prior criminal conduct and “bad character”—e.g., his interest in Satanism, his delusions about being Asian, and his sadism—tainted Vo by association.

Severance may be justified “where there may be prejudicial association with codefendants” (People v. Boyde (1988) 46 Cal.3d 212, 232 [ 250 Cal.Rptr. 83 , 758 P.2d 25 ]), but only if, at the guilt phase, “the evidence regarding one defendant might make it likely the jury would convict that defendant of the charges and, further, more likely find a codefendant guilty based upon the relationship between the two rather than upon the evidence separately implicating the codefendant” (Letner and Tobin, supra, 50 Cal.4th at p. 152 ). Those circumstances are not present here. As recounted above, ample independent evidence implicated Vo in the crimes of which he was convicted. In these circumstances, there is no likelihood the jury convicted Vo solely because of his association with Hajek. Moreover, the evidence regarding Hajek’s prior criminal conduct and various obsessions was clearly admitted against Hajek alone, and we have no reason to doubt that the jury followed *1176 the instructions to consider separately each defendant’s guilt. Finally, evidence that tended to depict Hajek as an out-of-control deviant aided Vo’s defense that Hajek killed the victim in the midst of a manic episode. Indeed, Vo himself introduced some of this evidence.

In sum, denial of Vo’s pretrial severance motion did not amount to a due process violation.

Vo also challenges the denial of his penalty phase severance motion. On direct examination during the penalty phase, Hajek’s expert, Dr. Minagawa, testified that at the time of Su Hung’s murder, Hajek was mentally ill and in the midst of a manic episode. On cross-examination, the prosecutor repeatedly sought to impeach Minagawa by suggesting he had avoided asking Hajek questions that would have undermined this diagnosis. In this vein, the prosecutor asked Minagawa whether he had pressed Hajek about the circumstances of the murder. To four of these questions, Minagawa replied that Hajek had denied killing the victim. Vo’s counsel objected on hearsay grounds. The trial court responded with a limiting instruction: “The testimony is strictly limited to Mr. Hajek and it is not being received as to Mr. Vo. . . . So when you receive the testimony as to Mr. Hajek, it is received only as to Mr. Hajek. And when you receive testimony as to Mr. Vo, it is received only as to Mr. Vo. [][] Objection is overruled.”

In a hearing outside the presence of the jury, Vo’s counsel moved for a mistrial or, alternatively, severance. He argued that by relating Hajek’s denial that he killed the victim, Dr. Minagawa’s testimony violated the Aranda!Bruton rule. Counsel asserted the trial court’s admonition was inadequate to cure the violation. On appeal, Vo challenges the denial of these motions.

The Aranda/Bruton rule addresses a specific issue that arises at joint trials when the prosecution seeks to admit the out-of-court statement of a nontestifying defendant that incriminates a codefendant. “ ‘Aranda and Bruton stand for the proposition that a “nontestifying codefendant’s extrajudicial self-incriminating statement that inculpates the other defendant is generally unreliable and hence inadmissible as violative of that defendant’s right of confrontation and cross-examination, even if a limiting instruction is given.” [Citation].’ [Citation.] The United States Supreme Court ‘limited the scope of the Bruton rule in Richardson v. Marsh (1987) 481 U.S. 200 [ 95 L.Ed.2d 176 , 107 S.Ct. 1702 ] .... The court explained that Bruton recognized a narrow exception to the general rule that juries are presumed to follow limiting instructions, and this narrow exception should not apply to confessions that are not incriminating on their face, but become so only when linked with other evidence introduced at trial. ( Richardson, supra, at pp. 206-207 .) That *1177 is because, “[w]here the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence.” (Id. at p. 208.)’ ” (People v. Homick, supra, 55 Cal.4th at p. 874 , fn. omitted; see People v. Fletcher, supra, 13 Cal.4th at pp. 463-464.)

Hajek’s statement to Dr. Minagawa that he did not kill Su Hung did not facially incriminate Vo. Its incriminatory effect depended entirely on its linkage to other evidence. Moreover, the point of the prosecutor’s cross-examination was to suggest that Hajek’s denial of culpability was a lie that Minagawa accepted at face value because it was consistent with his diagnosis. Thus, the issue was not the identity of Su Hung’s killer, but Minagawa’s credibility as an expert. Under these circumstances, the trial court’s limiting instruction properly guided the jury’s consideration of the testimony. (Richardson v. Marsh, supra, 481 U.S. at p. 206 [“Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness ‘against’ a defendant if the jury is instructed to consider that testimony only against a codefendant.”].)

We turn to Hajek’s severance claim. Hajek’s counsel orally joined Vo’s pretrial motion for severance on the ground of antagonistic defenses. As noted, sufficient independent evidence existed of both defendants’ guilt so as to render the denial of their severance motion an appropriate exercise of discretion at the time the court ruled. Moreover, although Hajek complains that Vo was permitted to call two witnesses who testified to two episodes of Hajek’s violent behavior involving an attack on a coworker and the destruction of jail property, Hajek concedes that he himself referred to these incidents as part of his mental illness defense. Under these circumstances, Hajek fails to demonstrate that the denial of his severance motion resulted in gross unfairness amounting to a due process violation.

Hajek also contends the trial court erroneously denied his penalty phase severance motion. The motion to which he refers was for a mistrial, not severance. The claim is forfeited. (People v. Tafoya (2007) 42 Cal.4th 147, 163 [ 64 Cal.Rptr.3d 163 , 164 P.3d 590 ]; People v. Ervin (2000) 22 Cal.4th 48, 68 [ 91 Cal.Rptr.2d 623 , 990 P.2d 506 ].) 7 Even if the claim were not forfeited, it is meritless. Hajek argues he was prejudiced by Vo’s extensive “good character” defense, because Hajek’s inability to mount a comparable defense cast him in a bad light before the jury. As already noted, the jury was *1178 specifically admonished “not to weigh one defendant against the other or choose between them,” and to make “an individualized determination based on the character and circumstances of each individual and the circumstances of the case.” We presume the jury understood and followed these instructions. (People v. Avila (2006) 38 Cal.4th 491, 575 [ 43 Cal.Rptr.3d 1 , 133 P.3d 1076 ].)

2. Keenan Counsel

Vo contends his right to effective assistance of counsel was violated by the initial denials of his request for a second or Keenan counsel (Keenan v. Superior Court (1982) 31 Cal.3d 424 [ 180 Cal.Rptr. 489 , 640 P.2d 108 ]) and by a later denial of his request to continue the trial when Keenan counsel withdrew for health reasons. We reject his claims. 8

a. Background

In September and October 1991, Vo’s trial counsel, James Blackman, filed declarations seeking appointment of a second attorney to defend Vo. Blackman asserted the second counsel was required for research and related work on various motions, including motions for discovery and severance, a section 995 motion to dismiss, a motion to preclude the death penalty based on the charging policies of the Santa Clara County District Attorney, and motions related to the admissibility of particular pieces of evidence. The requests were summarily denied.

Blackman sought a hearing, which was conducted on November 20, 1991, by Judge Hastings. To justify his Keenan counsel request, Blackman repeatedly cited the complexity of the case and of the various motions and investigations he planned to undertake in Vo’s defense. He additionally cited the fact that a number of his witnesses spoke only Vietnamese.

The trial judge noted his own experience as a criminal defense lawyer, which included 13 years in practice and certification as a criminal law specialist, and his judicial experience presiding over hundreds of jury trials, including five death penalty cases. The judge pointed out that in Keenan “there was a very critical time issue involved for the lawyer to get prepared after his appointment,” whereas in Vo’s case “the matter isn’t even set for trial.” The judge characterized Blackman’s statement that the case was complicated as “conclusionary” and again denied the motion.

*1179 In March 1994, Blackman made a third request for Keenan counsel before a different trial judge, and this time the request was granted. Attorney Mary Ann Bachers was appointed second counsel and began work on the case in May 1994. Neither the declarations submitted in connection with the third Keenan request nor the transcript of any hearing is in the record.

Trial was set for January 17, 1995. On December 16, 1994, Blackman presented the court with a doctor’s note stating Bachers was completely disabled and unable to continue to represent Vo. He asked for a continuance of the trial date. Both the prosecutor and Hajek’s counsel objected. On January 6, 1995, Blackman reported he had not yet found a replacement for Bachers. On January 17, the court held a hearing on the continuance request. Blackman characterized the case as “complicated,” and recounted his initial unsuccessful attempts to obtain Keenan counsel as well as the time he spent litigating the section 995 motion and subsequent appeal. 9 Blackman acknowledged that, while the case was on appeal following the granting of Vo’s section 995 motion, “[w]e just didn’t do anything because the focus of the attention at that point was to see what happened in the Court of Appeal.” Blackman said his request for Keenan counsel had been granted following the Court of Appeal’s reinstatement of the special circumstances. He insisted he could not go to trial because Bachers had been in charge of penalty phase preparations and, as a result of her withdrawal from the case, the penalty phase case was not ready. He told the court he had been unsuccessful in his efforts to find a replacement for Bachers.

The trial court denied the continuance request. The court said it had read the transcript of the November 21, 1991, Keenan hearing before Judge Hastings and observed, “[a]ll the arguments you’re putting forth here were the same arguments you put forth at that time .... I don’t think this case will ever be prepared .... [A]ll the information you need for a competent guilt phase and penalty phase investigation is at your fingertips.”

On February 10, 1995, Attorney Jeane Dekelver was appointed as replacement Keenan counsel. Trial began on February 14, 1995. As stated in the factual summary above, Vo called 29 penalty phase witnesses, including family members, friends, and experts on the Vietnamese immigrant experience and on prisoner classifications and prisoner adjustment.

*1180 b. Discussion

We begin with the initial denial of Vo’s request for Keenan counsel. In capital cases, “courts have the statutory discretion to appoint a second defense attorney at public expense. [Citations.] But unlike the constitutional right [to counsel], the statutory right to appointed second counsel is qualified.” (People v. Roldan (2005) 35 Cal.4th 646, 686 [ 27 Cal.Rptr.3d 360 , 110 P.3d 289 ], fn. omitted; § 987, subd. (d).) “In ruling on an application for second counsel, the trial court must be guided by the need to provide a capital defendant with a full and complete defense. [Citation.] . . . The initial burden is on the defendant to present a specific factual showing of ‘genuine need’ for the appointment of second counsel. [Citation.] We review the decision whether to grant a request to appoint second counsel under section 987 for abuse of discretion. [Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 432 [ 87 Cal.Rptr.3d 209 , 198 P.3d 11 ].) “The abuse of discretion standard is used in many other contexts and reflects the trial court’s superior ability to consider and weigh the myriad factors that are relevant to the decision at hand. A trial court will not be found to have abused its discretion unless it ‘exercised its discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice.’ [Citation.]” (People v. Roldan, supra, 35 Cal.4th at p. 688 .)

We find no abuse of discretion in the denial of Vo’s initial requests for Keenan counsel. To the extent Vo’s counsel sought to justify such an appointment because the case was complex, the trial court correctly dismissed such justification as conclusory and therefore insufficient. (See People v. Verdugo (2010) 50 Cal.4th 263, 278-279 [ 113 Cal.Rptr.3d 803 , 236 P.3d 1035 ] [no abuse of discretion where request for appointment of second counsel is denied, where the request asserts only that the case is “ ‘complex’ ”].) Nor do we find the trial court abused its discretion merely because Vo’s counsel referred to specific motions and investigations as grounds for his request. Indeed, as the court noted, the matter had not yet even been set for trial. Keenan’s genuine need standard requires the defendant to show specific and compelling reasons for appointment of second counsel. (Keenan v. Superior Court, supra, 31 Cal.3d at p. 429 .) The trial court gave clear and detailed reasons why it did not find the justifications offered by Vo’s counsel to be compelling. We cannot say the court’s findings constituted an abuse of discretion.

Nor are we swayed by the fact that a second judge was later persuaded to appoint Keenan counsel. Neither the declarations submitted in connection with that request nor a transcript of the hearing, if any, are in the record. Accordingly, we do not know whether new or different arguments were made or what other factors may have informed the second judge’s exercise of *1181 discretion. The subsequent appointment of second counsel does, however, obviate any possibility of prejudice even were we to assume the first judge abused his discretion, which we do not.

The same abuse of discretion standard governs the trial court’s ruling on Vo’s request for a continuance after his Keenan counsel withdrew for medical reasons. “A continuance in a criminal trial may only be granted for good cause. [Citation.] ‘The trial court’s denial of a motion for continuance is reviewed for abuse of discretion.’ [Citation.] ‘There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.’ [Citations.]” (People v. Mungia (2008) 44 Cal.4th 1101, 1118 [ 81 Cal.Rptr.3d 614 , 189 P.3d 880 ] (Mungia).) “The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.] [f] Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered. [Citations.]” (People v. Beames (2007) 40 Cal.4th 907, 920 [ 55 Cal.Rptr.3d 865 , 153 P.3d 955 ].)

Here, as the trial court noted, the January 17, 1995, hearing on the motion was also the fourth anniversary of the crime. Vo’s counsel acknowledged that work had essentially stopped on the case for over one year while the Court of Appeal reviewed the granting of the section 995 motion, which had resulted in the striking of all but one of the special circumstances. As the trial court pointed out, however, the section 995 motion had not been granted as to the torture-murder special circumstance, and so the case had remained a capital case. Regarding the main reason for the continuance request—the withdrawal of Keenan counsel for health reasons—the court pointed out that over a month had passed, and Vo’s counsel had not secured a replacement. The court also observed the penalty phase investigation that Vo’s counsel claimed had not been completed involved issues such as Vo’s Vietnamese immigrant experience, of which counsel had been aware as early as 1991, when he first requested Keenan counsel. Moreover, the court questioned why Attorney Bachers, rather than the defense investigator, was interviewing penalty phase witnesses, “because the person you want talking to those people is somebody you’re going to put on the stand to talk in the case, and you’re not going to put Keenan counsel on the stand.” In sum, the trial court concluded that the defense was sufficiently prepared to proceed with both the guilt and penalty phases and that the withdrawal of second counsel did not necessitate a continuance.

We find no abuse of discretion. Even if counsel could have chosen to allocate his time differently, he was not denied a reasonable opportunity to *1182 prepare a defense. (People v. Doolin, supra, 45 Cal.4th at p. 450 .) Thus, the trial court was justified in rejecting counsel’s request for more time to prepare his penalty phase case in light of Keenan counsel’s withdrawal. Moreover, a replacement counsel was appointed, and an extensive penalty phase case was in fact presented. Thus, Vo fails to demonstrate prejudice in any event. 10

B. Guilt Phase Issues

1. Sufficiency of the Evidence Claims

Defendants claim the evidence is insufficient to support the lying-in-wait special-circumstance findings, the torture-murder special-circumstance findings, the attempted murder convictions, the firearm enhancements as to Hajek, and the knife use enhancements as to Vo. Based on the alleged insufficiency of the evidence at the close of the prosecution’s guilt phase case-in-chief, defendants additionally contend the trial court should have granted their section 1118.1 motions for dismissal of the lying-in-wait special circumstances and for acquittal on counts 2 through 5 of the information regarding the attempted murders of Cary, Alice, Tony, and Ellen, and on the knife use enhancements. 11

In determining whether the evidence was sufficient either to sustain a conviction or to support the denial of a section 1118.1 motion, the standard of review is essentially the same. (People v. Houston (2012) 54 Cal.4th 1186, 1215 [ 144 Cal.Rptr.3d 716 , 281 P.3d 799 ] (Houston).) “ ‘[W]e do not determine the facts ourselves. Rather, we “examine the whole record in the *1183 light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [][] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] “[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or reevaluate a witness’s credibility.’ ” (Ibid.; see People v. Watkins (2012) 55 Cal.4th 999, 1019-1020 [ 150 Cal.Rptr.3d 299 , 290 P.3d 364 ].) Notably, however, “[Review of the denial of a section 1118.1 motion made at the close of a prosecutor’s case-in-chief focuses on the state of the evidence as it stood at that point.” (Houston, at p. 1215; see Watkins , at p. 1019.)

a. Lying-in-wait murder and lying-in-wait special circumstance

Defendants argue the trial court abused its discretion in denying their motions to dismiss the lying-in-wait special-circumstance allegations at the close of the prosecution’s case-in-chief. (§ 1118.1.) They also contend the evidence was insufficient to support their convictions of first degree murder on a lying-in-wait theory and the true findings on the lying-in-wait special-circumstance allegations. (§§ 189, 190.2, former subd. (a)(15), as added by Prop. 7, enacted by voters Nov. 7, 1978.) For the reasons below, we agree the lying-in-wait special-circumstance findings must be reversed, but conclude that reversal of these findings does not require reversal of defendants’ death sentences.

At the time of Su Hung’s murder, “the elements of the lying-in-wait special circumstance required an intentional killing, committed under circumstances that included a physical concealment or concealment of purpose; a substantial period of watching and waiting for an opportune time to act; and, immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. [Citations.] . . . [The period of waiting and watching] need not continue for any particular length ‘ “of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.” ’ [Citation.] ‘ “ ‘The element of concealment is satisfied by a showing “ ‘that a defendant’s true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim.’ ” ’ ” ’ [Citation.] The factors of concealing murderous intent, and striking from a position of advantage and surprise, ‘are the hallmark of a murder by lying in wait.’ [Citation.]” (People v. Stevens *1184 (2007) 41 Cal.4th 182, 201-202 [ 59 Cal.Rptr.3d 196 , 158 P.3d 763 ], fns. omitted; see People v. Morales (1989) 48 Cal.3d 527, 557 [ 257 Cal.Rptr. 64 , 770 P.2d 244 ].) “[T]he lying-in-wait special circumstance requires ‘that the killing take place during the period of concealment and watchful waiting . . . .’ [Citation.]” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1149 [ 124 Cal.Rptr.2d 373 , 52 P.3d 572 ].) “ ‘During’ means ‘at some point in the course of.’ ” (People v. Lewis (2008) 43 Cal.4th 415, 514 [ 75 Cal.Rptr.3d 588 , 181 P.3d 947 ] (Lewis).)

Moreover, when the capital crime occurred, the lying-in-wait special circumstance required a showing that the defendant “intentionally killed the victim while lying in wait.” (§ 190.2, former subd. (a)(15), italics added.) In 2000, the electorate approved Proposition 18 which, among other things, “changed the language of the lying-in-wait special circumstance to delete the word ‘while’ and substitute in its place ‘by means of.’ ” (Lewis, supra, 43 Cal.4th at p. 512, fn. 25 .) Because Su Hung’s murder occurred before this statutory change, we apply the case law interpreting the more stringent requirement of the former law. (See id. at p. 511.)

At trial, the evidence showed that Su Hung was killed while defendants were waiting for her granddaughter, Ellen, to return home. The trial court, using a “transferred intent” analogy, concluded that even though Ellen was the target, “the murder did occur during the process of lying in wait, so that special [circumstance] will not be dismissed.” 12 The Attorney General disavows the trial court’s rationale and argues on appeal that Su Hung herself was the target of defendants’ lying in wait. 13 Defendants counter the evidence was insufficient to establish that Su Hung’s murder occurred while they were lying in wait for her.

In evaluating defendants’ contentions, we find Lewis, supra, 43 Cal.4th 415 , instructive. There, the defendant and his accomplices had “accomplished the forcible kidnapping of [several victims] while lying in wait, but then drove the still living victims around in their cars for periods of one to three hours, while withdrawing money from the victims’ bank accounts, before killing them. By the time of the killings, the concealment, the watchful waiting, and the surprise attack all had taken place at least one and up to three hours earlier.” (Id. at p. 514.) In assessing the sufficiency of the *1185 evidence, Lewis took note of the prosecutor’s argument that the defendant had concealed his purpose to kill from each of the victims until the moment they were killed, in some cases assuring the victims they would not be harmed. Nonetheless, Lewis concluded that “ ‘mere’ concealment of purpose is not enough to support the lying-in-wait special circumstance. [Citation.] Rather, such concealment must be contemporaneous with a substantial period of watching and waiting for an opportune time to act, and followed by a surprise attack on an unsuspecting victim from a position of advantage. [Citation.]” (Ibid.) As Lewis emphasized, “there was no evidence that, while concealing his purpose to kill, defendant watched and waited for an opportune time to kill the victims. Rather, the evidence suggests each was killed when, and only when, his or her ATM withdrawal limit had been reached and the victim had been driven to a suitable location for killing. Moreover, there was no evidence that the victims were surprised. Indeed, the evidence suggests each victim must have been aware of being in grave danger long before getting killed.” (Id. at pp. 514-515.)

The evidence here is comparable to that in Lewis and calls for a similar result. Defendants entered the Wang residence by ruse, displayed a gun, and shortly thereafter bound and blindfolded the frightened victim and isolated her in an upstairs bedroom for several hours before finally killing her. From the moment defendants took Su Hung and Alice hostage, Su Hung could not have perceived their actions as anything other than a serious threat to her safety, even if they untied her for a period of time while she was kept isolated in the bedroom. Thus, even assuming defendants engaged in a period of watchful waiting before entering the house using the element of surprise, it was followed by “a series of nonlethal events” over the course of several hours, “and then a cold, calculated, inevitable, and unsurprising dispatch” of the victim. (Lewis, supra, 43 Cal.4th at p. 515 .) Moreover, even assuming defendants never revealed their true purpose to kill the entire Wang family, there was no evidence that, while concealing that purpose, defendants watched and waited for an opportune time to kill Su Hung. Thus, even when the evidence is considered in a light most favorable to the judgment, it simply fails to establish that defendants’ concealment was contemporaneous with a substantial period of watching and waiting for an opportune time to act, or that their concealment allowed them to launch a surprise attack on an unsuspecting victim from a position of advantage. Although the evidence shows Su Hung was killed in a most horrifying manner, it falls short of establishing she was killed while defendants were lying in wait for her.

Accordingly, we conclude the evidence was insufficient to show that defendants “intentionally killed the victim while lying in wait,” as required under the former law. (§ 190.2, former subd. (a)(15), italics added; see Lewis, *1186 supra, 43 Cal.4th at pp. 514-515.) We now address whether reversal of the lying-in-wait special-circumstance findings requires reversal of defendants’ death sentences.

Citing Stringer v. Black (1992) 503 U.S. 222 [ 117 L.Ed.2d 367 , 112 S.Ct. 1130 ], Hajek (joined by Vo) argues that “the invalidated aggravating factor necessarily added to the aggravating side of the balance and this prejudiced [defendant] when the jury was deciding whether to sentence him to death.” We disagree.

Not only did a valid special-circumstance finding remain (torture murder, see post, pt. II.B.1.b.), but the jury was statutorily permitted to consider all of the facts and circumstances underlying Su Hung’s murder. As the United States Supreme Court recognized in Brown v. Sanders (2006) 546 U.S. 212 [ 163 L.Ed.2d 723 , 126 S.Ct. 884 ], the invalidation of a special circumstance does not require reversal of the death sentence under California’s statutory scheme if “one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.” (Id. at p. 220; see People v. Castaneda (2011) 51 Cal.4th 1292, 1354 [ 127 Cal.Rptr.3d 200 , 254 P.3d 249 ].) In urging the death penalty, the prosecutor here relied almost exclusively on factor (a) of section 190.3, which allows consideration of “the immediate temporal and spatial circumstances of the crime,” as well as “that which surrounds the crime materially, morally, or logically.” (People v. Hamilton (2009) 45 Cal.4th 863, 926 [ 89 Cal.Rptr.3d 286 , 200 P.3d 898 ].) In this case, the factor (a) evidence was the same evidence the prosecutor cited in his attempt to establish lying in wait—that is, defendants gained entry into the Wang residence by ruse; they displayed a gun; they quickly bound and blindfolded Su Hung; and they isolated her upstairs for several hours before finally killing her. In the words of the United States Supreme Court, “[a]ll of the aggravating facts and circumstances that the invalidated [special circumstances] permitted the jury to consider were also open to their proper consideration under [section 190.3, factor (a)],” and thus the invalid special circumstances “could not have ‘skewed’ the sentence.” (Brown, at p. 223 [finding no constitutional violation where jury rendered death verdict after making four special-circumstance findings, two of which were invalidated on appeal].) That the evidence was insufficient to establish lying in weight did not render its consideration by the jury inappropriate. Because the invalid lying-in-wait special circumstances “did not alter the universe of facts and circumstances to which the jury could accord . . . weight” (People v. Bonilla (2007) 41 Cal.4th 313, 334 [ 60 Cal.Rptr.3d 209 , 160 P.3d 84 ]), and because “[t]here is no likelihood that the jury’s consideration of the mere existence of the [lying-in-wait] special circumstance tipped the balance toward death” (Mungia, supra, 44 Cal.4th at *1187 p. 1139 ), the invalidity of the lying-in-wait special circumstances does not warrant reversal of the death sentences. 14

b. Torture murder and torture-murder special circumstance

Defendants contend the first degree torture-murder convictions and the torture-murder special-circumstance findings were not supported by substantial evidence. 15 We conclude the evidence was sufficient.

“To prove torture murder, the prosecution must establish ‘ “a willful, deliberate, and premeditated intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose.” ’ [Citation.] To prove a torture-murder special circumstance, the prosecution must show that defendant intended to kill and had a torturous intent, i.e., an intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose. [Citation.] The jury may infer the intent to inflict extreme pain from the circumstances of the crime, the nature of the killing, and the condition of the victim’s body. [Citation.]” (People v. Streeter (2012) 54 Cal.4th 205, 237 [ 142 Cal.Rptr.3d 481 , 278 P.3d 754 ] (Streeter).) 16 “ ‘There is no requirement that the victim be aware of the pain.’ ” 9People v. Elliot (2005) 37 Cal.4th 453 , 466-467 [ 35 Cal.Rptr.3d 759 , 122 P.3d 968 ].) Thus, as to both torture murder and torture-murder special circumstances, the sufficiency inquiry is directed at evidence of the defendant’s torturous intent. (People v. Mincey (1992) 2 Cal.4th 408, 433 [ 6 Cal.Rptr.2d 822 , 827 P.2d 388 ] (Mincey).)

It bears emphasis that “the trier of fact may find intent to torture based on all the circumstances surrounding the charged crime, including the nature and *1188 severity of the victim’s wounds and any statements by the defendant revealing his state of mind during the crime.” (People v. Bemore (2000) 22 Cal.4th 809, 841 [ 94 Cal.Rptr.2d 840 , 996 P.2d 1152 ] (Bemore).) For example, evidence that the defendant intentionally inflicted nonlethal wounds on the victim may demonstrate the requisite “ ‘sadistic intent to cause the victim to suffer pain in addition to the pain of death.’ ” (Ibid:, see id. at p. 844 [“Certain nonlethal knife wounds . . . seem plainly calculated to cause extreme pain and to induce [the victim’s] cooperation.”]; see also Mungia, supra, 44 Cal.4th at p. 1137 [“When we have upheld [torture-murder special-circumstance findings], the evidence has shown that the defendant deliberately inflicted nonfatal wounds or deliberately exposed the victim to prolonged suffering.”]; People v. Crittenden (1994) 9 Cal.4th 83, 141 [ 36 Cal.Rptr.2d 474 , 885 P.2d 887 ] (Crittenden) [intentional nonfatal injuries “are consistent only with an intent to inflict extreme pain”].) Although evidence of binding, by itself, is insufficient to establish an intent to torture (Mungia, at p. 1138), it is appropriate to consider whether the victim was bound and gagged, or was isolated from others, thus rendering the victim unable to resist a defendant’s acts of violence (Crittenden, at p. 141 [victims bound and gagged]; People v. Proctor (1992) 4 Cal.4th 499, 532 [ 15 Cal.Rptr.2d 340 , 842 P.2d 1100 ] [“victim was isolated and prevented from resisting or escaping”]; cf. People v. Chatman (2006) 38 Cal.4th 344, 391 [ 42 Cal.Rptr.3d 621 , 133 P.3d 534 ] [binding not required to prove torture]). Finally, the manner of the victim’s death may also evidence the defendant’s intent to torture. (Proctor, at pp. 531-532.)

Considered as a whole, the circumstances surrounding Su Hung’s murder provide substantial evidence of defendants’ torturous intent. Significantly, there was substantial medical evidence showing Su Hung suffered a number of nonlethal wounds before she was strangled and her throat slashed. These wounds—which were neither inadvertent nor accidental—included blunt force trauma to her chin, a stab wound to her shoulder that left a bleeding gash one-inch long and one-inch deep, and five shallow puncture wounds to her chest from a sharp instrument. These wounds evidenced deliberate and gratuitous violence beyond that which was necessary to kill the victim, and the jury could reasonably infer from the circumstances that the wounds were inflicted to cause her severe pain while she was bound, gagged, and utterly helpless. (See Bemore, supra, 22 Cal.4th at p. 842; Crittenden, supra, 9 Cal.4th at p. 141.)

Moreover, the jury was presented with explicit evidence that defendants’ crimes were motivated by a sadistic intent. Hajek was heard to make statements that evidenced his intent to carry out a vengeful and sadistic plan to murder. Two days before the killing, Hajek told Tevya Moriarty that he and his girlfriend had gotten into a fight with a girl, and that he wanted to get back at the girl. He said that he was going to the girl’s house to kill her and *1189 her family, and that he planned to kill the girl’s family first so he could “look in [the girl’s] eyes when he killed her.” Not only did these statements evidence Hajek’s desire to murder Ellen after forcing her to watch as they first killed her family members, but a jury could reasonably find that such statements, in combination with the condition of Su Hung’s body, showed that defendants did not kill Su Hung quickly but intended to inflict extreme pain before finally executing her.

Finally, the manner in which Su Hung was killed furnished additional evidence of defendants’ torturous intent. Death by strangulation will always take some amount of time, so generally that fact alone is insufficient to establish an intent to torture. However, combined with the other circumstances here—including the duplicative nature of the lethal wounds to Su Hung’s throat, the nonlethal wounds, and evidence of an express sadistic intent—evidence of the manner of Su Hung’s death is consistent with an intent to inflict extreme pain or suffering.

Hajek effectively concedes his statements to Moriarty were evidence of a motive to exact revenge against Ellen. He argues, however, they did not provide substantial evidence of an intent to inflict extreme pain on the murder victim, Su Hung. We are not persuaded. While Hajek did not explicitly say he intended to inflict extreme pain on Su Hung or any of the Wangs before killing them, that intent can be inferred from the totality of the circumstances: the sadistic nature of defendants’ plan (to first kill Ellen’s family members while she watched and then to kill her), the deliberate and nonlethal wounds they inflicted on Su Hung while she was bound and completely defenseless (striking her chin hard enough to leave a bruise, stabbing her gratuitously in the shoulder, and treating her like a pincushion while they superficially punctured her chest five times), 17 and the manner in which they killed her (choking her slowly but forcefully with a ligature until they fractured her thyroid cartilage, then slashing her throat through her trachea and jugular vein).

Hajek also fails to persuade us that Su Hung’s injuries did not reflect a torture murder because they were not sufficiently similar to the “extreme injuries” that other decisions found “supported] the inference of an intent to *1190 inflict extreme and prolonged pain.” 18 With regard to the perceived lack of severity of Su Hung’s wounds, it was obvious to defendants that she was a frail woman who was elderly and diminutive. Su Hung’s physical dimensions (she stood five foot one and weighed 87 pounds) were basically those of a child, and her age (73 years) rendered her extremely vulnerable. She was, moreover, bound, gagged, separated from her family, and completely under the domination of the two defendants. We cannot agree with Hajek that the wounds left by the various acts of striking, stabbing, puncturing, and strangling this frail, defenseless, and isolated victim were not sufficiently extreme to support the inference of an intent to cause her severe pain and suffering, when considered in light of the totality of the circumstances—including defendants’ express sadistic plan. (See Bemore, supra, 22 Cal.4th at pp. 841-842; Crittenden, supra, 9 Cal.4th at p. 141.)

Vo argues separately that the evidence is insufficient as to him because there was no evidence that he himself killed or tortured the victim, or that he intended to participate in the killing or the torture. At trial, Vo testified he tagged along with Hajek that day out of friendship, without any knowledge of Hajek’s plan to murder Ellen’s family and then Ellen. There was, however, substantial evidence casting grave doubt on his credibility.

First, the prosecution’s case included letters that Vo had written to Lori Nguyen. These letters, which revealed Vo’s unrequited love for Nguyen, provided substantial evidence that Vo had his own independent motive to seek revenge on Ellen: He could impress Nguyen with how much he loved her.

Second, Vo had to have known about the altercation between Nguyen, Hajek, and Ellen, because Vo was at Hajek’s house the night of its occurrence and had heard Hajek and Ellen exchanging angry phone calls. Moreover, Hajek had told Moriarty, who was scarcely more than an acquaintance of his, that because of this altercation he planned to kill the family of the girl involved (Ellen), and then the girl herself. From these two circumstances the jury could reasonably have concluded it inconceivable that Hajek would not similarly have confided his sadistic and murderous plan to Vo, one of his best friends, whom he enlisted to carry out the plan.

Third, the evidence did not show that Vo passively followed Hajek in the activities leading up to the murder. To the contrary, the evidence established *1191 that Vo was an active participant who often took the lead in executing the plan. It was Vo who tied up Su Hung, Vo who threatened Cary with a knife, and Vo who told Cary he wanted to teach Ellen a lesson. When Ellen did not come home as anticipated and time was passing, Vo became impatient and forced Cary to go out on a search for Ellen to bring her home, presumably so that the killing could begin.

Finally, all the evidence is consistent with a conclusion that Vo actively participated in the torture of Su Hung. The evidence established that each defendant went several times to the bedroom where the victim was being held in isolation. Thus, Vo was as likely as Hajek to have inflicted some or all of the victim’s nonlethal and lethal wounds. Because Vo was the only defendant seen possessing and using a knife, the jury could reasonably have concluded that Vo inflicted the shoulder stabbing, chest punctures, and throat slashing. Although Vo points to the minute amounts of the victim’s blood on Hajek’s glove and coat as evidence that Hajek, not Vo, killed Su Hung, such evidence did not foreclose a conclusion that Vo tortured or killed the victim. Indeed, there was evidence that a second pair of gloves, presumably Vo’s, was found on the kitchen table. 19 Additionally, a knife that later tested positive for blood was found lying over a puddle of water in the kitchen sink, although it could not be determined whether the blood was human or animal, fresh or old. On this record, the jury could reasonably have accepted the prosecution’s theory that Vo removed his gloves to use the knife on the victim and then washed both his hands and the knife in the kitchen sink. Thus, while it is plausible that Hajek used the knife on Su Hung, it is just as plausible that both of them, or perhaps only Vo, did so.

In any event, even if Vo did not personally inflict the lethal and nonlethal wounds on Su Hung, there was substantial evidence showing that Vo shared Hajek’s torturous intent and aided and abetted the commission of torture murder. Considering all the evidence in the light most favorable to the judgment, and presuming the existence of every fact the jury could reasonably deduce from the evidence, we conclude the jury could reasonably have found that Vo shared the intent to torture and murder the victim.

In sum, we find that the totality of the circumstances of the crime amply demonstrated an intent to torture, and that substantial evidence supports the torture-murder convictions and torture-murder special-circumstance findings as to both defendants. (Streeter, supra, 54 Cal.4th at p. 246 [where evidence supports first degree murder conviction on torture-murder theory it also *1192 supports a finding of torturous intent for purpose of the torture-murder special-circumstance allegation].)

Furthermore, and in any event, ample evidence supports both defendants’ first degree murder convictions on a deliberate and premeditated murder theory. Defendants arrived at the Wang residence in furtherance of their plan to exact revenge on Ellen. The circumstances of the murder, including the evidence of defendants’ planning, motive, and the manner of killing, indicate it was conduct undertaken with “preexisting thought and reflection” and was not the result of “an unconsidered rash impulse.” (Houston, supra, 54 Cal.4th at p. 1216 [planning, motive, and manner of killing are relevant to resolving issue of premeditation and deliberation].) 20

c. Attempted murder

Defendants challenge the denial of their section 1118.1 motions for acquittal of the attempted murder counts involving Cary, Alice, Tony, and Ellen. They also contend the evidence is insufficient to support their convictions on these counts. Although we may look to the entire record to evaluate the latter contention, we find we may dispose of both contentions by reviewing the evidence adduced in the prosecution’s case-in-chief.

“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Ervine (2009) 47 Cal.4th 745, 785 [ 102 Cal.Rptr.3d 786 , 220 P.3d 820 ].) “The overt act element of attempt requires conduct that goes beyond ‘mere preparation’ and ‘show[s] that [defendant] is putting his or her plan into action.’ [Citations.] [f] . . . [T]he line between mere preparation and conduct satisfying the act element of attempt often is difficult to determine; the problem ‘is a question of degree and depends upon the facts and circumstances of a particular case.’ [Citation.] The act that goes ‘beyond mere preparation’ need not constitute an element of the target crime [citation], and it ‘ “need not be the ultimate step toward the consummation of the design.” ’ [Citation.] Instead, ‘ “it is sufficient if [the conduct] is the first or some subsequent act directed towards that end after the preparations are made.” ’ [Citation.] In other words, we have explained, the act must represent ‘ “some appreciable fragment of the crime.” ’ [Citations.]” (People v. Watkins, supra, 55 Cal.4th at p. 1021.) For the reasons below, we find substantial evidence of defendants’ attempts to murder Cary, Alice, Tony, and Ellen.

*1193 The evidence presented in the prosecution’s case-in-chief included the following. Hajek told Moriarty he planned to kill Ellen and her family in retaliation for his altercation with Ellen, and to make the crime appear like a robbery. Although Vo did not participate in this conversation, the evidence showed that Vo was present at Hajek’s house with Nguyen when Hajek and Ellen were exchanging hostile phone calls later that evening, and that Vo also had an unrequited romantic interest in Nguyen. The evidence also showed that Vo and Hajek were good friends and that they acted in concert the day of the crimes. That morning, defendants drove a stolen van and parked it some distance from the Wang residence. Wearing gloves and armed with a pellet gun, they gained entrance to the Wang residence. Hajek pointed the gun at Alice, and Vo bound and blindfolded Su Hung and isolated her by moving her to an upstairs room. Over the course of several hours, defendants, either jointly or individually, held four members of the Wang family hostage; accosted the family members with weapons and threatened to kill them; went out in search of Ellen, presumably to force her home and start the planned killings; refused to negotiate with Cary or Tony, but insisted on waiting for Ellen; bound and gagged Tony in an upstairs room, just as they had his mother-in-law; and killed Su Hung. Defendants also ransacked the house, inferentially in furtherance of their plan to make it appear as if a robbery had occurred. Their plot to kill Ellen and her entire family might very well have succeeded had the police not been called to intervene. On this record, there was substantial direct and circumstantial evidence that each defendant harbored a specific intent to kill, that they agreed on a plan for doing so, and that each took significant steps in putting their plan into action.

Although Hajek made explicit statements concerning his murderous intent to Moriarty, he argues those statements alone cannot constitute the corpus delicti of the crime. (People v. Ochoa (1998) 19 Cal.4th 353, 450 [ 79 Cal.Rptr.2d 408 , 966 P.2d 442 ] [prosecution must establish the corpus delicti of the crime by evidence independent of the defendant’s extrajudicial statements].) While true, this does not help him. “The independent evidence [establishing the corpus delicti of a crime] may be circumstantial, and need only be ‘a slight or prima facie showing’ permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant’s statements may be considered to strengthen the case on all issues.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1181 [ 119 Cal.Rptr.2d 903 , 46 P.3d 372 ].) The same “ ‘slight acts’ ” standard applies to evidence establishing the overt acts for purposes of attempt. (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8 [ 58 Cal.Rptr.3d 421 , 157 P.3d 1017 ] [“[W]e have long recognized that ‘[wjhenever the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt.’ ”]; see People v. Dillon (1983) 34 Cal.3d 441, 455 [ 194 Cal.Rptr. 390 , 668 P.2d 697 ]; People v. Morales (1992) 5 Cal.App.4th 917, 926-927 [ 7 Cal.Rptr.2d 358 ].) Here, the *1194 independent evidence of Hajek’s actions at the Wang residence was more than sufficient to permit consideration of his statements to Moriarty regarding his intent.

Vo contends Hajek’s statements to Moriarty, which were not made in Vo’s presence and of which he claims no knowledge, constituted the only evidence the prosecution presented of his intent to murder Ellen and her family. That is incorrect. As indicated, there was evidence that Vo was infatuated with Nguyen and that he was aware of the altercation involving her, Hajek, and Ellen, because he was at Hajek’s house during some of the hostile calls between Hajek and Ellen. The evidence also shows that Vo went to the Wang residence with Hajek and participated fully in the criminal conduct that occurred over the course of several hours, often taking the lead. Indeed, Vo told Cary at one point he was going to teach Ellen a lesson.

From the facts and circumstances surrounding Vo’s activities, a jury could reasonably have concluded that he was aware of Hajek’s plan to kill all the members of the Wang family and shared Hajek’s intent to do so. Under the applicable standard of review, it matters not whether the circumstances might also reasonably support a different finding. (People v. Watkins, supra, 55 Cal.4th at p. 1020.)

Both defendants maintain there was insufficient evidence of an act that went beyond mere preparation. We reject their claim under the “ ‘slight acts’ ” rule cited above. (People v. Superior Court (Decker), supra, 41 Cal.4th at p. 8.) At the point defendants entered the Wang residence and took Alice and Su Hung hostage, it can fairly be said they were “ ‘ “actually putting [their murderous] plan into action.” ’ ” (Id. at p. 9; People v. Morales, supra, 5 Cal.App.4th at pp. 926-927.) Certainly, their subsequent conduct, up to and including the actual murder of Su Hung, reflected far more than slight acts toward commission of their plan to kill the entire Wang family.

In sum, the record contains substantial evidence of defendants’ attempt to murder Cary, Alice, Tony, and Ellen.

d. Hajek’s firearm use enhancements

Pursuant to former section 12022.5, subdivision (a), counts 1 through 9 of the information alleged that Hajek personally used a firearm, “to wit: [a] PELLET GUN,” in the commission of the offenses. The jury found these allegations true, and Hajek was sentenced to five years on each of the enhancements for counts 1 through 9. Hajek contends that a change in the law excluding pellet guns from the definition of a firearm requires that we vacate or strike these nine firearm use enhancements. We agree in part.

*1195 Former section 12022.5 was part of part 4, title 2 of the Penal Code pertaining to control of deadly weapons. Prior to 1991, the definition of “firearm” for purposes of former section 12022.5 was set forth in sections 12001 and 12001.1, and section 12001.1 at the time included pellet guns within its definition. (Former § 12001.1, added by Stats. 1988, ch. 1605, § 3, p. 5821.) In 1991, the Legislature repealed section 12001.1 (Stats. 1991, ch. 950, §4, p. 4324) and amended section 12001 (Stats. 1991, ch. 955, § 1.1, p. 4451). As amended in 1991, section 12001 did not include pellet guns within the definition of “firearm” for purposes of any title 2 enhancement. (§ 12001, subd. (b), added by Stats. 1991, ch. 955, § 1.1, p. 4451.) The only reference to pellet guns was in subdivision (g) of section 12001, which expanded the definition of “firearm” for purposes of prohibiting the sale of firearms to minors.

In People v. Vasquez (1992) 7 Cal.App.4th 763 [ 9 Cal.Rptr.2d 255 ] (Vasquez), a jury had convicted the defendant of four counts of robbery, with enhancements for being armed with a firearm and personal use of a firearm. Because the weapon that was the basis of the enhancements was a pellet gun, the defendant argued on appeal that the repeal of section 12001.1 and the amendment of section 12001 required reversal of the enhancement findings. The Court of Appeal agreed: “Application of this new statutory definition for ‘firearm,’ or restricted definition, to Vasquez’s crimes committed before its operative date (Jan. 1, 1992) changes the legal consequences of his criminal conduct. [Citation.] Such application is permissible because the restricted definition generally favors defendants. [Citation.]” (Vasquez, at p. 767.) Accordingly, the court reversed the true findings of all the firearm enhancements. (Id. at p. 769.)

The Vasquez court relied heavily on the rule articulated in In re Estrada (1965) 63 Cal.2d 740 [ 48 Cal.Rptr. 172 , 408 P.2d 948 ] (Estrada), which established an exception to the general rule that no part of the Penal Code is retroactive. (§ 3 [no part of the Pen. Code is retroactive “unless expressly so declared”]; see Vasquez, supra, 7 Cal.App.4th at pp. 767-769.) In Estrada , we held that “where [an] amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.” (Estrada, at p. 748.)

As we recently explained, Estrada represents “an important, contextually specific qualification to the ordinary presumption that statutes operate prospectively: When the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute’s operative *1196 date. [Citation.] We based this conclusion on the premise that ‘ “[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law.” ’ [Citation.] ‘ “Nothing is to be gained,” ’ we reasoned, ‘ “by imposing the more severe penalty after such a pronouncement . . . other than to satisfy a desire for vengeance” ’ [citation]—a motive we were unwilling to attribute to the Legislature.” (People v. Brown (2012) 54 Cal.4th 314, 323 [ 142 Cal.Rptr.3d 824 , 278 P.3d 1182 ] (Brown).)

Importantly, however, while acknowledging the continuing viability of the Estrada rule, we have emphasized its narrowness: “Applied broadly and literally, Estrada’s remarks about section 3 would . . . endanger the default rule of prospective operation. Recognizing this in Evangelatos [v. Superior Court (1988) 44 Cal.3d 1188 [ 246 Cal.Rptr. 629 , 753 P.2d 585 ]], we declined to follow Estrada’s remarks about section 3 and held that ‘language in Estrada . . . should not be interpreted as modifying this well-established legislatively-mandated principle^]’ [Citation.] Accordingly, Estrada is today properly understood, not as weakening or modifying the default rule of prospective operation codified in section 3, but rather as informing the rule’s application in a specific context by articulating the reasonable presumption that a legislative act mitigating the punishment for a particular criminal offense is intended to apply to all nonfinal judgments. [Citation.]” (Brown, supra, 54 Cal.4th at p. 324.)

We agree that, thus understood, Vasquez properly applied the Estrada rule to the 1991 repeal of section 12001.1 and amendment of section 12001. Consistent with Vasquez , we conclude that, because Hajek’s judgment was not yet final at the time of the legislative action, his firearm use enhancements involving the use of a pellet gun must be struck.

That, however, does not end the discussion. In People v. Schaefer (1993) 18 Cal.App.4th 950 [ 22 Cal.Rptr.2d 536 ], the same division of the Court of Appeal that decided Vasquez was confronted by a similarly situated defendant who also sought reversal of true findings of firearm use enhancements because he, too, had been armed with a pellet gun when committing the crimes. Schaefer agreed the defendant was entitled to the benefit of Vasquez , but went on to conclude that “. . . Vasquez [did] not eliminate the law holding a pellet gun to be a deadly or dangerous weapon within the meaning of Penal Code section 12022, subdivision (b). [Citation.]” (Schaefer, at p. 951.) Reasoning that the defendant’s admission of the firearm use enhancements (former § 12022.5) necessarily included his admission of deadly or dangerous weapon enhancements (former § 12022, subd. (b) (former section 12022(b)), Schaefer struck the former enhancements and replaced *1197 them with enhancements under the latter statute, resulting in a reduced sentence. (Schaefer, at p. 951.)

Like the defendant’s admissions in Schaefer , the jury’s true findings on the firearm use enhancements (former § 12022.5, subd. (a)) necessarily included true findings on deadly or dangerous weapon use enhancements (former § 12022(b)). Consistent with Schaefer , we order that Hajek’s firearm use enhancements be struck and replaced with deadly or dangerous weapon use enhancements.

e. Vo’s knife use enhancements

The amended information alleged that Vo used a deadly weapon, to wit, a knife, in the commission of the attempted murders of Cary, Alice, Tony, and Ellen (counts 2 through 5), the kidnapping of Cary (count 6), and the false imprisonment of Tony (count 9). (Former § 12022(b).) The jury found these allegations true. Vo contends the evidence was insufficient to support the knife use allegations and findings.

“ ‘We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. [Citation.] Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.’ [Citation.]” (People v. Wilson (2008) 44 Cal.4th 758, 806 [ 80 Cal.Rptr.3d 211 , 187 P.3d 1041 ].) “The question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the underlying enhancement beyond a reasonable doubt.” (People v. Alvarez (1996) 14 Cal.4th 155, 225 [ 58 Cal.Rptr.2d 385 , 926 P.2d 365 ].)

At the time of Vo’s crimes, former section 12022(b) provided; “Any person who personally uses a deadly or dangerous weapon in the commission or attempted commission of a felony shall, upon conviction of such felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of one year, unless use of a deadly or dangerous weapon is an element of the offense of which he or she was convicted.” (Stats. 1989, ch. 1284, § 2, p. 5058.) This provision represents a legislative judgment that the use of a deadly or dangerous weapon in the commission of some felonies “justifies an additional penalty to that prescribed for the underlying felonies.” (People v. Wims (1995) 10 Cal.4th 293, 305 [ 41 Cal.Rptr.2d 241 , 895 P.2d 77 ].) “In order to find ‘true’ a section 12022(b) allegation, a fact finder must conclude that, during the crime or attempted crime, the defendant himself or herself intentionally displayed in a menacing manner or struck someone with an instrument capable of inflicting great bodily injury or death. [Citations.]” (Id. at p. 302.)

*1198 In determining whether there was substantial evidence of Vo’s knife use, we may properly consult cases construing the term “uses” in other enhancement statutes under “ ‘The Dangerous Weapons’ Control Law.’ ” (People v. Masbruch (1996) 13 Cal.4th 1001, 1006 [ 55 Cal.Rptr.2d 760 , 920 P.2d 705 ].) Hence, we may rely on cases construing the term as it is understood for purposes of section 12022.5, which addresses personal use of a firearm in the commission or attempted commission of a felony. (People v. James (1989) 208 Cal.App.3d 1155, 1163 [ 256 Cal.Rptr. 661 ]; see People v. Wilson, supra, 44 Cal.4th at pp. 806-807 [construing “uses” in former § 12022.5, subd. (a)]; People v. Granado (1996) 49 Cal.App.4th 317, 325 [ 56 Cal.Rptr.2d 636 ] (Granado) [same].) As we have recognized in the context of former section 12022.5, subdivision (a), “ ‘The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that “uses” be broadly construed.’ [Citation.] ‘Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure.’ ” (People v. Wilson, supra, 44 Cal.4th at pp. 806-807, quoting Granado, supra, 49 Cal.App,4th at p. 325.)

In Granado , the Court of Appeal, applying these principles, upheld a firearm use enhancement as to a victim who was not aware the defendant was armed and did not see the firearm. The defendant and another man confronted the two victims, Walter and Wilfredo Calderon, on the street and demanded money from them. Defendant took a gun from his waistband, which Walter saw, but Wilfredo fled without apparently having seen the gun. ( Granado, supra, 49 Cal.App.4th at pp. 320-321.) On appeal, the defendant argued that the firearm use enhancement as to Wilfredo should be set aside because the evidence did not show that Wilfredo was aware the defendant was armed with a gun. In a thoughtful opinion, the Court of Appeal rejected the argument. As the court pointed out, the underlying purpose of the firearm use statute is to deter defendants from using a firearm. “At its core the statute addresses the pervasive and inherent escalation of danger which arises from the defendant’s act of deployment. By merely bringing a gun ‘into play,’ the defendant removes impediments to its actual discharge and thus enhances the danger of violent injury not only through an intentional act by the victim or a third party, but through an impulsive or inadvertent act by the defendant.” (Id. at p. 327.) In light of this purpose, the court reasoned, “[t]o excuse the defendant from this consequence merely because the victim lacked actual knowledge of the gun’s deployment would limit the statute’s deterrent effect for little if any discernible reason.” (Ibid.) We find this reasoning equally applicable in the context of deadly or dangerous weapon use enhancements under former section 12022(b).

*1199 Vo contends that, “[a]side from the one brief period” when he held a knife “near” Cary before putting it away, there was no other evidence he was seen in possession of, or using, a knife. We disagree. Applying the principles articulated above, we find substantial evidence of Vo’s knife use as to all victims.

The prosecution’s case-in-chief included the following evidence. The police discovered two knives in the stolen van in which defendants arrived at the Wang residence, showing that defendants apparently contemplated, from the beginning, use of a knife to carry out their plan to kill Ellen and her family. The murder victim’s throat had been slashed by a “sharp bladed instrument” that the coroner believed was a knife, and her shoulder and chest also disclosed several nonlethal injuries inflicted by a knife. Thus, it was clear that defendants’ arsenal anticipated knife use, and a knife was indeed used in committing the crimes.

Turning specifically to Vo’s knife use, Alice testified she watched Vo arm himself with a knife and hide in the bathroom. Then, when Cary entered the house, Vo deliberately held the knife to Cary’s throat. According to Cary’s testimony, Alice told her not to scream so that Vo would not hurt them. This sufficiently established Vo’s use of the knife not only against Cary, but also against Alice.

Regarding Tony, Alice warned him that defendants had a knife as well as guns. Alice’s remark was clearly based on her observation of Vo’s open use of the knife on her mother. Thus, Vo’s knife use against Cary and Alice had the additional direct effect of instilling fear in Tony and securing his compliance when, later, defendants tied him up and took him upstairs. This evidence was sufficient to establish knife use against Tony. (See People v. Wilson, supra, 44 Cal.4th at p. 807 [Firearm use need not be strictly contemporaneous with the base felony; “ ‘[A] jury could reasonably conclude that although defendant’s presence with the victims was sporadic, the control and fear created by his initial firearm display continued throughout the encounter.’ ”].)

The jury also found true the knife use enhancement in connection with the attempted murder count involving Ellen, even though Ellen was not present at the Wang residence. Just as the fortuity of Ellen’s absence does not lessen Vo’s culpability for attempted murder, given the substantial evidence of his intent to kill and his commission of an overt act, neither does such fortuity render insufficient the evidence supporting the knife use enhancement on this count. From the outset, defendants were evidently prepared to use knives to murder Ellen and her family. They did, in fact, use a knife to kill Su Hung. As was true in Granado , where one of the victims was not aware the *1200 defendant was armed, to excuse Vo from the consequence of his knife use merely because Ellen lacked actual knowledge of the knife’s deployment “would limit the statute’s deterrent effect for little if any discernible reason.” (Granado, supra, 49 Cal.App.4th at p. 327 .)

In sum, Vo’s intentional use and display of a knife to intimidate and control the victims who either saw the knife (Cary and Alice) or were made aware of its use (Tony) facilitated defendants’ plan to murder the entire Wang family, including Ellen. Accordingly, we conclude the trial court did not abuse its discretion in refusing to grant a directed verdict of acquittal on the knife use allegations and that sufficient evidence supports all the knife use enhancements under former section 12022(b).

2. Use of Uncharged Conspiracy as Theory of Liability

Although defendants were not charged with the substantive offense of conspiracy, the prosecutor used conspiracy as a theory of derivative liability. Defendants challenge the use of uncharged conspiracy for this purpose.

The Attorney General contends the claim is forfeited because neither defendant objected to the prosecutor’s use of uncharged conspiracy as a theory of liability. Both defendants had objected to the trial court’s giving of conspiracy instructions, but their contention was limited to the perceived insufficiency of evidence of a conspiracy and did not assert the theory was legally impermissible. Nonetheless, even assuming the claim has been preserved, its substance is meritless.

“Conspiracy principles are often properly utilized in cases wherein the crime of conspiracy is not charged in the indictment or information. In some cases, for example, resort is had to such principles in order to render admissible against one defendant the statements of another defendant. [Citations.] In others evidence of conspiracy is relevant to show identity through the existence of a common plan or design. [Citation.] In still others the prosecution properly seeks to show through the existence of conspiracy that a defendant who was not the direct perpetrator of the criminal offense charged aided and abetted in its commission. [Citations.]” (People v. Durham (1969) 70 Cal.2d 171, 180-181, fn. 7 [ 74 Cal.Rptr. 262 , 449 P.2d 198 ].)

Conspiracy can itself be the basis of derivative liability quite apart from aiding and abetting principles. “It is long and firmly established that an uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator. [Citations.] ‘Failure to charge conspiracy as a separate offense does not preclude the People from proving that those substantive offenses which are charged were committed in furtherance of a criminal

*1201 conspiracy [citation]; nor, it follows, does it preclude the giving of jury instructions based on a conspiracy theory [citations].’ [Citation.]” (People v. Belmontes (1988) 45 Cal.3d 744, 788-789 [ 248 Cal.Rptr. 126 , 755 P.2d 310 ].) Contrary to Hajek’s assertion, use of an uncharged conspiracy does not violate state law, even though the statutory definition of “principals” set forth in section 31 does not include conspirators. (People v. Valdez (2012) 55 Cal.4th 82, 149-150 [ 144 Cal.Rptr.3d 865 , 281 P.3d 924 ] (Valdez).)

In Valdez , the defendant argued that the use of an uncharged conspiracy creates a constitutionally impermissible conclusive presumption “ ‘that a person who engages in an uncharged conspiracy to commit a substantive offense is guilty of the substantive offense later committed by others.’ ” (Valdez, supra, 55 Cal.4th at p. 150.) We disagreed: “ ‘[L]ike aiding and abetting, conspiracy (as used here) is itself a theory of liability. . . . The instructions given here did not tell the jury that it could presume any particular element of murder, including intent, based on proof of predicate facts. Instead, the instructions specified that, as an alternative to finding, based on the elements of murder, that [defendant] himself committed or aided in the crime, it could find him responsible for the crime based on his participation in a conspiracy to commit murder. This correctly stated the law concerning conspiracy as an alternative theory of liability. [Citations.] Accordingly, there was no error.’ ” (Ibid.) Hajek advances the same claim, and, for the reasons stated in Valdez , we again reject it.

Both defendants also contend the use of an uncharged conspiracy violated due process by depriving them of notice of the charges against them. Assuming, without deciding, the claim is not forfeited, it is meritless. “ ‘Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.’ ” (People v. Seaton (2001) 26 Cal.4th 598, 640-641 [ 110 Cal.Rptr.2d 441 , 28 P.3d 175 ].) Defendants here were so advised.

By the time the trial began, defendants were well aware the prosecutor intended to proceed on a conspiracy theory to establish derivative liability. For example, in opposing Vo’s motion to suppress evidence removed during a search of his locker, the prosecutor argued that the evidence consisting of writings by Vo and Nguyen was relevant to establish motive and a conspiracy. At the hearing on the motion, the prosecutor repeatedly referred to conspiracy as a basis for the admission of those documents. Additionally, defendants’ objections to the admission of Hajek’s letters to Vo questioned whether such letters were relevant to the prosecutor’s conspiracy theory. On this record, defendants cannot plausibly maintain that they were surprised or unaware of this theory or unable to prepare to defend against it. (See People v. Pike (1962) *1202 58 Cal.2d 70, 88-89 [ 22 Cal.Rptr. 664 , 372 P.2d 656 ] [no “element of surprise or unfairness” where, before trial began, defendant was “well aware” that “the case against him was based on theories of conspiracy and aiding and abetting”].)

Vo argues the prosecutor “used his expansive conspiracy theory as a substitute for evidence of’ Vo’s guilt. This merely repeats his sufficiency of the evidence claims, which we have already addressed and rejected. (See ante, pt. II.B.1.) Vo also argues that use of the conspiracy theory permitted the admission of improper evidence against him. This is, in part, a rehash of the severance claim, which we have also already addressed and rejected. (See ante, pt. II.A.1.) To the extent it challenges the admission of particular pieces of evidence, we take up those challenges below. (See post, pt. II.B.3.)

Vo asserts the trial court erred by admitting evidence of a conspiracy without first making a finding regarding the existence and the scope of such conspiracy. Because Vo’s trial counsel neither requested such a preliminary finding nor pressed the prosecution for an offer of proof, the claim is forfeited. Certainly, the prosecution was entitled to present evidence to establish the elements of conspiracy without first seeking leave of court, subject, of course, to the evidentiary rules governing admissibility. (Cf. People v. Belmontes, supra, 45 Cal.3d at p. 789 [“There being evidence supportive of all the elements of a conspiracy, the People were entitled to proceed on that alternative theory of liability.”].) Vo’s claim is really no more than a reprise of his sufficiency argument, addressed above, and his assertion, addressed below, that certain evidence was improperly admitted against him.

Vo also argues his due process rights were violated because the prosecution was not required to prove either the existence or the scope of the uncharged conspiracy beyond a reasonable doubt. Again, his quarrel is with the sufficiency of the evidence and the admissibility of certain evidence against him. Even taking his claim at face value, it is without merit.

In Valdez , the defendant similarly argued it was error for the trial court to have failed to instruct the jury that, to convict the defendant of murder based on conspiracy, under a theory of derivative liability, it must unanimously agree as to the existence and scope of the conspiracy and the defendant’s participation therein beyond a reasonable doubt. We rejected the claim. (Valdez, supra, 55 Cal.4th at p. 153.) “Under our prior decisions, ‘[i]t is settled that as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of murder as that offense is defined by statute, [the jurors] need not decide unanimously by which theory he is guilty. [Citations.]’ [Citation.] ‘Not only is there no unanimity requirement as to the theory of guilt, the individual jurors themselves need not choose among the *1203 theories, so long as each is convinced of guilt.’ [Citation.]” (Ibid.) We applied these principles to an uncharged conspiracy when used “as an alternative theory of liability for the charged, substantive crime of murder.” (Id. at p. 154.) Because the jurors need not unanimously agree on the theory of a defendant’s guilt, a court may discharge its obligations by instructing on the elements of conspiracy and the prosecution’s burden to prove the defendant’s guilt of murder beyond a reasonable doubt. That is what the court did here.

Accordingly, we reject defendants’ claim that the prosecution’s use of an uncharged conspiracy as a basis of derivative liability was impermissible. We address defendants’ challenges to the conspiracy instructions below. (See post, pt. II.B.4.d.)

3. Evidentiary Issues

a. Moriarty’s conversation with Hajek

Moriarty testified that Hajek called her the night before the murder. He talked about the altercation he and Nguyen had had with an unnamed girl and his fight with her a few days earlier. He also spoke of his plan to get revenge by going to the girl’s home, killing her family in front of her, and then killing her, while making his attack look like a robbery. Initially, Moriarty testified that in speaking of his plan, Hajek used the word “I,” implying only he would do these things. However, she acknowledged she had told police that Hajek talked about going to the victim’s house with two or three others, and had so testified at the preliminary hearing. On cross-examination by Vo’s attorney, she clarified that when Hajek spoke of entering the house and killing the girl and her family, he spoke only of himself and not of anyone else. She again acknowledged she had indicated to police and at the preliminary hearing that Hajek had referred to unnamed others in carrying out the plan, but added she did not remember using the words attributed to her in the police interview.

Vo argues that admission of Moriarty’s testimony violated his confrontation rights under Crawford v. Washington (2004) 541 U.S. 36 [ 158 L.Ed.2d 177 , 124 S.Ct. 1354 ] and that it also violated the Aranda/Bruton rule. His claims are meritless.

In Crawford , the United States Supreme Court held that “[tjestimonial statements of witnesses absent from trial [can be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” (Crawford v. Washington, supra, 541 U.S. at p. 59 , fn. omitted; see Williams v. Illinois (2012) 567 U.S._[ 183 L.Ed.2d 89 , 132 S.Ct. 2221, 2232 ].) Hajek’s conversation with Moriarty cannot be deemed testimonial within the meaning of Crawford because it was not a conversation involving an agent of the police.

*1204 The Aranda/Bruton argument fares no better. “The Aranda/Bruton rule addresses the situation in which ‘an out-of-court confession of one defendant .. . incriminates not only that defendant but another defendant jointly charged.’ [Citation.] ‘The United States Supreme Court has held that, because jurors cannot be expected to ignore one defendant’s confession that is “powerfully incriminating” as to a second defendant when determining the latter’s guilt, admission of such a confession at a joint trial generally violates the confrontation rights of the nondeclarant.’ ” (People v. Brown (2003) 31 Cal.4th 518, 537 [ 3 Cal.Rptr.3d 145 , 73 P.3d 1137 ].) In this case, however, Hajek’s statements to Moriarty were not “powerfully incriminating” as to Vo. Instead, they reflected vague statements about unnamed individuals whom Hajek might enlist in an event that had not yet occurred.

b. Defendants’ jailhouse conversation

After defendants were arrested and taken into custody, they were placed into a room together and their conversation was secretly tape-recorded. The prosecution prepared a transcript of the recording. Prior to trial, counsel for both defendants objected to admission of both the tape and the transcript on the ground that the tape was inaudible and the transcript misleading. Hajek argued the tape’s inaudibility rendered it irrelevant and inadmissible under Evidence Code section 352. Hajek added that if the court were inclined to admit the tape, it should admit only the tape and not the transcript. Vo argued that providing the jury with so inaudible a tape would lead to speculation. The trial court ruled the tape admissible, but not the transcript, because the latter was misleading.

Before the tape was played, both defense counsel stipulated that the court reporter need not transcribe it. Detective Walter Robinson authenticated the tape. Robinson acknowledged the overall quality of the tape was “fairly poor,” noting that a “good deal” of defendants’ conversation was whispered and that parts of the tape were inaudible and unintelligible. He testified further that “maybe 50 to 75 percent” of the conversation could be heard on the tape. He identified the defendants’ two voices and acknowledged that, in general, Hajek spoke at a normal level, while Vo whispered.

During guilt phase deliberations, the jury requested a transcript of the conversation, which the court denied because the transcript was not in evidence. At the hearing on defendants’ motion for a new trial, one of the jurors testified the jury listened to the tape during guilt phase deliberations “on a very poor tape recorder.” During the penalty phase, the jurors listened to the tape on a different tape player.

Hajek argues that admission of the tape constituted an abuse of discretion, because its poor quality rendered it unreliable, irrelevant or, if relevant, more *1205 prejudicial than probative. (Evid. Code, §§ 210, 350, 352.) He also maintains that its admission violated his federal constitutional rights to due process and heightened reliability in capital cases. As support, Hajek cites the trial court’s exclusion of the transcript prepared by the prosecution. He also relies on two jurors’ testimony at the hearing on defendants’ new trial motions that during penalty phase deliberations some jurors heard statements that Hajek contends were not on the tape.

Evidence Code section 350 provides that “[n]o evidence is admissible except relevant evidence.” “ ‘Relevant evidence’ means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Of course, a trial court may “exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . .” (Evid. Code, § 352.) Questions regarding the admissibility of evidence are committed to the trial court’s sound discretion. (People v. Homick, supra, 55 Cal.4th at p. 859.)

“[A] tape recording may be admissible even if substantial portions of it are unintelligible.” (People v. Siripongs (1988) 45 Cal.3d 548, 574 [ 247 Cal.Rptr. 729 , 754 P.2d 1306 ].) In light of the broad statutory definition of relevance, and the considerable discretion the trial court exercises in passing on questions of admissibility, we agree with People v. Polk (1996) 47 Cal.App.4th 944 [ 54 Cal.Rptr.2d 921 ] that “ ‘ “[t]o be admissible, tape recordings need not be completely intelligible for the entire conversation as long as enough is intelligible to be relevant without creating an inference of speculation or unfairness.” [Citations.]’ [Citation.] [][] Thus, a partially unintelligible tape is admissible unless the audible portions of the tape are so incomplete the tape’s relevance is destroyed.” (Id. at p. 952.)

Our review of the tape confirms Detective Robinson’s testimony that it is generally of poor quality and that much of the conversation is whispered and therefore inaudible or unintelligible. Nonetheless, we cannot conclude the quality of the tape is so compromised as to be rendered completely irrelevant. Those portions of the tape that are audible contain information generally corroborative of the prosecution’s guilt phase case, mostly through Hajek’s words. For example, Hajek states that he would have continued to flee from police had he not heard the officer who was pursuing him prepare to fire his gun. Hajek also refers to the fact that the victim was strangled and then had her throat slashed. Hajek talks about having seen Ellen at the jail and expresses his anger at her.

Hajek’s intention to flee the scene, his knowledge of the manner in which the victim was killed, and his continuing anger toward Ellen are relevant to *1206 the issue of his guilt, because they show consciousness of guilt (flight), participation in the murder (knowledge of how the victim was killed), and support for the prosecutor’s theory of his motive (anger toward Ellen). Similarly, while both defendants discuss the charges they are likely to face (kidnapping and murder), neither one at the same time denies culpability or expresses surprise or dismay at those charges. Regarding Vo, the jury could reasonably have concluded that Vo’s decision to whisper during the conversation reflected a desire not to be overheard, supporting a conclusion that he was making incriminating statements.

While the nature of the recording may have made the evidence less probative than if the entire conversation had been clearly captured, the court did not abuse its discretion in determining that the audible portions nonetheless were relevant and admissible. (People v. Roldan, supra, 35 Cal.4th at p. 688 [“A trial court will not be found to have abused its discretion unless it ‘exercised its discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice.’ ”].) The fact that the trial court excluded the prosecutor’s transcript because it deemed the transcript misleading does not suggest that the court believed the tape itself was without evidentiary value. The court’s concern instead focused on the debatable accuracy of the transcript, a concern shared by Hajek’s trial counsel who, while opposing admission of either tape or transcript, preferred the tape alone be admitted. In addition, the posttrial controversy over what the jurors heard on the tape during their penalty phase deliberations has no bearing on the trial court’s initial ruling since, obviously, that information was not before it. Finally, Hajek fails to demonstrate that the risk of undue prejudice posed by the recording’s admission substantially outweighed its probative value, such that exclusion under Evidence Code section 352 was required. Accordingly, we conclude the trial court did not abuse its discretion in admitting the tape.

Vo also argues that admission of the tape violated the Aranda/Bruton rule. Because Vo failed to make any such objection below, the Attorney General correctly notes the claim is forfeited. 21 In any event, Vo fails to identify any statements on the tape that would implicate that rule. Citing section 190.9’s requirement that all proceedings in capital cases be on the record, Vo additionally argues that the trial court erred by failing to direct the court reporter to transcribe the tape when it was played in court. But both defense counsel stipulated that the tape need not be transcribed, and the claim is therefore forfeited. (Houston, supra, 54 Cal.4th at p. 1213.) In any event, “it is sufficient [for purposes of section 190.9] that the record contains [this] recording^ and defendant had access to [it].” (Id. at p. 1214.)

*1207 In sum, we conclude the admission of the tape was not an abuse of discretion and did not violate defendants’ constitutional rights.

c. Hajek’s alleged interest in Satanism

Exhibit No. 64 was a letter that Hajek wrote to Vo while in custody, and it included the following remarks: “The devil made me do it! Satan [drawing of a pentangle], I’m still trying to get a Satanic Bible in here.” During his examination of Nguyen, the prosecutor asked her a series of questions about Hajek’s interest in Satanism. Both Hajek and Vo objected to the prosecutor’s initial question, “Did Mr. Hajek ever tell you about his interest in Satanism or Satanic things?” Hajek objected on relevance grounds, and Vo on hearsay grounds. Hajek withdrew his objection when the prosecutor argued the question was relevant to Hajek’s mental state and motivation. With respect to Vo’s relevance objection, the court instructed the jury, “it is a statement by Mr. Hajek and it does not flop over to Mr. Vo.”

Hajek objected a second time when the prosecutor asked if Hajek was interested in Satanic rituals, and the objection—“That assumes this young woman even knows what a Satanic ritual is”—was sustained. The trial court also sustained Hajek’s objection when the prosecutor asked Nguyen, “Ever hear him say he wanted to kill someone as part of his Satanic beliefs?” The court, however, overruled the objection to the prosecutor’s next question, “Did he ever say he would kill the people in this case, Ellen’s grandmother, for this reason?” When Nguyen answered, “No,” the prosecutor moved on to other subjects. Vo joined the prosecutor in seeking to have exhibit No. 64 admitted, and the trial court admitted the letter over Hajek’s objection.

On appeal, Hajek contends the admission of Nguyen’s testimony and exhibit No. 64 was prejudicial error because evidence regarding Hajek’s interest in Satanism was irrelevant or, if relevant, unduly prejudicial under Evidence Code section 352. He further argues that the evidence should have been barred under Evidence Code section 1101, subdivision (a), which provides that evidence of a person’s character or trait of his or her character ordinarily “is inadmissible when offered to prove his or her conduct on a specified occasion.” Finally, Hajek asserts the admission of this evidence violated his Eighth Amendment interest in heightened reliability in capital cases. We reject these contentions for the reasons below.

Here, a rational jury could have viewed Hajek’s statement in exhibit No. 64—“The devil made me do it”—as an admission of guilt, contrary to his statement to police in which he denied all responsibility. It was therefore relevant and admissible on that point, and its admission was not error.

*1208 With respect to Hajek’s references to Satan and the Satanic Bible, even assuming those statements should have been excluded, any error was harmless. These brief references in a lengthy letter pale in comparison with the overwhelming evidence of Hajek’s guilt. As to his claim that admission of such evidence violated Evidence Code section 1101, subdivision (a), Hajek has forfeited that claim by failing to raise it at trial.

For the same reason, Hajek was not prejudiced when the trial court permitted the prosecutor to explore Hajek’s interest in Satanism with Nguyen, to determine whether Hajek may have made similar remarks to her, given their close relationship both before and after the offenses. Two of Hajek’s objections to specific questions by the prosecutor to Nguyen were sustained, and he withdrew another. As to the one question to which Hajek unsuccessfully objected, about whether Hajek ever told Nguyen he had killed the victim because of his interest in Satanism, Nguyen answered no, and the prosecutor moved on. Thus, despite Hajek’s attempts on appeal to make it appear as if his alleged interest in Satanism was a centerpiece of the prosecution’s case, these references were brief and scattered. 22

Vo contends the evidence of Hajek’s interest in Satanism was bad character evidence that was admitted in violation of Evidence Code section 1101, which tarred him by association. The argument is forfeited as Vo’s counsel failed to object on this ground below. (People v. Kennedy (2005) 36 Cal.4th 595, 612 [ 31 Cal.Rptr.3d 160 , 115 P.3d 472 ] [“When an objection is made to proposed evidence, the specific ground of the objection must be stated.”].) Moreover, as to exhibit No. 64, Vo’s counsel not only failed to object on any ground but joined the prosecutor in seeking to have the letter admitted. Finally, as to Nguyen’s testimony, the trial court instructed the jury that that evidence applied only to Hajek and did not “flop over” to Vo. Vo complains the trial court’s instruction was inadequate, but the onus was on Vo’s counsel to have requested a clarifying instruction in that case and, having failed to do so, he may not complain about it on appeal. (People v. Homick, supra, 55 Cal.4th at p. 873.) In any event, given that the references were not prejudicial to Hajek directly, they could not have indirectly prejudiced Vo.

d. Other crimes evidence

Over Hajek’s objections, Vo was permitted to call James O’Brien and Douglas Vander Esch as part of his defense that Hajek had lost control at the crime scene and killed the victim without Vo’s knowledge. O’Brien testified to an incident that occurred when he and Hajek were coworkers at a pizza *1209 parlor. At the end of their shifts, Hajek, for no apparent reason, hit O’Brien in the face, breaking his nose. Vander Esch, a correctional officer, testified that, when he declined Hajek’s request to talk to a sergeant, Hajek went on a rampage, destroying jail property. On appeal, Hajek contends the admission of this testimony violated Evidence Code section 1101’s ban on bad character evidence and constituted an abuse of discretion under Evidence Code section 352. We reject these claims.

Hajek himself had already introduced evidence of these incidents and other criminal activity on his part in furtherance of his mental defect defense. Hajek’s mother testified he was “explosive, angry” and “easily frustrated,” and had been arrested for indecent exposure and separately for possession of nunchucks. Both she and Hajek’s former probation officer testified that Hajek had attacked a coworker at the pizza parlor, breaking the coworker’s nose. Hajek’s expert witness, Dr. Minagawa, testified regarding an incident in which Hajek destroyed jail property. Indeed, in lodging her objection to Vo’s intention to call O’Brien and Vander Esch, Hajek’s attorney argued “the jury has heard extensive testimony [about the two incidents] and it’s clear that Mr. Hajek and I are not disputing those facts.”

Thus, Vo’s evidence did no more than echo Hajek’s defense, and it was introduced for essentially the same purpose: To show that Hajek was acting under the influence of a mental defect or disease when the crimes occurred. Accordingly, we find no error under either Evidence Code section 1101 or Evidence Code section 352.

e. Testimony of Norman Leung

Hajek contends the trial court abused its discretion when it declined to conduct an Evidence Code section 402 hearing before permitting the prosecutor to call Norman Leung, a friend of Hajek’s. He also contends Leung’s testimony should have been excluded under Evidence Code section 352. We find no abuse of discretion under either provision of the Evidence Code.

i. Background

The prosecutor called Leung because three of Hajek’s jailhouse letters referred to Leung in a manner that, the prosecutor argued, suggested Hajek had attempted to enlist Leung into the conspiracy to kill Ellen and her family. The prosecutor argued that the letters showed the plot was formed before defendants went to the Wang residence. Both defendants objected to the admission of the letters, Hajek essentially on relevance grounds and Vo on hearsay grounds. Hajek’s counsel also objected to the prosecutor’s intention to call Leung to the stand because, she argued, the prosecution got “nothing” *1210 from its earlier interviews with Leung. She argued that “just by asking [Leung] were you threatened by [Hajek] ... is inherently prejudicial.” Vo’s counsel similarly objected and requested that the trial court conduct an Evidence Code section 402 hearing to test the admissibility of the testimony before allowing the prosecutor to call Leung as a witness at trial. The trial court rejected the request.

Leung was called to the stand. He testified that he was a good friend of Hajek’s and a friend of Vo’s, and that Hajek, Vo, and Nguyen were friends with each other. Leung professed lack of memory when asked about any matter related to the crimes. In response to the prosecutor’s question about whether Leung had gone into hiding after the crimes because he was afraid Hajek would harm him, Leung testified, “It may have happened .... I can’t remember it.”

ii. Discussion

Although a prosecutor commits misconduct by intentionally eliciting inadmissible evidence, “ ‘ “merely eliciting evidence is not misconduct.” ’ ” (People v. Mills (2010) 48 Cal.4th 158, 199 [ 106 Cal.Rptr.3d 153 , 226 P.3d 276 ].)

Here, the prosecutor had a viable theory of the relevance and probative value of Leung’s testimony, i.e., it might help establish an existing conspiracy to kill Ellen and her family to show that Hajek attempted to recruit Leung to join that conspiracy. Hajek’s objection to Leung’s testimony was that he was likely to be a nonresponsive or hostile witness, based on Leung’s preliminary hearing testimony and interviews with the prosecutor’s investigators. Be that as it may, absent a showing that the prosecutor was operating in bad faith, the prosecutor was entitled to call the witness for whatever value he could derive from his testimony, including his demeanor on the stand. (People v. Scott (2011) 52 Cal.4th 452, 493 [ 129 Cal.Rptr.3d 91 , 257 P.3d 703 ] [“a witness’s ‘demeanor is always relevant to credibility’ ”]; Evid. Code, § 780, subd. (a).) In this vein, it is clear, even from the cold transcript, that the jury could reasonably doubt Leung’s credibility regarding his professed lack of memory as to whether Hajek solicited him to join the conspiracy or whether he feared Hajek.

Moreover, to the extent defendants believed the prosecutor’s questions regarding those topics were improper, they could have objected, but for the most part they did not. Thus, they have forfeited any complaint on appeal regarding the propriety of those questions. In sum, the record establishes that the prosecutor called a witness he believed would be helpful to his case, and that the prosecutor’s questions were asked in a good faith belief that the *1211 witness had knowledge of those topics. (Cf. People v. Pearson (2013) 56 Cal.4th 393, 434 [ 154 Cal.Rptr.3d 541 , 297 P.3d 793 ] [“A prosecutor may not ask questions of a witness suggesting facts harmful to a defendant without a good faith belief that such facts exist.”].)

Finally, the trial court did not abuse its discretion by declining to conduct an Evidence Code section 402 hearing based on defense counsels’ concern that Leung would be a nonresponsive witness. (People v. Williams (1997) 16 Cal.4th 153, 196 [ 66 Cal.Rptr.2d 123 , 940 P.2d 710 ] [A trial court’s “broad discretion” to determine the admissibility of evidence extends to “whether or not to decide [such] questions under Evidence Code section 402.”].) Nor did the court abuse its discretion by declining to exclude Leung’s testimony under the provisions of Evidence Code section 352. (People v. Lancaster (2007) 41 Cal.4th 50, 83 [ 58 Cal.Rptr.3d 608 , 158 P.3d 157 ] [“courts have broad discretion to weigh the prejudicial impact of testimony against its probative value”].)

f. Testimony of McRobin Vo

Hajek contends the trial court erroneously allowed the prosecution to question Vo’s brother, McRobin Vo, about Hajek’s unresponsive answers to McRobin Vo’s questions regarding the crimes when he visited Hajek in jail. Hajek asserts that, in doing so, the trial court permitted the prosecutor to violate Doyle v. Ohio (1976) 426 U.S. 610 [ 49 L.Ed.2d 91 , 96 S.Ct. 2240 ]. Hajek also asserts the testimony should have been excluded as unduly prejudicial pursuant to Evidence Code section 352. The claims are without merit.

McRobin Vo testified he had visited Hajek in jail. The prosecutor asked him if he had questioned Hajek about what happened at the Wang residence. The witness responded: “He just played it off about he didn’t really want to talk about it.” Hajek’s attorney objected. At a hearing outside the presence of the jury, counsel explained that questions about what Hajek had told the witness were irrelevant. The prosecutor indicated he did not intend to ask any further questions about those conversations, but he was interested in the witness’s “observations as to [Hajek’s] mental state.” The following day, before trial recommenced, Hajek’s attorney lodged an additional objection on Fifth Amendment grounds and also cited Evidence Code section 352.

The Attorney General argues that Hajek has forfeited his Doyle claim because Hajek’s counsel objected only after McRobin Vo had already testified to the statement, and she did not then move to strike that testimony. We disagree. Hajek’s attorney objected to the testimony as soon as it came in. In the course of the hearing on the objection, she made Doyle and Evidence Code *1212 section 352 arguments. Although counsel raised these points the following day, after the evening recess, the discussion about the basis of this objection was ongoing, and she made these points before the prosecutor resumed his examination of McRobin Vo.

Nonetheless, the argument is without merit. “In Doyle , the United States Supreme Court held that it was a violation of due process and fundamental fairness to use a defendant’s postarrest silence following Miranda warnings to impeach the defendant’s trial testimony. [Citation.]” (People v. Collins (2010) 49 Cal.4th 175, 203 [ 110 Cal.Rptr.3d 384 , 232 P.3d 32 ].) Doyle does not apply where, as here, the conversation in which the defendant was silent involved a private party “absent a showing that such conduct was an assertion of [the defendant’s] rights to silence and counsel.” (People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520 [ 275 Cal.Rptr. 810 ].) In People v. Medina (1990) 51 Cal.3d 870 [ 274 Cal.Rptr. 849 , 799 P.2d 1282 ], we held the jury could draw adverse inferences from the defendant’s silence when his sister asked him why he shot the victims, because the “record [did] not suggest that defendant believed his conversation with his sister was being monitored, or that his silence was intended as an invocation of any constitutional right.” (Id. at p. 890.)

Similarly, nothing in the record before us suggests that Hajek’s refusal to discuss the crimes with McRobin Vo was intended to be an invocation of his Fifth Amendment rights. Moreover, the prosecutor “did not attempt... to use the comment against defendant by inviting the jury to draw any adverse inferences from the remark.” (People v. Thomas (2012) 54 Cal.4th 908, 936 [ 144 Cal.Rptr.3d 366 , 281 P.3d 361 ].)

We also reject Hajek’s assertion that admission of this brief testimony was an abuse of the trial court’s discretion under Evidence Code section 352. For purposes of that statute, prejudice “means evidence that tends to evoke an emotional bias against the defendant with very little effect on issues.” (People v. Crew (2003) 31 Cal.4th 822, 842 [ 3 Cal.Rptr.3d 733 , 74 P.3d 820 ].) The brief testimony was not an abuse of discretion, prejudicial or otherwise.

g. Statements and writings by and about Hajek

Vo contends the admission of certain writings and statements by and about Hajek violated Vo’s confrontation rights under both Crawford v. Washington, supra, 541 U.S. 36 , and the Aranda/Bruton rule. His claims either have been previously disposed of, or are forfeited or meritless, or both.

*1213 i. Moriarty’s testimony

Vo repeats his assertion that Moriarty’s testimony regarding her phone conversation with Hajek the night before the crimes violated Vo’s confrontation rights. We have previously considered and rejected this claim. (See ante, pt. II.B.3.a.)

ii. Tape of defendants’ conversation at the jail

Vo repeats his contention that admission of the audiotaped conversation between him and Hajek violated the Aranda/Bruton rule. We have previously considered and rejected this claim. (See ante, pt. II.B.3.b.)

iii. Dr Minagawa’s testimony that Hajek denied killing Su Hung

Vo repeats the argument he made in connection with his severance claim that Dr. Minagawa’s penalty phase testimony that Hajek denied killing Su Hung violated the Aranda/Bruton rule. We have previously considered and rejected this argument in the context of Vo’s severance claim. (See ante, pt. II.A.1.)

iv. Exhibits Nos. 63, 64, 65, 72, 73, 78, and 79

Exhibits Nos. 63, 64, 65, 72, 73, 78, and 79 are letters written by Hajek to Vo after their arrest. 23 Vo asserts the prosecution’s use of these letters violated Vo’s confrontation rights, citing both Crawford v. Washington, supra, 541 U.S. 36 , and the Aranda/Bruton rule, because Hajek made statements incriminating Vo in the letters without being available for cross-examination.

As Vo concedes, exhibits Nos. 63 and 79 were not admitted into evidence and therefore could not have had any impact on his confrontation rights. While Vo claims the prosecutor quoted extensively from these letters, he fails to direct us to where in the record the prosecutor did so. Even if the prosecutor did quote from these letters, any claim as to the impropriety of his doing so is forfeited given Vo’s failure to object. Also forfeited is Vo’s objection to the admission of exhibit No. 64. Indeed, as noted, Vo joined the prosecutor in urging that the letter be admitted against Hajek. When the court admitted it against both defendants, Vo did not object.

Vo asserts he did object to the admission of page 3 of exhibit No. 65 and exhibits Nos. 72, 73, and 78. However, Vo’s counsel objected on confrontation grounds only with respect to exhibit No. 65 when he specifically invoked *1214 the Aranda/Bruton rale. His objections to exhibits Nos. 72, 73, and 78 were all rote and unelaborated objections on the grounds of hearsay, relevance, and Evidence Code section 352, not the confrontation clause.

Under Evidence Code section 353, subdivision (a), a reviewing court cannot grant relief on a claim that evidence was erroneously admitted unless a timely objection was made “and so stated as to make clear the specific ground of the objection or motion.” “ ‘What is important is that the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.’ ” (People v. Geier (2007) 41 Cal.4th 555, 609 [ 61 Cal.Rptr.3d 580 , 161 P.3d 104 ].) By failing to comply with the statutory mandate of a timely and specific objection, Vo has forfeited his confrontation claim with respect to exhibits Nos. 72, 73, and 78.

Even if he had not, we would conclude there was no violation of his confrontation clause rights under Crawford . Private communications between inmates are not testimonial, and their admission would not violate the principle laid down in Crawford that bars the use at trial of testimonial out-of-court statements as to which no opportunity for cross-examination was afforded. (Crawford v. Washington, supra, 541 U.S. at p. 68 ; see U.S. v. Pelletier (1st Cir. 2011) 666 F.3d 1, 9 [in-custody inmate conversations were not testimonial because “[t]hey were made not under formal circumstances, but rather to a fellow inmate with a shared history, under circumstances that did not portend their use at trial”].) Because “the confrontation clause is concerned solely with hearsay statements that are testimonial” (People v. Cage (2007) 40 Cal.4th 965, 981 [ 56 Cal.Rptr.3d 789 , 155 P.3d 205 ]), and the letters are not testimonial, Vo’s rights under Crawford were not implicated by their admission.

Moreover, even if Vo’s Aranda/Bruton claim was preserved, any error, assuming error, would be harmless. Amid Hajek’s ramblings in exhibit No. 65, he writes that he and Vo are “terrorists” and that “we are going to get away with this.” In the first paragraph of exhibit No. 72, Hajek muses about the elements of attempted murder, drawing a distinction between “intent” and “preparation.” He writes: “So if anyone was going to kill the Wangs, they were only preparing to do so.” He writes further: “And if my main goal was to kill Ellen, there was no way we could do any act towards killing the family. Specially since I had (supposedly) said to (Tevya) that we were going to wait [until] we had everybody—then kill. Ellen was supposed to be last. So that means that we were only preparing to kill everyone. So that means we can’t be convicted of attempted murder! Sound good to you?” In exhibit No. 73, in the context of complaining about his lawyer, Hajek writes, “And *1215 what do you mean tagged along and Boom in jail? I won’t say anymore. As for the case—WE ARE DOOMED.” In exhibit No. 78, Hajek writes, “The D.A. is supposed to have a peice [¿ic] of evidence that is a for sure that we planned to go over there,” and suggests the source of that evidence is “Bucket” (Leung).

As noted, ArandalBruton error is scrutinized under the Chapman harmless beyond a reasonable doubt standard. (People v. Burney (2009) 47 Cal.4th 203, 232 [ 97 Cal.Rptr.3d 348 , 212 P.3d 639 ].) This standard “ ' “requires] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” [Citation.] “To say that an error did not contribute to the ensuing verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question as revealed in the record.” ’ ” (People v. Pearson, supra, 56 Cal.4th at p. 463 .)

For the most part, Hajek’s statements, rather than “expressly incriminating]” Vo (Lewis, supra, 43 Cal.4th at p. 456 ), are ambiguous. They can be viewed as setting forth Hajek’s understanding of the legal and evidentiary case that is being prepared against them rather than as admissions that defendants committed the crimes. Hajek’s statements about the attempted murder charges are carefully cast in hypothetical language, his statement about being doomed appears to refer to asserted deficiencies in his lawyer’s representation and his reference to the prosecutor’s evidence is speculation on his part. While we agree that certain statements in exhibit No. 65 do expressly incriminate Vo, nonetheless they were inconsequential on the issue of guilt when viewed in relation to the totality of the evidence before the jury. Thus, even assuming admission of those statements constituted ArandalBruton error, such error was harmless under the applicable Chapman standard.

h. Crime scene and autopsy photographs

Vo, joined by Hajek, contends the trial court abused its discretion by admitting crime scene and autopsy photographs of the murder victim. We reject the claim. “ ' “The admission of allegedly gruesome photographs is basically a question of relevance over which the trial court has broad discretion. [Citation.] ‘A trial court’s decision to admit photographs under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value.’ ” ’ ” (People v. Mills, supra, 48 Cal.4th at p. 191 .) In this case, where torture murder and torture-murder special circumstances were alleged and hotly contested, the autopsy photographs were undoubtedly relevant and probative on that issue. The photographs were disturbing, but they were not unnecessarily so. They “simply showed what had been done to the victim; the revulsion *1216 they induce is attributable to the acts done, not to the photographs.” (People v. Brasure (2008) 42 Cal.4th 1037, 1054 [ 71 Cal.Rptr.3d 675 , 175 P.3d 632 ].) Having examined the photographs, we conclude their admission fell well within the trial court’s broad discretion.

4. Instructional Error

a. Guilt phase instructions as a whole

Hajek, joined by Vo, asserts the multiplicity of instructions given in the guilt phase were “hopelessly confusing.” The assertion does not rise to a showing of error, much less reversible error. As the Attorney General points out, capital cases are frequently tried on multiple theories of liability. Absent a showing of error, “ ‘[w]e presume that jurors comprehend and accept the court’s directions. [Citation.] We can, of course, do nothing else. The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions.’ [Citation.]” (People v. Homick, supra, 55 Cal.4th at p

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