People v. Davis

A. Guilt Phase

1. Prosecution’s case

a. Kingsmill kidnapping and robbery

In 1984, David Kingsmill was a student at the University of California at Los Angeles, in Westwood. On May 27, about 11:00 p.m., as Kingsmill was getting out of his new black Volkswagen Rabbit, he felt a gun at his neck and heard someone tell him to turn around and get back in the car. Kingsmill did so. Defendant and two other African-American men got in after him. One of the men told Kingsmill to drive where he was told. Ultimately, Kingsmill stopped somewhere on Sepulveda Boulevard and gave the three men his wallet, money, and credit cards. He then complied with their demand to get out of the car and take off his pants and underwear. The three men left, taking Kingsmill’s clothes. Four days later, deputy sheriffs stopped defendant in South Central Los Angeles while he was driving with DeAndre Brown in a new black Volkswagen Rabbit. With respect to this incident, defendant pleaded guilty to one misdemeanor count of unlawfully taking a vehicle (Veh. Code, § 10851) for which he served a two-month jail sentence.

b. Boyd and Harris murders

Testifying under a grant of immunity, DeAndre Brown gave the following account of the murders. In September 1985, defendant was living with his friend Brian Wright at the house of Wright’s grandmother in South Central Los Angeles. On September 26, defendant and Wright were arrested. Defendant was able to post bail but Wright was not. A few days later, defendant told Brown about a plan to drive to Barstow, San Bernardino County, and rob a liquor store to get money to post Wright’s bail. Brown agreed to take part in the planned robbery.

Redmond drove a short distance, then stopped to let Bennett drive. Bennett drove near a high school. It was around midnight and the area was “pitch black,” with no lights or houses around. Defendant signaled Bennett to stop the car. Defendant, Redmond, and Brown got out, taking Boyd with them. Brown handed defendant the Uzi. Brown saw defendant take Boyd out into a field but then lost sight of them. Brown then heard thumping from inside the Honda’s trunk and a voice yelling “let me out.” When defendant returned to the car, Redmond opened the trunk hood and Brian Harris emerged holding his hands over his eyes. Harris said he could not see and would not look. Defendant, still holding the Uzi, told Harris, “I’m going to take you to your girl.” He and Redmond then walked Harris out into the field. Brown saw Redmond walking back toward the car and then saw a flash of light in the field. A second flash followed, after which defendant returned to the car. When Brown asked defendant what he had done, defendant said he had “killed ‘em“ because he did not want any witnesses.

Defendant, Brown, Bennett, and Redmond then drove away, with Bennett at the wheel, planning to drive northeast from Los Angeles to Barstow to rob the liquor store. Brown fell asleep. He awoke to defendant’s yelling at Bennett because they had ended up in Bakersfield, in Kem County, north of Los Angeles, about 130 miles from Barstow. Eventually the group drove to Barstow and arrived at the liquor store they planned to rob. Brown went in to check out the store, but came back and reported that there were people inside and it “wasn’t cool.” The four then headed back to Los Angeles, arriving about 6:00 or 7:00 a.m. on October 1.

Brown got out at a bus stop a few miles from his home. He took the Uzi with him, hidden in a brown briefcase he had found in victim Harris’s car. He stored the gun and the briefcase in his bedroom.

c. The arrests and interrogations

On October 1, 1985, about 8:30 a.m., James Shubsda arrived at the auto store where he worked in South Central Los Angeles. He noticed a brownish-colored Honda parked in the alley behind the store. About 15 minutes later, Shubsda heard an explosion. He ran into the alley, saw the Honda on fire, and called the fire department. Arson investigator Derek Chew of the City of Los Angeles Fire Department examined the Honda and determined that someone had poured gasoline inside it and set it on fire. Victim Harris’s wallet was in the trunk of the car. The police found only one fingerprint on the car; it belonged to Redmond.

The police looked up Redmond’s known associates and found, among others, Brown and defendant, whom they discovered had been involved in the 1984 kidnapping and robbery of college student David Kingsmill. They determined that Kingsmill’s car had been taken only a few blocks from where college students Boyd and Harris were last seen in Westwood, and that Brown, Redmond, and defendant all lived within 12 blocks of where Harris’s Honda had been abandoned in South Central Los Angeles. Brown, Redmond, and defendant thus became suspects in the disappearance of Boyd and Harris.

Officer David Evans of the Los Angeles Police Department was the investigating officer on the Boyd and Harris murders. He arrested Redmond around 6:00 a.m. on Sunday, October 6, 1985. Redmond had bums on his face and hands. Other officers arrested Brown about the same time. A search of Brown’s bedroom turned up a brown briefcase with an Uzi and a loaded magazine inside.

Later that day, Officer Evans and Detective Richard DeAnda questioned Brown and Redmond at the West Los Angeles police station. Brown admitted involvement in the kidnappings of Boyd and Harris and also implicated defendant, Redmond, and Bennett. Brown said that defendant had shot and killed both victims. Brown then led the police to the bodies of

Still later that Sunday, October 6, 1985, Officer Evans and Detective DeAnda questioned Redmond, who admitted being present at the murder scene. That afternoon, defendant surrendered and was taken to the West Los Angeles station. Bennett was arrested on October 8. During questioning, he admitted being present at the murder scene.

d. The jailhouse conversations

At trial, the prosecution introduced excerpts of incriminating statements by defendant that police had tape-recorded during conversations that defendant had with Redmond and Bennett while the three were being held at the West Los Angeles station before they were charged.

e. Other trial evidence

The parties stipulated that both Harris and Boyd died of single gunshot wounds to the head. A pathologist from the Los Angeles County Chief Medical Examiner Coroner’s Office recovered a bullet from Harris’s head.

A firearms expert test-fired the Uzi recovered from Brown’s bedroom and compared the resulting bullets and shell casings with the bullet removed from Harris’s head and the casings found at the murder scene. In his opinion, the casings and bullets were fired from that Uzi.

2. Defense case

The defense tried to undermine Brown’s credibility and to inculpate him as the shooter of Boyd and Harris. Los Angeles Police Department Detective Hugh Wilton, whom the defense called as a witness, testified that he had found the briefcase containing the Uzi and a loaded magazine in Brown’s bedroom. To discredit Brown’s testimony that the crime scene was “pitch black,” two witnesses testified that nearby streetlights were working on the night of the murders, and the parties stipulated that the moon was nearly full that night.

B. Penalty Phase

1. Prosecution’s evidence in aggravation

Much of the prosecution’s aggravating evidence was presented by stipulation of the parties, including these facts: Defendant was bom on March 19,

In 1981, when defendant was a ward at the California Youth Authority at CMno, he threw hot water on a counselor. In 1982, when defendant was an inmate at Soledad State Prison, he pushed a correctional officer through a doorway.

2. Defense evidence in mitigation

Several friends and family members testified about defendant’s difficult childhood and adolescence. Shortly after defendant’s birth, his mother, Della Moore, relinquished Mm to another woman, Ruby Orr. When Orr later married Joe Davis, the two raised defendant as their own son together with their two younger sons, Delano and Antoine. Orr abused defendant both physically and psychologically. She hit defendant with her fist and various items including switches, paddles, ironing cords, and a baseball bat. She verbally denigrated defendant and forced him to take care of the younger brothers, whom she favored. Orr and Davis had a violent relationship. Orr once shot Davis and once stabbed him. When defendant was a teenager, Davis and Orr divorced. Orr then held late night gambling parties in her house. When defendant was 18 or 19 years old, he learned that Orr was not his birth mother.

Clinical Psychologist Adrienne Davis, not related to defendant, testified about her psychological evaluation of defendant. Defendant scored in the borderline range on intelligence tests, between low average intellectual function and mild mental retardation. He scored at the fourth grade level in reading and math. Personality tests indicated that defendant had emotional and psychological problems, particularly with trusting and relating to other people, consistent with his history of physical and emotional abuse and exposure to family violence. On neuropsychological tests, defendant had difficulty with certain tasks, including problem solving. Davis described defendant generally as feeling isolated, inadequate, alienated, angry, frustrated, and confused. As the result of being incarcerated for most of his adult life, defendant lacked the necessary skills to cope with life outside of prison. He probably would function better in a closed environment.

Preliminarily, we note that various federal and state appellate courts have disagreed with regard to whether the high court’s decision in Hudson that convicted prisoners lack any expectation of privacy in their cells applies with equal force to persons who are still facing trial. One line of cases, beginning with United States v. Cohen (2d Cir. 1986) 796 F.2d 20 , holds that persons being held before trial retain a limited expectation of privacy that protects them from searches conducted for other than legitimate security reasons. (See United States v. Friedman (2d Cir. 2002) 300 F.3d 111 , 123; United States v. Willoughby (2d Cir. 1988) 860 F.2d 15 , 20-22 [intercepted conversations admissible where taping was a justifiable security measure]; Cohen, supra, at p. 24 [warrantless cell search solely to obtain information for prosecution violated Fourth Amendment]; Rogers v. State (Fla. 2001) 783 So.2d 980 , 990-992 [same]; McCoy v. State (Fla.Dist.Ct.App. 1994) 639 So.2d 163 , 167 [same]; State v. Henderson (1999) 271 Ga. 264 [ 517 S.E.2d 61 , 62-64] [same]; Lowe v. State (1992) 203 Ga.App. 277 [ 416 S.E.2d 750 , 752] [same]; State v. Neely (1990) 236 Neb. 527 [ 462 N.W.2d 105 , 112] [Hudson inapplicable to search of pretrial detainee’s luggage held in jail’s locked inventory]; State v. Jackson (1999) 321 N.J. Super. 365 [ 729 A.2d 55 , 63-65] [evidence suppressed where security concern was merely a pretext for an evidence-gathering search]; see also United States v. Hearst (9th Cir. 1977) 563 F.2d 1331 , 1345; see generally 4 LaFave, Search and Seizure (3d ed. 1996) § 10.9(d), pp. 754-755.) We cited Cohen in People v. Hardy (1992) 2 Cal.4th 86 , 181 [ 5 Cal.Rptr.2d 796 , 825 P.2d 781 ], in rejecting a claim that a jail cell search violated the detainee’s Sixth and Fourteenth Amendment rights.

Another line of cases, however, construes Hudson as validating any jailhouse search, regardless of its purpose, and as applying to persons incarcerated before trial as well as to convicted prisoners. (See State v. Apelt (1993) 176 Ariz. 349 [ 861 P.2d 634 , 649]; State v. O'Rourke (2001) 2001 ME 163 [ 792 A.2d 262 , 265-267]; People v. Phillips (1996) 219 Mich.App. 159 [ 555 N.W.2d 742 , 743-744]; State v. Wiley (2002) 355 N.C. 592 [ 565 S.E.2d 22 , 32-33]; State v. Martin (1988) 322 N.C. 229 [ 367 S.E.2d 618 , 620-622] [Hudson’s reasoning equally applicable to pretrial detainees in jails]; Soria v. State (Tex.Crim.App. 1996) 933 S.W.2d 46 , 60 [same]; see also People v. Von Villas (1993) 11 Cal.App.4th 175 , 212-216 [ 15 Cal.Rptr.2d 112 ] [pretrial

We agree with this latter line of cases that persons held pretrial in a jail—as defendant was when the police recorded his conversations with Redmond and Bennett—have no expectation of privacy for the following reasons. First, Hudson’s rationale, that jail security requires “close and continued surveillance of inmates and their cells” (Hudson, supra, 468 U.S. at p. 527), extends to anyone being held in a jail. Indeed, in Bell the high court recognized that pretrial detainees pose similar—if not the same—security concerns as convicted prisoners. (See Bell, supra, 441 U.S. at pp. 546-547, fn. 28 [“[t]here is no basis for concluding that pretrial detainees pose any lesser security risk than convicted inmates”].) As Justice O’Connor has suggested, it is “[t]he fact of arrest and incarceration [that] abates all legitimate Fourth Amendment privacy and possessory interests in personal effects [citations] and therefore all searches and seizures of the contents of an inmate’s cell are reasonable.” (Hudson, supra, 468 U.S. at p. 538 (conc. opn. of O’Connor, J.), italics added.)

Second, Hudson applies to jailhouse searches regardless of the purpose of the search. (See Hudson, supra, 468 U.S. at pp. 529-530 [rejecting claim that search violated Fourth Amendment because it was designed solely to harass].)

Third, although Hudson involved the physical search of a cell, its rationale extends as well to eavesdropping. Lanza and Katz were eavesdropping cases, yet the United States Supreme Court drew on those cases in Hudson. (See Hudson, supra, 468 U.S. at p. 525 [applying Katz expectation of privacy test in cell search context]; see also Bell, supra, 441 U.S. at pp. 556-557 [citing Lanza in cell search context].)

As a separate reason supporting his claim that the tape-recording violated his Fourth Amendment rights, defendant points out that it took place in 1985, when, he argues, California law provided persons incarcerated in this state with a reasonable expectation of privacy. Defendant relies on former section 2600 as construed in this court’s 1982 decision in DeLancie, supra, 31 Cal.3d 865 .

Under former section 2600, state prison inmates could “be deprived of such rights, and only such rights, as . . . necessary ... to provide for the reasonable security of the institution . . . and for the reasonable protection of the public.” (Stats. 1975, ch. 1175, § 3, p. 2897.) DeLancie held that former section 2600 protected pretrial detainees as well as prison inmates and

Although defense counsel had earlier indicated that defendant would be present at the hearing, counsel stated at the start of the hearing that defendant was aware of the purpose of the hearing but had decided to “waive his presence.” At the hearing, the trial court and counsel reviewed each of the 51 tape excerpts that the prosecution sought to have admitted into evidence, in order to reach an agreement as to the words being spoken so that a transcript of the tape could be prepared. Defense counsel and the prosecutor then argued the admissibility of the excerpts, and the trial court ruled that 49 of the excerpts would be admitted. The taped excerpts were presented at trial together with the agreed-upon transcript of the conversations on the tape.

Defendant now makes the following assertions: (1) his absence from the hearing violated his constitutional and statutory rights (see Kentucky v. Stincer (1987) 482 U.S. 730 , 745 [ 96 L.Ed.2d 631 , 107 S.Ct. 2658 ]; Snyder v. Massachusetts (1934) 291 U.S. 97 , 105-106 [ 78 L.Ed. 674 , 54 S.Ct. 330 ]; People v. Lucero (2000) 23 Cal.4th 692 , 717 [ 97 Cal.Rptr.2d 871 , 3 P.3d 248 ]; see also §§ 977, subd. (b)(1), 1043); (2) defense counsel’s purported waiver of defendant’s presence was ineffective; and (3) conducting the hearing in defendant’s absence resulted in the admission at trial of highly prejudicial portions of the jailhouse tape. The Attorney General counters that defendant, through counsel, validly waived his federal constitutional right to presence at the hearing, and that although defendant’s purported waiver of his state statutory right to be present was ineffective, his presence was not statutorily required and any state law error was harmless.

We conclude that this claim fails because defendant suffered no prejudice.

We have summarized the federal law governing a defendant’s presence at trial as follows; “ ‘A criminal defendant’s right to be personally present at trial is guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution .... [Citations.] A defendant, however, “does not have a right to be present at every hearing held in the course of a trial.” [Citation.] A defendant’s presence is required if it “bears a reasonable and substantial relation to his full opportunity to defend against the charges.” [Citation.]’ ” (People v. Lucero, supra, 23 Cal.4th at pp. 716-717; see People v. Waidla (2000) 22 Cal.4th 690 , 742 [ 94 Cal.Rptr.2d 396 , 996 P.2d 46 ].) The standard under sections 977 and 1043 is similar. “ ‘[T]he accused is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his opportunity to defend the charges against him .... [Citation.]’ [Citation.]” (People v. Ervin (2000) 22 Cal.4th 48 , 74 [ 91 Cal.Rptr.2d 623 , 990 P.2d 506 ]; People v. Waidla, supra, 22 Cal.4th at p. 742.)

Nor did defendant validly waive his right to be present under state or federal law. Section 977, subdivision (b)(1), states that in felony prosecutions “the accused shall be present” at certain proceedings not relevant here, and “at all other proceedings unless he or she shall, with leave of court, execute in open court a written waiver of his or her right to be personally present, as provided by paragraph (2).” (Italics added.) Section 977, subdivision (b)(2) further provides “[t]he accused may execute a written waiver of his or her right to be personally present, approved by his or her counsel, and the waiver shall be filed with the court.” Finally, section 1043 provides that a felony defendant “shall be personally present at the trial” (id., subd. (a)), but that the trial may continue in the defendant’s absence if (1) the defendant persists in disruptive behavior after being warned (id., subd. (b)(1)); (2) the defendant in a noncapital case is voluntarily absent (id., subd. (b)(2)); or (3) the defendant waives his right to be present pursuant to section 977 (§ 1043, subd. (d)). “[W]hen read together, sections 977 and 1043 permit a capital defendant to be absent from the courtroom only on two occasions: (1) when he has been removed by the court for disruptive behavior under section 1043, subdivision (b)(1), and (2) when he voluntarily waives his rights pursuant to section 977, subdivision (b)(1).” (People v. Jackson (1996) 13 Cal.4th 1164 , 1210 [ 56 Cal.Rptr.2d 49 , 920 P.2d 1254 ].) Here, there is no claim that defendant’s disruptive behavior allowed the court to conduct the May 16, 1989 hearing in his absence, and no evidence that defendant executed a written waiver of his presence at that hearing. Accordingly, the trial court erred under sections 977 and 1043 by conducting the proceeding in defendant’s absence.

Similarly, there was no valid waiver of defendant’s constitutional right to presence. As with other constitutional rights, a capital defendant may waive his right to presence at trial, as long as his waiver is voluntary, knowing and intelligent under the standard set forth in Johnson v. Zerbst (1938) 304 U.S. 458 , 464 [ 82 L.Ed. 1461 , 58 S.Ct. 1019 ]. (See People v. Robertson (1989) 48 Cal.3d 18 , 62 [ 255 Cal.Rptr. 631 , 767 P.2d 1109 ] [defendant’s written waiver of his right to be present at his sentence reduction hearing did not validly waive his right to be present at his sentencing,

Defendant also contends that had he been present at the hearing he could have assisted his attorneys in identifying the voices on the tape. But as explained below at pages 545 to 546, the jury could have identified the voices by analyzing what was said without relying on Brown’s voice identifications. Defendant’s contribution to the voice identification effort, assuming he would have been willing to provide it, would not have changed the words that were on the tape or the jury’s ability independently to analyze those words.

For all of these reasons, we conclude that defendant’s absence from the May 16, 1989 hearing was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 23.) It follows that it is not “ ‘reasonably probable’ ” that a result more favorable to defendant would have been reached had he been present. (People v. Jackson, supra, 13 Cal.4th at p. 1211.)

C. Admission of Hearsay Statements of Redmond and Bennett on Tape Excerpts

1. Admissibility of hearsay on the tape excerpts

The prosecution offered into evidence 51 separate excerpts of the taped jailhouse conversations. Defendant challenged each excerpt as inadmissible hearsay (Evid. Code, § 1200) and asked the trial court to consider each excerpt separately to determine whether it fell within any hearsay exception. The court declined to do so. The court did exclude two excerpts, but it admitted the remaining 49 either as statements of defendant, as adoptive admissions, or as providing context to defendant’s statements. The court also ruled that the probative value of the excerpts outweighed any prejudicial effect. (See Evid. Code, § 352.)

At trial, the tape recording (designated People’s exhibit 31) and a transcript (designated People’s exhibit 32) of the 49 excerpts were both admitted into evidence. Brown identified each of the speakers on the tape, and testified that the initials “DR” for Damon Redmond, “DB” for Donald Bennett, and “SD” for defendant appearing on the transcript identified the person who, in Brown’s opinion, was the speaker in each passage. The court told the jury that except where the transcript indicated “unintelligible” or had words in parentheses, the parties agreed to the words on the tape but did not agree as to who said what; that the initials on the transcript reflected only Brown’s opinion as to who was speaking; and that ultimately it was for the jury to decide what words were said, who said them, and what relevance those words had to the case.

2. Legal principles

Hearsay is “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Hearsay is not admissible unless it qualifies under some exception to the hearsay rule. Two hearsay exceptions are relevant here. A defendant’s own hearsay statements are admissible. (See id., § 1220; People v. Horning (2004) 34 Cal.4th 871 , 898, fn. 5 [ 22 Cal.Rptr.3d 305 , 102 P.3d 228 ]; People v. Carpenter (1999) 21 Cal.4th 1016 , 1049 [ 90 Cal.Rptr.2d 607 , 988 P.2d 531 ].) A statement by someone other than the defendant is admissible as an adoptive admission if the defendant “with knowledge of the content thereof, has by words or other conduct manifested his adoption [of] or his belief in its truth.” (Evid. Code, § 1221; see People v. Preston (1973) 9 Cal.3d 308 , 314 & fn. 3 [ 107 Cal.Rptr. 300 , 508 P.2d 300 ].)

In determining whether a statement is admissible as an adoptive admission, a trial court must first decide whether there is evidence sufficient to sustain a finding that: (a) the defendant heard and understood the statement under circumstances that normally would call for a response; and (b) by words or conduct, the defendant adopted the statement as true. (Evid. Code, §§ 403, 1221; People v. Carter (2003) 30 Cal.4th 1166 , 1198 [ 135 Cal.Rptr.2d 553 , 70 P.3d 981 ]; People v. Preston, supra, 9 Cal.3d at p. 314 & fn. 3.) Generally, this requires separately examining each excerpt of the tape-recorded conversations. (See Williamson v. United States (1994) 512 U.S. 594 , 599-602 [ 129 L.Ed.2d 476 , 114 S.Ct. 2431 ] [trial court erred in admitting a lengthy narrative as a statement against penal interest under Federal Rules of Evidence, rule 804(b)(3) (28 U.S.C.) on the ground that it was generally self-inculpatory; rather, the trial court should have examined each individual statement or remark within the longer narrative to determine whether it was inculpatory or exculpatory]; accord, People v. Lawley (2002) 27 Cal.4th 102 , 153 [ 115 Cal.Rptr.2d 614 , 38 P.3d 461 ].)

Evidence of an out-of-court statement is also admissible if offered for a nonhearsay purpose—that is, for something other than the truth of the matter asserted—and the nonhearsay purpose is relevant to an issue in

Here, the excerpts of the recorded jailhouse conversations and the transcripts made of those recorded excerpts were evidence of statements made by someone “other than by a witness while testifying at the hearing” (Evid. Code, § 1200, subd. (a))—in other words, out-of-court statements by defendant, Redmond, and Bennett. Thus, statements on the tape qualified as hearsay to the extent the prosecution was offering those statements to prove the truth of the facts being asserted by the speaker. These statements were inadmissible unless, as relevant here, they were defendant’s own statements, or they qualified as adoptive admissions of defendant, or they were offered for a nonhearsay purpose.

3. Defense contentions

Defendant argues here that seven of the excerpts of the recorded conversations were improperly admitted as adoptive admissions because defendant’s response to an assertion made by Redmond or Bennett was either unintelligible or indicated defendant did not hear or understand the assertion. For example, in one exchange (excerpt 47 of People’s exhibits 31 and 32) Bennett asks defendant, “You know what else I am wondering?” to which defendant responds “What?” Bennett then states, “They found it in the case he had it in,” to which defendant answers “A what?” We conclude that each of these excerpts, as well as the others to which defendant now objects, were properly admitted. As explained on page 535, ante, a statement is admissible as an adoptive admission if “there is evidence sufficient to sustain a finding” (Evid. Code, § 403, subd. (a)) that the defendant heard and understood the statement under circumstances calling for a response and by words or conduct adopted it as true. That standard is amply met here. For example, shortly after the exchange quoted above is the statement by defendant “if they did, oh man, why man?” indicating defendant both heard what Bennett said and understood it referred to the Uzi Brown had put in Harris’s briefcase. Moreover, the trial court told the jurors to listen to the tape and decide for themselves what was being said and by whom. Thus, it was up to the jury to decide what words defendant spoke and whether through his words or silence he adopted the comments by Redmond and Bennett. In doing so, the jury could have considered numerous factors, such as tone of voice and inflection, that are not reflected in the transcript.

Defendant now contends that the trial court had a duty to give CALJIC No. 2.71.5 on its own initiative. We disagree. A trial court has no duty to so instruct the jury without a request from counsel. (People v. Carter, supra, 30 Cal.4th at pp. 1197-1198.)

Defendant further argues that Special Instruction A was defective in several respects. Because defendant expressly agreed to this instruction, he is barred from challenging it on appeal under the doctrine of invited error. (People v. Rodrigues (1994) 8 Cal.4th 1060 , 1135 [ 36 Cal.Rptr.2d 235 , 885 P.2d 1 ]; People v. Cooper (1991) 53 Cal.3d 771 , 830-831 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ].) In any event, defendant’s attacks on the instruction lack merit.

Contrary to defendant’s contention, Special Instruction A was not defective in failing to tell the jury that a statement made by defendant could not be an adoptive admission (or, in the court’s terminology, an “implied” admission) unless it responded to an accusation against him. For the adoptive admission exception to the hearsay rule to apply, no “direct accusation in so many words” is necessary. (People v. Fauber (1992) 2 Cal.4th 792 , 852 [ 9 Cal.Rptr.2d 24 , 831 P.2d 249 ].) Rather, it is enough that the evidence showed that the defendant participated in a private conversation in which the crime was discussed and the circumstances offered him the opportunity to deny responsibility or otherwise dissociate himself from the crime, but that he did not do so. (Ibid.) Here, Special Instruction A informed the jury of these requirements by noting that defendant had to have “heard and understood” the declarant’s statement and “expressly or impliedly indicated its truth.”

Defendant complains that Special Instruction A was inadequate because it lacked the admonition in CALJIC No. 2.71.5 that the declarant’s statements cannot be considered for their truth. We disagree. The instruction told the jury that statements of the speakers on the tape other than defendant could be considered only for the purpose of “explaining what the defendant meant by any statements made by him and/or as a possible implied admission.” The instruction went on to explain that to conclude that any statement constituted an “implied” admission the jury had to “find both of the following to be true beyond a reasonable doubt: One, the defendant heard and understood the other [person’s] statement; and Two, the defendant expressly or impliedly indicated that the other [person’s] statement was true.” The trial court also instructed under CALJIC No. 2.09 that the jury was to consider evidence only for the limited purpose for which it was admitted. These instructions together advised the jury that the statements by Redmond and Bennett could be considered only insofar as they gave meaning to defendant’s own express or implied admissions.

Further, we are not persuaded that Special Instruction A was deficient in not telling the jury that it must disregard any statements of others that it did not find that defendant adopted. (Cf. CALJIC No. 2.71.5.) This notion was implicit in the instruction’s admonition that the jury could consider statements of others only if it found “beyond a reasonable doubt” that “the defendant expressly or impliedly indicated that the other [person’s] statement was true.” CALJIC No. 2.09, which told the jury to consider evidence only for the limited purpose for which it was admitted, reinforced this concept. We presume the jury followed these instructions. (People v. Turner, supra, 8 Cal.4th at p. 190; People v. Mickey, supra, 54 Cal.3d at p. 689, fn. 17.)

In sum, Special Instruction A adequately advised the jury of the requirements for finding adoptive admissions and of their proper use.

D. Accomplice Corroboration

Section 1111 prohibits a conviction based “upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense.” Defendant raises several contentions based on this provision. Specifically, he focuses on accomplice DeAndre Brown’s testimony, which at trial provided the primary evidence against defendant. According to defendant, his convictions for two counts of capital murder, robbery, and kidnapping, as well as the arson and grand theft convictions and the robbery-murder and kidnapping-murder special circumstances, all must be set aside because erroneous and confusing jury instructions, misleading prosecutorial argument, and tainted evidence allowed the jury to convict defendant without understanding that Brown’s testimony had to be corroborated by independent evidence connecting defendant to the crimes. Defendant also asserts that the instructions did not properly inform the jury that statements by the other accomplices—Redmond and Bennett—could not be used to corroborate Brown’s testimony. We reject these contentions.

1. Facts

At the guilt phase of defendant’s trial, accomplice Brown testified, giving his firsthand account of the kidnappings and murders of Boyd and Harris. The prosecution sought to corroborate Brown’s testimony with evidence of the recorded conversations in jail among defendant, Redmond, and Bennett. At one point, the trial court discussed with the prosecutor and defense counsel the procedure for playing that tape. Defense counsel objected to providing the jury with a copy of a transcript of the tape that included initials reflecting Brown’s identification of each speaker. The trial court overruled this objection.

The jury then heard the tape recording. Thereafter, Brown testified that he was in the courtroom when the tape was played, that he had seen the transcript of the tape, and that the initials on the transcript accurately reflected who was speaking, except that he could not say for sure that the passages marked “D.B.” were actually spoken by Bennett.

The trial court gave CALJIC Nos. 2.09 (evidence admitted for a limited purpose), 2.71 (admissions), 3.10 (definition of an accomplice), 3.11 (testimony of an accomplice must be corroborated by other evidence connecting defendant with the offense), 3.12 (sufficiency of evidence to corroborate an accomplice), 3.16 (Brown an accomplice as a matter of law), and 3.18 (accomplice testimony should be viewed with distrust). The court also gave Special Instruction A, which told the jury to consider the recorded statements of the speakers other than defendant only insofar as they explained defendant’s statements. In addition, the court gave “Special Instruction B,” which read in pertinent part: “The initials which appear in the left margin of People’s Exhibit [No.] 32 only represent De Andre Brown’s opinion as to the identity of the speaker .... Counsel have not agreed as to the identity of any speaker on People’s Exhibit [No.] 31. The identity of any speaker on People’s Exhibit [/Vo.] 31 is for you to decide.”

Defendant contends that Special Instruction A was deficient in not telling the jury that, in determining whether statements on the tape corroborated Brown’s trial testimony describing the circumstances of the killings, it could not rely on the written initials on the transcript that Brown matched with voices on the tape. We reject this contention.

Section 1111 requires corroboration of accomplice testimony. It provides: “A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof, [f] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” {Ibid.)

The trial court instructed the jury that Brown was an accomplice as a matter of law. Thus, for the jury to rely on Brown’s trial testimony about the circumstances of the robberies, kidnappings and murders of Boyd and Harris, it had to conclude that evidence independent of Brown’s testimony linked defendant to those crimes. (§ 1111; People v. Rodrigues, supra, 8 Cal.4th at pp. 1128-1130; People v. Tewksbury (1976) 15 Cal.3d 953 , 969 [ 127 Cal.Rptr. 135 , 544 P.2d 1335 ].) Such evidence could not come from the other two accomplices, Redmond and Bennett (see People v. Tewksbury, supra, 15 Cal.3d at p. 958), or from Brown himself (see People v. Andrews (1989) 49 Cal.3d 200 , 214 [ 260 Cal.Rptr. 583 , 776 P.2d 285 ]). Rather, under section 1111, there had to be evidence tending to connect defendant with the crimes “without aid or assistance from the testimony of’ Brown, for instance, his testimony that the initialing on the tape transcript accurately reflected who was speaking. (People v. Perry (1972) 7 Cal.3d 756 , 769 [ 103 Cal.Rptr. 161 , 499 P.2d 129 ].) Such independent evidence “ ‘need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth . . . .’ [Citations.]” (Id. at p. 769, italics added; see also People v. Rodrigues, supra, at p. 1128.)

In this case, the only source of independent corroboration of Brown’s trial testimony was the jailhouse tape recording on which defendant, through his statements and adoptive admissions, implicated himself in the crimes. Thus, the task for the jury was to determine, independently of Brown’s testimony,

Defendant contends that the jury could not have followed the trial court’s instructions because the jailhouse tape—the only possible source of independent corroboration—was tainted by Brown’s voice identifications. According to defendant, the jury would have relied on Brown’s voice identifications as reflected by the initials on the tape’s transcript in determining the identity of each speaker. We disagree. We presume that the jury followed the court’s instruction to “assume the testimony of [Brown] has been removed from the case” before the jury itself decided upon the identity of each speaker on the tape and then determined that some of defendant’s comments provided independent corroboration for Brown’s trial testimony.

Defendant suggests that the jury would not have understood that the testimony of Brown referred to in CALJIC No. 3.12 included the initials on the transcript corresponding to Brown’s voice identifications. But defense counsel in argument specifically told the jury to “draw a line through the initials” and “remove the initials from the transcript because that’s Brown.” And the prosecutor argued “no one attacked Deandre Brown’s version of who the voices were, the legend on the tape.” In light of these arguments, the jury would have understood that Brown’s testimony included his voice identifications and the initials on the transcript, and that these could not be considered when the jury determined who was speaking on the tape.

Defendant also contends that comments by the prosecutor confused the jury about its obligation to consider corroborating evidence before considering Brown’s testimony. For example, the prosecutor stated that Brown was the only “direct independent source of evidence in this case presented by a live witness to establish whose voices are on that tape,” and that “the most obvious person you call to identify the voices and to make use of that tape” was Brown. We disagree. The prosecutor correctly told the jury that the corroborating evidence had to be independent of Brown’s testimony, and that the jury had to determine the identities of the speakers on the tape. The prosecutor suggested that in light of Detective Evans’s and Detective DeAnda’s trial testimony that Redmond and Bennett had told them they were present at the murder scene, the jurors could logically deduce that the person

4. Use of Redmond’s and Bennett’s statements

Defendant contends that Special Instruction A did not adequately tell the jury that hearsay statements by accomplices Redmond and Bennett, both on and off the tape, could not be used to corroborate Brown’s trial testimony. Defendant further contends that the trial court erred in declining to instruct the jury that Redmond and Bennett were accomplices as a matter of law (CALJIC No. 3.16) and by declining to give CALJIC No. 3.13, which, as applicable here, provides: “The required corroboration of the testimony of an accomplice may not be supplied by the testimony of any or all of [his] accomplices, but must come from other evidence.” The trial court refused to give these instructions as potentially confusing to the jury because Redmond and Bennett did not testify, and also because Redmond and Bennett lacked any motive to obtain a benefit from police when they made the statements recorded on the tape. Defendant argues that without these CALJIC instructions, Special Instruction A improperly allowed the jury to use the hearsay statements of Redmond and Bennett on the tape to corroborate Brown and to corroborate each other. We disagree.

Section 1111 serves to ensure that a defendant will not be convicted solely upon the testimony of an accomplice because an accomplice is likely to have self-serving motives. (People v. Rodrigues, supra, 8 Cal.4th at p. 1132; People v. Belton (1979) 23 Cal.3d 516 , 526 [ 153 Cal.Rptr. 195 , 591 P.2d 485 ].) CALJIC No. 3.13 “acknowledges this danger in the context of multiple accomplices who may be motivated by self-interest to offer complementary but inaccurate testimony adverse to the defendant.” (People v. Rodrigues, supra, 8 Cal.4th at p. 1132.) That danger was not implicated here with respect to Bennett and Redmond, both of whose statements on the tape recording were not made to law enforcement officials in the hope of gaining leniency or immunity. Rather, those statements were made to each other and to defendant in a conversation in a jail cell that all three apparently believed to be private. (See People v. Rodrigues, supra, 8 Cal.4th at p. 1133; cf. People v. Belton, supra, 23 Cal.3d at pp. 519, 525.) In this context, there was no need to instruct the jury that Redmond and Bennett were accomplices whose statements could not be used to corroborate Brown. (See People v. Rodrigues, supra, 8 Cal.4th at p. 1133 [CALJIC No. 3.13 unnecessary where accomplice’s utterance was made in defendant’s presence during the commission of the crimes for the reasonably apparent purpose of facilitating a robbery].)

Defendant contends the trial court’s failure to correctly instruct the jury on section llll’s accomplice corroboration requirement, together with misleading prosecutorial argument and tainted evidence, violated his right to confront and cross-examine witnesses under the Sixth Amendment to the federal Constitution. He relies on Lee v. Illinois (1986) 476 U.S. 530 [ 90 L.Ed.2d 514 , 106 S.Ct. 2056 ], and Mason v. Scully (2d Cir. 1994) 16 F.3d 38 , cases involving prosecutorial use of a codefendant’s confession as substantive evidence against a defendant in violation of the confrontation clause. Here, by contrast, there was no confrontation violation because the statements of Redmond and Bennett were not admitted as substantive evidence against defendant, but only to give meaning to defendant’s admissions on the tape. (See Crawford v. Washington (2004) 541 U.S. 36 , 59, fn. 9 [ 158 L.Ed.2d 177 , 124 S.Ct. 1354 ] [hearsay statements not admitted for their truth do not violate the confrontation clause]; accord, People v. Turner, supra, 8 Cal.4th at pp. 190-191; People v. Preston, supra, 9 Cal.3d at pp. 315-316.)

Further, because there was no violation of California law governing accomplice corroboration in this case, we need not decide whether any such violation would have infringed defendant’s federal due process rights on a theory that it denied him a state-created right. (Hicks v. Oklahoma (1980) 447 U.S. 343 [ 65 L.Ed.2d 175 , 100 S.Ct. 2227 ].)

Finally, defendant contends the trial court’s failure to ensure compliance with the accomplice corroboration rule violated his Eighth Amendment right to reliability in the death penalty determination. Our conclusion that the trial court fully complied with the requirements of section 1111 defeats this argument.

E. Voice Identification Testimony by Police

Defendant asserts that allowing Officer Evans and Detectives DeAnda and Charles Brown to testify about what occurred during police questioning of defendant, Redmond, and Bennett violated the hearsay rule and defendant’s Fifth Amendment rights as protected by Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 ] (Miranda). We disagree.

1. Facts

Over defendant’s hearsay objection, the trial court allowed Officer Evans and Detective DeAnda to testify that, during interrogation, both Redmond and Bennett admitted being present at the murder scene. The prosecution introduced this testimony to show that the voice on the tape saying “I didn’t tell

Defendant contends the trial court erred in allowing the prosecution to introduce inadmissible hearsay through the testimony of Detective DeAnda and Officer Evans about admissions by Redmond and Bennett that they had been present at the murder scene. We disagree.

Hearsay is “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a), italics added.) Here, the trial court did not admit the police testimony for its truth—that is, that accomplices Redmond and Bennett were actually present at the crime scene—but only to show what Bennett and Redmond had said to the officers before the recording of the jailhouse tape. Thus, the police testimony was not hearsay. For the same reason, it did not violate defendant’s rights under the confrontation clause of the Sixth Amendment to the federal Constitution. (Crawford v. Washington, supra, 541 U.S. at p. 59, fn. 9; accord, People v. Turner, supra, 8 Cal.4th at pp. 190-191; People v. Preston, supra, 9 Cal.3d at pp. 315-316.)

Defendant makes several other contentions about the testimony of Detective DeAnda and Officer Evans. For instance, he contends that it was not probative of the identity of the speakers on the jailhouse tape, that any possible probative value was outweighed by the prejudicial effect of the testimony, that the prosecutor failed to use the least prejudicial means to identify the voices on the tape, and that the trial court erred in not giving on its own motion a limiting instruction that the jury could not consider for their truth the comments Redmond and Bennett made to the officers. Because defendant failed to request such a limiting instruction, on appeal he may not complain of the lack of one. (See People v. Lewis (2001) 25 Cal.4th 610 , 638 [ 106 Cal.Rptr.2d 629 , 22 P.3d 392 ].) In any event, having considered each of these claims, we conclude that none has merit.

Defendant further insists that the prosecutor misstated the evidence in closing argument when he said that accomplices Redmond and Bennett were “the only ones” who admitted being present at the murder scene, when no officer so testified. Defendant adds that because during police questioning he had invoked his Miranda rights, no officer could testify to his statements that he had or had not been present at the murder scene. For a prosecutor to misstate the evidence is prosecutorial misconduct. (Darden v. Wainwright (1986) 477 U.S. 168 , 182 [ 91 L.Ed.2d 144 , 106 S.Ct. 2464 ]; People v. Carrera (1989) 49 Cal.3d 291 , 320 [ 261 Cal.Rptr. 348 , 777 P.2d 121 ].) Here, however, defendant’s counsel failed to object to the prosecutor’s statement. Review on appeal is therefore barred unless an admonition would not have cured the harm. (People v. Cunningham (2001) 25 Cal.4th 926 , 1000-1001

Finally, defendant contends that his counsel’s failure to object to the prosecutor’s comment was ineffective assistance of counsel under the Sixth Amendment to the United States Constitution. To prevail on such a claim, defendant must show both: (1) that counsel’s performance was deficient; and (2) that the deficient performance prejudiced his defense. (Strickland v. Washington (1984) 466 U.S. 668 , 687-694 [ 80 L.Ed.2d 674 , 104 S.Ct. 2052 ]; People v. Ledesma (1987) 43 Cal.3d 171 , 216-218 [ 233 Cal.Rptr. 404 , 729 P.2d 839 ].) To establish prejudice, defendant must show that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. (See Strickland v. Washington, supra, 466 U.S. at pp. 693-694; In re Cordero (1988) 46 Cal.3d 161 , 180 [ 249 Cal.Rptr. 342 , 756 P.2d 1370 ].) A reasonable probability is “ ‘a probability sufficient to undermine confidence in the outcome.’ ” (In re Cordero, supra, 46 Cal.3d at p. 180, quoting Strickland v. Washington, supra, 466 U.S. at pp. 693-694.)

Here, we need not address whether counsel’s performance was deficient, because we find no reasonable probability that, had counsel objected to the prosecutor’s statement, the result of the proceeding would have differed. As we have explained, there were numerous methods for the jury to determine who was speaking on the tape. The prosecutor’s invitation to infer that defendant had not admitted to police that he had been present at the murder scene was only one of those methods. Even absent that method, we are confident that the jury could have identified the voices with sufficient precision to find statements of defendant that corroborated Brown. Accordingly, defendant’s ineffective assistance of counsel claim fails.

3. Testimony of Detective Brown

Defendant asserts the trial court erred in permitting Detective Brown to recount statements he had made to defendant during questioning after defendant’s invocation of his Miranda rights. We are aware of no case—and defendant cites none—holding that Miranda requires suppression of police comments made to a defendant after the defendant invokes his own right to remain silent.

“Under the familiar requirements of Miranda, designed to assure protection of the federal Constitution’s Fifth Amendment privilege against self-incrimination under ‘inherently coercive’ circumstances, a suspect may not be subjected to custodial interrogation unless he or she knowingly and

F. Miranda Mistrial Motion

Defendant asserts the trial court erred in denying his motion for a mistrial on the grounds that certain excerpts (42 through 49) on the jailhouse tape and transcript that were introduced into evidence were obtained in violation of defendant’s rights under the Fifth Amendment to the federal Constitution.

1. Facts

When defendant was arrested on October 6, 1985, and taken to the West Los Angeles police station, the police advised him of his Miranda rights, which he refused to waive. The police then placed him in a holding cell next to codefendants Bennett and Redmond and proceeded to record their conversations. During the taping, Detective DeAnda, who knew that no fingerprints had been found on the Uzi, entered defendant’s cell and looked directly at him. The following conversation ensued:

“Det. DeAnda: Well, you are going to court tomorrow my friend.

“[Defendant]: So what will happen?

“Det. DeAnda: Well we filed murder counts on you.

“[Defendant]: How many?

“Det. DeAnda: Two. Special Circumstances.

“[Defendant]: What’s that?

“Det. DeAnda: . . . Special Circumstances means that you can get life in prison without parole or the death penalty.

“[Defendant]: Oh man.

“Det. DeAnda: Alright remember that Uzi?

“[Defendant]: Yeah.

“Det. DeAnda: Think about that little fingerprint on it we’ll see ya (Jail door closes).

“[Bennett]: Say what? Is he talking about everybody?

“[Defendant]: No man he talking about me.”

After this exchange, defendant made additional incriminating remarks: “Now they trying to say the fingerprints on the Uzi is mine. Man that’s what’s going to do the shit man. I’m telling you man.” “Man if that nigger De De [Brown] don’t die, I am going to kick man. The fingerprints on the Uzi is mine. I know that mother fucker has been handled since I handled it.”

After the jailhouse tape had been played for the jury, defendant moved to strike the exchange just quoted and the portion of the tape that followed it (excerpts 43 to 49). He asserted that his comments on the tape were obtained in violation of Miranda. When the trial court declined to grant the motion, defense counsel moved for a mistrial. The trial court denied that motion, reasoning that the excerpts in question were not central to the prosecution’s case and did not violate Miranda.

2. Discussion

Here defendant did not file a timely motion to exclude the challenged excerpts as violating his Miranda rights, but rather moved for a mistrial after the jury had already heard the excerpts. Thus, in reviewing the trial court’s ruling, we use the deferential abuse of discretion standard. (People v. Price, supra, 1 Cal.4th at p. 428; People v. McLain (1988) 46 Cal.3d 97 , 113 [ 249 Cal.Rptr. 630 , 757 P.2d 569 ].) A trial court should grant a

On the facts here, there was no abuse of discretion. As stated earlier, the high court’s decision in Miranda serves to protect a defendant’s Fifth Amendment privilege against self-incrimination. (Miranda, supra, 384 U.S. at pp. 444-445.) Suspects who invoke the rights to counsel and to remain silent may not be subjected to further interrogation until counsel is made available or “ ‘the accused himself initiates further communication.’ ” (People v. Sims, supra, 5 Cal.4th at p. 440.) These rules apply not only when the police engage in express questioning of a suspect, but also when they undertake its “functional equivalent” (Rhode Island v. Innis (1980) 446 U.S. 291 , 300-301 [ 64 L.Ed.2d 297 , 100 S.Ct. 1682 ]; see also Arizona v. Mauro (1987) 481 U.S. 520 , 526-527 [ 95 L.Ed.2d 458 , 107 S.Ct. 1931 ]; People v. Sims, supra, 5 Cal.4th at p. 440), through “words or actions . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (Rhode Island v. Innis, supra, at p. 301 , fns. omitted; see also Arizona v. Mauro, supra, at pp. 526-527 ; People v. Sims, supra, at p. 440.) In deciding whether police conduct was “reasonably likely” to elicit an incriminating response from the suspect, we consider primarily the perceptions of the suspect rather than the intent of the police. (Arizona v. Mauro, supra, at p. 527 ; Rhode Island v. Innis, supra, at p. 301 .) Because the dual elements of a police-dominated atmosphere and compulsion are absent when the defendant is unaware that he is speaking to a law enforcement officer, however, Miranda is inapplicable when the defendant does not know that the person he is talking to is an agent of the police. (See Illinois v. Perkins (1990) 496 U.S. 292 , 296-300 [ 110 L.Ed.2d 243 , 110 S.Ct. 2394 ] [Miranda warnings were not required when the police placed the defendant in a cell with an undercover agent who then elicited incriminating statements].)

People v. Sims, supra, 5 Cal.4th 405 , involved the functional equivalent of interrogation. The defendant, who was arrested in Nevada for the murder of a pizza delivery person in California, invoked his Miranda rights. Thereafter, as the officers were preparing to leave the jailhouse interview room, the defendant asked them about being extradited to California or to South Carolina, where he was wanted for additional crimes. During that conversation, a police officer from California described the crime scene—a motel room—and suggested that the defendant had occupied that room and had lured the victim inside when he arrived to deliver a pizza. This court concluded that those statements by the officer were the “functional equivalent” of interrogation because they indirectly accused the defendant of the

The situation here is quite similar. As a preliminary matter, we conclude that Detective DeAnda directly engaged in interrogation when he asked defendant if he “remember[ed] that Uzi.” That question, after defendant had invoked his Miranda rights, elicited defendant’s response, “Yeah,” in violation of his privilege against self-incrimination.

Furthermore, when Detective DeAnda said, “Think about that little fingerprint on [the Uzi],” he implied that defendant’s fingerprint had been found on the Uzi, and thus indirectly accused defendant of personally shooting the victims. As in Sims, this comment was likely to elicit an incriminating response and thus was the functional equivalent of interrogation. (People v. Sims, supra, 5 Cal.4th at pp. 442-444; see also Rhode Island v. Innis, supra, 446 U.S. at p. 299 [“psychological ploys” such as positing the guilt of the subject may be the functional equivalent of interrogation].)

After the comment about the Uzi, Detective DeAnda left defendant’s jail cell. Thereafter, defendant, unaware that police officers were listening to and recording his statements, said to his cellmates: “The fingerprints on the Uzi is mine. I know that mother fucker [the Uzi] has been handled since I handled it.” Under the circumstances, defendant “consider[ed] himself in the company of cellmates and not officers,” and the coercive atmosphere of custodial interrogation was lacking. (Illinois v. Perkins, supra, 496 U.S. at p. 296.) Viewing the situation from defendant’s perspective (see Arizona v. Mauro, supra, 481 U.S. at p. 527; Rhode Island v. Innis, supra, 446 U.S. at p. 301), when he made these statements to his cellmates there was no longer a coercive, police-dominated atmosphere, and no official compulsion for him to speak. Thus, the admission of defendant’s incriminating statements made after Detective DeAnda left the cell did not violate his rights under Miranda.

Accordingly, we conclude that the only statement challenged here that was admitted in violation of Miranda was defendant’s affirmative response to Detective DeAnda’s question, “remember that Uzi?” It was incriminating to the extent it conveyed to the jury that defendant knew that DeAnda was talking about the Uzi used in the murders of Boyd and Harris. Given the many other damaging admissions defendant made on the tape recording, the error in admitting this very brief exchange was harmless beyond a reasonable doubt. Therefore, the trial court did not abuse its discretion in denying defendant’s motion for a mistrial.

The trial court here concluded that, notwithstanding reasonable efforts, the prosecution could not have proceeded on the kidnapping and robbery charges earlier because neither victim Kingsmill nor anyone else could identify defendant. Substantial evidence supports this conclusion. At the preliminary hearing in this case, Kingsmill testified that after the incident in May 1984, he doubted he could ever identify any of his assailants because he did not have a clear view of them. And at trial, Kingsmill mentioned that he viewed a photo lineup after his Volkswagen was recovered but could not identify anyone. DeAndre Brown testified at defendant’s preliminary hearing that after defendant had served his time for the misdemeanor conviction of unlawfully taking Kingsmill’s Volkswagen, defendant admitted to him how he had come into possession of that car. Kingsmill’s and Brown’s testimony amply supports the trial court’s conclusions that in June 1984 when defendant was arrested for taking Kingsmill’s car, neither Kingsmill nor any other known witness could have provided evidence to establish that defendant had kidnapped or robbed Kingsmill, and thus that section 654 did not bar the later prosecution.

Finally, the policies underlying section 654—preventing harassment of the defendant and the waste of public resources through relitigation of issues (Kellett, supra, 63 Cal.2d at pp. 825-827)—would not be served here by holding that the kidnapping and robbery charges were barred. Here, defendant’s interest in being free from the harassment of a second trial in relation to the 1984 Kingsmill incident was minimal given that he was already on trial for the much more serious charges arising from the 1985 murders in this case. Further, the public’s interest in avoiding the waste of resources through

H. Robbery of Michelle Boyd

Defendant asserts that misleading prosecutorial argument and inadequate jury instructions violated his rights under state law and the federal Constitution. Thus, he contends, this court must set aside his convictions for the robbery and kidnap for robbery of Michelle Boyd, the special circumstance findings based on the robbery and kidnap for robbery of Boyd, and the felony-murder conviction based on the robbery of Boyd. We agree that the robbery conviction must be set aside, but we otherwise reject these contentions.

1. Facts

Defendant was charged with robbery and kidnapping for robbery of Boyd, as well as with the separate special-circumstances allegations that he killed Boyd in the course of robbing her and kidnapping her for the purpose of robbery. The information did not specify what property defendant had allegedly taken from Boyd. Defendant also was charged with the grand theft of the Honda, described as “a certain automobile then and there the personal property of’ the other murder victim, Brian Harris.

In closing argument relating to the Boyd robbery, the prosecutor argued that the property stolen could have been either the Honda or Boyd’s rings, one of which had been recovered from DeAndre Brown. The prosecutor further argued that under the felony-murder rule, all the jury had to do was “find there was a robbery.” He added that if the jury found that defendant had participated in a robbery involving any property “in Westwood that night,” that evidence would be sufficient under the felony-murder rule to convict defendant of the murder of Boyd.

The trial court instructed the jury under CALJIC Nos. 9.40 (defining robbery), 9.44 (when a robbery is still in progress), 9.54 (kidnapping to commit robbery) 8.81.17 (special circumstances—murder in commission of robbery), 8.10 (murder defined), 8.20 (deliberate and premeditated murder) and 8.21 (first degree felony murder—robbery).

The record does not reflect that defendant requested a unanimity instruction. Absent such a request, a trial court should instruct on unanimity when the circumstances so warrant. (People v. Riel, supra, 22 Cal.4th at p. 1199; People v. Carrera (1989) 49 Cal.3d 291 , 311, fn. 8 [ 261 Cal.Rptr. 348 , 777 P.2d 121 ].) On the facts here, we conclude that defendant was entitled to a unanimity instruction. The evidence disclosed two distinct takings: the taking of Harris’s car from Boyd and Harris, and the taking of Boyd’s rings from her person. Moreover, the prosecutor argued that the jury could rely on either theory to convict defendant of the robbery of Boyd.

We further conclude that the omission of the unanimity instruction was prejudicial as to the robbery conviction because we cannot ascertain from the record whether some jurors found defendant guilty of robbery based on the taking of the rings while others relied solely on defendant’s taking of the Honda. On the facts of this case, some jurors may have had a reasonable doubt as to whether Boyd was still alive when the intent to take her rings was formed while other jurors may have had a doubt about whether Boyd was in possession of Harris’s car. Under these circumstances, the trial court’s failure to give the unanimity instruction was prejudicial. (See People v. Diedrich, supra, 31 Cal.3d at pp. 282-283.)

The Attorney General contends that we may affirm the robbery conviction despite the lack of a unanimity instruction because the taking of the Honda and the taking of the rings were so closely connected as to form one continuous transaction (see People v. Sapp, supra, 31 Cal.4th at pp. 284-285; People v. Stankewitz (1990) 51 Cal.3d 72 , 100 [ 270 Cal.Rptr. 817 , 793 P.2d 23 ]; People v. Crandell (1988) 46 Cal.3d 833 , 875 [ 251 Cal.Rptr. 227 , 760 P.2d 423 ]), and thus it would have been inconceivable for a juror to believe that defendant committed one robbery, but disbelieve he committed the other (see People v. Riel, supra, 22 Cal.4th at pp. 1199-1200; People v. Carrera, supra, 49 Cal.3d at pp. 311-312).

Further, there was evidence from which the jury could have found defendant not guilty of the robbery of the rings. The greater offense of robbery includes all of the elements of theft, with the additional element of a taking by force or fear. (People v. Ramkeesoon (1985) 39 Cal.3d 346 , 351 [ 216 Cal.Rptr. 455 , 702 P.2d 613 ].) If the defendant does not harbor the intent to take property from the possessor at the time he applies force or fear, the taking is only a theft, not a robbery. (Ibid.; People v. Green (1980) 27 Cal.3d 1 , 54 [ 164 Cal.Rptr. 1 , 609 P.2d 468 ] {Green).) Here, Brown testified that defendant and his friends intended to steal a car so they could drive to Barstow to rob a store. Although Brown testified that when defendant walked Boyd out into the field, Brown thought that defendant would remove the clothes she was wearing (presumably to hinder her escape, as defendant had done when he kidnapped Kingsmill in 1984), Brown did not testify that he believed defendant would take Boyd’s jewelry. The police ultimately recovered Boyd’s wire ring from Brown’s girlfriend; never recovered was Boyd’s high school senior class ring, which was also missing from her body. According to Brown, he received the wire ring from either Redmond or defendant on the morning after the killings, that is, on October 1, 1985. There was no evidence that the rings were taken from Boyd while she was still alive. And there was no evidence regarding when defendant, or any of his accomplices, formed the intent to take Boyd’s rings. On these facts, the jury could have concluded that defendant formed the intent to steal Boyd’s rings after he killed her. Such a finding would absolve defendant of guilt of robbery, because one cannot rob a dead person. But these facts would support a theft conviction.

Accordingly, there was evidence from which the jury could have found defendant guilty of robbery based on the car but not the rings. The trial court’s failure to instruct on unanimity therefore was prejudicial, and we must set aside the conviction for the robbery of Boyd.

We find no basis, however, to set aside the robbery-murder special circumstance as to victim Boyd. Although we have assumed, without deciding, that the unanimity requirement applies to special circumstances (e.g., People v. Sapp, supra, 31 Cal.4th at pp. 283-285 [rejecting, on the particular facts, a claim that the trial court was required to give a unanimity instruction as to the financial gain special circumstance]; People v. Mickle (1991) 54 Cal.3d 140 , 178 [ 284 Cal.Rptr. 511 , 814 P.2d 290 ] [rejecting claim that unanimity instruction actually given as to lewd and lascivious act special circumstance did not result in a valid unanimous verdict]), we have never so held. To the contrary, in People v. Edwards (1991) 54 Cal.3d 787 , 824 [ 1 Cal.Rptr.2d 696 , 819 P.2d 436 ], we concluded the trial court was not required to instruct the jury that it must unanimously agree which acts constituted the lying in wait underlying the charged lying-in-wait special circumstance. Rather, as long as each juror was convinced beyond a reasonable doubt that defendant was guilty of lying in wait, as that special circumstance is defined by statute, unanimous agreement as to the theory of lying in wait was not required. {Ibid.)

Here, we need not decide whether jury unanimity as to the property taken during the robbery underlying the special circumstance was required, because any possible error in failing to instruct that the jury must unanimously agree on a theory of robbery was harmless beyond a reasonable doubt with respect to the special circumstance. That is because, as defendant concedes, the Boyd robbery-murder special circumstance could have been found true based on the murder of Boyd during the robbery of the car from Harris. For the felony-murder rule to apply, the murder victim need not be the target of the underlying felony (People v. Billa (2003) 31 Cal.4th 1064 , 1070 [ 6 Cal.Rptr.3d 425 , 79 P.3d 542 ]; People v. Welch (1972) 8 Cal.3d 106 , 118-119 [ 104 Cal.Rptr. 217 , 501 P.2d 225 ]; People v. Johnson (1972) 28 Cal.App.3d 653 , 658 [ 104 Cal.Rptr. 807 ]), and we see no reason why a different rule should apply with regard to felony-murder special circumstances.

Defendant argues that this court cannot uphold the special circumstance on this theory because the jury was never instructed on it. In support he cites Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403 , 124 S.Ct. 2531 ], Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435 , 120 S.Ct. 2348 ] (Apprendi), and Ring v. Arizona (2002) 536 U.S. 584 [ 153 L.Ed.2d 556 , 122 S.Ct. 2428 ], for the rule that any fact that increases the maximum punishment a defendant is subjected to must be submitted to a jury and unanimously found true beyond a reasonable doubt.

Moreover, Apprendi error—that is, error in failing to submit a punishment-increasing factual issue to the jury—is subject to harmless error analysis under the beyond-a-reasonable-doubt test of Chapman v. California, supra, 386 U.S. at page 23. (People v. Sengpadychith (2001) 26 Cal.4th 316 , 326-328 [ 109 Cal.Rptr.2d 851 , 27 P.3d 739 ] [Chapman harmless error standard applies to Apprendi error in failing to instruct on element of sentencing enhancement].) Indeed, even when jury instructions completely omit an element of a crime, and therefore deprive the jury of the opportunity to make a finding on that element, a conviction may be upheld under Chapman where there is no “record . . . evidence that could rationally lead to a contrary finding” with respect to that element. (Neder v. United States (1999) 527 U.S. 1 , 19 [ 144 L.Ed.2d 35 , 119 S.Ct. 1827 ]; see also People v. Flood (1998) 18 Cal.4th 470 , 504-505 [ 76 Cal.Rptr.2d 180 , 957 P.2d 869 ].)

Here, even assuming the jury should have been instructed on the theory that Boyd was killed during the robbery of the car from Harris, any error was harmless. The jury found true the robbery-murder special circumstance with respect to victim Harris—that is, that the murder of Harris was carried out during and to advance the commission of the robbery of the car from Harris {Green, supra, 27 Cal.3d at pp. 60-61 (see post, at p. 568))—and defendant killed Harris and Boyd at the same time. There was no evidence that rationally could have led the jury to conclude that the murder of Boyd was not carried out during and to advance the commission of the robbery of Harris. Accordingly, any error in the jury instructions related to the Boyd robbery count was harmless beyond a reasonable doubt with respect to the Boyd robbery-murder special circumstance.

4. Robbery murder

Defendant contends we must set aside the murder conviction with respect to Boyd based on the felony-murder theory that the murder took place during a robbery. Defendant asserts the conviction is invalid whether based on the robbery of Boyd’s rings or on the robbery of the Honda. With respect to the rings, he points out that an intent to steal that arises after the infliction of

After instructing the jury, and out of the jury’s presence, the court stated on the record that the parties agreed “that with respect to the special circumstance allegation concerning multiple murder in counts 1 and 2, that the finding the jury is being asked to make is whether the defendant personally killed the victim in that count. [j[] And it has been agreed that if the jury finds the—that the defendant personally killed each of the victims and is found guilty of count—first degree murder in count 1 and count 2, that that is the legal equivalent of a finding that the allegation . . . concerning multiple murder is true.”

2. Multiple-murder special circumstance

Defendant now contends that we must set aside the multiple-murder special circumstance because the trial court, under an agreement between the prosecutor and defense counsel, did not give CALJIC No. 8.81.3, which defines the multiple-murder special circumstance, and therefore the jury made no finding on this special circumstance. We disagree. We note that California law provides for a jury finding on the truth of any special circumstance allegation (§ 190.4, subd. (a); People v. Williams (1997) 16 Cal.4th 635 , 688 [ 66 Cal.Rptr.2d 573 , 941 P.2d 752 ]) and that the federad Constitution’s Sixth Amendment requires a jury determination of any fact, other than the fact of a prior conviction, that increases the penalty for a crime (Apprendi, supra, 530 U.S. at pp. 476, 490). Here, however, defendant stipulated that the trial court need not give CALJIC No. 8.81.3, so he is barred from challenging the court’s failure to give that instruction under the doctrine of invited error. (See People v. Barton (1995) 12 Cal.4th 186 , 198 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ].) Moreover, defendant suffered no possible prejudice from the instruction, as explained below.

We test trial court error in removing from jury consideration a required special circumstance finding under the beyond-a-reasonable-doubt test of Chapman v. California, supra, 386 U.S. 18 , 24. (See People v. Sengpadychith, supra, 26 Cal.4th at pp. 326-328; People v. Williams, supra, 16 Cal.4th at p. 689.) Under that test, an error is harmless only when, beyond a reasonable doubt, it did not contribute to the verdict. (Chapman, supra, at

Brown testified that he, defendant, Redmond, and Bennett set out on the evening of September 30, 1985, in Bennett’s truck, intending to rob a liquor store in Barstow. Because Bennett did not want to use his own truck in the robbery, the group decided to steal a car. They drove to Westwood, where Redmond and Brown noticed a Honda automobile with a man (Harris) and a woman (Boyd) inside. Defendant and Redmond left the truck but returned shortly thereafter in the Honda, with Boyd in the backseat and Harris in the trunk. The four then drove the two victims to an isolated area. Defendant and Redmond took Boyd and Harris into a field, and moments later Brown heard shots fired. Defendant returned to the car and said he had killed Boyd and Harris because he did not want any witnesses. Defendant, Brown, Redmond, and Bennett, using the Honda taken from the victims, then continued to their original destination, the liquor store in Barstow.

This evidence supports an inference that the purpose of the kidnappings of Boyd and Harris was to facilitate the taking of the Honda for use in the planned liquor store robbery, and that the murders were committed to eliminate the witnesses to the kidnappings and robberies. The evidence that, about one and a half years earlier, defendant had kidnapped Kingsmill in order to take his car strengthened this inference.

Defendant contends, however, that the evidence equally supports an inference that his intent from the outset of the kidnapping was to kill Boyd and Harris to eliminate witnesses to his robbery of the Honda. According to defendant, the jury could have found that his intent when he kidnapped the victims was to rob them of their car and kill them. If so, according to defendant, he committed a kidnapping during the commission of a murder for robbery, not a murder during the commission of a kidnapping for robbery. In these circumstances, defendant asserts, he was entitled to an instruction based on Green, supra, 27 Cal.3d 1 .

We disagree. In finding defendant guilty of kidnapping for robbery, the jury determined that he had the intent to rob victims Boyd and Harris when he kidnapped them, and therefore that the kidnappings served to facilitate the

A trial court must instruct on its own initiative only on those principles of law “commonly or closely and openly” connected with the facts of the case. (People v. Montoya (1994) 7 Cal.4th 1027 , 1047 [ 31 Cal.Rptr.2d 128 , 874 P.2d 903 ], italics added.) Accordingly, the trial court here had to instruct on the independent felonious purpose principle of Green with respect to the kidnapping for robbery only if some significant evidence could have supported a finding that the kidnappings of Boyd and Harris were incidental to their murders. (People v. Valdez, supra, 32 Cal.4th at pp. 113-114; People v. Navarette, supra, 30 Cal.4th at p. 505; People v. Kimble, supra, 44 Cal.3d at pp. 499-503.) There was no significant evidence to support such a finding. Defendant did nothing to develop at trial his current theory that he formed the intent to kill Boyd and Harris before kidnapping them. (See People v. Navarette, supra, 30 Cal.4th at p. 505.) Thus, defendant’s theory of the case “was not one that the evidence would strongly illuminate and place before the trial court.” (People v. Wade (1959) 53 Cal.2d 322 , 335 [ 1 Cal.Rptr. 683 , 348 P.2d 116 ].) To the contrary, defendant’s theory was “so far under the surface of the facts and theories apparently involved as to remain hidden from even the [defense] until the case reached this court on appeal.” {Ibid.) Under the circumstances, the trial court was not obligated to instruct the jury with the language from Green.

Defendant argues that the failure to so instruct violated his Sixth Amendment right to a jury determination of every fact that may increase the maximum punishment (see Blakely v. Washington, supra, 542 U.S. 296 [ 124 S.Ct. 2531 ]; Apprendi, supra, 530 U.S. 466 ) and his Fourteenth Amendment right to due process of law (People v. Odle (1988) 45 Cal.3d 386 , 410 [ 247 Cal.Rptr. 137 , 754 P.2d 184 ]; People v. Garcia (1984) 36 Cal.3d 539 , 551 [ 205 Cal.Rptr. 265 , 684 P.2d 826 ]). We disagree. The Green instruction merely clarifies the term “in the commission of’ with regard to special circumstance allegations based on felony murder. Here, clarification of that term was unnecessary because, as we have concluded, there was no evidence to support defendant’s theory that the kidnappings of Boyd and Harris were merely incidental to their murders. Moreover, we see nothing in the high court’s Blakely and Apprendi decisions that would require such an instruction in the circumstances here.

Defendant argues that California’s death penalty statute violates his rights under the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and their state constitutional counterparts. As he acknowledges, we have in the past rejected many of these same arguments. Specifically, we have held that neither the cruel and unusual punishment clause of the Eighth Amendment nor the due process clause of the Fourteenth Amendment requires that the jury make unanimous separate findings as to the truth of aggravating evidence (People v. Griffin (2004) 33 Cal.4th 536 , 593-594 [ 15 Cal.Rptr.3d 743 , 93 P.3d 344 ]), or provide a statement of reasons for its penalty decision (ibid.), or find unanimously beyond a reasonable doubt that aggravating circumstances outweigh mitigating circumstances and that death is the appropriate punishment (ibid.; People v. Rodriguez (1986) 42 Cal.3d 730 , 778-779 [ 230 Cal.Rptr. 667 , 726 P.2d 113 ]). We find no reason to depart from these holdings.

Defendant contends that because various provisions of state law require certain protections in other proceedings where the consequences are less serious than in a capital penalty trial (see §§1158 [jury must separately find whether defendant has suffered a prior conviction], 1158a [jury must separately find whether defendant was armed and/or used a firearm], 1163 [jury may be polled], 1170, subd. (c) [court must state reasons for its determinate sentencing choice]), the equal protection clause of the Fourteenth Amendment mandates these same protections in capital sentencing. Not so.

In People v. Allen (1986) 42 Cal.3d 1222 , 1286-1288 [ 232 Cal.Rptr. 849 , 729 P.2d 115 ], we considered and rejected a similar argument, concluding that the 1978 death penalty statute did not violate equal protection because it does not allow for proportionality review similar to that provided to noncapital defendants under the determinate sentencing law. Also, applying similar reasoning, we concluded in People v. Danielson (1992) 3 Cal.4th 691 [ 13 Cal.Rptr.2d 1 , 838 P.2d 729 ], that California’s 1978 death penalty statute did not violate equal protection in allowing consideration of evidence of unadjudicated offenses and the circumstances of prior offenses involving force or violence. (Id. at pp. 719-720, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046 , 1069, fn. 13 [ 108 Cal.Rptr.2d 409 , 25 P.3d 618 ].) As we observed in Danielson, “capital case sentencing involves wholly different considerations than ordinary criminal sentencing ....” (Danielson, at p. 720.)

Nor do the United States Supreme Court’s recent decisions interpreting the Sixth Amendment’s jury trial guarantee (Ring v. Arizona, supra, 536 U.S. 584 ; Apprendi, supra, 530 U.S. 466 ) compel a different result. (See People v. Griffin, supra, 33 Cal.4th at pp. 594—595 [neither Apprendi nor Ring requires a written statement of reasons for the penalty decision or unanimous jury findings beyond a reasonable doubt on the existence of aggravating circumstances or that the aggravating circumstances outweigh the mitigating]; see also People v. Prieto (2003) 30 Cal.4th 226 , 262-265 [ 133 Cal.Rptr.2d 18 , 66 P.3d 1123 ] [Ring does not require that jury unanimously find beyond a reasonable doubt that unadjudicated criminal acts involved force or violence; Ring imposes no new requirements on California’s penalty phase proceedings]; People v. Ochoa (2001) 26 Cal.4th 398 , 452-454 [ 110 Cal.Rptr.2d 324 , 28 P.3d 78 ] [Apprendi does not restrict the sentencing of California defendants who have been convicted of special circumstances murder].) We decline to revisit those holdings here.

Finally, because the federal Constitution does not require application of the reasonable doubt standard to the jury’s penalty determinations, trial counsel here was not deficient in not requesting such an instruction. (See In re Robbins (1998) 18 Cal.4th 770 , 810 [ 77 Cal.Rptr.2d 153 , 959 P.2d 311 ] [failure to raise a meritless claim is not deficient performance].)

K. Cumulative Prejudice

We have concluded that the Boyd robbery conviction must be vacated. Otherwise, we have found only two guilt phase errors (defendant’s absence from the May 16, 1989 pretrial hearing regarding admissibility of the jailhouse tape (see ante, at pp. 529-530) and the Miranda violation in Detective DeAnda’s question to defendant “remember the Uzi?” (see ante, at pp. 552-555)) and two special circumstances errors or potential errors (the trial court’s failure to instruct the jury that it must unanimously agree on a theory of robbery with respect to the Boyd robbery-murder special circumstance (see ante, at pp. 563-564), and the trial court’s failure to instruct the jury on the multiple-murder special circumstance (see ante, at pp. 567-568)). None of these errors is prejudicial standing alone. Defendant argues that even

The cumulative effect of the guilt and special circumstances errors and potential errors does not warrant reversal of defendant’s convictions or the special circumstances findings. The evidence amply supported these convictions and special circumstances and, for the reasons explained previously in relation to each error, the evidentiary presentation would not have differed significantly in the absence of the errors.

Nor does our reversal of the robbery conviction, in conjunction with the other errors and potential errors, warrant reversal of the penalty judgment. The jury properly considered all of the evidence and was aware of the circumstances of the Boyd and Harris murders. (See People v. Hillhouse (2002) 27 Cal.4th 469 , 512 [ 117 Cal.Rptr.2d 45 , 40 P.3d 754 ]; People v. Kelly (1992) 1 Cal.4th 495 , 551 [ 3 Cal.Rptr.2d 677 , 822 P.2d 385 ].) Even if the jury disagreed as to what property defendant intended to steal from Boyd (or even if the jury concluded that defendant formed the intent to steal Boyd’s rings after he killed her), and thus erroneously convicted him of the robbery of Boyd, it would not have given significant independent weight to the conviction for the robbery of Boyd as opposed to the circumstances of the offenses and the aggravating and mitigating evidence. (See People v. Hillhouse, supra, 27 Cal.4th at p. 512; People v. Kelly, supra, 1 Cal.4th at p. 551.) The questions whether defendant robbed Boyd of the car or the rings, or whether he formed the intent to steal the rings before or after killing Boyd, were critical to the robbery conviction but likely insignificant to the penalty determination. (People v. Hillhouse, supra, 27 Cal.4th at p. 512.)

Under these circumstances, the errors or potential errors, singly or in combination, were harmless under any applicable standard and did not render defendant’s trial fundamentally unfair. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1 , 128-129 [ 17 Cal.Rptr.3d 710 , 96 P.3d 30 ] [rejecting claim that cumulative errors rendered the defendant’s trial fundamentally unfair]; People v. Hillhouse, supra, 27 Cal.4th at p. 512 [finding no reasonable possibility of a different result at the penalty phase absent errors].)

George, C. J., Baxter, J., Werdegar, J., Chin, J., and Moreno, J., concurred.