People v. Jones

n the span of a few minutes on the evening of December 6, 1996, four people-Mario Lopez, his sister Veronica Munguia, Angel Villa, and Nery Hernandez-were shot in the vicinity of an apartment building located at 1700 Pacific Avenue, in Long Beach. Lopez was shot twice outside of the

Officer John Stolpe, Officer Michael Schaich, and Detective Steven Lasiter, all of the Long Beach Police Department, testified that they each separately had contact with defendant in April or May 1990 and, on those occasions, defendant told each of them that he was a member of the Rolling 20's Crips. Defendant told Officer Stolpe that he used the moniker "Swoop." Defendant told Officer Schaich that he used the moniker "Key Loc." And defendant told Detective Lasiter that he used the moniker "Chicken Swoop." Defendant had the words "Little 20 Swoop" tattooed on the inside of his right forearm. Officer Potter testified that that "could be his gang name."

Officer Erik Herzog of the Long Beach Police Department testified that he spoke to Rosalind Gilyard, Sherman's mother, a week after the shootings.

iii. Villa and Hernandez Shootings

(a) Maria Jaramillo

Maria Jaramillo was at home at 126 West 16th Street on the evening of December 6, 1996. She was outside playing with her nephews when she heard gunshots. She took her nephews inside, then went back outside. She observed a man, whom she identified as defendant, walk out of an alleyway in the direction of Pine Avenue. Another man went by on a bicycle from the direction of Pacific Avenue; defendant grabbed him by the neck and shot him in the head. She saw defendant proceed toward a car that was backing out of a driveway; she went back inside, heard more shots, went outside, and saw the two

a. Aggravating Evidence

During the penalty phase, the prosecution introduced evidence that defendant had been involved in six prior uncharged criminal incidents: (1) the April 1990 attempted murder of Matthew Ferguson and Quincy Sanders; (2) carrying a concealed weapon, a loaded revolver, in June 1990; (3) the June 1990 robbery of Sarom Sao at gunpoint; (4) the August 1990 murder of Carl Milling; (5) the May 1991 attempted murder and assault with a firearm of Artis Lisby; (6) and the September 1991 murder of Ronald Broussard. The prosecution also introduced evidence that defendant had pleaded guilty in 1992 to the robbery of Charles Loch, for which he received a three-year prison sentence.

The prosecution also presented victim impact evidence. Anna Munguia, Lopez's mother, went to the hospital with Lopez after he was shot and was there when he died. She testified that Lopez's death "hurts a lot." He "got along with everybody" and was not involved in gangs like his brothers.

a. Background

When interviewed by the police on the night of December 6, 1996, Granillo said she was in the bedroom of the apartment at the time of the shootings and could not identify anybody involved. She did not talk to anybody else about the case for more than a year. On December 8, 1997, after jury selection in defendant's first trial had begun, Patrick Connolly, who was then the prosecutor, spoke to Munguia about "how the case looked and what the evidence was." He asked for her help in locating witnesses, because "there was a possibility that the defendant would be walking out the door at the end of this trial." Munguia called Connolly that night and told him that Granillo had seen "two male blacks enter the apartment complex." Granillo contacted Connolly and gave a statement to Detective Remine, in which she identified defendant and Sherman as having been in the alley behind the apartment building right before the shootings occurred. (She ultimately testified to that effect in both trials.)

i. Defendant's First Trial

At defendant's first trial, the trial court ruled that testimony regarding Munguia's conversation with Connolly would be excluded as hearsay. "What I want to exclude is the conversation between Mr. Connolly and Miss Munguia. You can certainly-and put this in context as well. That late in these proceedings, she informed the-I believe Mr. Connolly that Miss Granillo had something to say. And then when Miss Granillo is called to testify, you can then question her concerning her motivation for changing her testimony or statement or adding to her testimony or statement as previously given. You can cross-examine her concerning that."

On cross-examination, Munguia testified that she had had a conversation with Connolly on December 8, 1997, and "[a]s a result of that conversation [she] had with the district attorney, ... [she was of the] state of mind that

The Attorney General observes that the prosecution did not raise hearsay objections to defense counsel's questioning of Munguia and Granillo about Munguia's conversation with Connolly. The prosecution instead objected to the question defense counsel posed to Munguia-whether she was "of the state of mind that the reason that [she] needed an additional witness

Instead, on appeal, defendant shifts the focus of his arguments. Defendant first contends that Robinson should have been permitted to testify as a gang expert and offer his expert opinion that defendant was no longer an active member of the Rolling 20's Crips. If Robinson had been qualified as an expert witness, defendant argues, he would have been permitted to testify as to his opinion even if it was based on inadmissible hearsay, such as his

"A trial court has 'considerable discretion' in determining the relevance of evidence. [Citation.] Similarly, the court has broad discretion under Evidence Code section 352 to exclude even relevant evidence if it determines the probative value of the evidence is substantially outweighed by its possible prejudicial effects. [Citation.] An appellate court reviews a court's rulings regarding relevancy and admissibility under Evidence Code section 352 for abuse of discretion. [Citation.] We will not reverse a court's ruling on such matters unless it is shown ' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." [Citation.]' " ( People v. Merriman (2014) 60 Cal.4th 1 , 74, 177 Cal.Rptr.3d 1 , 332 P.3d 1187 .)

The trial court did not abuse its discretion in concluding the recorded conversation was relevant. The jury could have inferred consciousness of guilt from the taped conversation, particularly when also considering other evidence adduced at trial. The conversation indicates that Frazier gave two

1. Exclusion of Prospective Juror No. 3389

During the "death qualification" phase of jury selection, the trial court granted the prosecution's for-cause challenge to Prospective Juror No. 3389 (Juror 3389), on the ground that Juror 3389 had a "definite bias" for life imprisonment without the possibility of parole over the death penalty and would not "fairly consider both [sentencing] options in this case if given the opportunity to do so." Defendant argues that the trial court erred in excusing Juror 3389, requiring automatic reversal of the penalty verdict. (See People v. Zaragoza (2016) 1 Cal.5th 21 , 41, 204 Cal.Rptr.3d 131 , 374 P.3d 344 , citing Gray v. Mississippi (1987) 481 U.S. 648 , 659-667, 107 S.Ct. 2045 , 95 L.Ed.2d 622 .) Because the record supports the trial court's determination that Juror 3389 held views that would have substantially impaired the performance of his duties as a juror, we reject defendant's argument.

a. Background

The written juror questionnaire described in general terms the guilt and penalty phases of the trial, explaining that if the jury found defendant guilty of first degree murder and found the special circumstance allegation true, then there would be a separate penalty phase. If the trial proceeded to the penalty phase, additional evidence would be presented, and the jury would be tasked with choosing between two sentencing options, death and

"We have also found that the use of unadjudicated offenses in capital proceedings, but not in noncapital matters, does not violate equal protection or due process principles." ( People v. Taylor , supra , 48 Cal.4th at p. 651, 108 Cal.Rptr.3d 87 , 229 P.3d 12 ; see People v. Watson (2008) 43 Cal.4th 652 , 701, 76 Cal.Rptr.3d 208 , 182 P.3d 543 .)

4. Other Challenges to California's Capital Sentencing Scheme

Defendant raises numerous other challenges to the California capital sentencing scheme, which he acknowledges we have previously considered and rejected. (See People v. Schmeck (2005) 37 Cal.4th 240 , 303-304, 33 Cal.Rptr.3d 397 , 118 P.3d 451 .) We briefly respond to, and reject once again, each of these arguments.

Section 190.3, factor (a), which directs the jury to consider the "circumstances of the crime," does not result in the arbitrary and capricious imposition of the death penalty in violation of the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. ( People v. Simon (2016) 1 Cal.5th 98 , 149, 204 Cal.Rptr.3d 380 , 375 P.3d 1 ; see also Tuilaepa v. California (1994) 512 U.S. 967 , 976, 114 S.Ct. 2630 , 129 L.Ed.2d 750 .)

Nothing in the federal Constitution requires the jury, at the penalty phase, to make written findings; to unanimously agree that particular aggravating circumstances exist; or to find beyond a reasonable doubt that aggravating

" CALJIC No. 8.88 properly instructs the jury on its sentencing discretion and the nature of its deliberative process." ( People v. Valencia (2008) 43 Cal.4th 268 , 310, 74 Cal.Rptr.3d 605 , 180 P.3d 351 .) Its instruction that "jurors may impose a death sentence only if the aggravating factors are ' "so substantial" ' is not impermissibly vague or ambiguous." ( People v. Jackson , supra , 1 Cal.5th at p. 373, 205 Cal.Rptr.3d 386 , 376 P.3d 528 .) " CALJIC No. 8.88 is not constitutionally flawed because it 'uses the term "warrants" instead of "appropriate." ' " ( People v. Linton (2013) 56 Cal.4th 1146 , 1211, 158 Cal.Rptr.3d 521 , 302 P.3d 927 .)

Two police officers received a call regarding the shooting at 1700 Pacific Avenue and were told that two male African-American suspects were seen running toward Pine Avenue. The officers stopped by 1708 Pine Avenue, which was near the crime scene and was a known hangout for members of the Crips gang. The officers spoke to defendant and Melvin Sherman, among others. A few days later, the police arrested defendant and Sherman, and the prosecution charged them with crimes pertaining to these events.

A. Defendant's First Trial

Defendant and Sherman were initially charged jointly with two counts of murder (Lopez and Villa) and two counts of attempted murder (Munguia and Hernandez). Lengthy pretrial proceedings not relevant to the issues presented on appeal resulted in dismissal of these charges. Defendant was then charged separately with, pleaded not guilty to, and was held for trial on two counts of murder (Lopez and Villa), one count of attempted murder (Hernandez), one count of assault with a firearm (Munguia), and one count of shooting at an inhabited dwelling. After Sherman was held to answer on related charges, the prosecution moved to consolidate defendant's case with Sherman's. The trial court denied this motion. Defendant's trial occurred in January 1998. The jury deadlocked and the court declared a mistrial.

B. Defendant's Second Trial

After defendant's first trial, the trial court granted the prosecution's motion to consolidate defendant's case with Sherman's. The prosecution filed an amended

The prosecution presented evidence showing that the shootings were part of an escalating gang war, with two African-American gangs, the Insane Crips and the Rolling 20's Crips, on one side, and a Hispanic gang, the Eastside Longos, on the other. Defendant "had been beaten up by someone just described as a Mexican," and the prosecution argued that the shootings were "payback of sorts." Defendant and Sherman spent part of the evening of December 6, 1996, at 1708 Pine Avenue, apartment 4. Within a span of about five minutes, they left the apartment, shot the victims, and returned. The prosecution contended that defendant was the shooter, and Sherman aided and abetted him. Defense counsel took the position that "[t]he sole issue in this case is identification," and, accordingly, principally sought to undermine witnesses' identifications of defendant as a perpetrator.

a. Prosecution Case

i. Background Gang Evidence

Detective Victor Thrash of the Long Beach Police Department testified that the Rolling 20's Crips and the Eastside Longos claimed the area around 1700 Pacific Avenue and 1708 Pine Avenue as their turf, and there was a "black-brown war that was going on within that specific area." Officer Freaman Potter of the Long Beach Police Department, a gang expert, gave general background about gangs and gang culture. He testified

Detective William Collette of the Long Beach Police Department, one of the lead investigators, testified regarding the crime scenes, the locations of the victims, and the collection of shell casings that were found.

Detective Thrash testified that he interviewed Leslie Rainey, a friend of defendant's and Sherman's, a week after the shootings. Rainey used the nicknames "Swoop" and "Baby Troub" when referring to defendant and Sherman, respectively. He said that he was at 1708 Pine Avenue, apartment 4, with defendant, Sherman, and four women on the evening of December 6, 1996. Rainey told Detective Thrash that defendant and Sherman had left for about five minutes and returned together, and defendant had said " 'something must have happened out there outside because there are a lot of police.' " Rainey also said "Swoop [defendant] was mad cause he was beat down ... by a Mexican earlier that week."

Rainey also testified that he was at 1708 Pine Avenue, apartment 4, with defendant, Sherman, and four women on the evening of December 6, 1996. They were planning to watch the television show Martin , which played at 6:00 p.m. and 6:30 p.m. Defendant stepped just outside the apartment for about five minutes and came back inside to watch the show. The broadcast of Martin was interrupted by news of the shootings. Officers Kohagura and Anderson showed up to talk to them about the shootings, and Rainey was interviewed a week later by detectives. Rainey denied ever having told the police that defendant and Sherman left together for five minutes. He also denied telling Detective Thrash that defendant had said " 'he had a fight with some Mexicans.' "

Dr. Suko Jack Whang, a deputy medical examiner with the Los Angeles County Coroner's Office, testified that Lopez had been struck by two bullets. One of the bullets struck Lopez in the chest and lacerated his heart, killing him.

Dr. Thomas Gill, a forensic pathologist with the Los Angeles County Coroner's Office, testified that Villa died of a gunshot to the right eye, which entered the brain.

b. Defense Case

i. Gregory Sinsun

Gregory Sinsun testified that he was with Granillo and others in the bedroom of the apartment at 1700 Pacific Avenue on the evening of December 6, 1996. Granillo was in his presence during the shooting, and he did not see her moving her laundry around at that time.

ii. Officer William Jarman

Officer William Jarman of the Long Beach Police Department testified that he interviewed Granillo on the night of December 6, 1996. Granillo told Officer Jarman that she was in the bedroom of the apartment, "heard several loud gunshots," "dropped to the floor," and "never left that bedroom." Officer Jarman also interviewed Sinsun the same night, and he said he was in the bedroom with Granillo that night, "heard several loud shots and dropped to the ground and never left the bedroom."

iii. Robert Elder

Robert Elder was unavailable to testify at defendant's second trial, and the trial court permitted defendant to introduce the testimony Elder gave during defendant's first trial. Elder was Hernandez's upstairs neighbor, and he was at home on the evening of December 6, 1996. He heard three gunshots and went to a window, where he saw a stocky man with a large afro shooting down the street with a "long gun," "a .45," "like Clint Eastwood had." The man walked down 16th Street toward Pine Avenue, got into a car with two other people, and drove off. Elder did not see the man's face, and from his vantage point, he could not see the shooting victims. After the man left, Elder went outside and saw that Villa and Hernandez had been shot. Elder further stated that he did not recognize defendant from a photo lineup that defense counsel had previously shown him.

On July 31, 1998, the jury found defendant guilty of two counts of first degree murder (Lopez, count 2; Villa, count 3; §§ 187, subd. (a), 189 ), one count of attempted murder (Hernandez, count 4; §§ 187, subd. (a), 664 ), one count of assault with a firearm (Munguia, count 5; § 245, subd. (a)(2)), and one count of shooting at an inhabited dwelling (count 6; § 246). With respect to each count, the jury found true the allegation that defendant had personally used a firearm. (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a).) With respect to count 4, the jury found true allegations that the offense had been willful, deliberate, and premeditated ( §§ 189, 664, subd. (a) ) and that defendant had personally inflicted

b. Mitigating Evidence

Defendant presented testimony from 13 witnesses as mitigating evidence. They testified that defendant's father had drug and alcohol problems, which "messed [defendant] up" and caused defendant to lose respect for his father. Defendant was raised mostly by his mother and grandmother, who took good care of him, but his father was also around until defendant was in high school. Defendant is the youngest of seven children, and most of his siblings had spent significant time in prison. Defendant was not a disobedient child, but "went the wrong place at the wrong time" and spent some time in prison. Defendant was a kind, respectful, fun-loving person and a good father to his four children, and he was trying to get his life together. Several witnesses were unaware of defendant's gang membership. Not long before the shootings, defendant sought employment with a community outreach program that hired former gang members and tried to prevent gang violence. An employee of that organization believed defendant was no longer an active gang member.

c. Jury Verdict

On August 13, 1998, the jury fixed the penalty at death. At the same time, the

1. Restriction of Cross-examination

Defendant argues that the trial court improperly prevented him from cross-examining Munguia, Granillo, and Detective Collette about the fact that Granillo came forward and identified defendant and Sherman only after the prosecutor told Munguia that the "case against [defendant] was weak, and that without an eyewitness to identify him, [he] would likely 'walk.' " He contends that the jury was deprived of evidence of "Granillo's strong motive to fabricate, [which] would

On cross-examination, Granillo testified that around December 8, 1997, she found out from Munguia that defendant's first

b. Discussion

Defendant argues that the trial court erroneously excluded as hearsay evidence of Munguia's conversation with Prosecutor Connolly-in which Connolly said the evidence against defendant was weak and that defendant might "walk" at the end of the trial if more witnesses were not located. Defendant contends that evidence of this conversation was nonhearsay, because it explained Munguia's state of mind in calling Granillo, and, more importantly, Granillo's state of mind and motive to lie when she stepped forward on the eve of trial, changed her story, and identified defendant as being in the alleyway moments before the shootings at 1700 Pacific Avenue occurred.

The Attorney General does not dispute that Connolly's statement to Munguia about

Defendant, for his part, argues that he has preserved his claim of error. He notes that the same judge presided over both trials, the admissibility of Connolly's statement to Munguia was a significant point of contention in both trials, and thus the "substance, purpose, and relevance of [Munguia's conversation with Connolly] was made known to the court." ( Evid. Code, § 354, subd. (a).) Furthermore, defendant contends that the trial court's rulings demonstrated that the court was excluding the evidence as hearsay and, thus, any further attempts to introduce it would have been futile. ( Id. , subd. (b).) He also disputes that defense counsel's question to Munguia called for speculation. Defendant does not renew his argument in the trial court that Detective Collette's testimony about the conversation was admissible to show Detective Collette's state of mind, nor does he specifically argue that the trial court's exclusion of Detective Collette's testimony was an abuse of discretion under the Evidence Code. But defendant does argue that the trial court's restriction of cross-examination of Munguia, Granillo, and Detective Collette deprived him of his constitutional rights to confront adverse witnesses, to present a defense, to a fair trial, and to a reliable penalty determination.

We need not unravel these competing arguments, because any restriction of cross-examination was harmless beyond a reasonable doubt, satisfying both federal and state standards of harmlessness. ( Chapman v. California (1967) 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 ; People v. Watson (1956) 46 Cal.2d 818 , 299 P.2d 243 .) Defendant claims that the trial court's restriction of cross-examination was not harmless because the jury was deprived of evidence that "was critical to impeach Granillo's testimony that her statement on the night of the crime was false" and her reasons for coming forward with " 'the truth,' a full year later, just as the case was going to trial." We disagree. The jury heard Munguia testify that Connolly told her he needed more witnesses; that she tried to get her brother Arthur to come forward, but he refused; and that after she talked to Connolly, she also spoke to Granillo, who then called Connolly and changed her story about what she had seen. Granillo admitted that she initially lied about not seeing anything on December 6, 1996, and she testified that she did so because she feared retaliation

2. Exclusion of Robert Robinson's Testimony

Defendant argues that the trial court erroneously prevented him from introducing testimony from Robert Robinson during the guilt phase to the effect that defendant was no longer an active member of the Rolling 20's Crips at the time of the shootings. We find that the trial court did not abuse its discretion in excluding Robinson's testimony.

a. Background

At a hearing held outside of the presence of the jury under Evidence Code section 402, Robinson testified to the following. Robinson worked as a gang prevention outreach counselor for an organization that worked closely with the Long Beach Police Department. Defendant had sought a job with the organization, and the organization wanted to hire him, as a former gang member, to work with children in an outreach program. The organization screened applicants to find out whether they were, in fact, no longer active in a gang. Robinson believed defendant was no longer active in the Rolling 20's Crips, based on defendant's statement that he was no longer active in the gang; discussions with unspecified gang members and others in the community; and his observations of defendant, which suggested to Robinson that defendant's "mind was in a different place."

The prosecution objected to the admission of Robinson's testimony. The trial court acknowledged that Robinson's testimony was relevant to counteract the prosecution's evidence that defendant was a gang member. It found, however, that the first two bases for Robinson's opinion-defendant's own statements and Robinson's discussions with other people-were inadmissible hearsay. The trial court precluded Robinson from testifying during the guilt phase about his belief that defendant was no longer an active gang member

Defendant argues that excluding Robinson's testimony denied him his constitutional rights to present his defense, to a fair trial, and to a reliable guilt and penalty determination. The trial court's exclusion of Robinson's testimony, which was not an abuse of discretion under the Evidence Code, did not amount to a deprivation of defendant's constitutional rights.

"[Frazier]: Yeah, but you know, you know

"[Defendant]: You know that's what I'm thinkin fool. He's mad because he'd come up with that proof on the nigger. [¶] ... [¶]

"[Frazier]: You know, that got to be a condition of parole is seeing a psyche. [¶] ... [¶]

"[Defendant]: Are you crazy?

"[Frazier]: No I ain't crazy.

"[Defendant]: Oh ... Well you should let it roll, it might get you ...

"[Frazier]: No I ain't fittin to play nothin.

"[Defendant]: Yeah.

"[Frazier]: Yeah I gave little Troub.

"[Frazier]: Yeah I gave him some and I had found two pistols in the garage here.

"[Defendant]: Yeah. Don't be talkin over the phone cuz, they've got my girl's phone tapped.

"[Frazier]: But anyway I gave them to troub.

"[Defendant]: Is that right.

"[Frazier]: Yeah."

The prosecution argued that the tape recording of the telephone call was "highly

During the defense case, defense counsel called Frazier as a witness. Frazier testified that at the time of the telephone call, he had recently been paroled and was not allowed to possess firearms. He found "two old revolvers," which were not working, in his garage and gave them to his neighbor, whose street name was "Troub." He had never met Sherman and did not know Sherman as "Troub," "Little Troub," or "Baby Troub." The conversation about the pistols was not related to defendant's case. Frazier asked about the preliminary hearing transcripts because he wanted to find out why defendant was bound over after his preliminary hearing. He thought the witnesses' names and addresses would be redacted and did not intend to intimidate or harm anybody. Frazier thought the reference to "need[ing] that DA hit" was just defendant "say[ing] things in the heat of the moment," because he was angry about how his preliminary hearing had gone; it was not a suggestion for Frazier "to go out and hit a D.A."

Defense counsel also called Darlene Garrett Frazier, Frazier's wife, as a witness. She testified that her ex-boyfriend had left two old revolvers at her house, which she moved to the garage. Sometime later, she realized the pistols were missing, and Frazier told her that he had given them to somebody. She did not have a neighbor named "Troub" or know anybody named "Troub," nor did she know Sherman.

At the close of evidence, the prosecution asked the trial court to give CALJIC No. 2.06, which instructs the jury that attempts to suppress evidence can be considered as a circumstance tending to show consciousness of guilt, on the theory that the taped conversation showed that defendant tried to

Defendant claims that the trial court compounded its error in allowing the tape to be played by also permitting the jurors to use a transcript of the conversation

During oral questioning, the prosecutor asked Juror 3389, "[Y]ou indicated in the questionnaire that you are opposed to the death penalty, correct?" He answered: "I didn't intend to state it clearly. Basically I believe that if there were such a thing as life imprisonment that would be sustainable, then I probably would not be. [¶] ... [¶] ... It's not a simple yes or no for me." The trial court instructed him to assume that a defendant sentenced to life without the possibility of parole "will live out the rest of their

"In light of the inherent ambiguities associated with the death qualification of juries, two rules have emerged. First, a prospective juror's bias against the death penalty, or the juror's inability to set aside his or her personal views and follow the law, need

Defendant also contends that the trial court had insufficient information

2. Constitutionality of the Multiple-murder Special Circumstance

The jury found defendant guilty of the murders of Lopez and Villa and, accordingly, found true the multiple-murder special-circumstance allegation, making defendant eligible for the death penalty. (§ 190.2, subd. (a)(3).) Defendant argues that the judgment of death must be reversed because the multiple-murder special circumstance "does not achieve the constitutional goal of distinguishing in any meaningful or principled way the few cases in which the death penalty may be imposed from the many cases in which it may not." As defendant acknowledges, we have rejected this argument numerous times (see, e.g., People v. Covarrubias (2016) 1 Cal.5th 838 , 934, 207 Cal.Rptr.3d 228 , 378 P.3d 615 , citing cases), and we decline defendant's invitation to revisit the issue.

whom it is not.' " (See People v. Dement (2011) 53 Cal.4th 1 , 56, 133 Cal.Rptr.3d 496 , 264 P.3d 292 .)

Defendant argues that we have interpreted factor (b) in an overly broad manner and have "treated death differently by lowering rather than heightening the reliability requirements in a manner that cannot be countenanced under the federal Constitution." "In prior decisions, we have rejected the identical argument." ( People v. Taylor (2010) 48 Cal.4th 574 , 651, 108 Cal.Rptr.3d 87 , 229 P.3d 12 ; see People v. Harris (2008) 43 Cal.4th 1269 , 1315, 78 Cal.Rptr.3d 295 , 185 P.3d 727 .)

" CALJIC No. 8.85 is both correct and adequate." ( People v. Valencia , supra , 43 Cal.4th at p. 309, 74 Cal.Rptr.3d 605 , 180 P.3d 351 .) Its inclusion of such adjectives as "extreme" and "substantial" in the list of potential mitigating factors did not prevent the jury from considering mitigating evidence. ( People v. Brasure , supra , 42 Cal.4th at p. 1069, 71 Cal.Rptr.3d 675 , 175 P.3d 632 .) The trial court properly instructed "the jury in the language of CALJIC No. 8.85 without deleting

We Concur:

Cantil-Sakauye, C.J.

Werdegar, J.

Chin, J.

Corrigan, J.

Liu, J.

Cuéllar, J.

ii. Lopez and Munguia Shootings

(a) Amber Gutierrez

Amber Gutierrez was at 1700 Pacific Avenue, visiting the apartment where Lopez's sisters lived, on the evening of December 6, 1996. A group of people had gathered at the apartment. Gutierrez was a member of the Eastside Longos, but she did not think anyone else at the apartment was a member. She was on the couch, talking on the telephone, and a man walked by the front door toward the alley; she heard him talk to somebody else but could not hear what they were saying. Lopez walked outside, and Anna Granillo, one of his sisters, entered the apartment. Right after that, Lopez was shot; he stumbled inside the apartment and fell down. Other bullets entered the apartment; one struck a balloon and another struck Munguia, who had entered the living room to get her daughter after she heard the shots. Gutierrez identified Sherman as the man who had walked by the front door. She saw a glove and a gun, but she did not see the face of the person who fired the shots. Although Gutierrez had seen defendant in the neighborhood, and he had previously "yell[ed] gang stuff" at her and her friends, she did not see defendant that evening.

(b) Veronica Munguia

Veronica Munguia, one of Lopez's sisters, lived in an apartment at 1700 Pacific Avenue, and was home on the evening of December 6, 1996. She knew members of the Eastside Longos. Munguia was in the bedroom of the apartment when Granillo entered the bedroom; shots were fired shortly thereafter. Munguia ran into the living room to get her daughter; Lopez, who had been shot, pushed her daughter toward her. Munguia was hit in the knee by a bullet that came through the wall, and she ran back into the bedroom. Lopez collapsed in the hallway of the apartment after being shot. Munguia did not see who did the shooting.

(c) Anna Granillo

Anna Granillo, Lopez and Munguia's sister, lived with Munguia at 1700 Pacific Avenue, and was home on the evening of December 6, 1996. That

(b) Nery Hernandez

Nery Hernandez testified that he lived at 1601 Pine Avenue, and was leaving his house with his family shortly before 7:00 p.m. on December 6, 1996. He backed his car out of his driveway and got out to close the gate. He saw a Hispanic man on a bike and an African-American man, whom he identified as defendant, about 10 or 15 feet away; they looked like they were arguing. He saw defendant point a gun at the Hispanic man, and he heard one or two shots. He got back into the car and tried to leave, but could not because there was a car behind him; when he turned back around, defendant was standing in front of the car, pointing a gun at him. Defendant fired, and Hernandez was struck in the chest. Hernandez saw defendant run toward Pine Avenue.

iv. Subsequent Investigation

Officer Peter Anderson of the Long Beach Police Department testified that he and his partner, Officer Ernie Kohagura, responded to a report of a shooting at 1700 Pacific Avenue, shortly before 7:00 p.m. on December 6, 1996. The radio dispatch stated that two male African-American suspects had been seen running eastbound toward Pine Avenue. Because other officers had

Dale Higashi, a senior criminalist with the Los Angeles County Sheriff's Department, testified that he examined eight .40-caliber shell casings that were collected from the scenes of the shootings. In his opinion, all of the

3. Posttrial Proceedings

Defendant filed a motion for a new trial, claiming, among other things, insufficiency of the evidence, prosecutorial misconduct, and ineffective assistance of counsel, which the trial court denied. The trial court also denied the automatic motion to modify the verdict (§ 190.4, subd. (e)) and imposed a judgment of death. This automatic appeal followed.

On cross-examination, Granillo testified that she had lost her memory of the shootings until about a week before she came forward as a witness. She talked to Munguia around December 8, 1997, and learned that Munguia had met with Connolly. At a sidebar, defense counsel stated, "I am going to ask [Granillo] ... if [Munguia] told her that [Connolly] told her about the case.... I am going to ask ... exactly what [Munguia's] words were. That [Connolly] thought the case was weak and needed additional witnesses. I am going to make the connection. That's why her memory came back." The prosecution objected on hearsay grounds. Consistent with its earlier ruling, the trial court allowed defense counsel to ask Granillo whether Munguia had told her to come forward and testify, "as long as it is not a repetition of the statement by Mr. Connolly." Defense counsel then asked Granillo whether, as a result of Munguia's conversation with Connolly, Munguia informed her that the prosecution needed her testimony. Granillo responded that she told Munguia the truth about what she saw, and Munguia asked her to tell the prosecution the same thing.

ii. Defendant's Second Trial

Defendant's second trial began almost six months after defendant's first trial ended. A different prosecutor, Steven Schreiner, tried the case. The trial court did not enter an advance ruling regarding Munguia's conversation with Connolly, as it had in the first trial. Before Munguia testified, and outside of the presence of the jury, Schreiner stated: "She [Munguia] and, I believe, Anna Granillo, the next witness, are going to be attacked as essentially concocting and bringing in Miss Granillo late into the proceedings through Mr. Connolly. I have subpoenaed Mr. Connolly. [¶] Depending on how far we go into that-I know there were discussions at the previous trial about hearsay and the conversations

Six days later, Detective Collette testified. On cross-examination, Detective Collette testified that he was present when defense counsel interviewed Munguia. He heard Munguia state that she had had a conversation with Connolly and that as a result of the conversation, she "felt obligated to find additional witnesses," after which point she spoke to Granillo. Defense counsel asked Detective Collette what Munguia said about why she felt obligated "as a result of the conversation she had with [Connolly] regarding the evidence in this case." The prosecution requested a sidebar. Defense counsel stated that she intended to ask whether Detective Collette heard Munguia say that "Connolly told her that this was a weak case and, unless they get additional witnesses, that [defendant] would be walking out the door." Defense counsel initially suggested this line of questioning was relevant to Detective Collette's state of mind. She stated that this line of questioning went to "the fact as to why Veronica Munguia went to [Granillo] and it brings up that whole thing. She told [Granillo] that this is a very weak case, we need somebody to come forward. [Granillo] says, 'Okay, I saw everything.' It goes to that, your honor." The trial court noted that "the person to ask about that is Anna Granillo, not the detective, not this detective." The prosecution argued that the testimony sought was "impermissible hearsay." The trial court ruled: "I am not going to permit any questions of this witness concerning an opinion offered by Mr. Connolly concerning the strengths or

At trial, defendant argued that Robinson could testify about his discussions with defendant and others regarding defendant's past gang membership because those discussions were admissible for a nonhearsay purpose-to prove Robinson's state of mind. The trial court found such testimony inadmissible for that purpose because Robinson's state of mind was not at issue, and defendant does not take issue with this ruling on appeal. The trial court recognized that Robinson's own observations of defendant were admissible. But it precluded Robinson from testifying that defendant was no longer an active gang member because "the jury would be misled if they were-because of the hearsay problem, if they were to hear from Mr. Robinson, that the only basis about which he could testify would be the personal observations, and that that would not give a complete record or complete information about Mr. Robinson's opinion."

"A lay witness may offer opinion testimony if it is rationally based on the witness's

3. Introduction of Tape Recording

Defendant argues that the trial court erred in permitting the prosecution to play for the jury a recording of a telephone call between defendant and his brother that took place a few days after defendant's first preliminary hearing. We find no error.

a. Background

Two days after defendant's first preliminary hearing, while defendant was in jail, he placed a telephone call to an unidentified woman. The woman initiated a three-way connection to a person named Tony, later revealed to be defendant's brother, Tony Frazier. Deputy Sheriff Dale Lovvik monitored and recorded the call for reasons unrelated to this case. Parts of the recording are difficult to understand; the prosecution prepared a transcript of the call, and the trial court interlineated a few corrections to the transcript after it listened to the tape. In the tape recording, defendant and Frazier discussed what

"[Defendant]: Two ladies and uh uh and uh dude, but they ain't sayin shit. They ain't sayin nothin. I thinkin they got help. The Judge said no doubt in his mind that he think I'm guilty of the crimes. They pointed the homeboy out.

b. Discussion

Defendant argues that the tape recording was inadmissible because it was irrelevant and more prejudicial than probative. ( Evid. Code, §§ 350, 352.) First, he contends that the evidence was irrelevant because the

According to his written answers in the juror questionnaire, Juror 3389 was a 66-year-old retired project manager. On the questionnaire, Juror 3389 checked boxes indicating that he was "moderately against" the death penalty; that he would not automatically vote for either life without the possibility of

The prosecutor challenged Juror 3389 for cause, because Juror 3389 did not have an "open mind" to the death penalty and would consider the death penalty only in very limited circumstances that did not apply in this case. Defense counsel opposed the challenge, because Juror 3389 "was open, depending on the circumstances and facts of the case, to render a verdict of death if he felt it was warranted." The trial court granted the challenge. "It appears from [Juror 3389's] answers that he has a definite bias in favor of the life without parole and that the only situation in which he could foresee himself, the only one he gave as an example-even when I asked him for additional situations where it might occur-the only one that came to mind for him is a situation where someone was already serving a life sentence and had committed further murders while in custody serving that life sentence. [¶] I believe that based upon his expression of his strong religious beliefs that he would not fairly consider both options in this case if given the opportunity to do so."

b. Discussion

A prospective juror may be excused for cause " 'only if his or her views in favor of or against capital punishment "would 'prevent or substantially impair the performance of his [or her] duties as a juror' " in accordance with the court's instructions and the juror's oath.' [Citation.]" ( People v. Thompson (2016) 1 Cal.5th 1043 , 1064, 210 Cal.Rptr.3d 667 , 384 P.3d 693 ; see Uttecht v. Brown (2007) 551 U.S. 1 , 6-9, 127 S.Ct. 2218 , 167 L.Ed.2d 1014 ; Wainwright v. Witt (1985) 469 U.S. 412 , 424-425, 105 S.Ct. 844 , 83 L.Ed.2d 841 .) "[N]ot all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law." ( Lockhart v. McCree (1986) 476 U.S. 162 , 176, 106 S.Ct. 1758 , 90 L.Ed.2d 137 .) "The critical issue is whether a life-leaning prospective juror-that is, one generally (but not invariably) favoring life in prison instead of the death penalty as an appropriate punishment-can set aside his or her personal views about capital punishment and follow the law as the trial judge instructs." ( Thompson , at p. 1065, 210 Cal.Rptr.3d 667 , 384 P.3d 693 .) We have recognized that prospective jurors may give "halting, equivocal, or even

Substantial evidence supports the trial court's decision to dismiss Juror 3389 for cause. Juror 3389 made clear in his written questionnaire answers and responses to questioning that he would not vote for death as long as life without the possibility of parole meant that defendant would never be released. After the trial court instructed him to assume as much, further questioning revealed that Juror 3389 would be willing to vote for the death penalty only if the case "fit [his] criteria," and his criteria were narrow: He articulated only a single hypothetical situation in which he could see himself voting for the death penalty-where a defendant continued to kill while in prison-and that hypothetical situation was not applicable in this case. (See People v. Martinez (2009) 47 Cal.4th 399 , 432, 97 Cal.Rptr.3d 732 , 213 P.3d 77 ["Excusal for cause is not limited to a juror who ' "zealously opposes or supports the death penalty in every case." ' "]; ibid. ["the mere theoretical possibility that a prospective juror might be able to reach a verdict of death in some case[s] does not necessarily render the dismissal of the juror an abuse of discretion"].)

During the penalty phase, the prosecution introduced as aggravating evidence under section 190.3, factor (b), six incidents of alleged, unadjudicated criminal activity by defendant. (See ante , pt. I.B.2.a.) Defendant argues that the judgment of death must be reversed because factor (b) and the use of unadjudicated criminal activity during the penalty phase violate various constitutional rights. We have previously rejected each of defendant's arguments, and we do so again here.

Section 190.3, factor (b) does not, as defendant contends, allow the "arbitrary and capricious application of the death penalty in violation of the Eighth Amendment requirement that a rational distinction be made 'between those individuals for whom death is an appropriate sanction and those for

The federal Constitution does not require that a burden of proof be placed on the prosecution at the penalty phase. ( People v. Jackson , supra , 1 Cal.5th at p. 372, 205 Cal.Rptr.3d 386 , 376 P.3d 528 .) "Unlike the guilt determination, 'the sentencing function is inherently moral and normative, not factual' [citation] and, hence, not susceptible to a burden-of-proof quantification." ( People v. Hawthorne (1992) 4 Cal.4th 43 , 79, 14 Cal.Rptr.2d 133 , 841 P.2d 118 .) The trial court did not err in failing to instruct the jury that the prosecution had the burden of persuasion regarding the existence of aggravating factors or the appropriateness of the death penalty. ( Jackson , at pp. 372-373, 205 Cal.Rptr.3d 386 , 376 P.3d 528 .) "Nor is an instruction on the absence of a burden of proof constitutionally required." ( People v. Brasure (2008) 42 Cal.4th 1037 , 1067, 71 Cal.Rptr.3d 675 , 175 P.3d 632 .)

"Section 190.3, factor (b) does not violate the federal Constitution by permitting the use of unadjudicated criminal activity as an aggravating factor, nor must such factors be found true beyond a reasonable doubt by a unanimous jury." ( People v. Harris , supra , 43 Cal.4th at p. 1323, 78 Cal.Rptr.3d 295 , 185 P.3d 727 .) This conclusion is not altered by the high court's decisions in Apprendi v. New Jersey , supra , 530 U.S. 466 , 120 S.Ct. 2348 , Ring v. Arizona , supra , 536 U.S. 584 , 122 S.Ct. 2428 , Blakely v. Washington , supra , 542 U.S. 296 , 124 S.Ct. 2531 , and Cunningham v. California , supra , 549 U.S. 270 , 127 S.Ct. 856 . (

"The trial court was not required to instruct the jury that defendant bears no burden to prove mitigating factors or that it need not be unanimous in finding the existence of any mitigating factor." ( People v. Adams (2014) 60 Cal.4th 541 , 580, 179 Cal.Rptr.3d 644 , 336 P.3d 1223 .) "Defendant was not entitled to an instruction that there is a presumption in favor of life without parole." ( People v. Boyce (2014) 59 Cal.4th 672 , 724, 175 Cal.Rptr.3d 481 , 330 P.3d 812 .)

The federal Constitution does not require intercase proportionality review. ( People v. Simon , supra , 1 Cal.5th at p. 149, 204 Cal.Rptr.3d 380 , 375 P.3d 1 .) "California does not deny capital defendants equal protection of the law by providing certain procedural protections to noncapital defendants that are not afforded to capital defendants." ( Id. at p. 150, 204 Cal.Rptr.3d 380 , 375 P.3d 1 .) International law and norms do not render California's use of the death penalty unconstitutional. ( Ibid. )

C. Cumulative Error

Defendant asserts that the cumulative effect of errors committed requires reversal of the judgment of conviction and/or the death judgment. We have assumed that the trial court improperly restricted defense counsel's cross-examination of Munguia, Granillo, and Detective Collette, but have found any error in that regard harmless beyond a reasonable doubt. (See ante , pt. II.A.1.b.) We have found no other errors, and defendant's claim of cumulative error fails.