People v. Mora

D

efendants Joseph Adam Mora and Ruben Rangel were charged by information with two counts of murder ( Pen. Code, 1 § 187), two counts of attempted robbery (§§ 211, 664), the special circumstances of multiple murder (§ 190.2, subd. (a)(3) ) and felony murder while in the commission of robbery (§ 190.2, subd. (a)(17) ), and various enhancements.

On February 5, 1999, the jury found Rangel and Mora guilty of the first degree murders and the attempted second degree robberies of both Encinas and Urrutia, and determined that both Rangel and Mora used a firearm in the commission of each offense. The jury also found true the multiple murder and felony murder special circumstances with regard to both Mora and Rangel. On February 18, 1999, the jury imposed the death penalty on both defendants. The court denied Rangel's and Mora's motions for a new trial and modification of the verdicts of death on May 27, 1999, and on that date sentenced Rangel and Mora to death.

A. Guilt Phase

1. The Murders

In the early morning hours on August 24, 1997, Andy Encinas, Anthony Urrutia, and Fidel Gregorio drove to meet Encinas's girlfriend, Paula Beltran, at a gas station in Wilmington, where she and two friends were awaiting assistance to repair a flat tire on Beltran's car. Encinas and his friends had attended a party in Wilmington that night, where Beltran had been headed before she got a flat tire. Beltran, along with friends Mayra Fonseca and Yesenia Jimenez, had spent time at a nightclub earlier that evening. Beltran paged Encinas to tell him she

Parked just behind Encinas, Beltran momentarily looked away from the two men standing outside Encinas's car to look, unsuccessfully, for her cell phone and call for help. Fonseca observed that Rangel stood immediately next to the driver's side of Encinas's car, holding a 12-inch-long metallic or "chromed" gun. Frightened, Fonseca lowered her seat to a reclined position while she screamed at Beltran to leave. When Beltran glanced back up she saw Mora and Rangel both pointing firearms into Encinas's vehicle. Beltran drove quickly away to find a payphone to call 911. Beltran and Fonseca remained at the phone until police officers arrived in response to her call.

From his vantage point in the backseat of Encinas's car, Gregorio could see both shooters. Rangel stood outside the driver's side door of Encinas's car and said to Encinas, "check yourself, check yourself, give me your wallet." As Encinas reached for his wallet, Rangel shot into the driver's side of the vehicle. Mora, on the other side of the car, also asked Urrutia for his wallet, and Urrutia told him he had no money but would give Mora his wallet

In the statement she gave to police immediately after the shooting, Lopez said that she saw both Mora and Rangel run into the house through the

At approximately 3:30 a.m., Compton Police Officers Raymond Brown and Sergio Lepe arrived at the Castlegate scene. Officer Brown saw two men sitting in the front seat of a 4Runner, nonresponsive, both with gunshot wounds. Bullet casings were strewn on the ground around the driver's side of the vehicle. Two wallets were visible in the vehicle; Encinas's was in the center console and Urrutia's was in the passenger seat. There was a can of Budweiser beneath the 4Runner.

Around dawn that morning, police knocked on Lopez's door on Castlegate. Officers interviewed everyone at the house. Following Beltran and Fonseca's interviews at the police station, they were driven back to Castlegate to be shown potential suspects to identify. About 10 individuals, including the partygoers at Lopez's house, were shown to Beltran and Fonseca in a field lineup.

Gregorio had witnessed the shootings from the backseat of the 4Runner. He participated in the field lineup, identifying Mora and Rangel as the shooters. Gregorio had told the police earlier that night that the shooters were two Latino men. He described the man on the passenger side, Mora, as shirtless and wearing Joe Boxer brand boxer shorts and low slung, sagging pants. Gregorio noted that Mora also had a tattoo on his stomach. Gregorio recalled that the subject of the tattoo was a cross, but observed upon close inspection in the courtroom that the tattoo was in fact a handwritten name. Gregorio also observed that Mora had a scar on his abdomen that bisected the tattoo "down like a cross" with "the name cutting across" the scar. Gregorio testified that he remembered Mora's face, and acknowledged that although the tattoo he recalled and the one he observed on Mora were not identical, Gregorio knew the man on the passenger side of the vehicle was Mora, stating, "It's him, I know it's him. I'm 100% sure." Gregorio observed that the man on the driver's side of the car, Rangel, was wearing blue track pants and a blue or black shirt.

Compton Police Officers Eric Strong and Lepe spoke with witnesses on Castlegate Avenue. John Youngblood, who lived on Castlegate near the location where the 4Runner had been parked, was watching television in the

Rangel also presented evidence concerning gunshot residue. A residue test was performed on Rangel at about 9:30 a.m. on August 24, 1997. The result of the testing was inconclusive. Only irregularly shaped

Urrutia's sister testified regarding childhood photographs of her brother. The photos depicted Urrutia's first communion and high school graduation, as well as photos of him as a child, with his family, and at work. Urrutia joined the Explorer Scouts as a child. He volunteered as an interpreter at St. Mary's Hospital, assisting with Spanish translation between patients and doctors. Urrutia also volunteered on a neighborhood committee to clean the area and rebuild local homes.

Urrutia and Encinas played football together. Urrutia's nephew, Javier Soto, was two years younger than Urrutia and played sports and attended school with him. Soto recalled that the group of friends of which Urrutia and Encinas were a part was "unbelievable," and Soto misses Urrutia every day.

Urrutia's mother, Virginia Urrutia, testified about her close relationship with her son, who attended church with her weekly. Urrutia had also been close with his father until his father's death. Urrutia had helped his family care for the father's grave. Urrutia's mother fondly remembers Urrutia's time as an altar boy between the ages of seven and twelve. Urrutia lived with his mother at the time of his death, and she recalled waiting up for him many nights, including the night he died.

We also find no statutory error. Mora and Rangel assert that the trial court found the discovery statutes were violated, but the court made no such finding. Defendants argue that the evidence was accessible to the prosecution because it was located in Detective Piaz's trial notebook, rendering the failure to disclose it a violation of section 1054.1. While it is concerning that the prosecution was unaware of so much about the case that resided in the Compton Police Department's files, no statutory error arose. Because "the material and information [became] known to, or [came] into the possession of, a party within 30 days of trial, [and] disclosure [was] made immediately," no violation of the discovery statutes occurred. (§ 1054.7.) No prejudicial statutory violation can be made out because neither Mora nor Rangel can demonstrate a reasonable probability that the results of the proceedings would have been different had the evidence been timely disclosed. ( Zambrano , supra , 41 Cal.4th at p. 1132, 63 Cal.Rptr.3d 297 , 163 P.3d 4 .)

That said, the number of discovery delays that occurred in this case gives cause for concern, as the trial court noted. Nonetheless, as soon as the prosecution learned of various late-disclosed documents, they were made available to the defense. The gunshot residue report was not completed until the day before it was provided to the defense. The crime scene diagrams were discovered by Rangel; the prosecutor had never seen them. The police reports containing witness statements were likewise discovered by defense attorneys. Lopez's second interview transcript was given to Mora, and the fact

In similar fashion, Mora and Rangel had an opportunity to address the late-disclosed evidence in this case. Their assertion on appeal that trial counsel "had a materially incorrect understanding of the state of the evidence when developing" the defense theory "and when cross-examining prosecution witnesses" is unsupported. Neither sought to conduct further cross-examination of any witness. Mora and Rangel now contend that the remedies offered by the court were not only inadequate but at times caused further harm, and that it is impossible to imagine how the trial would have gone absent the discovery errors. This claim is specious.

The court gave Mora and Rangel an opportunity to propose remedies. Indeed, other than dismissal or mistrial, the remedies requested were provided. Accordingly, it does not appear the court abused its discretion, particularly because it provided Mora and Rangel with the relief they sought. ( Jenkins , supra , 22 Cal.4th at p. 951, 95 Cal.Rptr.2d 377 , 997 P.2d 1044 [court possesses discretion to determine what remediation ensures fair trial].) Moreover, the court did not abuse its discretion by denying Mora and Rangel's motions for mistrial as that remedy would have been unduly extreme given the stage of proceedings.

The court explained that Rangel was not legally entitled to a copy of a report prepared by a codefendant's investigator. Moreover, the court noted, Rangel's investigator had ample opportunity over the course of the preceding week to talk to Youngblood. Rangel alleged his investigator attempted to speak to Youngblood during that time, but was unable to do so. Rangel claimed that when his investigator attempted contact, Youngblood told the investigator that police had told Youngblood not to speak with a defense investigator because he did not have to do so. In fact, it appears Youngblood declined to speak with Mora's investigator, not Rangel's. It is not clear that Rangel's team sought to speak with Youngblood. In any event, as the court noted, "it does not matter who [Youngblood spoke to]. The witnesses are entitled to speak to whomever they choose to. They don't have to talk to anybody, and if they do, that's fine." (See People v. Valdez (2012) 55 Cal.4th 82 , 118, 144 Cal.Rptr.3d 865 , 281 P.3d 924 ["although a criminal defendant may ask witnesses to give interviews, witnesses have no legal obligation to grant that request; they may decline to speak with a defendant"].) And Rangel insisted that a defense investigator spoke with Youngblood, and that Youngblood's identification of Rangel as a shooter on the day of

b. Discussion

Rangel argues that his right to effective confrontation was violated by the court's failure to provide his counsel time to review Youngblood's statement before cross-examining the witness. A criminal defendant possesses a fundamental right to confront the witnesses against him. ( U.S. Const., 5th, 6th, 8th, 14th Amends.; Cal. Const., art. I, §§ 7, 15, 24 ; § 686; Pointer v. Texas (1965) 380 U.S. 400 , 403, 85 S.Ct. 1065 , 13 L.Ed.2d 923 .) Cross-examination is a cornerstone of that fundamental right. ( Pointer , at p. 404, 85 S.Ct. 1065 .) Rangel does not argue that he was entirely denied the right to cross-examine Youngblood, but that his attorney's inadequate preparation to cross-examine

In Davis , the high court examined what constitutes effective cross-examination. A witness on probation for residential burglary under a juvenile court adjudication claimed he observed two men standing by a car on his property where a stolen safe from a bar was later found. ( Davis , supra , 415 U.S. at pp. 309-310, 94 S.Ct. 1105 .) Although he was a key prosecution witness, the defense was not permitted to inquire into his potential bias by cross-examining him as to his juvenile offense. ( Id. at p. 311, 94 S.Ct. 1105 .) The defense attempted to probe the witness's bias, but was unable to challenge the

Here, the tapes were relevant to a key witness's credibility and allegation that her highly inculpatory statements to police made in the immediate aftermath of the shooting were coerced. (See, e.g., Evid. Code, § 1235 [hearsay rule does not exclude prior statements inconsistent with trial testimony].) "We will not disturb a trial court's exercise of discretion under Evidence Code section 352 ' " except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a

Two days later, after the jury was empaneled and the second day of evidence presentation was underway, Juror No. 7 recognized the mother in the courtroom as the woman who had spoken with her in the cafeteria earlier that week. Juror No. 7 realized the woman must be the mother of one of the defendants. She immediately drew the issue to the court's attention. Juror No. 7 had not raised the issue earlier because she had not previously been aware that the woman with whom she conversed was connected to the trial in

b. Discussion

Each criminal defendant is entitled to an impartial jury. ( People v. Mickel (2016) 2 Cal.5th 181 , 215, 211 Cal.Rptr.3d 601 , 385 P.3d 796 , citing

Rangel also alleges the court erred when it failed to dismiss Juror No. 7. The juror should have been dismissed, contends Rangel, because what was said to her was outside the scope of the evidence presented at trial and constituted error in violation of Rangel's right to due process. If " 'extraneous material' " presented to a juror, " 'judged objectively, is inherently and substantially likely to have influenced the juror,' " bias may be found. ( People v. Danks (2004) 32 Cal.4th 269 , 303, 8 Cal.Rptr.3d 767 , 82 P.3d 1249 .) Rangel contends that Juror No. 7 was actually biased because she possessed unforgettable information that she was not permitted to consider as a matter of law. That is, Rangel asserts Juror No. 7 knew that a plea agreement was rejected, making Juror No. 7 more likely to infer that Rangel was guilty, and leaving "an inerasable impression" that Rangel, though guilty, decided to take his chances with trial, and should therefore suffer the death penalty if found guilty. ( People v. Lambright (1964) 61 Cal.2d 482 , 486, 39 Cal.Rptr. 209 , 393 P.2d 409 ; see id. at p. 487, 39 Cal.Rptr. 209 , 393 P.2d 409 .) The refusal of a guilty plea, of course, is not necessarily indicative of culpability and may instead be consistent with a defendant's belief in his innocence or reduced culpability.

Receipt of extraneous information is not " 'misconduct' in the pejorative sense," but it "may require similar examination for probable prejudice." ( In re Hamilton , supra , 20 Cal.4th at p. 295, 84 Cal.Rptr.2d 403 , 975 P.2d 600 .) If a sitting juror communicates with a non-juror, there arises "a rebuttable 'presumption' of prejudice." ( Ibid. ) The presumption can be rebutted by demonstrating there is "no substantial likelihood that one or more jurors were actually biased against the defendant." ( Id. at p. 296, 84 Cal.Rptr.2d 403 , 975 P.2d 600 .) A substantial likelihood of bias

Here, Juror No. 7 attested to her ability to impartially evaluate the evidence at the guilt phase of the trial. She likewise was certain that what she learned from the mother would not influence her penalty phase decision-making. Noting Juror No. 7's insistence that she could set aside what she was told by one of the defendants' relatives, the court found no reason to remove the juror. Assuming that Juror No. 7's communication with a nonjuror-even though it occurred before Juror No. 7 was empaneled-created a rebuttable presumption of prejudice, there is no substantial likelihood that Juror No. 7 was actually biased against Rangel.

Juror No. 7's responses to the trial court's examination revealed no bias, and the trial court found none. A review of the complete trial record reveals no further conduct on Juror No. 7's part suggesting latent bias. (Cf. People v. Nesler , supra , 16 Cal.4th at p. 583, 66 Cal.Rptr.2d 454 , 941 P.2d 87 [juror repeatedly disclosed outside information about the defendant during deliberation when she disagreed with fellow jurors, suggesting bias].) Juror No. 7 stated she could set aside what she had been told and she proceeded to do so. Accordingly, the trial court did not err by declining to remove Juror No. 7.

Attempted robbery requires "a specific intent to commit robbery and ... a direct but ineffectual act toward the commission of the crime."

Mora urges us to conclude otherwise. He argues that because shots were fired so quickly after defendants asked for the wallets and neither Mora nor Rangel "made any attempt to take the victims' wallets or anything else from either of the victims or their vehicle" after the shooting, they had no intent to permanently deprive the victims of their property. Even if the evidence supported Mora's theory, we are not free to reform the verdict simply because another theory is plausible. ( People v. Jackson (2016) 1 Cal.5th 269 , 345, 205 Cal.Rptr.3d 386 , 376 P.3d 528 [" 'If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding' "].) Whether a reasonable trier of fact could reach a different conclusion based upon the same facts does not mean the verdict is not supported by sufficient evidence. ( People v. Farnam (2002) 28 Cal.4th 107 , 143, 121 Cal.Rptr.2d 106 , 47 P.3d 988 .)

Even if we find sufficient evidence to support the attempted robbery convictions, Mora and Rangel separately urge us to conclude that the robbery-murder special circumstance must be vacated because there was insufficient evidence to establish that Encinas and Urrutia were killed to advance the independent felonious purpose of robbery. As the opinion of our concurring and dissenting colleague highlights, this is a closer question. ( People v. Green (1980) 27 Cal.3d 1 , 61, 164 Cal.Rptr. 1 , 609 P.2d 468 ( Green ).)

Yet the record also supports the jury's verdict, in which the robbery-murder special circumstance was found true. Both of the defendants asked the victims for their wallets before they were shot. The prosecutor argued Mora and Rangel shot Encinas and Urrutia to avoid detection, and planned to reach into the car at some later point to take the wallets they had demanded from their victims. The evidence supports this theory as well, suggesting the attempted robbery occurred for reasons other than to "facilitate or conceal" the eventual murders. ( Green , supra , 27 Cal.3d at p. 61, 164 Cal.Rptr. 1 , 609 P.2d 468 .) Defendants' requests for the victims' wallets was inconsistent with the dialogue that had preceded it. After Rangel had asked if Encinas wished to "go to sleep," defendants followed the victims to their car. The conversation then shifted to the wallets. Defendants even provided their victims with some time to respond to the demand for their wallets, engaging in a short dialogue with them about whether the wallets contained money. Defendants allowed Urrutia time to remove his wallet and place it in an open area of the 4Runner before finally shooting him, while Encinas's wallet remained in the vehicle's center console. This course of events does not ultimately suggest the attempted robbery was committed as a pretext to conceal the primary crime, murder. ( Ibid. )

In Green , the facts paint a more apparent picture of robbery committed to conceal murder. ( Green , supra , 27 Cal.3d at pp. 51-62, 164 Cal.Rptr. 1 , 609 P.2d 468 .) Before shooting the victim, the defendant instructed her to remove all of her clothing. ( Green , supra , 27 Cal.3d at p. 16, 164 Cal.Rptr. 1 , 609 P.2d 468 .) After shooting the victim, the defendant took the victim's rings and purse, and removed cash from the victim's purse, commenting " '[t]his would have been a hell of a robbery, huh?' " ( Ibid. ) The victim's belongings were later burned or disposed of to avoid identification. ( Id. at pp. 17, 61-62, 164 Cal.Rptr. 1 , 609 P.2d 468 .) The jury found the defendant guilty of the special

In Covarrubias , we concluded "the error was harmless because overwhelming evidence established, and the jury could have had no reasonable doubt, that defendant intended to kill, and that he was an actual killer." ( Covarrubias , supra , 1 Cal.5th at p. 929, 207 Cal.Rptr.3d 228 , 378 P.3d 615 .) Covarrubias involved three

10. Proof Beyond a Reasonable Doubt Instructional Error

According to Mora and Rangel, a series of guilt phase instructional errors singly or cumulatively impermissibly undermined their right to have guilt determined beyond a reasonable doubt in violation of the principles of due process, fair trial, trial by jury, and the fundamental requirement of reliability in a capital case. Mora and Rangel acknowledge that this court has repeatedly rejected identical claims, and they raise no argument that we have not considered. Accordingly, we again conclude that CALJIC Nos. 2.01 and 2.02 do not undermine the proof beyond a

b. Discussion

Rangel argues that his requested instruction should have been given to aid the jury's determination of whether Rangel had an independent felonious intent to commit robbery. A proper pinpoint instruction must be given at a defendant's request. ( People v. Hughes , supra , 27 Cal.4th at p. 361, 116 Cal.Rptr.2d 401 , 39 P.3d 432 , quoting People v. Earp , supra , 20 Cal.4th at p. 886, 85 Cal.Rptr.2d 857 , 978 P.2d 15 .) The jury must be instructed on general principles " ' "closely and openly connected to the facts

1. Gang Evidence

Mora and Rangel argue that introduction of evidence concerning their membership or participation in a criminal street gang at the penalty phase of

Later in the proceedings, Mora requested that the prosecutor refrain from making references in closing that Kovac testified that Mora had a gang tattoo or that Kovac was looking for a gang tattoo. The court readily agreed, explaining "there can't be" closing argument along those lines because "[t]here is no evidence to support that."

2. Rangel

In aggravation at the penalty phase, the prosecutor stated her intent to present evidence that Rangel suffered a felony automobile burglary conviction. Over defense's inaccurate objection that the conviction was actually a misdemeanor, the evidence was ruled admissible. Specifically, the prosecution intended to-and did-adduce evidence that Rangel spray-painted the letters "KCC" on the top of a car and, when confronted by the vehicle's owner, Rangel threatened to kill the owner if he went to the police. The prosecutor introduced evidence that "KCC" stood for "King City Criminals," a street gang, and Rangel's threat to the burglary victim was heightened in light of Rangel's gang affiliation. The vehicle owner testified that after Rangel spray painted "KCC" on the top of his car and threatened to kill him, the owner made it a point to move to a new home before Rangel was released from jail.

During the mitigation phase, Rangel presented testimony from Jose Jimenez, an acquaintance of Rangel's via a Bible study group, who testified that the murder charge seemed out of character for Rangel. The prosecutor argued, and the court agreed, that this testimony opened the door to permit inquiry as to whether Rangel's gang membership was consistent with Rangel's character in Jose's opinion. The prosecutor asked Jose if he knew Rangel was a gang member, and Jose responded that he "never perceived [Rangel] as a gang

Nearly all of Mora and Rangel's claims of error are forfeited because they failed to object on the grounds specified on appeal. ( People v. Gutierrez (2009) 45 Cal.4th 789 , 819, 89 Cal.Rptr.3d 225 , 200 P.3d 847 ( Gutierrez ).) Had Mora and Rangel properly preserved these claims, no error occurred in admitting this evidence.

Mora first contends that Kovac's testimony impermissibly implied that Mora was a gang member, and the trial court erred by admitting that evidence-by-implication without

Rangel's contentions, likewise, fail to persuade. Rangel argues, as did Mora, that evidence of his membership in the KCC gang, while extremely prejudicial, was only tangentially relevant and should have been excluded after careful scrutiny under Gurule . ( Gurule , supra , 28 Cal.4th at p. 653, 123 Cal.Rptr.2d 345 , 51 P.3d 224 .) Rangel did not object on this basis during trial and the claim is forfeited on appeal. ( Gutierrez , supra , 45 Cal.4th at p. 819, 89 Cal.Rptr.3d 225 , 200 P.3d 847 .) Even if prejudicial, gang evidence of the type introduced here is relevant pursuant to section 190.3, under which the jury may consider past criminal behavior involving violence or threats of violence. The circumstances of those past crimes, including gang membership, may be disclosed to the

Finally, both Mora and Rangel argue that because the jury was not voir dired regarding gangs, references to gang membership during the penalty phase constituted error. We find otherwise. Although the prosecutor stated at the outset of trial that she did not believe gang evidence would be adduced, Mora acknowledged the possibility that some gang evidence could "slip[ ] out." During trial, the court reminded defense counsel that declining to conduct voir dire regarding gang issues "was a tactical decision." As we have explained in a slightly different context, "[d]efense counsel are routinely faced with difficult tactical decisions in having to fashion voir dire inquiries

3. Continuance Request

Rangel contends the trial court abused its discretion and violated his constitutional rights to due process, to a fair trial, to present a defense, to equal protection, to a reliable penalty phase, and to the effective assistance of counsel by denying a continuance. A continuance was essential, he argues, because it would have allowed him to determine whether to present a surrebuttal witness, and denying a continuance postponing closing argument. We conclude the court's denials of these continuances were proper.

a. Background

After the prosecution presented gang expert evidence, the court asked if Rangel intended to present a surrebuttal witness. Rangel sought a continuance

After a half-hour of argument, the court called the parties to the bench to discuss an improper line of discussion in Rangel's closing. The court warned it would conclude Rangel's closing if further improper argument leading to interruptions occurred, to which Rangel's counsel responded, "It's probably the end anyway because I don't have enough time." When counsel resumed argument, she spoke for less than a minute more and concluded her closing argument at 4:50 p.m.

b. Discussion

A trial court has broad discretion to grant or deny continuances. ( Jenkins , supra , 22 Cal.4th at p. 1037, 95 Cal.Rptr.2d 377 , 997 P.2d 1044 ; see Morris v. Slappy (1983) 461 U.S. 1 , 11-12, 103 S.Ct. 1610 , 75 L.Ed.2d 610 ["Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel"].) We review a trial court's denial of a continuance request for abuse of discretion. ( Jenkins , supra , 22 Cal.4th at p. 1037, 95 Cal.Rptr.2d 377 , 997 P.2d 1044 .) Rangel argues the trial court abused its broad discretion in denying

a. Background

In addition to other mitigation evidence, Mora intended to present witnesses to testify that, during his incarceration following his arrest for these crimes, Mora served as a "module trustee," in which capacity he served meals, cleaned, and otherwise followed orders. The prosecutor discussed her intention to present a possible rebuttal witness, Deputy Lucero, who would-depending upon what evidence Mora's mitigation witnesses presented-testify that Mora was not a "trustee per se," and was not housed with other module trustees. The mitigation witnesses Mora planned to present concerning his module trustee status were not anticipated to provide evidence of Mora's good character. After presenting a number of other witnesses but before presenting testimony regarding Mora's "module trustee" status, Mora asked the prosecution if there would be any rebuttal. The prosecution responded negatively, but explained that there would be a rebuttal witness available "just in case." The prosecution elaborated, "I have no idea what they could rebut, since I haven't heard any testimony. I have some idea it might have something to do with being a trustee, but I don't have any statement." Mora did not object to the prosecution's plan to have a rebuttal witness available in case Mora presented mitigation evidence concerning his "module trustee" status, and no further argument on the subject occurred.

The next court day began with an Evidence Code section 402 hearing regarding the nature of the mitigation evidence Mora expected to proffer. The prosecution argued that if Mora presented character evidence, "it's fair game in rebuttal to me. I'm not saying what I have or don't have, but if they put that in, I believe ... rebuttal testimony in penalty phase is admissible to correct misleading

Although the due process clause commands disclosure of known rebuttal witnesses, we conclude that no error occurred here. First, Mora raised no objection before the trial court regarding the prosecution's failure to disclose its rebuttal witness's identity. Accordingly, Mora's claim of error arising from the failure to so disclose is forfeited. (See Gutierrez , supra , 45 Cal.4th at p. 819, 89 Cal.Rptr.3d 225 , 200 P.3d 847 .) Even if the issue was preserved for our review, we would find no error. Before the penalty phase commenced, the prosecutor alerted Mora that a rebuttal witness could provide testimony that Mora's "module trustee" status was controverted should Mora present testimony about that status. Mora ultimately decided against presenting evidence about his alleged trustee status, which the prosecution could not have known. Had the prosecution absolutely intended to call a witness to rebut the proposed mitigation evidence, the disclosure requirement may have been triggered. ( Izazaga v. Superior Court , supra , 54 Cal.3d at p. 375, 285 Cal.Rptr. 231 , 815 P.2d 304 .) That triggering would have depended on Mora's disclosure of the witnesses he intended to call. Mora's equivocation on the issue of whether to present evidence about his "module trustee" status rendered speculative the possibility of the prosecution's intent

6. CALJIC No. 8.85

Mora and Rangel argue that the trial court erred by failing to instruct the jurors, in addition to CALJIC No. 8.85, with a requested further instruction stating, "However, you may not double count any 'circumstances of the offense' which are also 'special circumstances.' That is, you may not weigh the special circumstance[s] more than once in your sentencing determination." Mora and Rangel acknowledge we have consistently found no prejudicial error in a trial court's denial of identical requested instructions, holding that " 'in the absence of any misleading argument by the prosecutor or an event demonstrating the substantial likelihood of "double-counting" reversal is not required.' " ( People v. Monterroso (2004) 34 Cal.4th 743 , 790, 22 Cal.Rptr.3d 1 , 101 P.3d 956 , quoting People v. Proctor (1992) 4 Cal.4th 499 , 550, 15 Cal.Rptr.2d 340 , 842 P.2d 1100 .) Although Mora and Rangel suggest the trial court's and prosecution's apparent confusion over applying the prohibition against double-counting itself demonstrates a substantial likelihood that jurors would misunderstand, they point to no argument by the prosecution or event that would have misled the jury. (

We have consistently concluded there is no burden of proof at the penalty phase. ( People v. Gamache (2010) 48 Cal.4th 347 , 406, 106 Cal.Rptr.3d 771 , 227 P.3d 342 .) The trial court is under no obligation to instruct the jury that neither party bears the burden of proof. ( People v. Leonard , supra , 40 Cal.4th 1370 , 1429, 58 Cal.Rptr.3d 368 , 157 P.3d 973 .)

The inclusion in the list of potential mitigating factors of the adjectives " 'extreme' " and " 'substantial' " does not serve as a barrier to the jury's consideration of mitigating factors in violation of the federal constitution. ( People v. Leonard , supra , 40 Cal.4th at p. 1429, 58 Cal.Rptr.3d 368 , 157 P.3d 973 , citing People v. Boyer , supra , 38 Cal.4th at p. 484, 42 Cal.Rptr.3d 677 , 133 P.3d 581 .) The jury need not be instructed that factors in mitigation may be considered only in mitigation. ( People v. Leonard , supra , 40 Cal.4th at p. 1429, 58 Cal.Rptr.3d 368 , 157 P.3d 973 .) No error flows from a failure to instruct the jury that if mitigating factors

Immediately after the shooting, Mora and Rangel ran away. Gregorio got out of the car and began knocking on doors in the neighborhood and yelling for help. No one opened their doors, but he was eventually approached by two men who told Gregorio they had called the police.

2. Mora and Rangel's Activities Before the Shootings

On the evening of August 23, 1997, Lourdes Lopez-Mora's ex-girlfriend and the mother of their three-year-old daughter-paged Mora to come to her house so he could provide protection for her after she was threatened while attending a child's birthday party earlier that day. Lopez lived on Castlegate. Several people were present at Lopez's home that evening, including her daughter and the two adults she lived with, Nancy Gonzalez and Jade Gallegos. Also present at Lopez's house were Ricardo Zavalos, Enrique

Prior to the gunshots she heard, Lopez recalled that Mora was not wearing a shirt, although he put a shirt on at some point that night after the shooting. Lopez testified that Rangel had been wearing a dark blue or black collared shirt that night, which he was still wearing when she exited the bathroom after the shooting. Lopez stated that Rangel took his shirt off at some point after the shooting.

Within minutes of the shots being fired, some commotion broke out at Lopez's house. Valadez testified that Mora and Rangel became excited, bragging that they shot two men and "blew their fucking heads off." Valadez observed that Mora was holding a black machine-gun style weapon; Rangel was holding a silver or chrome weapon with a bullet visibly stuck in the chamber. Rangel claimed he would have fired more shots but his gun had jammed. Rangel was advised by partygoers to remove his shirt to wipe down his arms to clean off gunshot residue, which he did. Mora-who had not been wearing a shirt-did not wipe his arms; he donned a shirt at some point later that night. Valadez saw Mora and Rangel leave Lopez's house with their firearms. They returned empty handed a short while later.

Lopez told police that immediately following the shooting, Mora grabbed her car keys. At trial Lopez testified that she heard car engines and the sound of cars being moved around after the shooting. Lopez observed her car had been moved out of the garage-where she had parked it-and Mora's car had been moved into the garage, with Lopez's car parked behind it. Valadez noticed that Mora and Rangel arrived at Lopez's house earlier that night in an Oldsmobile, which they initially parked in a driveway and later moved to the garage after the shooting.

Lopez told police that Mora asked her to go to the bedroom where their daughter was sleeping in case the child woke up because of the commotion and so the child would not have to see "her daddy go to jail." Lopez testified differently, explaining that Mora had asked her to go into the bedroom only to ensure their daughter did not wake up during the kerfuffle following the shooting. In addition to the car movement, the rush of activity at Lopez's home after the shooting included the swift extinguishing of lights and

A radio call alerted police officers to a possible shooting on Castlegate. The call summoned two officers to Beltran and Fonseca's location at the pay phone-from which Beltran had dialed 911, one block from the shooting-while other officers simultaneously responded to the Castlegate location. Fonseca and Beltran initially spoke with police officers by the pay

3. Encinas Victim Impact Evidence

Luz Gamez was Encinas's sister. She testified that Encinas was an avid sportsman while attending St. Anthony's high school. Encinas's family would attend his football, baseball, and basketball games. Following high school, Encinas attended community college and worked as a dispatcher. He hoped to become a police officer and had passed the Los Angeles Police Academy's test just two months prior to his death.

Gamez testified regarding childhood pictures of Encinas, which showed Encinas's father standing with him at several sporting events, as well as Encinas's baptism and other childhood events. Encinas was a shy, loving, helpful child and young man. He enjoyed a close relationship with his nephew, Edgar, Gamez's son. Edgar, who was nineteen years old at the time of the trial, continued to sleep in the room they shared, in the bed next to Encinas's former bed. Sergio Encinas, Encinas's older brother, testified that Encinas "was a 300-pound teddy bear. He was lovable. Everybody liked him. Everybody."

Encinas was to have attended a wedding with his family the day he was shot, but

Beltran, Encinas's girlfriend, testified about how she was affected by his death. The two had planned to marry and dreamed of having children together. Beltran felt guilty in the wake of his murder, believing that if she had not paged him, he would still be alive. She has not been able to forgive herself.

4. Urrutia Victim Impact Evidence

Urrutia's sister, Olivia Perez, testified that Urrutia dreamed of becoming a police officer. Urrutia attended Long Beach City College after graduating from high school and passed the test for the Long Beach City Police Department before he had reached the minimum age of eligibility. He passed the test for the Los Angeles Police Department four months prior to his

Rangel's mother testified that she began living with Rangel's father, Ruben Gomez Rangel, when she was 17 years old. After her mother died when she was a child, Rangel's mother grew weary of acting as a parent to her four younger sisters. Living with relatives and alone, Rangel's parents changed residence about four times before Rangel was born in 1975. Rangel also has an older sister, Carmen, born three years before him.

Rangel's parents abused alcohol and, from the time Rangel was about six years old,

On the day of the shooting, Rangel attended a family barbeque along with Leanos, Vanessa, and other members of Rangel's family to celebrate the birthday of Rangel's half-sister. Rangel fell asleep at about 9:00 p.m. after spending the day drinking, and was paged around 11:30 p.m. to go somewhere. Desiree urged Rangel not to leave, but he bade her and their daughter goodbye and left.

6. Mora Mitigating Evidence

Mora's father, Cruz Mora, testified that he was not certain of his paternity because he knew that Mora's mother, R.M., had sexual relationships with many members of his family. Cruz testified that he and his family members paid R.M. for their sexual encounters. Cruz married R.M. when she was eight months pregnant. The couple's marriage was not happy and Cruz physically abused R.M. Cruz left R.M. four years into the troubled marriage, but the two reunited some time thereafter for a few years.

After his parents' divorce, Mora lived with his aunt for a few months. Mora returned to his mother's home between the ages of five and thirteen, during which time R.M. was

The next morning, on January 20, 1999, Rangel's attorney informed the court that review of the documents stored in Detective Piaz's office revealed further discovery neither she nor Mora's counsel had received, including a number of reports containing "very critical" information about witnesses. Specifically, the undisclosed documents included a four-page report dated August 24, 1997, regarding Enrique Parra; an eight-page report dated August 24, 1997, regarding Jade Gallegos; a three-page report concerning Ramon Valadez with an attached warrant; and a nine-page follow-up investigation report prepared by the Compton Police Department, which contained a number of witness statements. The nine-page report contained statements from thirteen neighborhood witnesses, none of whom had been previously disclosed to the defense. Mora and Rangel argued that several of the undisclosed witnesses

At the January 22, 1999, status conference, Rangel's counsel announced readiness to proceed at the conclusion of the five-day recess. Mora's investigator had difficulty contacting one of the 13 witnesses. The court and prosecutor discussed the fact that the witness's family had been cooperative, and the court was confident the witness could be reached before trial resumed on Monday. Mora's attorney asked the court how to proceed if the witness could not be reached by the conclusion of the five-day recess, and the court advised to "keep at it." No objection or further colloquy followed.

In light of the numerous late-disclosed documents, the defense again requested that the case be dismissed. Mora and Rangel argued that most if not all the undisclosed discovery contradicted prior testimony and the prosecution's case. The court denied the request, but echoed the concern that some of the newly discovered statements may have been "contrary to the evidence that's been presented in court so far." The court explained that the remedy to date had been to suspend the trial and provide counsel with "an opportunity to communicate with these witnesses." Mora and Rangel then requested a jury instruction be provided concerning the late discovery, and the court acceded, asking that an instruction be prepared for its review when they reached that phase of the proceedings.

Mora and Rangel also allege the delayed disclosure of documents constituted a violation of the discovery statutes. Section 1054.1 provides, in pertinent part, that the "prosecuting attorney shall disclose" certain types of material to defense counsel if the evidence "is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies." Such disclosure "shall be made at least 30 days prior to the trial" or as soon as the prosecution learns of the documents or information. (§ 1054.7.) To prevail on a claim alleging a violation of discovery statutes, an appellant must show there is a reasonable probability that, had the evidence been disclosed, the result of the proceedings would have been different. ( People v. Zambrano (2007) 41 Cal.4th 1082 , 1132, 63 Cal.Rptr.3d 297 , 163 P.3d 4 ( Zambrano ).)

No Brady errors occurred here. Evidence actually presented at trial is not considered suppressed for Brady purposes, even if that evidence had not been previously disclosed

Finally, to the extent any error resulted from delayed disclosure, it was harmless because there is no reasonable probability that any error affected the trial result. ( People v. Watson (1956) 46 Cal.2d 818 , 836, 299 P.2d 243 ( Watson ); Zambrano , supra , 41 Cal.4th at p. 1135, fn. 13, 63 Cal.Rptr.3d 297 , 163 P.3d 4 .) Mora and Rangel had an opportunity to address the late-disclosed evidence and, for the most part, declined to do so. What little untimely discovery existed inculpating Mora or Rangel was suppressed by the court. Where the evidence was exculpatory, Mora and Rangel were permitted to-and

Mora and Rangel do not persuade on this point-and the language of the instruction shows why. The trial court conveyed CALJIC No. 2.28 to the jury as follows: "Delay in the disclosure of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the non-complying party's evidence." The jury was informed of the nature of the unfairness wrought by late disclosure, and was told to evaluate the significance to attach to that inequity by considering whether the undisclosed evidence "pertains to a fact of importance, something trivial or subject matters already established by other credible evidence." This language constituted "a proper statement of the applicable law, from which the parties could argue inferences that might (or might not) be drawn from the evidence presented at trial." ( People v. Riggs , supra , 44 Cal.4th at pp. 310-311, 79 Cal.Rptr.3d 648 , 187 P.3d 363 .) To the extent the instruction permitted the jury to speculate and presume the discovery delay was sufficient-alone-to cast doubt on Mora and Rangel's guilt, the ambiguity favored them.

Mora and Rangel next assert that the court erred by instructing the jury that the Compton Police Department, not the prosecution generally, was to blame for the delayed discovery. As Mora and Rangel note, the prosecution is charged with discovering and disclosing material exculpatory evidence even if maintained by a different agency. ( In re Brown , supra , 17 Cal.4th at pp. 879-883, 72 Cal.Rptr.2d 698 , 952 P.2d 715 .) There is no indication here that the prosecution failed to do that. The witness statements described in the instruction were not necessarily exculpatory; many of the statements were inculpatory or equivocal. The fingerprint report, to the extent it was exculpatory, was admitted, and its admission occurred over Mora and Rangel's objection.

3. Closing Argument

Mora and Rangel argue that the trial court erred by prohibiting them from arguing in closing that the discovery delays were intentional. The prosecutor requested that the court restrict Mora and Rangel from arguing that the delays were intentional, and the court agreed, stating "[t]here is no evidence of that. They can't argue intent." The court invited further discussion on the subject, but neither Mora nor Rangel addressed the court's restriction against arguing during the closing that the delay was intentional.

Neither Mora nor Rangel objected to the court's ruling on this matter. So they forfeited the argument that the court erred by prohibiting argument that the delayed disclosure was intentional. (See People v. Seumanu (2015) 61 Cal.4th 1293 , 1342, 192 Cal.Rptr.3d 195 , 355 P.3d 384 [concluding timely objection could have prevented harm alleged to have resulted from improper closing argument, and failing to object forfeited the issue on appeal].) Even if not forfeited, the court did not abuse its discretion. The closing argument provides counsel with opportunity

a. Background

On January 28, 1999, the prosecution called John Youngblood to testify. Youngblood was among the several witnesses whose statements to police had been belatedly disclosed to the defense. Youngblood was a Castlegate resident who had heard and observed some of the events in the early morning hours on August 24, 1997. Youngblood saw two men near the 4Runner parked on Castlegate on the morning of the shooting, but he did not identify anyone to the police when he was questioned that day. He later identified Mora from a photo array during an interview with the police.

Youngblood testified to, among other things, observing the 4Runner under strong lighting in which he could see the back of the man standing at the passenger-side door and the front of the man standing at the driver's

Here, Rangel did have an opportunity to review the six-page witness statement prior to cross-examining Youngblood. Because the statement had been prepared shortly before Youngblood's testimony, neither the prosecutor nor Mora had much time to review the statement. Although the court did not grant a recess, it ensured that Rangel had sufficient time to read the statement before beginning cross-examination. The court initially allowed Rangel time before beginning cross-examination to read the statement, and later granted a short break to allow Mora time to review notes and consider whether to conduct cross-examination first, during which break Rangel was able to thoroughly review the statement. During the break and before Rangel could avail himself of additional time to review the statement, as he could have taken if he allowed Mora to proceed with cross-examination, Rangel's counsel announced she was "going to try to start," after which the cross-examination began. Rangel's argument that there was insufficient time to review the statement, when he took all the time he needed, accordingly fails.

Nor do we see a defect in the cross-examination itself. The confrontation clause guarantees a meaningful but limited right-the opportunity to engage in effective cross-examination, not necessarily cross-examination that satisfies the defendant in any conceivable respect. (

Unlike the instant case, the defendant in Davis had scant opportunity to probe the witness's potential for bias. ( Davis , supra , 415 U.S. at p. 318, 94 S.Ct. 1105 .) Here, Rangel had ample opportunity to cross-examine Youngblood, and used it. The cross-examination was nearly twice as long as the direct examination. Rangel questioned Youngblood in depth about the six-page statement Youngblood made to Mora's investigator. Rangel also probed Youngblood's prior identification of Mora and Youngblood's inconsistent subsequent identification of Rangel.

Only when Rangel's examination began covering repetitive ground did the court intervene, suggesting counsel focus questions more narrowly. Rangel then complained to the court about the insufficient time to review Youngblood's statement, and reiterates that concern on appeal. Yet Rangel points to no authority-nor have we found any-suggesting that a defendant is entitled to as much time as he would like to review a witness's statement made to a codefendant's investigator. To the contrary, we have held that so long as a defendant is afforded an opportunity for effective cross-examination, no error results from a cross-examination that does not fully live up to the defendant's expectations. ( People v. Gonzales , supra , 54 Cal.4th at p. 1265, 144 Cal.Rptr.3d 757 , 281 P.3d 834 .) Rangel's lengthy and thorough cross-examination of Youngblood was apparently effective, and Rangel does not contend there remained any unasked or unanswered query. Rather, Rangel asserts that there is a delta between announcing readiness to " try to start " the cross-examination and announcing readiness to actually start the cross-examination. He claims he indicated only the former, which was not indicative of actual readiness. Of course, Rangel could have, and declined to, take more time to review the statement before so announcing. In any event, the difference between the statements-if there is one-is certainly not enough to find the court erred by failing to grant a longer recess. The cross-examination began when Rangel decided it should, and Rangel's inability to identify any avenue of inquiry that was not taken suggests it was effective. Accordingly, Rangel's right to confront Youngblood was not violated.

3. Playing Lourdes Lopez's Unredacted Audio Recordings

a. Background

Mora and Rangel contend the trial court abused its discretion by permitting the prosecution to play unredacted audio tape recordings ("tapes") of Lopez's

Mora and Rangel contend that when the prosecution played Lopez's taped interviews with the police, the trial court abused its discretion in violation of Evidence Code section 352. (See People v. Cole (2004) 33 Cal.4th 1158 , 1198, 17 Cal.Rptr.3d 532 , 95 P.3d 811 ["We review the trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code section 352... for abuse of discretion"].) Relevant evidence may be excluded if a trial court determines that its probative value is substantially outweighed by the probability that its admission will

4. Juror No. 7 Was Not Dismissed

Rangel argues that the trial court failed to conduct an adequate inquiry and failed to remove Juror No. 7 in violation of Rangel's rights to due process and a fair trial, trial by an impartial jury, and to a reliable capital and penalty determination. (See U.S. Const., 5th, 6th, 8th, 14th Amends.) Specifically, Rangel alleges the trial court erred by failing to adequately question Juror No. 7. Rangel further argues that the trial court's failure to dismiss Juror No. 7 after the juror learned Mora or Rangel might have rejected a plea bargain was prejudicial. We hold the trial court's examination of Juror No. 7 was adequate and the court did not err by declining to dismiss Juror No. 7 because the juror's exposure to a potential plea was not per se erroneous. Even if error occurred, it was not prejudicial.

a. Background

On January 11, 1999, before voir dire, the woman who became Juror No. 7 spoke

Rangel argues his right to due process was violated by the court's inadequate voir dire following Juror No. 7's revelation that she spoke with Mora or Rangel's mother. "The law is clear ... that the court must investigate reports of juror misconduct to determine whether cause exists to replace an offending juror with a substitute." ( People v. Keenan (1988) 46 Cal.3d 478 , 532, 250 Cal.Rptr. 550 , 758 P.2d 1081 .) If a juror's ability to perform his or her duty is called into question, a court is expected to hold a hearing; failure to conduct a sufficient hearing constitutes an abuse of discretion. ( Ibid. , citing People v. Burgener (1986) 41 Cal.3d 505 , 519-520, 224 Cal.Rptr. 112 , 714 P.2d 1251 .) Following a hearing, the trial court may discharge a juror if it finds that the juror is unable to perform his or her duty. (§ 1089.)

We conclude the trial court's hearing concerning Juror No. 7's unwitting contact with the mother was sufficient. Consistent with its obligation, the trial court immediately investigated Juror No. 7's report that she believed she had contact with a party's relative. Following

Regarding his first point, Mora cites no authority-nor does he otherwise make a persuasive argument-supporting the conclusion that unfair weighting of instructions in favor of the prosecution permits a trial court to disregard Birks . Instead, Mora argues that due process commands "a two-way street" between the prosecution and defense, which extends to jury instructions. ( Wardius v. Oregon (1973) 412 U.S. 470 , 475, 93 S.Ct. 2208 , 37 L.Ed.2d 82 .) Here, because the prosecution requested and the trial court agreed to give CALJIC No. 2.03 regarding consciousness of guilt, Mora argues that the jury instructions favored the prosecution's theory in violation of due process principles. Again, Mora cites no authority suggesting there must be parity, absolute or otherwise, in giving instructions requested by or favoring a party. Mora has presented no reason to disregard Birks ; accordingly, we conclude a trial court remains free to decline to instruct the jury on a lesser related offense. ( Birks , supra , 19 Cal.4th at pp. 112-113, 77 Cal.Rptr.2d 848 , 960 P.2d 1073 .)

Mora asserts that CALJIC No. 2.03 erroneously permitted the jury to consider his false statements, if any, to the extent they demonstrated his consciousness of guilt of the charged crimes of murder and robbery, while precluding the jury from determining his guilt of accessory after the fact. Mora is mistaken. We have previously held that declining to instruct on accessory after the fact is "not essential to [a] defendant's defense. Through [a] defendant's testimony and defense counsel's closing argument, the jury [may be] fully apprised of the defense theories that it was [someone else] rather than [the] defendant who caused [the] fatal injuries." (

Mora claims the sole evidence presented to the trier of fact regarding attempted robbery was Gregorio's testimony that both Rangel and Mora asked for the victims' wallets prior to shooting them; Rangel argues no evidence supported the theory that he or Mora intended to take anything from the victims. Gregorio testified that Rangel pointed a gun at Encinas's face while saying, "Check yourself. Check yourself. Give me your wallet." Before he was shot, Encinas had time to briefly verbally respond, "come on, man," and to

We conclude that sufficient evidence supports the jury's true finding of the robbery-murder special circumstance. The evidence suggests the robbery was committed for reasons separate and independent from the murder. The concurring and dissenting opinion points to evidence indicating the primary focus of the encounter between defendants and victims was murder, and certainly there is support in the record for this interpretation. Rangel asked Encinas if he wanted to "go to sleep," after which Mora and Rangel followed the victims to their car. Once there, defendants asked the victims for their wallets. Urrutia and Encinas demurred, with

We likewise reversed a robbery-murder special-circumstance true finding when the only evidence in support thereof was the fact that the victim was shot and killed in a location where robberies had previously occurred. ( People v. Morris (1988) 46 Cal.3d 1 , 22, 249 Cal.Rptr. 119 , 756 P.2d 843 .) There, a witness observed the shooting death of a nude victim at a Long Beach bathhouse and observed the shooter flee the scene into a

Mora and Rangel contend the jury's multiple murder special-circumstance true finding must be reversed. They argue the special circumstance may have been found true only if the jury determined that each of them intended to kill the victim he did not shoot. But, they contend, the jury instructions and facts of the case render it impossible to know whether the jury so found beyond a reasonable doubt, or if it instead found that Mora and Rangel intended to aid and abet the robbery of the victim he did not shoot, which would have been insufficient to support the multiple murder special-circumstance true finding.

The jury was instructed pursuant to CALJIC Nos. 8.80.1, concerning special circumstances generally, and 8.81.3, concerning the multiple murder special-circumstance specifically. CALJIC No. 8.80.1 instructs, in relevant part, "If you find that a defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill, aided or abetted ... in the commission of the murder in the first degree , or with reckless indifference to human life and as a major participant, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted in the commission of the crime of attempted robbery which resulted in the death of a human being ."

Mora and Rangel assert that there was ambiguity in CALJIC No. 8.80.1 because it permitted the jury to find true the multiple murder special circumstance even if the jury found only that either appellant acted, with reckless indifference to human life, as a major participant in the attempted robbery of the victim they did not shoot. Mora and Rangel are correct, and we held as much in Covarrubias , where we examined the paragraph of CALJIC No. 8.80.1 with which Mora and Rangel quarrel here. (

The multiple murder special-circumstance instruction given here, CALJIC No. 8.81.3, echoes this requirement. It provides, "To find that the special circumstance, referred to in these instructions as multiple murder convictions, is true, it must be proved: A defendant has in this case been convicted of at least one crime of murder of the first degree and one or more crimes of murder of the first or second degree." ( CALJIC No. 8.81.3 ; see also § 190.2, subd. (a)(3).) Although this is not an incorrect statement, as Covarrubias and People v. Maciel instruct, it is not complete. Section 190.2, subdivision (a)(3) defines the multiple murder special circumstance as a conviction "of more than one offense of murder in the first or second degree." In People v. Turner (1984) 37 Cal.3d 302 , 328-329, 208 Cal.Rptr. 196 , 690 P.2d 669 , we added an element to the special circumstance beyond that statutory requirement: intent to kill. We overruled People v. Turner in People v. Anderson (1987) 43 Cal.3d 1104 , 1149-1150, 240 Cal.Rptr. 585 , 742 P.2d 1306 , holding "intent to kill is not an element of the multiple-murder special circumstance; but when the defendant is an aider and abetter rather than the actual killer, intent must be proved."

In People v. Rogers (2006) 39 Cal.4th 826 , 891, 48 Cal.Rptr.3d 1 , 141 P.3d 135 , we examined the propriety of a multiple murder special circumstance instruction. The crime in Rogers took place after we issued our decision in People v. Turner (in which we required a finding of intent) and before our decision in Anderson . We explained there that, under Anderson , intent is not an element of the multiple murder special circumstance unless the defendant is not the actual killer but is instead an aider and abettor, in which case intent must be established. ( People v. Rogers , supra , 39 Cal.4th at p. 891, 48 Cal.Rptr.3d 1 , 141 P.3d 135 .) Because the crime in People v. Rogers predated our decision in Anderson , however, we explained the jury was required to find intent to kill for at least one of the murders. ( Ibid. ) But, "we

12. Attempted Robbery Pinpoint Instructional Error

Rangel argues the trial court erred by denying his request to provide the jury with a pinpoint instruction regarding attempted robbery. We hold, for reasons addressed below, that the trial court did not abuse its discretion by denying the requested instruction as duplicative.

a. Background

At the conclusion of the guilt phase, Rangel requested that the court give a pinpoint instruction concerning the crime of attempted robbery as it related to the

Because Rangel's proposed instruction would have been duplicative, we conclude the trial court did not err by denying Rangel's request. (See People v. Hovarter , supra , 44 Cal.4th at p. 1021, 81 Cal.Rptr.3d 299 , 189 P.3d 300 .) The trial court correctly concluded that the proposed instruction's content was adequately conveyed by CALJIC Nos. 8.21 and 8.27. The jury was instructed that a felony murder conviction, either directly or under an aider and abettor theory, required as a predicate that Rangel committed robbery or attempted to do so. The jury was also instructed that robbery required the specific intent to deprive the victim of property. With the robbery and felony murder instructions given, the jury was adequately

a. Background

The prosecutor asserted at the outset of trial that no gang evidence was anticipated. Specifically, before the court conducted voir dire, the prosecutor was asked whether there was "any gang evidence that you will elicit in this case," to which the prosecutor replied, "not that I know of." Because no evidence was expected to be adduced concerning gang affiliation, defense counsel decided against conducting voir dire of potential jurors regarding their views on gangs or gang membership. Immediately prior to presenting her first witness, the prosecutor was again asked whether she planned to elicit testimony regarding defendants' gang affiliation. The prosecutor indicated she had no intent of so doing. Witnesses were admonished not to mention Mora or Rangel's gang affiliation. The court stated it had no "problem excluding gang [evidence] but if it looks like we can't go any other way, then I ask that we approach." The parties agreed, even though no such discussion was required until the penalty phase. At that time, the court and parties held a brief colloquy to address the admissibility of gang evidence as to Rangel, and the court ruled the evidence admissible.

1. Mora

At the penalty phase, the prosecutor stated her intent to present evidence that Mora was involved in an assault in county jail in 1996, where he was incarcerated for a Vehicle Code infraction two years prior to the penalty phase of this trial. Mora requested that no mention of gang activity be made concerning Mora during the penalty phase. After confirming with the prosecutor that no such evidence was expected, the court stated there would be "no gang evidence as it relates to Mr. Mora."

In 1996, Paul Juhn, an inmate in county jail, was assaulted by four or five fellow inmates. Juhn identified the assailants immediately following the attack, but was no longer able to make identifications at the time of Mora's trial. Accordingly, Deputy Sheriff Kresimir Kovac, who was with Juhn when he identified his assailants, testified that the incident report indicated Mora was one of those who Juhn identified. Kovac's report noted that Mora had a tattoo on his chest that said "King City Criminals." The parties and court agreed that Kovac could identify Mora by this tattoo in court if Kovac was unable to visually identify him. Mora initially objected to an identification via his tattoo, and offered to stipulate that Kovac contacted Mora in connection with Juhn's assault. The prosecutor declined the stipulation, and the court

Following the mitigation phase, the prosecution presented a rebuttal expert witness to testify further about street gangs. The expert testified that many gang members are known by nicknames or monikers. The expert noted that gang members are often identified by their shaved hairstyles and tattoos. Based on Rangel's tattoos and hairstyle, the expert testified that Rangel was a "gang member of a hard-core nature" with a "wanton disregard or disrespect for life itself." Rangel requested a limiting instruction that gang membership is not a crime and cannot be considered an aggravating factor. The court denied the request, although the prosecution was instructed not to argue about the gang evidence in closing.

Mora next argues that Kovac's testimony identifying Mora in the Juhn assault was irrelevant and inadmissible. Mora so contends because he offered to stipulate that Mora's name was in Kovac's incident report. This argument is unavailing. The offered stipulation and Kovac's testimony differed. The presence of an individual's name in an incident report is not equivalent to testimony identifying the individual as involved in the incident. Had the presence of the name been sufficient, Kovac could have testified simply that the incident report named Mora without undertaking the additional step of identifying Mora by visually matching Mora's chest tattoo with the tattoo described in the

Rangel also claims the trial court erred by admitting evidence of his gang membership during mitigation witness Jose's testimony. Again, Rangel's claim of error is forfeited on appeal because he did not object on this basis at trial. ( Gutierrez, supra , 45 Cal.4th at p. 819, 89 Cal.Rptr.3d 225 , 200 P.3d 847 .) Assuming, arguendo, that the claim is not forfeited, we conclude there was no error.

When a defendant places his or her character in issue during the penalty phase, the prosecution may introduce contrary character evidence. ( People v. Loker (2008) 44 Cal.4th 691 , 709, 80 Cal.Rptr.3d 630 , 188 P.3d 580 .) The prosecution only needs to have a good faith belief that the incidents or conduct about which it inquires actually occurred. ( Ibid. ) The prosecutor had more than that here; after Jose testified to Rangel's good character, the prosecutor asked Jose about Rangel's past criminal offense. Specifically, the prosecutor asked Jose if he would be surprised to learn that Rangel spray-painted the letters "KCC" on the top of a car, an incident the prosecutor had a good faith belief that it occurred in light of the prior testimony to that effect. This evidence was related to the allegations of Rangel's good character and was thus admissible. ( Id. at pp. 709-710, 80 Cal.Rptr.3d 630 , 188 P.3d 580 ; see also People v. Fierro (1991) 1 Cal.4th 173 , 239-240, 3 Cal.Rptr.2d 426 , 821 P.2d 1302 [evidence of a defendant's good character opened door to evidence of his participation with youth gangs].) Similarly, no error flowed from the prosecution's eliciting testimony that Jose would not have been surprised to learn that Rangel was in a gang because that testimony followed Jose's testimony to Rangel's good character.

The prosecutor never made any guarantee that she would avoid introducing gang evidence. And while defense counsel avoided addressing such evidence during voir dire, that choice did not impose on the prosecution any obligation to refrain from introducing such evidence at trial. The parties agreed to engage in a colloquy if it appeared the prosecution wished to introduce gang evidence. The prosecutor did exactly that during the penalty phase prior to introducing evidence of Rangel's gang membership in connection with the relevant and admissible character and past crimes evidence. Gang evidence was inextricably intertwined with the circumstances of Rangel's prior offense. Defense counsel's early tactical decision to avoid gang voir dire was made with full awareness of the possibility that some gang evidence could be introduced, and its eventual introduction does not transform that tactical choice into error. (See, e.g.,

The court was ready to begin Rangel's closing penalty phase argument at around 3:50 p.m. that day. Noting the time, Rangel expressed concern that the jurors would be tired and the closing argument would be rushed. The court promised that there would be time enough to complete the argument, and agreed to stay in session past the 4:30 p.m. adjournment time if needed. When Rangel

Rangel bore the burden to demonstrate good cause for a continuance to secure a surrebuttal witness. ( Jenkins , supra , 22 Cal.4th at p. 1037, 95 Cal.Rptr.2d 377 , 997 P.2d 1044 .) Rangel must have-and did not-show he exercised due diligence in securing the witness's presence, that the expected testimony was material, noncumulative, and could be secured within a reasonable period of time, and that the facts to which the witness was expected to testify could not otherwise be proven. ( Ibid. ) We accord substantial deference to a trial court's determination of these issues. ( People v. Howard (1992) 1 Cal.4th 1132 , 1172, 5 Cal.Rptr.2d 268 , 824 P.2d 1315 .)

As Rangel conceded before the trial court, he was unable to show that Ruben's expected testimony in surrebuttal would be material, noncumulative, or would concern facts not otherwise capable of proof. When the trial court asked if Rangel intended to present a surrebuttal witness, Rangel acknowledged only that it was "possible" he would do so. When called upon to be more specific, Rangel replied that he "might" call Ruben. Rangel was given an opportunity to contact Ruben and to make an offer of proof regarding the expected surrebuttal testimony; Rangel squandered that opportunity. Far from showing diligence in attempting to secure the witness's testimony, Rangel informed the court that he made no effort whatever to contact the witness.

In evaluating a continuance request, the trial court considers the benefit of the expected testimony as anticipated by the party seeking additional time, as well as the likelihood that the expected benefit will be realized, the burden caused

7. Multiple Murder Special Circumstance

Mora and Rangel argue that the multiple murder special circumstance must be overturned because it violates the Eighth and Fourteenth Amendments. We have repeatedly rejected similar claims because the multiple murder special circumstance narrows the class of death-eligible defendants. ( People v. Sapp (2003) 31 Cal.4th 240 , 286-287, 2 Cal.Rptr.3d 554 , 73 P.3d 433 .) "For the multiple murder special circumstance, a defendant must, in the same proceeding, be convicted not only of first degree murder, but also of 'more than one offense of murder in the first or second degree.' (§ 190.2, subd. (a)(3).)" ( People v. Sapp , supra , 31 Cal.4th at p. 286, 2 Cal.Rptr.3d 554 , 73 P.3d 433 .) Mora and Rangel argue that the multiple murder special circumstance is unconstitutionally "wanton or freakish" because it permits a person who accidentally kills a woman and the nine-week-old fetus she did not know she was carrying to be given the death penalty, but that same penalty is not applied to a killer motivated by racial animus who murders several people. (See United States v. Cheely (9th Cir. 1994) 36 F.3d 1439 , 1445.) We rejected

Juror Nos. 3, 11, and 12 did not respond to the court's communication regarding the disclosure of their identifying information. The court provided Mora and Rangel with the names, addresses, and phone numbers of those three jurors. On May 17, 1999, Mora moved again for a new trial, and Mora's attorney submitted a declaration in support thereof indicating that he spoke with one of the three jurors who permitted the disclosure of contact information. That juror "did not specifically remember any deliberation regarding military expertise." Mora's attorney declared that the juror also told him the jurors did not believe the murder would have happened had Mora not paged Rangel that night. Mora argued a new trial was warranted because improper evidence concerning Rangel was considered by the jury to permit imposition of the penalty with regard to Mora. Rangel separately moved for new trial, but did not argue that juror misconduct supported his request.

The court heard Mora and Rangel's updated new trial motions on May 27, 1999. Mora urged the court to grant a new penalty trial based in part on juror misconduct during penalty phase deliberations, and the inability to contact jurors thereafter. Following argument, the court denied both Mora and Rangel's motions for new trial. The court ruled that Mora's attorney's declaration in support of the motion for new trial constituted inadmissible hearsay, but even if it was capable of consideration, the statement was not "in and of itself ... sufficient to demonstrate any misconduct on the part of the jury." The court explained that "jurors are not required to discuss or disclose their process.... [A]bsent a showing ... to demonstrate jury misconduct, the court has to assume there was none."

b. Discussion

Mora and Rangel argue the court erred by denying their motion for new

Here, too, the only support for the motion for a new trial based upon juror misconduct are defense counsel's statements containing hearsay accountings of what jurors purportedly said. A trial court does not abuse its discretion in declining to hold an evidentiary hearing or denying a motion for a new trial when the only basis to grant such a hearing or trial is, as in this

The death penalty statutory scheme is not unconstitutional for failing to require the jury find beyond a reasonable doubt that aggravating factors outweigh mitigating factors. ( Simon , supra , 1 Cal.5th at p. 149, 204 Cal.Rptr.3d 380 , 375 P.3d 1 .) California's death penalty statutory scheme does not run afoul of Apprendi and its progeny for failing to so require. ( Simon , supra , 1 Cal.5th at p. 149, 204 Cal.Rptr.3d 380 , 375 P.3d 1 .) There is no federal constitutional requirement that the jury make written findings regarding factors in aggravation. ( Ibid. )

The facts do not support a finding that defendants murdered their victims "in order to advance" a robbery. ( Green , supra , 27 Cal.3d at p. 61, 164 Cal.Rptr. 1 , 609 P.2d 468 ; see maj. opn., ante , 235 Cal.Rptr.3d at pp. 103-104, 134-136, 420 P.3d at pp. 912-913, 938-939, [recounting details of the crime].) Although there is sufficient evidence to support the jury's finding that defendants intended to rob the victims, there is no credible evidence from which the jury could conclude

Mora and Rangel arrived at Lopez's home between 11:00 p.m. and 12:00 a.m. When Lopez arrived shortly after Mora and Rangel, she observed both men in her kitchen drinking alcohol and using methamphetamine. Lopez joined Mora and Rangel, snorted two or three lines of methamphetamine, and consumed four or five beers in the space of about 20 minutes. While sitting with the two men in her kitchen, Lopez noticed a gun in Rangel's waistband. Lopez told police that night that she had also seen Mora with a gun, although she later testified that she was pressured into making that statement to police and never saw him with a gun.

Much of Lopez's testimony at trial differed from what she told police immediately following the shootings. What Lopez had told police is that in the early morning hours of August 24, 1997, she heard Rangel call Mora to go outside. Lopez also told police that Mora and Rangel were the only two people from the gathering at her house who had gone outside. However, at trial, Lopez claimed uncertainty regarding

Sergio was asked to identify his brother's body. Sergio testified that he was taken to the morgue, saw his brother's dead body, and had to inform his parents and family that Encinas had died. Sergio described the experience as very painful: "it ruined me, too, physically, mentally, telling, you know, your mom, your dad, your brother, your uncle, 'he will never be here. You will never see him alive.' "

Encinas's mother and father became ill following their son's death. Encinas's father was so emotional following Encinas's death that the family decided not to tell him when the trial was taking place, fearing for his health and the potentially exaggerated nature of his reaction were he to attend the trial. Encinas's mother was too ill to attend the trial, although she knew when it was taking place.

Rangel's mother testified she used heroin and provided poor care for her children. Rangel's father also neglected his children when trying to obtain more drugs. Rangel's father sometimes became violent when he consumed alcohol. Rangel's parents separated when Rangel was about five years old; Rangel lived with his father for a few years after that. Rangel's mother continued to use heroin for several more years, supporting her habit via prostitution, although she endeavored to hide her means of making a living from Rangel. Rangel's mother stopped using heroin in the late 1980s, after her sister died from a heroin overdose. By the time of Rangel's trial, Rangel's mother had been drug-free for 11 years. After Rangel's mother stopped using heroin, Rangel and his sister began living with their mother again. Rangel

When Mora was 14, he moved in with his 19-year-old cousin, Candy Lopez. Mora then became involved with Lourdes Lopez (who was not related to Candy) and Lourdes Lopez and Mora had a daughter together when Mora was 18 years old. The jury was shown photos of Mora with his daughter and family.

Because these reports, along with the two diagrams and Lopez's interview transcript, had not been provided to the defense until trial was well underway, Mora and Rangel requested that the case be dismissed. The court indicated it would "consider a less dramatic sanction than that at the outset," and Rangel and Mora sought a week-long recess to investigate the witness statements contained within the nine-page report. The court acknowledged that it was troubled by some of the statements in the newly discovered reports and "more than a little concerned about the fact that" the reports had not been "delivered to defense counsel." The prosecutor clarified that the newly discovered reports were also not in her possession.

The court agreed with Mora and Rangel that further investigation was warranted, at least with regard to two witness statements. These statements described how a car drove away from Castlegate around the time shots were fired, and how a woman's voice was heard outside arguing around the time shots were fired. The court granted a five-day recess to permit the defense time to interview the newly disclosed witnesses, and ordered a status conference be held two days later to confirm that a five-day recess would be sufficient. Counsel for Mora told the court, "We'll do the best we can within that time frame, your honor."

That same day, January 20, 1999, the prosecution turned over additional documents not previously provided to the defense: a witness statement by Jimenez, the passenger in Beltran's car who lived on Castlegate; a warrant

We likewise conclude no prejudice arose from the instances of delayed disclosure. The prosecution's failure to disclose the fingerprint reports during the normal course of discovery did not result in prejudice to defendants. The fingerprint report was made available to the prosecutor and defense counsel as soon as it was discovered to have been unintentionally omitted, and the court admitted it with an admonition to the jury regarding its untimely disclosure. Accordingly, no Brady error resulted. (See People v. Verdugo , supra , 50 Cal.4th at p. 281, 113 Cal.Rptr.3d 803 , 236 P.3d 1035 ; Brady , supra , 373 U.S. at p. 87, 83 S.Ct. 1194 .)

To the extent any error arose from identifying the police department and not the prosecution more broadly as the agency responsible for the delays, the error was harmless under any standard in light of the overwhelming evidence of guilt. ( Neder v. United States (1999) 527 U.S. 1 , 17, 119 S.Ct. 1827 , 144 L.Ed.2d 35 .) Beltran, Encinas's girlfriend and a witness to the beginning of the altercation, identified both Mora and Rangel from among approximately 11 individuals in a field lineup. Fonseca, the passenger in Beltran's car, also observed the assailants and identified both Mora and Rangel during a field lineup. Gregorio, the passenger in the 4Runner who observed the shootings from the backseat of the vehicle, also identified Mora and Rangel in the field lineup held after the shooting. Lopez told police during interviews that took place immediately after the shooting that Mora and Rangel were both outside when the shooting occurred, that they came back inside one minute after the shots were fired, and that Mora asked Lopez to go to the bedroom where their daughter was sleeping to prevent the child from waking and seeing her father go to jail. Although Lopez testified inconsistently with some of those statements, another party-goer at Lopez's house that night-Valadez-confirmed that Mora and Rangel reentered Lopez's house immediately after the shooting. He also confirmed that both men carried weapons and were bragging about the shootings.

Moreover, Valadez's testimony corroborated other evidence. For instance, Valadez testified that after Mora and Rangel reentered Lopez's house, one of the men stated he would have continued firing shots had his weapon not jammed. One of the two firearms recovered from Mora's Oldsmobile parked in Lopez's garage had a bullet jammed at the breech. Valadez also corroborated Gregorio's observation that Mora was shirtless during the shooting.

Ballistics evidence added further corroboration. The Astra found in the Oldsmobile in Lopez's garage was determined to be jammed due to a feeding problem. Casings recovered from the crime scene compared against those made during ballistics testing revealed that three casings were fired from the Astra. The testing also revealed that an expended cartridge case originated from the Intratec, the other weapon found in the Oldsmobile. The bullet recovered from Encinas's body was shot from the Astra and the bullet recovered from Urrutia's body was shot from the Intratec.

2. Rangel's Preparation for Cross-Examining Witness Youngblood

Rangel argues that his right to effective confrontation was violated by the court's failure to provide sufficient time to review a statement John

The prosecution sought to play Lopez's two tape-recorded statements in order to impeach her testimony about her level of discomfort during the interviews, impeach her testimony that the recording was stopped and started, or refresh her recollection as to what point in the interviews the taping was stopped and restarted. Mora and Rangel objected to the tapes being played for the jury because Lopez referenced information about gang membership during the tapes, and the jury was not voir dired regarding gang affiliation issues. In fact, the interview contains just three references to gangs. Only one reference relates to Mora, and none to Rangel. In the single reference to Mora, Lopez responded to a question, "what gang [unintelligible]," with the words "Uhm, Joker," indicating Mora. Lopez was then asked another unintelligible question and responded, "uhm, my friends over there." The court concluded the tape could be played because any linkage to Mora's gang affiliation the jury could discern from that exchange could be resolved via instruction.

Mora and Rangel also objected to the tapes' introduction because they contained hearsay statements and were unduly prejudicial. Specifically, Mora and Rangel alleged that Lopez disclosed that Mora had suffered past incarceration and that she suggested that Mora had a propensity toward violence. The court clarified that the portion of the tape referring to Mora's propensity toward violence had already been read to the jury in the course of Lopez's cross-examination, and that it was less sensible to try and exclude portions of the tape in light of the overall purpose of determining whether and when the taping was stopped and restarted.

The trial court permitted the prosecution to play the tapes. The court also provided a transcript of the tapes to the jurors to follow along as they listened, although the transcript was not admitted into evidence or provided to the jury for deliberation. The court instructed Lopez to note any instance of the tape being stopped and started. She was unable to do so.

Mora and Rangel contend the taped statements were highly prejudicial because they contained hearsay statements referencing, among other things, Mora's propensity for violence, gang association, and Mora's previous incarceration. The court's determination that the probative value outweighed any prejudice resulting from the statements was not arbitrary. Indeed, the parties engaged in a lengthy colloquy about the tapes' admission, and the court admonished the jury to disregard any hearsay the taped statements might contain and consider the tapes only in connection with Lopez's allegations regarding coercion. While courts must tread carefully with regard to propensity for violence and gang evidence in light of the inherently prejudicial nature of such information ( People v. Williams (1997) 16 Cal.4th 153 , 193, 66 Cal.Rptr.2d 123 , 940 P.2d 710 ), the court's admission of the taped statements here, with their minimal reference to gangs and little tying gang participation to Mora, Rangel, or the crimes at issue, was not an abuse

After this colloquy, the court spoke with counsel out of Juror No. 7's presence. The prosecution noted that there never had been an offer of 25-to-life on the table. The court clarified that the issue is not whether an offer had been made, or an agreement reached, but whether the juror could sit. Rangel requested that the juror be excused because, whether or not an offer had been made, the juror believed an offer was declined. Rangel argued that the existence of an offer suggested that Mora, Rangel, or both, had committed the crime for which they stood accused and the juror might have believed the offer should have been accepted. This was particularly true for Juror No. 7, Rangel argued, because her jury questionnaire revealed that she believed that once an individual was found guilty of a capital offense and sentenced to death, that sentence should be "carried out" lest too "much time [be] wasted on the criminals."

Mora did not ask that the juror be removed, but requested that audience members be instructed to refrain from making statements about the case. Rangel echoed the request that family members be admonished "not to have contacts with anybody."

The court denied Rangel's request to excuse Juror No. 7, concluding that the juror properly addressed the issue at the first available opportunity and was "adamant about her ability to set [the conversation] aside." The court noted that "whether there was an offer or not isn't anything anyone can consider." The court noted a death penalty case raised less concern than a case in which the potential sanction would be unknown by the jury.

The court advised all audience members in the courtroom, whether they were there

In claiming the court's examination was inadequate, Rangel alleges only that the court failed to assess the effect, if any, of Juror No. 7's conversation with the mother on the other jurors. We note at the outset that Rangel was given an opportunity to question Juror No. 7 after the court completed its inquiry, and Rangel failed to raise any questions regarding the impact on other jurors of Juror No. 7's contact with the mother. Rangel did not ask if Juror No. 7 discussed the encounter with any other juror. Assuming Rangel's argument is not forfeited via his counsel's own failure to examine Juror No. 7 as he now claims was compelled, we nevertheless conclude that the trial court did not err by declining to examine the effect, if any, of Juror No. 7's conversation with the mother on other jurors.

A court must hold a hearing if a juror's ability to perform his or her duty is called into question. ( People v. Keenan , supra , 46 Cal.3d at p. 532, 250 Cal.Rptr. 550 , 758 P.2d 1081 .) The

Precisely what constitutes " 'actual bias' " of a juror may vary somewhat depending on the particular circumstances of the case. ( People v. Nesler , supra , 16 Cal.4th at p. 580, 66 Cal.Rptr.2d 454 , 941 P.2d 87 .) The United States Supreme Court has explained that bias, or impartiality, is a state of mind rather some specific course of conduct. ( United States v. Wood (1936) 299 U.S. 123 , 145-146, 57 S.Ct. 177 , 81 L.Ed. 78 .) In assessing

b. Discussion

The parties agree that accessory after the fact is, as the court noted, a lesser related offense to murder, not a lesser included offense. ( People v. Majors (1998) 18 Cal.4th 385 , 408, 75 Cal.Rptr.2d 684 , 956 P.2d 1137 .) A trial court is not obliged to instruct a jury on lesser related offenses even if requested, as Mora concedes. ( People v. Birks (1998) 19 Cal.4th 108 , 112-113, 77 Cal.Rptr.2d 848 , 960 P.2d 1073 ( Birks ).) Mora argues that Birks is distinguishable from the instant case in two respects. First, Mora contends that the failure to instruct here unfairly weights the instructions given in the

Mora and Rangel argue the evidence was insufficient to demonstrate their intent to permanently deprive the victims of their property. Reviewing the evidence in the light most favorable to the verdict, as we must, we conclude-narrowly-that the record discloses solid, credible, and reasonable evidence of Mora and Rangel's guilt of attempted robbery and of felony murder based on attempted robbery. ( People v. Boyer , supra , 38 Cal.4th at p. 480, 42 Cal.Rptr.3d 677 , 133 P.3d 581 .) Credible testimony was presented that Mora and Rangel asked the victims for their wallets. As Mora acknowledges, this evidence alone is sufficient to convict a person of attempted robbery "in the appropriate case." Mora argues more evidence was needed here, and no more evidence was adduced. But that is not true. Encinas and Urrutia each were permitted to take steps to comply with the requests for their wallets. Each verbally responded to the requests for their wallets and moved their bodies in an effort to retrieve their wallets to hand to Mora and Rangel before being shot. Urrutia's wallet was found in an open and apparent location in the 4Runner. From these facts a reasonable jury could conclude that Mora and Rangel intended to deprive the victims of their wallets.

Some evidence cuts in the other direction. The wallets were not taken from the victims. Before asking the victims for their wallets, Rangel asked Encinas

This case is not so stark. The question is certainly close, but there is a great deal more support for the jury's verdict here than there was in Green or People v. Morris . The concurring and dissenting opinion concludes otherwise, arguing "[t]he facts do not support a finding that defendants murdered their victims 'in order to advance' a robbery." (Conc. & dis. opn., post , 235 Cal.Rptr.3d at p. 159, 420 P.3d at p. 958, quoting Green , supra , 27 Cal.3d at p. 61, 164 Cal.Rptr. 1 , 609 P.2d 468 .) On this

Of course, CALJIC No. 8.80.1 also contained instructional error because it improperly permitted the jury to find the multiple murder special circumstance true if it found defendants acted with reckless indifference to human life as major participants in an attempted robbery-in the alternative to concluding defendants intended to or actually killed one of the victims. (See Covarrubias , supra , 1 Cal.5th at p. 929, 207 Cal.Rptr.3d 228 , 378 P.3d 615 .) As we explained in Covarrubias , "an instructional error in this context is harmless under Chapman however, 'when, beyond a reasonable doubt, it did not contribute to the verdict.' [Citation.] ... [T]his standard may be met when we are able to conclude that the jury necessarily found an intent to kill under other properly given instructions, or when evidence of the defendant's intent to kill is overwhelming and the jury ' "could have had no reasonable doubt" that the defendant had the intent to kill.' " ( Covarrubias , supra , 1 Cal.5th at p. 929, 207 Cal.Rptr.3d 228 , 378 P.3d 615 .) In Covarrubias , we concluded that defendant both intended to kill and was an actual killer. ( Ibid. ) But we need not find both to be true. Pursuant to the multiple murder special circumstance standard previously articulated, it is sufficient that we find Mora and Rangel were each the actual killer of one victim and that they were convicted of more than one count of murder, at least one of which was first degree. The jury necessarily found each defendant actually killed the victim he shot, and it convicted each defendant of two counts of first degree murder. The evidence supporting the jury's true finding of the multiple murder special-circumstance is overwhelming. So we hold the instructional error was harmless. (See ibid. )

9. First Degree Murder Instructional Error

Mora and Rangel contend that the first degree felony murder and malice-murder instructions were erroneous, and their convictions must be reversed, because the information charged them only with second-degree malice-murder pursuant to section 187. They argue that it was therefore error to instruct the jury that it could convict of the uncharged crime of first degree

11. Juror Unanimity Regarding Theory of First Degree Murder

Mora and Rangel argue the trial court erred by failing to require that the jury unanimously agree on a theory of first degree murder before returning guilty verdicts for that crime. As they acknowledge, this court has repeatedly rejected similar claims. (See People v. Nakahara (2003) 30 Cal.4th 705 , 712-713, 134 Cal.Rptr.2d 223 , 68 P.3d 1190 ; see also People v. Sattiewhite (2014) 59 Cal.4th 446 , 479, 174 Cal.Rptr.3d 1 , 328 P.3d 1 .) Mora and Rangel posit that recent United States Supreme Court case law warrants our reconsideration of this precedent, but rely on the high court's nearly twenty-year-old decision in Apprendi , supra , 530 U.S. 466 , 120 S.Ct. 2348 . We have far more recently affirmed our long-standing rule that juror unanimity regarding the theory of first degree murder is not required. (See People v. Grimes (2016) 1 Cal.5th 698 , 727-728, 207 Cal.Rptr.3d 1 , 378 P.3d 320 .) Indeed, over a decade ago, we concluded that there is "nothing in Apprendi that would require a unanimous jury verdict as to the particular theory justifying a finding of first

13. Cumulative Guilt Phase Error

Mora and Rangel contend reversal is warranted because of the cumulatively

We review a trial court's evidentiary rulings for abuse of discretion. ( Gutierrez , supra , 45 Cal.4th at p. 819, 89 Cal.Rptr.3d 225 , 200 P.3d 847 .) Such abuse will be found where a

2. Instructional Error

Mora and Rangel raise a host of instructional error claims, each of which this court has previously rejected. Mora and Rangel requested the jury be instructed that regarding death as a less severe penalty than life would constitute misconduct, which the trial court refused. As this court has consistently concluded, a trial court's refusal of this special instruction does not constitute error, especially because " ' "the penalty trial itself and the jury instructions given, particularly CALJIC No. 8.88, make clear that the state views death as the most extreme penalty." ' " ( People v. Contreras (2013) 58 Cal.4th 123 , 170, 165 Cal.Rptr.3d 204 , 314 P.3d 450 .)

Mora and Rangel also requested the jury be instructed that drug or alcohol intoxication constitutes a mitigating factor only, not an aggravating factor. The court declined to give this proposed instruction to avoid confusing the jury. As Mora and Rangel acknowledge, there is no requirement to specify which factors are aggravating and which are mitigating. ( People v. Farnam , supra , 28 Cal.4th 107 , 191, 121 Cal.Rptr.2d 106 , 47 P.3d 988 .) They contend that the issue was confused by the

5. Mitigating Evidence

Mora argues that the trial court erred by failing to require that the prosecution disclose the identity of a rebuttal witness, depriving Mora of an

The court ruled any mitigating evidence regarding Mora's status as a "module trustee" was admissible, but expressly noted that it might open the door to rebuttal evidence. The prosecution would be restrained in how far to take that rebuttal, but evidence of "less than positive" "jail behavior" would be admissible. Mora decided against calling the witnesses who would have testified regarding his "module trustee" status, and Mora presented no further evidence in mitigation.

Even if the prosecution's failure to disclose its rebuttal witness was erroneous, any such error was harmless because there is no reasonable possibility that the error affected the verdict. ( People v. Gonzalez (2006) 38 Cal.4th 932 , 960-961, 44 Cal.Rptr.3d 237 , 135 P.3d 649 .) "[T]o find prejudice, we must find both (1) a reasonable possibility defense counsel would have presented the mitigating evidence ... and (2) a reasonable possibility the verdict would have been different had defendant presented the mitigating evidence." ( Id. at p. 961, 44 Cal.Rptr.3d 237 , 135 P.3d 649 .) The evidence would have shown, at most, that Mora adjusted well to a custodial setting, becoming a more rule-abiding person. That evidence would have been tempered by evidence presented in aggravation that Mora committed an assault in a different custodial setting. Because the

8. Alleged Juror Misconduct

a. Background

Following the penalty verdict, Mora moved for a new penalty trial, arguing that

9. Other Challenges to California's Death Penalty Law

Mora and Rangel raise a number of challenges to California's death penalty law, each of which they acknowledge we have previously rejected. While Mora raises each claim for exhaustion purposes only, Rangel contends that even if each claim has been separately rejected, we have not considered these challenges cumulatively, and doing so reveals an overbroad sentencing scheme lacking in procedural safeguards. Not only is Rangel incorrect in this regard (see People v. Simon (2016) 1 Cal.5th 98 , 150, 204 Cal.Rptr.3d 380 , 375 P.3d 1 ( Simon ) ), but because we reject each challenge to California's death penalty sentencing scheme, we also find no basis to conclude that the challenges collectively warrant invalidating the scheme.

Section 190.2 is not impermissibly broad in violation of the Fifth, Sixth, Eighth, or Fourteenth Amendments to the United States Constitution for