People v. Mitchell

There were no customers in the dealership at the time. Payan and Bizzotto both testified that they saw Lopez meet Mitchell at the entrance of the dealership office. Mitchell repeatedly asked Lopez where Small was. Lopez replied that Small had left to go to work. Both Payan and Mawikere

On the next day, August 9, 2005, Mitchell went to the Del Mar apartment complex in San Bernardino. He was at Tracy Ruff's apartment, where he and another person were smoking marijuana and cigarettes. Suddenly, Mitchell pulled out his gun and fired it into the air six or seven times. Then Mitchell walked out in front of the apartment complex, waving his gun in the air. A nearby resident, Patricia Conger, saw Mitchell pointing his gun at other cars, people, and houses. Around the same time, another nearby resident, James Morrison, was outside his house working on a car and heard several gunshots. He then saw Mitchell waving a gun, so Morrison ran into his house.

Ruff followed Mitchell to the street and saw Mitchell wave his gun in the air and say, "I killed the devil." Ruff told Mitchell that the police were going

(2) August 9, 2005 Firing of Gun

The prosecution then presented evidence about the events at the Del Mar complex on August 9, 2005. Around 3:00 p.m., Mitchell was in the middle of 19th Street with a gun. Brenda Wierenga and David Roark were in a car on the street at the time. Wierenga saw Mitchell pointing a gun at her and ducked under the steering wheel. Mitchell fired the empty gun five to six times at the car's passenger side where Roark was seated. Mitchell made a number of threatening and racially charged statements at Wierenga and Roark, such as: "Hey, anybody want to come out here and fight me? We can get down right now"; "All you whites and Mexicans stay inside"; and "Where is all my n-----?" As Wierenga drove the car away, Mitchell said, "See y'all don't want none." Mitchell then pointed his gun at the sky, took out the clip, and pointed it at his head and said, "See, I'll even shoot myself." He also said to himself, "Go back inside. You all need to go back inside. The devil is talking to me."

Armando DeSantiago, who worked for Federal Express, was delivering a package on 19th Street when he heard gunshots. He testified he saw Mitchell in the middle of the street pointing his gun indiscriminately and yelling, "I'm the devil. I'm going to shoot everybody. Just come out wherever you are." Mitchell saw DeSantiago, pointed the gun at him, said, "I'm going to kill you" and to "get out of there"; Mitchell then pulled the trigger three times from a short distance away. In fear, DeSantiago hid behind his truck.

Several witnesses testified about the impact of Patrick Mawikere's murder on their lives. Patrick's father, John Mawikere, testified about his son. Patrick had an apartment with his brother Sandy, but often visited his parents on his

2. Mitigation Evidence

(a) Mitchell's Family and Childhood

Mitchell's mother, Kathy Joiner, was 16 years old when she married Mitchell's father, Louis Mitchell, Sr. Mitchell, the first of their three children together, was born in 1970. Mitchell's father returned from service in the Marines in 1971. Mitchell's parents had a tumultuous marriage and separated three times before their divorce in 1975.

Mitchell and his younger brother, Dante Mitchell, were ages six and five, respectively, when their father went to jail. Mitchell's uncle, John Mitchell, and his wife took Mitchell and Dante in and cared for them. They stayed with John for about four and a half months until the state placed them in the foster system. John described Mitchell's father as an "absentee dad," even to this day. John said that Mitchell's parents were both very young

Regarding PCP, Dr. Abrams said the drug is unlike almost any other abused drug because it makes people catatonic, insensible, and excitable. Dr. Abrams stated his opinion that the level of Mitchell's drug test administered at the time of his arrest - PCP in the amount of 11 nanograms per milliliter - indicated Mitchell most likely smoked a substantial amount of PCP within the 24 to 72 hours before his arrest. Dr. Abrams explained that Mitchell's blood level of PCP and his irrational, violent, senseless, and out-of-control behavior suggested that after noon on August 8, 2005, Mitchell's behavior was strongly influenced by the effects of PCP. Dr. Abrams noted that one side effect of PCP is that it prevents the formation of memories. Dr. Abrams reported that

2. Analysis

A claim of instructional error is reviewed de novo. ( People v. Cole (2004) 33 Cal.4th 1158 , 1210, 17 Cal.Rptr.3d 532 , 95 P.3d 811 .) An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law. ( People v. Posey (2004) 32 Cal.4th 193 , 218, 8 Cal.Rptr.3d 551 , 82 P.3d 755 .) In reviewing a claim of instructional error, the court must consider whether there is a reasonable likelihood that the trial court's instructions caused the jury to misapply the law in violation of the Constitution. ( Estelle v. McGuire (1991) 502 U.S. 62 , 72 & fn. 4, 112 S.Ct. 475 , 116 L.Ed.2d 385 ; People v. Lucas (2014) 60 Cal.4th 153 , 287, 177 Cal.Rptr.3d 378 , 333 P.3d 587 .) The challenged instruction is viewed "in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner." ( People v. Houston (2012) 54 Cal.4th 1186 , 1229, 144 Cal.Rptr.3d 716 , 281 P.3d 799 .)

Preliminarily, because Mitchell failed to object below, his state law claims asserting error on the instructions have been forfeited. (See People v. Bolin (1998) 18 Cal.4th 297 , 327, 75 Cal.Rptr.2d 412 , 956 P.2d 374 .) But failure to object to instructional error will not result in forfeiture if the substantial rights of the defendant are affected. (§ 1259; People v. Lucas (2014) 60 Cal.4th 153 , 287, 177 Cal.Rptr.3d 378 , 333 P.3d 587 .) Here,

B. CALJIC No. 8.73.1 Instructional Error

1. Background

Mitchell next contends that the trial court erred in refusing to instruct the jury pursuant to CALJIC No. 8.73.1. On August 3, 2006, at the guilt phase jury instruction conference, defense counsel requested that the trial court give CALJIC No. 8.73.1. That instruction states: "A hallucination is a perception that has no objective reality. [¶] If the evidence establishes that the perpetrator of an unlawful killing suffered from a hallucination which contributed as a cause of the homicide, you should consider that evidence solely on the issue of whether the perpetrator killed with or without deliberation and premeditation." ( CALJIC No. 8.73.1.)

Without immediately deciding the question, the trial court first noted that there was no medical evidence that Mitchell was hallucinating, but that there was evidence that Mitchell was "yelling about shooting the devil" and that Armando Torres had

The fact that Mitchell called Armando "devil" does not alone provide sufficient

The last six paragraphs of CALJIC No. 2.20 may be omitted based on the evidence presented at trial. In discussion with counsel, the trial court reviewed whether evidence supported the inclusion of any of the six bracketed paragraphs in the instruction. The trial court stated that "no witness had a felony conviction," defense counsel agreed, and the prosecutor remained silent. As a result, the trial court fashioned an instruction, ultimately delivered to the jury, which eliminated the last six paragraphs of the pattern

The jury is not required to unanimously find that certain aggravating factors warrant the death penalty under the federal Constitution, and the equal protection clause does not compel a different result. ( People v. Enraca (2012) 53 Cal.4th 735 , 769, 137 Cal.Rptr.3d 117 , 269 P.3d 543 ; People v. Casares (2016) 62 Cal.4th 808 , 854, 198 Cal.Rptr.3d 167 , 364 P.3d 1093 .) The court is also not required to instruct the jury that it need not unanimously find particular facts in mitigation. ( People v. Cage (2015) 62 Cal.4th 256 , 293, 195 Cal.Rptr.3d 724 , 362 P.3d 376 ( Cage ).)

CALJIC No. 8.88 does not improperly instruct the jury that a verdict of death is required if the factors in aggravation outweigh the factors in mitigation. ( People v. Arias (1996) 13 Cal.4th 92 , 170-171, 51 Cal.Rptr.2d 770 , 913 P.2d 980 .)

The use of adjectives like "extreme" and "substantial" in the list of mitigating factors in section 190.3 does not act as a barrier to the jury's consideration of mitigating evidence in violation of the federal Constitution. ( People v. McKinnon (2011) 52 Cal.4th 610 , 692, 130 Cal.Rptr.3d 590 , 259 P.3d 1186 ; People v. Avila (2006) 38 Cal.4th 491 , 614-615, 43 Cal.Rptr.3d 1 , 133 P.3d 1076 .)

. Guilt Phase

1. Prosecution Evidence

(a) Mitchell and Small's Visit to Car Dealership on August 8, 2005

In August of 2005, Mitchell and Dorene Small were living together in an apartment in Rialto, along with Small's five children and three of Mitchell's children. Small had recently been in a car accident and received a settlement from her insurance company. She intended to use the settlement proceeds to buy another car.

On August 8, 2005, after Small picked up the settlement check from her insurance company, she and Mitchell went to California Auto Specialist (CAS), a used car dealership in Colton, to shop for a replacement vehicle. They arrived at CAS between 10:00 and 10:30 in the morning in Small's white Chevrolet Lumina. Small testified that although she owned the Lumina, it was often driven and used by Mitchell.

At first, they were helped by CAS salesman Juan Bizzotto. Because Bizzotto could not speak English well, he referred them to his colleague, Mario Lopez. Ultimately, Lopez helped Small complete paperwork to purchase a used Dodge Durango truck.

When Small arrived home, Mitchell was not there, and she did not see her Chevy Lumina. Small noticed that Mitchell had left his cell phone, which was unusual for him. Small then left for work, arriving there around 2:30 p.m. But she left shortly thereafter because she was not feeling well, and she returned home around 4:00 p.m.

Around 2:00 p.m., Mitchell called Christina Eyre, who at the time of trial was Mitchell's girlfriend. Eyre testified that she and Mitchell had been in a relationship for about two years, including the time that Mitchell was together with Small. Their conversation lasted less than five minutes. Mitchell mentioned to Eyre that he and Small had been "screwed over" in a car deal; according to Eyre, Mitchell did not say he was mad, but noted that Small had insisted upon buying the defective Durango. Eyre further stated that she heard Romen Williams, also known as "Chrome," and Small's son Bell in the background.

(b) Shooting at the Car Dealership

Between 2:15 p.m. and 2:30 p.m. on August 8, 2005, Payan, Lopez, and Patrick Mawikere

Bizzotto testified that he saw Mitchell push Lopez back from the front door of the dealership as Lopez was attempting to escort him outside, pull out a gun, and shoot Lopez in the abdomen. Bizzotto then saw Payan jump through a window while Mitchell shot at Payan. When Mawikere tried to intervene, Bizzotto saw Mitchell point his gun at Mawikere, and Mawikere asked Mitchell not to shoot him. Mitchell then shot Mawikere in the head and turned toward Bizzotto. Bizzotto attempted to hide underneath his desk, and Mitchell started shooting at him. Bizzotto was shot in the right arm and the right thigh. Mitchell fired another seven times at Bizzotto, causing Bizzotto to suffer shrapnel wounds to his left leg. After he heard two additional shots, the sound of the door opening, and a car being driven away, Bizzotto emerged from underneath his desk. He saw that Lopez was injured and told him to remain calm. He saw that Mawikere had been shot and was unresponsive. Bizzotto instructed his wife, who was still on the phone, to call 911. Bizzotto also called 911 himself.

John Vasquez was driving by the dealership around 2:30 p.m., when he saw Bizzotto come out of the dealership with blood running down his arm. He testified that Bizzotto was staggering and being assisted by another man who was holding his arm up. Vasquez noticed a broken window and thought that Bizzotto had fallen through it, so he stopped to offer help. Bizzotto told Vasquez that he had been shot by two black men and that he feared for his life.

Responding to the 911 calls, officers from the Colton Police Department arrived at CAS at approximately 2:45 p.m. They found that a window in front

Just before 3:00 p.m., Rosalba Villaneda, Armando's sister-in-law and a resident of the Yellows, heard several gunshots being fired. She testified that about five minutes

Officer Thomas Adams arrived on the scene, and Mitchell immediately started yelling at him. Officer Adams testified that he made numerous commands that Mitchell ignored. Instead of complying, Mitchell kept approaching the officer and said, "My gun is bigger than yours. Fuck it. I'll just take your gun." Officer Adams then shot Mitchell in the leg to stop him from advancing.

Officer Kevin Jeffery testified that Mitchell was agitated when officers were handcuffing him and in the ambulance on the way to the hospital. During this time, Mitchell told Officer Joshua Cogswell that if he was going to die, the officer was going to go with him. He also told Officer Jeffery, "God would not judge him for killing the devil."

(e) Forensic Evidence

Criminalist Heather Harlacker located one fired cartridge case outside the CAS office building and 10 more fired cartridge cases and bullet fragments inside the building. According to Harlacker's expert testimony, all 11 cartridge casings were from the same nine-millimeter caliber gun. Seven cartridge casings, all nine-millimeter casings of the same brand, and nine bullet fragments were collected at the Yellows. At the Del Mar complex crime scene, a forensic technician recovered a nine-millimeter gun containing an empty magazine concealed in the wheel well of a van, with Mitchell's DNA on it. Criminalist Kerri Heward concluded that six of the seven cartridge casings had definitely been fired from the same nine-millimeter gun retrieved, and the other cartridge probably was. The technician also recovered a second empty nine-millimeter magazine inside the pocket of Mitchell's pants. Furthermore, Heward opined that the casings recovered from the car dealership, the Yellows, and the Del Mar complex were all fired from Mitchell's gun.

2. Defense Evidence

The defense case focused on inconsistencies in the witness's testimony and the lack

1. Prosecution Evidence in Aggravation

(a) Criminal Activity Involving Force or Violence

(1) July 10, 1998 Carjacking

The prosecution presented evidence that Mitchell was involved in a carjacking on July 10, 1998. Around 5:30 p.m. on that day, Rebecca Davis and Lupe Chavez were parked at a store in San Bernardino, talking to each other. Chavez was in the driver's seat, Davis was in the passenger seat, and Davis's infant daughter was sitting in between them. Davis noticed two black males talking to each other. One of them approached the driver's side,

(3) Attempted Murder of Jerry Payan

Prior to being shot, Payan was a very active person. He testified that he has lost some function in his right arm and is still suffering from the injury to his knee. He testified that he was frustrated and angry because he could no longer do things like hug his wife, hold his children, and play sports with his son. Payan's wife, Doris Payan, described the changes in their lifestyle since the shooting. Instead of spending days off taking their son to the amusement park and doing other activities, they spent that time going to therapy. She further testified that Jerry was no longer the calm person he once was; he used to be jovial and joke with people, but he became easily agitated. He was also uneasy at home; he did not feel safe and often worried that he would not be able to protect her if something happened.

(4) Attempted Murder of Juan Bizzotto

When Bizzotto was shot, he had one-year-old twins. He testified that the injury

Beatriz Lopez, Susano's older sister, recalled that Susano was a good child. Whenever she went to their mother's house, Susano was often playing with the kids. She recalled that when she was cooking, Susano would come up from behind her, hug her, and say, "I love you, sis." She said that she misses everything about Susano and that they had a great relationship. She also testified that this last Christmas, her mother did not want to be with the family and instead spent time alone in her room.

Armando Torres testified that he missed Susano's smile, how Susano used to treat him, and the time they spent hanging out together. He said Susano was a nice person and a good kid. Armando had not returned to the Yellows since the shootings because he did not want to remember it. Armando testified that when he thought about his brother, he used drugs to make his thoughts go away. After the shootings, Armando's methamphetamine use became worse; he testified that he kept "messing up," resulting in further arrests.

Wendy Williams was Mitchell's stepmother but had been separated from Mitchell's father for about 22 years. She testified that Mitchell and Dante had lived with her and Mitchell, Sr., on two occasions for relatively short periods of time when they were younger. She further testified that Mitchell, Sr., had poor parenting skills and that he did not interact with any of his children. Williams last saw Mitchell when he was 17 years old.

Lashona Blue, with whom Mitchell has three children, also testified. Their children were 11-year-old twins Hasan and Amena, and eight-year-old Mustafa. Blue and Mitchell met in 1994 and lived together in Los Angeles for three to four years. She testified that Mitchell loved their children, was a good father, and never abused her in any way. Blue said she had some great times with Mitchell and their children, and that he was never vicious. She stated that her sons were having problems and acting out because of their father's situation.

Mitchell's daughter Amena testified that she loved her father but knew he was in a lot of trouble. She promised she would stay in touch with him and send him letters.

(b) Mitchell's Criminal and Mental Health History

Mitchell was convicted in August 1988 for unlawfully taking a motor vehicle and placed on felony probation. In December 1989, he was convicted of possession of cocaine for sale. He was arrested in March 1990 for possession of cocaine and convicted in August 1990. Mitchell was arrested in August 1992, and ultimately convicted in November 1992 of possession of cocaine base for sale. His probation for the carjacking offense in 1988 was revoked, and he was sentenced to four years in prison. In December 1996, Mitchell was convicted of possession of marijuana for sale and granted probation. He was convicted of possession of PCP in July 2000, sentenced to two years in prison, and released in January 2002. Thereafter, he was arrested again for possession of cocaine base for sale, convicted in December 2002, and sentenced to prison for four years.

Karen Hofmeister of the University of California, San Diego psychiatry department interviewed Mitchell in June 2004 at the California Institute for

Dr. Alan Abrams examined Mitchell and testified as an expert on psychopharmacology. He also reviewed Mitchell's childhood school records and concluded they were consistent with Mitchell growing up in a highly unstable, abusive, and neglectful home. Mitchell and his siblings were in and out of foster care and group homes because of their mother's abuse and neglect and their father's inability to care for them. As a child, Mitchell tested average

A

. CALJIC Nos. 8.71 and 8.72 Instructional Error

1. Background

Mitchell contends that his convictions for first degree murder, with the special circumstance finding, should be reversed because the jury was instructed incorrectly. Mitchell was found death-eligible based on the multiple-murder special circumstance, which required that he be convicted of at least one first degree murder and one second degree murder in the same proceeding. (§ 190.2, subd. (a)(3).) Mitchell was charged with three murders during the two incidents - first the killing of Lopez and Mawikere at CAS, and thereafter the killing of Susano Torres at the Yellows. The prosecution proceeded solely on the theory that all three homicides were premeditated and deliberate first degree murder. That is the only theory of first degree murder on which the jury was instructed.

At the close of the guilt phase, the trial court gave the jury instructions on voluntary manslaughter, first degree murder, and second degree murder, as the various possible theories of crimes that the evidence at trial supported. The trial court then gave the jury the 1996 revised versions of CALJIC Nos. 8.71 and 8.72. These instructions concern how the jury is to proceed if it finds reasonable doubt with respect to a greater offense.

In support of his claim, Mitchell cites

Mitchell's further arguments that CALJIC Nos. 8.71 and 8.72 improperly shifted the burden from the prosecution or set first degree murder as the default finding are similarly unavailing. With regard to the prosecution's burden of persuasion, the jury was instructed with CALJIC No. 2.61, which made clear that the prosecution must prove beyond a reasonable doubt every element or charge against Mitchell. Also, in addition to CALJIC Nos. 8.71 and 8.72, the jury was instructed with CALJIC No. 8.74, which explains the determinations that the jury must unanimously make in order to render a guilty verdict for first degree murder: "Before you may return a verdict in this case you must agree unanimously

We find no error in the jury instructions because when they are viewed as a whole,

Mitchell argues that there was evidence that he was suffering from hallucinations during the shootings of August 8, 2005, evidenced by the fact that he called Armando "devil" and that he was behaving erratically the next day, including making statements that he had killed the devil. Accordingly, he claims that the jury should have been instructed and consequently could have determined that there was no deliberation or premeditation in the homicides. Mitchell claims that the trial court's denial of his requested instruction violated state law and his due process right to a fair trial and a meaningful opportunity to present a defense.

2. Analysis

In general, a trial court must give a requested jury instruction if there is substantial evidence in the record supporting such an instruction. (See People v. Cunningham (2001) 25 Cal.4th 926 , 1008, 108 Cal.Rptr.2d 291 , 25 P.3d 519 [so holding with respect to instructions on lesser included offenses].) "In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.' " ( People v. Salas (2006) 37 Cal.4th 967 , 982, 38 Cal.Rptr.3d 624 , 127 P.3d 40 .) "On appeal, we likewise ask only whether the requested instruction was supported by substantial evidence - evidence that, if believed by a rational jury, would have raised a reasonable doubt as to" an element of the crime in question. ( People v. Mentch (2008) 45 Cal.4th 274 , 288, 85 Cal.Rptr.3d 480 , 195 P.3d 1061 ).

Here, there was not sufficient evidence to warrant the trial court giving the requested instruction at the time of the request. Mitchell points to only two facts that could support the requested instruction: (1) that he called Armando Torres "devil" before

Mitchell's erratic behavior on the day after the shootings also does not show he was suffering from hallucinations. Even assuming Mitchell was under the influence of PCP on August 9, 2005, both parties agree that there is no medical evidence in the record to indicate that he was under the influence on the day of the shootings. Mitchell also presented no evidence that he had suffered hallucinations during any prior use of PCP. Mitchell notes he was "crazily" shooting his gun into the air, screaming about killing the devil and being the devil, and saying that God would not judge him for killing the devil. But Mitchell's indiscriminate shooting into the air does not imply he was hallucinating, and his usage of the word "devil" does not imply that he was in fact perceiving a "devil" as opposed to simply referring to the concept or referring to Armando by a nickname.

The cases Mitchell relies upon to support this claim offered significantly more compelling evidence that a defendant suffered from hallucinations, including medical evidence. (See People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437 , 1444, 38 Cal.Rptr.3d 404 [medical evidence showed defendant was diagnosed with major depression with "psychotic features, including delusions," and defendant testified that he suffered specific hallucinations in which he witnessed the victim transforming into the devil]; People v. Duckett (1984) 162 Cal.App.3d 1115 , 1118, 209 Cal.Rptr. 96 [medical expert testified that defendant suffered from chronic paranoid schizophrenia and that defendant experienced " 'command hallucinations ' " in an "acute phase" of his illness at the time of the killing]; People v. Pennington (1967) 66 Cal.2d 508 , 512, 58 Cal.Rptr. 374 , 426 P.2d 942 [medical expert testified, in the context of assessing defendant's competence for trial, that defendant was suffering from hallucinations indicative of schizophrenia and stated that "he had observed defendant go into a fit of 'psychotic furor' "].)

It is of course possible that Mitchell was hallucinating, but a mere possibility is not enough. There must be substantial evidence to warrant the instruction. In light of the absence of evidentiary support for Mitchell's argument, coupled with the support for the alternative explanation, we believe no reasonable jury would have credited Mitchell's explanation. The trial court's refusal to instruct the jury with CALJIC No. 8.73.1 did not deny Mitchell his due process rights to a fair trial or a meaningful opportunity to present a defense.

Because we reject Mitchell's claims of error at the guilt phase, there is no cumulative error requiring reversal of his convictions.

A

. CALJIC No. 2.20 Instructional Error

1. Background

Mitchell contends the trial court erred at the penalty phase by failing to instruct the jury properly on witness credibility. At the jury instructions hearing for the penalty phase, the trial court discussed CALJIC No. 2.20, the jury instruction addressing what jurors may consider in assessing

It appears that the trial court and the parties failed to recall that witness Armando Torres, who testified for the prosecution at the guilt phase and would testify at the penalty phase, had admitted that he had been convicted of felony robbery. As a result, the penalty phase jury was not instructed that a witness's prior conviction of a felony bore on his credibility, as set forth in CALJIC No. 2.20 and CALJIC No. 2.23. Although the jury did receive the version of CALJIC No. 2.20 containing the language pertaining to felony convictions as well as CALJIC No. 2.23 at the guilt stage, the jury was specifically instructed at the penalty phase to disregard the guilt phase instructions.

Consequently, Mitchell contends the incomplete instructions denied his state and federal constitutional rights to a fair penalty trial, due process, and a fair penalty determination mandating the reversal of his death judgment. We reject this claim, as the error in failing to reinstruct on principles relating to evaluating the credibility of a witness in the penalty phase was harmless beyond a reasonable doubt.

2. Analysis

"A trial court has a sua sponte duty to 'instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case,' including instructions relevant to evaluating the credibility of witnesses." ( People v. Blacksher (2011) 52 Cal.4th 769 ,845-846, 130 Cal.Rptr.3d 191 , 259 P.3d 370 ; see also

Here, any error in the failure to instruct the jury on the impact of a felony conviction on a witness's credibility was undoubtedly harmless beyond a reasonable doubt. The jury was aware that Armando was a felon, as he testified at the guilt phase that he had a prior felony conviction for robbery. The jury was instructed that it could consider evidence from any phase of the trial, and although the jury was not specifically instructed about the impact of felony convictions on a witness's credibility, the jury was instructed that it could "consider anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witness." Thus, the jury was well appraised of Armando's felony conviction and equipped to assess Armando's credibility in light of his criminal past.

Moreover, the subject of Armando's testimony at the penalty phase was not controversial. Armando testified that he liked his younger brother and missed him. He testified that when he thinks about his brother, he uses drugs to make his thoughts go away, that his methamphetamine use has gotten worse, and that as a result he has ended up in custody. The jury was also made aware that Armando was currently in custody relating to charges involving great bodily injury, drugs, and a firearm. The fact that Armando was a convicted felon at the time of his testimony bore little relevance to the subject of his testimony about how Susano's murder had affected his life. Furthermore, given what the jury knew about Armando's drug use and criminal behavior, the fact that his prior felony conviction was not specifically called to the jury's attention had marginal relevance in negatively impacting Armando's credibility. Consequently, it is not reasonably possible that the jury would not have returned a death verdict had it been expressly told it could consider Armando's felony conviction in assessing his credibility.

B. Constitutionality of California's Death Penalty Statute

Mitchell raises several constitutional challenges to California's death penalty scheme. We have rejected these claims before, as follows, and we decline to revisit our prior holdings:

"The death penalty law adequately narrows the class of death-eligible defendants." ( People v. Boyce (2014) 59 Cal.4th 672 , 723, 175 Cal.Rptr.3d 481 , 330 P.3d 812 ; Salazar , supra , 63 Cal.4th at p. 255, 202 Cal.Rptr.3d 638 , 371 P.3d 161 .)

Consideration of the circumstances of the crime during the penalty phase pursuant to section 190.3, factor (a),

The jury need not make findings beyond a reasonable doubt that aggravating factors were present (other than Penal Code section 190.3, factor (b) or (c) evidence), that they outweighed the mitigating factors, or the factors were substantial enough to warrant a judgment of death under Apprendi v. New Jersey (2000) 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 , Blakely v. Washington (2004) 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 , Ring v. Arizona (2002) 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 , and Cunningham v. California (2007) 549 U.S. 270 , 127 S.Ct. 856 , 166 L.Ed.2d 856 . (See People v. Merriman (2014) 60 Cal.4th 1 , 106, 177 Cal.Rptr.3d 1 , 332 P.3d 1187 ; People v. Griffin (2004) 33 Cal.4th 1015 , 16 Cal.Rptr.3d 891 , 94 P.3d 1089 ; People v. Blair (2005) 36 Cal.4th 686 , 753, 31 Cal.Rptr.3d 485 , 115 P.3d 1145 .)

The federal Constitution does not require the court to instruct the jury that the prosecution has the burden of persuasion regarding the existence of aggravating factors, nor is the court required to instruct the jury that there is no applicable burden of proof. ( People v. Mendoza (2016) 62 Cal.4th 856 , 916, 198 Cal.Rptr.3d 445 , 365 P.3d 297 ;

Because we have only found one error in the proceeding - at the penalty phase regarding the trial court's failure to instruct the jury that a witness's prior conviction of a felony bore on his credibility - and because we have determined that the error was harmless beyond a reasonable doubt, we find there is no cumulative error requiring reversal of Mitchell's convictions or penalty of death.

CONCLUSION

For the reasons above, we affirm the judgment.

We Concur:

CANTIL-SAKAUYE, C.J.

CHIN, J.

CORRIGAN, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.

Mitchell left CAS, leaving Small to finalize the car purchase with Lopez on her own. There was conflicting testimony as to Mitchell's demeanor when he left Small. Payan recalled that Mitchell was angry with her over her choice. Bizzotto, on the other hand, remembered Mitchell acting "fine" during the deal, despite his disagreement with Small's decision.

Small then told Lopez that she needed to cash a check at a bank in order to make the downpayment. Lopez agreed to allow Small to drive the Durango to the bank, and Bizzotto followed Small in a separate car. On the way back to the dealership, the Durango broke down and could not be restarted. They left the Durango on the side of the road for repairs, and Bizzotto drove Small back to the dealership.

Payan then saw Mitchell pull a gun out of his pants pocket and shoot Lopez. Payan testified that Mitchell was looking at Payan while he shot

The police interviewed Payan and Bizzotto at the hospital where they were being treated for their injuries. Payan was shown photo displays of two suspects. At first, Payan was unable to cooperate because he was under the influence of morphine. Thereafter, Payan identified a photograph of Mitchell as the shooter. Bizzotto was physically unable to talk to the officer who visited him at the hospital. After his discharge from the hospital, Bizzotto was shown a display of six photographs and identified Mitchell's photograph as the person who shot him.

(c) Shooting at the Yellows Apartment Complex

The Yellows was the colloquial name given to an apartment complex in San Bernardino. On August 8, 2005, around 3:00 p.m., Armando Torres was at the complex visiting his mother and his brother Susano Torres. Mitchell had previously lived at the complex and still visited it frequently. Armando and Susano knew Mitchell from around the complex and had not had any problems with him.

On his way to a friend's apartment, Armando saw Susano speaking to Rita Ochoa through the window of her apartment. Armando told Susano that their mother was looking for him. Armando then went to his friend's apartment, where he smoked methamphetamine.

As Armando came out of his friend's apartment, Mitchell walked towards him and said, "Hey devil, let me talk to you," and repeatedly told Armando to "come here." Armando had an unusual tattoo of horns on his head. Armando testified that Mitchell appeared to be upset. Armando asked what Mitchell wanted, and Mitchell demanded that Armando come to him. Armando refused and Mitchell pulled out a gun and said, "You fucked up." Mitchell shot at Armando at least three times, hitting him once in the leg as a woman managed to pull him inside her apartment and call 911. Armando stated that he heard more shots fired about 30 seconds later.

Shortly thereafter, San Bernardino police officers arrived at the Yellows to respond to the incident. Officer James Voss saw a group of people by Torres, who was lying in a dirt area with no pulse. Voss called for medical assistance. A resident of the Yellows then directed Voss to her apartment, where he found Armando on the floor.

(b) Victim Impact Evidence

(1) Murder of Mario Lopez

Rene Lopez, one of Mario Lopez's four sons, testified about his father. Rene described Mario as a caring, happy man. He described Mario as "the best mechanic in the world. The best father. The best grandfather." Mario doted on his grandson and loved spending the holidays with Rene's family. He also loved spending time with his wife Cecelia.

Rene traveled to the hospital when he heard Mario was shot and stayed with him until he died. Since his father's death, Rene said there are "times I lose myself" when he goes through bouts of depression. Rene also misses the relationship his father had with his son.

Cecelia Lopez had been Mario's partner for nine years. She described Mario as a family man, always concerned about his children and grandchildren. She described him as a gentleman and very hardworking.

Since his death, Cecelia had to sell their house, move in with her daughter, and give up her two dogs. Cecelia said that what she missed most about Mario was his presence, his caring, and how he looked after her. For example, he used to remind her to take her medication. Furthermore, she testified that her medical problems have gotten worse since Mario was murdered due to high blood pressure and anxiety.

Payan had known Mario Lopez for over five years. He described Mario as always concerned about everybody else. He missed Mario's advice and encouragement, like when Mario would tell him not to worry about the small things.

(5) Murder of Susano Torres and Attempted Murder of Armando Torres

Rafaela Navarete testified about her sons, Susano and Armando Torres. She testified that Susano loved playing with her grandchildren and that he helped watch them. She said Susano was a happy child who loved to work with his hands; he liked to take things apart and put them back together. Navarete knew Mitchell, as he was friends with her children and would come by and ask for them. She testified that Mitchell even called her "mom." She was angry at Mitchell and did not understand why he killed Susano. As a result of the stress, she had to go to the hospital. Navarete thereafter moved from the Yellows complex. Following Susano's death, she went to the cemetery every day to visit him, where she cried and talked to him.

Dante Mitchell testified that when he was eight and Mitchell was ten, they lived with a couple named Matty and Big Jim until they moved back in with

Dr. Nuingyu Kim, a psychiatrist for the Department of Corrections and Rehabilitation, met with Mitchell on June 24, 2005, and Mitchell told him that he had stopped taking Wellbutrin. Before the meeting, Dr. Kim read a brief summary of his social background. It stated that Mitchell had a long history of being institutionalized, abused as a child, and a long history of substance abuse, including PCP. Dr. Kim was concerned that Mitchell stopped taking his medication, but Dr. Kim could not force Mitchell to take it. As a result, they agreed that Mitchell would continue to see Dr. Kim once a month in case he needed medication, but then Mitchell did not show up for his next scheduled appointment.

Parole Agent Steven Day supervised Mitchell for a short period of time and said Mitchell appeared compliant with his parole. He testified that during those three months or so, Mitchell never tested positive for any kind of narcotics. The last time he was tested was two to three days prior to his arrest for the three murders.

(c) Mitchell's PCP Use

After Mitchell's encounter with the police on August 9, 2005, Dr. Jeff Grange treated Mitchell at the hospital for a gunshot wound and psychiatric symptoms. Mitchell arrived in an almost catatonic state and then later exhibited bizarre behavior. Based on this and the events with the paramedics and law enforcement, Mitchell was tested for drugs. A presumptive urine test was positive for PCP and marijuana. It was Dr. Grange's opinion that Mitchell likely had PCP in his system and that he exhibited behavior consistent with being on PCP. An independent laboratory confirmed that Mitchell had PCP in his system.

Felix D'Amico testified as a drug recognition expert. He said that symptoms of PCP appear almost immediately after smoking it and usually peak

Review of Mitchell's health records disclosed that Mitchell had a psychiatric diagnosis of dysthymia and was prescribed a variety of antidepressants including Remeron, Paxil, Prozac, and Wellbutrin. Dr. Abrams

The given version of CALJIC No. 8.72 reads: "If you are convinced beyond a reasonable doubt and unanimously agree that the killing was unlawful, but you unanimously agree that you have a reasonable doubt whether the crime is murder or manslaughter, you must give the defendant the benefit of that doubt and find it to be manslaughter rather than murder."

Mitchell contends that the 1996 versions are flawed and that these instructions lowered

In this case, unlike in Moore , the prosecution only relied on the premeditation theory to prove the charge of first degree murder against Mitchell. We hold that the instructions as a whole made clear the role of the juror's individual judgments in deciding between first and second degree murder, and between murder and manslaughter, thereby negating any potential confusion arising from CALJIC Nos. 8.71 and 8.72.

Mitchell's principal complaint is that the instructions' reference to unanimity confused jurors into thinking that even if they had reasonable doubt as to the greater charge in the instruction, they should defer to another juror's finding of no reasonable doubt. We rejected a similar argument in People v. Salazar (2016) 63 Cal.4th 214 , 246-248, 202 Cal.Rptr.3d 638 , 371 P.3d 161 ( Salazar ). The only pertinent difference between Salazar and this case is that the trial court in Salazar instructed the jury with CALJIC No. 17.10 and omitted CALJIC No. 2.61. But Salazar

Mitchell argues that these other instructions fail to rectify the potential confusion because CALJIC Nos. 8.71 and 8.72 are the more specific instructions and thus, insofar as there was an inconsistency between CALJIC Nos. 8.71 and 8.72 and other instructions, the jury would have applied CALJIC Nos. 8.71 and 8.72. This is mistaken. Although it is true that CALJIC Nos. 8.71 and 8.72 are more specific in addressing the crimes with which Mitchell was charged, they are not more specific than CALJIC Nos. 17.40, 2.61, and 8.74 in addressing the subject matter at issue.

For each of the possible sources of confusion identified by Mitchell in CALJIC Nos. 8.71 and 8.72, the other jury instructions - CALJIC Nos. 17.40, 2.61, and 8.74 - addressed those points more specifically: As to any potential confusion about whether each juror was to exercise his or her individual judgment or defer to another juror's judgment on whether there is reasonable doubt that Mitchell committed the greater crime, CALJIC No. 17.40 made clear that jurors are required to exercise their individual judgment in making this determination. CALJIC No. 2.61 more specifically addressed whether the prosecution bore the burden of proving the elements of the greater crimes; it expressly stated that the prosecution bears the burden to prove beyond a reasonable doubt every element or charge against Mitchell. And CALJIC No. 8.74 more specifically addressed whether the jury is to treat first degree murder as the default finding; it explained that the jury must be unanimous in

On August 7, 2006, when the trial court revisited the issue, defense counsel informed the trial court that Mitchell had instructed him "not to present a psychiatric defense or a drug defense" at the guilt phase and that he had decided for tactical reasons not to oppose his client's decision. However, defense counsel stated that he was still requesting that CALJIC No. 8.73.1 be given. The prosecutor maintained that the evidence only arguably showed that Mitchell might have been under the influence of some drug on August 9,

As discussed, Mitchell's counsel assented to the trial court's formulation of CALJIC No. 2.20, omitting the bracketed language regarding a witness's prior felony convictions. Therefore, any claim of state law error has been forfeited and has not been preserved for appeal. ( People v. Bolin , supra , 18 Cal.4th at p. 328, 75 Cal.Rptr.2d 412 , 956 P.2d 374 .) That said, under section 1259, a reviewing court has the authority to review any question of law involving an instruction if the defendant's substantial rights were affected, notwithstanding a failure to preserve the issue for appeal. Thus, we will consider Mitchell's claim that the omission of the portion

"The impact of a defendant's execution on his or her family may not be considered by the jury in mitigation." ( People v. Bennett (2009) 45 Cal.4th 577 , 601, 88 Cal.Rptr.3d 131 , 199 P.3d 535 ; People v. Smithey (1999) 20 Cal.4th 936 , 1000, 86 Cal.Rptr.2d 243 , 978 P.2d 1171 [" 'Sympathy for a defendant's family is not a matter that a capital jury can consider in mitigation' "].)

The trial court need not instruct the jury that life without parole was presumed the appropriate sentence; "[t]here is no requirement jurors be instructed there is a ' " 'presumption of life' " ' or that they should presume life imprisonment without the possibility of parole is the appropriate sentence." ( People v. Parker (2017) 2 Cal.5th 1184 , 1233, 218 Cal.Rptr.3d 315 , 395 P.3d 208 .) And "[j]urors need not make written findings in determining penalty." ( People v. Valdez (2012) 55 Cal.4th 82 , 180, 144 Cal.Rptr.3d 865 , 281 P.3d 924 .)

The federal Constitution does not require intercase proportionality review among capital cases. ( Winbush , supra , 2 Cal.5th at p. 490, 213 Cal.Rptr.3d 1 , 387 P.3d 1187 ; see