Opinion
BAXTER, J. Paul Joe Carasi (defendant) and his live-in girlfriend, Donna Lee (codefendant or Lee), were charged, tried, and convicted in the same proceeding of committing two first degree murders on Mother’s Day 1995. (Pen. Code, § 187.)1 The victims were defendant’s mother, Doris Carasi (Doris), and his former girlfriend, Sonia Salinas (Sonia), the mother of his child. As to each murder count, the jury returned a lying-in-wait special-circumstance finding (§ 190.2, subd. (a)(15)), and a finding of personal use of a deadly weapon, i.e., a knife. (§ 12022.) With respect to Sonia’s murder, the jury also found true the special circumstances of multiple murder (§ 190.2, subd. (a)(3)), and murder for financial gain. (§ 190.2, subd. (a)(1).) After a joint penalty trial, the jury returned a death verdict against defendant, but not against codefendant Lee.2 The trial court denied defendant’s automatic motion to modify the penalty verdict. (§ 190.4, subd. (e).) The present appeal from the death judgment is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).)
We find no prejudicial error at defendant’s trial. The judgment will be affirmed in its entirety.
I. Guilt Evidence
A. Summary
Prosecution evidence showed that defendant and Lee planned to kill Sonia and Doris, to make the crime look like a robbery, and to place the blame on unknown third parties. The knife slayings occurred in a remote section of the [1271]parking garage at the Universal Studios CityWalk Mall in Burbank (Universal or Mall), after defendant took the victims, along with his and Sonia’s two-year-old son, to a late-night Mother’s Day meal. The child was unharmed, but defendant was found covered in the women’s blood in the garage, claiming to be a victim of the same “robbery” as the two women. Lee, who had waited in the garage for the group to return from dinner, participated in the knife attack and then drove off with defendant’s and the victims’ personal property. Lee’s getaway was frustrated, however, and the plot began to unravel, when she was forced to summon emergency medical aid from the highway for serious wounds sustained in the attack. According to the prosecution, defendant murdered the victims because he believed they were trying to keep him from his son, and because he could not afford to pay court-ordered child support to Sonia in his debt-ridden state.
B. Prosecution Case
1. The Crime Scene
Shortly after 11:00 p.m. on May 14, 1995, Mother’s Day, both the security office at Universal and a nearby sheriff’s station received reports of criminal activity in the parking garage—an area which, unlike the Mall, had no security cameras. Persons who arrived on the scene included Deputy Sheriff Tom Wilford, security officer Joseph Hildebrand, and Darren Smith, an employee in the Mall.
At trial, Smith and Deputy Wilford gave similar accounts. On the fourth floor of the garage, defendant was lying on the ground near the stairwell. He pointed to the fifth floor, and told Smith, “My kid is up there.” Defendant said something different to Wilford, who arrived moments later—“They killed them.”
Defendant was drenched in fresh blood. Wilford testified that it covered defendant “from his head to his toes,” including his face and hands. Smith recalled that defendant slipped in the blood as he moved and tried to stand.
Smith testified that after finding defendant, he climbed the stairs to the fifth floor. Smith saw bloodstains in the stairwell. He also found a large folding knife on the steps, with the blade closed and no blood on it. A short time later, in front of Officer Hildebrand, defendant spontaneously said the knife was his.
The fifth floor served as the roof of the garage, and was not itself fully covered. There, Smith, Deputy Wilford, and Officer Hildebrand saw a blue, four-door Chevrolet Caprice, later identified as defendant’s car. It was parked [1272]in the comer against the wall, out in the open air. A few other vehicles were parked on the same floor, but none was near the Caprice.
Both doors on the driver’s side of the car were open. A small boy was strapped in a car seat behind the driver’s compartment. He was crying, but seemed physically unharmed. In the presence of Smith, Deputy Wilford, and Officer Hildebrand, the child screamed “Mommy” repeatedly, and pointed towards the passenger side of the car.
There, in a small space enclosed on three sides by the car and garage walls and railing, the witnesses found two women lying in large pools of blood. They bore stab wounds and appeared to be dead. The bloody trail that Smith had seen downstairs and in the stairwell continued onto the fifth floor, near the bodies.
Deputy Wilford summoned more law enforcement support. Meanwhile, defendant arrived on the fifth floor. He paced and shook his hands at one point, and sat on the ground rocking back and forth at another point. At Wilford’s request, Officer Hildebrand watched and comforted defendant. Defendant identified the two women and the boy. Defendant indicated that he was not hurt, and did not know why he was so bloody. He denied touching the injured victims.
Defendant described the following events to Officer Hildebrand: He unlocked the car for his family after they returned from dinner. Just as he realized he did not have all of his keys, defendant was shoved from behind by someone who demanded money. Though defendant said he had no money, the assailant removed defendant’s fanny pack from his shoulder and pushed him to the ground. Defendant stood up and saw Sonia and Doris lying in pools of blood. He headed downstairs to get help. Defendant heard male voices and the victims’ screams during the attack, but could not describe the number or appearance of his assailants, or the manner in which they left the scene.
Paramedics arrived on the fifth floor of the garage a short time later. One of them, Alan Lenhart, testified that, after determining that the women were dead and the child was unharmed, he and his partner examined defendant, removing his jacket and shirt—a shirt with Disney characters on the front.3 The only visible injury was a small cut on his thumb. The cut was not bleeding and, in Lenhart’s view, could not account for all the blood on [1273]defendant. In response to questions, defendant sometimes moaned or cried out. Other times, however, he seemed calm and gave clear answers. Lenhart testified that this pattern was unusual. In his experience, traumatized persons act either withdrawn or upset, but not both. When the paramedics spoke about canceling an ambulance, defendant seemed surprised and asked whether his mother was alive.
In his exchange with Lenhart, defendant repeated much of what he had said to Officer Hildebrand, but added or changed certain details. In the later version, defendant said for the first time that he leaned inside the car to kiss Sonia, turned to go downstairs to retrieve the ignition key from the restaurant, and was grabbed by the hair from behind and sat upon after being pushed down. Contrary to his prior account, defendant also told Lenhart that the person who attacked him was not the same person who demanded money.
2. Events Preceding the Crime
In 1991, defendant and Sonia began dating. They both worked for the Bank of America (Bank) in its check processing center in downtown Los Angeles. When Sonia became pregnant, she moved into the North Hollywood apartment defendant shared with his mother, Doris. The couple continued living there after their son, Michael, was bom in January 1993.
In mid-1993, when Michael was about six months old, Sonia became quite ill. She was hospitalized for long periods during which Doris cared for Michael. After Sonia left the hospital, her relationship with defendant soured. She moved with Michael to her family’s home in West Hollywood, and brought him to visit Doris at her apartment on weekends.
Defendant disliked Sonia’s new living arrangements, and feared her family might prevent him from seeing his son. According to Sonia’s manager, Martha Dominguez, defendant said he was willing to kill to prevent such interference. Defendant told a coworker, Robert Mora, that he wished “that bitch,” Sonia, had “died” in the hospital. Sonia resumed working at the Bank in mid-1994.
The evidence suggested defendant was controlling and volatile at times, especially toward women. Dominguez and Mora each described one instance in which they saw or heard about defendant either violently grabbing or verbally abusing his mother. Mora testified that defendant sexually propositioned many women at work. One of them, Wendy Osiow, testified that she complained to superiors about defendant. In testimony echoed by other coworkers, Nicholas Latimer described defendant as a “wanna-be cop” who carried a police scanner and whose car looked like an unmarked police [1274]vehicle. According to Latimer, defendant liked to drive his car to Hollywood and scare street prostitutes into thinking they were being watched by the vice squad.
Sometime in fall 1994, defendant began dating codefendant Lee, a married coworker who knew many of the same people as defendant and Sonia. Lee moved into the apartment defendant shared with his mother, Doris, and decided to divorce her husband.
Meanwhile, Sonia obtained a court order directing defendant to pay her $375 in monthly child support and requiring the money to be deducted from his wages. To facilitate this process, defendant and Sonia both signed a letter, dated December 1, 1994, asking the Bank to deduct one-half of the amount defendant owed Sonia from each of his two monthly paychecks, and to place the money in her checking account. This arrangement, which the couple’s letter referred to as “garnishment,” took effect immediately.
Over the next few months, defendant experienced mounting financial strain. He earned a gross salary of $1,886 a month, or $22,632 a year. After deductions, including child support, his net pay totaled $960 a month. On May 8, 1995, six days before the crime, he had $271 in his checking account and $265 in his savings account.
At the same time, defendant owed over $21,000 in consumer debt. In addition, defendant and Lee jointly obtained a Household Finance loan in late 1994. The original balance of $10,000 remained unpaid in May 1995.
Defendant resented Sonia as a result of the wage garnishment. One of his supervisors, Lydia Moreno, testified that defendant said he could not pay his bills because of child support payments, that creditors called him at work, and that he was “fucked for the next seven years, because he was going to have to file bankruptcy.” Osiow overheard defendant say he wished Sonia “were dead” to avoid giving her “half [his] stuff.” Defendant told Latimer many times that Sonia was a “bitch” and a “whore” because of the money deducted from his paycheck.
At some point before February 1995, while confiding in Dana Shafer, one of his managers, defendant asked if the Bank made “legal referrals” to help answer child custody and support questions. In late March or early April 1995, defendant discussed whether to declare bankruptcy with an attorney, Rene Lopez de Arenosa. Codefendant Lee was present during this meeting.
Defendant and Lee were both upset with Sonia about parenting issues. Coworker Deborah Trudeau testified that Lee became agitated when she once [1275]saw Sonia with defendant’s son, Michael, at work. Both Lee and defendant complained to Trudeau, Osiow, and others that Sonia was impeding visitation with Michael. According to his friend Mora, defendant said, “Fuck that bitch. She won’t get away with taking my kid. I’ll get her one day.” Defendant told his manager, Shafer, that Sonia “wasn’t going to be around” to challenge custody.
In April 1995, relations further deteriorated between defendant and Lee on the one hand and Sonia and Doris, on the other hand. The events were relayed at trial by supervisors and coworkers (e.g., Dominguez, Moreno, and Trudeau) who learned about them from Sonia, Lee, or defendant.
Following an argument, Doris ordered defendant and Lee out of her apartment. They moved to a unit across the hall in the same building. The incident triggered heart problems in Doris, who was briefly hospitalized. Afterwards, over the Easter weekend, Sonia stayed in Doris’s apartment and cared for her. Defendant approached Sonia on Easter Sunday, April 16, 1995, and asked her to take a drive with him. He then disclosed his sexual relationship with Lee. Sonia became upset and “backhanded” defendant. When they returned to the apartment complex, defendant acted like he was having a seizure and was helped to his apartment by two bystanders. When Doris tried to see defendant, Lee would not let her inside the door, and the two women physically fought one another. Defendant subsequently talked about getting a restraining order against Doris.
On May 5, 1995, Sonia and Michael moved into Doris’s apartment, planning to stay one week. According to Sonia’s family, she and Doris were considering leaving North Hollywood and relocating together, with Michael, in either Whittier or San Francisco.
The next day, May 6, 1995, which was about a week before the murders, defendant and Lee were seen walking with one another at Universal by two Bank managers, Adrienne Gavura and Shafer, who went there together with friends. Gavura testified that defendant and Lee seemed shocked by the encounter. Shafer testified that defendant and Lee looked guilty. The same week, another coworker overheard Lee say she was “going to do something stupid” for which she would go “to prison.” Both defendant and Lee had scheduled one week’s vacation from work beginning Monday, May 15, 1995.
On Sunday May 14, 1995, defendant took Sonia, Doris, and Michael to the Country Star restaurant at Universal. When they entered the garage at 8:51 p.m., ample parking was available in areas much closer to the restaurant than the rooftop on which the car was later found. Their waitress commented to a coworker that defendant was acting strange. At trial, she recalled that he [1276]ordered the “strongest” drink on the menu (a seven-liquor ice cream treat) before dinner. Also, he was patient with his fidgety son and brusque toward the women. They left the restaurant around 10:45 p.m.
Meanwhile, codefendant Lee drove to Universal that night, entering the garage at 9:57 p.m. A few minutes earlier, at 9:49 p.m., a brief call was made from a pay phone located inside the Country Star restaurant to defendant’s cell phone, and was charged to his home phone number. The same cell phone was found in Lee’s car later that night, as discussed below. The hostess at Tony Roma’s restaurant, which is located between the Country Star restaurant and the parking garage, testified that she twice saw Lee walking fast toward the garage that night with a grave expression on her face.
3. Discovery of Lee and Evidence Along Highway 170
At 11:20 p.m. on May 14, 1995, shortly after the crime, two California Highway Patrol officers arrived at callbox 166 along Highway 170, five miles from Universal. They were responding to an emergency call from codefendant Lee, who reported being robbed and stabbed at that spot. The officers found Lee lying on the ground near her car, on top of a jacket, with her hands to her side. The car was locked with the keys inside. Lee moaned in pain, and muttered something about there being “nothing [she] could do” and not knowing “what happened.” She had suffered an abdominal laceration from which she was bleeding and from which her intestines protruded. The officers dressed the wound and called paramedics.
After Lee was taken to the hospital, and additional investigators arrived on the scene, a search was made of the ivy-covered embankment that sloped down from the road. The search produced two fanny packs, one belonging to defendant and the other to Doris, and Sonia’s purse. These items were covered in blood. Other bloodstained items found nearby included a knife with a blunted tip, a blue sweater, a latex glove, a washcloth, and a pair of wool gloves. Inside Lee’s car, investigators found defendant’s cell phone in the center console, and Lee’s fanny pack and two plastic Ziploc baggies under the driver’s seat—all bloodstained.
4. Postcrime Investigation
On May 15, 1995, the day after the murders, defendant visited Sonia’s family. He was overheard telling someone on the telephone that he was “going to jail for a lot of years for this.”
On May 15 and 16, Lee spoke with homicide detectives while awake and coherent in the hospital. She first denied knowing about her injuries or the [1277]items found along Highway 170, and later screamed profanely at the officers to leave her alone. The clothing she wore when admitted to the hospital was bloodstained and had cuts in it. It was obtained by investigators and subjected to scientific testing, as discussed below.
Around the same time, officers saw defendant visiting Lee in the hospital, where they photographed cuts on his hands. They also obtained the jeans and jacket he wore the day of the murders. Both items were bloodstained. The jacket had cuts in it. The clothing underwent scientific testing, as discussed below.
Detectives arrested defendant on May 18, 1995. While being transported to jail and passing the courthouse, defendant turned to one of the detectives and asked what he “would get,” or words to that effect, if he pled guilty. During the booking process, defendant said he wanted to talk to codefendant Lee. Detectives arranged the call and heard him say, “Remember what we talked about.”
5. Autopsy Results and Forensic Evidence
Defendant’s mother, Doris, sustained multiple penetrating stab wounds to the chest and back. Her most serious injury was a gaping knife wound to the throat that had been inflicted in a sawing motion, and that nearly decapitated her. It would have quickly caused death, and was likely inflicted last. Doris had no defensive knife wounds on her hands.
Serological testing, including DNA analysis, established that Doris’s blood was consistent with blood found on the rear seat of defendant’s car, on the Disney shirt he apparently wore the day of the crime, on the jeans defendant and codefendant Lee wore the same day, and on one of the wool gloves found near Lee along Highway 170.
Sonia Salinas was stabbed through the chest to the breast bone. She also suffered numerous deep incisions to her face and throat that intersected in the neck. Her carotid arteries and jugular vein were cut. These injuries would have quickly caused death and probably occurred last. Sonia had several deep defensive knife wounds on her hands.
Serological and DNA analysis established that Sonia’s blood was consistent with blood found on the front seat of defendant’s car, on the Disney shirt (including the bloody handprint), on defendant’s jeans and jacket, and on the bloody trail running between the areas at the crime scene where defendant and the victims were found. Sonia’s blood also was consistent with blood [1278]found on items tossed along Highway 170, including the knife, defendant’s fanny pack, the latex glove, and the plastic baggies found under the front seat of Lee’s car.
Codefendant Lee suffered an evisceration in which the knife had been thrust deeply into the abdomen and moved around. She sustained another stab wound to the back, and a large cut on the inside of the left leg, above the ankle.
Serological tests, including DNA analysis, established that Lee’s blood was consistent with blood found on Sonia’s left shoe at the crime scene, and on items found along Highway 170. Such items included the fanny packs belonging to defendant and Doris, Sonia’s purse, the blue sweater, one of the wool gloves, and the plastic baggies found inside Lee’s car.
Defendant Carasi suffered cuts on both hands. Serological testing, including DNA analysis, established that his blood was consistent with blood found on the Disney shirt, on his jeans and jacket, and on the bloody trail at the crime scene. Defendant’s blood also was consistent with blood found on his fanny pack and the blunt-tipped knife recovered along Highway 170, and on the plastic baggies found in Lee’s car.
Dr. Eugene Carpenter, the pathologist who performed the autopsies, opined that each victim was restrained against a hard object. He testified that most knife fatalities involve injuries near the heart, not the throat, and that the large number of wounds sustained by Sonia and Doris was rare. On direct and cross-examination, the witness associated such injuries with domestic disputes and other crimes of passion. Dr. Carpenter further testified that defendant suffered at least one palm injury consistent with a “knifer’s wound,” which occurs when the knife strikes bone, and the hand slides down the handle onto the blade. Cuts on Sonia’s hands were consistent with her having repeatedly deflected and grabbed the blade.
Steven Dowell, a criminalist specializing in tool mark analysis for the coroner’s office, compared the knife found along Highway 170 to the victims’ injuries. Several of Doris’s wounds were consistent with the depth and width of the knife’s blade. The blunted tip could have left certain irregular abrasions on Sonia’s skin. No wound was inconsistent with the suspected murder weapon.
Elisabeth Devine, a crime reconstruction specialist with the sheriff’s department, opined that Sonia and Doris were probably first attacked inside the car on the passenger side, and that each victim ended up outside the car, where they received their lethal neck wounds. Devine believed more than one [1279]assailant was involved. It was likely that Sonia left the bloody handprint on the Disney shirt while grasping at her attacker, and that Sonia’s shoe was in motion when it came in direct contact with blood from codefendant Lee’s wounds.
C. Defense Case
Defendant did not testify at trial. He called two witnesses, both of whom also testified for the prosecution, to suggest that he did not kill the victims, and that law enforcement bungled the investigation. First, Sonia’s sister, Maria, testified that defendant was upset when visiting her house the day after the murders. He was curled up on the floor, screaming and grabbing at a neighbor who sat nearby. Defendant’s other witness, Criminalist Beverly Kerr, indicated that serological testing was not performed on every bloodstain found on the Disney shirt or near defendant’s car at the crime scene.4
II. Penalty Evidence
A. Prosecution Case
Evidence was introduced about the effect of Sonia’s murder on persons close to her. Sonia’s parents and two sisters described Sonia as a loving, giving, and devoted member of a close-knit family, which continued to mourn her loss. They testified that she fought to overcome her own illnesses and insecurities, worked hard at home and the office, and sought to improve herself to provide a better life for her son, Michael. According to these witnesses, Michael, who was five years old at the time of trial, suffered from memories of seeing his father kill his mother and grandmother, and yearned for his mother’s love. Also, Sonia’s wit, drive, tenacity, and generosity were described by Martha Dominguez, the Bank manager who hired Sonia and became her close friend. The jury saw a video showing still photographs of both murder victims.
[1280]B. Defense Case
Defendant, who was 30 years old at the time of the crime, called three male friends from his boyhood. They described his hobbies (e.g., computers, science fiction, and Disneyland), compassion (e.g., helping neighbors after an earthquake), and family ties (e.g., grieving when his father died in the early 1990’s).
Defendant’s manager at the Bank from 1989 to 1993 testified that he was a model employee who volunteered for charitable events. Similar testimony was given by a married couple who employed defendant in their photography studio starting when he was in high school. Shortly before the murders, defendant and codefendant Lee had visited this couple and spoke about starting a photography business.
Defendant called a female friend of Lee’s who testified that Lee said defendant made her feel happy.5
IH. Pretrial Issues
A. Jury Selection
1. Procedural Background
Jury selection started with about 450 prospective jurors. Consistent with the law at the time, the trial court conducted all questioning. (See People v. Stitely (2005) 35 Cal.4th 514, 537, fn. 11 [26 Cal.Rptr.3d 1, 108 P.3d 182] (Stitely).) It occurred in four stages.
The first stage involved screening for financial and physical hardship, and exposure to pretrial publicity. Because the pool initially was so large, prospective jurors were divided into smaller groups at the start of this phase. Each group of prospective jurors received special instructions when they first entered the courtroom. As discussed further below, they learned that the case involved two killings at Universal on Mother’s Day 1995, and that defendant had been charged with two murder counts and three special circumstance allegations.
[1281]Second, the trial court conducted preliminary death penalty screening. In this phase, prospective jurors completed a four-question form asking whether they would refuse to sustain either a murder conviction or the special circumstances to avoid a penalty phase, or would automatically impose a death sentence or life without the possibility of parole (LWOP) regardless of the aggravating and mitigating evidence.6 They were orally examined, and some were excused for cause, based on their answers on this preliminary death penalty questionnaire.
The third phase involved general voir dire of the 100 or so prospective jurors who survived the first two rounds. They completed the lengthy main questionnaire covering many topics, including the death penalty.7 The court instructed them again on the two murder counts and the three special circumstances. It also named both victims. The court then randomly called a series of 12 people into the jury box, and examined them individually and as a group. Except for personal matters, voir dire was not sequestered. The court urged counsel to suggest additional or clarifying questions. The court asked many of counsel’s questions, and resolved excusáis for cause.
In the fourth and final stage, both sides took turns exercising peremptory challenges. Although the panel had been previously “passed” for cause, the court asked questions about the death penalty and other things, and solicited additional questions from counsel in every case. It also resolved new challenges for cause. Whenever a prospective juror was excused, a replacement was selected, and peremptory challenges resumed at random against the 12 people in the box. Defendant exhausted his peremptory challenges, and unsuccessfully sought 14 more to compensate for those he had used when the court denied his challenges for cause.8 Defendants then unsuccessfully [1282]claimed the prosecution had exercised its peremptory challenges in a discriminatory fashion under People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson). Questioning resumed, involving one prospective juror. Without exercising any more peremptory challenges, codefendant Lee and the prosecutor accepted the panel as constituted. Twelve jurors and four alternates were sworn.
2. Limits on Voir Dire
During the initial or hardship/publicity phase of voir dire, defendant moved orally and in writing to amend the court’s preliminary questionnaire. As noted, the four questions on that form targeted prospective jurors who would never allow the case to proceed to a penalty phase, or who would always vote for death or LWOP. Under defendant’s proposed amendment, the first two questions, which asked about refusing to return a murder conviction or to sustain special circumstances, referred to “[two] counts” of “premeditated” murder, and identified the three special circumstances as “lying in wait,” “financial gain,” and “multiple murder.” Defendant’s other two questions, which asked about voting automatically for death or LWOP, similarly differed from the court’s version by identifying the “premeditated” nature of the murder and the special circumstances (“lying in wait,” “financial gain,” and “multiple murder[]”).9
Defendant argued that he was entitled to delve into specific facts at this early stage to adequately identify “automatic death” jurors. He emphasized that “two homicides” were alleged. The prosecutor disagreed. He observed that the court’s questionnaire generally conformed to Witherspoon v. [1283]Illinois (1968) 391 U.S. 510, 522, fn. 21 [20 L.Ed.2d 776, 88 S.Ct. 1770] (Witherspoon), concerning the excusal of prospective jurors who would always choose LWOP or death, and that defendant’s case-specific factors could be explored later in voir dire.
The court declined to amend its preliminary questionnaire to accommodate the defense. The questionnaire’s purpose, the court stated, was to identify those jurors who would always or never vote for death under any circumstance, including special circumstance cases in which only a single murder was alleged.
Nevertheless, the court made clear that it was not barring reference to “all the things” counsel had raised. The court assured counsel that it would orally instruct on the murder and special circumstance allegations before prospective jurors completed the preliminary questionnaire and answered oral inquiries about it. The court further observed that jurors would have those case-specific factors in mind when they subsequently completed the main questionnaire (which included more death penalty questions), and were examined about those written replies during general voir dire. The court alluded to the standard it would apply at that stage under Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844] (Witt), which would permit the court to disqualify persons based on their views on capital punishment, even if they would not always choose LWOP or death.
Two days later, codefendant Lee joined defendant in challenging the court’s preliminary questionnaire and the decision to leave it unchanged. The court reaffirmed its ruling that case-specific factors would be excluded from the four-question form on the one hand, but that prospective jurors would be instructed on such factors before any death qualification occurred on the other hand. The court explained that it sought to strike a balance in questioning jurors about use of the death penalty in “any case” versus “this case,” and that it did not want them to prejudge penalty or undergo “brainwashing.”
Later the same day, the court assured the defense that its concerns would be met. “[W]e will find out from these jurors whether[,] if one or all of these special circumstances . . . are found to be true, whether without regard to any other evidence that they might hear in mitigation, they would automatically vote for death. That question will be posed.” (Italics added.) The court indicated that nothing in its earlier ruling was intended to foreclose questioning on the factors the defense had sought to include in the preliminary death penalty questionnaire.
The trial court adhered to the foregoing plan—giving instructions and conducting examinations in the manner proposed to counsel. First, before [1284]answering any written or oral questions on capital punishment, all prospective jurors were instructed (in groups) that the case involved the “murder,” “killing,” or “death” of two people, or “women,” whose bodies were found in the Universal garage on Mother’s Day 1995. At the same time, before death qualification began, the court described the charges to all prospective jurors. They learned that defendant had been charged with two counts of first degree premeditated murder and three special circumstances—multiple murder, murder committed for financial gain, and murder perpetrated while lying in wait.10
Second, the same facts and charges arose during the oral examination. As to everyone who answered “yes” to any of the four questions on the preliminary death penalty questionnaire, the court asked whether they would always vote for or against LWOP or the death penalty if allegations of premeditated murder with one or more special circumstances were sustained.11 Similar exchanges occurred during both general voir dire and the peremptory challenge phase, where answers on the main questionnaire indicated the person might have difficulty voting for a particular penalty. In some instances, the court inquired about the person’s views on penalty assuming defendant was convicted of first degree murder and one or more special circumstances were found true.12 At other times, the oral examination focused [1285]more specifically on premeditated murder, multiple murder, and murder involving financial gain and lying in wait.13
Despite these developments, defendant and codefendant Lee never stopped complaining about the court’s ruling. For instance, during voir dire on the preliminary questionnaire, counsel faulted the court for not being “more case specific about people who would automatically give death.” Counsel also noted later, during general voir dire, that jurors had not been asked pointblank whether they would “always” impose death under the circumstances the defense had tried to include in the initial questionnaire, e.g., “murdering two people for financial gain.” At one point, counsel recognized that he was testing the court’s patience and essentially apologized for rehashing the issue.
On appeal, defendant repeats his claim that the trial court erred in limiting reference to “case specific factors” he sought to include in the preliminary questionnaire, namely premeditated multiple murder, lying in wait, and financial gain. Defendant insists that several challenges for cause were erroneously denied as a result, and that he was forced to use peremptory challenges to ensure that none of these persons sat on the jury. The “flip side” of this argument also is raised. Defendant complains that prospective jurors were not asked whether they would always impose LWOP in such specific cases, and that various prosecution challenges for cause were thus erroneously granted over defense objection. Here, as in the trial court, defendant claims violations of his right to due process and to a fair and impartial jury under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution, and parallel state constitutional provisions.
At the time of defendant’s trial, as now, qualifications to serve on a capital jury were not limited to determining whether the person opposed or supported the death penalty in every case. Then, as now, both federal and state law permitted the excusal for cause of a prospective juror whose views on capital punishment would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Witt, supra, 469 U.S. 412, 424, fn. omitted.) In articulating this standard, the high court made clear that Witt, supra, at page 424, “clarified]” [1286]Witherspoon by allowing excusáis for cause in a potentially broader range of circumstances, that is, even where the prospective juror has not made it “unmistakably clear” that he would “automatically’ vote a certain way. (Witherspoon, supra, 391 U.S. 510, 522, fn. 21.)
The trial court has considerable discretion to place reasonable limits on voir dire (People v. Zambrano (2007) 41 Cal.4th 1082, 1120 [63 Cal.Rptr.3d 297, 163 P.3d 4] (Zambrano)), and to determine the number and nature of questions on the death penalty. (Stitely, supra, 35 Cal.4th 514, 540.) We have explained that death-qualifying voir dire seeks to determine prospective jurors’ attitudes about capital punishment only in the abstract, and whether, without knowing the specifics of the case, they have an open mind on penalty. (Zambrano, supra, 41 Cal.4th at p. 1120, quoting People v. Clark (1990) 50 Cal.3d 583, 597 [268 Cal.Rptr. 399, 789 P.2d 127].) Thus, a defendant cannot insist upon questions that are “ ‘so specific’ ” that they expose jurors to the facts of the case, or tempt them to prejudge penalty based on the aggravating and mitigating evidence. (Zambrano, supra, 41 Cal.4th at p. 1121, quoting People v. Cash (2002) 28 Cal.4th 703, 721-722 [122 Cal.Rptr.2d 545, 50 P.3d 332] (Cash).)
Nevertheless, voir dire cannot be so abstract that it fails to identify those jurors whose death penalty views would prevent or substantially impair their performance under Witt, supra, 469 U.S. 412, 424. Rules have developed to balance the competing interests. Thus, on the one hand, the trial court cannot bar questioning on any fact present in the case “that could cause some jurors invariably to vote for the death penalty, regardless of the strength of the mitigating circumstances.” (Cash, supra, 28 Cal.4th 703, 721, italics added.) But the court’s refusal to allow inquiry into such facts is improper only if it is “categorical” (People v. Vieira (2005) 35 Cal.4th 264, 286 [25 Cal.Rptr.3d 337, 106 P.3d 990] (Vieira), italics added) and denies all “opportunity” to ascertain juror views about these facts. (Id. at p. 287.)
In Cash, the defense sought to determine whether prospective jurors could consider LWOP for someone who had “killed more than one person”— alluding to anticipated penalty phase evidence that, when he was a juvenile, the defendant had murdered his grandparents. (Cash, supra, 28 Cal.4th 703, 719.) The trial court concluded that because this circumstance appeared nowhere in the information, it could not be disclosed to prospective jurors and no questioning on the topic would be allowed. (Ibid.) The ruling was enforced at every phase of voir dire. (See id. at pp. 721-722.) On appeal, this court reversed the death judgment—our lone reversal for limiting death penalty inquiry into case-specific facts. We explained that the nature of the error prevented us from determining whether any seated juror “held the disqualifying view that the death penalty should be imposed invariably and [1287]automatically on any defendant who had committed one or more murders other than the [charged] murder.” (Id. at p. 723.)
We reached a different result in Vieira, supra, 35 Cal.4th 264. There, before voir dire began, the defendant moved to modify the court’s questionnaire to ask whether prospective jurors would automatically impose death if they convicted him of “ ‘two or more murders.’ ” (Id. at p. 284.) The court did not include this question in the written questionnaire, or ask about multiple murder during oral questioning about the death penalty. Vieira itself does not make clear whether the court read the information alleging multiple murder to prospective jurors beforehand. Nevertheless, this court found no violation of Cash, supra, 28 Cal.4th 703. We emphasized that the trial court never ruled or otherwise suggested that prospective jurors could not be asked, during general voir dire, the multiple-murder question excluded from the written questionnaire. “[R]efusal to include the question [in the written form] was not error so long as there was an opportunity to [orally] ask the question during voir dire.” (Vieira, supra, 35 Cal.4th at p. 287.)
The gravamen of Cash and Vieira—both of which were decided after defendant’s trial—is that the defense cannot be categorically denied the opportunity to inform prospective jurors of case-specific factors that could invariably cause them to vote for death at the time they answer questions about their views on capital punishment. By definition, such an opportunity arises where the trial court instructs all prospective jurors on such case-specific factors before any death qualification begins. It is logical to assume that when prospective jurors are thereafter asked (orally or in writing) whether they would automatically vote for life or death regardless of the aggravating and mitigating circumstances, they have answered the question with those case-specific factors in mind, and are aware of the factual context in which the exchange occurs. This assumption seems all the more reasonable where answers given orally in open court refer to the specific facts and charges contained in the court’s instruction and indicate that they are being taken into account.
Here, we assume solely for the sake of argument that premeditated murder committed while lying in wait and for financial gain are potentially inflammatory circumstances analogous to multiple murder and prior murder, that they could transform an otherwise death-qualified juror into one who could not decide penalty fairly, and that exploration of juror attitudes about the death penalty in such cases cannot be wholly disallowed. (See Zambrano, supra, 41 Cal.4th 1082, 1122 [declining to treat issue of victim’s dismemberment in such a manner].) Even so, under the unique circumstances of this case, no error occurred.
[1288]Contrary to what defendant suggests, the trial court never ruled that prospective jurors were prohibited from learning about the foregoing circumstances or from considering them when expressing their views on capital punishment. Although it denied defendant’s motion to include any case-specific factors in the preliminary questionnaire, the court kept its promise to counsel and told all prospective jurors about the specific facts and charges the defense had sought to include therein. Thus, jurors knew the case involved two counts of premeditated murder and the three special circumstances of multiple murder, lying in wait, and financial gain. The court also conveyed this information before anyone completed either the preliminary or general questionnaire, and before jurors were orally examined about their answers on either written form. A significant number of prospective jurors indicated in the nonsequestered presence of their colleagues, in response to instructions that they all received, that they were taking these case-specific factors into account when asked orally and in writing whether they would automatically vote a certain way.
We are thus satisfied that the court’s procedures in this case were adequate to ascertain the prospective jurors’ attitudes on case-specific factors that might disqualify them to participate in a capital trial. No error under Cash, supra, 28 Cal.4th 703, or Vieira, supra, 35 Cal.4th 264, occurred.14
3. Denial of Challenge for Cause/Pretrial Publicity
Defendant claims the trial court abused its discretion by not excusing Prospective Juror J.D. for cause. He also asserts violations of his right to due process and to a representative jury, but does not state whether the federal or [1289]state Constitution is involved. In any event, the argument on appeal, as in the trial court, is that exposure to news stories about the crime biased J.D. against defendant on the issue of guilt. We disagree.15
On the main questionnaire completed before general voir dire (i.e., the third phase of jury selection), question No. 35 asked, “Before coming here today, did you have opinions or beliefs whatsoever about this case?” Prospective Juror J.D. answered, “From newspaper accounts at [the] time and due to details of story[,] I believed that both defendants were directly involved in murder for financial gain. Also, there had been a planned out plot for these murders. Finally, committing the murders on Mother’s Day showed marked anger and hate directed to victims.” In a related vein, question No. 36 asked for the nature and source of any pretrial information to which prospective jurors had been exposed. J.D. again mentioned news reports of a financially motivated double murder in a parking structure at Universal on Mother’s Day. He also recollected that the victims were related to or associated with one of the defendants.
On voir dire, the trial court asked J.D., a medical laboratory technician, whether his written answers reflected circumstances that he remembered hearing or seeing in the media, or whether—as suggested on his questionnaire—he actually believed they were true. Without apparent hesitation, J.D. clarified his written answer to question No. 35, saying, “I would have reworded that[;] rather than saying T believe’ is [.sic] I recollect from the story.” J.D. confirmed that he did not believe everything contained in media accounts, that such accounts were not evidence in the present case, that he would adjudicate the case no differently than if he had heard nothing about the crime, and that he would rely solely on the evidence presented at trial. J.D. insisted that he would be fair and impartial, and cited his need to be neutral at work in balancing the competing demands of others.
Defendant moved to excuse J.D. for cause because he “believes that the defendants are guilty” based on pretrial publicity. The motion was denied. [1290]The trial court said it accepted J.D.’s assurances that news stories involved only allegations, not evidence. The court also credited J.D.’s explanation that he was imprecise in answering question No. 35, and that he should have written that he recalled news accounts about the crime, not that he “believed” their truth or accuracy. Defendant subsequently exercised a peremptory challenge against J.D., who did not serve on the jury.
The foregoing events do not require reversal of the judgment. Preliminarily, defendant has not preserved his claim that Prospective Juror J.D. was biased and should have been excused for cause. Although he exercised a peremptory challenge to remove J.D., and exhausted all such challenges (and asked for more), defendant never expressed dissatisfaction with the jury as constituted. (People v. Wilson (2008) 43 Cal.4th 1, 14 [73 Cal.Rptr.3d 620, 178 P.3d 1113]; People v. Crittenden (1994) 9 Cal.4th 83, 121 & fn. 4 [36 Cal.Rptr.2d 474, 885 P.2d 887].) Such lapse results in forfeiture of the claim where, as here, the trial occurred in 1997, after Crittenden was decided. (People v. Blair (2005) 36 Cal.4th 686, 741-742 [31 Cal.Rptr.3d 485, 115 P.3d 1145].) Otherwise, a defendant could challenge denial of a challenge for cause on appeal even if he was satisfied with the overall composition of the jury, and expressed no misgivings to the trial court. (People v. Weaver (2001) 26 Cal.4th 876, 911 [111 Cal.Rptr.2d 2, 29 P.3d 103].)
Moreover, under the principles invoked by defendant, a prospective juror is biased and disqualified to serve only if his state of mind will prevent him from acting impartially and without prejudice to any party. (People v. Ayala (2000) 24 Cal.4th 243, 271-272 [99 Cal.Rptr.2d 532, 6 P.3d 193] (Ayala); see People v. Ledesma (2006) 39 Cal.4th 641, 668-669 [47 Cal.Rptr.3d 326, 140 P.3d 657], citing Code Civ. Proc., § 225, subd.' (b)(1).) If the prospective juror’s statements are equivocal or conflicting, the trial court’s determination of his state of mind is binding on appeal. (Ayala, supra, 24 Cal.4th at p. 272, citing People v. Carpenter (1999) 21 Cal.4th 1016, 1035 [90 Cal.Rptr.2d 607, 988 P.2d 531].) The trial court is in the best position to make this assessment, since it can observe demeanor and tone, and decide credibility firsthand. (People v. McPeters (1992) 2 Cal.4th 1148, 1175 [9 Cal.Rptr.2d 834, 832 P.2d 146].)
Here, nothing J.D. said in court indicated that he was biased against defendant or disqualified to serve based on news stories about the capital crime. J.D. candidly disclosed that he remembered learning about allegations of multiple murder against defendant, and stated unequivocally that he did not accept them as true and had not prejudged guilt. As noted by the trial court, such answers arguably conflicted with one response J.D. provided on his written questionnaire before the oral examination. As noted, where assessment of the juror’s state of mind depends upon the resolution of any [1291]conflicting or ambiguous statements and upon a credibility determination, we defer to the findings of the trial court. Here, the court explicitly credited J.D.’s in-person statements clarifying his written questionnaire and insisting that he remained open-minded and fair about the case. We therefore conclude that the court did not abuse its discretion in finding no bias on J.D.’s part, and in denying defendant’s challenge for cause.
4. Wheeler/Batson Claim
As noted, near the end of jury selection, defendant exhausted his peremptory challenges and failed to persuade the trial court to grant more. Codefendant Lee, joined by defendant, then moved under both Wheeler, supra, 22 Cal.3d 258, and Batson, supra, 476 U.S. 79, to dismiss the panel of prospective jurors and start jury selection anew. They argued that the prosecution had exercised most of its peremptory challenges against female prospective jurors (i.e., 20 of 23), and that such conduct was discriminatory and unconstitutional under state and federal law. (See J. E. B. v. Alabama ex rel. T B. (1994) 511 U.S. 127, 129 [128 L.Ed.2d 89, 114 S.Ct. 1419]; People v. Jurado (2006) 38 Cal.4th 72, 104 [41 Cal.Rptr.3d 319, 131 P.3d 400].)
The trial court initially expressed conflicting views on the matter. On the one hand, the “numbers” did not surprise the court, because women “predominate[d]” in the pool of prospective jurors and more women than men were likely to be excused as a result. On the other hand, the court stated that while it was inclined to deny the Wheeler/Batson motion without prejudice, it would require the prosecution to explain its reasons for exercising any peremptory challenges against women “[f]rom this point forward.”16
Seeking clarification, the prosecutor asked whether the court had found a prima facie Wheeler/Batson violation. “[I]f the court is not finding a prima facie case,” said the prosecutor, “the People should [not] have to justify anything.” The prosecutor denied any gender bias. No mention of specific jurors or reasons for excusing them was made.
The trial court acknowledged that it was not prepared to “determine whether there [was] a prima facie case” at that time. Hence, the court deferred a decision on the issue until after it had carefully examined its notes [1292]and the record. Jury selection then resumed. Later the same day, the 12-person jury panel was sworn. A few days later, four alternate jurors were sworn.
The Wheeler/Batson motion was ultimately denied during the prosecution’s case at the guilt trial. The court adopted the prosecution view, and rejected the contrary defense claim, that no prima facie case of purposeful gender discrimination had been made. It ruled as follows: “I have analyzed the pattern of peremptories by the People and the background of the jurors who were excused. I have taken into consideration the ultimate makeup of the jury that is hearing this case with respect to their sexes and the range of ages of the sexes, the females, [f] And I’ve also considered the fact that, as is usually the case and was again here, the majority of representation is women on the panel as a whole, and on the basis of that, I find no indication of any concern . . . with respect to the Wheeler motion aspects. There just is no basis for it, and the motion is denied.”
Defendant renews his Wheeler/Batson claim on appeal. He insists denial of the motion violated his rights to due process, equal protection, and a representative jury under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution, and under applicable state constitutional provisions. No error occurred.
Critical here is whether defendant established a prima facie case of purposeful discrimination. In this first stage of any Wheeler/Batson inquiry, the burden rests on the defendant to “ ‘show[] that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ ” (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 125 S.Ct. 2410]; accord, Miller-El v. Dretke (2005) 545 U.S. 231, 239 [162 L.Ed.2d 196, 125 S.Ct. 2317] (Miller-El):; Batson, supra, 476 U.S. 79, 96.) In other words, this is not a case in which, after a prima facie case is found, the state must offer permissible nondiscriminatory reasons for the strikes (i.e., the second stage of the Wheeler/Batson analysis), or the trial court must decide whether the defendant has carried his burden of showing the discriminatory use of such strikes (i.e., the third stage of the analysis). (Johnson v. California, supra, 545 U.S. at p. 168.) Indeed, as the prosecutor indicated below, he was not obliged to disclose such reasons, and the trial court was not required to evaluate them, unless and until a prima facie case was made. (Zambrano, supra, 41 Cal.4th 1082, 1104-1105 & fn. 3; see generally People v. Bell (2007) 40 Cal.4th 582, 596 [54 Cal.Rptr.3d 453, 151 P.3d 292] (Bell).)
Defendant correctly observes that the trial court’s finding that he failed to establish a prima facie Wheeler/Batson violation must be reviewed in light of intervening legal developments. In Johnson v. California, supra, 545 U.S. [129316]2, the United States Supreme Court reversed People v. Johnson (2003) 30 Cal.4th 1302 [1 Cal.Rptr.3d 1, 71 P.3d 270], in which we confirmed that the relevant California standard—even if it sometimes had been expressed as a “ ‘reasonable inference’ ” (People v. Johnson, supra, 30 Cal.4th at p. 1312)— was to show that it was “more likely than not” that purposeful discrimination had occurred. (Id. at p. 1318.) The high court has since disapproved this exacting standard for federal constitutional purposes, and has said that a prima facie burden is simply to “produc[e] evidence sufficient to permit the trial judge to draw an inference” of discrimination. (Johnson v. California, supra, 545 U.S. at p. 170.)
Where, as here, it is not clear which standard the trial court used, we independently determine whether the record permits an inference that the prosecutor excused jurors on prohibited discriminatory grounds. (Bell, supra, 40 Cal.4th 582, 597.) Defendant argues that the statistical disparity between the number of prosecutorial strikes used against men and women establishes a prima facie inference of discriminatory motive. Under the particular circumstances of the case, we disagree.
At the first opportunity to exercise a peremptory challenge, the prosecution accepted the panel, consisting of five women and seven men. The defense declined to follow suit, and the process of exercising alternating peremptory challenges began.
In the ensuing round, the defense jointly excused two women and three men, and the prosecution excused four women. The prosecution accepted the panel, which then consisted of eight women and four men. The defense did not find the panel acceptable at that point.
As the back-and-forth peremptory process continued, defendants jointly excused three women and two men, and the prosecution excused four women. Next, when the panel consisted of seven women and five men, the prosecution excused a man.
Thereafter, defendants jointly excused a man. For the third time, the prosecution accepted the panel, which again consisted of eight women and four men. The defense did not choose to do so.
In the next go-around, defendants jointly excused three women and one man, and the prosecution excused three women. When the panel thereafter consisted of eight women and four men, the prosecution excused a man.
Defendants then jointly excused two women, interspersed with the prosecution’s excusal of one woman. For the fourth time, the prosecution [1294]accepted the panel, which then consisted of six women and six men. Again, the defense did not follow suit.
Defendants jointly excused one woman and, for the fifth time, the prosecution accepted the panel, then consisting of five women and seven men. Defendants responded by jointly excusing one man. For the sixth time, the prosecution accepted the panel, again consisting of five women and seven men.
Defendants then jointly excused one man, the prosecution excused one woman, and codefendant Lee excused one man. For the seventh time, the prosecution accepted the panel, then consisting of six women and six men.
Next, defendant excused one woman. Then, when the panel consisted of five women and seven men, the prosecution excused a man. Codefendant Lee followed by excusing one man and, for the eighth time, the prosecution accepted the panel, consisting of five women and seven men. Defendant responded by excusing two men and one woman. Codefendant Lee excused two men, and the prosecution excused four women.
Thereafter, between the prosecution’s excusal of one woman and defendant’s excusal of one man, codefendant Lee accepted the jury. The prosecution excused one woman, codefendant Lee accepted the jury, and the prosecution excused one more woman. It was at that point that defendants objected under Wheeler/Batson, and the court took under submission the question whether they had made a prima facie case. Then, defendant having exhausted his peremptory challenges, and codefendant Lee and the prosecution having accepted a panel of five women and seven men, those 12 jurors were sworn.
In sum, after initially accepting the panel without exercising any peremptory challenges at all, the prosecutor accepted the panel eight additional times with seeming disregard for the number of females or the ratio of female to male jurors. On two such occasions, the prosecution was willing to have defendant tried by a jury of eight women and four men. Two other times, there were six men and six women in the jury box—another split suggesting men were not being favored over women. The prosecution chose, on two more occasions, to peremptorily excuse a man when the panel consisted of seven or more women.
In our view, the prosecution’s pattern of excusáis and acceptances during the peremptory challenge process reveals no obvious discrimination towards [1295]female jurors and is patently inconsistent with any such inference. Hence, the trial court did not err in finding no prima facie Wheeler/Batson violation.17
Defendant next argues the trial court erred in not conducting a comparative juror analysis and that we must perform this function for the first time on appeal. However, for reasons we have recently explained, it is not necessary or appropriate for us to speculate as to the reasons that may have motivated the prosecutor’s challenges. (Bell, supra, 40 Cal.4th 582, 600.) Nor does Miller-El, supra, 545 U.S. 231, 241-252, decided after defendant’s trial, mandate such an analysis under the present circumstances. (Bell, supra, 40 Cal.4th at p. 601.)
In a “first-stage Wheeler-Batson case, comparative juror analysis would make little sense. In determining whether defendant has made a prima facie case, the trial court did not ask the prosecutor to give reasons for his challenges, the prosecutor did not volunteer any, and the court did not hypothesize any. Nor, obviously, did the trial court compare the challenged and accepted jurors to determine the plausibility of any asserted or hypothesized reasons. Where, as here, no reasons for the prosecutor’s challenges were accepted or posited by either the trial court or this court, there is no fit subject for comparison.” (Bell, supra, 40 Cal.4th 582, 600-601.) “Whatever use comparative juror analysis might have in a third-stage case for determining whether a prosecutor’s proffered justifications for his strikes are pretextual, it has little or no use where the analysis does not hinge on the [1296]prosecution’s actual proffered rationales, and we [may properly] decline to engage in a comparative analysis” in a first-stage case. (Bonilla, supra, 41 Cal.4th 313, 350.)18
B. Denial of Severance
Defendant, along with codefendant Lee, moved for severance before trial. Defendant renewed his motion both before and after opening statements at the guilt phase, during the presentation of evidence at the guilt phase, and after the penalty phase, in a motion for new trial. He now contends the trial court erred in denying these motions, thereby violating his federal and state constitutional rights to due process and a fair trial. His theory here, as below, is that the conflicting defenses prejudiced him at every phase of trial, i.e., that while he accused unknown third parties of the murders, Lee suggested that defendant was to blame.
The Legislature has expressed a preference for joint trials. (People v. Avila (2006) 38 Cal.4th 491, 574 [43 Cal.Rptr.3d 1, 133 P.3d 1076] (Avila).) Section 1098 states that multiple defendants jointly charged with a felony offense “must be tried jointly, unless the court order[s] separate trials.” This rule applies to defendants charged with “ ‘common crimes involving common events and victims.’ ” (People v. Tafoya (2007) 42 Cal.4th 147, 162 [64 Cal.Rptr.3d 163, 164 P.3d 590], quoting People v. Keenan (1988) 46 Cal.3d 478, 500 [250 Cal.Rptr. 550, 758 P.2d 1081] (Keenan).)
However, separate trials may be ordered in the face of antagonistic defenses. (Avila, supra, 38 Cal.4th 491, 575.) As discussed further below, such conflict exists only where the acceptance of one party’s defense precludes the other party’s acquittal. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41 [17 Cal.Rptr.3d 710, 96 P.3d 30] (Coffman and Marlow), citing People v. Hardy (1992) 2 Cal.4th 86, 168 [5 Cal.Rptr.2d 796, 825 P.2d 781] (Hardy).) We review the denial of severance for abuse of discretion—a deferential standard based on the facts as they appeared when the ruling was made. (Avila, supra, 38 Cal.4th at p. 575, citing Hardy, supra, 2 Cal.4th at p. 167.) A ruling that was correct when made will stand unless joinder causes such “ ‘ “gross unfairness” ’ ” as to violate defendant’s due process rights. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 998 [47 Cal.Rptr.3d 467, 140 P.3d 775] (Lewis and Oliver).)
[1297]Contrary to what defendant suggests, this was a “ ‘classic’ case” for joinder. (Coffman and Marlow, supra, 34 Cal.4th 1, 40, quoting Keenan, supra, 46 Cal.3d 478, 499.) The prosecution claimed that defendant and Lee planned and committed the multiple murder together. Both stood accused in equal measure of the same offenses involving the same special circumstance allegations. The evidence against each defendant was strong. It included their joint visit to the crime scene one week before the murders, their presence and apparent phone contact at the crime scene one hour beforehand, the knife wounds each bore afterwards, and the discovery of the victims’ blood on their clothes.
By the same token, statements made by each defendant before or during trial did not implicate the other and, if credited by the jury, would have been mutually exculpatory. In particular, both denied any participation in the murders. Defendant told police and medical personnel at the crime scene that he was attacked on the top floor of the garage by robbers he never saw and could not identify. Similarly, Lee testified at trial that she was stabbed by an unknown assailant while sitting in her car waiting for defendant and the victims in the same location. All of these circumstances, including the compatible nature of each third party culpability defense, strongly supported the court’s denial of severance here.
Defendant insists, however, that Lee’s counsel provided an alternate theory portraying defendant as the person who murdered Sonia and Doris, and who stabbed Lee. Specifically, in closing argument at the guilt phase, Lee’s counsel acknowledged that jurors might not believe that an “unknown gang of thugs” committed the murders. Earlier, in Lee’s opening statement, counsel highlighted evidence suggesting that the murders were committed in a rage, that Lee and defendant became estranged the week beforehand, and that Lee had no reason to kill Sonia or Doris. Lee’s counsel described his client as one of “three victims.”19
Even assuming counsel sought to subtly shift blame from Lee to defendant, and such innuendo constituted conflicting defenses under the authorities cited above, severance could properly be denied. We have said that a joint trial is prohibited only where “ ‘the conflict is so prejudicial that [the] defenses are [1298]irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both [defendants] are guilty.’ ” (Hardy, supra, 2 Cal.4th 86, 168.) “When, however, there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance.” (Coffman and Marlow, supra, 34 Cal.4th 1, 41, italics added.)
Independent evidence supported the prosecution theory and implicated defendant in the murders. Before the crime occurred, he blamed the victims for distancing him from his son, and complained about paying Sonia child support, emphasizing his bankrupt state. Defendant drove the victims to their last meal, arriving late at night and parking in a remote spot where the murders occurred. He was found at the crime scene covered in the victims’ blood, with knife cuts on his hands. He behaved oddly and made suspicious statements at that time about how the attack occurred. In light of such evidence, any tension between defendants’ theories of the case could not alone have produced the guilty verdicts.
Finally, defendant characterizes Lee’s testimony as “contrived,” and claims he suffered “prejudicial spillover” in the joint trial. For reasons stated above, the trial court was not required to grant severance on this ground. The prosecution presented abundant evidence establishing that defendant murdered the victims as part of a selfish and vengeful plan that he and Lee devised and perpetrated together. Nothing in Lee’s defense could have so tainted defendant as to have caused the jury to convict him solely on that ground. No constitutional or other error occurred.
IV. Guilt Issues
A. Ex Parte In Camera Meetings
The trial judge, Honorable Leslie W. Light, presided over the present case for over 10 months. During that period, the court conferred in camera 10 times with Henry J. Hall, counsel for codefendant Lee, outside the presence of both defendant and his counsel, Ralph A. Courtney III. These hearings were transcribed and sealed in the trial court.
Thereafter, while the case was pending on automatic appeal, defendant filed a motion in this court to unseal or otherwise gain access to the foregoing transcripts. On June 25, 2003, we ordered that three of the transcripts be unsealed (one conference on Nov. 19, 1997, and two conferences on Dec. 2, 1997), and that transcripts of three other conferences remain sealed (Aug. 5, 1997, Mar. 30, 1998, and Apr. 1, 1998). The same order also gave appellate counsel access to reporter’s transcripts of four additional conferences (and to [1299]one portion of the sealed clerk’s transcript), but declined to unseal such items or allow their use in court papers that were not themselves filed or lodged under seal (conferences on Nov. 10, 1997, Nov. 13, 1997, Jan. 12, 1998, and Mar. 2, 1998).
Defendant’s main complaint on appeal is that his absence and the absence of his counsel from the foregoing conferences resulted in violations of his right to counsel, to presence, to due process, and to a fair and public trial under the Sixth and Fourteenth Amendments of the federal Constitution. We will reject the claim.
Proceedings held in chambers and outside the presence of a party are generally disfavored. (Ayala, supra, 24 Cal.4th 243, 262; see id. at pp. 293-294 (dis. opn. of George, C. J.); see also People v. Prince (2007) 40 Cal.4th 1179, 1279 [57 Cal.Rptr.3d 543, 156 P.3d 1015] (Prince) [openness presumed in public trial guarantee].) However, the trial court retains discretion to conduct in camera, ex parte proceedings to protect an overriding interest that favors confidentiality. (See, e.g., People v. Gurule (2002) 28 Cal.4th 557, 593-594 [123 Cal.Rptr.2d 345, 51 P.3d 224] (Gurule) [privileged attorney-client information]; People v. Lawley (2002) 27 Cal.4th 102, 159 [115 Cal.Rptr.2d 614, 38 P.3d 461] (Lawley) [identity of confidential informant]; Ayala, supra, 24 Cal.4th at p. 261 [trial strategy]; People v. Webb (1993) 6 Cal.4th 494, 516 [24 Cal.Rptr.2d 779, 862 P.2d 779] (Webb) [privileged psychotherapy records].)
In addition, the federal constitutional right to counsel arises at critical stages of the prosecution or when necessary to assure a meaningful defense. (United States v. Wade (1967) 388 U.S. 218, 225 [18 L.Ed.2d 1149, 87 S.Ct. 1926]; People v. Koontz (2002) 27 Cal.4th 1041, 1069 [119 Cal.Rptr.2d 859, 46 P.3d 335] (Koontz).) Likewise, a federal constitutional right to be present in court exists where necessary to protect the defendant’s opportunity for effective cross-examination, or to allow him to participate at a critical stage and enhance the fairness of the proceeding. (People v. Waidla (2000) 22 Cal.4th 690, 741-742 [94 Cal.Rptr.2d 396, 996 P.2d 46] (Waidla), citing Kentucky v. Stincer (1987) 482 U.S. 730, 744-745 & fn. 17 [96 L.Ed.2d 631, 107 S.Ct. 2658].) Such protections usually do not cover in camera discussions on matters bearing no reasonable, substantial relation to the defense of the charge. (People v. Rogers (2006) 39 Cal.4th 826, 855 [48 Cal.Rptr.3d 1, 141 P.3d 135]; Waidla, supra, 22 Cal.4th at p. 742.)
Defendant makes no serious attempt to show a violation of these principles based on the transcripts that we unsealed or otherwise provided to counsel on appeal. He asks us to infer from the sheer number of in camera ex parte proceedings that codefendant Lee’s counsel received “unfettered” access to [1300]the trial court, and functioned as a “super-prosecutor” in the case. As so framed, the claim is speculative and fails outright. Indeed, the court met at least three times with defendant’s attorney in chambers, outside the presence of Lee’s counsel, suggesting the procedure was not one-sided or unfair.20
In any event, we have carefully reviewed all 10 transcripts sealed at trial and used to support the present claim on appeal. (E.g., Gurule, supra, 28 Cal.4th 557, 595; Lawley, supra, 27 Cal.4th 102, 160; Webb, supra, 6 Cal.4th 494, 518.) The matters discussed in those conferences did not bear directly on the evidence at trial, the conduct of the defense, or the outcome of the case. Nor do the transcripts reveal any attempt by Attorney Hall to curry favor with the trial court or to benefit his client Lee at the expense of defendant.
To the contrary, and as an example, defendant instigated the closed proceedings that are the subject of the three transcripts we ordered unsealed on appeal. On those occasions, Hall consulted with the trial court about telephone calls and handwritten notes he had received directly from defendant complaining about his attorney, Courtney, offering to help Lee with her defense, and threatening to commit suicide. The court suggested that Hall should promptly disclose these communications to Courtney and inform defendant that no contact could occur in Courtney’s absence. Hall said he took such action. It seems unreasonable for defendant to now complain about ex parte in camera meetings held to ensure that his own actions did not place Lee’s counsel in an ethical or tactical bind. No constitutional error occurred.
Almost as an afterthought, defendant argues in his reply brief on appeal that the proceedings from which he and his counsel were excluded violated the presence requirements set forth in section 977. (Id., subd. (b)(1) [accused must be present at specified proceedings in all felony cases, and must be present “at all other proceedings” unless he executes a written waiver form].) Even assuming such statutory error occurred, it was harmless for the reasons we have set forth above. (See People v. Rundle (2008) 43 Cal.4th 76, 134 [74 Cal.Rptr.3d 454, 180 P.3d 224], citing People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)
[1301]B. Bankruptcy Consultation
As discussed below in conjunction with a challenge to the financial-gain special circumstance, the prosecution sought to prove that defendant killed Sonia, at least in part, to avoid paying her $375 a month in court-ordered child support. Over defendant’s assertion of the attorney-client privilege, the trial court admitted prosecution evidence that he consulted with a bankruptcy attorney before the capital crime. Defendant now argues that the trial court erred in rejecting his privilege claim. He also asserts a violation of his federal constitutional right to due process and a fair trial. We decline to reverse the judgment on such grounds.
As relevant here, the prosecution called Attorney Rene Lopez de Arenosa to testify that defendant consulted him about bankruptcy shortly before the murders. The prosecutor indicated that because the conversation occurred in front of codefendant Lee, an extraneous third party, it was not confidential or protected under the attorney-client privilege. Defendant disagreed and asserted the privilege, urging the court to hold an evidentiary hearing if it had any doubts. After taking a brief break to research the matter, the court indicated that the issue was close, and agreed to hold a hearing. The court said it tentatively favored the prosecution view, but noted the contrary argument that Lee (though married to someone other than defendant) was living with defendant in an intimate relationship at the time, and was “arguably a putative wife” whose presence at the bankruptcy meeting did not affect confidentiality.
At the ensuing hearing, Attorney Arenosa testified that, in early 1995, he met with defendant and his mother, Doris, to discuss her bankruptcy, and that he once represented defendant in a paternity case. In March or April 1995, defendant made another appointment. He arrived at Arenosa’s office with codefendant Lee, calling her his girlfriend.
Arenosa further testified as follows: Lee was present in the room during defendant’s 30-minute meeting with Arenosa. The discussion focused solely on defendant’s financial condition and discharging his debts in bankruptcy. Defendant showed Arenosa his credit card bills. According to Arenosa, he and defendant spoke in English, except when they discussed specific debts in Spanish. Lee’s financial situation was not discussed. Arenosa did not meet with defendant or Lee again, and prepared no bankruptcy documents.
The only other witness at the evidentiary hearing was defendant. He confirmed that the meeting concerned his possible bankruptcy. Defendant testified that one of the bills he mentioned was the Household Finance loan he shared with Lee. Defendant viewed Arenosa as his attorney, wrote him a [1302]check for his services that day, and assumed the conversation was confidential. Defendant recalled that the conversation occurred in English and Spanish, with defendant speaking mainly in Spanish. On cross-examination, defendant admitted that he and Lee had exchanged letters written in a mixture of Spanish and English. He indicated that Lee understood Spanish, and had been studying to learn more.
After the hearing, the court entertained additional argument. Alluding to applicable statutory law, which we discuss below, the prosecutor reiterated that Lee’s presence defeated confidentiality between defendant and Arenosa, because there was no reason for her to be at the meeting other than to offer emotional support. Defendant’s counsel countered that Lee was present to serve both her and defendant’s interests insofar as they were both liable for one of the debts that he might discharge in bankruptcy.
The trial court rejected defendant’s claim. It concluded that his bankruptcy planning had nothing to do with Lee, because it concerned only the discharge of his debts. The court explained that Lee “wasn’t a necessary party” and she “wasn’t there to further [defendant’s] interest.” Hence, the court agreed with the prosecution, that Lee’s presence meant the conversation with Arenosa was not confidential and that it could not be excluded on privilege grounds. However, in an abundance of caution, the court limited the information that Arenosa could disclose to the jury about the meeting, namely, that he met with defendant and Lee on a certain day, and that the discussion with defendant concerned bankruptcy.
Consistent with this ruling, Arenosa testified for the prosecution at trial that defendant and Lee visited his law office in late March or early April 1995, and that he spoke with defendant about bankruptcy. On cross-examination, Lee’s counsel elicited that the meeting focused on defendant’s, not Lee’s, financial state.
By statute, a client holds a privilege to prevent the disclosure of his confidential communications with an attorney. (Evid. Code, §§ 952-954.) A person becomes a client when he consults an attorney to retain him or secure legal services or advice. (Id., § 951.) The transmission of information between lawyer and client in the course of that relationship is “confidential” and protected only if it occurs “by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted.” (Id., § 952, italics added; see People v. Gionis (1995) 9 Cal.4th 1196, 1207 [40 Cal.Rptr.2d 456, 892 P.2d 1199].) Moreover, the client can later forfeit, or [1303]waive, the privilege as to any confidential communication otherwise protected thereunder if he “has disclosed a significant part of the communication or has consented to disclosure made by anyone.” (Evid. Code, § 912, subd. (a); see People v. Barnett (1998) 17 Cal.4th 1044, 1124 [74 Cal.Rptr.2d 121, 954 P.2d 384].)
Defendant argues here, much as he did below, that even if Lee was not “reasonably necessary for the transmission of the information or the accomplishment of the purpose” of defendant’s bankruptcy consultation, she was “present to further [their joint] interest.” (Evid. Code, § 952.) In making this argument, defendant emphasizes the applicable Law Revision Commission Comment stating that an attorney-client communication retains its confidential character “even though it is made in the presence of another person— such as a spouse, parent, business associate, or joint client—who is present to further the interest of the client in the consultation.” (Cal. Law Revision Com. com., 29B pt. 3 West’s Ann. Evid. Code (1995 ed.) foil. § 952, p. 210.) Defendant suggests this principle applies here because Lee was his intimate partner and they shared liability on the Household Finance loan.
We need not, and do not, decide the issue. Even assuming error occurred, it was harmless under any applicable standard. At most, Arenosa’s testimony established that defendant, by seeking legal advice about declaring bankruptcy, was deeply concerned about his personal financial state shortly before the capital crime. However, the jury learned in great detail from other witnesses that defendant’s debts, including his child support payments, exceeded his assets and income, and that he was having trouble paying his bills. Defendant told one of his supervisors, Moreno, that he was “fucked for the next seven years, because he was going to have to file bankruptcy.” Jurors also learned that he had asked one manager at work, Shafer, for a referral to . an attorney, alluding to his child support problems. The jury almost certainly would not have reached a different outcome at the guilt phase had the trial court excluded Arenosa’s brief and limited testimony confirming that a bankruptcy consultation with him had occurred.
C. Pathologist’s Testimony
During the prosecution case, the pathologist, Dr. Carpenter, testified that 200 of the 4,000 autopsies he had handled involved knife slayings. He explained that only one of the 200 knife cases involved multiple victims, and that none involved injuries like those Sonia and Doris sustained. Defendant unsuccessfully objected and moved to strike this part of the witness’s testimony as irrelevant.
[1304]A short time later, the prosecutor took a different tack, asking the pathologist about the “histories” he had received from police and coroner’s investigators in both this case and the other 200 knife deaths he had handled. Codefendant Lee summarily objected on hearsay grounds. In his offer of proof, the prosecutor explained that Dr. Carpenter would testify that he had never seen a robbery murder involving knife injuries like those inflicted on Sonia and Doris. The prosecutor indicated that such testimony would undermine defendant’s statements to investigators at the crime scene that Sonia and Doris were stabbed to death during a robbery. The court overruled Lee’s objection. Dr. Carpenter then testified that, based on case histories from investigators, the 200 knife deaths he examined arose from either barroom brawls or domestic disputes, and that only a few stab wounds were inflicted on each occasion.
Defendant now claims the trial court erred in admitting Dr. Carpenter’s testimony insofar as it concerned the nonrobbery nature of the 200 other knife deaths. As support for his inferences about the circumstances of those cases, the witness purportedly relied on information that was not of a “type that reasonably may be relied upon by an expert in forming [his] opinion.” (Evid. Code, § 801, subd. (b).) The investigators’ case histories in those matters were not a proper basis for expert opinion, defendant insists, because they were preliminary, having been obtained before the investigations in the prior cases were complete or the facts were adjudicated. A federal due process violation from the admission of this evidence is alleged.
Defendant has forfeited this claim by not raising it below. (See Evid. Code, § 803 [authorizing exclusion, “upon objection,” of opinion testimony based on improper matter].) The trial court was never presented with the specific objection raised here, and was therefore denied the opportunity to determine whether experts commonly and reasonably rely on the information used by Dr. Carpenter in reaching opinions of the kind he offered. (Id., § 353, subd. (a).) Absent such a record, this court likewise cannot assess the propriety of the trial court’s ruling admitting such evidence in light of defendant’s present theory. (Id., subd. (b).) Under such circumstances, the claim is procedurally barred on appeal.
Reversal is not warranted in any event. Contrary to defendant’s insinuation, Dr. Carpenter’s testimony was by no means the only evidence that “effectively identified” defendant as the killer, and that eliminated robbery as the likely motive for the capital crime. For months, defendant expressed resentment toward Sonia and Doris over child custody and support issues. He wished Sonia were dead, and he wanted a restraining order against Doris. Defendant was the last person seen alive with the victims, and he was discovered immediately after the murders at the crime scene covered in their [1305]blood, with cuts on his hands. His behavior and statements were suspicious. Evidence such as Lee’s actions before and after the crime pointed to her cooperation with defendant in a plan to lure the victims to their deaths and to make the crime look like a robbery. Any error in the admission of Dr. Carpenter’s testimony about the nonrobbery nature of most knife killings could not have harmed defendant under any applicable standard of prejudice.
D. Provocation and Lesser Included Offense Instructions
The trial court instructed on two theories of first degree murder: murder by means of lying in wait, and willful, deliberate, and premeditated murder. (CALJIC Nos. 8.10, 8.11, 8.20, 8.25.) The court also instructed on unpremeditated second degree murder (CALJIC No. 8.30), and informed the jury of its duty to fix the degree of murder (CALJIC No. 8.70), and to give defendant the benefit of any reasonable doubt on that issue. (CALJIC No. 8.71.) However, the court denied defendant’s request for instructions on the lesser included offense of voluntary manslaughter, including an instruction explaining that provocation in the form of a sudden quarrel or heat of passion may reduce murder to manslaughter.21 The court denied a related request for CALJIC No. 8.73, that evidence of provocation could be considered in determining the degree of murder.22
On appeal, defendant repeats his claim that the requested instructions were warranted because the jury could conclude that the killings, even if intentional, occurred in a rage, such that defendant was not guilty of first degree murder and was guilty, at most, only of a lesser offense (i.e., voluntary manslaughter or unpremeditated second degree murder). The evidence cited in support of this argument comes from prosecution witnesses, and includes (1) expert testimony describing the victims’ injuries as consistent with a crime of passion, (2) the victims’ alleged hostility and conspiracy to separate defendant from his son Michael in the months and weeks before the killing, and (3) the asserted lack of any plan by defendant to kill the victims. Defendant contends the instructional error violated his right to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution.
[1306]Where an intentional and unlawful killing occurs “upon a sudden quarrel or heat of passion” (§ 192, subd. (a)), the malice aforethought required for murder is negated, and the offense is reduced to voluntary manslaughter—a lesser included offense of murder. (People v. Breverman (1998) 19 Cal.4th 142, 153-154 [77 Cal.Rptr.2d 870, 960 P.2d 1094].) Such heat of passion exists only where “the killer’s reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘ “ordinary [person] of average disposition ... to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” ’ ” (Id. at p. 163.) To satisfy this test, the victim must taunt the defendant or otherwise initiate the provocation. (People v. Spurlin (1984) 156 Cal.App.3d 119, 125-126 [202 Cal.Rptr. 663]; e.g., People v. Berry (1976) 18 Cal.3d 509, 512-515 [134 Cal.Rptr. 415, 556 P.2d 777] [young wife repeatedly subjected older husband to sexual insults, rejection, and admissions of infidelity, causing him to strangle her in jealous rage]; cf. People v. Manriquez (2005) 37 Cal.4th 547, 585-586 [36 Cal.Rptr.3d 340, 123 P.3d 614] [provocation lacking where defendant calmly shot bar patron who insulted and goaded him into firing]; see also People v. Gutierrez (2002) 28 Cal.4th 1083, 1144 [124 Cal.Rptr.2d 373, 52 P.3d 572] [revenge does not reduce murder to manslaughter].)
In a related vein, the “ ‘existence of provocation which is not “adequate” to reduce the class of the offense [from murder to manslaughter] may nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon, and carried it out after, deliberation and premeditation’ ”—an inquiry relevant to determining whether the offense is premeditated murder in the first degree, or unpremeditated murder in the second degree. (People v. Wickersham (1982) 32 Cal.3d 307, 329 [185 Cal.Rptr. 436, 650 P.2d 311], quoting People v. Valentine (1946) 28 Cal.2d 121, 132 [169 P.2d 1].) First degree willful, deliberate, and premeditated murder involves a cold, calculated judgment, including one arrived at quickly (Koontz, supra, 27 Cal.4th 1041, 1080), and is evidenced by planning activity, a motive to kill, or an exacting manner of death. (People v. Anderson (1968) 70 Cal.2d 15, 26-27 [73 Cal.Rptr. 550, 447 P.2d 942].) Such state of mind “is manifestly inconsistent with having acted under the heat of passion—even if that state of mind was achieved after a considerable period of provocatory conduct.” (People v. Wharton (1991) 53 Cal.3d 522, 572 [280 Cal.Rptr. 631, 809 P.2d 290].)
We see no substantial evidence that the killings were provoked and that defendant was guilty only of the lesser offenses on which instruction was sought. No conspiracy by the victims against defendant appears on this record. In December 1994, after defendant and Sonia ended their relationship and stopped living together, Sonia obtained child custody and support orders—something she was legally entitled to do. She also took the laudable step of maintaining a relationship with defendant’s mother, Doris—the [1307]grandmother of their son, Michael. Thus, over Easter weekend in April 1995, Sonia helped Doris recuperate after a brief hospital stay. Then, on May 5, 1995, about two weeks before the capital crime, Sonia stayed in Doris’s apartment for one week. While there was some evidence that Sonia and Doris might thereafter relocate with Michael in another city, it is not clear defendant knew of this possibility. In any event, none of these events were sufficient “to arouse feelings of homicidal rage or passion in an ordinarily reasonable person.” (People v. Pride (1992) 3 Cal.4th 195, 250 [10 Cal.Rptr.2d 636, 833 P.2d 643].)
Far from being “the source” of any rage or passion (People v. Spurlin, supra, 156 Cal.App.3d 119, 126), Sonia was arguably taunted by defendant. In late 1994, he began dating codefendant Lee, a mutual colleague of theirs. Before long, coworkers and bosses learned of defendant’s new relationship. On April 16, 1995, Easter Sunday, defendant invited Sonia on a drive and admitted that his relationship with Lee was sexual, causing Sonia to reflexively slap him. It appears Sonia did nothing to provoke sexual jealously in defendant.
Moreover, contrary to what defendant claims, all the available evidence suggests that, having desired Sonia’s death for a considerable period of time, he actively planned the murders with codefendant Lee for at least one week. Prosecution witnesses testified defendant repeatedly said he wished Sonia was dead. The guilty look the pair displayed when spied by their managers at Universal on May 6, 1995, implied they were scouting the crime scene at the time. The planning process included defendant inviting the victims to a late-night Mother’s Day meal before the murders—an invitation timed so that their guard would likely be down. He parked in the comer against the garage wall on the top floor with few cars nearby, creating what the prosecutor called a “killing zone.” It appears codefendant Lee carefully timed her arrival on the scene, with defendant first calling her from the restaurant a few minutes beforehand. Through this arrangement, defendant had the benefit of a second person, Lee, in restraining and killing the victims, and in removing property from the scene in order to stage a robbery. Defendant also brought an extra knife that was found, unused, in the stairwell of the garage. Lee carried washcloths and Ziploc bags that could have been used to clean up and dispose of evidence—items that were found bloodstained in or near her car along Highway 170.
Finally, there was no evidence that “heated words were exchanged or a physical struggle took place between the victim[s] and the accused before the fatal[ ]” attack. (People v. Wickersham, supra, 32 Cal.3d 307, 329.) As noted, part of the lethal planning involved the victims’ last meal. According to the waitress, the only testy behavior she saw during the Mother’s Day dinner [1308]came from defendant, not his two female guests. Indeed, defendant told the paramedic at the crime scene that he leaned into the car to kiss Sonia shortly before being attacked from behind by unknown assailants. He reported no quarrel with the victims.
In sum, all the evidence indicated either that defendant was not the killer of Sonia and Doris (based on his robbery story at the crime scene) or that the killings were the product of his long-simmering resentment towards them over family issues, and that he exacted the ultimate revenge when he slashed them to death. There was no evidence sufficient to support either voluntary manslaughter instructions or unpremeditated second degree murder instructions based on heat of passion. The defense request for such instructions was thus properly denied.
V. Special Circumstances Issues
A. Sufficiency of Evidence of Financial Gain
In addition to sustaining special circumstances involving multiple murder and murder while lying in wait, the jury found that Sonia’s murder “was intentional and carried out for financial gain.” (§ 190.2, subd. (a)(1).) The prosecution’s theory in this regard, as reflected in evidence and argument at trial, was that defendant killed Sonia to end the $375 monthly child support payments she received by garnishing his wages at the Bank. In various motions (e.g., regarding acquittal, instructions, and a new trial) defendant argued that the prosecution did not prove he expected or received any direct financial gain from Sonia’s death. The trial court rejected all such challenges to the financial gain special circumstance.
Defendant argues here, as below, that he had nothing to gain from eliminating child support payments to Sonia because he was required to support his son Michael even after Sonia died. Under defendant’s view, the prosecution could not sustain its burden of proof absent evidence that he anticipated an inheritance, insurance, or other direct pecuniary gain from Sonia’s death. Violations of the Fifth, Sixth, Eighth, and Fourteenth Amendments of the federal Constitution have allegedly occurred. We disagree.
Section 190.2, subdivision (a)(1) applies to murders motivated by financial gain. (People v. Hamilton (1989) 48 Cal.3d 1142, 1178 [259 Cal.Rptr. 701, 774 P.2d 730], applying People v. Howard (1988) 44 Cal.3d 375, 409-410 [243 Cal.Rptr. 842, 749 P.2d 279], and People v. Bigelow (1984) 37 Cal.3d 731, 751 [209 Cal.Rptr. 328, 691 P.2d 994].) However, such gain need not be the sole or main motive for the murder. (People v. Sapp (2003) 31 Cal.4th 240, 282 [2 Cal.Rptr.3d 554, 73 P.3d 433], following People v. [1309]Noguera (1992) 4 Cal.4th 599, 635 [15 Cal.Rptr.2d 400, 842 P.2d 1160] (Noguera).) Nor must defendant experience any actual pecuniary benefit from the victim’s death. (People v. Edelbacher (1989) 47 Cal.3d 983, 1025 [254 Cal.Rptr. 586, 766 P.2d 1] (Edelbacher).) “ ‘[T]he relevant inquiry is whether the defendant committed the murder in the expectation that he would thereby obtain the desired financial gain.’ ” (Ibid., quoting People v. Howard, supra, 44 Cal.3d at p. 409.)
In Edelbacher, supra, 47 Cal.3d 983, the defendant killed his estranged wife, with whom he had a child, in order to avoid making child support payments. Such payments were in arrears and were the subject of a wage garnishment order entered shortly before her death. The defendant, who struggled to pay other bills as well, also owed his wife a substantial amount to equalize the community property division in their pending marital dissolution action. Edelbacher first rejected the defendant’s claim that the financial gain special circumstance was overbroad and unconstitutional as applied there. To the contrary, this court reasoned that it would be arbitrary and irrational to conclude that “cancellation of a debt or the avoidance of a loss” does not constitute a financial benefit, since such motivation is no less repugnant than killing someone for direct “profit.” (Id. at p. 1025.) Edelbacher further found the evidence sufficient to show a financial motive for murder. We emphasized the benefit the defendant expected to receive either by the extinguishment of debts upon his wife’s death, or by gaining custody of his son and acquiring control of the son’s inheritance from the estate. (Id. at p. 1026.)
Likewise, the jury could readily infer beyond a reasonable doubt that defendant killed Sonia because he believed her death would ease his financial strain. The evidence showed that the $375 monthly child support obligation substantially reduced his net pay, that his modest income from the Bank was his main asset, that his liabilities overshadowed his assets, and that he had difficulty paying his monthly bills such that he worried about declaring bankruptcy. More to the point, defendant perceived his child support obligation to Sonia as a tremendous burden, calling her a “bitch” and “whore” who deserved to die, and saying that his financial future would be “fucked” if nothing changed. The jury could conclude that defendant sought to benefit financially from Sonia’s death by gaining control of the money which, by court order, he was paying her for Michael’s support, and by having the ability to decide that less money should be spent in that regard. The prosecution made a similar point in closing argument.
We reject defendant’s related claim that the financial gain special circumstance is unconstitutionally vague and overbroad under federal law. As noted above, a similar contention failed in Edelbacher, supra, 47 Cal.3d 983. [1310]Nothing in our interpretation of the statute there, or its application here, extends death eligibility to every homicide involving a family member to whom the killer owed a duty of support. The special circumstance is limited to those murders, including those intrafamilial murders, committed with the expectation that they would produce the desired financial benefit. (Id. at p. 1025.) No overbreadth or vagueness problem appears. (Accord, Noguera, supra, 4 Cal.4th 599, 636.)
B. Validity of Lying-in-wait Special Circumstance
The prosecution alleged, and the jury found, that defendant “intentionally killed” both victims “while lying in wait.” (§ 190.2, former subd. (a)(15), added by Prop. 7, § 6, approved by voters, Gen. Elec. (Nov. 7, 1978); see now § 190.2, subd. (a)(15), as amended by Prop. 18, approved by voters, Primary Elec. (Mar. 7, 2000) eff. Mar. 8, 2000 [changing “while” lying in wait to “by means of’ lying in wait].) On appeal, defendant claims the special circumstance applicable to his crime fails to adequately narrow the class of death-eligible murders because it applies “to virtually all homicides.” He suggests the trial court erred in rejecting a similar claim he raised several times at trial (e.g., in moving for acquittal, discussing proposed instructions, and seeking a new trial). A due process violation under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution is asserted here.
However, as we have explained many times before, the version of the lying-in-wait special circumstance at issue here is not unconstitutionally overbroad on the ground urged by defendant. It is limited to intentional murders that involve a concealment of purpose and a meaningful period of watching and waiting for an opportune time to attack, followed by a surprise lethal attack on an unsuspecting victim from a position of advantage. (People v. Morales (1989) 48 Cal.3d 527, 557 [257 Cal.Rptr. 64, 770 P.2d 244].) Such is the case where, as here, the defendant ambushes the victim after luring him or her to a secluded spot on a pretext. (E.g., Bonilla, supra, 41 Cal.4th 313, 331-332 & fn. 6; People v. Webster (1991) 54 Cal.3d 411, 448-449 [285 Cal.Rptr. 31, 814 P.2d 1273].) We therefore conclude no constitutional violation or other error occurred.
VI. Penalty Issues
A. Effect of Joinder on Sentencing
Near the start of the guilt phase defendant moved for a mistrial and, alternatively, for severance based on a newspaper article published the same day concerning a Texas capital case. The article suggested that female [1311]murderers were less likely to be executed for capital crimes than their male counterparts. Defendant, who presented no evidence that any juror read the article, insisted that a joint penalty trial would unduly prejudice him because the jury was likely to show “deference” to codefendant Lee simply because she was a woman. The trial court denied the motion. It noted that the motion could be renewed later in the event defendants were convicted and faced a joint penalty trial—an option defendant never exercised.
On appeal, defendant claims that a joint penalty trial is “inherently skewed” against male defendants and in favor of female codefendants due to “misplaced chivalry” by lay jurors. The court’s failure to grant severance on this ground allegedly violated various federal and state constitutional rights. Defendant emphasizes Eighth Amendment requirements favoring individualized sentencing determinations (see Lockett v. Ohio (1978) 438 U.S. 586, 605 [57 L.Ed.2d 973, 98 S.Ct. 2954] (plur. opn. of Burger, C. J.) (Lockett)), and due process prohibitions against joint trials that are grossly unfair. (See Lewis and Oliver, supra, 39 Cal.4th 970, 998.)
No error occurred. Defendant offers only generalized assumptions about cultural stereotypes and gender biases in criminal cases. Nothing suggests the jury failed to properly perform its sentencing function in reaching different outcomes for defendant (a death verdict) and Lee (a hung jury leading to LWOP). Indeed, there were bases in the evidence for this disparity. Defendant was the leader in the killings, and codefendant Lee was the determined follower. The prosecutor noted that they were “equally responsible” for the slayings, but that the penalty determination was “separate” as to each defendant.
Moreover, in advising the jury how to weigh and consider the factors in aggravation and mitigation, the instructions stated, among other things, that the penalty determination as to each defendant must be “based solely on the evidence applicable to that defendant, uninfluenced by what penalty has been or may be determined as justified and appropriate as to the other defendant.” (CALJIC No. 8.84.) Jurors were also told that penalty must be “decide[d] separately” as to each defendant. (CALJIC No. 17.00.)
In light of the foregoing, the jury was adequately apprised of the individualized nature of the sentencing determination. No evidence of gender bias or improper comparisons between defendants appears. The claim of error fails.
B. “Skipper/Lockett” Error
At the penalty phase, defendant sought to introduce the testimony of Barbara Schochet, a psychotherapist Sonia visited several times in the weeks [1312]before the capital crime. Counsel argued that Soma’s statements to Dr. Schochet during therapy would “blunt” prosecution evidence that portrayed Sonia and her family in an unblemished light, and that suggested Sonia and her family were close. Counsel also argued that Sonia’s distrust and insecurity toward her own family, and her belief that she could easily manipulate defendant, caused her to act in ways that “pushed him over the edge” and showed he was not “the main actor” in the crime.23
The prosecutor objected on grounds the evidence violated the psychotherapist-patient privilege, the hearsay rule, and relevance requirements. The trial court granted the prosecutor’s request for a hearing on the admissibility of the proffered testimony.
At the hearing, Dr. Schochet took the stand and read out loud from 10 pages of handwritten notes that she made during Sonia’s therapy sessions. Sonia reportedly made the following statements therein: As to her relationship with defendant, Sonia worried that she would lose her son to defendant, she viewed her relationship with defendant as volatile, and she found him to be unavailable when she needed him. As to her relationship with her own parents, Sonia feared becoming as dependent on defendant as her mother had become with respect to her father. Sonia recalled the trauma her mother experienced when her father left the marriage after 25 years and fathered a child with someone else. As to defendant’s personality, Sonia described him as sweet and nice, and “easily influenced” to the point that she could “tell him what to do.” According to Sonia, defendant was not as smart as she was, and she preferred someone who could take more control. However, she also believed he was vindictive, short-tempered, and anger-prone.
As pertinent here, the trial court sustained the prosecutor’s relevance objection and excluded Dr. Schochet’s testimony. The court reasoned that the feelings Sonia expressed to Dr. Schochet were irrelevant absent evidence that she communicated them somehow to defendant, and that his conduct was affected as a result. Otherwise, the court said, any mitigating inferences were speculative.
On appeal, defendant claims the trial court erred in not finding Dr. Schochet’s testimony relevant and admissible on the theories he presented [1313]below. In his view, the jury could reasonably infer from Sonia’s description of her own state of mind that she had started to detach from both defendant and her own family after giving birth to Michael, that she had turned to defendant’s mother, Doris, for support in raising Michael, that she and Doris had colluded to alienate defendant from Michael, and that such actions sent defendant into a rage that caused him to kill both women. By preventing the jury from taking these inferences into account, the trial court’s ruling allegedly violated defendant’s right to present relevant mitigating evidence, and to due process and a fair penalty trial, under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution.
As noted by defendant, the federal Constitution requires that the sentencer in a capital case not be precluded from considering relevant mitigating evidence. (Skipper v. South Carolina (1986) 476 U.S. 1, 4 [90 L.Ed.2d 1, 106 S.Ct. 1669]; Eddings v. Oklahoma (1982) 455 U.S. 104, 110 [71 L.Ed.2d 1, 102 S.Ct. 869]; Lockett, supra, 438 U.S. 586, 604 (plur. opn. of Burger, C. J.).) Such evidence includes “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” (Lockett, supra, at p. 604; accord, People v. Easley (1983) 34 Cal.3d 858, 877-878 & fn. 10 [196 Cal.Rptr. 309, 671 P.2d 813].) However, while the range of constitutionally pertinent mitigation is quite broad (People v. Whitt (1990) 51 Cal.3d 620, 647 [274 Cal.Rptr. 252, 798 P.2d 849]), it is not unlimited. Both the United States Supreme Court and this court have made clear that the trial court retains the authority to exclude, as irrelevant, evidence that has no logical bearing on the defendant’s character, prior record, or the circumstances of the capital offense. (Lockett, supra, 438 U.S. at p. 604, fn. 12; Coffman and Marlow, supra, 34 Cal.4th 1, 115-116; People v. Frye (1998) 18 Cal.4th 894, 1015 [77 Cal.Rptr.2d 25, 959 P.2d 183].)
Here, the trial court properly determined “in the first instance” that the proffered mitigation was irrelevant. (People v. Frye, supra, 18 Cal.4th 894, 1015.) Defendant sought to prove that Sonia’s insecurities and distrust of her own family caused her to act in ways that estranged her from them and from defendant, and that drove her to form a close bond with Doris. Defendant also sought to prove that Sonia’s view of defendant as someone she could “easily influence[ ]” caused her to act in ways that provoked him into killing both her and Doris. However, Sonia’s personal thoughts and feelings, as expressed during psychotherapy, are not the same as actions. Defendant’s contrary assumption defies common sense. Thus, the court properly determined that Sonia’s state of mind had no tendency in reason to prove the occurrence of a chain of events triggering a lethal response on defendant’s part—events necessary to raise the mitigating inferences he has argued here and below. (See Evid. Code, §§ 210, 351.) We find no constitutional violation or evidentiary error in the exclusion of Dr. Schochet’s testimony.
[1314]C. Lingering Doubt Evidence
Defendant contends the trial court violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution in not allowing consideration of any doubts that may have “lingered” in the minds of jurors who were not certain of his guilt beyond all doubt. (See People v. Zapien (1993) 4 Cal.4th 929, 989 [17 Cal.Rptr.2d 122, 846 P.2d 704].) As we shall explain, this claim focuses on two categories of evidence that, as he did below, defendant insists showed Sonia’s “manipulation” and “provocation” of defendant: (1) Dr. Schochet’s testimony describing Sonia’s statements about defendant, their relationship, and her own family during therapy, and (2) a pair of letters Sonia wrote to defendant in November and December 1994, in which she expressed her love for him and her interest in resuming an intimate relationship.
The trial court did not mishandle this evidence for various reasons unrelated to the concept of lingering doubt. First, as noted above, Sonia’s statements to Dr. Schochet expressing feelings about defendant and other family members did not establish “manipulati[ve]” or “provocative]” acts on the part of Sonia or defendant, as he claims. The court thus properly excluded this evidence as having no bearing on any mitigating inference defendant sought to raise.
Second, defendant erroneously implies in his opening brief on appeal that the trial court excluded Sonia’s letters to defendant. However, after noting that they were received and presumably read by defendant and were found in his possession, the trial court admitted the letters into evidence. The court reasoned that counsel, to the extent he deemed the letters “relevant to the issues before the jury,” could “make an argument as to how [such evidence] may have affected [defendant].” No constitutional violation or other error on lingering doubt occurred.
D. Prosecutor’s Closing Argument
Defendant argues that the prosecutor committed misconduct in closing argument at the penalty phase, that the trial court exacerbated the issue to some extent, and that his rights under the Fifth, Eighth, and Fourteenth Amendments of the federal Constitution were thereby violated. We disagree.
Defendant’s main complaint concerns the prosecutor’s statements that “the minimum penalty” is not adequate for some killers, and that, on behalf of the “millions of people in the State of California who enacted the death penalty,” defendant deserved the “maximum” penalty for the capital crime. Defendant (along with codefendant Lee) objected to these remarks. The trial court [1315]responded by telling the jury to disregard public opinion in sentencing defendant, that the applicable law allowed the jury to choose between LWOP and death, and that the choice was each juror’s alone to make. A short time later, during defendant’s closing argument, the court barred counsel from discussing the penalties associated with any form of criminal homicide (e.g., manslaughter) other than first degree murder.
Contrary to what defendant claims, the prosecutor did not mischaracterize LWOP as a “slap on the wrist,” and the court did not err in denying rebuttal argument on the “range of penalties for criminal homicide.” The prosecutor’s remarks concerning “minimum” and “maximum” penalties properly implied that LWOP and death were the only two penalties available in defendant’s case. (See, e.g., Prince, supra, 40 Cal.4th 1179, 1295 [LWOP is the minimum punishment]; People v. Memro (1995) 11 Cal.4th 786, 879 [47 Cal.Rptr.2d 219, 905 P.2d 1305] [death is worse than LWOP]; People v. Gonzalez (1990) 51 Cal.3d 1179, 1230, fn. 27 [275 Cal.Rptr. 729, 800 P.2d 1159] [defendant deserves the maximum penalty].) There was no misconduct in this regard, and nothing for defendant to rebut.
Regarding the prosecutor’s related reference to the electorate, any impropriety was cured by the court’s admonition to disregard the comment and to follow the sentencing instructions. Jurors could not have been misled into imposing death for abstract political reasons unrelated to the evidence in defendant’s case. (Compare People v. Rowland (1992) 4 Cal.4th 238, 276 [14 Cal.Rptr.2d 377, 841 P.2d 897] [questioning references to voters on death penalty matters] with People v. Jones (1998) 17 Cal.4th 279, 309 [70 Cal.Rptr.2d 793, 949 P.2d 890] [allowing references to jury’s civic duty to return a verdict based on the evidence].)
The last instance of alleged misconduct occurred when the prosecutor called defendant the “worst of the worst” with respect to death-eligible murderers. Defendant insists this comment urged imposition of the death penalty for reasons extraneous to his case.
The claim is forfeited for failure to object below. (See Stitely, supra, 35 Cal.4th 514, 572.) It also lacks merit. Our prior cases suggest it is not uncommon for defense counsel to argue that his client is not the “worst of the worst” in terms of death eligibility, and that death is not warranted. (See, e.g., People v. Benavides (2005) 35 Cal.4th 69, 110 [24 Cal.Rptr.3d 507, 105 P.3d 1099]; People v. Hughes (2002) 27 Cal.4th 287, 400 [116 Cal.Rptr.2d 401, 39 P.3d 432]; People v. Sakarias (2000) 22 Cal.4th 596, 638 [94 Cal.Rptr.2d 17, 995 P.2d 152].) Here, the prosecutor told jurors that he expected such an argument from the defense. There was nothing improper about this approach. (E.g., People v. Ochoa (2001) 26 Cal.4th 398, 450-452 [110 Cal.Rptr.2d 324, [131628] P.3d 78] [prosecutor may address counsel’s suggestion that defendant is not in the group deserving death (i.e., the worst of the worst) by noting that he is not in the group deserving life (i.e., the best of the worst)].) Indeed, the prosecutor linked his argument to the premeditated, painful, and personal nature of the murders. We will not reverse the judgment on misconduct grounds.
E. Effect of Ex Parte In Camera Meetings on Modification Motion
Defendant registers a second complaint on appeal about the 10 ex parte in camera proceedings that occurred between the trial court and codefendant Lee’s counsel, insisting they impaired his federal and state constitutional rights at sentencing (i.e., to due process and to freedom from cruel and unusual punishment). He assumes that Lee’s counsel, Hall, presented adverse extraneous information about defendant during these proceedings, that such information tainted the court’s view of the evidence in aggravation and mitigation, and that the court erroneously denied his automatic motion to modify the penalty verdict under section 190.4, subdivision (e) (section 190.4(e)) as a result. The primary concern seems to be that the court ignored' mitigating evidence and overemphasized aggravating evidence.
As a preliminary matter, we agree with the Attorney General that defendant has forfeited his challenge to the section 190.4(e) mling by failing to object below. Defendant cannot object for the first time on appeal where, as here, the hearing, which occurred in 1998, postdated the finality of People v. Hill (1992) 3 Cal.4th 959, 1013 [13 Cal.Rptr.2d 475, 839 P.2d 984], (Lewis and Oliver, supra, 39 Cal.4th 970, 1064.)
On the merits, the record of the section 190.4(e) hearing belies any claim of error. In ruling on the motion, the trial court applied the correct legal standard. It referred more than once to its duty to make an independent determination concerning the propriety of the death penalty, and to independently reweigh the evidence in aggravation and mitigation and determine whether, in the court’s own judgment, the weight of the evidence supports the jury verdict. (People v. Burgener (2003) 29 Cal.4th 833, 891 [129 Cal.Rptr.2d 747, 62 P.3d 1].)
In reviewing the evidence in mitigation, the trial court acknowledged that, until the time of the capital crime, defendant had lived a law-abiding life, and had done “some good things.” The court also observed that the outcome at sentencing might have been different had the murders actually occurred during a “lengthy and vituperative [family] argument” in which defendant suddenly grabbed a knife and killed Sonia and Doris in a blinding rage. However, the court made clear in independently assessing the evidence, that [1317]the death verdict was amply supported by the planned and premeditated nature of the murders, and the cruel and brutal manner in which they were committed.
Along these lines, the court said, “the premeditation in this case was exceptional. It was calculated. It was not in any sense emotionally compelled.” Also critical in the court’s view was that defendant destroyed his own family. The court emphasized that “[h]e’s deprived [his son] Michael of his mother and he’s deprived Michael of his father, namely, Mr. Carasi himself. He made this child an orphan. And in his presence.”
As to the 10 closed proceedings to which defendant now objects, we note that no discussion about the appropriate penalty for either defendant appears in the relevant transcripts, most of which are still sealed. The trial court also made no mention during the section 190.4(e) hearing of such proceedings or of its interactions with Lee’s counsel at any point in time. Nor did the court deny the modification motion based on aggravating evidence not admitted at trial. Thus, our review of the record leads us to conclude that the court carefully and properly performed its duty in denying the motion to modify the death verdict under section 190.4(e). We reject defendant’s contrary claim.
E Validity of Death Penalty Law
Defendant contends the death penalty law under which he was sentenced denied him due process and a fair penalty determination under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, and under parallel provisions of the state Constitution. We have previously rejected similar claims and do so again here. Thus, the homicide and death penalty statutes adequately narrow the class of first degree murderers eligible for the death penalty. The scheme is not overbroad because of the sheer number, nature, and scope of the special circumstances, including the lying-in-wait and financial-gain special circumstances applied here. (Stitely, supra, 35 Cal.4th 514, 573, and cases cited therein.) Nor did the trial court err in failing to instruct that the standard of proof for finding aggravating factors must be beyond a reasonable doubt, or that the jury must unanimously agree on this issue. High court decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348], and Ring v. Arizona (2002) 536 U.S. 584 [153 L.Ed.2d 556, 122 S.Ct. 2428], have not changed our conclusions in this regard. (Boyer, supra, 38 Cal.4th 412, 485, and cases cited therein.)
VII. Conclusion
The judgment is affirmed in its entirety.
George, C. J., Chin, J., Moreno, J., and Corrigan, J., concurred.
All unlabeled statutory references are to the Penal Code.
The penalty jury could not reach a unanimous verdict as to codefendant Lee. The vote was split 10 to two in favor of death. The prosecution declined to retry Lee, and she received a sentence of life without the possibility of parole for each murder count. She is not a party to this automatic appeal.
Criminalist Beverly Kerr, who arrived at Universal after the paramedics examined defendant, testified that she recovered a pile of clothing and towels from the fifth floor of the garage, including the long-sleeved Disney shirt that defendant had apparently worn. The Disney shirt was saturated with blood on the front and cuffs, and bore a bloody handprint. As discussed below, scientific testing linked most of these stains to Sonia.
Codefendant Lee testified on her own behalf, and denied involvement in the murders. She described a tumultuous affair with defendant, including odd sex practices, financial problems, and disputes with Sonia and Doris. According to Lee, she and defendant argued 10 days before the crime, and tried to reconcile at Universal on May 6, 1995. On May 14, the night of the murders, she agreed to meet defendant, Sonia, and Doris at Universal to discuss future plans. Lee testified that she parked near defendant’s car, and looked for the group in the Mall, but never saw them. Back in her car, she fell asleep and awoke when some unknown person, possibly a car]acker, grabbed and attacked her. She sped away, and stopped along Highway 170, injured and in pain. Lee denied stabbing the victims or disposing of any evidence, and had no memory of being stabbed or possessing bloody items from the crime scene. A psychologist described possible emotional reasons for Lee’s amnesia. Lee’s other witnesses, some of whom testified for the prosecution, indicated that two bloodstained washcloths were found near callbox 166 on Highway 170 two weeks after the crime. On rebuttal, the prosecution linked bloodstains on one of the washcloths to Lee.
Codefendant Lee, who was about 15 years older than defendant, presented testimony from female relatives and a female friend that Lee suffered verbal and physical abuse by her father, sexual abuse by her grandfather, physical abuse by her first husband, and marital strife with her second and third husbands. The psychologist who testified for Lee at the guilt phase opined that she was traumatized by past abuse, that she found emotional refuge with defendant (despite their odd sex life), and that she went into a dissociative state and suffered amnesia following a fight with defendant before the capital crime.
Questions No. 1 and No. 2 asked whether, despite evidence showing beyond a reasonable doubt that the defendant was guilty of first degree murder and that an alleged special circumstance was true, the prospective juror would “REFUSE to vote” to sustain the murder or special circumstance charge, respectively, “in order to avoid the possibility of a penalty phase.” Questions No. 3 and No. 4 asked whether, assuming a penalty trial occurred, the prospective juror would “AUTOMATICALLY vote” for death or LWOP, respectively, “regardless of the evidence in aggravation and/or mitigation.”
Of the 70 questions appearing on this form, 30 concerned capital punishment. For example, prospective jurors were asked to describe their general views of the death penalty, whether such views would interfere with their ability to be objective at the guilt phase or to consider imposing either death or LWOP at the penalty phase, and whether an intentional killing should always or never trigger the death penalty.
Here, as in other capital trials involving multiple defendants, defendant and codefendant Lee received 20 peremptory challenges that were “exercised jointly,” as well as five additional challenges apiece that were “exercised separately.” (Code Civ. Proc., § 231, subd. (a).) The People received, in turn, 20 peremptory challenges, plus “additional challenges equal to the number of all the additional separate challenges allowed the defendants.” (Ibid.) Defendant [1282]unsuccessfully requested more peremptory challenges than those prescribed by statute both before and near the end of this phase of jury selection.
Defendant’s questions read in full as follows: (1) “If the evidence convinces you beyond a reasonable doubt that the defendant is guilty of 2 counts of murder of the first degree, i.e., willful, deliberate, and premeditated [murder] with special circumstances, would you nevertheless REFUSE to vote that (he) (or) (she) was guilty of murder of the first degree in order to avoid the possibility of a penalty phase in the trial?” (2) “If the evidence convinces you beyond a reasonable doubt that the defendant was convicted of first degree willful, deliberate, and premeditated murder and that a special circumstance of lying in wait, financial gain, or multiple murder alleged was true, would you nevertheless REFUSE to vote that the special circumstance was true in order to avoid a penalty phase in the trial?” (3) “If there is a penalty phase in this trial, and you had already found willful, deliberate!,] and premeditated murder with special circumstances of lying in wait, financial gain[,] or multiple murder[], would you, regardless of the evidence in aggravation and/or mitigation, AUTOMATICALLY vote for the penalty of death?” and (4) “If there is a penalty phase in this trial, and you had already found willful, deliberate!,] and premeditated murder with special circumstances of lying in wait, financial gain[,] or multiple murderf], would you, regardless of the evidence in aggravation and/or mitigation, AUTOMATICALLY vote for the penalty of life in prison without possibility of parole?”
This instruction, which was read to the first group of prospective jurors and later given in the same basic form to all the other groups, stated that they must decide whether defendant “is guilty of murder of the first degree, which means a murder that is willful, deliberate, and premeditated, not accidental, inadvertent, that sort of thing, but calculated, planned .... [I]n this case the special circumstances are three in number . .. . Q] First there is an allegation that the murder was committed for financial gain. Second, it is alleged that the murder was perpetrated by lying in wait. And third, there is a special circumstance which is being convicted of more than one charge of murder in the same trial.”
For example, the first prospective juror who underwent this process circled “yes” when asked on the preliminary death penalty questionnaire whether he would automatically vote for LWOP regardless of the evidence at the penalty phase. The court then asked him the following question: “[J]ust as a hypothetical, if someone[’s] entire family was killed in the Nazi holocaust and they felt that there was some individual who was party to that. . . and there was a trial, and it was found to be first degree murder and they did it by lying in wait, so [at least one\\ special circumstance was found to be true, you would still be voting for life.” (Italics added.) The juror answered in the affirmative. After further questioning, during which the juror adhered to his LWOP stance, he was excused for cause.
For example, one of the first prospective jurors to undergo general voir dire indicated on the main questionnaire that his views on the death penalty would likely influence his vote at the guilt phase. When asked about this answer, the juror explained that he was opposed to the death penalty, would always choose LWOP over death, and had no doubts on the issue. In the process, the court asked whether such views would change if “one or more special circumstances were found to be true,” and if aggravation outweighed mitigation. (Italics added.) The person answered in the negative, and was ultimately excused for cause.
For example, one female prospective juror wrote on the main questionnaire that the death penalty was appropriate for someone who “kills another person simply for financial gain.” This answer prompted the court to examine the woman to determine whether she would always impose death in such cases, and whether she would consider evidence in mitigation. The court engaged in similar dialogues during general voir dire with persons whose questionnaires indicated that they understood the case involved “lying in wait,” as well as “financial gain,” or who wrote that they would consider whether the murders were “planned” or “premeditated" at sentencing. Other prospective jurors were examined about statements in their questionnaires regarding the appropriate penalty for “multiple” or “serial” murderers whose actions result in the death of “several people.”
Though the briefs are far from clear on this point, defendant suggests the trial court erred in refusing to ask whether prospective jurors’ views on penalty would be affected if one of the murder victims was defendant’s mother. However, defendant did not include this topic in his motion to amend the trial court’s preliminary death penalty questionnaire—the ruling under review here. Nor was matricide mentioned in counsel’s ensuing complaints to the court after it denied that motion. Indeed, in his reply brief on appeal, defendant emphasizes a point towards the end of voir dire (i.e., during the peremptory challenge phase), when the court asked a male prospective juror, who was single and lived with his mother, whether he favored a guilty verdict for someone “charged with murdering his mother as opposed to murdering some other person.” Defense counsel challenged the juror for cause because of “parallels” between his situation and defendant’s, and because the juror favored death for premeditated murders. However, notwithstanding Justice Werdegar’s dissenting view, nothing in this exchange, or in any other voir dire allusion to family ties, persuades us that defendant ever asked the court to decide below that matricide or intrafamilial murder was one of those rare circumstances which, like multiple murder or prior murder, could cause any juror invariably to vote for death, and which must be disclosed to all prospective jurors before death qualification begins. (See Cash, supra, 28 Cal.4th 703, 721, 723.) Hence, the claim is forfeited, and we do not address it on the merits here. (See People v. Robinson (2005) 37 Cal.4th 592, 639 [36 Cal.Rptr.3d 760, 124 P.3d 363] [failure to object and suggest changes to written and oral questions during death qualification forfeits complaints about their scope and content].)
As to this and certain other appellate claims, defendant contends that an issue raised and decided in the trial court resulted in constitutional violations, but he did not present those constitutional theories below. In such instances, it appears that (1) the appellate claim is the kind that required no trial court action to preserve it, or (2) the new arguments do not invoke facts or legal standards different from those the trial court was asked to apply, but merely assert that the trial court’s act or omission, in addition to being wrong for reasons actually presented to that court, had the legal consequence of violating the Constitution. To that extent, defendant’s new constitutional arguments are not forfeited on appeal. (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 [42 Cal.Rptr.3d 677, 133 P.3d 581] (Boyer), applying People v. Partida (2005) 37 Cal.4th 428, 433-439 [35 Cal.Rptr.3d 644, 122 P.3d 765].) No separate constitutional discussion is required, or provided, where rejection of a claim that the trial court erred on the issue presented to that court necessarily leads to rejection of any constitutional theory or “gloss” raised for the first time here.
The trial court also expressed concern that the Wheeler/Batson motion was untimely, because defendant did not bring it until the peremptory challenge process was almost complete and the jury was on the verge of being sworn. The Attorney General does not make a timeliness argument on appeal, and we do not address the point. (See, e.g., Zambrano, supra, 41 Cal.4th 1082, 1104, fn. 2, and cases cited.)
After reviewing the questionnaires and voir dire of each woman the prosecutor excused, Justice Kennard finds potential nondiscriminatory reasons for the excusal of all but one such panelist, and thus commendably agrees that no prima facie case of gender bias arose. In People v. Bonilla (2007) 41 Cal.4th 313, 345-349 [60 Cal.Rptr.3d 209, 160 P.3d 84] (Bonilla), we used a similar methodology to reject an arguable inference of discrimination, but nothing in our case law suggests, as Justice Kennard would have it, that this is the only valid means of doing so. Justice Kennard certainly fails to persuade us that our own approach is flawed in this regard. Justice Kennard insists we may not infer a lack of gender bias from the prosecutor’s acceptance, several times, of a jury in which women equaled or exceeded men in number. She speculates that the prosecutor could safely assume such acceptances would not really end the selection process to the extent the defense had available challenges remaining. The prosecutor, she ventures, may simply have been trying to save his own challenges to ensure the most favorable—i.e., the most gender-biased—possible jury at the end of the process. But to speculate, without evidentiary support, that the prosecutor’s acceptances were insincere, and that his tactics unfairly targeted women, ignores a simple reality. On each such occasion, the defense could easily have accepted the same female-laden panels. In short, the prosecutor ran the repeated and genuine risk of ending up with a jury consisting largely of women. Such evidence provides powerful support for our conclusion that the prosecutor’s peremptory strikes, though mostly affecting women, were in fact not exercised on the basis of gender alone or in a discriminatory manner.
We further decline to disturb the trial court’s Wheeler/Batson ruling based on defendant’s assertion that the prosecutor was following an unwritten policy of the Los Angeles County District Attorney’s Office to limit women on capital juries because of their willingness to show mercy and to consider mitigating evidence in cases involving intrafamilial conflict and murder. Nothing in the appellate record supports this view. Indeed, defendant relies exclusively on newspaper and law review articles not submitted with his Wheeler/Batson motion below or properly presented to this court on appeal.
We note that defendant’s attorney, who gave no opening statement at the guilt phase, claimed during closing argument that the prosecution had not proved defendant’s role in the murders beyond a reasonable doubt. Counsel questioned the competence of investigators, the reliability of forensic evidence, and the strength of expert testimony. He urged the jury to draw favorable inferences from evidence admitted to prove planning and motive, and from defendant’s statements after the crime. Alternatively, counsel argued that the elements of malice aforethought and premeditation required for murder had not been proved insofar as the killings were provoked by various circumstances, including Sonia and Doris’s joint efforts to separate defendant from his son, and defendant’s financial distress and looming bankruptcy.
The Attorney General suggests defendant has forfeited his right to complain about the ex parte in camera procedure on appeal to the extent he failed to object at trial. However, as the Attorney General recognizes, defendant’s counsel was apparently aware of only three of these conferences around the time they occurred—the same number of times defendant’s counsel appeared in chambers without Lee’s counsel. Thus, it appears defendant did not have sufficient information to object below on the precise ground raised here, i.e., that counsel for codefendant Lee “established a practice” of making in camera ex parte presentations to the trial court, and that the total number of these conferences was excessive. We find no forfeiture.
The specific manslaughter instructions the court rejected were CALJIC Nos. 8.37 (manslaughter), 8.40 (voluntary manslaughter), 8.42 (sudden quarrel or heat of passion), 8.50 (murder distinguished from manslaughter), 8.72 (doubt as to murder versus manslaughter), 8.74 (unanimity on murder versus manslaughter), 8.75 (verdict forms for murder and manslaughter), and 17.49 (use of multiple verdict forms).
CALJIC No. 8.73 states that if provocation played a role in an unlawful homicide, but was insufficient to reduce the offense to manslaughter, the jury should “consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation.”
Defense counsel did not link Dr. Schochet’s proffered testimony to any specific statutory sentencing factor. Counsel suggested, however, that Sonia’s statements during therapy were offered to mitigate penalty under various theories, such as to counter prosecution evidence concerning the circumstances of the capital crime, including victim impact testimony (see § 190.3, factor (a)), to show defendant acted under extreme duress or under the substantial domination of another (see id., factor (g)), to show he was a mere accomplice whose participation in the capital crime was relatively minor (see id., factor (j)), and to minimize his culpability and otherwise extenuate the gravity of the capital crime (see id., factor (k)).