People v. Potts
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Opinion
Opinion of the Court by Cantil-Sakauye, C. J.
*1015 This case arises from the robbery and murder of an elderly couple found dead in their home. A jury convicted defendant Thomas Potts of two counts of first degree murder, one count of first degree robbery, and one count of grand theft (from a different victim). ( *1016 Pen. Code, §§ 187, subd. (a) [murder], 211 [robbery], 487, subd. (a) [grand theft].) 1 The jury found that defendant knew or reasonably should have known that each murder victim was at least 65 years old. (§ 667.9, subd. (a) [elderly victim enhancement].) The jury also found true two different special circumstance allegations-multiple murder and robbery murder-and returned verdicts of death at the close of the penalty phase. (§ 190.2, subds. (a)(3) [multiple murder], (a)(17) [robbery murder].) As relevant here, the trial court found true two prior felony offense allegations; imposed a four-year determinate term based on the age of the victims; imposed a $ 10,000 restitution fine; denied the automatic motion to modify the verdict; and sentenced defendant to death. (§§ 190.4, subd. (e) [automatic motion], 1202.4 [restitution].) This appeal is automatic. **907 (§ 1239, subd. (b).) We modify the judgment by striking the four-year determinate term and otherwise affirm.
I. BACKGROUND
A. Guilt Phase
1. Prosecution case
a. Crime scene
Fred and Shirley Jenks made their home in Hanford, California. A florist attempted *11 to deliver them flowers on the morning of August 5, 1997. When the Jenkses' doorbell went unanswered, the florist entrusted the flowers to a neighbor rather than leaving them to wilt outside in the summer heat.
That evening, the neighbor went to see whether the Jenkses were home. When their doorbell again went unanswered, the neighbor peered through a glass portion of the front door. Inside, she saw Fred's body-with blood on the floor and splattered on the wall. Police later discovered Shirley's body in the master bedroom. The evidence adduced at trial suggested that Fred and Shirley had each been attacked with a hatchet-type weapon and at least one knife. There was no dispute that the attacks likely occurred the previous day, after 1:00 p.m.
Detective Darrell Walker led the homicide investigation. He observed that drops of blood near Fred's body reached as high as a roughly ten-foot-tall ceiling. Near the body, Walker saw a small metallic pin of the sort used to connect a watch band to a watch face. The watch on Fred's wrist had pins intact. Underneath him, however, was a watch with a missing pin and a partially detached band.
*1017 Bloody shoeprints were found at the scene. The prints had a wavy pattern and at least some bore the word "Nike." A print similar to those seen in several portions of the house also appeared on Fred's back.
Investigators found an open cutlery drawer in the Jenkses' kitchen. One knife was discovered in the Jenkses' pantry, sticking out of a package of cookies. The kitchen sink contained a short-bladed paring knife and a knife sharpener, both of which tested positive for blood. The blood on the sharpener could have come from Fred, but could not have come from Shirley. A longer-bladed boning or filet-type knife was found in the Jenkses' master bedroom, with blood on the knife's handle. Neither Fred nor Shirley was excluded as a potential blood contributor.
The knife in the master bedroom was found underneath various boxes. Although some valuables remained in the room, portions of it had been "ransacked"-with empty jewelry trays and more than 30 empty jewelry boxes left behind. All told, it appeared that at least 200 pieces of jewelry had been taken. By contrast, a different bedroom was found "basically immaculate."
No direct evidence indicated how the perpetrator entered the Jenkses' home. The only window or exterior door that was unlocked, however, was the front door, and glass panes made it possible to see who was outside that door before opening it. There were no signs of forced entry.
b. Causes of deaths
Armand Dollinger, M.D., performed both autopsies. He testified that Fred suffered "numerous contusions, bruises, abrasions, lacerations, and ... stab wounds." Twenty-eight separate wounds were visible on the top and back of Fred's head. Several of his fingers were nearly amputated. His chest had been stabbed nine times, causing six wounds to his lungs. His ribs were fractured in a manner consistent with "[s]omebody forcibly jumping or stomping on ... either the front or the back of the chest."
Dr. Dollinger opined that the instruments used to attack Fred likely included a knife and "a narrow-bladed hatchet" with a round hammer on the back. It was possible that Fred was stabbed with both the shorter knife in the kitchen sink and the longer knife in the master bedroom. The shorter knife alone may not have been *12 long enough to cause some of Fred's injuries.
Dr. Dollinger identified Fred's cause of death as "open cranial injuries due to multiple blunt trauma and stab wounds of the head. Other contributing conditions, multiple stab wounds of posterior chest with penetrating wounds *1018 of the lungs." Blood found in Fred's pleural cavity indicated to Dr. Dollinger **908 that Fred was "probably alive when he sustained stab wounds to the chest," though Dr. Dollinger acknowledged that prior head wounds"might have" killed Fred instantly and collectively left him, "if not already dead, [then] almost dead and dying."
Shirley suffered three main types of injuries. She was struck four times in the head with a hatchet-type weapon, fracturing her skull and causing brain tissue to extrude from a wound. She was stabbed at least six times in the chest, puncturing her heart. And she was twice slashed across the throat.
Dr. Dollinger described for the jury what he believed to be the sequence of wounds that caused Shirley's death: "It's my opinion that she was down on her back, unconscious, dying, as a result of the wounds to her head when the stab wounds were incurred. She was near-certainly near death at that time because there was very little bleeding into the chest. I feel that she was actually probably dead at the time the slashing wounds were made. I can't be absolutely certain on that, they could all have been postmortem ..., but she was near death or dead at the time the chest wounds were incurred and the slashing wounds of the throat." The longer knife found in the bedroom could have caused Shirley's stab and slash wounds.
c. Thomas Potts
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Opinion of the Court by Cantil-Sakauye, C. J.
*1015 This case arises from the robbery and murder of an elderly couple found dead in their home. A jury convicted defendant Thomas Potts of two counts of first degree murder, one count of first degree robbery, and one count of grand theft (from a different victim). ( *1016 Pen. Code, §§ 187, subd. (a) [murder], 211 [robbery], 487, subd. (a) [grand theft].) 1 The jury found that defendant knew or reasonably should have known that each murder victim was at least 65 years old. (§ 667.9, subd. (a) [elderly victim enhancement].) The jury also found true two different special circumstance allegations-multiple murder and robbery murder-and returned verdicts of death at the close of the penalty phase. (§ 190.2, subds. (a)(3) [multiple murder], (a)(17) [robbery murder].) As relevant here, the trial court found true two prior felony offense allegations; imposed a four-year determinate term based on the age of the victims; imposed a $ 10,000 restitution fine; denied the automatic motion to modify the verdict; and sentenced defendant to death. (§§ 190.4, subd. (e) [automatic motion], 1202.4 [restitution].) This appeal is automatic. **907 (§ 1239, subd. (b).) We modify the judgment by striking the four-year determinate term and otherwise affirm.
I. BACKGROUND
A. Guilt Phase
1. Prosecution case
a. Crime scene
Fred and Shirley Jenks made their home in Hanford, California. A florist attempted *11 to deliver them flowers on the morning of August 5, 1997. When the Jenkses' doorbell went unanswered, the florist entrusted the flowers to a neighbor rather than leaving them to wilt outside in the summer heat.
That evening, the neighbor went to see whether the Jenkses were home. When their doorbell again went unanswered, the neighbor peered through a glass portion of the front door. Inside, she saw Fred's body-with blood on the floor and splattered on the wall. Police later discovered Shirley's body in the master bedroom. The evidence adduced at trial suggested that Fred and Shirley had each been attacked with a hatchet-type weapon and at least one knife. There was no dispute that the attacks likely occurred the previous day, after 1:00 p.m.
Detective Darrell Walker led the homicide investigation. He observed that drops of blood near Fred's body reached as high as a roughly ten-foot-tall ceiling. Near the body, Walker saw a small metallic pin of the sort used to connect a watch band to a watch face. The watch on Fred's wrist had pins intact. Underneath him, however, was a watch with a missing pin and a partially detached band.
*1017 Bloody shoeprints were found at the scene. The prints had a wavy pattern and at least some bore the word "Nike." A print similar to those seen in several portions of the house also appeared on Fred's back.
Investigators found an open cutlery drawer in the Jenkses' kitchen. One knife was discovered in the Jenkses' pantry, sticking out of a package of cookies. The kitchen sink contained a short-bladed paring knife and a knife sharpener, both of which tested positive for blood. The blood on the sharpener could have come from Fred, but could not have come from Shirley. A longer-bladed boning or filet-type knife was found in the Jenkses' master bedroom, with blood on the knife's handle. Neither Fred nor Shirley was excluded as a potential blood contributor.
The knife in the master bedroom was found underneath various boxes. Although some valuables remained in the room, portions of it had been "ransacked"-with empty jewelry trays and more than 30 empty jewelry boxes left behind. All told, it appeared that at least 200 pieces of jewelry had been taken. By contrast, a different bedroom was found "basically immaculate."
No direct evidence indicated how the perpetrator entered the Jenkses' home. The only window or exterior door that was unlocked, however, was the front door, and glass panes made it possible to see who was outside that door before opening it. There were no signs of forced entry.
b. Causes of deaths
Armand Dollinger, M.D., performed both autopsies. He testified that Fred suffered "numerous contusions, bruises, abrasions, lacerations, and ... stab wounds." Twenty-eight separate wounds were visible on the top and back of Fred's head. Several of his fingers were nearly amputated. His chest had been stabbed nine times, causing six wounds to his lungs. His ribs were fractured in a manner consistent with "[s]omebody forcibly jumping or stomping on ... either the front or the back of the chest."
Dr. Dollinger opined that the instruments used to attack Fred likely included a knife and "a narrow-bladed hatchet" with a round hammer on the back. It was possible that Fred was stabbed with both the shorter knife in the kitchen sink and the longer knife in the master bedroom. The shorter knife alone may not have been *12 long enough to cause some of Fred's injuries.
Dr. Dollinger identified Fred's cause of death as "open cranial injuries due to multiple blunt trauma and stab wounds of the head. Other contributing conditions, multiple stab wounds of posterior chest with penetrating wounds *1018 of the lungs." Blood found in Fred's pleural cavity indicated to Dr. Dollinger **908 that Fred was "probably alive when he sustained stab wounds to the chest," though Dr. Dollinger acknowledged that prior head wounds"might have" killed Fred instantly and collectively left him, "if not already dead, [then] almost dead and dying."
Shirley suffered three main types of injuries. She was struck four times in the head with a hatchet-type weapon, fracturing her skull and causing brain tissue to extrude from a wound. She was stabbed at least six times in the chest, puncturing her heart. And she was twice slashed across the throat.
Dr. Dollinger described for the jury what he believed to be the sequence of wounds that caused Shirley's death: "It's my opinion that she was down on her back, unconscious, dying, as a result of the wounds to her head when the stab wounds were incurred. She was near-certainly near death at that time because there was very little bleeding into the chest. I feel that she was actually probably dead at the time the slashing wounds were made. I can't be absolutely certain on that, they could all have been postmortem ..., but she was near death or dead at the time the chest wounds were incurred and the slashing wounds of the throat." The longer knife found in the bedroom could have caused Shirley's stab and slash wounds.
c. Thomas Potts
Defendant Thomas Potts worked as a part-time handyman and house cleaner. Fred Jenks was one of defendant's clients. Because defendant did not own a car, Fred would usually pick him up for work. Otherwise, defendant would ride his bicycle.
Roughly six months before the murders, Sergeant Darrel Smith "contact[ed]" defendant while defendant was cycling down an alleyway. Smith testified that defendant was carrying a dark duffel bag containing a small axe or hatchet, which had a blunt edge opposite the blade. Defendant claimed to use the hatchet for construction work and left with the tool. The following month, a different officer stopped defendant. Defendant was carrying a gym bag containing pawn receipts, plus "a small hatchet" with a roughly 5-inch blade opposite something "like a hammer." Defendant again left with the tool.
Diana Williams, defendant's friend and former roommate, saw him nearly every day. She confirmed that defendant owned a hatchet with a blade and "a hammer part." Sometime during the month before the murders, defendant moved into a new apartment. Williams saw him use the hatchet in his new home to hammer speaker wire into place.
*1019 Diana also described some of defendant's other belongings. When her son Quentin outgrew a pair of Nike shoes, he gave them to defendant. Diana also had been with defendant when he purchased the watch that he wore "every day." She was familiar with it because "the watch pin that would keep the band on" would detach, and she at least twice helped him reinsert the pin.
d. Events preceding the killings
Defendant received a Social Security payment on the first of every month. Diana Williams was his payee. On August 1, three days before the killings, she received *13 the payment (around $ 600) and gave it to defendant.
Defendant was a customer at a Hanford liquor store. The store permitted him to maintain a charge account, with payment due every 30 days. Defendant would ordinarily pay the prior month's bill on the first of each month; he paid his May '97 bill on June 1 and his June '97 bill on July 1. On Friday, August 1, however, defendant did not pay his $ 140 bill for July. According to the store's owner/operator, defendant instead called that day to say that he would be in to pay his tab the following Monday or Tuesday.
Williams returned from an out-of-town trip on Sunday, August 3rd at around 4:00 p.m. Later that evening, at defendant's apartment, she and he watched a movie that he had rented. Williams estimated that they met around 5:00 p.m. and were together for two to three hours.
The next day, August 4th, defendant and Williams went grocery shopping together around 11:00 a.m. Defendant told Williams that "he didn't have any money" because he had gone to a casino in Lemoore. She did not see him after around 2:00 p.m. As noted, the **909 People and the defense agreed that the Jenkses were likely killed that day after 1:00 p.m.
e. Events after the killings
The day after the killings, on August 5th, defendant and Williams saw each other for coffee before 9:00 a.m. She returned home from work before noon. Williams believed she saw defendant again that day, though she was not sure when or for how long.
Oscar Galloway testified that he occasionally gave people rides in his car for a few dollars. He took defendant to a casino in Lemoore "a couple of times." Because his memory of the events of early August 1997 had faded, an investigator read from a report he made of an interview with Galloway a few days after the killings. According to the report, Galloway said that on August *1020 5, the day after the killings, he took defendant to a casino and to a destination in downtown Hanford near "the Cottage Bar on Seventh Street."
The evidence adduced at trial suggested that defendant visited a Hanford pawnshop "[o]n Seventh" that day. A pawnshop employee explained that transactions required photo identification and a thumbprint from the person seeking to pawn property. She identified two pawn slips concerning transactions by Thomas Potts at 1:50 p.m. on August 5. A fingerprint analyst testified that the prints on the relevant pawn slips matched defendant's prints. Defendant pawned a ring for $ 15 and a pendant for $ 35-an amount less than his liquor store tab, which he did not pay. At trial, Shirley Jenks's sister testified that the pawned items belonged to Shirley. The Jenkses' bodies were not discovered until after 7:00 p.m. on August 5th.
Two officers went to defendant's apartment at around 3:00 a.m. on August 6th, the morning after the bodies were discovered, although the record suggests that the officers were not yet aware of the aforementioned pawn transactions. Defendant voluntarily accompanied the officers to a police station, where he was questioned for about 20 or 30 minutes. When asked about his hatchet, defendant said he thought he lost it in his recent move. The officers returned defendant to his apartment and obtained defendant's consent to search. The search revealed a blue duffel bag, but no hatchet, no Nike shoes, and no bloody items.
Diana Williams testified that she and defendant likely met for coffee later that morning, sometime between 8:00 and 9:00 *14 a.m. She went to work and returned home before noon. Defendant came to her apartment. Defendant, Williams, and her son Quentin watched the noon news together; defendant and Quentin in the living room, Williams possibly in the kitchen, about 10 or 12 feet away. News of the Jenkses' deaths came on the television. Although the evidence at trial suggested that the newscast made no mention of a hatchet, Quentin asked defendant two or three times where his hatchet was. Williams testified that she "th[ought] [defendant] avoided ... the question," though she did not recall precisely how he did so. Quentin testified at trial, however, that defendant said "he [did not] want to discuss that around here because somebody might have bugged the inside of [the] wall." At the preliminary hearing, Quentin claimed that defendant said, "I don't want to talk about it anymore"-despite having not yet discussed it.
That evening, defendant and Williams ran an errand together. On the way back, she asked him what time it was. "[H]e said that he didn't have his watch on, and he never goes anywhere without his watch...."
That same day, according to the report of the interview with driver Oscar Galloway, defendant returned to Galloway's residence to retrieve a duffel bag *1021 he had left in the back of Galloway's car. The time of day is not clear from the record. According to the report, "Galloway noted that the bag did not look as packed as the day before when Potts got out of his car and left for a while."
Williams believed she saw defendant the following day (Thursday), although she was not sure at what time or for how long. That day, an officer went to the aforementioned pawn shop "to pick up the police department copies of all pawn slips since the first part of August." He gave the slips with the name Thomas Jerry Potts on them to an investigator, who then retrieved the pawned jewelry.
**910 Police arrested defendant the day after obtaining the jewelry. He was wearing eyeglasses at the time. Detective Walker removed the glasses from defendant's face and examined them for possible trace evidence. Walker saw "what appeared to be either a rust spot or a droplet of blood." Later DNA testing revealed that a combination of Fred Jenks's and defendant's genetic material accounted for the DNA on the glasses. An expert explained that it would be "[n]ot at all" surprising to find defendant's DNA on his own glasses. Assuming that defendant's DNA was on his glasses, the expert continued, the odds of another person completing the DNA profile on the glasses and contributing nothing more were 1 in 1.78 million Caucasians; 1 in 2.26 million African Americans; or 1 in 1.82 million Hispanics. Fred Jenks's death certificate described him as Caucasian.
The day of defendant's arrest, Detective Walker spoke with Diana Williams. She described defendant's watch before Walker showed her the watch found at the crime scene. When Walker then showed her the watch, she identified it as defendant's.
Near the end of that month, Williams cleaned out defendant's apartment, essentially moving him out. She did not find Nike shoes, the hatchet, a "fairly new" "pair of jeans ... he used to wear all the time," a "fairly new" Wilson shirt, or his watch.
f. Grand theft (count 4)
Before the Jenkses were killed, defendant cleaned the home of Viola Bettencourt and her companion Frank. Bettencourt wore a ring one day and placed it in a container on her dresser when she returned home. Defendant came to clean the *15 next day. The day after he cleaned, Bettencourt noticed that the ring was missing. When defendant returned to clean the following week, she accused him of taking the ring. Defendant denied the allegation, saying, "[n]o, I don't do things like that." He did not hit, threaten, or do anything that frightened her. Defendant cleaned for another hour or two, but Bettencourt did not hire him after that. *1022 A pawn slip suggested that on June 26, 1997-the same day of the week that Bettencourt believed defendant took her ring-defendant pawned a ring at about 3:00 pm. The description of the property pawned was consistent with a ring that Bettencourt identified as her own. Defendant apparently received $ 100 for the ring; paid $ 114.50 on July 1, 1997, to get the ring back; and pawned it again at a different shop that same day for $ 125. Police retrieved the ring, which Bettencourt identified as her own. Bettencourt's ring appraised for $ 1,250 in 1967 and reappraised for $ 3,500 in August 1997.
2. Defense case
The thrust of the defense was that defendant did not kill the Jenkses. Cross-examination focused on alleged gaps or inconsistencies in the prosecution's evidence, including testimony regarding the characteristics of defendant's hatchet; whether the blood on defendant's glasses was analyzed correctly; and the lack of evidence that defendant tracked home blood or had otherwise been at the crime scene. For example, defense counsel elicited testimony that a fingerprint analyst had lifted an estimated 15 to 20 usable prints from the crime scene and was able to eliminate defendant as having left any of those prints.
The only witnesses called by the defense had already testified during the prosecution's case-in-chief. Two witnesses discussed how an intensive search of defendant's apartment after his arrest failed to yield evidence that he was involved in the Jenkses' killings. Another conceded that no blood was found on defendant's bicycle. Diana Williams clarified when and where she saw defendant during the relevant period. And Quentin admitted that the comment he claimed to hear defendant make while watching the news should have been heard by his mother, who had denied hearing it. No evidence was presented regarding defendant's whereabouts after he left Williams's company on the day of the killings.
B. Penalty Phase
At the penalty phase, the People presented evidence that defendant had sexually assaulted **911 three women, including Shirley Jenks. The People also elicited victim impact testimony and introduced documents revealing that defendant had suffered several prior convictions.
a. Sexual assaults
Carol T. testified that in 1979, when she was 16 years old, she moved to California with her boyfriend and began searching for a job. When she was *1023 waiting at a bus stop, defendant offered her a ride in the car he was driving. He took her to pick up job applications. By late afternoon, Carol had asked him several times to take her home. Defendant did not do so; eventually, he instead took her to his apartment, which she did not wish to enter. When they arrived inside, defendant shut the door and put a straight razor to Carol's throat. He then raped her and attempted forcible anal penetration. Carol eventually escaped from the apartment by jumping out a second-story bathroom window. Cross-examination focused on the fact that *16 defendant had been drinking, and possibly smoking marijuana, before the assault.
Diane H. was acquainted with defendant through his then-wife Lori, who sometimes babysat on Diane's behalf. One evening in February 1980, at around 9:00 or 10:00 p.m., defendant came to Diane's house alone, intoxicated, and uninvited. Diane was home with her two young children, but her husband was incarcerated at the time. She let defendant in and offered him coffee to help sober him up, "so he could go home" without "get[ting] a drunk driving." After he was let in, defendant brought Diane to the ground and choked her. He then forced her to have intercourse with him, stopping only when her two-year-old child woke up and came into the living room. After the child returned to bed, defendant raped Diane approximately twice more. Cross-examination focused solely on the fact that defendant was drunk at the time.
Sexual Assault Response Team (SART) nurse Georgeanne Green examined Shirley's corpse for evidence of sexual assault. Green observed suspicious injuries that were consistent with forced penetration. Additionally, Forensic Pathologist Thomas Bennett reviewed Dr. Dollinger's autopsy report, a SART case summary, and photographs Green took during her examination. He concluded that although no semen was recovered from Shirley's body, there was "clearly ... evidence of forced sexual penetration of Shirley Jenks." Her injuries, he testified, could have been inflicted as early as two hours prior to her death, or as late as a few minutes after her death. If she were conscious during the assault, she would have felt pain.
Bennett was not sure what "instrument" caused Shirley's injuries. "Could it be a finger? Yes. Could it be a broom handle? Yes. Could it be a penis? Yes. It's not specific." Cross-examination elicited that Bennett did not find evidence of any nontissue blunt object (such as a broom, as opposed to a body part). Bennett further acknowledged that it was possible to examine a man to determine whether he had engaged in forcible sexual activity, and that such examination was done in this case. The People presented no evidence suggesting that the examination yielded inculpatory information. During closing argument, however, the prosecutor observed that a videotape of the crime scene showed Shirley's body at the edge of the bed, legs spread, *1024 without underwear, "and her nightgown is pulled up, over up across her waist, exposing her private area."
b. Victim impact
Clarence Washington was the Jenkses' son-in-law, through marriage to their daughter Debra. He had introduced defendant (his cousin) to the Jenkses, who had high praise for defendant's work and "really liked him a lot."
Clarence and the Jenkses were close. He had previously lived with them for about a year, vacationed with them every year for the eight years preceding their deaths, spoke with them approximately every other day, and sometimes referred to them as Mom and Dad. Fred Jenks was a father figure to Clarence, whose own father had succumbed to cancer around 1992. At the time of trial, Clarence was taking antidepressant medication and had "been in intensive outpatient therapy."
**912 Clarence also testified that Debra was quite close to her parents. She and Shirley Jenks, Clarence explained, were "more of sisters, best friends, than mother and daughter"; they were "extremely close" and spoke perhaps two or three times per day. Debra and Clarence learned of the Jenkses' deaths as the result of a TV report. A friend of Debra saw a news story about a couple who had been killed, which *17 showed parts of the Jenkses' home and a car belonging to Fred. The friend called Debra, who was (and, earlier that day, had been) unable to reach her parents by phone. According to Clarence, Debra went "ballistic." He took her to a psychiatric care facility the next morning. She stayed in that facility for 22 days, was "released for a short period," entered another psychiatric facility, was again released, entered another psychiatric facility, "and then right now she's heavily medicated." Debra, Clarence testified, is now "almost an invalid. I have to care for her just about 24 hours a day." "She has no will to live, and at times she has urinated and defecated on herself." "She's said she's not suicidal, but some of her actions warn me to think that she is."
Billie Lou Hazelum, Shirley Jenks's sister, also testified. Hazelum explained that Fred and Shirley had a "[v]ery good" relationship; they were "[l]ike love birds." She and Shirley, too, had a "[w]onderful," close friendship. When they were together, they would "go shopping, talk about old times[,] [d]ance in the morning when we'd get up to music." She thought about Shirley and Fred constantly. She even had to replace her cutlery, which reminded her of one of the knives used in the murders.
Hazelum had also had a close relationship with the Jenkses' daughter Debra. She thought of Debra as one of her own daughters and as a good *1025 friend. Since the murders, however, Debra had been unwilling to see Hazelum, because Hazelum resembled Shirley.
c. Prior convictions
The People introduced certified documents indicating that defendant had been convicted of perjury, auto theft, statutory rape (regarding Carol T.), and twice convicted of robbery.
Aside from the statutory rape conviction, defendant had not been convicted of sexually assaulting either Carol T. or Diane H. Carol T. left California before she was due to appear in court. Diane H. did not report her assault to the police. Among other things, she was afraid that if her husband became aware of the assault, he would kill defendant, "[a]nd then [her] babies would have been without a dad."
Defense counsel called only two witnesses during the penalty phase. Psychiatrist Norberto Tuason, M.D., assessed defendant about four months before the killings. Defendant complained of paranoia, and that he was hearing voices "again." Dr. Tuason concluded that defendant "suffered from chronic paranoid schizophrenia," with which defendant had been previously diagnosed. Dr. Tuason was also concerned that defendant abused alcohol. Concluding that defendant was treatable and did not require hospitalization, Dr. Tuason prescribed medication and recommended that defendant follow up with him in two months. At the follow-up meeting about two months before the killings, defendant told Dr. Tuason, " 'The voices went away.' " Dr. Tuason further explained, however, that it is often difficult to ensure that paranoid schizophrenics stay on their medication, and he made clear that "symptoms can recur within a day or two once the medication has been missed."
Among other things, cross-examination explored whether alcohol use might explain defendant's symptoms. Dr. Tuason admitted that, although his diagnosis was unchanged, excessive alcohol use alone could explain defendant's symptoms even if defendant did not suffer from schizophrenia. When asked on recross-examination, "[H]ow do you know it's not alcohol *18 abuse instead of schizophrenia ?," Tuason responded, "I don't know. You would not know." Cross-examination also revealed that defendant was aware and logical during his interview with Dr. Tuason and that defendant was capable of knowing right from wrong. Moreover, although Dr. Tuason concluded **913 that defendant had "subnormal intelligence," his conclusion was based solely on defendant's description of his academic performance, rather than an IQ test or a review of academic records. *1026 Dr. Tuason told the jury that defendant had been examined by a social worker on August 10, 1997, several days after the murders. The social worker indicated that defendant was " 'currently medically noncompliant,' " which, Tuason explained, means in the field that defendant was not taking medication as recommended. That notwithstanding, defendant reportedly " 'denie[d] any hallucinations, suicidal ideations or homicidal thoughts' "; was " '[n]ot exhibiting any psychotic behaviors' "; and did not " 'present an immediate danger to self or others.' "
Defendant's mother Lula also testified. Lula and defendant's father separated when defendant was about two years old. Defendant "loved his father and he couldn't understand why his father wasn't there."
Lula moved the family to Los Angeles when defendant was about two-and-a-half years old. She raised him as a single mother until he was about 14 years old, after which she remarried. Defendant was a "good boy" until he was about 16, when he began getting in trouble, "joyriding in cars and things like that." She and defendant's stepfather then brought him back to Hanford (where he had been born), apparently at defendant's request. According to Lula, defendant believed he would be able to stay out of trouble in a small town. He also "loved his cousins" in the Hanford area and "wanted to be around them."
Lula asked the jury to spare her son's life. Even after he found trouble, she testified, she knew him to be "a quiet, easygoing person" who "loved his family a lot." He loved and tried to protect his mother and sister. He came to know and love his stepfather. He was kind, loving, and compassionate with his own son. "My son didn't kill those people," she testified, "[h]e's not that kind of a person." Defendant, she added, was "brought up God fearing," and during his incarceration, "[h]e's reading the bible, he's praying."
II. DISCUSSION
A. Sufficiency of the Evidence
Defendant concedes that the evidence adduced at trial provides "an arguably satisfactory" answer to the question of who killed the Jenkses. Indeed. The evidence inculpating defendant as the killer included the blood on his glasses; the jewelry he pawned before the Jenkses' bodies were discovered; the lack of indicia of forced entry; his missing watch, found under Fred Jenks's corpse; the hatchet supposedly lost in his move, yet seen in his new apartment; and his refusal to answer Quentin's questions about where the hatchet could be found. That said, a conclusion that defendant killed the Jenkses does not itself imply that he is guilty of murder in the first degree.
*1027
Instead, defendant is guilty of two counts of first degree murder only if each killing (1) was premeditated and deliberate or (2) occurred during the commission or attempted commission of robbery. (See § 189 [first degree murder];
People v. Daveggio and Michaud
(2018)
Defendant contends that the evidence was insufficient to support either theory. We disagree. Viewing the evidence in the
*19
light most favorable to the prosecution, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, that the killings were deliberate and premeditated, and that they occurred during the commission of a robbery. (
Jackson v. Virginia
(1979)
1. Premeditation and deliberation
"A murder that is premeditated and deliberate is murder of the first degree." (
People v. Jurado
(2006)
The evidence that defendant arrived at the Jenkses' home carrying a weapon suggests that the murders were planned. (See
People v. Salazar
(2016)
Defendant also had a motive to kill the Jenkses: to facilitate the taking of Shirley Jenks's jewelry. (Cf.
Perez
,
supra
, 2 Cal.4th, at p. 1128,
*20
The manner of the killings also supports a finding of premeditation and deliberation. The attack-involving multiple weapons, numerous stabs and slashes, and, apparently, a knife-sharpening interlude-was undoubtedly "prolonged." (
People v. Sandoval
(2015)
On appeal, defendant encourages us to speculate about what might have happened inside the Jenkses' home, in service of an argument that the jury *1029 could not have ruled out his speculative hypotheticals beyond a reasonable doubt. We are not persuaded. Defendant's appellate briefing suggests, for example, that he may have gone to the Jenkses' house to work and killed in a spontaneous fit of rage. But the Jenkses were found dressed in night clothes, not as though they were expecting company. Further, Diana Williams testified that defendant ordinarily told her when he would be working, which he did not do in the week or so before the killings: "Q. In the week or so before [the day the bodies were discovered], did [defendant] mention anything about going to work for the Jenks? [¶] A. No. [¶] Q. Did he normally tell you when he was going to be working? [¶] A. Yes. [¶] Q. And he didn't tell you? [¶] A. No." In this context, the fact that officers found a few bloody dollars on Fred Jenks's body would not have required rational jurors to conclude that the murders were the spontaneous result of a job gone bad, rather than premeditated.
Moreover, this theory calls for further speculation that (i) defendant had a legitimate reason for arriving with a hatchet (which would seem unnecessary for mere housekeeping work); that (ii) defendant was somehow and for some reason enraged; and that (iii) the Jenkses died before defendant formed a deliberate and premeditated intent to kill them. As to this last premise, even if the Jenkses were dead by the time of the knife attacks, postmortem conduct can still be probative of a defendant's state of mind before the fatal wounds were inflicted. (See, e.g.,
People v. Manibusan
(2013)
Defendant's appellate briefing also suggests that perhaps he went to the Jenkses' home to solicit a cash advance. But the evidence indicated that he and Fred Jenks had communicated via telephone in the past, making an unannounced drop-in seem unnecessary. Nor is it clear why defendant would need to bring his hatchet to request an advance innocently. And here, too, there is a wide gulf between (1) a theory that defendant showed up for an innocuous reason and (2) the violent killings revealed by the evidence. (Cf.
People v. Zamudio
(2008)
2. Robbery
Defendant further contends that the evidence was insufficient to support a conclusion that the killings occurred during the commission of a robbery. (See § 189 ["All murder that is ... committed in the perpetration of ... robbery ... is murder of the first degree"].) "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "[A] conviction of robbery cannot be sustained in the absence of evidence that the defendant conceived his intent to steal either before committing the act of force against the victim, or during the commission of that act; if the intent arose only after the use of force against the victim, the taking will at most constitute a theft." (
**916
People v. Morris
(1988)
" ' "[W]hen one kills another and takes substantial property from the victim, it is ordinarily reasonable to presume the killing was for purposes of robbery." ' " (
People v. Jackson
(2016)
Notably, even defense counsel's hypothetical reasons why defendant may have been at the Jenkses' home center on an attempt to acquire funds, whether through work or by requesting an advance. Even if defendant had been provoked into a rage-because no paying work was available, or because no cash advance would be made-the evidence would support a *1031 conclusion that the killings occurred during the commission of a robbery if defendant formed the intent to take the jewelry while killing the Jenkses. A rational jury applying the beyond-a-reasonable-doubt standard could rule out a hypothetical scenario in which defendant dropped in for an unannounced social visit (with a hatchet, at a time when the Jenkses were in their night clothes); became sufficiently enraged to brutally murder the people he was visiting; and then decided, as an afterthought, to take the jewelry.
To conclude that the evidence of a preexisting intent to steal was sufficient to prove the crime of robbery, it is not necessary to rely on the evidence that defendant lacked money to go grocery shopping and had recently pledged to pay his liquor-store debt. But these circumstances further confirm that the evidence of robbery was sufficient. Recall that three days before the killings, defendant called a liquor store to say that he would pay his debt on Monday, August 4 (the day the Jenkses were killed) or Tuesday, August 5 (the day he pawned some of Shirley Jenks's jewelry). As noted, Diana Williams's testimony indicated that as of August 4, defendant "didn't have any money to go grocery shopping." These facts support an inference that defendant (whose schedule appeared to be flexible) did not merely lack time to pay the liquor store on or right after August 1, but instead, that he lacked the resources. More importantly, these facts suggest that defendant expected to acquire resources sufficient to cover his $ 140 tab-by the day of, or after, the Jenkses were killed. A rational trier of fact could understand this evidence to point toward a preconceived plan to rob.
Defendant urges us to ignore these details in our analysis of the sufficiency of the evidence, asserting that "poverty is such poor evidence of a motive for theft, much less robbery and murder, that it is not even admissible on that issue." This argument misses the mark twice over. First, it is true that "a defendant's poverty generally may not be admitted to prove a motive to commit a robbery or theft; reliance on such evidence is deemed unfair to the defendant, and its probative value is outweighed by the risk of prejudice." (
Koontz
,
supra
, 27 Cal.4th at p. 1076,
**917
Lockhart v. Nelson
(1988)
Second, this evidence did not merely show that defendant was impoverished. Instead, it revealed a baseline of his finances-whatever their state-and showed that he expected to acquire enough money to cover a debt that exceeded his current ability to pay. It is the expected acquisition of funds in the near future that makes these circumstances probative, not the mere fact of poverty. (Cf.
People v. Kelly
(1901)
To be sure, defendant's call to the liquor store did not necessarily imply that he planned to take the Jenkses' property. The call was made before he told Diana Williams that he had lost his money at the casino, and it is possible that he lost his money after the call but before speaking with Williams. It also appears that defendant did not pay the debt, perhaps because the jewelry he pawned yielded less than the amount he owed. Regardless, details surrounding the call-defendant's deviation from the norm of paying on the first of the month, yet apparent expectation of having money a few days later-provide additional circumstantial evidence in support of the jury's verdict.
B. Reasonable Doubt Instruction
Defendant raises several arguments concerning the definition of "reasonable doubt" provided to the jury. He claims that a pattern instruction inadequately defined that concept. He further contends that the instruction was undermined both by asserted prosecutorial misconduct and by the trial court's comments during jury selection. Even assuming defendant's claims are preserved for our review, we perceive no reversible error.
1. CALJIC No. 2.90
"The federal Constitution's due process guarantee 'protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' [Citation.] The Constitution 'does not require that any particular form of words be used in advising the jury of the government's burden of proof,' but
*1033
it does require that, ' "taken as a whole, the instructions ... correctly conve[y] the concept of reasonable doubt to the jury." ' [Citation.] What matters, for federal constitutional purposes, is 'whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on' insufficient proof." (
Daveggio
,
The jury was instructed with CALJIC No. 2.90. The court advised: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving
*24
him guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating
**918
to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge." We have "repeatedly upheld" this instruction "against constitutional challenge." (
Daveggio
,
supra
, 4 Cal.5th at p. 840,
Defendant complains that the instruction "merely tells the jurors that they need to expect to remain convinced of the truth of the charge for a prolonged period ('abiding conviction'), without telling them
how
convinced they must be." We perceive no error. "An instruction cast in terms of an abiding conviction as to guilt ... correctly states the government's burden of proof." (
Victor v. Nebraska
(1994)
Defendant also complains of the instruction's statement that a defendant "is presumed to be innocent
until
the contrary is proved, and in the case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty." (Italics added.) Defendant argues that the term "until" implies that the People will inevitably satisfy their burden. We disagree. The word "until" can refer to a condition that may never be satisfied. No reasonable juror would have understood the instruction to suggest that the People would inevitably satisfy their burden of proof, because "the instruction ... expressly dictates what should occur in the event the jury finds a reasonable doubt." (
Lucas
,
supra
, 60 Cal.4th at p. 296,
*1034 2. Asserted prosecutorial misconduct
The case against defendant was tried by two prosecutors, Michael Reinhart and Gayle Helart. Defendant contends that Helart committed misconduct during the rebuttal portion of closing argument, lowering the People's burden of proof. There was no error.
a. Background
Because defendant's challenge to Helart's rebuttal argument draws on the context in which that argument was made, we begin by describing the arguments that preceded hers.
Deputy District Attorney Reinhart delivered the initial portion of the People's closing argument. In pertinent part, he argued: "Lastly, on the idea of these instructions and the law, I know they may have sounded like the instructions on how to do-how to program your VCR or stereo. They get rather complicated and convoluted. But at the core of them, they're really based on common sense. And if you're back there and you find yourself going against your common sense, you say something like, well, we know he's guilty, but the instructions say this, so does that mean that we have to find him not guilty? If you find yourself going against your common sense, going off on places where you really don't think common sense tells *25 you you should be going, stop. Come back, ask the judge to clarify them. Don't go down too far a road because you may be misreading or reading too much into the instructions. They really are based on common sense, and, again, if you're violating your common sense, you're going against something you just think, hey, this don't sound right, ask the Judge. That's very common to do. Be sure you understand the instructions."
After Reinhart concluded, defendant's trial counsel delivered closing argument. In pertinent part, counsel contrasted proof by a preponderance of the evidence, proof by clear and convincing evidence, and proof beyond a reasonable doubt. He continued, "If you go back into that jury room and you tell yourself and your colleagues agree, you know, I'm pretty sure he did it, you have to enter **919 verdicts of not guilty because the law says you've got to be more than pretty sure."
Deputy District Attorney Helart responded as follows: "Defense tried to do this, I don't know, hierarchy of reasonable doubt, and boy, when the defense does the hierarchy it just sounds like preponderance is way down here, and clear and convincing is kind of here, and beyond a reasonable doubt is clear up here, high as Mt. Everest. That's sort of what the inference is, kind of like a bar chart or something. Well, you know, we could do a bar chart the other *1035 way, and let's start with beyond a reasonable doubt right down here, and then you could go beyond a shadow of a doubt right there, and beyond any doubt right here, and absolutely certain up here, and then way up here is one hundred percent certain. So you see that's not really very helpful. You can kind of manipulate bar charts any way you want to and that's not helpful. [¶] But in your consideration of reasonable doubt don't ever come back and tell a prosecutor, 'Gosh, you know, we believed he was guilty, but-.' Don't do that. If you believe he's guilty today and you'll believe he's guilty next week then that's that abiding conviction that's going to stay with you. And 'beyond a reasonable doubt' is defined in the jury instructions it's not a mere possible doubt; anything open to being human has some possible or imaginary doubts. It's what's reasonable." (Italics added to the language challenged on appeal.)
b. Analysis
Defendant argues that the portion of Helart's rebuttal emphasized above diminished the reasonable doubt standard. The claim is not preserved for our review. "A claim of prosecutorial misconduct is ordinarily preserved for appeal only if the defendant made 'a timely and specific objection at trial' and requested an admonition." (
Daveggio
, 4 Cal.5th at p. 853,
Defendant contends that he "is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights." (
*26
People v. Vera
(1997)
Defendant likewise fails to identify any authority indicating that forfeiture concerns are irrelevant because his claims concern " 'a pure question of law which is presented by undisputed facts.' " (
*1036
People v. Hines
(1997)
Even assuming that there was no forfeiture (or that we should reach the merits regardless, as a matter of discretion), there was no error. A claim of prosecutorial misconduct may have merit even absent proof
**920
that a prosecutor had "a culpable state of mind." (
People v. Hill
(1998)
In context, it is not reasonably likely that jurors understood Helart's remarks in an objectionable fashion. A reasonable juror would interpret the argument as a whole as carrying the general import that an abiding conviction is one so strongly held that it lasts, rather than one that is fleeting and might weaken in the near future. As context reveals, the argument was framed in response to the defense's "hierarchy of reasonable doubt"; jurors, Helart argued, should not be misled into acquitting based on that hierarchy (" 'Gosh, you know, we believed he was guilty, but-' "), but should instead rely on the actual meaning of " 'beyond a reasonable doubt,' " a phrase "defined in the jury instructions."
*27
Our recent decision in
Cortez
supports this conclusion. The prosecutor in that case stated: " 'The court told you that beyond a reasonable doubt is not
*1037
proof beyond all doubt or imaginary doubt. Basically, I submit to you
what it means is
you look at the evidence and you say, "I believe I know what happened, and my belief is not imaginary. It's based in the evidence in front of me." ' " (
Cortez
,
supra
, 63 Cal.4th, at p. 130,
Faced with a claim of misconduct, we "observe[d] that the challenged remarks, viewed in isolation, were incomplete at best. They informed jurors that their 'belief' about what had happened had to be 'based in the evidence' rather than 'imaginary.' " (
Cortez
,
supra
, 63 Cal.4th at p. 131,
There was likewise no error here. True, this case is not precisely the same as
Cortez
; for example, defense counsel did not object to Helart's remarks. But those remarks were brief, they were made in response to defense counsel's comments, and they referred jurors to the court's instructions. Moreover, the court instructed jurors, both immediately after they were sworn and before the start of closing arguments, that "[i]f anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions
**921
on the law, you must follow my instructions." (Cf.
Cortez
,
supra
, 63 Cal.4th at p. 131,
During jury selection, the trial court gave prospective jurors an example of when someone might draw a conclusion based on circumstantial evidence. Defendant contends that, in doing so, the trial court diluted the reasonable doubt standard.
Before prospective jurors received questionnaires, the trial court used CALJIC No. 2.90 to instruct them about the presumption of innocence and the burden of proof beyond a reasonable doubt. After the questionnaires were completed, a prosecutor asked whether the attorneys would be permitted to question prospective jurors "during general voir dire." When the trial court indicated that it "had not intended to permit that," the prosecutor asked the court to add "two questions ... to its list." The first question concerned whether jurors would be biased in favor of the defense because more people would be sitting at the prosecution's table at trial. Defense counsel objected, and the court refused to ask the question.
The prosecutor's second request concerned the burden of proof. The prosecutor explained to the court: "[I]t appears that a number of these jurors, notwithstanding the Court having already instructed that the burden of proof is beyond a reasonable doubt for the guilt phase, have expressed opinions that because it's a death penalty case it would require guilt beyond a shadow of a doubt, at least expressed by one, one said like a hundred percent. There is at least enough of them to raise a concern by us that they would not follow the law." The court responded, in pertinent part, "I do intend to include a discussion of circumstantial evidence and I intend to remind the jurors or to inform the jurors that a consideration of circumstantial evidence is no different in a death penalty case than it is in any other trial.... [I]f a juror either indicates here or has indicated in their written declarations that they're *1039 going to have a problem utilizing those conventional criteria for evaluating circumstantial evidence and following the Court's instructions on burden of proof, then I'll-we'll individually examine them." Defense counsel did not object, nor probe the connection between the prosecutor's requested question (regarding the burden of proof) and the court's anticipated question (regarding circumstantial evidence).
Four panels of prospective jurors were called to the courtroom. The court illustrated for each panel the concept of circumstantial evidence. Before doing so, the court explained **922 the purpose of the illustration, with statements like, "One of the types of evidence that people sometimes are a little confused about is the evidence that we call circumstantial evidence.... There's nothing mystical about circumstantial evidence, and the best way to approach this would be just to give you a simple example."
The example that most strongly supports defendant's claim of error went as follows: "Let's assume that you or your spouse prepared ... a raspberry pie and *29 you set that on the counter to cool. There's nobody home except you and your nine-year-old child, and you tell the child to stay away from that pie, that you have company coming that evening and you don't want the pie to be messed up, keep their fingers out of it. And then you leave and you go about your tasks. Nobody else comes or goes from the house. An[ ] hour or two later you come back into the kitchen and somebody has stuck their finger in that pie, and you go look for the child, and sure enough, there's your nine-year-old in the bedroom and he or she has raspberry pie filling on their lower lip. I don't think you'd have any trouble figuring out what happened to that pie. Now, that's circumstantial evidence, sure, but I think most moms or dads would arrive at a conclusion beyond any reasonable doubt under those circumstances that that child was the one who got into that pie." (Italics added.) It appears two seated jurors heard this version of the illustration. Other versions did not include the "reasonable doubt" language, instead stating, for example, "I don't think any of you would have a problem figuring out what happened to that pie."
b. Discussion
In assessing defendant's argument that the trial court's raspberry pie example diminished the reasonable doubt standard, the relevant question is whether " 'there is a reasonable likelihood that the jury understood the instructions [as a whole] to allow conviction based on' insufficient proof." (
Daveggio
,
supra
, 4 Cal.5th at p. 840,
Defendant claims there is a reasonable likelihood that the raspberry pie example caused prospective jurors to believe their "task was to determine
*1040
what had actually happened in the case before them, as opposed to whether the prosecution had made a sufficient case for [defendant's] guilt." We disagree. The trial court explained to each of the four panels of prospective jurors that its example illustrated the concept of circumstantial evidence. We have no reason to doubt that jurors understood this point. The example was merely a portion of the guidance provided to prospective jurors-let alone seated jurors-and the balance of the court's instructions made clear that the People bore the burden of proof beyond a reasonable doubt. (See, e.g., CALJIC No. 2.90 ; see also
Daveggio
,
supra
, 4 Cal.5th at p. 842,
Defendant is on somewhat firmer ground when he complains that the court's example "compared the jurors' duty to decision-making in ordinary life," though only to the extent that he challenges the court's statement that "most moms or dads would arrive at a conclusion beyond any reasonable doubt under those circumstances that that child was the one who got into that pie." We perceive no error.
We have explained that "jurors should not be instructed to convict based on the level of certainty needed to make decisions 'in the ordinary affairs of life.' " (
Daveggio
,
supra
, 4 Cal.5th at p. 841,
The trial court's raspberry pie example avoids the core of this concern. The court did not communicate that if jurors had sufficient confidence to make an ordinary or even important life decision, then they had been convinced beyond a reasonable doubt. The court instead provided a commonly used court example of a fictional scenario and indicated that most parents would be able to reach a beyond-a-reasonable-doubt conclusion-having already told prospective jurors what "beyond a reasonable doubt" means. To be clear, we do not condone the court's reference to the reasonable doubt standard in its illustration of circumstantial evidence. (See
Daveggio
, 4 Cal.5th at p. 844,
*1041
Nevertheless, we cannot conclude that this brief, inartful pretrial reference to the reasonable doubt standard-a standard the court had already defined properly and would again define after the close of evidence-created any " 'reasonable likelihood that the jury understood the instructions to allow conviction based on' insufficient proof." (
Daveggio
,
supra
, 4 Cal.5th at p. 840,
Shifting away from his arguments regarding the burden of proof beyond a reasonable doubt, defendant further complains that the trial court's comments "violated the evenhandedness which due process demands." This contention is meritless. To the extent defendant claims that the court was not, in fact, evenhanded, the comments he identifies fall far short of establishing that claim. Here, the court had reason to be concerned that at least some jurors were unaware of the rules governing capital trials. The court's effort to "disabuse" jurors of a possible misconception-in a manner the defense did not find objectionable-in no way hints at partiality. The claim also overlooks examples of the trial court's conduct that were favorable to defendant, including the court's efforts to limit any unduly prejudicial effect of the crime scene video and photographs, and, close in time to the comments at issue here, the court's refusal to ask one of the questions requested by the prosecution.
To the extent defendant claims the court conveyed to jurors an appearance of partiality, the claim also lacks merit. The court's hypothetical, though lengthy and colloquial, did not concern a fact pattern like the case before the prospective jurors, and nothing the court said could reasonably be viewed as a comment on the evidence. Moreover, this claim plucks the court's comment from context. Before jurors filled out questionnaires, for example, the court explained that "we have no idea if we will ever get to the penalty phase of this trial." It further emphasized that "[t]he fact that the defendant is in court for trial or that charges have been made against him is no evidence whatsoever of his guilt. You are to consider only evidence properly received in this courtroom in determining the guilt or innocence of the defendant." The court also instructed seated jurors with CALJIC No. 2.01, which explains when circumstantial evidence is insufficient to support a conviction. And, immediately before the seated jurors began their deliberations, the court instructed them with CALJIC No. 17.30 : "I have not intended by anything I have said or *31 done, or by any questions that I may have asked, or by any ruling I may have made, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness. [¶] If anything I have done or said has seemed to so indicate, you will disregard it and form your own conclusion." We have no persuasive reason to doubt that the jurors followed this instruction. *1042 It may be preferable, as defendant asserts, to use more neutral examples to illustrate the concept of circumstantial evidence, rather than inculpatory fact patterns. (See, e.g., CALCRIM No. 223 ["[I]f a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside"].) Even if the court's framing was error, however, it was plainly harmless under any potentially applicable standard. **924 C. Other Claims of Guilt-phase Instructional Error
Defendant complains of several other instructions given during the guilt phase of his trial. Even assuming his claims of error are preserved for our review, none has merit. (Cf.
Daveggio
,
supra
, 4 Cal.5th at p. 840,
1. Burden of proof regarding robbery and grand theft
The jury was instructed with CALJIC No. 2.15. The court advised: "If you find that a defendant was in conscious possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the crimes of robbery and grand theft. Before guilt may be inferred there must be corroborating evidence tending to prove defendant's guilt. However, this corroborating evidence need only be slight and need not by itself be sufficient to warrant an inference of guilt. [¶] As corroboration you may consider the attributes of possession[-]time, place, and manner[,] that the defendant had ... an opportunity to commit the crime charged, the defendant's conduct, a false account of how he acquired possession of the stolen property, and any other evidence which tends to connect the defendant with the crime charged." This pattern instruction is "generally favorable to defendants; its purpose is to emphasize that possession of stolen property, alone, is insufficient to sustain a conviction for a theft-related crime." (
People v. Gamache
(2010)
Defendant contends this instruction lowered the People's burden of proof. He similarly asserts the instruction permitted the jury to draw an irrational inference, in violation of his right to due process. "We have previously rejected the same arguments, concluding that CALJIC No. 2.15 appropriately permits-but does not require-jurors to infer guilt of burglary, robbery, or theft from the possession of stolen property plus some corroborating evidence, and that it does not violate due process or reduce the burden of proof." (
People v. Grimes
(2016)
2. After-acquired intent and robbery
Defendant contends that by instructing the jury with CALJIC No. 9.40.2, the court misled jurors into believing that they could find defendant guilty of robbery even if his intent to take the Jenkses' property arose after his use of force was complete. We disagree.
CALJIC No. 9.40.2 provides: "To constitute the crime of robbery, the perpetrator must have formed the specific intent to permanently deprive an owner of [his] [her] property before or at the time that the act of taking the property occurred. If this intent was not formed until after the property was taken from the person or immediate presence of the victim, the crime of robbery has not been committed." Defendant rightly observes that it is possible for someone to form an intent to permanently deprive another of property before "the act of taking the property" is complete, but after the use of force has concluded.
**925
The problem with defendant's argument is that CALJIC No. 9.40.2 merely sets out one of several conditions necessary for a robbery conviction, a felony murder conviction based on robbery, or a robbery-murder special-circumstance true finding. The jury was elsewhere "adequately informed concerning the point in time the intent to steal must have been formed" (
People v. Hughes
(2002)
*1044 3. Acquittal-first rule
Although a jury is free to consider greater and lesser included offenses in whatever order it chooses (see
People v. Kurtzman
(1988)
Defendant's trial counsel asked the court to instruct on CALJIC No. 17.10, which describes this so-called acquittal first rule. Defendant now complains, however, that the rule creates an intolerable risk that a juror may acquiesce to a first degree murder conviction. The hypothesized juror may believe that a defendant is guilty of second degree murder. But, the hypothesis continues, a juror may perceive that fellow jurors will be unwilling to acquit of first degree murder, and thus feel pressured to convict of that offense rather than causing a mistrial. (Cf.
United States v. Tsanas
(2d Cir. 1978)
We have repeatedly rejected challenges to this acquittal-first rule, albeit sometimes in the context of a different pattern instruction. (See
People v. Brooks
,
supra
, 3 Cal.5th at pp. 81-82,
*1045
People v. Cox
(2003)
**926
People v. Nakahara
(2003)
In light of defendant's thorough and thoughtful briefing on the subject, however, we make one observation. The choice defendant hypothesizes is far afield from requiring a jury to choose between convicting a defendant of a capital crime or convicting him of nothing at all. (Cf.
Beck v. Alabama
(1980)
In any event, it is difficult to imagine that the acquittal-first rule had any effect in this case. There is no reason to believe the rule would have caused jurors to unanimously find true the robbery-murder special-circumstance allegation. That finding thus confirms that the jury unanimously believed defendant was guilty of at least felony murder.
4. Burden of proof regarding the degree of murder
Defendant contends that another pattern instruction "tended to," among other things, "place the burden of raising a doubt" as to the degree of murder on the defense. We are not persuaded.
The instruction at issue informed the jury: "If you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by a defendant, but you unanimously agree that you have a reasonable doubt whether the murder was of the first or of the second degree, you must give defendant the benefit of that doubt and return a verdict fixing *1046 the murder as of the second degree as well as a verdict of not guilty of murder in the first degree." (See CALJIC No. 8.71 (6th ed. 1996).)
Defendant complains that this "instruction stated, in effect, that the jury had to find a doubt in order to make the crime of the second degree," and thus "implied that the default finding was first-degree murder." "And if the jury had to be convinced of a doubt to reduce the charge," he continues, "the further implication was that the defendant was the party to do the convincing, by raising one." 9
There is no reasonable likelihood that the jury understood the instruction in this way. (
Estelle v. McGuire
(1991)
Defendant also argues that the instruction was flawed because it "stated a need for a collective finding" of doubt, notwithstanding his "right to each juror's individual judgment." We have acknowledged that, viewed in isolation, the instruction's focus on whether "you unanimously agree that you have a reasonable doubt" ( CALJIC No. 8.71 (6th ed. 1996)) "carr[ies] at least some potential for confusing jurors about the role of their individual judgments" (
People v. Moore
(2011)
5. Consciousness of guilt instruction
The jury was instructed with CALJIC No. 2.03. The court advised: "If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide." "The cautionary nature of [this] instruction[ ] benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory." (
People v. Jackson
(1996)
Defendant first argues that the instruction was not applicable to the facts of his case. It was. The morning of August 6, the day after defendant pawned Shirley Jenks's jewelry, defendant spoke with two officers regarding his hatchet. As one officer testified: "[W]e then asked him ... could we see the hatchet? And then he said he didn't have it, he thought that he lost it. [¶] We then went on to ask him where it could have been lost or how it could have been lost? He told us that he recently had moved from one apartment in the complex to another apartment in the complex and he must have lost it in the move." By contrast, Diana Williams testified that she had seen defendant use the hatchet in his new apartment to hammer speaker wire into place. Moreover, also on August 6, defendant refused to answer Quentin's repeated questions about where the hatchet had gone-conduct undermining defendant's appellate theory that his statement to police about losing the hatchet could
*36
have been "an honest mistake." On these facts, the
**928
instruction was
*1048
amply justified. (See
People v. Russell
(2010)
Defendant also claims that the instruction is impermissibly argumentative. We have repeatedly held otherwise and see no persuasive reason to revisit or distinguish our precedent. (See, e.g.,
People v. Henriquez
(2017)
6. Requiring unanimous agreement on a theory of first degree murder
The jury was instructed that "[i]n arriving at a verdict for first degree murder, it is not necessary that all jurors agree on one or more of several theories proposed by the prosecution." Defendant contends that the jury should have been required to unanimously agree on which of the prosecution's theories had been proved beyond a reasonable doubt: premeditated and deliberate murder, or robbery felony murder. We have rejected this argument in the past and see no persuasive reason to revisit the issue. (See, e.g.,
People v. Sattiewhite
,
supra
, 59 Cal.4th at p. 479,
*1049 D. Admission of Report on Galloway's Statement
On rebuttal, an investigator read aloud from his report of an interview with driver Oscar Galloway. Defendant contends the report was hearsay, admitted in violation of state law and the confrontation clause of the Sixth Amendment to the United States Constitution. We conclude that any statutory error was harmless at the guilt phase *37 and that no constitutional violation occurred.
1. Background
Detective Walker spoke with Oscar Galloway at Galloway's residence a few days after the killings. At trial in June 1998, Galloway explained that he was then undergoing cancer treatment and lacked a full and accurate recollection of the events of early August 1997. He did, however, identify defendant in the courtroom; testify that he had driven defendant to a casino "a couple of times"; recall speaking with Walker; and claim that he answered Walker's questions honestly. Galloway acknowledged on cross-examination that he could not recall what he told Walker and was not able to recall when he drove defendant to the casino. Galloway added that **929 his medical problem did not "really [come] down" on him until October 1997, about two months after the Walker interview.
Over defendant's objection, the trial court allowed the detective to read aloud from his report of the interview. The detective then testified as follows: "Galloway said that on Tuesday, 8-5-97, ... Potts wanted to go to The Palace and ... play the slots. He also wanted to go downtown. Galloway said that Potts entered the car with a large blue duffel bag. When Galloway parked his car, Potts exited with the duffel bag and said he would be back shortly. [¶] Galloway stood out in front of the Cottage Bar on Seventh Street talking to a friend until sometime later Potts came back. They then went to The Palace and played the slot machines. Galloway said that they did not stay there very long, however. [¶] Galloway did not think much of it until the next day, 8-6-97, when Potts came to his house and asked him if Potts had left his duffel bag in the back of Galloway's car. Galloway did not know for sure, and he knew that his car was locked, so he and Potts walked together to the car to look for the duffel bag. [¶] According to Galloway, the duffel bag was found on the back seat in the car. Potts retrieved the bag. Galloway noted that the bag did not look as packed as the day before when Potts got out of his car and left for a while."
2. Analysis
Defendant first argues that admission of the statement violated the confrontation clause, because "the statement was made out of court and
*1050
without an opportunity for cross-examination." This argument lacks force, because Galloway was available for cross-examination about the statement at trial, his memory problems notwithstanding. (See
People v. Cowan
(2010)
Defendant next argues that the statement was inadmissible hearsay, an objection he raised below. The statement was certainly hearsay, but the trial court ruled it admissible under the past recollection recorded exception to the hearsay rule. (See Evid. Code, § 1237.) Defendant contends that two of the exception's requirements were not satisfied. Most notably, he argues that the report was not created "at the time" the statement "was made" (
It is debatable whether defense counsel objected on this precise ground in the trial court. But the People do not argue that the claim has been forfeited, and the trial court was sufficiently informed to ask Walker, "[d]o you recall when you typed it" and "you believe you wrote up the interview or your record of the interview on August 9th?" Indeed, the People's brief *38 conspicuously fails to mention this objection at all, let alone press forfeiture or engage with defendant's interpretation of the statutory phrase, "at the time it was made."
Because of the People's failure to engage with defendant's argument, we decline to explore whether the argument was preserved or had merit. Instead, we conclude that any error was harmless at the guilt phase. (See
Gonzalez
,
supra
, 5 Cal.5th at p. 195,
**930 Notwithstanding the prosecutor's rather strong assertion that the evidence was "very significant," it is hard to imagine that the Galloway statement had *1051 any impact on the jury's guilt-phase verdict. The lack of hatchet or jewelry found during the 3:00 a.m. search tended to exculpate defendant to the extent that one would expect those items to be found in his apartment. To defeat that expectation, all the jury had to believe was that, in the more than 24 hours between the murders and the search, defendant had left the unpawned jewelry and the hatchet literally anywhere in the world other than inside his apartment. The prosecutor argued this point as well: "One, your common sense tells you, well, not likely, because if you just killed somebody and you had blood all over your clothes, you're going to throw them away, you're not going to keep them around the house. And, two, you might hide the jewelry where people can't find it." Indeed, if the theory is that defendant retrieved the items from Galloway's car two days after the killings, then he must have been capable of hiding the items elsewhere, before the intensive postarrest search of his apartment also failed to uncover those items.
Finally, viewing the record as a whole (including the gaps in the prosecution's case), the evidence that defendant committed the murders was quite strong. (See ante , part II.A.)
E. Penalty-related Claims
1. Admission of report on Galloway's statement
Defendant contends that the admission of Galloway's statement during the guilt phase prejudiced the jury's penalty determination. We disagree.
When a defendant claims that evidence admitted in violation of state law at the guilt phase prejudiced the jury's penalty determination, we assess prejudice using the standard for state law penalty-phase error. (See
People v. Romero
,
supra
, 62 Cal.4th at p. 28,
*39
possibility that the jury would have rendered a different verdict had the error ... not occurred." (
People v. Brown
(1988)
Even if Galloway's statement about his outing with defendant had been excluded, there is no reasonable possibility the jury would have reached a different penalty-phase verdict. Defendant contends that the prosecutor used Galloway's statement to portray defendant as callous, pointing out that the prosecutor said defendant was "off to the casino gambling" the day after the *1052 murders. This reference to gambling was but a tiny sliver of the closing argument, which instead focused on the horrific details of the crime and the effect it had on others.
Defendant similarly contends that although the other evidence at trial would have given jurors "the impression that [he] was so desperate for money that he could not buy food, the testimony admitted in error replaced that image by one of a man willing to kill two people to fund a brief visit ... to the slot machines." This version of defendant's argument has at least two problems. First, although Galloway's out-of-court statement was the only direct evidence that defendant gambled after killing the Jenkses, it was hardly the only evidence suggesting that the murders were connected to a gambling problem. Galloway testified in court that he had driven defendant to a casino "a couple of times," and Diana Williams testified that defendant had lost money at an out-of-town casino in the days leading up to the Jenkses' murders. Second, and more fundamentally, the brutality of the murders-to say nothing of the sexual assault-overwhelmingly indicated that defendant was not a reluctant killer merely trying to obtain money to buy food. Among other things, jurors had before them a videotape showing Shirley Jenks's body spread across her bed, with one arm clutching her bloodied chest and a throat slit from **931 ear to ear. On these facts, and even considering the case in mitigation and the possibility of lingering doubt, any error was harmless.
2. Excusing jurors based on their views about the death penalty
A prospective juror may not be excused based on his or her views on capital punishment unless those views would substantially impair the person's performance of his or her duties as a juror. (
Wainwright v. Witt
(1985)
Defendant contends that the stipulations are inconsequential. He observes that at the time of his trial, an objection was not necessary to preserve this sort of claim of error. (See
People v. McKinnon
(2011)
3. Lack of instruction regarding victim-impact evidence
The trial court instructed the jury with various standard instructions explaining the principles governing the jury's penalty determination, including CALJIC Nos. 8.84.1, 8.85, and 8.88. Defendant argues that the trial court had an additional duty to instruct the jury, on the court's own motion, about the proper use of victim impact testimony. "[W]e have repeatedly held that the trial court's use of jury instructions CALJIC Nos. 8.84.1 and 8.85 is sufficient to address a defendant's concerns about the proper use of victim impact evidence, and is consistent with his or her federal and state constitutional rights to due process, a fair trial, and a reliable penalty determination." (
People v. Simon
(2016)
4. Lack of unanimity requirement for unadjudicated criminal activity
The People presented evidence that defendant sexually assaulted Carol T. and Diane H. prior to the Jenkses' murders. (See § 190.3, factor (b).) A pattern instruction properly communicated that a juror could
**932
consider that unadjudicated criminal activity as an aggravating factor only if the juror was satisfied, beyond a reasonable doubt, that defendant committed that activity. (See, e.g.,
People v. Robertson
(1982)
We disagree. A penalty-phase jury need not unanimously agree that a defendant engaged in unadjudicated criminal activity; what is required is that the jury's penalty determination as a whole be unanimous.
*41
(
People v. Ghent
(1987)
F. Noncapital Sentencing Claims
1. Elderly victim enhancements
In connection with each murder count, the jury found true an allegation that "at the time of the commission of the above offense the defendant committed the above crime against a person 65 years of age or older and that this condition was known or reasonably should have been known to the defendant within the meaning of section 667.9(a) of the Penal Code." (Italics added.) Based on these findings and a prior strike under the "Three Strikes" law, the court imposed a four-year enhancement (two one-year determinate terms, doubled). Defendant claims that murder is not one of the crimes eligible for enhancement under section 667.9, subdivision (a). The People confess error, but assert that since robbery is an eligible crime, and the same information charged defendant with robbery, "the enhancement should still be applied to the robbery count." The People cite no authority suggesting that we can, let alone must, transfer the jury's finding to the robbery count. We decline to do so.
*1055 2. Restitution fine
The trial court ordered defendant to pay a $ 10,000 restitution fine. Defendant acknowledges that at the time he was sentenced, the applicable version of section 1202.4 permitted the trial court to consider his inability to pay in setting the amount of the fine. Subdivision (c) of that section instructed that "[a] defendant's inability to pay shall not be considered a ... reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the two-hundred-dollar ($ 200) or one-hundred-dollar ($ 100) minimum." (Stats. 1997, ch. 527, § 4, p. 3215.) Subdivision (d) added that "[i]n setting the amount of the fine pursuant to subdivision (b) in excess of the two-hundred-dollar ($ 200) or one-hundred-dollar ($ 100) minimum, the court shall consider any relevant factors including, but not limited to, the defendant's inability to pay...." ( Ibid. )
Defendant contends that the trial court set the $ 10,000 amount based on erroneous information about whether defendant would be permitted to work while incarcerated. In particular, the probation officer reported: "The defendant will be imprisoned for an extended period of time. Therefore, it is your officer's opinion, during the time he is imprisoned he is capable of earnings, therefore, capable of
**933
paying for the fines as ordered by the Court." On
*42
appeal, the People do not dispute that condemned inmates are not permitted to work, nor that the trial court can be assumed to have relied on the probation officer's error. They also do not contend that defendant has forfeited any claims based on that error. (Cf.
People v. Gallardo
(2017)
In the unusual circumstances of this case, however, we conclude that any error was harmless beyond a reasonable doubt. Although we assume that the trial court imposed the initial restitution fine with the belief that defendant could work while incarcerated, as discussed below, we are confident that the trial court would have imposed the same fine even in the absence of that belief. We also conclude that such a fine would have been lawful.
Long after sentencing, in 2007, defendant filed a "Motion to Modify Restitution Fine" in the trial court. He brought the probation officer's error to the court's attention, arguing that he was unable to pay the $ 10,000 fine and that a lower fine should be imposed. The thrust of his argument was that his only source of income was the small gifts he occasionally received, and that the fine would result in up to 55 percent of those gifts being withheld-interfering with his ability to satisfy his basic needs by purchasing items at *1056 the commissary. The same judge that initially sentenced defendant refused to modify the fine. The court reasoned that seizing a portion of defendant's income, rather than all of it, "seems a minimal burden considering the incredible loss that was inflicted, not only on the victims, but on their daughter, who suffered catastrophic emotional consequences." The court continued, "We ... don't have any evidence of her current status. The last time the Court had information, it would appear she was still suffering and would probably always be disabled because of the emotional trauma that she experienced. [¶] I see no reason to revisit the Court's earlier order and modify that restitution fine. The defendant's ability to pay is taken into consideration by the Department of Corrections when it makes its deductions and makes payments toward that restitution liability. So I'm going to deny the motion." Given these comments, we are confident that the trial court would have imposed the same fine even ignoring the probation officer's error. 11
We further conclude that, had the court imposed the same fine in the absence of the probation officer's error (and in the face of a similar objection), the fine would have been lawful. Defendant first argues that the court's rationale in ruling on the 2007 motion "strip[ped] the criterion of ability to pay of all meaning" because the deduction at issue is taken from all prisoners. We do not understand the trial court to have meant that all prisoners are necessarily able to pay because they will lose only a portion of their income in prison. Instead, we understand the court to have indicated that the significance of defendant's difficulty paying was blunted by the fact that he would retain at least some of the money sent to him. Indeed, defendant-unlike prisoners whose release is anticipated-would seem to be *43 subject to deduction rules governing prisoners for the rest of his life. 12
Defendant also appears to suggest that a fine is automatically invalid if a defendant is unable to pay it. We disagree. Inability to pay is a factor for the court to consider in setting the amount of a restitution fine, alongside "any relevant factors including, but not limited to, ... the seriousness and gravity
**934
of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and the number of victims involved in the crime." (Former § 1202.4, subd. (d); see also
Our decision in
People v. Lewis
(2009)
People v. Vieira
(2005)
Defendant contends that he is entitled to relief based on the cumulative effect of the errors he claims to have identified. We disagree.
We have assumed error regarding defendant's challenge to the trial court's illustration of circumstantial evidence and to the admission of Galloway's statement. Considered cumulatively, these assumed errors provide no basis for reversal. The Galloway statement had no bearing on the jury's understanding of circumstantial evidence. And although it would have been preferable for the court's illustration of circumstantial evidence to be more neutral, we have already concluded that the illustration was harmless in light of the record as a whole-including the Galloway statement.
We have also found or assumed error regarding the elderly victim enhancements and the amount of the restitution fine. Here, too, there is no cumulative prejudice. The fact that the elderly victim enhancements were **935 attached to the wrong counts (murder, not robbery) would have no effect on any other aspect of the jury's deliberations. And the jury did not even set the amount of the restitution fine, which had no effect on the rest of the sentence.
Defendant also argues that even if there were no individual errors, he is still "entitled to reversal if his trial was unfair or its result unreliable." Viewing the record as a whole, we cannot say that defendant was denied a fair trial or a reliable judgment.
H. Constitutionality of California's Death Penalty Scheme
Defendant argues that California's death penalty scheme is unconstitutional. He advances one argument he believes we have yet to consider and several he concedes we have rejected in the past. He also contends that the duration of his confinement under his death sentence constitutes cruel and unusual punishment, which should be relieved by vacating that sentence. None of these arguments has merit.
1. Burden of proof
We have held that " '[t]he death penalty is not unconstitutional for failing to impose a specific burden of proof as to the existence of aggravating circumstances, the greater weight of aggravating circumstances over mitigating circumstances, or the appropriateness of a death sentence.' " (
People v. Parker
(2017)
Evidence Code section 500 states, "Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." Defendant argues that "[i]n a capital case, the prosecution's demand for the death sentence is a claim for relief." Even assuming the truth of that premise for the sake of argument, defendant fails to identify any essential fact that the prosecution must prove at the penalty phase, after the jury has already found the special circumstance allegations true beyond a reasonable doubt.
Evidence Code section 502 requires the court, "on all proper occasions," to "instruct the jury as to which party bears the burden of proof on each issue...." Our observation that the penalty phase "is essentially moral and normative [citation], and therefore different in kind from the determination of guilt" (
Hayes
,
supra
, 52 Cal.3d at p. 643,
Evidence Code section 520 provides that "[t]he party claiming that a person is guilty of crime or wrongdoing has the burden of proof on that issue." We have repeatedly held that this provision does not require an instruction placing the burden of proof on the People at the penalty phase, and we see no persuasive reason to reconsider our precedent. (See, e.g.,
People v. Brooks
,
supra
, 3 Cal.5th at p. 115,
**936
People v. Whalen
(2013)
*1060
People v. Abilez
(2007)
Finally, Evidence Code section 550 instructs: "(a) The burden of producing evidence as to a particular fact is on the party against whom a finding on that fact would be required in the absence of further evidence. [¶] (b) The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact." Again, given the "essentially moral and normative" character of the penalty phase (
Hayes
,
supra
, 52 Cal.3d at p. 643,
We have also held that "the trial court is not required to explicitly tell the jury that neither party bears the burden of proof."
*46
(
People v. Leonard
,
supra
, 40 Cal.4th at p. 1429,
2. Previously considered challenges
We have previously considered and rejected the other arguments defendant raises on appeal. We see no persuasive reason to reexamine the following conclusions:
The class of murderers eligible for the death penalty is not impermissibly broad. (See
People v. Lopez
(2018)
Directing the jury to consider "[t]he circumstances of the crime" ( § 190.3, factor. (a)) does not result in arbitrary and capricious punishment (
People v. Ghobrial
(2018)
"The death penalty statute 'is not invalid for failing to require (1) written findings or unanimity as to aggravating factors, (2) proof of all aggravating factors beyond a reasonable doubt, (3) findings that aggravation outweighs mitigation beyond a reasonable doubt, or (4) findings that death is the appropriate penalty beyond a reasonable doubt.' " (
Lopez
,
supra
, 5 Cal.5th at p. 370,
CALJIC No. 8.88's use of "the phrase 'so substantial' is not impermissibly vague or ambiguous." (
Ghobrial
,
supra
, 5 Cal.5th at p. 292,
CALJIC No. 8.85 identifies several factors for the jury to consider, "if applicable," "[i]n determining which penalty is to be imposed." A trial court is not required to delete inapplicable mitigating factors, nor to identify whether factors are mitigating or aggravating. (
Lopez
,
supra
, 5 Cal.5th at p. 371,
A trial court need not inform the jury to ignore " 'the deterrent or nondeterrent effect of the death penalty or the monetary cost to the state of execution or maintaining a prisoner for life without the possibility of parole' " "where 'neither party raise[s] the issue of either the cost or the deterrent effect of the death penalty....' " (
Zamudio
,
supra
, 43 Cal.4th at p. 371,
" 'Comparative intercase proportionality review by the trial or appellate courts is not constitutionally required.' " (
Lopez
,
supra
, 5 Cal.5th at p. 371,
*1062
" 'The capital sentencing scheme does not violate equal protection by denying to capital defendants procedural safeguards that are available to noncapital defendants.' [Citation.] [¶] California's death penalty does not violate international law or international norms of decency." (
We see no persuasive reason to conclude that these aspects of our system, considered cumulatively, are constitutionally infirm. (See
People v. Anderson
(2018)
3. Duration of confinement on death row
Defendant was sentenced to death more than twenty years ago. He contends that his prolonged time on death row constitutes cruel and unusual punishment. To the extent defendant argues "that delay inherent in the automatic appeal process ... is cruel and unusual punishment," we disagree. (
People v. Anderson
,
supra
, 25 Cal.4th at p. 606,
III. DISPOSITION
We modify the judgment by striking the four-year determinate term imposed for the elderly victim enhancements. The trial court is directed to send to the Department of Corrections and Rehabilitation a corrected abstract of judgment with the enhancement stricken. We affirm the judgment as modified, including the judgment of death.
We Concur:
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
SIMONS, J. *
Concurring Opinion by Justice Liu **938 Today's decision is our first to affirm a death judgment since Governor Newsom signed Executive Order N-09-19 effecting a moratorium on capital punishment in *48 California. Neither defendant nor the Attorney General has suggested that the Executive Order raises any new issues bearing on this appeal. We thus decide this case on the claims and arguments as submitted.
And yet, as the Executive Order underscores, our decision affirming the judgment does not alter a fundamental reality: A death sentence in California *1063 has only a remote possibility of ever being carried out. As leaders of the judiciary have long observed, the death penalty presents serious challenges for the fair and efficient administration of justice. For decades, those challenges have not been meaningfully addressed. As a result, California's death penalty is an expensive and dysfunctional system that does not deliver justice or closure in a timely manner, if at all.
This case is instructive: The death judgment was issued in 1998. Now, 21 years later, we affirm the judgment on direct appeal, but there is more litigation to come in the form of habeas corpus petitions in state and federal courts. This timeline is typical of our capital cases. (See, e.g.,
People v. Johnson
(2018)
The Executive Order describes California's death penalty system as "wasteful" and "protracted." (Governor's Exec. Order No. N-09-19 (Mar. 13, 2019); see
These leaders include two Chief Justices of our state, whose collective tenure atop the judicial branch spans more than two decades. In his memoir, former Chief Justice Ronald George described California's death penalty system as a "protracted and dysfunctional process" that "places the administration of justice and all of the courts, state and federal, and government as a whole, in a very bad light." (George, Chief: The Quest for Justice in California (2013) p. 523 (George).) "My ultimate concern," he wrote, "is that *1064 we're expending a tremendous amount of effort and expense to impose death sentences and send people to death row under circumstances that almost totally undermine the deterrent effect of the death penalty. A person sentenced to death knows that he or she in effect is being given a life-without-parole sentence, because the odds are that he or she is going to die of old age behind bars." ( *49 Id. at p. 541; see Cal. Dept. of Corrections and Rehabilitation, Condemned Inmates Who Have Died Since 1978 (Mar. 8, 2019) [120 inmates have died on death row for reasons other than execution since 1978, the vast majority due to natural causes].)
Our current Chief Justice has similarly observed that California's death penalty is " 'not effective' " and in need of " 'structural **939 change.' " (Dolan, California Chief Justice Urges Reevaluating Death Penalty , L.A. Times (Dec. 24, 2011) (Dolan); see ibid. [" 'I don't know if the question is whether you believe in it anymore. I think the greater question is its effectiveness....' "].) According to the Chief Justice, it is worth "asking whether the criminal justice system can 'make better use of our resources.' " ( Ibid. ; see Shafer, California's Chief Justice: Hard to Say the Death Penalty Is Working , KQED: The California Report (Jan. 23, 2015).)
In 2014, U.S. District Judge Cormac Carney likewise concluded in a lengthy opinion that the administration of the death penalty in California is "dysfunctional." (
Jones v. Chappell
(C.D.Cal. 2014)
In 2008, the Legislature created a blue-ribbon commission of law enforcement officials, prosecutors, public defenders, and scholars-chaired by former Attorney General and Los Angeles County District Attorney John Van de Kamp-to study the issue. (Cal. Com. on the Fair Admin. of Justice, Final Report (2008) (Commission Report).) The Commission concluded that "California's death penalty system is dysfunctional" and emphasized two major sources of dysfunction: "The system is plagued with [1] excessive delay in the appointments of counsel for direct appeals and habeas corpus petitions, and [2] a severe backlog in the review of appeals and habeas petitions before the California Supreme Court." ( Id. at pp. 111, 114-115.)
*1065
As to the first issue, "[c]apital defendants are entitled to counsel on direct appeal and in state habeas proceedings. (See
Douglas v. State of California
(1963)
As to the second issue, the state Constitution assigns the California Supreme Court exclusive jurisdiction over appeals from judgments of death. ( Cal. Const. art. VI, § 11, subd. (a).) "[T]he fact that all appeals go to a single court ... inevitably result[s] in a bottleneck." (
Briggs
,
supra
, 3 Cal.5th at p. 869,
In 2016, the electorate approved Proposition 66, the Death Penalty Reform and Savings
**940
Act, an initiative "intended to facilitate the enforcement of [death] judgments and achieve cost savings in capital cases." (
Briggs
,
supra
, 3 Cal.5th at p. 822,
Second, while stating that it is this court's "duty" to "expedite the review" of capital cases ( Pen. Code, § 1239.1, subd. (a) ), Proposition 66 does not alter this court's exclusive jurisdiction over direct appeals. A proposed initiative in 2014 did contain a constitutional amendment to provide our intermediate courts of appeal with direct appellate jurisdiction in capital cases. But the proposed initiative was abandoned, and Proposition 66 did not include any constitutional amendment. (See
Briggs
,
supra
, 3 Cal.5th at pp. 865-866,
*51 Proposition 66 thus did not enact or put to the voters the key reforms that leading authorities consider fundamental to a workable death penalty system. Proposition 66 did not reduce the bottlenecking of direct appeals in this court. It did not provide additional resources to enable this court, the courts of appeal, or the trial courts to expedite capital cases. And it did not provide additional resources for appointment of qualified counsel.
Nevertheless, Proposition 66 was presented to the voters as a measure that "
Requires Completion of Direct Appeal and Habeas Corpus Petition Process Within Five Years
" and generally requires trial courts to resolve initial habeas corpus petitions within one year. (Voter Information Guide, Gen. Elec. (Nov. 8, 2016), analysis of Prop. 66 by Legis. Analyst, p. 106 (italics and boldface in original); see Pen. Code, §§ 190.6, subd. (d), 1509, subd. (f).) In these respects, Proposition 66 promised more than the system can deliver. As this court unanimously held in
Briggs
, the time limits-"presented to the voters by the proponents of Proposition 66 without the benefit of hearings or research exploring their feasibility or their impact on the rest of the courts' work"-so plainly threaten to impair the judicial function that they cannot be
*1067
given any binding effect. (
Briggs
,
supra
, 3 Cal.5th at pp. 860-861,
I express no view here on the morality or constitutionality of the death penalty. Since joining this court, I have voted to affirm scores of death judgments, and I will continue to do so when the law requires. It is impossible to review these cases without feeling tremendous compassion for the victims and their families, who have suffered unimaginable heartbreak and loss. But the promise of justice in our death penalty system is a promise that California has been unable to keep. We are overdue for what our Chief Justice has called "a merit-based discussion on [the death penalty's] effectiveness and costs." (Dolan, supra .) In the meantime, the judiciary will continue to do its duty under the law, leaving it to the voters and our elected representatives to decide whether California should double down on the current system or chart a new course.
I Concur:
All unspecified statutory references are to the Penal Code.
Evidence bearing on whether the intent to steal was formed before the killings is addressed post , in part II.A.2. The evidence of premeditation and deliberation would be sufficient even if this motive were ignored.
Although defendant's opening brief raises 18 separately numbered issues on appeal, a challenge to the court's discretionary admission of this evidence is not among them-perhaps because defendant appears to acknowledge that no objection was made below.
Defendant further claims that the "don't ever come back and tell a prosecutor" statement suggested "that jurors would be accountable to the prosecution after they reached their verdict." This claim is also not preserved for our review. In any event, it is not reasonably likely that jurors understood the comment in the way defendant claims. Helart clearly did not want the jury to acquit based on a less-than-reasonable doubt, and communicated her view that doing so would be a mistake. But her brief, isolated comment could not reasonably be understood to threaten adverse consequences for jurors.
Finally, because the prosecutor's remarks were not erroneous, trial counsel was not ineffective for declining to object to them.
Contrary to defendant's suggestion, there is no reasonable likelihood that these or other comments led the jury to believe that it should ignore the court's other instructions.
Defendant could be understood to complain of a prosecutor's discussion of this instruction. Any claim of misconduct was forfeited by defendant's failure to object and to request an admonition in the trial court. (
Daveggio
,
supra
, 4 Cal.5th at p. 853,
Defendant notes in passing that similar pressure may apply when a jury is deciding whether to convict of robbery or a lesser included offense.
Because this claim fails on the merits, it is unnecessary for us to analyze whether trial counsel's request that the instruction be given invited any error or forfeited the claim of error. (See
People v. Bramit
(2009)
The record suggests that defendant requested this instruction, again raising the question whether any error was invited. We again decline to resolve this question, because the claim fails regardless.
Defendant complains that these instructions "exacerbated" each other's effect. We agree that the instructions jointly made clear the acquittal-first rule, but that was not error, and we do not perceive any other.
We rely on the trial court's comments solely as a guide to whether the probation officer's error had any prejudicial effect. We express no opinion on whether the trial court had authority to consider all or part of the motion.
We do not suggest that a court satisfies its obligation to "consider any relevant factors, including, but not limited to, the defendant's inability to pay" merely by noting that the Department of Corrections and Rehabilitation considers ability to pay. (§ 1202.4, subd. (d).) The point is that a trial court considering the burden that a restitution fine will impose on a capital inmate may properly consider evidence that the inmate will retain a portion of his income, fine notwithstanding.
Given the force of this competing consideration, and that this rationale accounts for defendant's ability to pay, the fine would not be excessive, deny defendant due process, or deny him equal protection of the laws.
Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Related
Cite This Page — Counsel Stack
436 P.3d 899, 245 Cal. Rptr. 3d 2, 6 Cal. 5th 1012, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-potts-cal-2019.