Full opinion text
Opinion BROWN, J. A jury found defendant James David Majors guilty of the first degree murders of Thomas Probst, Jeanine Copeland, and Patrick Mungavin (Pen. Code, §§ 187, subd. (a), 189) and of first degree robbery (§§211, 212.5, subd. (a)). The jury also found defendant had personally used a firearm during the three murders and the robbery. (§ 12022.5, subd. (a).) In addition, the jury found true special circumstance allegations that defendant murdered the victims during the commission of a robbery (§ 190.2, subd. (a)(17)) and committed multiple murders (id., subd. (a)(3)). Defendant was sentenced to death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) For the reasons discussed below, we affirm the judgment in its entirety. I. Facts A. Guilt Phase Evidence 1. Prosecution Evidence Donald Hobbs, who was 10 years old at the time of trial, lived in a house on Kaula Drive in the Sacramento suburb of Fair Oaks with his mother, Jeanine Copeland (Copeland), and Thomas Probst (Probst), her live-in companion. On the morning of January 26, 1989, after finishing his breakfast, Hobbs found Copeland lying on the floor and noticed blood next to her head. When Hobbs was unable to awaken her, he called “911.” Sheriff’s deputies responding to the scene discovered the bodies of Copeland, Probst, and Patrick Mungavin (Mungavin). Copeland was lying facedown on the living room carpet. She had been struck by a gunshot, fired at close range, that entered at her right temple and exited on the left side of her neck. A forensic pathologist testified that such a wound would have caused an immediate loss of consciousness and that death would have ensued within a matter of minutes. In his opinion, Copeland had been killed between midnight and 6 a.m. on January 26. Tests of Copeland’s blood showed evidence of methamphetamine use. Mungavin was seated on the living room couch with his hands folded in his lap, his head over to one side, and blood coming from his right nostril. He had a loaded .22-caliber handgun under his left armpit, but there was no evidence that the handgun had been fired. Mungavin had suffered multiple gunshot wounds, including a fatal wound to the back of his head. The forensic pathologist estimated the time of Mungavin’s death to be between midnight and 6 a.m. on January 26; he could not determine to a medical certainty that Mungavin had been shot at the location where his body was found. Although Mungavin had methamphetamine on his person, there was no evidence of either drugs or alcohol in his system. A criminalist testified that .38-caliber bullets removed from Mungavin’s body had most likely been fired from either a “.38 special” or a .357 magnum. A hollow-point slug found underneath Mungavin’s right leg, between his leg and the couch, appeared to have been fired from the same weapon. Probst was lying on the floor of a bedroom that had been turned into an office. Probst had sustained a fatal wound to his left cheek by a gunshot fired at close range. He also suffered an abrasion to the right side of his face consistent with falling as a result of the gunshot wound. The forensic pathologist estimated the time of Probst’s death to be between midnight and 5 a.m. on January 26; he could not be certain that Probst had been shot at the location where his body was found. Probst’s blood tested positive for Valium and methamphetamine. A criminalist testified that an expended .32-caliber bullet removed from the right side of Probst’s neck had been fired from either a .32-caliber semiautomatic pistol or a .32-caliber revolver. The contents of a wallet were strewn about the office, and Probst’s pants pockets were pulled out. In the office where Probst’s body was found, deputies found evidence of drug sales, including a scale, packaging material, a cutting agent, a pay-owe sheet, and powder residue on the surface of a mirror. Deputies also found a loaded, sawed-off .12-gauge shotgun leaning up against the wall in the comer of the room. A number of witnesses confirmed that Probst was a methamphetamine and marijuana dealer. In the hallway of the residence, deputies found a screwdriver, a hammer, and a strongbox or safe that appeared to have been pried open. They also noted a depression in the carpet of the office closet floor that was approximately the same size as the strongbox or safe. Probst was known to keep a safe in this location, where he stored jewelry, drugs, and proceeds from drug sales. Although both Probst and Copeland were known to wear jewelry, there was no jewelry on their bodies except for an anklet around Copeland’s ankle. Jewelry boxes in the residence were empty, and there was evidence of ransacking. There was no sign of forced entry into the residence itself and no evidence of a struggle. During the course of their investigation, deputies alerted Probst’s parents to the possibility of an Arizona connection to the homicides. Subsequently, while going through Probst’s belongings, his mother found a note with the name “Robert Reese” and the address 14031 North 72d Lane in Peoria, Arizona. According to Probst’s mother, the note was not in his handwriting. At trial, the prosecution theorized that the three victims had been killed by defendant and Robert Reese (Reese) during the course of a drug-related robbery. The prosecution offered extensive circumstantial evidence in support of this theory. In December 1988, Reese lived in a house on 72d Lane in Peoria, Arizona. Defendant also had a room at the house, although it was not his primary residence. Both defendant and Reese moved out shortly after Christmas of 1988. According to a neighbor of Reese’s aunt, defendant and Reese visited the aunt at her apartment in Rancho Cordova, near Sacramento, sometime between December 27 and December 29, 1988, at approximately 10:30 to 11 p.m. Reese was acting in a hyperactive fashion and appeared to be under the influence of drugs. Other witnesses confirmed that Reese sold and used methamphetamine. Reese was also known to carry firearms. Several witnesses testified that Probst was planning to conduct a drug transaction with someone from out of state the night he was killed. Probst’s brother, Wayne Probst, who was at Probst’s house until about 9:20 or 9:30 p.m. on January 25, 1989, testified that Probst told him he had arranged a deal to sell a pound of methamphetamine later that evening. According to Wayne Probst, his brother had an established clientele and dealt only with customers he knew. James Pluskett, who talked to Probst on the telephone between 8 and 10 p.m. on January 25, offered similar testimony regarding Probst’s plans to sell $10,000 worth of methamphetamine to someone who was flying in from Las Vegas. Pluskett understood this to be about a pound of methamphetamine. He thought two people were involved in the purchase, the person actually making the purchase and the person providing the money. Pluskett assumed these were the same regular customers from Arizona who purchased a half-pound of methamphetamine from Probst every couple of weeks. Freddie Gregg, who was at Probst’s house until about 11 or 11:30 p.m. on January 25, testified that Probst told him he was expecting a visit from someone from Arizona who would be bringing drug paraphernalia. During Gregg’s visit, Probst took him into the kitchen and showed him a plastic freezer bag filled with methamphetamine. The bag was approximately the size of a tissue box. Sandra Morgera, who was at Probst’s house until about 11:15 or 11:30 p.m. on January 25, testified that Probst told her he had another two deals scheduled that night, one of which was a deal with Gregg, which occurred before she left. The second deal was a $10,000 deal with people from Arizona for a pound or a pound and a half of drugs. On cross-examination, Morgera admitted she might have gotten the $10,000 figure from newspaper articles about the case, admitted Probst had told her about both a drug purchase and a drug sale scheduled for that evening, and admitted it was not until trial that she stated one of the two deals was the deal with Gregg. Catherine Bailey, who spent the day at Probst’s house on January 25, testified that Probst told her he had just bought a pound of methamphetamine and was planning to conduct a drug transaction with someone from Arizona. According to Bailey, Probst told her he had completed another transaction with the same person about a month earlier and the person felt he had been “burned.” Although she was unclear as to how she acquired the information, Bailey identified the person as Robert Reese of Peoria, Arizona. Before Bailey left, Probst had her sample the methamphetamine to make sure it was okay. While Bailey was in Probst’s office, she saw a large amount of cash. Probst told her it was about $2,000. Several witnesses from Arizona offered details regarding a trip defendant and Reese had taken to California. Michelle Blouir, Reese’s former girlfriend, testified that defendant and Reese had taken an evening trip to California sometime in January. Shortly before they left, Blouir saw defendant with two brand new pairs of dark cotton garden-type gloves still in their original packaging. She watched defendant hand one of the pairs to Reese. Later, on Valentine’s Day, while Blouir was talking on the telephone to a detective from Sacramento, Reese asked whom she was talking to. When she told him, he appeared frightened, bolted out of the apartment, and drove away. To the best of her recollection, defendant and Reese’s trip to California had been about two weeks earlier. Blouir also talked to defendant about a week after he came back from the trip. He told her he had gone to California to get drugs and that Reese had left him in a motel room for six hours and had never come back, so defendant flew back home. Kristi Crancer, a friend of Blouir, verified the timing of the trip, testifying that it had occurred about a week after her January 19, 1989, graduation. When Reese returned from the trip, he showed Crancer jewelry, a plastic bag of drugs, and two handfuls of money. Crancer also confirmed that Reese had left abruptly when he found out that Blouir was talking to a detective from Sacramento. The parties stipulated that if Karen Brott were called as a witness she would have testified that Reese showed her a plastic bag of drugs, a large amount of cash, and two items of jewelry after he returned from Sacramento. Reese told her the bag contained a quarter- or half-pound of methamphetamine and that he had approximately $12,000 in cash. Reese later called Brott on February 14, 1989, and asked her if anyone was looking for him. Richard Hartley, a housemate of defendant at the residence on 72d Lane, testified that defendant was involved in both the methamphetamine and gun trades. When defendant used methamphetamine, he ingested the drug by sprinkling it on tissue paper, which he then wadded up and ate. Hartley acknowledged he had previously told investigators only about “suspicions” defendant used methamphetamine and had not told them about being involved in several drug transactions with defendant. On February 14, 1989, detectives from Sacramento came looking for Reese as a suspect in a triple homicide. After meeting with the detectives, Hartley met with defendant, who told him about a trip he and Reese had taken to Sacramento. According to defendant, he had sold a pound of marijuana there. Defendant told Hartley he had stayed in a motel room with a prostitute and that Reese was gone overnight with their rental car. When Reese returned the next day, he was acting in a paranoid fashion and said he wanted to go home. Defendant and Reese ended up taking separate flights home. Defendant offered his own account to Robert Bell, a homicide investigator for the Sacramento County Sheriff’s Department, during a February 17, 1989, telephone conversation. A tape recording of this conversation was played to the jury. During the conversation, defendant told Bell he had gone to Sacramento with Reese about a month earlier, selling a pound of marijuana for $1,400, $300 of which he gave to Reese. Once they arrived in Sacramento, defendant rented a car and they drove to a Denny’s restaurant. At the restaurant, defendant gave Reese the marijuana, and Reese left, returning 20 to 40 minutes later. When Reese returned, they went to a motel and spent the night in a room with a prostitute named Bonnie. After dropping Reese off at the airport the next morning, defendant spent the day with Bonnie, taking her shopping. Defendant flew home that night. Defendant admitted he had taken a “380” gun with him on the trip. Defendant told Bell he had taken another trip to Sacramento about three months earlier, buying a quarter pound of methamphetamine during that trip. Bonnie Hogue, a Sacramento prostitute, placed defendant and Reese in the Sacramento area at the time of the homicides. On the evening of January 25, 1989, Hogue was soliciting clients at a local truck stop. On January 26, between 2 and 3 a.m., Hogue finished her evening’s work and returned to her motel room across the street. As she headed towards her room, Hogue was approached by Reese, who introduced himself as “Albert” and asked if he and defendant could stay in her room. Reese later admitted that his real name was Robert. Reese explained that he did not want to use his identification to rent a room, and the motel would not rent him one without it. After Reese paid Hogue $500, she agreed. Defendant and Reese brought three bags of luggage into the motel room. Once in the room, defendant pulled a plastic bag of methamphetamine out of the piece of luggage he had carried in and passed the bag to Reese. Reese snorted some of the drug, and defendant ingested some by sprinkling it in his coffee and by rolling it up in a piece of toilet paper and eating the paper. During the course of conversation, the men told Hogue they had come in from Arizona around midnight, although Reese was originally from Rancho Cordova. Defendant told Hogue they had just completed a $10,000 or $15,000 drug deal, had bought some guns, and had sold a Harley-Davidson motorcycle. Hogue became frightened when she noticed the butt of a gun sticking out of the bag defendant had carried in. When Hogue asked that the gun be removed from the motel room, the two men took the bag out to the car, removed the gun, and brought the bag back in. Hogue searched the bag to make sure the gun had been removed, observing methamphetamine, money, and jewelry in the process. Reese appeared very nervous, was sweating a lot, and kept peering out the window. Eventually, Reese paid Hogue $200 to engage in sexual activity with defendant in the shower. As she left the bathroom, Hogue found Reese sitting on the floor of the motel room dividing methamphetamine, money, and jewelry into two piles. Reese handed some of each to defendant, telling defendant the money was what he owed him. Defendant and Reese discussed whether to drive or fly back to Arizona, eventually deciding to fly back separately. Defendant and Hogue dropped Reese off at the airport about 5 a.m. that morning. Before he left, Reese gave Hogue another $200 to keep his “partner” company. Defendant and Hogue returned to the motel room, and defendant paid for Hogue to rent the room for another day. Defendant told Hogue he needed to send some things back to Arizona he could not take on the airplane and asked her the location of a Greyhound bus depot. Defendant paid her $250 to help him ship the items, which included a gun defendant said he had purchased during the trip. After getting a box at a Chinese restaurant, defendant packed up his things and they proceeded to the Greyhound station. Hogue used her birth certificate, which was issued in her maiden name Bonnie Starr,, as identification to mail the package. As instructed by defendant, Hogue identified the contents of the package as “books” and addressed it to a “Stanley Johnson” in Phoenix. After Hogue sent the package, defendant took her clothes shopping; although Hogue claims he spent $300 to $400 on her, store receipts showed total sales of only $225.05 for that day, the largest single sale of which was $63. Later that day, defendant had Hogue call and book him a return flight to Phoenix under the name “Stanley Johnson.” They left for the airport about 5 p.m. After defendant returned his rental car, he caught his flight home. Before he left, defendant wrote his cellular telephone and pager numbers down in Hogue’s telephone book and made arrangements to call her in a few days. After defendant left, Hogue returned to the motel room, where she found a pair of soft brown gardening gloves. Although Hogue retrieved the gloves and took them home, she could not recall what she had done with them. When defendant called Hogue a few days later, he told her he had received the package she had sent and asked her to come to Arizona to perform prostitution services for him. Hogue eventually agreed to make the trip and did so on February 4 or 5. A few weeks after returning from Arizona, Hogue read a newspaper article about a triple murder in Fair Oaks. The article contained a picture of Reese. After reading the article, Hogue was scared, picked up the telephone, and called the authorities. When she first contacted them, Hogue was unaware that a reward had been offered in the case, although she later accepted a $2,500 reward after detectives suggested she apply for it. The same day she read the newspaper article, Hogue received three or four telephone messages from defendant, who was persistent about needing to talk to her. Prior to testifying at defendant’s preliminary hearing, Hogue was granted immunity in exchange for her testimony. On cross-examination, Hogue was challenged on a number of collateral matters, including statements she had previously given to the authorities about being a truck driver and about her husband being a highway patrolman. She was also questioned about the fact that some of the information she provided the authorities was contained in the newspaper article she had read about the case. In addition, Hogue was impeached with certain inconsistencies between her trial testimony and statements she had previously given, such as the timing of when she saw the gun in the motel room, whether both defendant and Reese left to take the gun out to the car, where she and defendant got the box for the package they sent to Phoenix, and details about her trip to Arizona. Hogue attributed several inconsistencies to the fact she was very upset the night she first talked to the authorities. 2. Defense Evidence Denise Madsen testified that on January 25, 1989, she was working the night shift at a Denny’s restaurant. During the late night hours of January 25 or the early morning hours of January 26, defendant and another individual came to the restaurant. The second individual left for about 45 minutes to an hour and returned in a “shook up, kind of spaced, out” state wearing different clothes. Madsen testified, “It had to be before midnight.” On cross-examination, Madsen admitted she had no independent recollection of the exact date she had seen defendant and that the only reason she remembered the date of January 25 or 26 was that “everybody keeps asking me the same dates and they’ve been consistent.” She also admitted she had not previously told the district attorney’s investigator the second man had left the restaurant and come back in different clothes, explaining she had been tired at the time of the interview. B. ■ Penalty Phase Evidence The prosecution called two witnesses who testified as to the facts underlying defendant’s 1972 conviction for first degree burglary and his 1977 convictions for robbery and kidnapping. The defense called defendant’s biological parents, who briefly described his upbringing by his maternal grandmother and asked the jury to spare their son’s life. They also described incidents in which defendant had hurt his back in an automobile accident, had his work tools stolen, and had lost a finger as a result of a rattlesnake bite. II. Discussion A. Guilt Phase Issues 1. Admission of Hearsay Evidence Defendant asserts that he was denied his statutory and constitutional rights to due process of law and a fair trial by the admission of hearsay evidence. Defendant acknowledges that he failed to object to any of the evidence in the trial court and, therefore, couches the issue in terms of ineffective assistance of counsel. “In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [104 S.Ct. 2052, 2064-2065, 80 L.Ed.2d 674].) Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal.4th 694, 721 [49 Cal.Rptr.2d 413, 909 P.2d 1017].)” (People v. Williams (1997) 16 Cal.4th 153, 215 [66 Cal.Rptr.2d 123, 940 P.2d 710].) Where “there was no sound legal basis for objection, counsel’s failure to object to the admission of the evidence cannot establish ineffective assistance.” (People v. Cudjo (1993) 6 Cal.4th 585, 616 [25 Cal.Rptr.2d 390, 863 P.2d 635].) And, even when there was a basis for objection, “ ‘[w]hether to object to inadmissible evidence is a tactical decision; because trial counsel’s tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel’s incompetence.’ (People v. Hayes (1990) 52 Cal.3d 577, 621 [276 Cal.Rptr. 874, 802 P.2d 376].) ‘In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.’ (People v. Ray (1996) 13 Cal.4th 313, 349 [52 Cal.Rptr.2d 296, 914 P.2d 846].)” (People v. Williams, supra, 16 Cal.4th at p. 215.) The bulk of the evidence that defendant now claims his trial counsel should have objected to is evidence of Probst’s statements to third parties regarding his intent to conduct a drug deal with people from Arizona on the night he was killed. (See, e.g., ante, at pp. 396-397 [testimony of Wayne Probst, James Pluskett, Freddie Gregg, Sandra Morgera, and Catherine Bailey].) Since defendant’s counsel had posed hearsay objections to the admission of such evidence during the preliminary hearing, the prosecution filed an in limine motion arguing that the evidence was admissible. Among other things, the prosecution argued that Probst’s statements were admissible as statements of intent to do a future act. (See Evid. Code, § 1250, subd. (a).) At trial, defendant was represented by new counsel, who declined to oppose admission of the evidence, explaining that “from my research it is my opinion that it comes in under the victim’s statement of intent to do something in the future,” and noting that he too might “be calling witnesses who also talk about what Mr. Probst said to them on that particular evening about this drug deal.” Trial counsel reasonably concluded that the evidence in question was admissible. Our decision in People v. Alcalde (1944) 24 Cal.2d 177 [148 P.2d 627] (hereafter Alcalde), a decision the Legislature subsequently codified in Evidence Code section 1250 (see People v. Jones (1996) 13 Cal.4th 535, 548 [54 Cal.Rptr.2d 42, 917 P.2d 1165]), is instructive in this regard. In Alcalde, we considered the admissibility of a decedent’s statement that she was planning to go out with a man named Frank, the defendant’s nickname, on the night she was killed. {Alcalde, supra, 24 Cal.2d at pp. 187-188.) We held that “[elements essential to admissibility are that the declaration must tend to prove the declarant’s intention at the time it was made; it must have been made under circumstances which naturally give verity to the utterance; it must be relevant to an issue in the case.” {Id. at p. 187.) Applying this test, we concluded that the decedent’s statement was admissible because “it was a natural utterance made under circumstances which could create no suspicion of untruth in the statement of her intent. . . . Unquestionably the deceased’s statement of her intent and the logical inference to be drawn therefrom, namely, that she was with the defendant that night, were relevant to the issue of the guilt of the defendant.” {Id. at pp. 187-188.) Throughout his briefing, defendant disparages our decision in Alcalde, pointing to both the dissent in Alcalde itself as well as subsequent criticism of the decision by legal scholars. In his reply brief, defendant urges that Alcalde “is technically wrong” insofar as “it allowed the declarant’s statements to be used by the prosecutor to indirectly prove the actions of a person other than the declarant.” This argument is misplaced. Alcalde has been codified in Evidence Code section 1250 (see ante, fn. 12), and, hence, we lack the authority to reconsider it. (See People v. Jones, supra, 13 Cal.4th at p. 548.) Defendant also attempts to distinguish Alcalde on the grounds “Mr. Probst’s conduct is not in dispute” because “he didn’t go anywhere to meet anyone.” That Probst’s stated intent was to meet the people from Arizona at his house, rather than somewhere else, does not render his conduct any less in dispute. Probst’s conduct on the night in question, be it his conduct at home or away from home, was one of the central issues in the case. As in Alcalde, Probst’s statements of his intent and the logical inference to be drawn therefrom, namely, that he met with people from Arizona to conduct a drug deal on the night he was killed, were relevant to the issue of the guilt of defendant. (Alcalde, supra, 24 Cal.2d at pp. 187-188.) Nor does the fact that Probst’s statements did not specifically reference defendant provide a basis for distinguishing Alcalde. As in Alcalde, there are ample “corroborating circumstances” linking defendant to the planned drug deal. (See ibid. [noting other evidence demonstrating that the defendant was the “Frank” referenced in the decedent’s statement].) In addition, defendant maintains that even if Probst’s statements were admissible under Evidence Code section 1250, subdivision (a)(2), as statements of intent to do a future act, admission of the statements would nonetheless violate his constitutional right to confront his accuser under the Sixth and Fourteenth Amendments to the United States Constitution. We disagree. Since Probst’s statements were relevant to the issue of defendant’s guilt and “were properly admitted under the well recognized state-of-mind exception to the hearsay rule, the federal confrontation clause would likewise permit admission of such evidence. [Citations.]” {People v. Morales (1989) 48 Cal.3d 527, 552 [257 Cal.Rptr. 64, 770 P.2d 244]; see also People v. Cummings (1993) 4 Cal.4th 1233, 1322 [18 Cal.Rptr.2d 796, 850 P.2d 1].) Finally, defendant points to a small number of hearsay statements that he claims do not fall within the scope of the state-of-mind exception to the hearsay rule. Some of the evidence, such as Probst’s statements identifying the people he was planning to meet as people from Peoria, Arizona, does indeed fall within the scope of the exception. As to the remainder of the evidence, the record fails to establish either prejudice or the lack of a rational tactical purpose for trial counsel’s failure to object to the evidence. {People v. Williams, supra, 16 Cal.4th at p. 215.) For example, the evidence elicited from Sean McMillan to the effect that defendant was a moneyman who did not participate in drug deals himself was actually helpful to the defense, which was trying to establish that defendant did not accompany Reese to the Kaula Drive residence. 2. Shackling of Defendant Defendant complains that the record fails to disclose an adequate justification for shackling him at trial and, therefore, that the shackling deprived him of due process of law. The facts relevant to this complaint are as follows: At the outset of the proceedings, defendant’s trial counsel noted that although he had not yet had the opportunity to discuss appropriate security measures with defendant, “it seems to me it’s in our best interest to have you belly chained in the chair with one officer behind you versus having two or three officers sitting behind you which may have the appearance of something greater than what it is. So just cover it with your sweater, but that’s up to you.” The trial court explained that if this procedure were employed, “the only way the jury would see is if you tried to stand up and observed the chair come up with you.” The next day, defendant confirmed that he had discussed the matter with his counsel and agreed that this was the appropriate procedure. “It is settled that the use of physical restraints in the trial court cannot be challenged for the first time on appeal. Defendant’s failure to object and make a record below waives the claim here. [Citations.]” (People v. Tuilaepa (1992) 4 Cal.4th 569, 583 [15 Cal.Rptr.2d 382, 842 P.2d 1142].) In this case, not only did defendant fail to object to the security measures taken at trial, he affirmatively consented to them. Apparently recognizing the waiver problem, defendant argues that his trial counsel was ineffective in suggesting the security measures. The record does not affirmatively disclose the lack of a rational tactical purpose for counsel’s actions. (People v. Williams, supra, 16 Cal.4th at p. 215.) Trial counsel’s own remarks indicate that he suggested the security measures because they were the least visible means of restraining defendant. Nor is there any basis for assuming, as defendant would have us do, that no justification existed for the physical restraints. To the contrary, as the trial court noted, defendant had a history of escape. Likewise, the record fails to demonstrate any prejudice flowing from trial counsel’s alleged deficiency. {People v. Williams, supra, 16 Cal.4th at p. 215.) Defendant forthrightly acknowledges that the record on appeal fails to establish that any of the jurors actually saw the physical restraints. As for defendant’s claim that the restraints prevented him from attending sidebar conferences at which questions from the jury were discussed, defendant himself stated that he did not wish to be present at the conferences, explaining that his trial counsel “knows basically about the way things should go, and any time he has a question, he asks me.” Under these circumstances, we cannot assume defendant’s absence from the sidebar conferences prejudiced him in any way. 3. Questions From Jurors In the midst of his argument on the issue of shackling, defendant advances a distinct challenge to the procedure by which jurors were allowed to ask questions of witnesses. During the guilt phase of the trial, the trial court permitted the jurors to submit questions to be asked of witnesses after the attorneys had concluded their questioning. Whenever a question was received from a juror, the trial court and counsel conferred as to whether the question was proper. If so, the party who had called the witness asked the witness the question. Defendant does not dispute that “ ‘[i]n a proper case there may be a real benefit from allowing jurors to submit questions [to witnesses] under proper control by the court.’ ” {People v. Anderson (1990) 52 Cal.3d 453, 481 [276 Cal.Rptr. 356, 801 P.2d 1107].) Defendant asserts, however, that the trial court should have asked the jurors’ questions itself rather than allowing the prosecutor to ask the questions. According to defendant, the procedure employed by the trial court “improperly made the district attorney the voice of the jury and provided the prosecution with the unfair advantage of being able to carry the jury’s torch.” As a preliminary matter, we note the trial court permitted the party who had called a witness to ask the jurors’ questions. The fact the prosecutor asked most of the questions reflects nothing more than the fact the prosecution called most of the witnesses. In any event, we have previously approved precisely the procedure employed by the trial court here, specifically rejecting a claim that permitting a party to ask the jurors’ questions allowed that party “to ‘curry favor’ with individual jurors.” {People v. Cummings, supra, 4 Cal.4th at p. 1305.) 4. Instructional Issues a) Failure to Give Unanimity Instruction Relying on People v. Melendez (1990) 224 Cal.App.3d 1420 [274 Cal.Rptr. 599], defendant argues that the trial court erred when it failed to instruct the jury that it must unanimously agree he committed the same acts in order to find him guilty of the murder counts and the robbery-murder special-circumstance allegations. (See CALJIC No. 17.01.) Defendant claims that such an instruction was necessary because “[s]ome jurors may have voted to convict on the basis of a belief that Mr. Majors was present at the Kaula Drive residence and personally committed or facilitated the homicides. Other jurors may have voted to convict on the basis of conduct by Mr. Majors prior to Mr. Reese’s departure from Denny’s. There is no basis for this Court to conclude that the jury ever agreed on what conduct by Mr. Majors made him guilty of capital murder.” At the outset, we note that defendant is simply mistaken when he asserts that there is no basis for this court to conclude the jury ever agreed on the acts he committed. The jury expressly found defendant had personally used a firearm during the three murders and the robbery. (§ 12022.5, subd. (a).) The jury had previously been instructed that in order to find defendant had personally used a firearm, it had to find he displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it. As both the trial court and defense counsel recognized at the hearing on defendant’s motion for a new trial, the jury’s finding that defendant personally used a firearm is inconsistent with his having remained at the Denny’s restaurant while Reese went to the Kaula Drive residence to rob and kill the victims. In any event, there is no basis for defendant’s claim that a unanimity instruction should have been given in this case. “It is settled that as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of murder as that offense is defined by statute, it need not decide unanimously by which theory he is guilty. (People v. Pride (1992) 3 Cal.4th 195, 249-250 [10 Cal.Rptr.2d 636, 833 P.2d 643]; People v. Milan (1973) 9 Cal.3d 185, 194-195 [107 Cal.Rptr. 68, 507 P.2d 956].) More specifically, the jury need not decide unanimously whether defendant was guilty as the aider and abettor or as the direct perpetrator. (People v. Beardslee (1991) 53 Cal.3d 68, 92 [279 Cal.Rptr. 276, 806 P.2d 1311]; People v. Forbes (1985) 175 Cal.App.3d 807, 816-817 [221 Cal.Rptr. 275].) This rule of state law passes federal constitutional muster. (Schad v. Arizona (1991) 501 U.S. 624 [115 L.Ed.2d 555, 111 S.Ct. 2491].)” {People v. Santamaría (1994) 8 Cal.4th 903, 918-919 [35 Cal.Rptr.2d 624, 884 P.2d 81].) To the extent People v. Melendez, supra, 224 Cal.App.3d 1420, suggests to the contrary, it is disapproved. b) Failure to Give Accessory-after-the-fact Instruction Defendant contends that the trial court had a sua sponte duty to instruct the jury on the crime of accessory after the fact (§ 32) as a lesser included offense of murder. Not so. “Murder can be committed without the murderer being an accessory after the fact. The latter offense, therefore, is not necessarily included in the former.” {People v. Preston (1973) 9 Cal.3d 308, 319 [107 Cal.Rptr. 300, 508 P.2d 300]; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1157, fn. 57 [36 Cal.Rptr.2d 235, 885 P.2d 1].) In the alternative, defendant asserts that his trial counsel was ineffective in failing to request an accessory-after-the-fact instruction as a lesser related offense of murder. (See People v. Hawkins (1995) 10 Cal.4th 920, 952 [42 Cal.Rptr.2d 636, 897 P.2d 574] [“[T]he trial court has no sua sponte duty to instruct the jury on lesser related offenses, and defendant’s failure to request the instruction at trial waives the issue on appeal. [Citation.]”].) In this case, however, trial counsel’s decision to forgo the instruction was not a result of oversight but rather deference to defendant’s own wishes. During the discussion of guilt phase jury instructions, the trial court specifically asked trial counsel to confirm “you were not requesting instruction on P.C. 32 as a lesser-included or reasonably related.” Counsel responded, “That’s correct. I have discussed it with Mr. Majors. I recommended it to him. His position is he doesn’t want it and I’m going to defer to his judgment. I’m not requesting a 32 P.C.” Defendant personally acknowledged, “That’s absolutely correct. All or nothing.” “The invited-error doctrine operates ... to estop a defendant from claiming ineffective assistance of counsel based on counsel’s acts or omissions in conformance with the defendant’s own requests.” (People v. Lang (1989) 49 Cal.3d 991, 1032 [264 Cal.Rptr. 386, 782 P.2d 627], fn. omitted; see also People v. Frierson (1985) 39 Cal.3d 803, 817 [218 Cal.Rptr. 73, 705 P.2d 396].) c) Robbery-murder Special-circumstance Instruction Defendant claims the trial court’s instruction on the robbery-murder special circumstance erroneously removed an element of the special circumstance from the jury’s consideration, denying him due process of law. He relies on a discrepancy between the oral and written versions of the instruction. The trial court orally instructed the jury as follows: “To find that the special circumstance, referred to in these instructions as murder in the commission of robbery, is true, it must be proved: ft[] la) The murder was committed while the defendant was engaged in the commission of a robbery; HQ lb) Or the murder was committed during the immediate flight after the commission of a robbery by the defendant or; [^Q 2) The murder was committed in order to carry out or advance the commission of the crime of robbery or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instmctions is not established if the robbery was merely incidental to the commission of the murder.” (Italics added.) The jury was also provided with six written copies of the instructions. The written version omitted the two italicized “or’s.” Defendant argues that the addition of the second italicized “or” to the instruction given to the jury orally removed the temporal element described in paragraphs 1(a) and 1(b) from the jury’s consideration. In other words, the oral instruction allowed the jury to find the special circumstance to be true without finding that “[t]he murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit” robbery. (§ 190.2, subd. (a)(17)(A).) We conclude that any error in the oral instruction was harmless. The jury received the correct instruction in written form. (See People v. Crittenden (1994) 9 Cal.4th 83, 138 [36 Cal.Rptr.2d 474, 885 P.2d 887] [and cases cited therein].) In addition, the prosecutor emphasized the temporal element of the robbery-murder special circumstance during his closing argument, telling the jury that in order to find the special circumstance to be true it “must find that the murder was committed during the course of a robbery.” “Rather than exacerbating the trial court’s misreading, this argument served to reinforce the correct written version of the instruction.” {People v. Crittenden, supra, 9 Cal.4th at p. 139.) Finally, the verdict form itself reflects the jury’s finding that defendant “murdered the victims during the commission of a robbery.” d) Instructions on Firearm Enhancements Defendant asserts that the trial court should have instructed sua sponte on being armed with a firearm (§ 12022, subd. (a)) because it is a “lesser included enhancement” of personally using a firearm (§ 12022.5, subd. (a)). (See People v. Turner (1983) 145 Cal.App.3d 658, 683-684 [193 Cal.Rptr. 614].) He argues that such an instruction was warranted based on evidence that he remained at the Denny’s restaurant while Reese went to the Kaula Drive residence to rob and kill the victims. Assuming arguendo the evidence supported this theory, an issue we need not decide, we decline defendant’s invitation to extend a trial court’s sua sponte obligation to instruct on lesser included offenses to so-called “lesser included enhancements.” One of the primary reasons for requiring instructions on lesser included offenses is “ ‘to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between [guilt] and innocence’ ”—that is, to eliminate “ ‘the risk that the jury will convict . . . simply to avoid setting the defendant free.’” {Schad v. Arizona (1991) 501 U.S. 624, 646-647 [111 S.Ct. 2491, 2505, 115 L.Ed.2d 555].) This risk is wholly absent with respect to enhancements, which a jury does not even consider unless it has already convicted defendant of the underlying substantive offenses. (See generally, People v. Wims (1995) 10 Cal.4th 293, 307 [41 Cal.Rptr.2d 241, 895 P.2d 77], fn. omitted [“[A] sentence enhancement is not equivalent to a substantive offense, because a defendant is not at risk for punishment under an enhancement allegation until convicted of a related substantive offense. [Citation.] At that time, a defendant’s liberty interest ‘has been substantially diminished by a guilty verdict.’ [Citation.] The Legislature, moreover, has in various ways expressed its intention that enhancements not be treated as substantive offenses.”].) Under these circumstances, we hold that a trial court’s sua sponte obligation to instruct on lesser included offenses does not encompass an obligation to instruct on “lesser included enhancements.” To the extent People v. Turner, supra, 145 Cal.App.3d at pages 683-684, held to the contrary, it is disapproved. B. Penalty Phase Issues 1. Failure to Hear Marsden Motion Prior to Penalty Phase Defendant claims the trial court denied him a fair penalty phase hearing when it “denied/failed to hear” his Marsden motion brought between the guilt and penalty phases of the trial. (See People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44].) The record does not support this claim. On November 26, 1990, six days after the guilt phase verdicts were returned and before the penalty phase had commenced, defense counsel advised the trial court that defendant planned to make a motion for a new trial based on ineffective assistance of counsel. The trial court rejected defense counsel’s suggestion that the best time to address the issue would be after the penalty phase had concluded, unequivocally stating that “[i]f Mr. Majors feels that there are grounds to relieve you of counsel, then it’s best that we hear it now, and I’ll research what—After I’ve heard the basis for it.” The trial court advised defendant to “decide when you’re going to make the motion.” Defendant replied that he was “going to need some time then to get everything together—Because I’ve got a list of 11 things here that I’ve got to get done, and I’m not even close.” Defendant explained that a recent change in his custodial status, which had resulted in the lack of access to materials, telephones and tape recorders, was hampering his ability to prepare the motion. The trial court discussed the problem with jail officials, who reinstated defendant’s original custodial status. Defense counsel then relayed defendant’s request that the trial court appoint another attorney “to help him determine whether or not there was any inadequate representation. That person could read the transcript, look at the files, and I would be happy to assist that person in any way.” The trial court rejected this suggestion, noting “[y]ou can bring to my attention some potential problem; then I would consider that. But at this point in time, I’m not going to hire another lawyer to get involved in the case and expect that lawyer to jump in with both feet, specifically on a fishing expedition, trying to find something wrong.” Four days later, the parties returned to court to discuss the upcoming penalty phase. At the conclusion of the day’s proceedings, the trial court inquired whether there was anything else to discuss concerning “the previous motions about relieving counsel.” Defense counsel responded that he and defendant were in agreement that any motion for a new trial based on ineffective assistance of counsel should be made at the conclusion of the penalty phase after defendant had had an opportunity to review his documents. Defendant expressly agreed, stating “[ujnless something else turns up, that’s true.” The trial court subsequently assured defendant that it would not treat such a motion any differently if made later rather than sooner. On January 18, 1991, about a month after the penalty phase verdict was returned, defendant filed a 47-page motion for a new trial, with new counsel, based on the ineffective assistance of his trial counsel. Shortly thereafter, the trial court conducted an exhaustive in camera hearing, at which defendant fully aired his complaints and defense counsel responded point by point. (See People v. Smith (1993) 6 Cal.4th 684, 696 [25 Cal.Rptr.2d 122, 863 P.2d 192].) At the conclusion of the hearing, the trial court denied the motion. On this record, there is no basis for defendant’s claim that the trial court should have heard his Marsden motion prior to the penalty phase for the simple reason that the motion had not yet been made. To the contrary, defendant personally stated that he was “going to need some time then to get everything together” and was “not even close” to being ready to make the motion. Defendant later confirmed that he wanted to wait until after the penalty phase to make the motion so long as it would not impair his substantive right to a new trial based on the ineffectiveness of his trial counsel. “The mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing.” (People v. Lucky (1988) 45 Cal.3d 259, 281 [247 Cal.Rptr. 1, 753 P.2d 1052].) Rather, “a trial court’s duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises [only] when the defendant in some manner moves to discharge his current counsel.” (Ibid., fn. omitted.) In this case, the trial court conducted a thorough and comprehensive hearing on defendant’s motion as soon as it was made. No error occurred. 2. Defendant’s Absence From Penalty Phase Proceedings Defendant maintains that the trial court violated his statutory and constitutional rights by granting his request to be absent from the penalty phase of the trial. We begin our analysis of this issue with a review of the pertinent facts. Shortly after the guilt phase verdicts were returned, during an in camera hearing, defense counsel advised the trial court that defendant “may want to waive his appearance for the penalty phase, and he wanted me to advise the Court that he just doesn’t want to.act out. He’s just afraid that he’s going to get too upset.” Defendant confirmed, “I really don’t know if I can sit here and listen to [the prosecutor] call me three kinds of assholes and whatever else he’s going to do, because I know he’s going to. And I don’t really know if I can handle it.” Before the penalty phase commenced, the trial court held a hearing on the issue. The trial court began by announcing its view that “[section] 977 specifically does not allow a defendant to excuse himself during evidentiary proceedings.” The trial court then explained that, notwithstanding the statutory language, it might be willing to permit defendant’s absence, but only if it were convinced he was likely to disrupt the proceedings. Outside the presence of the prosecutor, defendant expressed concerns about the planned testimony of his parents at the penalty phase. He was afraid that if the prosecutor aggressively cross-examined his mother, “I will probably say something that I shouldn’t. And I don’t want to be here. I don’t.” Defendant was aware of the possible ramifications of not being present, including the inability to help his counsel with the cross-examination of prosecution witnesses. The trial court responded that it “would not excuse Mr. Majors just on the basis that you think it’s a waste of time, you’re disgusted, you’re depressed, those things; I specifically would order you to remain here. [H] However, I respect your evaluation of yourself and your emotions in the situation, and you tell me that there is a strong possibility that you would act out, get angry and beat on the table or stand up and call somebody an asshole, do something of that nature that would disrupt the proceedings and perhaps make an impact on the jury that would be detrimental to you, then I would excuse you for that reason and for that reason only.” Defendant replied, “I would definitely give you that—I would do that. I believe I would.” The trial court then posed the following direct question to defendant: “[Do] [y]ou feel that [there] is a strong possibility or probability that you would be unable to control your emotions and that you would physically or verbally act out in that type of fashion?” Defendant’s response: “Yes.” Defendant went on to explain, “I don’t think I would hit anybody, anything like that. But I would probably say a lot of things that I don’t want to say, because I told you before, that’s why I brought it to your attention before. I don’t want to do that. I really don’t. HO And, you know, I think the jury has already made up their mind. I don’t think this is going to change their minds in any way. And I don’t want to be here to watch it. Because I know I’ll go off. I know I will.” Following this explanation, the trial court agreed to permit defendant’s "absence from the penalty phase, reasoning “that’s the critical point, the last few words. You certainly don’t want to be here to watch it because you’re disgusted with it. That’s certainly one thing, but if you feel there’s a strong risk that you’re going to act out, then I think it’s best to comply with your wishes.” Back in the presence of the prosecutor, the trial court secured an oral waiver from defendant, specifically cautioning defendant as to the many pitfalls of being absent from the penalty phase. The trial court reiterated, and defendant acknowledged, that “the only reason I would excuse you is your representation that you may not be able to control your emotions during certain portions of this proceeding and that you may physically or orally act out, and that that may have a detrimental impact on your case.” At the beginning of the penalty phase proceedings, the trial court admonished the jury not to draw any inferences from defendant’s absence. Defendant now asserts that the express terms of sections 977 and 1043 (see ante, fn. 15) prohibited him from waiving his presence during the penalty phase or, in the alternative, that a written waiver was required. “[W]hen read together, sections 977 and 1043 permit a capital defendant to be absent from the courtroom only on two occasions: (1) when he has been removed by the court for disruptive behavior under section 1043, subdivision (b)(1), and (2) when he voluntarily waives his rights pursuant to section 977, subdivision (b)(1). However, section 977, subdivision (b)(1), the subdivision that authorizes waiver for felony defendants, expressly provides for situations in which the defendant cannot waive his right to be present, including during the taking of evidence before the trier of fact. Section 1043, subdivision (b)(2), further makes clear that its broad ‘voluntary’ exception to the requirement that felony defendants be present at trial does not apply to capital defendants.” (People v. Jackson (1996) 13 Cal.4th 1164, 1210 [56 Cal.Rptr.2d 49, 920 P.2d 1254].) As noted, under the governing statutory scheme, a trial court retains the discretion to remove a capital defendant who “has been disruptive or threatens to be disruptive. . . . The trial court’s ability to remove a disruptive or potentially disruptive defendant follows not only from section 1043, subdivision (b)(1), but also from the trial court’s inherent power to establish order in its courtroom. (See Code Civ. Proc., § 1209 [trial court has the power to sanction various acts of contempt of court].)” (People v. Jackson, supra, 13 Cal.4th at p. 1211.) Here, the trial court did not permit defendant to “waive” his presence in the sense of voluntarily absenting himself from the courtroom. Rather, it is abundantly clear from the trial court’s remarks that the only reason it permitted defendant to be absent was that it accepted his representations that he was likely to be disruptive. We generally defer to a trial court’s determination as to when disruption from a defendant may be reasonably anticipated. (People v. Jackson, supra, 13 Cal.4th at p. 1211.) Such deference is particularly warranted where, as here, the likelihood of disruption turns on the credibility of a defendant’s own representations to the trial court. Since the trial court’s ruling was based on a credible threat of disruption, defendant’s focus on the form of his “waiver” is equally misplaced. Defendant also claims that the trial court violated his rights under the state and federal Constitutions when it authorized his absence during the penalty phase. He is mistaken. Defendant relinquished his constitutional right to be present, both by requesting to be absent and by threatening to be disruptive. (People v. Jackson, supra, 13 Cal.4th at p. 1210; People v. Medina (1995) 11 Cal.4th 694, 738 [47 Cal.Rptr.2d 165, 906 P.2d 2]; People v. Price (1991) 1 Cal.4th 324, 405 [3 Cal.Rptr.2d 106, 821 P.2d 610]; People v. Sully (1991) 53 Cal.3d 1195, 1239 [283 Cal.Rptr. 144, 812 P.2d 163].) 3. Refusal to Allow Jury to View Life-Without-Paróle Prison Cell During its penalty phase deliberations, the jury requested “to view a life without parole cell and environment with the normal people who live there.” The trial court responded, “that just can’t be done.” Defendant maintains that the trial court’s ruling was erroneous because it deprived the jury of relevant evidence constituting a mitigating circumstance. The trial court’s ruling was correct. The requested information was not a mitigating circumstance because “[i]t went neither to defendant and his background nor to the nature and circumstances of his crime.” (People v. Thompson (1988) 45 Cal.3d 86, 139 [246 Cal.Rptr. 245, 753 P.2d 37]; see also People v. Quartermain (1997) 16 Cal.4th 600, 632 [66 Cal.Rptr.2d 609, 941 P.2d 788]; People v. Daniels (1991) 52 Cal.3d 815, 877-878 [277 Cal.Rptr. 122, 802 P.2d 906].) Moreover, “[describing future conditions of confinement for a person serving life without possibility of parole involves speculation as to what future officials in another branch of government will or will not do. [Citation.]” (People v. Thompson, supra, 45 Cal.3d at p. 139.) Although defendant argues that “this logic is incorrect and the matter should be revisited, at least as to the question of the admissibility of evidence about how a life without parole prisoner would live,” he advances no persuasive reason as to why this is so. Since the evidence was inadmissible, defendant’s claim that his trial counsel was ineffective in failing “to present the requested information in any other form or to present any evidence of a similar nature” also fails. 4. Denial of Automatic Motion for Modification of Penalty Verdict Defendant contends that the trial court failed to give an adequate statement of its reasons for denying his automatic motion for modification of the jury’s penalty verdict. (See § 190.4, subd. (e).) This contention is meritless. At the outset of the hearing on the motion, the trial court made it clear that it was independently weighing the penalty evidence. The trial court proceeded to identify the following aggravating factors: “the brutality involved in these killings, and it is with all three killings, was—I am having difficulty even finding words to describe it. But the brutal way these three lives were taken is unusual even in this violent day and age. ffl] The fact that there were three killings, the fact that Mr. Majors has shown no remorse at all, of course that is consistent with maintaining his innocence. But a significant factor in this case, in addition to the facts of this particular murder, were the two prior incidents that Mr. Majors was involved in were particularly shocking, as his conduct regarding the individual he placed in the trunk of the car and then apparently tracked that person down with the intent of killing him. It just shows a mind that has absolutely no regard for human life.” The trial court went on to find these aggravating factors “more than justify the death penalty in this case,” observing that the mitigating evidence was “not a significant factor” because it reflected “little more than what the average person or what many people suffer throughout their life times.” This statement of reasons was more than adequate. (See People v. Montiel (1993) 5 Cal.4th 877, 946 [21 Cal.Rptr.2d 705, 855 P.2d 1277]; People v. Anderson, supra, 52 Cal.3d at p. 484.) C. Juror Misconduct Issues Defendant asserts that he was denied his statutory and constitutional rights to a fair trial by several instances of juror misconduct. “As a general rule, juror misconduct ‘raises a presumption of prejudice that may be rebutted by proof that no prejudice actually resulted.’ [Citations.]” (in re Hitchings (1993) 6 Cal.4th 97, 118 [24 Cal.Rptr.2d 74, 860 P.2d 466].) In determining whether misconduct occurred, “[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court’s independent determination. [Citations.]” (People v. Nesler (1997) 16 Cal.4th 561, 582 [66 Cal.Rptr.2d 454, 941 P.2d 87] (lead opn. of George, C. J.).) With these principles in mind, we turn to the specific claims of juror misconduct advanced by defendant. 1. Juror Concealment Claim Defendant’s first misconduct claim is one of juror concealment. He alleges that the jury foreperson, Rring Mohr, concealed facts during voir dire that would have revealed a potential for bias. It is well established that “[a] juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct. [Citations.]” {In re Hitchings, supra, 6 Cal.4th at p. 111.) In this case, however, defendant has failed to establish the factual predicate of his juror concealment claim—namely, that Mohr concealed relevant facts or gave false answers during voir dire. The juror concealment claim was one of several grounds for defendant’s motion for a new trial. In the motion, defendant focused on three questions and answers contained in Mohr’s jury questionnaire. Question No. 13 aske