Full opinion text
Opinion CHIN, J. A jury convicted defendants Dellano Leroy Cleveland and Chauncey Jamal Veasley, as well as codefendant Rajeesh Prasad Charan, of robbing and murdering Anthony Nelson and Charles Hunter and of conspiring to commit murder. (Pen. Code, §§ 182, 187, 211.) The jury found the murders to be in the first degree and under the special circumstances of multiple murder and robbery murder. (§ 190.2, subd. (a)(3), (17).) As to the murders and robberies, the jury also found that a principal was armed with a firearm. (§ 12022, subd. (a)(1).) The jury found that each defendant either was the actual killer, or intended to kill, or “with reckless indifference to human life and as a major participant,” aided and abetted another in the commission of the robberies. (§ 190.2, subds. (b), (c), (d).) Both Cleveland and Veasley admitted a prior conviction allegation. (§ 667, subd. (a).) The court bifurcated Veasley’s penalty trial from that of Cleveland and Charan. At the conclusion of the penalty trials, the same jury returned a verdict of death as to all three defendants. The court denied Cleveland’s and Veasley’s automatic motions to modify the verdict (§ 190.4) and sentenced them to death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgments. I. The Facts A. Guilt Phase 1. Prosecution Evidence In the evening of October 12, 1990, the bullet-ridden bodies of Anthony Nelson and Charles Hunter, both drug dealers, were found lying down in room 140 of the All Star Inn in Pomona. They had died of multiple gunshot wounds, most but not all to the head. Both received four head wounds, each of which alone might have been fatal. The evidence showed that a single gun, probably a nine-millimeter semiautomatic pistol, fired all of the bullets. The left pants pockets of both victims had been pulled out and were empty. Jewelry that Nelson normally possessed, including a watch, was missing. Room 140 was at the back of the motel, not visible from the office. It had not been rented that day. It appeared the door to the room had been kicked in. Motel records showed that the nearby room 138 had been rented to “DeChauncey Veasley” on September 26, 1990. Some blood found at the scene was type A. That blood could not have come from either victim, but it might have come from Cleveland, as well as about a third of the general population. There was not enough of the blood for further typing. Veasley’s fingerprints were found on the inside of the front door of room 140, above the doorknob. Evidence showed that earlier on the day of the murders, the three defendants had invaded the Hesperia home of Jesus Valles, sometimes called “Chuey,” who was also a drug dealer. A gunfight ensued in which Valles and Cleveland were both shot in the hand. Some of the bullets fired in this fight came from the same gun later used in the murders. Dorcey Jackson testified that she introduced Nelson (known as “Rick”) to Veasley (known as “Ocean”) in July or August 1990. Sometimes she also saw Veasley with both Nelson and Hunter. In testimony admitted only against Veasley, Jackson said that Nelson and Veasley talked about engaging in drug transactions. She sometimes heard Veasley call Nelson on the telephone, and then Nelson would appear and talk about drug transactions. At the time of the murders, Nelson lived in San Dimas with his girlfriend, Nicole Brown (who was Hunter’s cousin), and Nelson’s cousin, Arthur Walker. On the day of the murders, Hunter came to their house with a beeper. At one point, the beeper went off. Hunter looked at the beeper and said, “It’s Ocean” (Veasley). Hunter made a telephone call, then gave the telephone to Nelson, who spoke for a while. A short time later, the telephone rang again. Nelson answered it and spoke for about five or 10 minutes. Then Nelson went into another room where he kept cocaine. He returned with a plastic bag containing what Walker estimated was about two or three ounces of rock cocaine. Nelson handed the bag to Hunter. The two then left around 2:00 p.m. Nelson said he was “going to the All Star” and would “be back in about a half hour.” He indicated to Walker that he was going to “make a sale.” Nelson and Hunter never returned. Bobbie Jean Peterson, Veasley’s wife at the time of these events, testified that in October 1990, she lived in Hesperia. It took about 30 to 45 minutes to drive between Hesperia and Pomona. Veasley did not live with her at the time, but he sometimes visited. On October 11, 1990, Peterson was at her home with Veasley and Cleveland. She heard the two defendants talk “about going up the street later on in the evening when it got dark because they were going to rob” the house of a drug dealer called Chuey. The next day,.October 12, both defendants were again at her home. Veasley said that they had to get to Chuey’s before noon. Veasley told Cleveland that he, Veasley, would have “to sit in the car because Chuey knew him,” and that the others should “go in, get the money and get the drugs and meet him back outside.” Later, both Cleveland’s brother and codefendant Charan arrived. There was talk that “they had been waiting on them, let’s go.” Around 10:00 or 11:00 a.m., the defendants, Cleveland’s brother, and Charan left together. They returned about an hour later. Cleveland said he had been shot in the hand and asked Peterson to take out the bullet. He was bleeding on his hand, his clothes, and onto the floor. Peterson told him she could not take the bullet out, and he had to go to the hospital. Veasley was angry with Cleveland “because things hadn’t went as planned.” He said Cleveland “was getting weak and ... he should have blasted all those people.” Cleveland said “that there was another guy there and they had only expected one guy, they hadn’t expected there to be shooting . . . .” He also said he “wasn’t getting weak and that if [Veasley] thought of something else he would see . . . he was not weak.” Veasley responded that it was “okay, that they could do something else.” Cleveland said “that was okay with him.” Veasley said that “he was currently buying cocaine from a man named Rick down the hill. That he could beep this person, put in his code and that this man would call him right back. When he did that they could have . . . Rick meet them at a motel room and that they could take the drugs from him instead of paying for it.” Cleveland said that was “fine.” Veasley also said “they could go to Pomona and bump off his supplier.” Veasley then paged Nelson. After about 10 minutes the telephone rang. While they were waiting for the call, Veasley told the others that “they could go to the All Star Inn in Pomona, that the security was lax there during the day.” Veasley said that “they could go to a back room and kick in the door. And that he would go use another phone and call Rick and tell Rick where he was because he had already dealt with Rick at that motel before so it wouldn’t be anything unusual. He said he would tell Rick what room and that he would go back over there and that the other men could wait in the bathroom and then when Rick got there they could come out.” Cleveland said, “Okay.” When the telephone rang, Veasley answered. Peterson heard him say on the telephone “that he was on his way down the hill and that he needed to buy three ounces.” He also said that he had “some people with him, some people that had invested money, but they would leave the minute Rick got there.” Veasley told Nelson that “he was going to get a motel and that he will call him.” After the telephone call, Veasley told the others that “Rick would come with another guy, that he always brought a smoker,” i.e., a cocaine user, “with him.” Veasley also said “that they had to be taken care of because Rick knew him, knew the phone number to [Peterson’s] house and that he [Veasley] had a wife and kids.” Veasley called Nelson a “hollypopper”—a person who sells drugs but is not “street wise.” He said that Nelson did not carry a gun. Nelson, he said, “had a lot of money and . . . wouldn’t know any better. He wouldn’t know not to go make a big deal like that at a motel room.” Cleveland asked which gun they should use. At this point, Peterson noticed that Charan had a handgun. Cleveland asked whether they should take the “nine millimeter or . . . the rifle.” Charan said he did not want to use the nine-millimeter, which he referred to as his, “because they had just used it up the street.” Cleveland said that “they should use the nine millimeter because a rifle was too loud, even if they shot it through a pillow, and that rifle made a lot of mess.” They decided to use the nine-millimeter. Someone said they did not think the Hesperia matter would be connected with Nelson in Pomona. Peterson received a telephone call around this time from Jackson’s son, Bobby. Veasley told Bobby he was on his way to Pomona to rob “you know who.” Veasley, Cleveland, and Charan left around noon. By this time Cleveland was no longer bleeding. Cleveland and Veasley returned around 8:00 or 9:00 that evening. Veasley was wearing a watch, something Peterson had never seen him wear before. He also possessed a baggie filled with rock cocaine. In testimony admitted only against Veasley, Peterson said that a couple of days later Veasley made statements to another person indicating Veasley’s involvement in the incident at the All Star Inn. Dion Morris testified that she knew Cleveland, Veasley, and Charan. One time when they were at her apartment, she saw Cleveland possess a .22-caliber gun, Veasley a sawed-off shotgun, and Charan a nine-millimeter handgun. On October 12, 1990, in the late afternoon, she received a telephone call from Veasley. Veasley told her that Cleveland had been shot in the hand and asked her if she knew someone who could take a bullet out. He also said that Cleveland “had got shot in his hand and that it was kind of like a shootout and made a joke about it.” Cleveland then got on the telephone. He also said he had been shot in the hand and asked for Morris’s help. Morris arranged for someone to look at Cleveland’s hand. Cleveland came to her apartment around 11:00 that evening. His hand was swollen and bleeding, and he had blood on his shoes and “khakis.” In testimony admitted only against Cleveland, Dion said that Cleveland told her “that if he had went to the hospital that because he had a bullet wound that the doctors would call the police and that he would go to jail.” In testimony admitted only against Veasley, Morris testified that sometime after October 12, Veasley told her that he had killed somebody in Pomona and had gotten two or three ounces of cocaine and a watch out of the murder. Cindy Buttram testified that at the time of the murders, she was Cleveland’s girlfriend. In testimony admitted only against Cleveland, she said that in October 1990, Cleveland told her he had been shot. She saw him later that day and observed the wound. The next day, October 13, she took him to the hospital, where he remained for three days. Hospital records showed that Cleveland was admitted to the Los Angeles County USC Medical Center on October 13, 1990. In testimony admitted only against Cleveland, Detective John Holzberger testified that he interviewed Cleveland in January 1991. Cleveland’s hand was injured but was healing. Cleveland told him he had been shot in a scuffle with a man who had been trying to break into Buttram’s car. In testimony admitted only against Veasley, Detective Harry Moore testified that he interviewed Veasley in February 1991. Veasley denied knowing that Cleveland had been shot in the hand. He said he knew what the All Star Inn was and had been there once. He denied knowing anyone named Rick or Ricky from San Dimas. He also denied owning a gun and knowing the persons who had been killed at the All Star Inn in October 1990. Telephone and pager company records confirmed the existence, although not the substance, of various telephone calls and pagings about which the witnesses testified. 2. Defense Evidence Cleveland presented evidence regarding his being shot in the hand. Alvin Woods, Cleveland’s uncle, testified that he lived on East Kingsley in Pomona. On October 12, 1990, he was outside watering some plants when he heard a gunshot. He turned and saw Cleveland and another person “playing” or “kind of tussling” with the gun. It appeared to Woods “like they was playing at the time arid it just got out of hand.” Woods also saw blood come from Cleveland’s hand. Cleveland then entered a car and left. Dolores Glynn, Buttram’s sister, testified that a bleeding Cleveland came to her house on October 12, 1990. He made a telephone call to Buttram, then left after about 20 minutes. Cleveland told her “he had been accidentally shot over on Kingsley.” Rose Wentz, Buttram’s employer, testified that on a Friday in October 1990, Buttram received a telephone call in the afternoon. Buttram told Wentz that Cleveland had been shot in the hand. Buttram left work at the normal time, after 5:00 p.m. Buttram did not go to work the following Monday. She told Wentz that Cleveland was still in the hospital and wanted Buttram there. Counsel for Veasley elicited on cross-examination of the fingerprint examiner that he could not determine when Veasley’s fingerprint had been left on the door of room 140. Fingerprints can remain for a long time. Veasley also presented evidence of some of Peterson’s previous statements in an attempt to challenge her credibility. B. Penalty Phase Veasley’s penalty phase was bifurcated from that of the other two defendants. Veasley’s penalty phase was first, then Cleveland and Charan’s. 1. Veasley At prosecution request, the court judicially noticed that in 1984, Veasley was convicted of second degree commercial burglary, and in 1986, a “James English”—stipulated to be Veasley—was convicted of robbery with personal use of a gun. The prosecution presented evidence of the circumstances of the burglary, which involved breaking into a locked car and possessing a sawed-off shotgun. In mitigation, Veasley presented the testimony of his mother, Tressie Williams, and other family members. Veasley was raised by his mother and stepfather. Veasley was very fearful of his stepfather, who abused him physically and mentally. Eventually, when Veasley was 16 years old, his mother told him about his natural father and suggested he meet him. Veasley was excited, but then he learned that the father had died, which saddened Veasley. Veasley then left home. The witnesses testified that he was kind, protective, and supportive to his siblings and his own four children. Veasley was an outstanding basketball player and received numerous basketball scholarship offers. He was good with children and they loved him. 2. Cleveland At prosecution request, the court judicially noticed that in 1986, Cleveland was convicted of possession for sale of cocaine. The prosecution also presented evidence that he had other convictions for assault with intent to commit murder, robbery, kidnapping, and assault with a deadly weapon on a peace officer. It presented evidence of the circumstances of those crimes. In August 1980, Cleveland, armed with a pistol, and another person accosted a man and woman in the couple’s car, stole some of their property, and drove away with the man in the car. Eventually, Cleveland shot the man and fled. In January 1984, Cleveland drove his car into a police officer who had stopped him for speeding. In mitigation, Cleveland presented the testimony of his grandmother, of the minister who had presided over Cleveland’s wedding, and others who testified about his good qualities. Cleveland often helped his uncle, Alvin Woods, who was a paraplegic. He was good with children and loved dogs. He attended and helped out at church. Some of the witnesses testified that he was too good a person to receive the death penalty. Cleveland also called as a witness Peterson, who had testified at the guilt phase. Before her testimony, the court informed the jury that what she was about to say had been legally inadmissible until then. Peterson testified that the night of the murders, Veasley told her that he had made Nelson and Hunter lie down on the floor with their hands behind their backs, made them “scoot on their bellies with their heads up against the door,” and then shot them each twice in the head. II. Discussion A. Pretrial Issues 1. Cleveland’s Complaints About Counsel Cleveland was arrested in this matter long after the other two defendants. He first appeared in municipal court on March 13, 1991, and Lee Coleman was appointed to represent him. After the preliminary hearing, he was arraigned in superior court on May 13, 1991, and Coleman was appointed to represent him in that court. On May 16, 1991, Cleveland stated that he was opposed to going beyond the statutory time period for trial. The court set the matter for hearing on June 12, 1991. On that date, the district attorney said the prosecution would be ready for trial on July 1, 1991. Counsel for both Veasley and Charan said they would not be ready for trial so soon. Coleman said that he, too, would not be ready for trial by then, explaining, “We have tremendous volume [of discovery], close to 3,000 pages of documents and approximately an additional hundred that we received yesterday, the 26 video tapes and 8 audio tapes, quite extensive preparation required in this case because of the complexity of the case, and I will not be ready on the 1st of July.” Coleman said he would ask Cleveland to waive time until September. The court asked Cleveland if he would waive time. Cleveland asked if he could “say something besides the question that you asked me.” The court agreed. Cleveland then said, “I would like to file for a 1387 under section 3, 4 and 5. A 1040 change of venue on the grounds that I feel that he’s had ample amount of time to get everything. We have been gone a month, and he just got the tapes yesterday, and just like I feel he’s not—he’s isn’t representing me to his fullest ability.” The court asked whether it was his desire not to waive time. Cleveland said it was. Accordingly, because Cleveland did not waive time, the court maintained the July 1 trial date. The next hearing was held on June 20, 1991. Charan moved to continue the trial. Coleman also requested a continuance on behalf of Cleveland. Cleveland, however, stated he objected to a continuance. When the court asked why, he responded: “Well, like I stated last week, ... my attorney—I mean, I don’t know nothing. He never tells me what’s going on in the case and what he’s doing and how far he’s gone. So I don’t know where we’re at, anyway. I know the complexity of the case, but that’s it, because I just know the charges.” The court asked Coleman to comment. Coleman said, “I discussed with my client facts of the case. I’ve also indicated to him how far I am in the papers that we have. I think I’ve indicated to him before that I’ve covered approximately 500 pages of the additional information that’s come in, and I’ve asked him to cooperate and give us additional time to work on the case.” Cleveland responded that Coleman “told me he went 700 pages last week, and that was it. As I’ve stressed last week, under Penal Code 1387—” The court then ascertained that both Veasley and Charan had no objection to continuing the case. It then found good cause for a continuance due to the nature of the charges, the amount of discovery, and the investigation the case warranted. Over Cleveland’s objection, it granted a continuance until September. The case was assigned for trial on September 11, 1991. During Charan and Cleveland’s penalty phase, Cleveland told the court he wanted to say something in his defense. The court cautioned Cleveland that it would hear any statement he wanted to make, but he should first discuss it with Coleman. Cleveland responded, “How can I discuss something with someone that doesn’t listen to me?” The court reiterated that it would “entertain” a statement, but it put the matter over so Cleveland could think about it and talk to Coleman. In Cleveland’s absence, the court told Coleman there may be a potential “Marsden motion” (People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44]), and that he may wish to discuss the matter with Cleveland. Coleman responded, “I will. Just the difficulty in paying attention to what’s happening in the case and trying to have an interview with Mr. Cleveland here at the counsel table, and it doesn’t work out too well.” At the next hearing, the court asked Cleveland whether he had further discussions with Coleman. Cleveland said, “I talked to my counsel during lunch break and feel I don’t want to drop the issue completely.” The court asked if Cleveland wanted to exclude the prosecutor from the hearing and said it would do so if requested. Cleveland said he “would like to reserve the right, until a later time.” The court explained to Cleveland that if there were any conflict between him and Coleman, Cleveland had the right to inform the court with the prosecutor and maybe even the other defendants excluded, and that he could also reserve the matter until later. Cleveland said he would reserve it. After the death verdict, when the court was scheduling the hearing on the automatic motion to modify the verdict, Coleman stated that Cleveland did not wish to waive time. The court told Cleveland it would give him anotlier opportunity to discuss the matter with Coleman because these were important issues. Cleveland said, “My life was important too, and I feel I was crossed, so no, he don’t know how to represent me.” He said, “I don’t even wish to have him [a] long time ago.” Accordingly, the court set the hearing on the modification motion within the statutory time period. At the outset of that hearing, the court, anticipating a possible Marsden motion, explained to Cleveland that he had the “right to be heard in reference to any issue that you want to bring to my attention regarding either conflicts that exist between you and Mr. Coleman or your belief that you have been denied effective representation . . . .” It further explained that if Cleveland wanted to make a “Marsden motion” it would exclude the prosecutor, and Cleveland could “tell me your specific reasons as to why you think a conflict exists or why you’re not receiving effective representation.” It asked if Cleveland wanted to be heard. Cleveland responded, “I waive.” When the court again asked if he wanted “to be heard in reference to that,” he said, “No.” Cleveland now argues the court violated its duty to inquire into the reasons for his complaints that Coleman’s performance was inadequate. The record does not support the contention. If a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation, the court must permit him to explain the basis of his contention and to relate specific instances of inadequate performance. (People v. Hart (1999) 20 Cal.4th 546, 603 [85 Cal.Rptr.2d 132, 976 P.2d 683].) But Cleveland never asked for new counsel even though the court invited him to do so. A defendant need not make a formal motion, but he must provide some clear indication that he wants a substitute attorney. (People v. Mendoza (2000) 24 Cal.4th 130, 157 [99 Cal.Rptr.2d 485, 6 P.3d 150].) It is true that early in the pretrial proceedings, Cleveland complained that his attorney had not taken certain steps, and he refused to waive time. But he did not indicate he wanted a new attorney so soon in the process. The court listened to and accepted his refusal to waive time, although it ultimately exercised its discretion to continue the matter at the request of Cleveland’s attorney and both of the codefendants due to the nature of the case. The fact that Coleman, in common with counsel for the codefendants, believed he needed more than 60 days to prepare to defend a capital case gives no reason to suspect his performance was or would be inadequate, and Cleveland’s complaint in this regard is no substitute for stating in some way that he wanted a new attorney. 2. Denial of Separate Trials Cleveland and Charan, but not Veasley, moved to sever their trial from that of the codefendants on the basis that their codefendants had made statements incriminating them. The court asked counsel to itemize in declaration form what the statements were so it could make an informed ruling. Counsel for Charan, but not for Cleveland, filed such a declaration itemizing the alleged statements. The district attorney then filed a response to the motion, discussing the statements item by item. Counsel for Charan later filed another declaration additionally identifying Veasley’s statement to Peterson that he, Veasley, had been the actual gunman as another basis for severance. He argued that a separate trial was necessary so that this statement could be admitted at Charan’s penalty trial. At the hearing, counsel for Cleveland joined Charan’s declarations. The court expressed doubt that counsel could do so, but it ultimately considered the declarations as to both Cleveland and Charan. The court denied the severance motions. While reserving specific evidentiary rulings for trial, the court stated its belief that some of the statements were either admissible or could be adequately redacted to protect the nondeclarants. It said it would give limiting instructions as needed. But it also expressed concern about some of the statements and warned the district attorney that, because she was resisting severance, she would not be able to use any statements that were inadmissible against a nondeclarant defendant and could not be adequately redacted. The court also denied severance to the extent the motion was based on Veasley’s statement that he had been the actual gunman, although it stated that it would consider an alternative solution such as a bifurcated penalty phase. Cleveland argues the court erred in denying severance. The Attorney General responds, first, that Cleveland has waived his current arguments because he did not present a declaration separate from Charan’s. We disagree. Ultimately, the trial court considered Charan’s declarations as to both Charan and Cleveland. Cleveland made his arguments to the court, and the court rejected them. The issue is properly before us on appeal. We also disagree, however, that the court erred. Veasley, Charan, and Cleveland were all charged with the same crimes arising out of the same events. “There is a statutory preference for joint trial of jointly charged defendants. (§ 1098.) ‘A “classic” case for joint trial is presented when defendants are charged with common crimes involving common events and victims.’ ” (People v. Pinholster (1992) 1 Cal.4th 865, 932 [4 Cal.Rptr.2d 765, 824 P.2d 571].) “An appellate court reviews a trial court’s ruling on a motion for separate trials for abuse of discretion.” (People v. Alvarez (1996) 14 Cal.4th 155, 189 [58 Cal.Rptr.2d 385, 926 P.2d 365].) “Under Penal Code section 1098, a trial court must order a joint trial as the ‘rule’ and may order separate trials only as an ‘exception.’ ” (Id. at p. 190.) Separate trials may be necessary if a codefendant has made an incriminating confession, association with codefendants may be prejudicial, evidence on multiple counts may cause confusion, there may be conflicting defenses, or a codefendant may give exonerating testimony at a separate trial. {People v. Pinholster, supra, 1 Cal.4th at p. 932.) The charges against each defendant were identical, so there was no danger of jury confusion, and we see no prejudicial association. There was no indication that any of the defendants would have provided exonerating testimony at a separate trial. It was not clear the defendants would have conflicting defenses. But even if there were conflicting defenses, that circumstance alone would not mandate severance. (People v. Alvarez, supra, 14 Cal.4th at p. 190; People v. Cummings (1993) 4 Cal.4th 1233, 1286-1287 [18 Cal.Rptr.2d 796, 850 P.2d 1].) Except for the danger of incriminating statements, this was a classic case for joint trial. At trial, Cleveland argued that statements by Veasley would prejudice him, thus requiring severance. The court was very aware of the need to protect Veasley’s codefendants. It stated its intent to exclude any statements that were inadmissible against a codefendant and that could not be adequately redacted. Judging the circumstances as they appeared at the time of the hearing on the severance motion {People v. Pinholster, supra, 1 Cal.4th at p. 932), the court reasonably concluded that redaction or, as necessary, exclusion of the statements would adequately protect Cleveland. Accordingly, the court acted within its discretion in denying severance. “After trial, of course, the reviewing court may nevertheless reverse a conviction where, because of the consolidation, a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law.” (People v. Turner (1984) 37 Cal.3d 302, 313 [208 Cal.Rptr. 196, 690 P.2d 669].) Because the trial court promised to protect the nondeclarants’ rights when it denied severance, it is especially necessary to review the actual trial to see if the court succeeded in doing so. We have reviewed the record. The statements that were admitted against Cleveland were properly admitted. The statements that were admitted solely against Veasley were adequately redacted, and the court gave adequate limiting instructions, so as to protect Cleveland. Against this conclusion, Cleveland argues that the “trial court’s failure to sever [his] trial turned out to be prejudicial in several easily predictable ways.” Some of his claims are irrelevant to the actual trial. He notes, for example, that at the preliminary hearing, Peterson testified that when Veasley and Cleveland returned home the evening of the double murder and she observed Veasley wearing a watch, she told Veasley, “You did it.” Cleveland argues that the accusation was not admissible against him as an adoptive admission. He may be correct in the abstract, but it does not matter because the district attorney agreed not to ask Peterson about the accusation, and she did not mention it at trial. The court admitted some of Veasley’s statements solely against Veasley. Cleveland challenges some of these rulings. Cleveland claims the court improperly permitted Jackson to testify that in the summer of 1990, Nelson and Veasley talked about engaging in drug transactions. However, the court admitted the evidence solely against Veasley, it gave the limiting instruction Cleveland requested, and the evidence did not implicate Cleveland at all. On another point, Peterson testified at the preliminary hearing that sometime after the murders, Veasley told another person that “it was just a spur of the moment thing and he already had people with him.” Cleveland argues that a statement like this that does not use his name but refers to the existence of other participants is prejudicial. (See People v. Fletcher (1996) 13 Cal.4th 451, 468 [53 Cal.Rptr.2d 572, 917 P.2d 187].) Again, this argument disregards the actual trial testimony. At trial, Peterson testified only that Veasley said “it was a spur of the moment decision.” She did not mention Veasley’s additional statement that other people were with him. “[T]he Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” (Richardson v. Marsh (1987) 481 U.S. 200, 211 [95 L.Ed.2d 176, 107 S.Ct. 1702]; see also People v. Fletcher, supra, at p. 464.) Another of Veasley’s statements that Cleveland discusses similarly contained no reference to Cleveland’s existence. Morris testified that Veasley told her that “he had killed somebody” in Pomona and “he” had gotten some cocaine and a watch. Admitting this statement against Veasley did not violate Cleveland’s rights. Cleveland also argues he was prejudiced by the admission, without limiting instructions, of Peterson’s testimony about the conversation between Veasley and himself after the first robbery attempt and before the murders, in which Veasley said that Cleveland “was getting weak” and that “he should have blasted all those people.” Cleveland responded that he was not getting weak and that if Veasley “thought of something else he would see . . . he was not weak.” Cleveland argues that this testimony supplied a motive for his participation in the later murders. We agree that the testimony supplied a motive, but properly so. Cleveland participated in the conversation, and it was admissible against him. To the extent the conversation implied that Cleveland had participated in the previous robbery attempt, it was properly admitted as an adoptive admission. (People v. Riel (2000) 22 Cal.4th 1153, 1189 [96 Cal.Rptr.2d 1, 998 P.2d 969].) To the extent it offered a motive for the later killings, it was not hearsay. It showed that Veasley accused Cleveland of being weak, and that Cleveland wanted to demonstrate his lack of weakness. This was relevant to show motive. But it was not offered to prove the truth of the matter stated, i.e., the prosecution did not offer it to show that Cleveland was, in fact, weak. (Evid. Code, § 1200.) Cleveland also complains of Morris’s testimony that after the killings, Veasley called her on the telephone, told her that Cleveland had been shot in the hand, and asked if she knew someone who could take a bullet out. The court admitted the evidence as the statement of a coconspirator. (Evid. Code, § 1223.) We need not decide whether these statements, made after the killings but in an effort to obtain medical care for Cleveland, were made during and in furtherance of the conspiracy (see People v. Sanders (1995) 11 Cal.4th 475, 516 [46 Cal.Rptr.2d 751, 905 P.2d 420] ), or were otherwise admissible against Cleveland, for we find no prejudice. Immediately after Morris spoke with Veasley, Cleveland himself told her he had been shot and asked for assistance. Moreover, ample other evidence established that Cleveland had been shot. Veasley said there had been a shootout, which Cleveland did not repeat, but this slight difference could not have been prejudicial. Cleveland also claims that he and the codefendants had conflicting defenses that required severance. He focuses on cross-examination of Peterson by Charan and Veasley that elicited, on redirect examination, testimony that Cleveland later made threats to Peterson. Some defendants will sometimes cross-examine witnesses differently from another defendant, and may thus elicit testimony on redirect examination that another defendant would not elicit, but such differences in trial tactics do not mandate severance. (People v. Alvarez, supra, 14 Cal.4th at p. 190; People v. Keenan (1988) 46 Cal.3d 478, 500-501 [250 Cal.Rptr. 550, 758 P.2d 1081].) “If the likelihood of antagonistic testimony alone required separate trials, they ‘would appear to be mandatory in almost every case.’ ” (People v. Keenan, supra, at p. 500, quoting People v. Turner, supra, 37 Cal.3d at p. 313.) Cleveland also argues that questions the jury asked during deliberations regarding one of the verdict forms showed that joinder prejudiced him. The verdicts as to each defendant included a special finding of either true or not true that the particular defendant was the actual killer. The jury asked a number of questions regarding this form, including what to do if it could not agree on who the actual killer was. Ultimately, the jury found not true that either Veasley or Charan was the actual killer, and it left the finding blank as to Cleveland. Cleveland claims that this “confusion resulting from multiple counts further mandated a separate trial.” We disagree. Any confusion was not due to the joint trial but to the fact the evidence did not establish who the actual killer was. Indeed, the prosecutor conceded to the jury that “the evidence is not there who the actual shooter is.” But, as the prosecutor also argued, for purposes of guilt, it did not “matter which one of them pulled the trigger.” Each of the defendants could be guilty of the substantive crimes as an aider and abettor even if he was not the actual killer. (See generally People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117 [108 Cal.Rptr.2d 188, 24 P.3d 1210].) Moreover, any defendant who was either the actual killer, or intended to kill, or “with reckless indifference to human life and as a major participant,” aided and abetted another in the commission of the robberies, was death eligible. (§ 190.2, subds. (b), (c), (d).) The jury made this finding as to each of the defendants, including Cleveland. The joint trial did not create the uncertainty over who was the actual killer, and that uncertainty did not require separate trials. Finally, Cleveland argues that the joint trial prevented him from presenting Peterson’s testimony that Veasley had admitted to her that Veasley was the actual gunman. The evidence was inadmissible at a joint trial because Veasley asserted the confidential marital communication privilege. (Evid. Code, § 980.) Neither Cleveland nor Charan suggested at trial that he wanted to admit this evidence at the guilt phase. Indeed, Cleveland objected to all hearsay statements by Veasley at the guilt phase. Peterson’s testimony could not have aided them at the guilt phase because, as noted, each defendant could be found guilty and death eligible without being the actual killer. However, as the trial court recognized, this evidence could be helpful to Cleveland and Charan at the penalty phase—after the jury had found them guilty—as arguably reducing their personal culpability for the crimes. For this reason, the court bifurcated the penalty trials, with Veasley’s going first, followed by that of Cleveland and Charan, at which the jury heard Peterson’s testimony. We consider below whether this bifurcation was proper, but if, as we conclude, it was proper, then severance was not required. In short, we find no abuse of discretion in the trial court’s following the norm and permitting a joint trial for the three defendants. B. Jury Selection Issues 1. Prosecutor’s Exercise of Peremptory Challenges The prosecution exercised four peremptory challenges against African-Americans. After each of these challenges, the defendants jointly made “Wheeler motions” (People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748]), arguing that the prosecutor improperly excused those prospective jurors because of their race. Defendants contend the court erred in denying the motions. As we explain, we disagree. a. Factual Background The first Wheeler motion came after the challenge of Prospective Juror S. In the written juror questionnaire, S. had stated, “I feel it would be difficult to sentence anyone to death. Justice may make it necessary for someone to have to die. I don’t think I could handle sentencing someone to death or participating in the decision.” She also answered, “I believe I could,” to the question whether she could set aside her feelings and follow the law. At voir dire, she stated she felt “that in certain circumstances in cases, the death penalty is warranted.” The district attorney challenged S. for cause on the basis of her answers to the questionnaire. The court asked her follow-up questions. S. stated that “if justice has to be done, that’s justice, but I still would feel bad having to send someone to death.” She indicated she could return a death verdict, but also said “if I didn’t have to participate on the jury, I feel that would be better for me.” After the court denied the challenge for cause, the prosecutor excused S. peremptorily. The defendants, noting that they are African-American, made a Wheeler objection. (Later Charan’s attorney clarified that Charan is “East Indian.”) The court denied the motion, finding that defendants had not “made a prima facie case of excusing any group based on any racial considerations.” The second motion came after the challenge of Prospective Juror L. At voir dire, L. had stated, “I’m not in favor of the death penalty, but I do understand that by law it is acceptable and at time necessary.” She also stated she would follow the law. After the prosecutor excused L., the defendants argued that “it appears that a pattern is being established.” The court again found no prima facie case and had the record “reflect that there’s three jurors in the jury box who are Black.” The third motion came after the challenge of Prospective Juror J. In her jury questionnaire, J. had stated that her son had been in juvenile detention in the county jail “for carrying a gun in his car and for stealing.” She also stated that after a job-related injury she had seen a psychiatrist for stress. Regarding the death penalty, she stated, “I am with the law. If the law says death penalty, I am for it. I believe in upholding the law.” At voir dire, she said she could be fair. The district attorney requested the court to ask follow-up questions of J., expressing concern that J. might not “really understand that it’s always a weighing and evaluating process, that you’re not going to tell them that under certain circumstances death is the appropriate answer.” The court denied the request for follow-up questions, and the prosecutor then challenged J. peremptorily. The defendants renewed their objection. They noted that at that point, the prosecutor had used three of her seven peremptory challenges on African-Americans. The prosecutor noted for the record that the two murder victims were also African-American. The court again found no prima facie case. The final motion came after the challenge of Prospective Juror F. F. had stated on her questionnaire that she was a “seamer,” but that she had licenses for both “LVN” and “psychiatric technician,” and that her husband was “self employed starting a group home.” The district attorney asked the court to ask follow-up questions of E, both about her husband “as to what kind of a group home” and “what does he actually do for a living,” and regarding F. herself. The district attorney explained that F. said she had licenses as a nurse and as a psychiatric technician but worked as a “seamer.” She was “wondering whether she’s ever used her psychiatric technician’s license and what that is or her LVN degree and what that is and how that jives with her being a seamer.” The court denied the request for follow-up questions. After the prosecutor challenged E, defendants noted that the challenge was the fourth against African-Americans out of 10 prosecution challenges to that point. One of the defense attorneys noted that the court had been stating the number of African-Americans remaining on the jury panel and argued that was not relevant. The court responded that it was just supplementing the record in this regard. It again found no prima facie case. It also stated that the first Wheeler motion had no basis whatever and, in the court’s view, had been merely a “tactical move to . . . chill the prosecutor from utilizing the peremptories.” Later the court supplemented the record regarding the Wheeler motions. It stated that in denying the motions, it had “carefully reviewed each and every one of the questionnaires supplied by the jurors who were excused by the People,” and it “also took into consideration their demeanor and manner of responding to the questions in open court.” Based on all of this, the court reiterated that it “did not find that the defendants have met the standard enunciated in [People v. Wheeler, supra, 22 Cal.3d 258] that a reasonable inference arises that the challenges were used on the ground of group bias alone.” It added that it had “carefully reviewed all the information I have before me regarding the particular jurors who have been excused by the People and the last thing I will let happen is any type of systematic exclusion based on race or any other basis.” One of the attorneys pointed out that witness Peterson “is a White woman.” The court responded that it had been unaware of that fact, but it did not change its rulings. Eventually, the jury was selected, with the prosecutor using four of a total of 14 peremptory challenges against African-Americans. After that, the court again supplemented the record to add that the final jury included “four Afro Americans, one in the alternate position. One of the six, the regular jury is composed of one third Black or Afro Americans.” It also noted that the jury pool came from Pomona which, the court estimated, was about “seven percent in terms of Black or Afro American.” b. Analysis “Exercising peremptory challenges because of group bias rather than for reasons specific to the challenged prospective juror violates both the California Constitution and the United States Constitution.” (People v. Johnson (2003) 30 Cal.4th 1302, 1308 [1 Cal.Rptr.3d 1, 71 P.3d 270], cert, granted sub nom. Johnson v. California (2003) 540 U.S. 1045 [157 L.Ed.2d 692, 124 S.Ct. 817]; see also Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712].) “A presumption exists that a prosecutor has exercised his or her peremptory challenges in a constitutional manner.” {People v. Crittenden (1994) 9 Cal.4th 83, 114 [36 Cal.Rptr.2d 474, 885 P.2d 887].) To overcome this presumption, the defendant must make a timely objection, then make a prima facie case that the jurors were excúsed on an improper basis. (Id. at p. 115.) In People v. Wheeler, supra, 22 Cal.3d at pages 280-281, we said that to establish a prima facie case, the challenger must show a “strong likelihood” or a “reasonable inference” of group bias. We recently explained that this “means that to state a prima facie case, the objector must show that it is more likely than not the other party’s peremptory challenges, if unexplained, were based on impermissible group bias.” (People v. Johnson, supra, at p. 1318.) Here, each time the defendants objected, which was each time the prosecutor challenged an African-American, the court found no prima facie case. “Because these rulings call upon trial judges’ personal observations, we review them with considerable deference.” (People v. Johnson, supra, at p. 1325; see also Tolbert v. Page (9th Cir. 1999) 182 F.3d 677 (in bank).) “[I]f the record suggests grounds on which the prosecutor might reasonably have challenged the jurors, we affirm that ruling.” (People v. Johnson, supra, at p. 1325.) The record in this case suggests nonracial reasons for each of the four challenges to African-Americans. Valid reasons for the first excusal, of Prospective Juror S., are readily apparent. S. expressed doubt that she could “handle sentencing someone to death or participating in the decision.” Other statements that she could follow the law and could return a death verdict warranted the court’s denying the prosecutor’s challenge for cause, but her overall reservations about the death penalty certainly provide a race-neutral explanation for her challenge. (People v. Davenport (1995) 11 Cal.4th 1171, 1202 [47 Cal.Rptr.2d 800, 906 P.2d 1068].) Indeed, the trial court found the objection to this first peremptory challenge so meritless that it believed it to be merely a tactical move to chill the prosecution’s later use of peremptory challenges. Of course, a prosecutor, like any party, may exercise a peremptory challenge against anyone, including members of cognizable groups. All that is prohibited is challenging a person because the person is a member of that group. The challenge to S. gave no cause for the trial court to suspect group bias. The record also suggests reasons for the prosecutor’s later challenges to African-Americans. L. also expressed reservations about the death penalty. J. had a son who had been in county jail on criminal charges, and she had seen a psychiatrist for stress following a job-related injury. “[A] prosecutor may reasonably surmise that a close relative’s adversary contact with the criminal justice system might make a prospective juror unsympathetic to the prosecution.” (People v. Farnam (2002) 28 Cal.4th 107, 138 [121 Cal.Rptr.2d 106, 47 P.3d 988].) F. worked as a “seamer” although she had licenses as a nurse and psychiatric technician, and a husband who was starting some kind of a group home. As to both J. and F., the prosecutor requested the court to ask follow-up questions. The trial was held at a time when the trial court had primary responsibility to conduct voir dire (see People v. Johnson, supra, 30 Cal.4th at p. 1328), and the court denied the prosecutor’s request. But we have stated that one consideration in deciding whether a prima facie case exists is whether the party engaged the challenged jurors “in more than desultory voir dire, or indeed [asked] them any questions at all.” {People v. Wheeler, supra, 22 Cal.3d at p. 281.) Here the prosecutor tried to question them further, which also suggests a nonracial motivation for their excusal. We add that although Cleveland and Veasley were themselves African-Americans, so too were their victims. (Cf. People v. Wheeler, supra, 22 Cal.3d at p. 281 [it is relevant that the defendant is a member of the excluded group “and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong”].) Apparently Peterson, a key prosecution witness, was White, but the trial court reasonably concluded that circumstance did not compel a finding of a prima facie case. Moreover, although at first the prosecutor exercised peremptory challenges against African-Americans at a somewhat higher rate than the percentage of their presence on the jury panel (a circumstance the court recognized), the overall statistics are not particularly suspicious. The prosecutor used three of her first seven challenges against African-Americans, but only one of the next seven. After the fourth peremptory challenge, she had used four of 10 against African-Americans, but ultimately only four of 14. Depending on whether the actual jury had three or four African-Americans, the final excusal rate was either slightly higher or slightly lower than the rate of African-Americans who were not challenged. Although not dispositive—a single race-based challenge is improper—this circumstance is probative. (People v. Turner (1994) 8 Cal.4th 137, 168 [32 Cal.Rptr.2d 762, 878 P.2d 521].) Defendants argue that not only were the four prospective jurors at issue African-Americans, they were also women. We have held that “Black women are a cognizable subgroup for Wheeler.” (People v. Clair (1992) 2 Cal.4th 629, 652 [7 Cal.Rptr.2d 564, 828 P.2d 705], citing People v. Motion (1985) 39 Cal.3d 596, 605-606 [217 Cal.Rptr. 416, 704 P.2d 176].) But at trial, defendants never objected that the prosecutor excused these prospective jurors because of their gender. Accordingly, any such claim is not cognizable on appeal. (People v. Bolin (1998) 18 Cal.4th 297, 316 [75 Cal.Rptr.2d 412, 956 P.2d 374].) Moreover, the reasons that refute a race-based challenge would also have refuted a sex-based challenge had one been made. Cleveland asserts that the trial court misunderstood its obligations and “improperly focused exclusively on the presence of African-American jurors remaining in the box and in the venire when it denied the defense Wheeler motions.” It did not do so. Although it made sure the record reflected these matters, it also reviewed the jurors’ questionnaires and their responses and demeanor in court. We see no basis to overturn its rulings. 2. Excusing a Prospective Juror for Cause Veasley argues that the trial court erroneously excused one prospective juror for cause because of his views on the death penalty. Defendants did not object to the court’s excusing the juror, but they also refused to stipulate to it. Contrary to the Attorney General’s argument, this failure to object does not forfeit the right to raise the issue on appeal, although it does suggest counsel concurred in the assessment that the juror was excusable. (People v. Memro (1995) 11 Cal.4th 786, 818 [47 Cal.Rptr.2d 219, 905 P.2d 1305].) On the merits, we find no error. The trial court may excuse for cause a prospective juror whose views on the death penalty would prevent or substantially impair the performance of the juror’s duties. On appeal, we uphold the trial court’s ruling if the record fairly supports it, and we accept as binding the trial court’s determination of the juror’s true state of mind if the juror has made conflicting or ambiguous statements. (People v. Mayfield (1997) 14 Cal.4th 668, 727 [60 Cal.Rptr.2d 1, 928 P.2d 485].) Here, the court found that the juror had “views that he simply can’t put aside,” and that “his views both personal and religious will substantially impair his performance as a juror.” The juror expressed concerns on the juror questionnaire about his ability to return the death penalty. At voir dire, he said that he believed there is “never an appropriate time to take one’s life.” He also said he would try to follow the court’s instruction, “yet when it comes right down to it, it would be hard to disengage what I believe with how I make my decision.” He thought he “would not want to use the death penalty no matter how aggravating the circumstances,” and he did not “really know” whether he could ever impose the death penalty. When the court specifically asked whether his views would substantially affect his ability to follow the law, he responded, “I think they might. I think there’s an issue of the law and then there’s the thing against principles that may rise above that at the time, and that’s where that might come into play.” These statements support the court’s ruling. 3. Other Jury Selection Issues One of the prospective jurors was a retired law enforcement officer with substantial experience in homicide cases who had testified in court over a thousand times. At one point in the voir dire, he expressed the opinion that the death penalty was “too seldom [used] due to legal obstructions.” Later the defense challenged the juror for cause. The court initially denied the motion but agreed to ask follow-up questions regarding the juror’s ability to be fair. The court then asked the juror if he could be fair to both sides. The juror responded, “To be perfectly honest, your honor, I think it would beunfair to the defense based on my knowledge of how these trials are conducted.” After a few more questions, the court conducted the rest of the questioning of this juror outside the hearing of the rest of the prospective jurors. Eventually, the court excused the juror for cause pursuant to stipulation. Cleveland argues that the prospective juror’s statements that the death penalty was too seldom used due to legal obstruction, and that he would be unfair to the defense based on his knowledge of how these trials were conducted, tainted the entire venire. The issue is not cognizable on appeal because defendants did not ask the court to dismiss the venire or even admonish the jury. (People v. Medina (1995) 11 Cal.4th 694, 743-744 [47 Cal.Rptr.2d 165, 906 P.2d 2].) Defendants cannot proceed with the jury selection before this same panel without objection, gamble on an acquittal, then, after they are convicted, claim for the first time the panel was tainted. (See People v. Saunders (1993) 5 Cal.4th 580, 589-590 [20 Cal.Rptr.2d 638, 853 P.2d 1093]; People v. Rogers (1978) 21 Cal.3d 542, 547-548 [146 Cal.Rptr. 732, 579 P.2d 1048].) We also find no error. Many prospective jurors express many different general opinions regarding the judicial system. These expressions of opinion do not taint the jury. The comments here did not give the other prospective jurors information specific to the case, but just exposed them to one person’s opinion about the judicial system. (Cf. Mach v. Stewart (9th Cir. 1997) 137 F.3d 630.) The circumstance that this particular opinion came from a retired peace officer with experience in homicide cases and trial proceedings does not change matters. It would no more prejudice a jury panel to hear that a retired (or active) peace officer believes the system is tilted in favor of defendants than to hear a criminal defense attorney express the opposite view. To the extent defendants argue the court should have held voir dire out of the hearing of the rest of the panel, the issue is not cognizable because they did not so request at trial. Moreover, the court had discretion to proceed as it did. (Code Civ. Proc., § 223; People v. Waidla (2000) 22 Cal.4th 690, 713-714 [94 Cal.Rptr.2d 396, 996 P.2d 46].) The court did conduct'the remainder of the questioning of this prospective juror out of the hearing of the panel. Veasley also suggests the court should have “reinforced the concept of the presumption of innocence.” As he recognizes, defendants did not so request. Moreover, earlier in the voir dire of this same prospective juror, the court did just this. Defendants also assert that the prospective juror’s statements “implicated” their right of confrontation. (U.S. Const., 6th Amend.) However, the prospective juror was not a witness against them. They also assert the prospective juror’s comment about the death penalty’s being too seldom used improperly reduced the jurors’ sense of responsibility. (See Caldwell v. Mississippi (1985) 472 U.S. 320 [86 L.Ed.2d 231, 105 S.Ct. 2633].) It did not do so. Again, the statement was just one person’s opinion, not a judicial pronouncement or even a comment by the prosecutor. (Cf. People v. Medina, supra, 11 Cal.4th at pp. 743-744.) Veasley challenges other aspects of the jury selection. At the time this jury was selected, the trial court bore primary responsibility to conduct voir dire. (Code Civ. Proc., former § 223; see People v. Johnson, supra, 30 Cal.4th at p. 1328; People v. Box (2000) 23 Cal.4th 1153, 1178 [99 Cal.Rptr.2d 69, 5 P.3d 130].) Veasley faults the way in which it carried out this responsibility. He claims the court improperly “examin[ed] the venire members for the purpose of rehabilitation rather than to disclose bias and prejudice.” At trial, defendants objected on essentially this basis and asked the court “to confront the [prospective juror] with what he or she has said [in the jury questionnaire], ask them to explain that.” We find no error. Code of Civil Procedure former section 223 was adapted from federal practice. (People v. Taylor (1992) 5 Cal.App.4th 1299, 1309 [7 Cal.Rptr.2d 676].) Accordingly, decisions of the United States Supreme Court are especially persuasive in this area. They have made clear that “the conduct of voir dire is an art, not a science,” so “ ‘[t]here is no single way to voir dire a juror.’ ” (People v. Taylor, supra, at p. 1313, quoting Mu’Min v. Virginia (1991) 500 U.S. 415, 451 [114 L.Ed.2d 493, 111 S.Ct. 1899] (dis. opn. of Kennedy, J.).) “The Constitution . . . does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury.” (Morgan v. Illinois (1992) 504 U.S. 719, 729 [119 L.Ed.2d 492, 112 S.Ct. 2222], quoted in People v. Box, supra, 23 Cal.4th at p. 1179.) The high court has “stressed the wide discretion granted to the trial court in conducting voir dire in the area of pretrial publicity and in other areas of inquiry that might tend to show juror bias.” (Mu’Min v. Virginia, supra, 500 U.S. at p. 427 [trial court is not required to ask content-based questions regarding pretrial publicity]; see also People v. Taylor, supra, 5 Cal.App.4th at p. 1313.) Accordingly, “the trial court retains great latitude in deciding what questions should be asked on voir dire,” and “ ‘content’ questions,” even ones that might be helpful, are not con