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Opinion BAXTER, J. During the late night and early morning hours of July 31 and August 1, 1991, two young women, Dorothy Medina and Arlene Sanchez, attended a gathering in rural Fresno, where Medina was brutally gang raped. She and Sanchez were then driven to a canal bank and killed. In 1994, a Fresno County jury convicted defendant Johnny Avila, Jr., codefendant Richard Avila, who is also defendant’s cousin, and codefendant Jeffrey Spradlin, of two counts of first degree murder. (Pen. Code, §§ 187, 189.) It acquitted defendant and Richard Avila of one count of rape while acting in concert but convicted Spradlin of that charge. (§§ 261, subd. (a)(2), 264.1.) The jury further found that defendant and Spradlin personally used a firearm (§ 12022.5, subd. (a)), and that Richard Avila was armed with a firearm (§ 12022, subd. (a)(1)). For defendant and both codefendants, the jury further found true multiple-murder (§ 190.2, subd. (a)(3)), rape-murder (§ 190.2, subd. (a)(17)), and witness-killing (§ 190.2, subd. (a)(10)) special-circumstance allegations as to each victim. For defendant, the trial court subsequently struck the rape-murder special circumstance as to both murder counts and the multiple-murder special circumstance as to the Sanchez murder count. The penalty phase trials of the three individuals were severed from each other, and defendant’s trial commenced first. The jury sentenced defendant to death. Defendant’s appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment. I. FACTS A. Guilt Phase Evidence 1. Prosecution’s Case-in-chief a. Background In July and August 1991, Richard Avila and his wife Tricina lived at 1604 North Hayes (the North Hayes property) in Fresno. There were three trailers on the property: Tricina’s mother Rachael Diaz, 15-year-old brother Zeek, and sister Veronica lived in the main trailer; Richard and Tricina lived in a smaller Wilderness trailer; and the smallest trailer was abandoned. Late at night on July 31, or in the early morning hours of August 1, 1991, Dorothy Medina picked up Arlene Sanchez to attend a party. Corinna Sanchez, who lived with her sister Arlene and briefly spoke to Medina at the door, saw Michael “Blanco” Rojas get out of the passenger side of a 1963 or 1964 dark-colored Chevrolet with an orange “76” ball on the antenna. Corinna never saw her sister alive again. b. Discovery of the Bodies and Investigation Around 6:00 a.m. on August 1, 1991, a ranch foreman with Quist Farms saw two cars drive past him at the intersection of Cornelia and Church Streets in Fresno. One was a fairly new Pontiac Bonneville, which was wet and had all its windows down. The other was an old light-colored Datsun or Toyota. Thirty minutes later, an irrigation worker discovered Medina’s body on the south bank of the Houghton Canal (bounded by Chateau Fresno, Grantland Avenue, Belmont Avenue, and Highway 180), which borders a vineyard, in rural Fresno. She was on her back with her arms bent near her head and her legs extended outward. Her blouse was pulled down around her waist, and her bra was pulled up over her breasts. Otherwise she wore only socks and shoes. Nearby, authorities recovered a pair of pink underpants belonging to Medina and a .25-caliber shell casing. Medina, whose face and upper body were splattered with blood, died of two gunshot wounds to her head. One was a small contact wound on her right temple made by a .25-caliber copper-jacketed bullet. The other was a large contact wound made by a bullet that entered her forehead and exited the back of her skull. Based on the crime scene evidence, including blood splatter evidence, and the position of Medina’s body, authorities concluded that when she was shot Medina was lying in the position in which she was found, and that she probably was shot in the temple first and in the forehead second. Medina had abrasions and lacerations in her genital region that most likely were inflicted shortly before her death, and a vaginal swab indicated the presence of semen. She also had multiple bruises on her neck, forearms, and inner thigh. She had a substantial level of phencyclidine (PCP) and a .07 percent blood-alcohol level in her system, as well as some cocaine metabolite. Ten feet from Medina, between two rows of grapevines, detectives discovered Sanchez’s fully-clothed body. Sanchez similarly died of gunshot wounds to the head. One was a contact wound made by a nine-millimeter copper-jacketed bullet that entered her forehead and lodged in the base of her neck. The other was a smaller wound made by a .25-caliber copper-jacketed bullet that entered her left temple and lodged in her brain. Nearby, police found a .25-caliber shell casing and a nine-millimeter shell casing. The .25-caliber slug recovered from Medina’s head and two pieces of the .25-caliber slug recovered from Sanchez’s head were similar, but could not be conclusively shown to have been fired from the same gun. There was a large amount of blood on Sanchez’s body, indicating that her heart was still functioning when both wounds were inflicted. A vaginal swab was taken but did not detect any semen. Sanchez had a .14 percent blood-alcohol level and substantial levels of PCP and cocaine metabolite in her system. Evidence at the scene indicated Sanchez attempted to flee up the embankment before she was shot and killed. Two types of shoe prints in addition to the victims’ shoe prints were found at the scene. About the time Medina’s body was discovered, a Pontiac Bonneville was engulfed in flames at the canal bank, on the north side of Annadale Avenue, near Blythe and Cornelia, in Fresno. Authorities concluded the fire was deliberately set. In the car were three nine-millimeter shell casings—two that had been expended and one that had not been expended but had detonated in the fire—and one expended .32-caliber shell casing. Detective Melinda Ybarra of the Fresno County Sheriff’s Department investigated the murders of Medina and Sanchez. During the course of her investigation, she became aware of a concurrent investigation of an incident involving a minor, Spring J., that allegedly occurred at the North Hayes property mere hours before the murders. On August 2, 1991, Detective Ybarra and sheriffs deputies executed a search warrant at the North Hayes property. On the property was a purple 1964 Chevrolet Impala, which belonged to Richard and had Sanchez’s fingerprints on it. Also on the property was a blue 1978 Chevrolet belonging to David Gomez. Sheriffs deputies also found numerous firearms and various calibers of ammunition. Although .25-caliber ammunition was found on the property, no weapon capable of firing such ammunition was found. One unexpended .25-caliber bullet found on the property and two expended .25-caliber shell casings found at the murder scene had been cycled through the same gun. Two of the expended nine-millimeter shell casings recovered from the burnt car found on Annadale Avenue had been cycled through an Uzi that was seized from the property. No firearms used in the murders were recovered. On August 30, 1991, sheriffs deputies executed a search warrant at a home owned by Richard Avila’s mother-in-law, located at 355 North Fruit Street in Fresno, and seized several identical pairs of Nike shoes. These items were compared to photographs of footprints found at the crime scene and found to have similar class characteristics as to shoe length, width, sole design, and wear pattern. c. Events Surrounding the Double Murder The testimony of Michael Rojas, Ray Juarez, and Frank Rodriguez formed the heart of the prosecution’s case-in-chief. They testified consistently with each other regarding the identity of the key individuals present and certain events occurring that night. Thus, Rojas, Juarez and Rodriguez testified that, on the night of July 31 to August 1, about 30 people gathered on the North Hayes property in the expectation of a drive-by shooting. Many firearms were on the property, and some individuals were armed. People were drinking beer and smoking marijuana and PCP. Two young women, Spring J. and Kim F., were brought to the gathering, where they remained for a couple of hours and then left. At the end of their stay or shortly thereafter, two different young women, Dorothy Medina and Arlene Sanchez, were brought to the property. After several hours, defendant, Spradlin, and Rodriguez drove them away in a late-model gray Pontiac Bonneville, returning without them. Rojas, Juarez, and Rodriguez testified inconsistently, at times wildly so, regarding their individual roles and their observations during the night in question. We summarize the relevant portions of their testimony below because the bulk of defendant’s claims assert errors stemming from their testimony. (1) Michael Rojas Michael Rojas went to the North Hayes property on July 31, 1991, to back up Richard in case a fight erupted. He arrived about midnight and did not leave until dawn. That night, Rojas drank beer and smoked marijuana cigarettes. Zeek Diaz and some other youngsters brought Spring J. and Kim F. to the property. Spring smoked PCP, commonly known as “KJ,” with a group of men that included Richard. The group then went inside the main trailer. During this time, Rojas was outside near some trees where others were hanging out. Rojas did not see Spring go into the Wilderness trailer. At some point, Kim left the property with Richard, and Spring left with Mike De Anda and Juarez. When Spring and Kim were still at the North Hayes property, defendant said he was leaving to pick up girls to “party.” He and David Gomez left in Richard’s car and returned with Medina and Sanchez. A group of six to eight men, including Juarez and Robert Chavez, approached the car carrying the two girls. Medina began smoking KJ. Forty-five minutes after Medina and Sanchez arrived, Juarez was talking to Sanchez in the backyard when defendant approached and accused him of trying to act as if Sanchez were his “old lady.” The two argued. Defendant had a nine-millimeter gun in his hand, but Rojas told him not to use a gun on any of the homeboys. Rojas later saw a group of men take Medina to the abandoned trailer near the fence. Richard and De Anda also took her to the Wilderness trailer. At some point, Rojas heard muffled crying and noises coming from the Wilderness trailer. There were many men standing in front of the trailer door and going in and out. Rojas opened the door to the trailer and saw Medina lying on the bed naked. She appeared unconscious, and six or eight men stood over her with their pants down, grabbing at her. Richard, who was wearing a bulletproof vest but no pants, pulled the door closed. Rojas walked back to the tree. Later, Rojas saw some men, including defendant, Richard, Spradlin, and De Anda, help Medina out of the trailer and toward a late-model gray car. Medina, still naked, was “loaded” and crying. Rojas heard the men tell her they were going to give her a ride home and saw them put her in the backseat of the car. Defendant placed Medina’s head facedown on the seat cushion. Someone also placed Sanchez in the back seat with her head facedown on the cushion. Gomez wanted to take the girls home, but defendant told Richard that he did not want them to leave because he was scared they would “snitch” on them and identify him. Defendant told Richard he was “going to handle his business,” meaning he was going to kill the girls. Defendant had a .25-caliber gun in his hand. Everyone believed Rodriguez would “snitch” on them, and defendant told Rodriguez to get in the car with the girls. Rodriguez did not want to go, but people pushed him into the car. Defendant also got into the car, and Spradlin drove away. Chavez followed in his blue car. About 40 minutes later, the four men returned together in Chavez’s car without the girls. Defendant immediately started yelling at Richard. Defendant was angry because the gun he was given jammed when he tried to shoot one of the women in the head. He also complained that when he shot the women, blood splashed on his clothes. He told Richard, “I took care of your fucking business,” and that Richard better take care of “stuff’ if anyone said anything. Defendant also yelled at Rodriguez because he tried to run when defendant shot one of the women. Richard told defendant not to worry and to “be cool,” because they would “take care of it.” Richard then told the group that if anyone said anything, then their heads would be blown off. Defendant was also angry because he got blood on his clothes and on his new shoes. Richard arranged for defendant to get a new set of clothing and shoes. De Anda took the old clothes and said he was going to bum them in a barrel in his backyard. Rojas left at daylight. When detectives initially interviewed Rojas, he denied ever being at the North Hayes property, and denied any and all involvement in Spring J.’s rape and the murders. Rojas was eventually arrested for the Spring J. incident and thereafter admitted to being present at the North Hayes property. Rojas had prior convictions for assault with a deadly weapon (§ 245) and armed robbery (§ 211). He was on parole when this incident occurred. (2) Ray Juarez Ray Juarez first went to the North Hayes property about 9:00 p.m. on July 31 to help his friend Richard. He left and returned several times that night. During one trip to a nearby store with Gomez, Spring, and Kim in Richard’s car, a car approached from behind with bright lights, and Juarez shot his .25-caliber gun in the air several times in warning. Back at the North Hayes property, Juarez smoked KJ in the backyard with Spring and Zeek. Later, he saw Spring in the main trailer, and they started “making out.” At some point, Juarez saw Rojas in the Wilderness trailer with Spring. Rojas had a belt around Spring’s neck and a gun pointed at her head, and told her to “shut up or I’ll kill you.” Spring tried to get up, but Rojas pushed her back down. Juarez had consensual sex with Spring; he did not rape her. He and De Anda later took Spring home. Earn left with Richard. During the night, Juarez, Rojas, and two other men got in a blue or gray car that Juarez and Spradlin had stolen earlier and followed a Blazer that drove by the property. When the occupants of the Blazer started shooting at them, Rojas shot back at them with a .357-caliber gun and Juarez shot back with an AK-47 or a nine-millimeter gun. They then drove back to the property. After Spring and Kim left, Medina and Sanchez arrived with Gomez and defendant in Richard’s car. Juarez walked up to the car, looked inside, and recognized Medina, his ex-girlfriend, but not Sanchez. Defendant gave Medina some KJ. Juarez talked to Medina and smoked KJ. Then defendant started screaming at him for talking to Medina. Defendant pulled out a nine-millimeter Uzi, but Rojas, who had been talking to Sanchez, yanked the gun away. Richard also came to see what was going on and told Juarez and defendant to stop arguing. A short time later, Juarez joined Rojas, Medina, and Sanchez near Richard’s car. Medina and Sanchez were “loaded” and leaning against the car. By this point, Juarez had drunk about six cups of beer and was a “little bit drunk.” He also had smoked marijuana all day but was feeling fine. Juarez told Medina not to smoke too much, and Medina told him to leave her alone and that she could smoke as much as she wanted. Juarez went into the main trailer for about 20 minutes and then sat on the porch drinking beer and talking to Zeek. He went to the Wilderness trailer to get some more marijuana and saw “a whole bunch of guys.” Juarez smoked marijuana and then moved closer to the group to see what was going on. Medina was lying on the bed naked and Rodriguez was having sex with her. Rojas was lying next to her with a belt around her neck and a .357-caliber gun pointed at her head. Every time Medina cried, Rojas would tighten the belt around her neck and tell her to shut up. Medina was crying and asking them to stop. She grabbed Juarez and asked him repeatedly to help her. Juarez just told her to relax and “kick back.” He also told her to give him a “blow job.” She complied, but Juarez threw her back on the bed because he did not feel right about it. Spradlin, Chavez, and Robert Ballesteros also had sex with Medina. Richard then came into the trailer and said, “I want you to take the girls off my property.” Spradlin and Chavez, the last ones to leave the Wilderness trailer, placed a blanket around Medina and carried her to the abandoned trailer. Medina screamed and broke a window in the abandoned trailer with her hand. Juarez then heard a “pop,” turned around, and saw Sanchez on the ground with Rojas standing over her “cussing her out.” He did not actually see Rojas hit Sanchez. Juarez followed Spradlin and Chavez into the abandoned trailer, where Spradlin had sex with Medina. Medina was trying to break loose, but Chavez was holding her down, and someone continued hitting her. When Juarez told the men to stop, they told him to get out. He left the trailer and joined defendant, Richard, Rojas, and Rodriguez at the front of the property. Sanchez, who was standing by Richard’s car, appeared to be crying. Juarez implored Richard to let him take the women home, but Rojas said no, reasoning: “If we let ’em go, they’re gonna tell on us, what we did to them. And they gonna [szc] raid the house.” Richard replied: “I don’t care what you do, just get ’em off my property. I don’t want ’em on my property.” Around this time, Spradlin and Chavez came out of the abandoned trailer, followed by Medina, who ran toward Sanchez, holding a blanket over herself. Rojas grabbed Medina, pushed her facedown on a chair under a tree, placed a belt around her neck and a gun to her head, and asked her, “Do you know who we are?” She cried, “No, no,” but Rojas said, “You’re lying.” Rojas then let Medina go, and she ran to Sanchez. Rojas said: “We can’t let these girls go home. They know too much. We got to take ’em out.” Defendant agreed. Juarez again implored Richard to let him take the women home, and Richard said he did not care what they did as long as the women were off his property. Spradlin brought around the car they had stolen earlier. Defendant and Rojas grabbed Medina and placed her in the backseat of the car with her face on the seat cushion. Defendant, who had a nine-millimeter Uzi in his hand, also placed Sanchez in the car. Defendant also had a .25-caliber gun with two or three bullets in it that Juarez had given him earlier. Spradlin had a .380-caliber gun in the waistband of his pants. Rojas pressed Rodriguez, who had a nine-millimeter Uzi, to get in die car. Defendant got in the front passenger seat, and Spradlin drove away. Twenty to twenty-five minutes later, the men returned without the women. Rojas asked what happened, and defendant said he shot the women in the back of their heads twice. Someone asked where they shot the women, and defendant said he shot one woman on the canal bank and the other in the grapevines. Defendant commented, “You should have seen how [the women’s heads] cracked.” Holding a nine-millimeter Uzi in his hand, defendant told Richard: “Next time you give me a gun, make sure it works. This one got jammed on me.” He told Richard that one of the women tried to run. Defendant also complained to Richard that Rodriguez had dropped the gun and tried to run. Richard asked if they threw the women in the canal. When defendant said no, Richard was angry and said: “It would have been harder for them to find. It would have been a couple more days.” Defendant offered to go back and throw the bodies into the canal, but Richard said they should “[j]ust let it be.” Richard told defendant to change his clothes because they had bloodstains on them. Defendant gave Juarez back the .25-caliber gun, which contained no bullets. Defendant handed the nine-millimeter gun to Richard, who gave it to Juarez. Juarez cleaned the gun, which had blood on it, and placed it in a bag along with a pair of shorts belonging to Medina. He then gave the bag to De Anda, who said he would bum it at his house. But De Anda returned with the gun later in the day, and Richard told Juarez to bury it elsewhere. Juarez did so near Lake Avocado. Richard also ordered the stolen car that had carried the women away be washed, taken somewhere far away, and burned. Juarez, Spradlin, Chavez, and Rodriguez washed the car. Spradlin drove off in it, and Chavez followed in his small blue Toyota. Spradlin and Chavez returned together. Spradlin did not say where they burned the car. Juarez went to the Wilderness trailer, where he heard on a police scanner that two female bodies were found on a canal bank. Juarez then fell asleep and awoke at noon. When he woke up, Rojas pulled out a black leather pouch containing some jewelry. Juarez asked Rojas where he got it, and Rojas said he got it “off one of the girls.” Rojas offered a piece of jewelry to Juarez, but Juarez declined. When Juarez was arrested for the rape of Spring J., he denied any involvement in Spring’s rape and in the murders, and further denied that Rojas was involved. But during an interview sometime after his arrest, Juarez acknowledged having had sex with Spring. Juarez testified that he had spoken to Rojas on a couple of occasions while he was in jail following this incident. The two concocted a plan to blame defendant, Richard, and Spradlin for the murders. Rojas told Juarez that he had heard Richard was looking out for himself and did not care about anyone else. Rojas said he was going to make a deal with the detectives and encouraged Juarez to do the same. Rojas assured Juarez that if they stuck together they would both get out of jail. Juarez initially went along with Rojas’s plan, but backed out when he found out that Rojas got out of jail while he remained. Sometime in 1992, Juarez told detectives that it was Rojas’s decision to kill the women and that Rojas had ordered Rodriguez to get in the car. (3) Frank Rodriguez Shortly after 10:00 p.m. on July 31, 1991, Frank Rodriguez ran into Chavez, Zeek, Spring, Kim, and Juarez. There was a discussion about a possible drive-by shooting at the North Hayes property, and everyone drove there. On the North Hayes property, Rodriguez drank beer throughout the night and spent most of the evening in the main trailer and in the Wilderness trailer. Spring went into the main trailer and remained there for some time. Later, Rodriguez saw her go into the Wilderness trailer with Zeek. When Rodriguez walked into that trailer, Rojas asked him for help in holding Spring down. Rodriguez refused and left when Rojas told him to get out. A couple of hours later, Spring walked out of the Wilderness trailer and left with De Anda. Thereafter, Kim left with Richard. Before Spring and Kim left, two different women arrived on the property with Gomez and defendant. Rodriguez saw one of the women coming around the abandoned trailer with defendant, Richard, Spradlin, and Robert Chavez. The group walked toward a 1990 or 1991 gray Pontiac Bonneville. Chavez put one of the women in the backseat. The woman was on her knees on the floor of the car, with her hands on the seat and her head down. She was crying and repeatedly said, “Help me.” The other woman was in the front passenger seat, also crying. Rodriguez did not see who put the woman in the front seat. Defendant said, “We got to get rid of these bitches.” Richard said, “Take care of ’em,” and “Got to take care of business. You got to do what you got to do.” Defendant, Richard, and Spradlin told Rodriguez to get in the car, and Rodriguez complied because he was fearful of defendant. Rodriguez was unarmed, and he did not intend to assist in murdering the women. Defendant also got in the car, and Spradlin drove them to the canal bank. At the canal bank, Spradlin took the woman sitting in the backseat and led her away from the car. The woman was on her knees, and Spradlin was holding her by the back of her neck. Rodriguez turned around and heard a pop. When he turned back, the woman was lying on the ground. Defendant led the other woman toward the grapevines. Rodriguez heard defendant say she was trying to get away and heard him yell for Spradlin’s help. Rodriguez saw the woman attempting to crawl away from defendant. Spradlin then walked down the canal bank toward the grapevines. Rodriguez heard three gunshots, though he did not actually see defendant or Spradlin with a gun. Rodriguez next remembered getting back into the car and defendant yelling at him. When the men returned to the North Hayes property, defendant continued to yell, telling everyone present that Rodriguez was a “rookie” who should not have gone, and that defendant should have taken him out, too. Rodriguez defended himself, stating that he had not wanted to go in the first place. Richard told Rodriguez to be quiet or he would be next. When Rodriguez first spoke to detectives after his arrest on September 6, 1991, he told them he had been out of town the night of the murders and did not know who was responsible for them. Rodriguez was placed in a jail cell with Rojas for about five days, during which time Rojas suggested several times to Rodriguez that it would be better if Rodriguez turned state’s evidence. Rodriguez testified he suffered alcoholic blackouts in the past. He could not remember portions of the night of July 31 and August 1 because he had been drinking excessively and blacked out. d. Other Evidence Detectives arrested defendant and interviewed him. Defendant initially denied knowing anyone who lived on North Hayes and said that, although he had a cousin named Richard Avila, it had been 10 to 15 years since they had seen each other. He also denied going to a party on North Hayes or taking any women to a party. When shown photos of Medina and Sanchez, he said he had seen Sanchez around town. Midway through the interview, defendant acknowledged he had been at a party but claimed he did not know what happened because he had left. Defendant eventually told detectives he had met Medina several days before July 31. On July 31, he and Gomez picked up Medina and Sanchez in Richard’s 1964 Chevrolet Impala and took them to a party on the North Hayes property, where about eight people were present. Defendant told detectives that he drank a six-pack of beer at the party and had a “good buzz.” He first denied there was any KJ on the property but later acknowledged that the women were smoking it. Defendant also said Chavez was going in and out of the Wilderness trailer, and there were a couple of men inside it. He said there were a few guns inside the trailer but denied seeing any handguns on the property. When detectives intentionally misrepresented to defendant that they had abundant evidence against him, he told them they would probably find his saliva on Sanchez because he kissed her. Defendant admitted having touched the radio inside the car that had been burned. He denied having sex with the women, denied seeing either one raped, and denied shooting them. Portions of a prior statement made by Richard were read to the jury and admitted at trial against Richard only. 2. Jeffrey Spradlin’s Defense Case Michael De Anda was married to Spradlin’s sister. On July 31, 1991, De Anda lived with his mother on Ashland and Vineland. Two weeks before that, he lived in a home owned by Richard’s mother-in-law on North Fruit Street. De Anda went to the North Hayes property about 6:00 p.m. on July 31, 1991. He was armed with a .380-caliber gun. About midnight, De Anda went into the Wilderness trailer and saw Spring crying on the bed, with her dress bunched around her midsection. Rojas was holding her down with one hand and holding a large-caliber pistol in her mouth with the other. De Anda told Rojas this was not right, and the two argued. De Anda then told Spring to get out of the trailer. De Anda guided Spring to the front passenger seat of his car. Juarez then approached, asked to come along, and then sat in the front seat with Spring. On the way to Spring’s house, Juarez asked Spring if he could call her the next day, and she said no. To no one in particular, Spring said that night she had stripped for money and willingly engaged in group sex. De Anda returned to the North Hayes property and joined some people who were standing beside a tree, drinking beer. He heard an argument and moved toward the commotion. Rojas, who had a gun in his waistband, told Rodriguez to “kick back” and not “worry about it.” Several people gathered around, including defendant, and Richard told Rodriguez and Juarez to stop arguing. About dawn on August 1, 1991, De Anda gave Juarez a ride home. In the car, Juarez offered to trade a gold chain with a medallion for some marijuana. De Anda did not see any girls other than Spring on the North Hayes property. De Anda was eventually arrested. At trial, De Anda admitted that he did not immediately tell detectives the truth, and that he did not mention Rojas in any of his police interviews until a couple of weeks before the multidefendant rape trial involving Spring. De Anda testified he was currently in custody and had been convicted of five felonies, including auto theft, receiving stolen property, and armed robbery. 3. Richard Avila’s Defense Case Richard Avila denied any involvement in Medina’s rape or the murders, and presented evidence of Rojas’s involvement in the offenses. Robert Ballesteros testified he was 15 years old when he went to the North Hayes property on July 31, 1991. Ballesteros saw guns on the property and people armed with guns. He spent most of the night in the main trailer playing Nintendo and listening to the radio. During that time, he saw four women. He saw Spring sitting in a car and Kim leaving with Richard on his motorcycle. Rojas, whom Ballesteros met that night, came into the main trailer and told Ballesteros he had something to show him. Grabbing Ballesteros from behind, Rojas carried him outside and into the Wilderness trailer, where Rojas told the men inside to “get off and let the little guy get his.” Ballesteros saw a girl (not Spring J.) lying down, moaning in pleasure, and a man on top of her get up. Rojas pulled Ballesteros’s pants down and pushed him on top of the girl. Ballesteros did not have sex with the girl because he knew it was wrong and because he did not have an erection. Everyone around him was making fun of him, and he felt foolish. He ran outside and into the main trailer. He went home shortly thereafter. Michael Ramirez testified that he went to the North Hayes property around 5:00 or 6:00 p.m. on July 31, 1991, because Richard called him about a threat of a drive-by shooting. Ramirez, who was armed with a .380-caliber automatic handgun, saw a lot of other firearms on the property. He spent most of the evening in the main trailer with Zeek, Kim, and Ballesteros. Ramirez testified he had sex with Spring in the Wilderness trailer. As Spring was getting up and Ramirez was getting ready to leave, Rojas and Juarez came in. Rojas pushed Spring down and placed a gun against her temple. Holding her by the neck, he said, “You’re going to suck my home boy’s dick.” Ramirez left the trailer and did not know when Spring eventually left the property. He saw Kim leave with Richard. At some point, Ramirez saw Medina and Sanchez arrive in a purple 1964 Chevrolet with defendant and Gomez. Rojas, Juarez, and a few others approached the women. Later, Ramirez saw Rojas half-carry Medina, who appeared to be intoxicated, into the Wilderness trailer, followed by Juarez. Ramirez went to the porch of the main trailer and drank beer. Ramirez heard Medina screaming, “Stop, please,” and “Please, someone call the police. I’m being raped.” He walked to the Wilderness trailer and peered inside. Medina was on her back on the bed, Rojas held her by her ankles, and Juarez held her arms down with his hands and knees. While Medina was being raped, Sanchez was sitting on the hood of a car drinking beer, laughing, and talking with defendant. Ramirez spoke to Chavez and, 15 minutes later, returned to the main trailer. Ramirez heard an argument and walked outside to hear Rojas tell Richard that he had to do something about these girls because they had seen his face and they knew him downtown. Rojas said, “We’ve got to take these girls out,” which Ramirez understood to mean they had to be killed. Angry and upset, Richard replied: “You fucked up. I don’t care what you do with these girls, just get ’em off my property.” Richard wanted them off the property because his wife and mother-in-law might show up. Rodriguez told Richard, “This is crazy. This is your home girls. You can’t do this to your home girls.” Richard did not reply. Rojas asked Rodriguez, “What are you going to do? Snitch?” Rodriguez did not reply. Rojas went back into the Wilderness trailer and emerged with Medina. Rojas held Medina around the upper half of her body, someone else held her by her feet, and they carried her to the abandoned trailer. Medina was crying and said, “Please leave me alone.” Rojas replied: “Shut up, bitch.” Ramirez thereafter heard glass breaking and thumping noises. He went into the main trailer and did not go outside until sunrise. In October 1992 Rodriguez told Ramirez he was housed in a jail cell with Rojas, and Rojas had warned Rodriguez not to say anything against Rojas. Rodriguez was scared about being charged with rape and murder. Within six weeks before Ramirez testified, Rodriguez told him he was going to tell the truth and testify on Richard’s behalf because Richard was innocent. Richard Avila testified in his own defense as follows: In July 1991, Richard lived in the Wilderness trailer, which was owned by his mother-in-law. On July 31, in anticipation of a drive-by shooting, Richard and his father-in-law placed various weapons around the property. All of the weapons belonged to his father-in-law; Richard did not provide the weapons for the purpose of killing anyone. Richard invited David Cordova, Chavez, and De Anda to help him protect the property. Rojas came, uninvited, with Cordova. Many others came uninvited after dusk. Spring J. was on the North Hayes property in the evening, left, and returned after midnight. Sometime during the night, Zeek’s brother arrived and argued with Juarez about a shooting. Richard broke up the argument. He did not break up a fight between defendant and Juarez. On August 1, a white Blazer drove by the property about 1:00 or 1:30 a.m. and again 15 minutes later. Juarez and Rojas jumped into a late-model four-door car with two others and followed the Blazer. About 4:00 a.m., Richard took Kim home. When they left, his 1964 purple Chevrolet Impala was not there, as Gomez was out driving it. After Richard dropped off Kim at her house, he drove to a motel on Ashlan and Highway 99 where his wife was staying. He went into the motel room, undressed, and started to go to sleep, but he got up and went back to the North Hayes property because he had a “funny feeling.” When he returned, his car was there. He had been away for less than two hours. Richard heard mumbling noises coming from the direction of the Wilderness trailer. He walked to that trailer, opened the door, and made eye contact with Rodriguez, who was on his knees on the sofa bed holding a girl’s ankles. Another man standing with his back to Richard was picking up his pants. When Richard stepped inside to find out what was going on, he saw Rojas kneeling next to a girl who was lying on a sofa bed. Rojas was holding her down with one hand and had a gun in the other hand. Richard asked Rojas what he was doing. Rojas pointed a .357-caliber chrome magnum at him and told him to mind his own business. Richard told Rojas that he did not want this happening in the trailer and to get them out. Rojas continued to tell him to mind his own business and cocked back the hammer of his gun. Richard backed out of the trailer. At trial, Richard testified that he did not give anyone permission to use his trailer to rape Medina. As Richard left the trailer, he asked who had brought the girl, and someone said that defendant and Cordova brought “these girls.” He went into the main trailer, opened the back door, and saw defendant and another girl talking. He called to defendant and asked who the girls were. Defendant replied they were a couple of his “home girls.” Richard told defendant that Rojas was beating a girl in the Wilderness trailer. Defendant told Richard he would go up there shortly. Richard then walked back toward the Wilderness trailer and heard sounds of glass breaking coming from the area of the abandoned trailer. He then walked to the abandoned trailer and found the door locked. He pounded on the door and told the occupants in the trailer to get out. Someone inside said, “Hold on a minute.” Richard was angry because the people inside would not unlock the door. Richard left, spoke to defendant again about the situation, and returned to the abandoned trailer. He looked inside through the broken window but did not see anyone. As he walked toward the Wilderness trailer, he saw Rojas crouching over a girl under a tree and repeatedly asking her, “Do you know who I am?” Rojas was holding her neck with one hand and a gun with the other. Rojas struck the girl twice with the butt of his gun. Richard approached Rojas and demanded that he let the girl go. Rojas pointed his gun at Richard and told him to mind his own business. Richard saw defendant walking around the comer of the main trailer with the other girl. He approached defendant and told him that Rojas was beating the girl again, that he did not appreciate what was going on, and that he wanted Rojas out of there immediately. Defendant followed Richard. Richard then saw Chavez and Spradlin walking around the abandoned trailer with the girl Rojas had beaten. Richard walked alongside them. Someone, possibly Juarez, asked Richard for permission to use his car. Richard said no. He also said “take them out of the property,” not “take them out.” Someone said he was going to give the girls a ride home. Richard did not hear Rojas talking about what should be done with the girls or have a conversation with anyone on that subject. He never said the girls should be taken out and killed. He thought they would be taken home. Richard continued walking toward the porch of the main trailer. When he looked back, Chavez was leaning inside die left passenger side of a gray or gold-colored late-model Bonneville. Rojas was facing backwards in the front passenger seat. Angry, Richard went inside the main trailer for a beer. A few minutes later, he heard a car leaving and walked outside to see the Bonneville pulling out onto North Hayes. A girl in the car looked back at him with a sad expression. Frustrated, Richard walked to the backyard and then into the main trailer. Fifteen minutes later, Richard heard an argument outside. Walking toward the participants, Richard heard defendant yelling at Rodriguez and threatening to kill him. Richard heard defendant say he shot the girls and complain that he was given a gun that jammed. Defendant said that Rodriguez was in the grapevines holding one of the girls and that he (defendant) shot her, but that when his gun jammed he took the gun from Rodriguez, who ran. Richard denied telling defendant it would have been better if he had thrown the girls into the canal. Defendant told Richard, “I took care of your business, now you take care of mine.” Richard did not respond because he did not want defendant to “turn on him.” During this time, defendant was waving his arms, holding a .25-caliber gun in one hand and a nine-millimeter Tec-9 in the other. Richard tried to calm defendant. Juarez grabbed the .25-caliber gun from defendant, and Richard grabbed the nine-millimeter gun. When defendant calmed down somewhat, Richard approached Rodriguez, who was preparing to leave, and warned him not to say anything to the police because “Johnny’s crazy. He’ll kill you.” When Richard returned to defendant, Juarez, Rojas, and Cordova, defendant was angry again because he had blood on the shoes his mother had recently bought him. Richard told defendant to calm down and they would take care of it. Someone brought defendant shoes and clothing. Richard got some marijuana from the Wilderness trailer and beer from the main trailer. When he walked back outside, he saw some people, possibly Chavez and Spradlin, washing the Bonneville. Richard overheard Chavez discussing burning the car; he did not direct anyone to bum it. Richard went into the Wilderness trailer with defendant, Rojas, Juarez, Cordova, and De Anda. Listening to a police scanner, they heard about the murders and turned on the news. Between 8:00 and 9:00 a.m., Richard drove defendant home, telling him, “I don’t want to hear about [the murders].” Richard returned to the North Hayes property at 1:00 p.m. At that point, only his parents-in-law were there. About a week later, Richard found a bag containing a nine-millimeter Tec-9 and a .25-caliber semiautomatic pistol in the back of a woodpile behind the shed in the backyard. They appeared to be the guns defendant was holding on August 1. Richard dismantled the guns and destroyed them using a blowtorch because he knew the police were looking for them. Prior testimony of Frank Mendez was read into the record. Mendez had known Rojas since Rojas was a child, and had known him to smoke marijuana. During August and September 1991, the two were housed in the same jail, and Rojas spoke to Mendez about the murders in this case. Rojas said he knew who had raped the girl, and that he was present when the girls were taken away to be killed. Rojas also said something about getting rid of the girls because they knew too much, and that Richard was driving some girl home while this was occurring. Rojas also mentioned pulling a chain necklace off one of the girls and calling his wife to tell her to get rid of some of his clothing in the trunk of a car. Rojas did not mention defendant. Thomas Richardson, counsel for Rojas, testified that the prosecution entered into a contract with Rojas for his cooperation in this matter, and that one term of the contract was that Rojas take and pass a polygraph examination. When Richardson learned the result of the polygraph examination was inconclusive, he informed the prosecutor. The prosecutor replied that Rojas had fulfilled that term of the contract by taking the examination, and that the inconclusiveness of the result indicated the unreliability of the examination rather than Rojas’s failure. Ruben Arrechiga, Jr., testified he had suffered felony convictions in 1977, 1981, 1991, and 1993. In 1986 or 1987, Arrechiga lived with Rojas. During that time, Rojas used PCP three or four times a week. Based on his experience with Rojas, Arrechiga did not believe him to be an honest person. Arrechiga also spoke to Richard’s defense investigator about a convenience store robbery Rojas committed in 1988. Rojas told Arrechiga that as he was fleeing the scene of the crime, he fired shots at two young girls from the neighborhood because they could identify him. In May 1982, Ronald Tate was walking home at night when he saw a group of teenagers fighting. Rojas, who was with a different group, approached him and repeatedly asked what was happening. Rojas then pulled a knife out of his pocket and stabbed him once in the neck and twice in the back. 4. Defendant’s Defense Case Defendant presented evidence that Sanchez was a family friend, implicitly suggesting he would not have killed someone he knew and liked. Specifically, defendant’s three sisters and two cousins and Sanchez’s sister testified that for several years in the mid-1980’s Sanchez dated Chucky Chacon, defendant’s cousin. During that period, Sanchez and defendant, who occasionally met at family gatherings, appeared to get along. After Sanchez and Chacon broke up, she continued to be friendly with defendant. Defendant and Sanchez were last seen together in the late 1980’s at a family gathering. Spring and Kim testified for defendant. On July 31, 1991, Zeek invited Spring to a party. He picked her up in a purple Impala; Gomez was driving. The three then picked up Spring’s friend Kim and drove to the North Hayes property, arriving about 10:30 p.m. They saw many men carrying firearms, and various guns were strewn about the property. Some of the men approached the girls and started talking to them. Spring recognized Juarez, whom she had met three weeks before. Spring and Kim left the North Hayes property twice with some others to buy alcohol from a nearby store. On one return trip, when they were with Gomez and Juarez, a car behind them flashed its high beams. Gomez reached down from under his driver’s seat, pulled out a 16- to 18-inch gun, and started firing at the car behind them. Juarez leaned out the window and also began shooting at the car. When they returned to the property, they learned that Zeek’s brother and his family were in the car behind them. In the early morning hours of August 1, 1991, Spring, Kim, Zeek, and Juarez smoked KJ outside the back of the main trailer. At one point, Spring and Kim met in Zeek’s bedroom, in the main trailer. Juarez was there, and Rojas, whom neither girl knew, was in the kitchen with a 17- to 18-inch gun strapped over one shoulder. Richard drove Kim home, arriving there between 3:00 and 4:00 a.m. Meanwhile, Spring found herself in the Wilderness trailer, where, over the course of two and a half hours, she was raped 12 times by six or seven individuals, including Juarez and Rojas. Rojas held her legs open while other men raped her. Rojas also pulled her hair and hit her, placed a belt around her neck and choked her with it, put a revolver to her head, cocked back the hammer several times, and threatened to kill her if she told anyone what happened that night. During the assault, Spring lost a necklace and a pair of earrings. Eventually De Anda came into the trailer and told Rojas to leave her alone. He helped Spring find her shoes and clothes, and they walked to De Anda’s car. Just as they were leaving the property, Juarez jumped into the car, sandwiching her between De Anda and himself. Spring was scared because Juarez had a gun. In the car, Spring did not say that she was paid to strip or willingly engaged in sex. It was past 4:00 a.m. when Spring returned home. Spring did not recall seeing defendant that night. Spring testified that, when she first arrived at the party, she saw a girl walking toward a trailer. Kim testified that, before midnight, she saw a man escorting a thin young woman from the main trailer. John Coyle, a correctional sergeant with the California Department of Corrections who became familiar with Rojas while he was assigned to the California Medical Facility in Vacaville for 16 months, opined that Rojas was dishonest. 5. People’s Rebuttal Evidence Before trial, Rodriguez discussed with Ray Lopez his upcoming obligation to testify as a witness in this case. Lopez asked Rodriguez if he could change his story about Richard and claim immunity so he would not get in trouble. Rodriguez explained his contract with the prosecution did not work that way. He did not tell Lopez that Richard was uninvolved in the murders. B. Penalty Phase Evidence 1. Prosecution’s Case in Aggravation The prosecution presented evidence that defendant previously had been convicted of shooting at an inhabited dwelling (§ 246), intimidation of a witness by force or violence (§ 136.1, subd. (a)(1)), and felony possession of PCP (Health & Saf. Code, § 11377). Medina’s cousin Richard Gonzales testified that Medina’s death devastated her mother and that she had not been the same person since. Similarly, Medina’s sisters found it difficult to talk about Medina, and the mere mention of Medina’s name brought them to tears. Medina’s family believed she was too young to die. The prosecution presented a photograph of Medina and her two sisters taken in January 1991 and a photograph of Sanchez and her son taken within two months of her death. 2. Defendant’s Case in Mitigation Defendant presented extensive evidence about his family background and childhood. He was the second of eight children and the oldest boy. Defendant’s mother, Ester, and father, John Avila, Sr., married in 1956 and moved to Pinedale, California, in 1960, where the family lived until 1979. Defendant’s mother did not work outside the home, and his father typically worked 10- to 12-hour days as a foreman. Defendant’s father was a well-liked and respected member of the community who coached baseball for a boys club and organized other sports. Defendant’s father demanded the family eat breakfast and dinner together, expected his children to do household chores before and after school, and taught his children the difference between right and wrong. During the summers, he made the children work in the fields picking figs to teach them responsibility and to make extra money. The siblings, especially defendant, helped each other in the fields. Defendant was a small, skinny, and quiet child, who was placed in special education classes at school because he was a slow learner. Because of his special placement in school and his small size, other children used to pick on and beat him, though he never went looking for a fight. Defendant was also a “mama’s boy,” meaning he would often run errands for his mother. He was generally a happy boy who made others laugh. Defendant was a member of the boys club and played numerous sports. He was a pitcher on a baseball team coached by his father, and went fishing with him. Defendant was a good brother who played games with his siblings, took them to movies, and stopped them from fighting with each other. When defendant was 15 years old, an older boy named Russell Mestas picked a fight with him and bit off a part of his ear. Defendant’s father broke up the fight. Defendant never retaliated against Mestas. About this time, defendant dropped out of school and “took up with” a young woman named Yolanda. The two lived with his family. Defendant’s father helped him with his schoolwork and to get a job with his company. In his late teens and early twenties, defendant was very active, dancing, playing music, working, and raising his own growing family. Defendant was a good listener, and counseled his sisters and cousins, especially about their rocky marriages and relationships. In February 1978, when defendant was about 20 years old, defendant and some of his family members went to a reception, and Russell Mestas hit his sister Vera in the mouth. At a party later that night, defendant’s father learned about the earlier incident with Mestas and went outside to Mestas’s car to confront him. Someone from inside the car shot him. He fell back into defendant’s arms and died of his wounds. The Avila family began receiving threats from the Mestas family and the Contreras family (who were related to the Mestases by marriage). Their house was “shot up” several times. Defendant retaliated by shooting at the Contrerases’ house and was sent to the California Youth Authority as a result. The entire Avila clan eventually moved to Fresno. Defendant tried to take his father’s place in the family but found it difficult to do so and became bitter. In 1990, defendant stayed with his sister Mary and her family for a few months. Defendant was unemployed and appeared to be frustrated because he could not find a job. Mary’s husband helped him fill out an employment application because defendant could not read or write well. During the time defendant stayed with Mary’s family, he played with the children and helped with the household chores. Julie Cruz dated defendant from mid-1989 to early 1991. Defendant was nice and never disrespected her. Defendant was also very good with her baby. She had never seen defendant use drugs. Family members testified it would be very hard on their family if defendant were to receive the death penalty. James Park, an expert on California prisons who had worked for the Department of Corrections for more than 30 years, testified that new inmates in California were classified on a point system, and that an inmate sentenced to life without possibility of parole had enough points to place him in a maximum security prison. Inmates in maximum security prisons have limited movement and loss of privacy, though they have the opportunity to work in factories or buy small items in a cantina. If defendant received a sentence of life without the possibility of parole, he would live in a 60- or 80-square-foot cell with another inmate. Abel Esquivel, a licensed clinical social worker, testified about the impact of John Avila’s death on defendant generally and from a cultural standpoint. Esquivel opined that defendant’s substance abuse and criminal activity were the result of confusion and isolation stemming from the loss of his father and his inability to successfully take the lead in the family. Defendant also experienced contradictory feelings resulting from his unsuccessful attempt to mesh his Mexican culture with the mainstream one. Esquivel also testified that defendant tended to gravitate toward those half his age and appeared to vacillate between wanting to establish a home and family of his own and wanting to party and meet young women. Errol Leifer, a clinical psychologist, conducted a neuropsychological evaluation of defendant and found that he consistently performed at a level of intellectual and mental functioning suggesting mild mental retardation. Defendant also showed residual mild diffuse organic brain damage from chronic use of PCP. Given his mental deficiencies and brain damage, if defendant ingested intoxicants such as PCP and alcohol, his ability to engage in an act involving a plan or a scheme would be greatly impaired. Leifer conceded, however, that defendant would be capable of understanding that a witness to a criminal act could be a threat to him and of making a decision to kill. Another clinical psychologist, Charles Pine, conducted diagnostic tests on defendant on three occasions in 1992, 1994, and 1995, and concluded that he suffers from a cognitive disorder stemming from neuropsychological deficiencies, head trauma, and substance abuse, making it difficult for him to solve abstract problems; posttraumatic stress disorder due to the death of his father and loss of his way of life; depression stemming from early childhood; and polysubstance dependence disorder involving PCP, alcohol, and marijuana. Pine also testified that defendant functioned at a borderline level of mental retardation, with an IQ of 77. II. JURY SELECTION ISSUES A. Procedure Used to Challenge Prospective Jurors for Cause Defendant contends that several aspects of the procedure the trial court required the parties to follow in making challenges for cause were arbitrary and unreasonable, and made selecting a fair and impartial jury impossible, in violation of statutory requirements. He also asserts violations of his rights to an impartial jury under the Sixth Amendment, due process and fundamental fairness under the Fifth, Sixth, and Fourteenth Amendments, and a reliable judgment under the Eighth Amendment. 1. For-cause Excusáis on Written Answers Alone Defendant contends the trial court erroneously excused for cause four prospective jurors based solely on their written answers to a jury questionnaire concerning their views on the death penalty, and without any opportunity for follow up questioning during which the court and counsel might have been able to clarify the responses and determine whether, in fact, the prospective jurors should be disqualified from service. He asserts the excusáis violated various provisions of the federal Constitution enumerated above. The trial court, after soliciting comment from all counsel, prepared a 24-page written questionnaire consisting of 108 questions. Several pages of the questionnaire focused on the prospective jurors’ views concerning the death penalty. Based on the questionnaires completed by the first 75 prospective jurors, the trial court proposed to excuse for cause 14 individuals without questioning them orally because their responses to the questionnaire “very clearly” indicated that either they were not death qualified—because they would always impose the death penalty or would never consider imposing the death penalty—or they had read or heard something about the case that created a strong belief in defendant’s guilt. Defendant objected unsuccessfully to the excusal of four of the 14 prospective jurors: C.H., R.V., O.D., and R.W. Decisions of the United States Supreme Court establish the circumstances under which a prospective juror’s views on the death penalty properly may serve as the basis for a challenge for cause. In Witherspoon v. Illinois (1968) 391 U.S. 510, 522 [20 L.Ed.2d 776, 88 S.Ct. 1770], the United States Supreme Court held that a defendant cannot be sentenced to death if the jury that imposed the penalty was chosen by excluding prospective jurors for cause “simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” In Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct. 844], the high court clarified its decision in Witherspoon and held that a prospective juror may be excluded for cause because of his or her views on capital punishment if those views would “ ‘prevent or substantially impair’ ” the performance of his or her duties as a juror in accordance with the trial court’s instructions and his or her oath. (Accord, People v. Cunningham (2001) 25 Cal.4th 926, 975 [108 Cal.Rptr.2d 291, 25 P.3d 519].) But neither Witherspoon nor Witt requires that a prospective juror automatically be excused if he or she expresses a personal opposition to the death penalty. Those who firmly oppose the death penalty may nevertheless serve as jurors in a capital case as long as they state clearly that they are willing to temporarily set aside their own beliefs and follow the law. (Lockhart v. McCree (1986) 476 U.S. 162, 176 [90 L.Ed.2d 137, 106 S.Ct. 1758]; accord, People v. Rodrigues (1994) 8 Cal.4th 1060, 1146 [36 Cal.Rptr.2d 235, 885 P.2d 1].) Generally, a trial court’s rulings on motions to exclude for cause are afforded deference on appeal, for “appellate courts recognize that a trial judge who observes and speaks with a prospective juror and hears that person’s responses (noting, among other things, the person’s tone of voice, apparent level of confidence, and demeanor), gleans valuable information that simply does not appear on the record.” (People v. Stewart (2004) 33 Cal.4th 425, 451 [15 Cal.Rptr.3d 656, 93 P.3d 271] (Stewart).) But such deference is unwarranted when, as here, the trial court’s ruling is based solely on the “cold record” of the prospective jurors’ answers on a written questionnaire, the same information that is available on appeal. (Ibid.) Accordingly, reviewing the record de novo, we conclude the trial court did not err in excusing for cause four prospective jurors based solely upon their written responses to the jury questionnaire. Stewart is distinguishable. There, we held that the trial court erred in excusing for cause five prospective jurors, over the defendant’s objections, based solely upon their responses to a three-part question on the written jury questionnaire that focused on views concerning the death penalty. We therefore reversed the defendant’s death sentence without an inquiry into prejudice. (Stewart, supra, 33 Cal.4th at pp. 445-55.) Our concerns, however, were centered on the particular circumstances of that case. At the outset, we stressed a material flaw in the Stewart