Full opinion text
Opinion WERDEGAR, J. A jury convicted defendant Steven Wayne Bonilla of first degree murder with murder-for-financial-gain and lying-in-wait special circumstances for the 1987 killing of Jerry Lee Harris. (Pen. Code, §§ 187, 189, 190.2, subd. (a)(1), 190.2, former subd. (a)(15).) Bonilla’s first penalty phase trial ended in a hung jury; at his second penalty phase trial, the jury returned a death verdict. On automatic appeal, we affirm the judgment in its entirety. Factual and Procedural Background Guilt Phase Trial Prosecution Evidence Jerry Lee Harris was a San Francisco Bay Area entrepreneur. Harris and Bonilla were longtime friends, and Bonilla occasionally assisted Harris with his business ventures. In particular, Bonilla invested in a Harris plant nursery and rental business, Tiffany’s, and in a Harris rebar fabricating business, and managed a Harris lounge, the Penthouse. In 1986, Harris decided to open a Cupertino nightclub called Baritz. As he had on some previous occasions, he borrowed $232,000 in seed money from Bonilla’s mother. Bonilla supposedly could not formally become a partner in Baritz until 1989 because of Department of Alcoholic Beverage Control regulations, but in March 1987, Harris and Bonilla nevertheless signed an agreement giving Bonilla an interim 40 percent stake in Baritz. Baritz was quickly successful, and Bonilla began receiving $5,000 monthly checks from its operating profits. However, Bonilla and Harris had a series of disagreements over how much say Bonilla would have in Baritz’s operations, as well as those of other Harris-owned restaurants and clubs. Harris directed Don Baptist, Baritz’s landlord, who had access to its books because of the nature of the lease agreement, to prevent Bonilla from accessing those books; Bonilla complained to Baptist that he was being treated unfairly and sought access to Baritz’s financial information to determine whether Harris was living up to their partnership agreement. Harris and Bonilla argued again in August or September 1987 when Bonilla agreed to loan Harris $8,000, but the check he provided bounced. In September and October 1987, Bonilla received no payments from Baritz. The prosecution presented details of what followed principally through the testimony of Bradley George Keyes. In October 1987, Bonilla got in touch with Keyes, an old Nevada acquaintance; explained that he had “something going” with their mutual acquaintance, William Nichols; and arranged to meet with Keyes in Elko, Nevada. There, he explained to Keyes that he had a business partner who was treating him unfairly, but he could not take legal action because the partner had doctored the books. Bonilla claimed the partner owed him more than $1 million on a plant deal and was hiding nightclub profits he owed Bonilla. Bonilla said the partner deserved to die and if he did, Bonilla would be able to take over the partner’s businesses and skim tax-free money. As a result, “everybody would be rich.” Keyes then flew to the San Francisco Bay Area and met with Nichols. Nichols explained that Bonilla’s business partner, Harris, was cheating Bonilla, and Bonilla and Nichols were working on a way to kill Harris. Over the next few days, Nichols and Keyes scouted Harris’s businesses and discussed ways to kill him and dispose of the body. They failed to develop a concrete plan, and Bonilla paid to fly Keyes back to Nevada, while Nichols returned home to Phoenix, Arizona. Bonilla told Keyes to return when they had a plan worked out. Days later, on or about October 12, Bonilla or Nichols wired Keyes money to return to the Bay Area and the three met again. Bonilla explained he was running out of money, so Harris needed to be killed soon. Once Harris was dead, Bonilla would be able to push Harris’s wife, Susan, aside, take over Harris’s businesses, and start skimming money. Bonilla believed that because Harris had cheated many people, there would be many suspects if Harris died. Keyes and Nichols spent more days trying to plan how to kill Harris, while Bonilla grew increasingly impatient. One evening, Bonilla had dinner with Harris and his wife, while Nichols and Keyes waited outside, but they decided not to grab Harris yet because there were too many potential witnesses. With no plan in place, Keyes again returned to Nevada and Nichols to Arizona, while Bonilla tried to figure out how to lure Harris to a more secluded place so Keyes and Nichols could kill him. On October 19, Keyes and Nichols returned for a third time and met with Bonilla. The next day, Nichols explained the plan to Keyes: Bonilla would bring Harris to a vacant office park in Pleasanton, purportedly to meet with a real estate agent to see some commercial space for one of Harris’s businesses. Nichols would pose as the agent, Keyes as a security guard. They would jump Harris, duct tape and handcuff him, put him in Bonilla’s pickup truck, plant Harris’s car at an airport in Sacramento to make it appear he had flown off, and dispose of Harris’s body. Consistent with this plan, Bonilla arranged with Harris to have drinks and then show him the office space. When they arrived at the deserted office park parking lot after 8:30 p.m., Nichols and Keyes were there waiting. Keyes, playing the part of a security guard, wrote down a few license plate numbers, then joined Nichols, Bonilla, and Harris. Nichols suddenly sprayed Harris with Mace, and Keyes grabbed Harris and fell to the ground with him. Bonilla walked off to move the rental car Nichols had arrived in. Nichols and Keyes carried the struggling Harris to Bonilla’s pickup truck and threw him in the back, then Nichols covered Harris’s head in duct tape. Bonilla returned, helped Keyes start Harris’s car, and told Keyes as Keyes pulled out to follow Nichols, who was driving the pickup truck: “See you later, and be careful.” Nichols and Keyes left Harris’s car in a Sacramento airport parking lot, determined Harris had suffocated, and finally settled on a remote Nevada location to dispose of his body. They removed his ring and the duct tape, dug a shallow grave, and buried him. The next morning, Susan Harris, concerned about her husband’s absence, called Bonilla to ask if he had seen him. Bonilla replied, “No, why?” After Susan pointed out that Bonilla had been with her husband the night before and then at an office park, Bonilla replied, “Yes, at [the bar], why?” and “Yeah, in Pleasanton, why?” He denied any knowledge of where Harris had gone after the office park visit; they had gone their separate ways. When Harris’s brother Sandy asked Bonilla about Harris’s whereabouts later that day, Bonilla indicated Harris had taken off to a meeting after they met for drinks. Within a week of Harris’s disappearance, Bonilla showed up at Baritz to examine the financial records. However, he was unable to seize immediate control of Harris’s businesses; instead, he and Susan Harris plunged into litigation. In January 1988, a rock hunter found Harris’s body. In February 1988, Harris’s car was found at the Sacramento airport. Authorities followed leads that eventually led them to Keyes, who, after offering several shifting alibis, made a deal with prosecutors that he would testify against Nichols and Bonilla and receive a sentence no greater than three years in state prison. Over a period of five months, Keyes cooperated by placing taped phone calls to Nichols and Bonilla to obtain incriminating statements. Thereafter, Nichols and Bonilla were arrested and tried jointly. Defense Evidence The defense focused on differences between Keyes’s trial testimony and earlier statements he had made to the police and others. In addition, Bonilla testified in his own defense and offered a slightly different version of events. During initial statements to the Nevada police in March 1988, Keyes said he met with Harris to intimidate him into signing over his businesses to Bonilla. He denied knowing of any plan to murder Harris. He claimed to have left the office park parking lot with Harris still alive. Keyes did not learn Harris was dead until they got to Nevada, at which point Nichols explained things had gotten out of hand. Keyes made similar statements to a bail bondsman friend near the time of his arrest. In April 1988, Keyes spoke with a church minister and again minimized his role. He said he had helped rough up a guy who owed someone some money, then went and sat in a car while two others continued to rough him up. They got carried away and killed him. When the minister told him he did not believe him, Keyes changed his story and said he was involved in the whole process, that they had put duct tape on the man’s mouth, and he had died as a result. Months later, Keyes reiterated to the minister that the killing had been unintentional. Keyes made similar statements to an elder and a Bible study teacher at his church: he was an enforcer and during the collection of funds someone had accidentally died. Bonilla testified in his own defense. He said he ran Sunstate Tropicals, a shell company that facilitated Tiffany’s, Harris’s plant business, by loaning Tiffany’s money. Tiffany’s had repaid only some of the money and owed Sunstate Tropicals approximately $1.2 million when Harris died. Bonilla provided $50,000 of his mother’s money to acquire a stake in Harris’s rebar business, but Harris instead treated the money as a loan and never repaid it. Bonilla and Harris were partners in Baritz. Bonilla borrowed $232,000 from his mother to acquire a 40 percent stake. He received monthly $5,000 interim payments until they could determine what Baritz’s actual profits were. In addition, Bonilla was to receive promissory notes reflecting the sums he had advanced. In the summer of 1987, Bonilla discovered more than $100,000 was missing from Baritz’s accounts. Harris at first admitted money was missing, then later denied any was. At the same time, Nichols, an old acquaintance, proposed that he and Bonilla start a tile business; Nichols would run the business, while Bonilla would provide startup capital. At the time, Bonilla had no money on hand to fund the business. He told Nichols he could not invest because another business partner was misappropriating funds. Nichols was upset and volunteered to talk directly with the partner. Nichols also suggested Bonilla contact Keyes about joining the tile business. Bonilla did so and explained nothing could happen until the problem of the missing Harris funds was resolved. Keyes agreed to go to California to talk with Nichols. The first time Keyes and Nichols came to California, Bonilla spoke only with Nichols, discussing ways to talk to Harris about the missing money. The second time Nichols and Keyes came to California, the idea was that they would talk to Harris and point out money was missing from Baritz. There was no plan to harm Harris. Nichols and Keyes had a chance to confront Harris after a dinner Bonilla had with Harris and his wife Susan, but elected not to because Nichols did not want to talk to Harris in front of his wife. Bonilla had found office space in Pleasanton he wanted to show Harris for one of Harris’s businesses. This coincided with Nichols and Keyes being in town for the third time, so Bonilla mentioned to Nichols that he was going to show Harris a particular office complex. Bonilla expected Nichols and Keyes to be there, but there was no plan to rough up or intimidate Harris, and Bonilla never discussed what Keyes’s role might be. He did expect, however, that an agreement regarding the missing money would be reached that night. Concealing the true reason for the visit, Bonilla brought Harris to the office park. Nichols and Keyes were there when Harris and Bonilla arrived. Bonilla saw Keyes writing something on a pad, asked Nichols what Keyes was doing, heard a commotion, and turned to see Keyes spraying something in Harris’s face. Keyes and Harris began fighting, and Bonilla, afraid, got in his car and drove home. He did not think Harris was dead. That night, Nichols called and said there had been an accident and to come pick up the rental car they had left at the office park. He heard Keyes in the background warning Bonilla not to mention anyone’s name. A day or two later, Nichols called and indicated Harris was dead. Thereafter, Bonilla lied to the FBI, the police, and Susan and Sandy Harris because he was afraid of Keyes. Defense counsel argued that Keyes’s statements and Bonilla’s testimony established Bonilla had no plan to kill Harris and that he was used by Nichols, who had a greater incentive to see Harris dead. Penalty Phase Trial As noted, Bonilla’s first penalty phase trial ended in a hung jury and a mistrial. At the second penalty phase trial, before a new jury, the prosecution relied in part on the circumstances of the crime, and thus the prosecution and defense reintroduced much of the same evidence presented at the guilt phase. The evidence recounted here relates solely to the new evidence introduced during the second penalty phase trial. Prosecution Evidence Aside from the circumstances of the crime, the prosecution’s penalty case centered on evidence of numerous other Bonilla-led conspiracies to kill those who had crossed him. Bonilla bought a catering supplies business from Mel Carrera in 1978. Shortly after closing the deal, he and Carrera began arguing over the amount of the business’s debt Bonilla was to assume. Weeks later, Bonilla showed up at the business; 30 minutes after he left, it burned to the ground. Bonilla’s wife Pat and the business’s general manager, Lou Sans, were working in the front; they escaped with their lives, but the business was a loss. One month later, Bonilla and his wife separated. Bonilla began seeing another woman, Mariana Weavers, and admitted to her he had wanted the fire set for the insurance money. Pat began seeing Lou Sans. Bonilla expressed anger toward Pat and Sans and told Weavers he would “kill anybody who got in his way.” After Bonilla and Pat divorced, Bonilla married Weavers and Pat married Sans. Bonilla beat Weavers and on one occasion threw her down, placed a gun in her mouth, and accused her of sleeping with another man. In 1978 or 1979, Keyes met Nichols. At Nichols’s request, Keyes came to the Bay Area, where he met Bonilla. Keyes was then taken to Auburn and introduced to a friend of Nichols’s, a man named Willie. Keyes learned Bonilla had hired Willie to track down and kill a man who was with Bonilla’s ex-wife and who worked at a Sacramento newspaper, and he understood he was to help him. Pat and Sans had moved to Auburn with Pat and Bonilla’s daughters, and Sans now worked for the Sacramento Bee. Willie and Keyes did not follow through. When Willie asked Bonilla for more money, Bonilla came, met with Willie and Keyes, told them there had been a change of plan, and drove them to Mel Carrera’s house in Nevada. He told them he wanted Carrera dead instead, gave them money, and left. Again, Willie and Keyes did not follow through. Nichols later contacted Keyes and asked him to return to Auburn to kill Lou and Pat Sans. Nichols had a car bomb and said Bonilla would show Keyes where the targets lived and wanted him to put it on their car. Keyes came to Bonilla’s house in Cupertino, where Bonilla explained he would pick up his and Pat’s daughters from the Sanses’, drop them off with relatives, then go to a party to establish an alibi while Keyes attached the bomb to the Sanses’ car. Bonilla provided a description of the car, a map, and instructions on how to access the Sanses’ gated community. According to Weavers, Bonilla wanted the Sanses dead in part because he resented Pat Sans’s ongoing control over Bonilla’s money. This time, Keyes planted the bomb, but rigged it not to explode. After Bonilla’s 1992 conviction, he was placed in a cell adjacent to Shelton McDaniels. He spoke with McDaniels about his case. He said he had paid someone to kill Keyes, but “the guy just took off with his money,” so he had no money to kill Keyes. Because his money was tied up in lawsuits with Susan Harris, he wanted to terrorize her or kill her so he could get the money to kill Keyes and prevent him from testifying at the penalty phase retrial. McDaniels put Bonilla in touch with Michael Cooperwood, an incarcerated colonel in the Black Guerrilla Family prison gang, who agreed to kill Susan Harris for $35,000. Once Harris was dead and Bonilla’s money was freed up, Bonilla would pay another $50,000 to have Keyes killed. Bonilla had his mother pay an initial $10,000. Part of the money was used to bail out Weldon Wiggins, who tracked down Susan Harris and contacted her but did not immediately kidnap or kill her. Harris, frightened by this encounter and a subsequent threatening letter, went into hiding. No fiirther efforts were made to kill Susan Harris because Bonilla could not come up with any additional money. The other principal focus of the penalty phase case was victim impact testimony from Susan Harris, Jerry Harris’s daughter Tiffany, and friends talking about Jerry Harris’s charitable acts. Defense Evidence Bonilla called three family members: his daughter Jennifer, his cousin Linda Chapman, and his sister Kathy. They wanted Bonilla’s life spared and described the Bonilla family as close. As Jennifer put it, “[I]f he dies, then part of us dies, and then we have nightmares to live with for the rest of our lives.” Bonilla also called an Alameda County District Attorney’s Office inspector who had had numerous conversations with Keyes during the 1988 investigation. The inspector did not think Keyes had been initially truthful during their conversations about the crime. Codefendant Nichols’s Evidence Nichols took the stand for the first time during his penalty phase defense. He described himself as a “collector” who settled money disputes between criminals through intimidation or force. He never killed anyone. He took money from Bonilla to kill Lou Sans, but he never intended to do so. He also took money from Bonilla to kill Jerry Harris, but again he had no intention of actually killing Harris. Harris’s death was an accident; Nichols heard Harris banging in the back of the truck on the way to Sacramento and was surprised to find him dead when they arrived there. He expressed remorse for Harris’s death. Procedural History Bonilla and Nichols were each charged with first degree murder with two special circumstances, murder for financial gain and murder while lying in wait. They were tried jointly. In April 1992, a jury convicted each defendant of first degree murder and found both special circumstances true. The jury was unable to reach a verdict on penalty for either defendant. Bonilla and Nichols were retried before a new penalty phase jury in 1994. This time, the jury returned a verdict of death against Bonilla, but again could not reach a verdict for Nichols. The prosecution abandoned further attempts to seek the death penalty against Nichols, who was sentenced to life in prison without possibility of parole. Discussion I. Guilt Phase Claims A. Flight Instruction (CAUIC No. 2.52) The trial court instructed the jury with the standard instruction covering use of a defendant’s flight as evidence of guilt. (See § 1127c [requiring instruction where prosecution relies on flight as evidence of guilt].) Bonilla argues this was error because there was no substantial evidence he fled; at most, the evidence showed only that codefendant Nichols, who drove to Sacramento and then Nevada immediately after the murder, did so. “In general, a flight instruction ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’ ” (People v. Bradford (1997) 14 Cal.4th 1005, 1055 [60 Cal.Rptr.2d 225, 929 P.2d 544], quoting People v. Ray (1996) 13 Cal.4th 313, 345 [52 Cal.Rptr.2d 296, 914 P.2d 846]; see also People v. Pensinger (1991) 52 Cal.3d 1210, 1245 [278 Cal.Rptr. 640, 805 P.2d 899].) Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest “a purpose to avoid being observed or arrested.” (People v. Crandell (1988) 46 Cal.3d 833, 869 [251 Cal.Rptr. 227, 760 P.2d 423]; accord, People v. Jurado (2006) 38 Cal.4th 72, 126 [41 Cal.Rptr.3d 319, 131 P.3d 400]; Bradford, at p. 1055.) To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence. (See People v. Turner (1990) 50 Cal.3d 668, 694—695 [268 Cal.Rptr. 706, 789 P.2d 887].) The evidence supported such findings and inferences here. There is no dispute Bonilla immediately left the scene. Moreover, he did so under circumstances that could have given rise to an inference of consciousness of guilt: when Harris was attacked, Bonilla, by his own admission, did not call out to him, attempt to aid him, or call for or go for assistance (acts that might have led to Bonilla’s detection at the scene or otherwise connected him with the attack). The jury could attribute an innocent explanation to his conduct, but it could also infer that his departure and the circumstances thereof were consistent with and supported the prosecution’s theory—that Bonilla planned and intended the attack on Harris—and were inconsistent with Bonilla’s theory—that the attack was a complete surprise about which he had no prior guilty knowledge. (See People v. Jurado, supra, 38 Cal.4th at p. 126 [failure to use call box to summon assistance at crime scene before leaving supported flight instruction].) Consequently, it was not error to give a flight instruction. B. Consciousness of Guilt Instruction (CALJIC No. 2.03) The prosecution argued Bonilla’s October 1987 statements to Susan and to Sandy Harris, denying knowledge of Jerry Harris’s whereabouts, reflected a consciousness of guilt: if Bonilla truly was innocent, why did he not tell Susan or Sandy Harris that he had seen Jerry Harris being assaulted by Nichols and Keyes? The jury was then instructed with a consciousness of guilt instruction. Bonilla argues this instruction is impermissibly argumentative; consequently, defense counsel alone, rather than the trial court, should have been permitted to decide whether the instruction would be given; and the giving-of the-instruction violated his rights to due process, a jury trial before a properly instructed jury, and a fair and reliable capital trial. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, 17.) As Bonilla acknowledges, we have repeatedly rejected this argument. (E.g., People v. Jurado, supra, 38 Cal.4th at pp. 125-126; People v. Benavides, supra, 35 Cal.4th at p. 100; People v. Kipp (1998) 18 Cal.4th 349, 375 [75 Cal.Rptr.2d 716, 956 P.2d 1169]; People v. Kelly (1992) 1 Cal.4th 495, 531-532 [3 Cal.Rptr.2d 677, 822 P.2d 385].) Bonilla nevertheless asks us to reconsider these decisions in light of People v. Mincey (1992) 2 Cal.4th 408, 437 [6 Cal.Rptr.2d 822, 827 P.2d 388], which he contends rejected as argumentative an instruction materially identical to CALJIC No. 2.03. Bonilla is correct that the rejected instruction in Mincey was structurally identical to CALJIC No. 2.03: both contained the propositional structure “If [certain facts] are shown, then you may [draw particular conclusions].” But it was not the structure that was problematic in Mincey. Rather, it was the way the proposed instruction articulated the predicate “certain facts”: “ ‘If you find that the beatings were a misguided, irrational and totally unjustified attempt at discipline rather than torture as defined above, you may ....’” (Mincey, at p. 437, fn. 5, italics added.) This argumentative language focused the jury on the defendant’s version of the facts, not his legal theory of the case; this flaw, not the generic “if/then” structure, is what caused us to approve the trial court’s rejection of the instruction. (Id. at p. 437.) Any parallels between that instruction and CALJIC No. 2.03 are thus immaterial. (People v. Nakahara (2003) 30 Cal.4th 705, 713 [134 Cal.Rptr.2d 223, 68 P.3d 1190].) We adhere to our prior decisions rejecting the argument that CALJIC No. 2.03 is impermissibly argumentative. C. Lying-in-wait Special Circumstance The jury found true the special circumstance that “[t]he defendant intentionally killed the victim while lying in wait.” (§ 190.2, former subd. (a)(15), added by Prop. 7, § 6, as approved by voters, Gen. Elec. (Nov. 7, 1978).) Bonilla challenges the sufficiency of the evidence supporting this special circumstance, the adequacy of the instructions on it, and its constitutionality. We reject each set of contentions in turn. 1. Sufficiency of the evidence The lying-in-wait special circumstance requires proof of “ ‘ “an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage.” ’ ” (People v. Hillhouse (2002) 27 Cal.4th 469, 500 [117 Cal.Rptr.2d 45, 40 P.3d 754].) Bonilla contends the evidence at trial was insufficient in three regards: it failed to show (1) he personally killed Harris; (2) there was a substantial period of watching and waiting; and (3) the killing occurred during or immediately after the period of watching and waiting. The first argument rests on a misapprehension of the law. While it is true the prosecution failed to adduce any evidence that Bonilla, as opposed to coconspirators Nichols and Keyes, personally killed Harris, it was not required to do so. At the time of Harris’s murder, section 190.2, former subdivision (b) extended death eligibility to those who aid and abet a lying-in-wait special-circumstance murder: “Every person whether or not the actual killer found guilty of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting any actor in the commission of murder in the first degree shall suffer death or confinement in state prison for a term of life without the possibility of parole, in any case in which one or more of the special circumstances enumerated in paragraph] . . . (15) [the lying-in-wait special circumstance] ... of subdivision (a) of this section has been charged and specially found . . . true.” (§ 190.2, former subd. (b), added by Prop. 7, § 6, as approved by voters, Gen. Elec. (Nov. 7, 1978), italics added.) Bonilla argues that even so, the lying-in-wait special circumstance specifically requires that “the defendant” kill the victim (§ 190.2, former subd. (a)(15)); thus, it can be found true for a given defendant only when he is the actual killer; and therefore, the liability-expanding provisions of section 190.2, former subdivision (b), which require a special circumstance to be found true, can never apply. This interpretation would render the express inclusion of lying in wait among the special circumstances covered by former subdivision (b) a nullity. We decline to attach special significance to the choice of the words “the defendant,” as opposed to “the killer” or “the murderer,” where to do so would negate in whole or in part another statutory provision. Had murder by lying in wait been intended to be omitted from the list of special circumstances that could extend to aiders and abettors, former subdivision (a)(15) would have been excluded from the list in former subdivision (b), just as the prior-murder-conviction special circumstance (§ 190.2, subd. (a)(2)) was. Bonilla’s second and third arguments build on this same misapprehension of the law. Bonilla argues that he did not engage in a substantial period of watchful waiting and that Harris was not killed during or immediately after any period in which Bonilla was concealing his purpose and watchfully waiting. But the issue is not whether Bonilla killed Harris while lying in wait; rather, the issue is whether Bonilla aided and abetted Harris’s killing, and whether the actual killers killed Harris while (or immediately after) lying in wait. Bonilla does not suggest there was insufficient evidence he aided and abetted Harris’s death, and he expressly concedes that based on the evidence at trial one can “makeQ a plausible case that Nichols and Keyes killed Harris while lying-in-wait.” Given this concession—one overwhelmingly supported by the evidence at trial—his claims fail. The jury could conclude that Bonilla aided and abetted Harris’s killing, with the intent that Harris die, and thus that he too was guilty of the lying-in-wait special circumstance. 2. Constitutionality of the lyins-in-wait jury instruction (CAUICNo. 8.81.15) The jury was instructed with a modified version of the standard CALJIC No. 8.81.15 instruction regarding the elements of the lying-in-wait special circumstance. Bonilla contends this instruction violated his due process and Eighth Amendment rights because (1) it failed to require that the jury find he personally lay in wait and killed Harris, and could have been satisfied solely by a finding that Nichols did so; (2) it provided contradictory and confusing descriptions of the time elements associated with the special circumstance; and (3) it provided contradictory and confusing descriptions of the concealment elements associated with the special circumstance. All three claims fail. The instruction did not require that Bonilla personally kill Harris or that he personally lie in wait for Harris, but this was correct as a matter of law: as discussed above, the special circumstances in section 190.2 apply equally to those who are liable for first degree murder only as an aider and abettor, provided they have the intent to kill. (§ 190.2, former subd. (b); see People v. Anderson (1987) 43 Cal.3d 1104, 1142 [240 Cal.Rptr. 585, 742 P.2d 1306].) Thus, the jury properly could find the special circumstance true based on evidence that Bonilla, with the intent to kill, aided and abetted Nichols, who lay in wait for and murdered Harris. - .......... Nor was the instruction contradictory as to the time element required. Bonilla objects that the instruction defined that element in materially different ways, on the one hand indicating that lying in wait “need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation” where another instruction indicated premeditation could be accomplished in a “short period of time,” and on the other requiring proof of “a substantial period of watching and waiting.” We previously have concluded an instruction that conveys both that a defendant must lie in wait at least long enough to premeditate and deliberate and that he must do so for a not insubstantial period of time is not unconstitutionally imprecise. (See People v. Stevens (2007) 41 Cal.4th 182, 203-204; People v. Edwards (1991) 54 Cal.3d 787, 823, 845 [1 Cal.Rptr.2d 696, 819 P.2d 436].) Such an instruction accurately reflects the elements of the special circumstance as defined in People v. Morales (1989) 48 Cal.3d 527, 557 [257 Cal.Rptr. 64, 770 P.2d 244]. As we have interpreted it in Morales and subsequent cases, the lying-in-wait special circumstance requires no fixed, quantitative minimum time, but the lying in wait must continue for long enough to premeditate and deliberate, conceal one’s purpose, and wait and watch for an opportune moment to attack. (See, e.g., People v. Sims (1993) 5 Cal.4th 405, 433-434 [20 Cal.Rptr.2d 537, 853 P.2d 992].) The instruction correctly conveyed this. Finally, the instruction was not contradictory or confusing in its explanation of the concealment required. The instruction required “concealment by ambush or by some other secret design to take the other person by surprise even though the victim is aware of the murderer’s presence,” but clarified that concealment of purpose alone was not enough; there must also be “a substantial period of watching and waiting for an opportune time to act” and “immediately thereafter, a surprise attack . . . from a position of advantage.” Again, these statements are consistent: a person may satisfy the requirement by concealing both his purpose and presence, or only his purpose, not his presence, so long as he also watches and waits for a substantial period and then launches a surprise attack from a position of advantage. (See People v. Stevens, supra, 41 Cal.4th at pp. 203-204.) 3. Constitutionality of the lying-in-wait special circumstance Finally, Bonilla challenges the lying-in-wait special circumstance as unconstitutional under the Eighth Amendment to the United States Constitution because it fails to meaningfully narrow the pool of death-eligible crimes and select out crimes that are genuinely deserving of a greater sentence, extending, rather, to virtually all lying-in-wait first degree murders. He acknowledges that we have previously rejected this argument (see, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1148-1149 [124 Cal.Rptr.2d 373, 52 P.3d 572]; People v. Sims, supra, 5 Cal.4th at p. 434), but argues those decisions are no longer applicable because Proposition 18 (as approved by voters, Primary Elec. (Mar. 7, 2000)) amended the lying-in-wait special circumstance so that its language now more closely follows the language used to define lying-in-wait first degree murder. (See § 190.2, subd. (a)(15), Stats. 1998, ch. 629, § 2.) Bonilla was independently death eligible under the murder-for-financial-gain special circumstance. (§ 190.2, subd. (a)(1).) He does not challenge that circumstance’s constitutionality. Consequently, we need not consider Bonilla’s argument that the lying-in-wait special circumstance fails to adequately narrow the pool of death-eligible crimes, as in this case the circumstance was superfluous for purposes of death eligibility and did not alter the universe of facts and circumstances to which the jury could accord aggravating weight. (See Brown v. Sanders (2006) 546 U.S. 212, 222-223 [163 L.Ed.2d 723, 126 S.Ct. 884].) In addition, Harris was killed before Proposition 18 took effect, and Bonilla’s jury was instructed based on the language of section 190.2, former subdivision (a)(15). Consequently, we need not consider the impact of Proposition 18 and express no opinion on its constitutionality. II. Joint Guilt and Penalty Phase Claims A. Prosecutorial Misconduct: Vouching for Witness Credibility During opening and closing argument at both the guilt and penalty phases, the prosecutor referred to the terms of star witness Bradley Keyes’s plea agreement, an agreement that required Keyes to testify truthfully. Bonilla now argues these references constituted impermissible vouching, in violation of his rights to due process and a fair and reliable capital trial. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 17.) We conclude (1) Bonilla’s claims are partially waived, and (2) they in any event fail on the merits because the prosecutor’s arguments were no more than permissible comment about inferences the jury could draw from evidence in the record. During his guilt phase opening argument, the prosecutor read the terms of Keyes’s plea agreement to the jury. The agreement repeatedly provided it was contingent on Keyes’s truthfulness. During guilt phase closing argument, the prosecutor returned to the subject of Keyes’s plea agreement and the circumstances under which it was entered. The prosecution had a bird in the hand, Keyes; it had to choose between prosecuting Keyes and letting two birds in the bush, Nichols and Bonilla, off the hook for lack of evidence or “making a deal with the devil. But at least you are attempting to bring to justice the persons that are involved in the case, all of them. [ft] . . . [f] He is lucky. Brad Keyes is lucky. He ought to be sitting here with these two. He ought to be facing the same charges, but he is not. But the agreement says he has got to testify truthfully, otherwise there is no deal. That is the trade-off.” (Italics added.) The prosecutor later recounted Keyes’s initial shifting stories and false statements, then addressed his preliminary hearing testimony: “And then when he gets to the preliminary hearing .... [h]e talks. He is consistent with regard to three trips and things that are going on, but what he does reveal now is what really was said during all of those meetings and trips. And they got to cross-examine him about that. And what it really amounted to from his [perspective] is he has got to testify under oath, otherwise his deal doesn’t work. It has got to be truthful, [ft] You know, when he testified in front of Judge Margulies and still at that point still denied, knowing about the plot, but when he gets to the preliminary hearing where now it is crunch time and he resolves in his own mind that he has got to tell the truth, the full truth, he goes that extra step and talks about things that were said.” (Italics added.) And later: “Once we get into the court and Brad Keyes testifies and they cross-examine the hell out of him, and his story holds up under cross-examination because he was telling the truth about what happened, then we get a shift.” (Italics added.) The prosecutor closed his summation by pointing again to Keyes’s testimony: “There’s two theories you can reach for. You can reach first degree murder under a lying in wait or premeditated theory. And they both apply because they are both there, [ft] And it is clearly, based on what you hear in these tapes and based upon what Brad Keyes said, it is a murder for hire, murder for financial gain.” During penalty phase opening argument, the prosecutor again read the terms of Keyes’s agreement to the jury, including the fact the prosecutor had personally signed it. Finally, during his closing argument, the prosecutor addressed Keyes’s credibility: “You know, Keyes lied about his intent [to others outside the courtroom]. There is no question about that, and you heard him testify about that, but [defense counsel] want you to believe . . . that Brad Keyes was spoon-fed all this information so that we could elevate this case beyond what it was. [ft] Well, that is ludicrous, because one of the things they talk about is this issue of cross-examination. You saw the stacks of transcripts from the preliminary hearing, the first trial, and an equal size stack now with respect to all the questions that were asked of Brad Keyes. And we know from everything we have heard in this case there were three trips down there, as he says. H] You know [from] everything we have heard in this case that they went to various different motels, and he was able to remember which ones they went to. You know that there were motel receipts showing where they stayed. We know there were rental cars used, all the records show that, The thing he was not filling in were some of the conversations, and he explained to you why. But you got them all on the tapes. They are all in there talking about it, alibis, plans, how we were going to take these businesses over and do all these other kind of stuff, and it is all right there. ... [1] [Defense counsel] wanted to talk about pieces of paper with respect to Brad Keyes, [ft] Here is a piece of paper. This is a piece of paper, his agreement. He violates it, it is void. There is no question about that.” (Italics added.) To preserve a claim of prosecutorial misconduct during argument, a defendant must contemporaneously object and seek a jury admonition. (People v. Demetrulias (2006) 39 Cal.4th 1, 30-31 [45 Cal.Rptr.3d 407, 137 P.3d 229]; People v. Boyette (2002) 29 Cal.4th 381, 432 [127 Cal.Rptr.2d 544, 58 P.3d 391]; People v. Bradford (1997) 15 Cal.4th 1229, 1333 [65 Cal.Rptr.2d 145, 939 P.2d 259].) Bonilla concedes he never objected to any of the instances of alleged vouching during his guilt phase trial. He nevertheless argues these omissions should be excused because (1) the trial court overruled objections two years later, when counsel finally objected during the second penalty phase trial, thereby demonstrating that any objections in the earlier guilt phase would have been futile (see Boyette, at p. 432), and (2) this case was close (see People v. Green (1980) 27 Cal.3d 1 [164 Cal.Rptr. 1, 609 P.2d 468]). We have never expanded the futility exception to encompass a situation where, as here, the defendant made a belated objection after forgoing multiple earlier opportunities to object, and we decline to do so here. As for the “close case” exception, we soundly repudiated it in the very case Bonilla cites (id. at pp. 27-34, overruling People v. Berryman (1936) 6 Cal.2d 331 [57 P.2d 136]), and we decline to resuscitate it here. Accordingly, we hold Bonilla forfeited his guilt phase claims on appeal. We reject Bonilla’s guilt and penalty phase claims on the merits as well. It is misconduct for prosecutors to bolster their case “by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it.” (People v. Huggins (2006) 38 Cal.4th 175, 206-207 [41 Cal.Rptr.3d 593, 131 P.3d 995].) Similarly, it is misconduct “to suggest that evidence available to the government, but not before the jury, corroborates the testimony of a witness.” (People v. Cook (2006) 39 Cal.4th 566, 593 [47 Cal.Rptr.3d 22, 139 P.3d 492].) The vice of such remarks is that they “may be understood by jurors to permit them to avoid independently assessing witness credibility and to rely on the government’s view of the evidence.” (Ibid.) However, these limits do not preclude all comment regarding a witness’s credibility. “ 1 “[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.” ’ ” (People v. Ward (2005) 36 Cal.4th 186, 215 [30 Cal.Rptr.3d 464, 114 P.3d 717].) “[S]o long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,’ her comments cannot be characterized as improper vouching.” (People v. Frye (1998) 18 Cal.4th 894, 971 [77 Cal.Rptr.2d 25, 959 P.2d 183]; accord, Ward, at p. 215.) The prosecutor’s challenged remarks all fall within this wide latitude. The prosecutor read the contents of Keyes’s plea agreement during each opening argument, but it was permissible to advise the jury of this information: “ ‘[W]hen an accomplice testifies for the prosecution, full disclosure of any agreement affecting the witness is required to ensure that the jury has a complete picture of the factors affecting the witness’s credibility.’ ” (People v. Fauber (1992) 2 Cal.4th 792, 821 [9 Cal.Rptr.2d 24, 831 P.2d 249], quoting People v. Phillips (1985) 41 Cal.3d 29, 47 [222 Cal.Rptr. 127, 711 P.2d 423]; accord, People v. Frye, supra, 18 Cal.4th at p. 971.) His remaining remarks about Keyes’s credibility during his two closing arguments were equally permissible. They fall into three categories: arguments that Keyes should be believed because he had an incentive to tell the truth under the terms of his plea agreement; arguments he should be believed because, despite extensive cross-examination, his preliminary hearing and trial testimony were consistent; and arguments he should be believed because other evidence in the record corroborated his testimony. These were arguments from the evidence, suggesting reasonable inferences the jury could draw that might lead it to credit Keyes’s testimony. They did not suggest the prosecutor had personal knowledge of facts outside the record showing Keyes was telling the truth. Nothing in the challenged remarks invited the jury to abdicate its responsibility to independently evaluate for itself whether Brad Keyes should be believed. There was no prosecutorial misconduct. B. Circumstantial Evidence Instruction (CAUIC No. 2.01) At both the guilt and penalty phases, the jury was instructed with CALJIC No. 2.01, a standard instruction on the treatment of circumstantial evidence. The last paragraph of the instruction provided: “If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.” Bonilla contends this instruction violated his state and federal due process rights, jury trial rights, and right to a reliable capital trial (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, 17) because (1) it compelled the jury to accept any reasonable interpretation of the evidence, and thus convict him based on a standard of proof of less than beyond a reasonable doubt, and (2) it impermissibly shifted the burden of proof to Bonilla by granting the prosecution a rebuttable presumption that any reasonable interpretation of the evidence it proffered was correct unless Bonilla could produce a competing alternate reasonable interpretation. We have repeatedly rejected both arguments. CALJIC No. 2.01 does not alter the burden of proof, nor does it create a mandatory presumption of guilt. (E.g., People v. Koontz (2002) 27 Cal.4th 1041, 1084-1085 [119 Cal.Rptr.2d 859, 46 P.3d 335]; People v. Kipp, supra, 18 Cal.4th at pp. 374-375; People v. Crittenden (1994) 9 Cal.4th 83, 144 [36 Cal.Rptr.2d 474, 885 P.2d 887].) Bonilla offers no persuasive reason to reconsider our settled interpretation of CALJIC No. 2.01, and we decline to do so. III. Penalty Phase Retrial Claims A. Failure to Strike Jurors for Cause Bonilla contends the trial court erred by refusing to strike for cause two prospective jurors, James B. and Robert E, who he contends indicated they would automatically vote for death if first degree murder were proven. “The state and federal constitutional guarantees of a trial by an impartial jury include the right in a capital case to a jury whose members will not automatically impose the death penalty for all murders, but will instead consider and weigh the mitigating evidence in determining the appropriate sentence.” (People v. Weaver (2001) 26 Cal.4th 876, 910 [111 Cal.Rptr.2d 2, 29 P.3d 103]; accord, People v. Crittenden, supra, 9 Cal.4th at pp. 120-121.) However, a “juror may be challenged for cause based upon his or her views concerning capital punishment only if those views would ‘prevent or substantially impair’ the performance of the juror’s duties as defined by the court’s instructions and the juror’s oath.” (Crittenden, at p. 121, quoting Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct. 844].) “ ‘Assessing the qualifications of jurors challenged for cause is a matter falling within the broad discretion of the trial court. [Citation.] The trial court must determine whether the prospective juror will be “unable to faithfully and impartially apply the law in the case.” [Citation.] A juror will often give conflicting or confusing answers regarding his or her impartiality or capacity to serve, and the trial court must weigh the juror’s responses in deciding whether to remove the juror for cause. The trial court’s resolution of these factual matters is binding on the appellate court if supported by substantial evidence. [Citation.] “[W]here equivocal or conflicting responses are elicited regarding a prospective juror’s ability to impose the death penalty, the trial court’s determination as to his true state of mind is binding on an appellate court. [Citations.]” [Citation.]’ ” (People v. Boyette, supra, 29 Cal.4th at p. 416; accord, People v. Moon (2005) 37 Cal.4th 1, 14 [32 Cal.Rptr.3d 894, 117 P.3d 591].) To preserve an objection to the trial court’s failure to excuse a juror for cause, a defendant must (1) exercise a peremptory challenge against the juror in question, (2) exhaust all peremptories, and (3) express dissatisfaction with the jury as finally empanelled. (People v. Ramirez (2006) 39 Cal.4th 398, 448 [46 Cal.Rptr.3d 677, 139 P.3d 64]; People v. Avila (2006) 38 Cal.4th 491, 539 [43 Cal.Rptr.3d 1, 133 P.3d 1076]; People v. Weaver, supra, 26 Cal.4th at pp. 910-911; People v. Crittenden, supra, 9 Cal.4th at p. 121.) It is undisputed Bonilla exercised peremptories against both James B. and Robert F. and eventually exhausted both his individual and joint peremptories, but the People contend Bonilla forfeited his claim by failing to adequately express dissatisfaction. The record is ambiguous. After the jury was selected, counsel for Nichols reiterated that various challenges for cause had been denied; that he had sought additional peremptories; and that, had he had additional peremptories, he would have used them on one or more jurors who were ultimately empanelled. He concluded: “So the record should reflect I object to the panel as chosen, and I made every attempt to obtain additional challenges when I exhausted my individual and joint challenges.” Counsel for Bonilla added only the following: “For the record, we used two challenges. One on Mr. [F] and one on Mr. [G.] They are the ones I called to the Court’s attention, both of whom have [vacations] that [conflict] with our trials.” We need not decide whether this ambiguous statement was intended to piggyback on Nichols’s counsel’s objections and express similar dissatisfaction with the final composition of the jury. Even if it were not, and Bonilla’s claims consequently might be subject to a procedural bar, we have acknowledged that the law on the need to express dissatisfaction was in a state of flux until late 1994, after Bonilla’s mid-1994 penalty retrial jury selection. (See People v. Boyette, supra, 29 Cal.4th at p. 416; People v. Weaver, supra, 26 Cal.4th at p. 911.) On that basis, we declined to enforce a procedural bar in Boyette and Weaver, and we do so again here. On the merits, the People do not defend the trial court’s failure to excuse Prospective Jurors James B. and Robert E, arguing instead that this case is analogous to People v. Boyette, supra, 29 Cal.4th at pages 417-419, in which we found error in the trial court’s refusal to excuse a juror for cause, but ultimately found the error harmless. Without deciding whether there was error, we agree Bonilla has failed to demonstrate prejudice from the refusal to excuse James B. and Robert F. Because Nichols and Bonilla exercised joint peremptory challenges against James B. and Robert E, they did not sit on the jury. The harm from any theoretical error was thus confined to the loss of additional peremptory challenges. (See People v. Avila, supra, 38 Cal.4th at p. 540; People v. Yeoman (2003) 31 Cal.4th 93, 114 [2 Cal.Rptr.3d 186, 72 P.3d 1166].) “[T]he loss of a peremptory challenge in this manner ‘ “provides grounds for reversal only if the defendant exhausts all peremptory challenges and an incompetent juror is forced upon him.” ’ ” (Yeoman, at p. 114.) Bonilla contends he was subjected to just this harm because Juror Dario L. was seated after Bonilla had exhausted all his peremptories. But while Bonilla asserts he challenged Dario L. for cause, the record reflects no such challenge. Thus, as in Yeoman, Bonilla was not forced to accept a juror incompetent under Wainwright v. Witt, supra, 469 U.S. 412, and can show no prejudice. Accordingly, we reject his argument that the refusal to excuse jurors for cause violated his constitutional rights. B. Wheeler/Batson Motions During jury selection at the penalty phase retrial, Bonilla objected to the prosecution’s use of peremptory challenges to excuse women, Hispanics, and African-Americans. The trial court considered and rejected these motions, concluding Bonilla had failed to make out a prima facie case that the prosecution was engaged in impermissible discrimination. The jury as seated included no African-Americans, one Hispanic, and five women. Bonilla renews these claims on appeal. We find no error. Both the state and federal Constitutions prohibit the use of peremptory challenges to exclude prospective jurors based on race or gender. (People v. Wheeler (1978) 22 Cal.3d 258, 276-277 [148 Cal.Rptr. 890, 583 P.2d 748]; Batson v. Kentucky (1986) 476 U.S. 79, 97 [90 L.Ed.2d 69, 106 S.Ct. 1712]; J. E. B. v. Alabama ex rel. T. B. (1994) 511 U.S. 127, 130-131 [128 L.Ed.2d 89, 114 S.Ct. 1419].) Such a use of peremptories by the prosecution “violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution.” (People v. Avila, supra, 38 Cal.4th at p. 541.) There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination. (Purkett v. Elem (1995) 514 U.S. 765, 768 [131 L.Ed.2d 834, 115 S.Ct. 1769]; People v. Griffin (2004) 33 Cal.4th 536, 554 [15 Cal.Rptr.3d 743, 93 P.3d 344]; People v. Johnson (2003) 30 Cal.4th 1302, 1309 [1 Cal.Rptr.3d 1, 71 P.3d 270], overruled on other grounds in Johnson v. California (2005) 545 U.S. 162 [162 L.Ed.2d 129, 125 S.Ct. 2410].) To do so, a defendant must first “make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citation.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial [or gender] exclusion’ by offering permissible race-neutral [or gender-neutral] justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral [or gender-neutral] explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful. . . discrimination.’ [Citation.]” (Johnson v. California, at p. 168, fn. omitted.) The same three-step procedure applies to state constitutional claims. (People v. Bell (2007) 40 Cal.4th 582, 596 [54 Cal.Rptr.3d 453, 151 P.3d 292].) Ordinarily, we review the trial court’s denial of a Wheeler!Batson motion deferentially, considering only whether substantial evidence supports its conclusions. (People v. Avila, supra, 38 Cal.4th at p. 541.) However, the United States Supreme Court recently concluded that California courts had been applying too rigorous a standard in deciding whether defendants had made out a prima facie case of discrimination. (See Johnson v. California, supra, 545 U.S. at pp. 166-168 [holding the requirement a defendant show a “strong likelihood,” rather than a “reasonable inference,” of discrimination was inconsistent with Batson and the federal Constitution].) In cases where the trial court found no prima facie case had been established, but whether it applied the correct “reasonable inference” standard rather than the “strong likelihood” standard is unclear, “we review the record independently to ‘apply the high court’s standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror’ on a prohibited discriminatory basis.” (People v. Bell, supra, 40 Cal.4th at p. 597; accord, People v. Williams (2006) 40 Cal.4th 287, 310 [52 Cal.Rptr.3d 268, 148 P.3d 47]; see People v. Avila, supra, 38 Cal.4th at pp. 553-554.) In deciding whether a prima facie case was stated, we consider the entire record before the trial court (e.g., People v. Yeoman, supra, 31 Cal.4th at p. 116), but certain types of evidence may be especially relevant: “[T]he party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic—their membership in the group— and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, ... the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.” (People v. Wheeler, supra, 22 Cal.3d at pp. 280-281, fti. omitted.) 1. Use of peremptories against African-Americans There were two African-Americans, Rosalind H. and David L., in the 78-person juror pool; the prosecution struck them both. Nichols made a Batson/Wheeler motion objecting to the removal of African-Americans, which Bonilla joined. The trial court denied the motion, finding “no systematic exclusion of Blacks.” We agree with the trial court that Bonilla made no prima facie showing that the two prospective African-American jurors were challenged because of their race. Bonilla relies principally on the fact that all African-Americans—two of two—were struck from the juror pool. It is true the prosecution used peremptories to challenge both African-Americans in the pool, but “the small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible. ‘[E]ven the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.’ ” (People v. Bell, supra, 40 Cal.4th at p. 598, quoting People v. Harvey (1984) 163 Cal.App.3d 90, 111 [208 Cal.Rptr. 910]; see also People v. Turner (1994) 8 Cal.4th 137, 167-168 [32 Cal.Rptr.2d 762, 878 P.2d 521].) Bonilla does not contend the prosecution’s questioning of Rosalind H. and David L. was cursory or materially different from the questioning of non-African-American jurors. Nor is Bonilla African-American. Moreover, the information elicited in voir dire showed race-neutral reasons for excusing both prospective jurors. Defense counsel freely conceded, “With respect to Miss [H.] and Mr. [L.], Miss [H.] represents a close case, given the fact her husband suffered a previous [felony] conviction and her father had been convicted of killing his brother.” (See People v. Garceau (1993) 6 Cal.4th 140, 172 [24 Cal.Rptr.2d 664, 862 P.2d 664] [recognizing peremptory may be used to excuse juror whose relatives have had negative criminal justice system experiences].) The prosecutor relied on this, as well as the fact Rosalind H. felt the death penalty was randomly imposed. As for David L., the prosecutor cited questionnaire and voir dire answers that suggested hesitation about the death penalty, as well as his perception that David L. failed to respond when the court asked the prospective jurors whether they could follow the law. The trial court correctly concluded no prima facie case of group bias against African-Americans had been established. 2. Use of peremptories against Hispanics There were eight Hispanics in the juror pool. The prosecution struck three Hispanic women, Gavina D., Carla G., and Nellie D. The defense struck four Hispanic men. One Hispanic man served on the final jury. Nichols made a Batson/Wheeler motion, objecting to the use of strikes against Hispanics, and Bonilla joined the motion. The trial court denied it, concluding: “On this record, I make a finding there was no attempt to discriminate