People v. Fuiava (53 Cal. 4th 622, 2012)

Opinion

CANTEL-SAKAUYE, C. J.

After a jury trial, defendant Freddie Fuiava was convicted of the first degree murder of Los Angeles County Deputy Sheriff Stephen Blair (Pen. Code, § 187, subd. (a)), and the premeditated attempted murder of Blair’s partner, Deputy Robert Lyons (§§ 664, subds. (a) & (e), 187, subd. (a)). The jury found true the two special circumstance allegations that the murder of Deputy Blair was committed for the purpose of avoiding and preventing a lawful arrest (§ 190.2, subd. (a)(5)), and that Blair was a peace officer engaged in the performance of his duties when defendant knowingly and intentionally killed him (§ 190.2, subd. (a)(7)). Additionally, the jury found true the allegations that defendant personally used a firearm in the murder and attempted murder (§ 12022.5, subd. (a)), had been previously convicted of a serious felony (§ 667, subd. (a)(1)), and had served two prior prison terms (§ 667.5, subd. (b)). The jury returned a verdict of death for the murder of Deputy Blair. The trial court denied defendant’s motion for new trial and the automatic application to modify the verdict (§ 190.4, subd. (e)), and sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. Facts

A. Guilt Phase

There was no dispute at trial that defendant shot and killed Deputy Blair. The evidence concerning the circumstances of the shooting, however, was conflicting. The prosecution’s theory of the case was that defendant, a convicted felon who was carrying two handguns in violation of the law (see former § 12021, subd. (a)(1)) and the conditions of his parole, opened fire on the deputies in order to avoid being arrested and returned to prison. The defense version of the events was that Deputy Blair instigated the gunfight by shooting at an unarmed friend of defendant’s, and then turned his weapon on defendant when defendant tried to intervene—and that defendant fired only at Blair (not at Deputy Lyons) in order to protect his friend and himself from Deputy Blair’s attack.

1. Prosecution Evidence

Deputy Lyons testified that in 1995, he and Deputy Blair served in a gang enforcement detail within the sheriff’s department. For the evening of Friday, May 12, 1995, the gang detail was assigned to conduct a saturation patrol in the area surrounding the sheriff’s department’s Century Station, which included the City of Lynwood. A saturation patrol meant that, in addition to the normal patrol deputies in the area, the 50 deputies in the gang detail, wearing standard sheriff’s department uniforms and patrolling in 25 marked patrol vehicles, also would be in the area, investigating and responding to gang-related incidents. Before beginning their patrol duties, the gang detail received a briefing concerning recent gang activity in the area, including information regarding a gang known as “Young Crowd.” The deputies were shown photographs of an inoperable pickup truck that recently had been recovered from the yard of a Young Crowd gang member. The passenger side door of the truck had been painted to resemble a sheriff’s department patrol vehicle—the area around the white door had been painted black, and the word “SHERIFF” and a six-pointed star had been painted on the door. Also written on the door were the phrases “THE CROWD bE [sic] ALL YOU CAN BE,” “FUCK THE” with arrows pointing to the word “SHERIFF,” “DON’T HIDE BEHIND THE BAGE [sic] FOOLS,” “FUCK THE SHERRIFFS [sic],” and “THE CROWD’S GONNA GET YOU!” The door and the area around it had a number of holes in the metal that resembled bullet holes. The deputies were told that a number of firearms, including an AK-47 assault rifle and a shotgun, were found inside the house in front of which the truck had been parked.

Lyons testified that shortly before 8:00 p.m. on May 12, 1995, when it was approaching dusk, he and Blair were patrolling in Lynwood. Blair was driving because he was more familiar with the area, having worked out of the former Lynwood Station. As the deputies approached an intersection, Lyons recognized they were in the area described during the briefing as Young Crowd territory. Blair turned onto Walnut Avenue, a residential street that dead-ended at a park. Lyons saw two young men, who he believed might be gang members based on the clothes they were wearing, standing together on the sidewalk approximately 50 feet in front of the patrol car. Lyons noticed the two men glance over their shoulders at the patrol car for an instant, and then start walking toward the park, in the same direction that the deputies were traveling. Lyons testified that seconds later, the shorter of the two men reached into his jacket pocket, removed a large object, and threw the object over his shoulder—in a motion similar to a “hook shot” in basketball—into a yard. Lyons said to Blair, “We have a toss,” meaning that he suspected the man had thrown either a weapon or drugs. After throwing the item, the shorter man stopped walking, while the taller man continued walking toward the park at an increased pace.

Lyons testified that Blair said, “You get the shorter guy, I’ll get the taller guy,” and pulled the patrol car over approximately five feet in front of the shorter man, who had thrown the item. Lyons started to get out of the car before it completely stopped because he was expecting the shorter man to run away. After taking a couple of steps toward the front of the patrol car, Lyons heard a series of five rapid gunshots and what he believed to be bullets traveling by him to his left. Lyons testified he was not able to tell from which direction the shots came, but he initially thought the gunfire had come from behind him. Lyons looked toward the other side of the police car and saw that Blair, who was right handed, had his right hand on top of the door and was pulling himself out of the car. Lyons then saw Blair start to reach for his sidearm and crouch down in a defensive position. Lyons also crouched down and drew his weapon, observing that the taller man was sprinting toward the park, while the shorter man remained in front of the patrol car. Lyons began moving toward the rear of the patrol car, and heard a second, slower series of approximately eight gunshots. He thought that these gunshots, which sounded different from the first set, were coming from in front of him, and could have been Blair shooting at a truck parked to the side of the patrol car. These shots sounded as if they had been fired by a gun different from the first, and more like shots fired from the standard-issue nine-millimeter pistols the deputies carried. Lyons called to Blair, but received no response. After circling around the rear of the patrol car, Lyons saw the unresponsive Blair facedown on the pavement, bleeding from the mouth. Blair’s service weapon, which had been fired, was in his right hand. He was transported to a hospital, but died from two gunshot wounds.

Deputy Blair had been shot once in the neck and once in the shoulder by the same .44-caliber handgun. One of the bullets severed his aorta, which would have caused the immediate cessation of blood flow to his organs. A person suffering such an injury, however, could engage in “purposeful activity,” including firing a weapon, for possibly as long as six seconds after the wound was inflicted. The trajectories of the bullets passing through Blair’s body were consistent with his leaning forward and turning when he was hit.

Five nine-millimeter shell casings ejected from Blair’s sidearm were found on the ground near the driver’s side of the patrol car. The locations of the casings were consistent with their having been ejected from the gun as it was fired in the direction of a tree located between the patrol car and the park, toward which the taller of the two men had been walking when Blair stopped the car. Lyons testified that Blair was rated a “distinguished expert” in marksmanship with his service weapon, meaning he had scored in the 280 range out of 300 possible points in the sheriff’s department’s firearms qualification examination, which involved target shooting at a distance of 25 feet.

A loaded .45-caliber pistol was found in the yard adjacent to where the patrol car had stopped. Sheriff’s investigators found two possible bullet impact marks on a house behind the patrol car, which, if the bullets had been fired from a location near the tree where the taller person was, would have passed close to the left side of Lyons’s head when he got out of the car.

An off-duty police officer from the Long Beach Police Department testified he was in the park located at the end of Walnut Avenue on May 12, 1995. He heard approximately four gunshots fired in rapid succession, and then approximately five to 10 seconds later, a second round of gunshots that was louder than the first set. He could hear the bullets from the second group of shots passing over his head.

Renele Brooks testified she was standing in a yard on Walnut Avenue when she heard several gunshots. She saw a police car and a person on the sidewalk running away from the car toward her location and the park at the end of the street. After Brooks heard more gunshots and felt bullets passing by her head, she ran into a house.

Sergeant Bruce Hams, a firearms expert in the sheriff’s department, testified that in circumstances such as the shooting of Deputy Blair, it would be very difficult for a person to identify what caliber of weapon was fired at any given point during the incident, because of the many variables involved, including different gunpowder loads between rounds for the same caliber gun, the effect of the surrounding buildings on the sounds, and the direction in which the weapon was aimed when it was fired. It would not necessarily be the case that a larger caliber handgun, such as a .44, would sound louder to a person than a smaller one, such as a nine-millimeter pistol. In Sergeant Harris’s experience, it also was not uncommon for deputies participating in simulated gunfight exercises to misperceive the direction from which shots had been fired.

Renele Brooks and Sara Frausto knew defendant, and testified he was a member of the Young Crowd gang. Defendant’s nickname within the gang was “Smokey.” When defendant was staying at Brooks’s house in the City of Fontana in the days following the shooting of Deputy Blair, Brooks and Frausto participated in or overheard several conversations regarding the incident. Brooks testified that, contrary to her initial statements to the police that she knew nothing concerning the shooting, she heard defendant say he and Ernesto Avila, another Young Crowd member, were walking down Walnut Avenue when the patrol car pulled up and an officer said, “Let me see those hands guys.” Defendant had two guns with him and told Avila to be “cool,” but Avila threw his gun into a yard. According to Brooks, defendant said all he could think of at that point was “going to jail for the rest of his life” because he “had two strikes,” and his being armed with two guns would result in a third strike against him, and, Brooks relayed, he explained that he therefore shot at the deputies because he was not going to spend the rest of his life in jail for that “bullshit.” Brooks recounted that defendant never mentioned that he shot the deputy in order to protect Avila or himself. Defendant told Brooks that if the police raided the house looking for him, she should tell them he was in the back of the house with a gun, seemingly implying he wanted the police to kill him because he did not want to go back to prison. Brooks testified she initially lied to the police regarding her lack of knowledge concerning the shooting because she was afraid of retaliation from Young Crowd members. She later decided to tell the police what she knew because she thought they had already learned that defendant was the one who shot the deputy. Brooks explained that she had moved before the trial and the sheriff’s department had paid a portion of her relocation expenses.

Frausto also testified—contrary to her initial statements to the police that she did not know anything about the shooting—that she told defendant she knew he had shot the deputy and defendant replied he had done so because he “didn’t want to go back to jail.” According to Frausto, defendant told her that if the police came to Brooks’s house looking for him, “he would go into the restroom, and he would kill himself before the cops got to him.” As was the case with Brooks, Frausto testified she lied to the police at first due to fear of retaliation, but she eventually told them what she knew after she thought they had already identified defendant as the shooter. She also testified that she had relocated before the trial with the assistance of the sheriff’s department.

Defendant was arrested in late May 1995, while he was driving a car away from a house in Fontana. Two deputies stopped defendant, while other deputies stopped traffic on the road. Defendant initially complied with the deputies’ orders to exit the vehicle and lie on the ground. After one of the deputies placed a handcuff on one of defendant’s wrists, however, defendant stood up and began struggling. One of the deputies was armed with an M-16 assault rifle, and defendant grabbed the barrel of the weapon and tried to pull it away from the deputy. Eventually, the deputies who had been controlling traffic rushed to the scene and swarmed defendant, eventually subduing and restraining him. A deputy testified that as they were handcuffing him, defendant said, “Kill me, just fucking kill me.”

While in jail after his arrest, defendant participated in a conversation with his mother and sister that was monitored and recorded pursuant to a court order. The conversation was in Samoan, and an English translation was read to the jury during the trial. Defendant said he was displeased with his mother because he had told his attorney he had an alibi for the time of the shooting (that he was asleep at home the entire night), but his mother had contradicted the alibi when she talked to the police. Defendant discussed with his mother and his sister how they and other people could provide an alibi by telling the police defendant was at home at the time of the shooting. Defendant told his sister, “if I am caught in this case, I’m not spending my whole life here in jail. I’m going to the chair.” Defendant blamed what happened on Avila’s decision to throw his gun away; defendant thought that if Avila had not done so and instead had “kept on walking, the police wouldn’t come to us. But he got scared man. He panicked. He threw his gun. That’s why the police came to us. ... HO .. . [1] You know, I had two guns. If they found those, it’s all over. I don’t know what would have happened. They probably shoot me. You know, they just shot my friend, what three days before that. ...” At no time during this ostensibly private conversation did defendant tell his mother or sister that the deputy had shot at Avila first or that defendant shot back to protect Avila and himself.

The prosecution presented documentary evidence establishing that defendant had two prior convictions for assault with a firearm, one in 1989 and one in 1992, had served prison terms for those convictions, and was on parole when Deputy Blair was killed. Under the terms of defendant’s parole, he was, among other restrictions, prohibited from possessing any firearm or having any contact with any Young Crowd members. Defendant’s parole agent testified that he had stressed the firearms prohibition to defendant because defendant’s prior convictions involved the use of firearms, and had explained to defendant that if he violated his parole he would be returned to prison.

2. Defense Evidence

Ernesto Avila testified that he and defendant were members of the Young Crowd gang. According to Avila, at approximately 8:00 p.m. on May 12, 1995, he was standing in front of his house on Walnut Avenue talking to his young daughter Melissa and her friend, Charlotte, when defendant passed by, walking in the direction of the park. Avila also was planning to go to the park in order to “hang out” with other Young Crowd members, and he told defendant he would see him there in a few minutes. Avila then told his daughter to go inside, and began walking toward the park when he heard the sound of squeaking car brakes coming from Duncan Avenue. Avila looked behind him and saw a police car coming toward him on Walnut Avenue. Avila was carrying a .45-caliber pistol, which was a violation of his parole, so he threw the gun into a nearby yard, hoping the police would not arrest him. The patrol car, however, pulled over to the curb, so Avila turned around, put his hands at his side, and asked, “What’s up?” According to Avila, the driver’s door quickly opened and Deputy Blair, whom Avila recognized from previous interactions, jumped out with his sidearm drawn. Avila perceived from the look on Blair’s face that Blair intended to shoot him, so Avila ducked down and ran back toward his house, away from the park. As he did so, Avila heard someone yell, “Hey,” and then heard an exchange of gunfire that sounded as if it was coming from two different weapons. Avila ultimately testified during cross-examination that he did not see who shot first. Avila also acknowledged that he had previously told the investigating deputies and his parole agent that he was taking a shower in his house when the shooting occurred.

Douglas Bristol testified that on the evening of the shooting he was in the yard of a house on Walnut Avenue near the park when he saw the police car pull to the curb in front of Avila. According to Bristol, the driver jumped out of the car immediately after it stopped, with a gun in his hand, and then began shooting at Avila. Defendant, who was near a tree closer to the park, had his empty hands out and was yelling, “Hey, hey, hey,” or “Whoa, whoa, whoa.” The officer then turned toward defendant and fired several more shots. These shots passed over Bristol’s head; he ducked and ran out of the yard. As he was running, Bristol heard an exchange of gunfire that sounded as if it came from two different guns.

Charlotte Bristol, who was six years old at the time of the trial, testified that she was playing on Walnut Avenue with Melissa when she witnessed a shooting. Her testimony concerning the circumstances of the shooting was unclear and conflicting. She said the officer was the first one to fire his gun, first shooting straight ahead at “one of the homeboy’s friends” and then to the left toward where she was (that is, away from the park), before “one of the homeboys” shot him in the back. Charlotte at first testified, repeatedly, that Melissa’s father Ernie (i.e., Avila) and Smokey (i.e., defendant) were "not there when the shooting occurred. She subsequently testified, however, that she saw Ernie and Smokey running away from the park after they saw the police, before the shooting started. Charlotte said she knew the person who was running with Ernie was named Smokey, but she refused to identify defendant as Smokey, and said she knew only the person’s name, although she also said she would know him if she saw him. She initially said the police officer was not shooting at Ernie, but then said the officer did shoot at Ernie, after shooting at “the homeboy.” According to Charlotte, the officer’s back was toward her when he commenced shooting, and he was falling down when he shot at Ernie.

Defendant testified that at approximately 8:00 p.m. on May 12, 1995, he retrieved two handguns—a .44 caliber and a nine millimeter—that had been hidden under Avila’s house on Walnut Avenue. According to defendant, he was walking down Walnut toward another gang member’s house near the park at the end of the street when he saw flashing lights and a police car “swoop up on” Avila. He took a few more steps toward the park, and then heard a gunshot. Defendant turned and saw a police officer pointing his sidearm at Avila, while Avila was ducking and running along the sidewalk. Defendant yelled, “Hey man, what the fuck?” at the officer, who then turned toward defendant and immediately began shooting in his direction. The first bullet passed close to defendant’s head, which caused him to fall back into a fence. As the officer continued shooting at defendant, defendant took out the .44-caliber handgun and shot all five rounds in the gun at the officer, because he believed “that fool was trying to kill me.” Defendant denied having shot at the other deputy.

Defendant testified that after he fired at the officer, the officer fell to the ground and defendant ran. He said he went to Martin Luther King Jr. Boulevard, where he was able to flag down someone he knew who was driving by, and obtained a ride to the City of Downey, where he spent the night at a friend’s house. During cross-examination the following day, however, defendant admitted that he had lied in his testimony regarding where he went after the shooting, and that he, in fact; spent the night in a house near the park at the end of Walnut Avenue. Defendant testified he gave the .44-caliber gun to a friend so it could be disposed of, and he sold the nine millimeter and transported some marijuana for drug dealers in order to make some money so he could travel to Mexico.

According to defendant’s testimony, during his arrest he began to struggle with the deputies because he thought they were planning to kill him. Defendant testified he heard the deputies speaking of the bystanders who witnessed the arrest, and one of the deputies said, “Damn, if there weren’t so many witnesses.” It was at that point that defendant yelled at the deputies, “go ahead motherfuckers, kill me.”

Defendant denied he had told anyone at Renele Brooks’s house that he shot at the deputies because he did not want to go back to prison. He testified that at the time of the shooting he was not “really paying attention to the [Three] Strike[s] law,” and did not know whether his prior convictions for assault with a firearm would count as strikes. He did, however, know he would go back to jail if the deputies found the guns he was carrying. Defendant testified that at the time of the trial, he knew he, in fact, had only one strike.

Defendant testified he did not go to the police after the shooting because he did not think they would believe that Deputy Blair initiated the gun battle. He also did not think self-defense could constitute a legal defense to shooting a police officer, even if the officer was the aggressor. Defendant said he was afraid the police would kill him if he turned himself in. Defendant acknowledged at trial that he told his mother he was with Avila when Avila threw his gun away, but testified that he, in fact, was not with Avila and did not see him throw the gun. When he had the conversation in jail, defendant thought he could lie his way out of any trouble because the police could not place him at the scene, and he did not want to tell his mother what really happened. Defendant testified he had, however, told his sister that “a cop tried to smoke me and my homey that night, and that’s why he ended up getting killed.”

Defendant testified regarding the first of his two convictions for assault with a firearm that the victim had been “messing around with [defendant’s] lady,” and one night defendant decided to “pop[] a few caps at him,” meaning defendant shot at the victim a few times. According to defendant, he was drunk and did not know what he was doing, and the shots did not hit the victim. Regarding his second conviction, defendant testified that he did not shoot the victim (other members of Young Crowd did), but he had been identified as the shooter, and he agreed to plead guilty in exchange for a sentence that was significantly less than the possible sentence he could have received. Defendant also testified on cross-examination that he confessed to a third shooting when he was 13 years old so he could “take the rap” for an older gang member who had actually committed the assault.

Avila and defendant also testified concerning the ongoing problems between members of Young Crowd and the sheriff’s department. Avila remembered there being tension between Young Crowd and the sheriff’s department since 1984 or 1985. He testified there was a group of deputies who patrolled the Lynwood area called the “Vikings,” which Avila considered to be a rival gang of Young Crowd. Avila knew the Vikings to “Shoot at people,” “Beat up people,” and “Throw gang signs” like any other rival gang. According to Avila, he personally had received “flashlight therapy” from deputies who were members of the Vikings on three or four occasions (including more than once from Deputy Blair), which entailed being hit with a flashlight for “disrespecting” the deputies. Avila knew Blair was part of the Vikings because on one occasion he had told Avila, “Fuck Young Crowd, this is the Vikings.” Avila said the Vikings had a grudge against Young Crowd members, and “every time they get one of us, . . . they want to beat us up.” According to Avila, five days before the Deputy Blair shooting, a deputy had shot a Young Crowd member in the back, which made some Young Crowd members angry at the deputies.

Defendant testified that around the time of the shooting, there was a “big problem going on” between Young Crowd and the sheriff’s deputies, because weeks before, the deputies were threatening, beating up and harassing members of the gang. In defendant’s view, the Vikings were “[j]ust a bunch of white cops that. . . mess around with the homeys all the time.” Defendant testified that on the day of the shooting, he and other Young Crowd members were speaking of the recent shooting of Jose Nieves by sheriff’s deputies, as well as another Young Crowd member who had been shot and killed by deputies in December of 1990. One of the group said they should “just blast on them fools from now on,” but somebody told that person to “shut up,” and defendant did not pay attention to the comment.

Jose Nieves testified that he was also a member of the Young Crowd gang; he was the person who was shot by sheriff’s deputies on May 7, 1995. The truck that had been painted to resemble a patrol car was parked in front of Nieves’s home. He testified that other Young Crowd members painted the truck and made the holes in the truck using a pickax, not by shooting it. According to Nieves, the search of his home (which had been discussed at the gang detail briefing on May 12, 1995), did not result in the deputies finding an AK-47 or a shotgun because there were no such weapons in the house.

Defendant also called Deputy Blair’s ex-wife, Rebecca Blair, as a witness. When asked whether Deputy Blair had a “very volatile temper,” Ms. Blair stated, “Excluding a couple of incidents, no.” She confirmed, however, that in a declaration filed in their divorce proceedings, she had stated that Deputy Blair had a very volatile temper, broke furniture when he was upset and had physically attacked her. According to the declaration, the “last incident” resulted in the police being called to their house. Ms. Blair testified on cross-examination that the declaration had been prepared by her divorce attorney, and that the volatile temper, breaking of furniture and physical attack related to a violent argument they had when Ms. Blair confronted Deputy Blair regarding the extramarital affair he was having. Ms. Blair testified she was the one who started the argument and the physical contact during the argument because she was angry about the affair and “was out of control.” Deputy Blair was trying to calm her down, and only pushed her away in order to stop her from hitting and kicking him. She thought a coffee table was broken when they both fell down during the mutual pushing. According to Ms. Blair, he was the one who called the police, and neither of them was arrested. On redirect examination, Ms. Blair testified that her statements in the declaration were misleading, because Deputy Blair exhibited a volatile temper, broke furniture and physically attacked her only during the argument regarding the affair and one previous time. She acknowledged, however, that the statements in the declaration seemed not to be so limited.

The parties stipulated that Deputy Blair had a tattoo on his leg consisting of a picture of a Viking and the letters “LXXI” above it.

3. Prosecution Rebuttal Evidence

The parole agent who supervised Ernesto Avila testified that Avila initially told her he knew nothing regarding the shooting of Deputy Blair and had been taking a shower in his house when the incident happened. Later, after Avila had been arrested under suspicion of being involved in the shooting, the agent talked to him again, and he told her he and several other Young Crowd members, including defendant, had spent the afternoon of the day of the shooting together at a gang member’s house. According to the agent, Avila told her they were “talking about how the Sheriff had been harassing them and that [there was] a lawsuit against [the department] because of the Viking gang,” and someone said that the next time the deputies harassed the gang they were going to “blast one of [the deputies].” Avila also told the parole agent, contrary to his initial statement to her, that he was outside his house right before the shooting, but went into his house when he first saw the police car approaching because he did not want any trouble, and he was inside his house when the shots were fired.

B. Penalty Phase

1. Prosecution Evidence

The prosecution presented testimony concerning four shooting incidents involving defendant. Manuel Ramirez testified that on the night of September 9, 1984, he was driving in Lynwood with several family members and a woman named Christina in his car. As they were passing a dark field, Ramirez heard what he thought were firecrackers, but someone else in the car said it was gunshots, and then Christina said she had been hit. Ramirez pulled over and saw she was bleeding from the area of her right jaw. Ramirez drove her to the hospital. Deputy Kele Kaulana Kaono testified that he interviewed defendant concerning this incident, and defendant admitted he was the one who shot at Ramirez’s car. According to Kaono, defendant said he shot at the car because he thought rival gang members were inside it.

Defendant also told Deputy Kaono he had shot at two other cars he thought contained rival gang members—one just minutes before he shot at Ramirez’s car, and another a few weeks earlier. Defendant said, essentially, that “if he believed someone was a gang member or a rival to his gang, then he shot at them.”

Deputy Matt Brady testified that in March 1992, he responded to a report of a shooting in Lynwood. The victim told Deputy Brady that a bullet had passed through the hair on her head, slightly grazing her scalp. It appeared to Deputy Brady that some of her hair had been removed and there was a mark on her skin. According to Deputy Brady, the victim’s companion at the time of the shooting subsequently identified defendant as the shooter during a lineup conducted on the street.

The prosecution also presented a number of witnesses concerning Deputy Blair’s character and the effect his death had on the witnesses, both personally and professionally. Blair’s parents, his wife and ex-wife, and his three young sons testified concerning the impact of the killing upon them, Blair’s strong devotion to his career, and how much his family missed him. Sheriff’s Deputies Lyons, Tarasiuk, and Westin testified concerning how Deputy Blair helped to make them better deputies, and helped them on a personal level as a friend. Deputy Westin testified that the Vikings were merely a tightly knit group of deputies from the Century Station, and that groups of deputies posted to other stations similarly had chosen mascots and some had received tattoos of that symbol. Westin also testified that Deputy Blair had received a number of commendations from the sheriff’s department, including one for accomplishing the arrest of a murder suspect without using deadly force, although the use of such force would have been justified.

2. Defense Evidence

Defendant’s mother, one of his brothers, three of his sisters, a sister-in-law, and three of his friends testified that defendant was loving, caring, helpful and protective toward his family and friends. Defendant had a special connection with children; he was known as “Uncle Freddie” to the children in the neighborhood. The witnesses testified it would be very hurtful to them if defendant were to be executed.

Defendant testified that he believed the jury should spare his life for his family and loved ones, those who “know me better than this jury does and better than anybody who came up here and tried to make me out to be the monster that they tried to make me out to be.” He added, “Those who love me and care about me know the real me, the person that ain’t no way in hell could have killed Deputy Blair that night in cold blood like they portrayed in this courtroom.”

II. Discussion

A. Denial of Motion for Discovery of Law Enforcement Officers’ Personnel Files

Defendant filed a pretrial motion for disclosure of information contained in the personnel files of Deputy Blair and the arresting officers—Deputies James Corrigan and Jeff Riggin—concerning any accusations that these deputies previously had committed “unnecessary acts of aggressive behavior, acts of violence and/or attempted violence, [or] acts of excessive force and/or attempted excessive force.” (See Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305]; Evid. Code, §§ 1043, 1045; see also Pen. Code, §§ 832.5, 832.7, subd. (a).) The trial court conducted an in camera hearing outside the presence of the parties, at which the custodian of records for the sheriff’s department, Deputy Gary Robertson of the Los Angeles County Sheriff’s Department Internal Affairs Bureau, testified under oath and produced one potentially responsive document. The trial court found no information should be disclosed to defendant, and ordered sealed the transcript of the hearing and the document the custodian submitted to the court. On appeal, defendant raises two challenges to the denial of his motion: first, that the trial court failed to make an adequate record before ruling on the motion because it neglected to require that the custodian specify what, if any, other documents in the personnel files were deemed to be nonresponsive to the motion and therefore were not submitted to the court, and second, that the trial court erred by not disclosing to defendant the information contained in the document submitted by the custodian. We are not persuaded.

Although the trial court did not ask the custodian whether there were other materials in the deputies’ personnel files deemed nonresponsive to defendant’s motion, and, if so, what those materials were, we conclude that in these circumstances the trial court did not err. In arguing to the contrary, defendant relies upon our statement in People v. Mooc (2001) 26 Cal.4th 1216, 1229 [114 Cal.Rptr.2d 482, 36 P.3d 21] (Mooc), that in the course of a hearing on a Pitchess motion, “[t]he custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant’s Pitchess motion.” The guidance we offered in Mooc does not establish that in this case the trial court committed reversible error by failing to have Deputy Robertson do so.

In Mooc, we did not hold that a failure to specify what documents in a file were not brought to court would, by itself, result in an inadequate record. The problem we addressed at length in Mooc was the trial court’s failure to make any record of what materials the custodian of records did bring to court, none of which the trial court ordered disclosed to the defendant. In other words, in Mooc the custodian had deemed some documents potentially responsive to the Pitchess motion, but the trial court found they were not, and appellate review of that decision was compromised because there was no record of the documents at issue. (Mooc, supra, 26 Cal.4th at p. 1230.)

The circumstances of Mooc are markedly different from those in the present case, in which there is solely an absence of a statement from the custodian addressing what other documents might have been in the deputies’ files that the sheriff’s department deemed nonresponsive. As we acknowledged in Mooc, even if custodians of records were always ordered to bring complete personnel files for the court’s review—a requirement we explicitly rejected (Mooc, supra, 26 Cal.4th at p. 1230)—there would still be the opportunity for an unscrupulous custodian improperly to withhold responsive documents from the court’s review. (Id. at pp. 1229-1230, fn. 4.) In every case, accepting the custodian’s representations concerning what is in a personnel file will be, at bottom, a credibility determination for the trial court, regardless of whether the custodian produces what purports to be the entire file in court, produces only what purport to be the potentially responsive documents, or produces what purport to be the potentially responsive documents and specifies on the record what nonresponsive documents were omitted.

Moreover, in the present case, the hearing on defendant’s Pitchess motion predated our guidance in Mooc concerning what steps ought to be taken to ensure an ideal record, and as to the one document produced in this case, the trial court properly summarized it at the hearing and included a sealed copy in the record on appeal. Accordingly, we cannot conclude the trial court’s acceptance of Deputy Robertson’s sworn representation that there was only one potentially responsive document in the deputies’ files, without requiring him to identify on the record any documents that he deemed nonresponsive, made the record in the present case so inadequate that reversible statutory or constitutional error occurred. (Cf. People v. Jackson (1996) 13 Cal.4th 1164, 1221, fn. 10 [56 Cal.Rptr.2d 49, 920 P.2d 1254] [reviewing a Pitchess claim based upon the record of the in camera proceeding although the personnel documents at issue had been destroyed].) And, as we acknowledged in Mooc, relief by way of a petition for a writ of habeas corpus would be available if defendant were to determine that documents improperly were withheld from the trial court, and defendant was prejudiced by the omission. (Mooc, supra, 26 Cal.4th at pp. 1229-1230, fn. 4.)

As to defendant’s second claim—that the trial court'erred by not disclosing information contained in the one potentially responsive document—we have reviewed the document and the trial court’s grounds for its decision, and conclude that no reversible error occurred.

B. Denial of Motion to Continue the Trial

On the day of trial, defense counsel filed a motion for a continuance of three days. The trial court denied the motion. On appeal, defendant contends the denial of the motion was an abuse of discretion that violated defendant’s constitutional right to due process of law, effective assistance of counsel, and a reliable verdict under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. This contention is without merit.

In the motion, counsel requested the continuance because “additional preparation [was] necessary.” Counsel represented that over the weekend he had had a painful tooth infection that “prevented [him] from working on [his] final trial preparation.” In addition, the defense investigator had been attending court in another case, and this had “prevented him from doing some final investigation for [counsel] that is necessary for trial.” Other than being aware of tenderness in the tooth, counsel felt he could conduct the trial, but he was planning, if possible, to have a root canal performed within the next three days to prevent a recurrence of the debilitating toothache. Counsel stated he planned “to review the evidence, to go through all the documents and everything to sort of fine tune myself to be adequately prepared,” and, more importantly, there also were “some last things for [the] investigator to do.”

The trial court noted that “this promises to be a rather short trial,” and that the court had had to make special arrangements involving “some considerable effort” in order to have a jury called in on the Monday following the Independence Day holiday. The court also observed it was unlikely that more than jury selection would be completed the first day, there would be “periods of dead time probably between now and certainly the defense case,” and defense counsel was an experienced attorney. In addition, the court stated its view that counsel’s medical condition, although at that time under control, posed a “lurking problem,” and it would be “best to get the trial over and [then counsel could] seek whatever treatment” he needed.

After the trial court stated it was denying the motion for a continuance, defense counsel requested and was granted an ex parte sidebar conference with the court so that counsel could explain what investigation still needed to be completed. Counsel stated he intended to call Deputy Blair’s ex-wife to testify concerning her declaration from their marriage dissolution proceedings in which she described his violent temper, but the investigator had not yet located her. The trial court explained that in the court’s view, counsel likely would “have the time during trial to have your investigator looking for her,” noting that “we’re not going to get to the defense case until next week.” After the sidebar conference, the court reiterated that it was denying the motion for a continuance.

“[T]he decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court. [Citations.] The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.] [f] Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered. [Citations.] Moreover, the denial of a continuance may be so arbitrary as to deny due process. [Citation.] However, not every denial of a request for more time can be said to violate due process, even if the party seeking the continuance thereby fails to offer evidence. [Citation.]” (People v. Beames (2007) 40 Cal.4th 907, 920-921 [55 Cal.Rptr.3d 865, 153 P.3d 955] (Beames).) “[T]he trial court may not exercise its discretion ‘so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.’ [Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 450 [87 Cal.Rptr.3d 209, 198 P.3d 11].) From the record in the present case, we conclude defendant has failed to establish that the trial court abused its discretion or violated his constitutional rights by denying the motion for a continuance.

Here, the expressed general need for counsel to go over the evidence and to “fine tune” himself before beginning the trial was not particularly compelling. Indeed, counsel himself characterized it as less important than the need to locate Deputy Blair’s ex-wife, and stated he would make his last preparations in the evenings if the court denied the continuance. Even assuming counsel was required to complete his fine-tuning in the evenings during the trial, this would not have been so unusual or burdensome that we would conclude the trial court’s decision was outside the bounds of reason. In addition, although the need to locate Blair’s ex-wife was significant for the defense, as the trial court stated, the need to do so before the trial could begin was slight; indeed, the defense did ultimately call her as a witness despite the denial of the continuance. (See People v. Frye (1998) 18 Cal.4th 894, 1013 [77 Cal.Rptr.2d 25, 959 P.2d 183] [“[o]ne factor to consider is whether a continuance would be useful”].)

Although defendant cites on appeal examples of counsel’s asserted unpreparedness during the trial, defendant fails to relate them to the denial of the motion for a continuance. Moreover, defense counsel did not base his request for a continuance on grounds that he was unprepared in specific areas. Therefore the trial court cannot be faulted for failing to grant a continuance on those grounds. (Beames, supra, 40 Cal.4th at p. 921; see also People v. Rundle (2008) 43 Cal.4th 76, 132 [74 Cal.Rptr.3d 454, 180 P.3d 224] (Rundle) [review of the trial court’s ruling on a motion is “based upon the evidence before the court when it made its decision”].)

It was not beyond the bounds of reason for the trial court to deny a three-day continuance because counsel’s expressed needs could be reasonably met without delaying the trial. Further, the court appropriately considered the inconvenience to prospective jurors that would result from postponing the trial, as well as the potential complications that might result if defense counsel had a root canal and needed additional time to recover before the trial could commence. The court reasonably found that starting the trial as scheduled would minimize the inconvenience and risks, while not impinging to any significant degree on defense counsel’s ability to complete his final preparations. (People v. Jenkins (2000) 22 Cal.4th 900, 1037 [95 Cal.Rptr.2d 377, 997 P.2d 1044] [in ruling on a continuance motion, “[t]he court considers ‘ “not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion” ’ ”].) The denial of a continuance was not an arbitrary insistence on expeditiousness, but rather a reasoned assessment of the need for delaying the trial in light of the potential problems such delay might cause.

Nor was defendant denied a reasonable opportunity to prepare; as respondent points out, trial counsel had been defendant’s attorney of record for approximately eight months, and counsel’s own statements established that the remaining preparations were counsel’s final polishing of the defense and the locating of a witness that could be (and, apparently, was) accomplished in the time before the defense portion of the trial began. For these reasons, the denial of the request for a continuance was not an abuse of discretion or a violation of defendant’s constitutional rights.

C. Asserted Errors During Voir Dire

1. Voir Dire Concerning Circumstances of the Crime

Defendant contends the trial court conducted constitutionally inadequate questioning of the prospective jurors concerning possible biases arising from the circumstances of the shooting of Deputy Blair. Specifically, he claims the trial court should have asked questions regarding (1) any racial prejudices the prospective jurors may have held and (2) the legal concepts of self-defense and defense of another, particularly in the context of a gang member shooting a police officer.

Defendant did not ask the trial court to pose any question regarding racial biases, and therefore that portion of his appellate claim is forfeited. (People v. Bolden (2002) 29 Cal.4th 515, 539 [127 Cal.Rptr.2d 802, 58 P.3d 931] [the defendant must ask for questioning concerning racial bias; “the trial court need not make the inquiry on its own initiative”]; Turner v. Murray (1986) 476 U.S. 28, 37 [90 L.Ed.2d 27, 106 S.Ct. 1683] [“a defendant cannot complain of a judge’s failure to question the venire on racial prejudice unless the defendant has specifically requested such an inquiry”].) We have recognized no exception to this requirement in cases in which the potential for racial bias assertedly was “obvious,” and we decline defendant’s invitation to do so now.

Defendant’s remaining claim similarly is unavailing. Prior to commencing voir dire of the venire panel, the trial court advised the parties that it intended to question the prospective jurors itself, without the participation of counsel, and also without having the panel answer written juror questionnaires. Although the prosecutor objected, defense counsel expressly agreed to the court’s plan to conduct voir dire. The court invited the parties to submit suggested questions the court should pose, and defendant submitted three questions concerning self-defense and defense of others: (1) “Can you accept the concept in the law that if one’s life is illegally placed in peril by another, one may kill in self-defense[?]”; (2) “Could you accept this legal premise if the evidence shows that a uniformed police officer illegally placed, the life of a street gang member in peril, and that officer is then killed in self-defense?”; and (3) “Can you accept the concept in the law that if the life of one’s friend is illegally placed in peril by another, deadly force may be legally used in response?” In response to defendant’s suggestions, the trial court stated, “Most jurors believe there is such a thing as self-defense. The concern is that jurors understand that if there is a self-defense issue, that they have to follow the court’s instruction on the law regarding what constitutes self-defense. And will they do that and put aside their own ideas of what constitutes self-defense.” Accordingly, the court agreed “to give some brief comment to that effect [—] that they should not necessarily adhere to their own feelings of what constitutes self-defense, that they must follow the court’s instruction.” Defense counsel did not object to the court’s plans.

Later, near the conclusion of voir dire, defense counsel asked the trial court at a sidebar conference whether it planned to ask any more followup questions of the prospective jurors. When the court stated it did not, counsel stated, “Okay, I would ask that you at least touch on self-defense.” The court subsequently did so, telling the jurors, “[I]t is very important—I think we all have ideas of when the idea of self-defense is appropriate and when it isn’t. I want to make sure that the jurors understand that if you are instructed on what the law says is appropriate for self-defense, that you follow my instructions on the law. [][] Anybody have any question about that? ...[]□ Let me make sure of this.” The court then asked a prospective juror, “do you understand what I just said? . . . [f] You may have in your own mind when you came in here an idea of when self-defense is appropriate, [f] But you understand that if I instruct you—I am not saying I will—but if I instruct you on the law of self-defense, you must follow my instructions?” The prospective juror agreed he would follow the court’s instructions. The court then asked if “everybody else” understood, and confirmed this with two other prospective jurors. Defense counsel did not object to the trial court’s questions, nor did he request that the court pose any other question concerning the subject.

On appeal, however, defendant contends the trial court’s questioning was insufficient “to ascertain whether the jurors harbored any biases that might prevent them from impartially entertaining a claim that a gang member’s killing of a peace officer was justified by the need to defend one’s self or a fellow gang member and from evaluating the evidence of such a defense.” Defendant forfeited this claim by failing to raise this issue below, when the trial court could have remedied the alleged shortcoming. It is true defendant did initially submit proposed questions concerning the specific context of a claim of self-defense or defense of others in this case (highlighting that a gang member had killed a police officer), and the trial court did not pose those questions during voir dire. Defense counsel, however, did not object that general questioning concerning the prospective jurors’ ability to follow the court’s instructions on self-defense would be—or subsequently was—insufficient to uncover any biases the prospective jurors might have held. Accordingly, this claim is not preserved for appeal. (People v. Sanchez (1995) 12 Cal.4th 1, 61-62 [47 Cal.Rptr.2d 843, 906 P.2d 1129].) Defendant’s attempt to distinguish Sanchez on its facts is misplaced. The controlling principle is that a defendant may not challenge on appeal alleged shortcomings in the trial court’s voir dire of the prospective jurors when the defendant, having had the opportunity to alert the trial court to the supposed problem, failed to do so. It is not sufficient, as in the present case, for a defendant merely to suggest that particular questions be asked, and then silently stand by when the trial court suggests and subsequently takes a different course—a trial court reasonably could view such silence as constituting assent to the court’s approach.

In any event, even if defendant had not forfeited his claim, we would conclude it lacks merit. “We have observed that the adequacy of voir dire is a matter ‘ “ ‘not easily subject to appellate review. The trial judge’s function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and responses to questions.’ ” ’ [Citations.] The applicable standard is a demanding one: ‘Unless the voir dire by a court is so inadequate that the reviewing court can say that the resulting trial was fundamentally unfair, the manner in which voir dire is conducted is not a basis for reversal. [Citation.] . . .’ [Citations.] [f] . . . ‘The right to voir dire, like the right to peremptorily challenge [citation], is not a constitutional right but a means to achieve the end of an impartial jury. [Citation.]’ ” (People v. Carter (2005) 36 Cal.4th 1215, 1250-1251 [32 Cal.Rptr.3d 838, 117 P.3d 544].)

Defendant fails to establish any possibility that his trial was fundamentally unfair due to inadequate voir dire of the prospective jurors. To the extent our decision in People v. Williams (1981) 29 Cal.3d 392 [174 Cal.Rptr. 317, 628 P.2d 869] (Williams), upon which defendant relies, remains persuasive although one of its central holdings was abrogated by the passage of Proposition 115 (see People v. Mendoza (2000) 24 Cal.4th 130, 168, fn. 5 [99 Cal.Rptr.2d 485, 6 P.3d 150] [that proposition “changed the scope of legitimate inquiry on voir dire by requiring that the examination of prospective jurors be conducted only in aid of the exercise of challenges for cause,” not in aid of the parties’ making peremptory challenges]), Williams is distinguishable. The erroneous limitation of voir dire that led to our reversal of the judgment in Williams concerned the prospective jurors’ thoughts regarding the legal concept that a person has no duty to retreat before he or she may use reasonable force to resist an attacker. As we noted, that rule was controversial, and there was “a real possibility the average juror might disagree” with the rule. (Williams, supra, at p. 411.) Also implicit in Williams is an acknowledgement that the rule likely would be unknown to an average juror were it not addressed in voir dire. Moreover, there was no suggestion the prospective jurors in Williams were made aware of any facts of the case that would have indicated that the question of a duty to retreat would be at issue, and therefore that their ability to follow the law as the court would instruct might have been inhibited in that regard. We also pointed out in Williams that two of the prospective jurors had expressed doubts, even in the abstract, concerning their ability to follow self-defense principles with which they might disagree, and the trial court had foreclosed any further exploration of those responses. (Ibid.)

The oral voir dire in the present case met constitutional standards. The trial court questioned the prospective jurors concerning their ability to follow the law of self-defense as the court ultimately would instruct them, and none expressed any doubt regarding an ability to do so. The prospective jurors were aware of the basic facts of the case, that is, that defendant was accused of shooting and killing a police officer engaged in his official duties. Questions concerning the prospective jurors’ knowledge of and biases against gangs and gang members also had been posed, and the jurors were told they were required not to prejudge the case based upon any evidence of defendant’s having associated with a gang. Because the prospective jurors were aware of the basic facts of the case, it was reasonable to assume they had these particulars in mind when the trial court admonished them concerning their duty and questioned them concerning their ability to follow any self-defense instructions the court might give them. Accordingly, defendant’s proposed questions, although more focused than the trial court’s queries, were not so significantly more likely “to expose strong attitudes antithetical to defendant’s cause” (Williams, supra, 29 Cal.3d at p. 410) that we could conclude the court’s voir dire failed to aid in the exercise of challenges for cause or otherwise resulted in a fundamentally unfair trial. We also observe that defendant has not pointed to any evidence in the record suggesting that any sitting juror actually was prejudiced against his claims of self-defense and defense of another.

2. Voir Dire Concerning Penalty Decision

Defendant contends the trial court’s voir dire concerning the issue of the jury’s role in the penalty phase of the trial, and the court’s excusing for cause two prospective jurors who expressed reluctance regarding imposing the death penalty, denied him his state and federal constitutional rights to an unbiased jury and a reliable penalty decision. We are not persuaded.

To the extent defendant contends the manner in which the trial court questioned the prospective jurors erroneously resulted in “a jury that was prone to impose the death penalty,” he forfeited any such challenge by not objecting below. A defendant ordinarily cannot obtain appellate relief based upon grounds that the trial court might have addressed had the defendant availed himself or herself of the opportunity to bring them to that court’s attention. (People v. Seaton (2001) 26 Cal.4th 598, 635 [110 Cal.Rptr.2d 441, 28 P.3d 175].) Defendant maintains we nonetheless should reach the merits of his contention because the right to a fair and unbiased jury, and the trial court’s general duty to ensure a fair proceeding, are fundamental. There is, however, no evidence in the record suggesting the jury in this case actually was unfair or biased; that is, that these fundamental rights were compromised. Even if, as defendant urges, the manner in which the trial court conducted voir dire improperly tended to remove prospective jurors supposedly more favorable to the defense, this does not mean the remaining prospective jurors could not be fair and unbiased. We also observe that defendant does not allege that the trial court erroneously denied any challenge for cause he made against a prospective juror.

Defendant further contends the trial court violated his constitutional right to an impartial jury by excusing for cause two prospective jurors, Prospective Juror C. and Prospective Juror L., based on their answers expressing reservations concerning their ability to impose the death penalty. The law regarding such appellate challenges is well established. In this context, the right to an impartial jury afforded by the state and federal Constitutions mandates that persons who opp