People v. Contreras (58 Cal. 4th 123, 2013)

Opinion

BAXTER, J.

A Tulare County jury convicted George Lopez Contreras (defendant) of robbing and murdering a store owner, Saleh Bin Hassan (Hassan). Defendant was found guilty, as charged, of first degree felony murder (Pen. Code, § 187, subd. (a)), and of robbery (§ 211). The jury also sustained a special circumstance allegation of murder in the commission of a robbery. (§ 190.2, subd. (a)(17) (section 190.2(a)(17)).) Defendant was found to have personally used a firearm (shotgun) in committing each crime. (§§ 1192.7, subd. (c)(l)(8), 1203.06, subd. (a)(1), 12022.5, subd. (a).)

After a penalty trial, the same jurors who had decided guilt fixed the penalty at death. The trial court denied defendant’s automatic motion to modify the penalty verdict. (§ 190.4, subd. (e).) The court pronounced a death judgment for the special circumstance murder. Sentence also was imposed for the robbery count and related firearm-use finding. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).)

We find no prejudicial error at defendant’s trial. The judgment will be affirmed in its entirety.

I. GUILT PHASE EVIDENCE

A. Summary

Prosecution evidence showed that Hassan was killed on December 29, 1994, while working at the Casa Blanca Market, which he and his wife owned in Farmersville, near Visalia. He had been shot twice, including once in the back. His dead body was lying prone behind the counter. Nothing was missing from the cash register. However, Hassan’s wallet and handgun were gone. Defendant was implicated in the crime along with three other men: Jose Gonzalez (Jose), Santos Acevedo Pasillas (Santos), and Louis Phillip Fernandez, Jr. (Louis). Defendant carried a shotgun into Hassan’s store, and was identified as the actual killer. At the outset, criminal charges were jointly filed against all four men. Severance was later granted, and defendant was tried alone. The jury returned a guilty verdict, as stated above.

B. Prosecution Case-in-chief

1. Testimony of witnesses present during the capital crime

A key witness was Jose Guadalupe “Lupe” Valencia (Lupe). At the relevant time, Lupe lived with both his sister, Yesenia Valencia, and her boyfriend, Jose. Jose introduced Lupe to defendant shortly before the capital crime.

In December 1994, when Lupe had nothing to do, he went with Jose and defendant to pick up the other alleged accomplices, first Louis and then Santos. When Louis joined the group, they used his car.

Lupe described an unusual event that happened when the group picked up Santos that day. Defendant and Santos brought two “long rifles” from the house, and set them in the backseat of Louis’s car. Louis was the driver, and Lupe was the front passenger. The other three men—defendant, Jose, and Santos—sat in the back on top of the guns.

Louis drove the group to a store in Visalia. Lupe did not know the store’s name. However, he recalled that on the way there, defendant, Jose, and Santos put on makeshift masks. These masks were made of small pieces of cloth, and covered each man’s face from the nose down. Because of the masks and guns, Lupe assumed the group planned to rob the store. However, the car did not stop, and no robbery occurred, because there were too many people nearby.

Lupe’s account continued: Louis drove to another spot, the Casa Blanca Market, in Farmersville. Santos said he wanted to see if anyone was inside the store. With the mask hanging around his neck, he exited the car and pretended to use the pay phone near the door. Santos returned to the car and said the store was empty. Defendant and Jose each responded by grabbing a gun and going inside.

About 20 seconds later, Lupe heard a loud gunshot. He testified that Santos reentered the car after “running out saying that George [(i.e., defendant)] got shot.” Louis made a U-turn, apparently preparing to drive away. At some point, both Jose and defendant, who had not been shot, joined the trio already inside the car.

Lupe testified that Louis drove the group to Santos’s home. On the way, defendant said he would “never forget the smile on his face,” an apparent reference to the victim, Hassan. Lupe recalled that defendant was smiling and in a “happyish” mood. At Santos’s house, Louis dropped off his passengers and left. Later, defendant accompanied Lupe and Jose to their home.

At trial, Lupe described certain conversations that night which implicated both Jose and defendant in the robbery murder. According to Jose, the clerk at the store displayed a gun. Jose said he attempted to shoot the clerk but his gun jammed. Jose stated that he tried breaking into the cash register, which did not open, and he took the clerk’s wallet. After giving this account, Jose showed the wallet to Lupe.

Defendant incriminated himself on the same occasion. First, he offered Lupe a handgun, which Lupe did not take. Lupe identified the handgun that belonged to the victim, Hassan, as the one defendant displayed.

Second, Lupe testified that defendant said that “when he walked in, he pointed the gun at the clerk and the clerk pulled out a gun and [defendant] shot him.” Defendant promised to “get” any informers. Lupe assumed that this threat was aimed at him, and that it meant defendant would “shoot [him] or something.”

Like Lupe, another witness, Amanda Garcia, saw events outside the Casa Blanca Market on the day of the capital crime. At 3:00 p.m., she drove from the Kmart in Visalia towards Farmersville, where she lived. Around 3:30 p.m. or 4:00 p.m., Garcia encountered a car she identified as Louis’s car blocking traffic outside the market. She stopped five or six car lengths behind the car, and saw two people inside—one in the driver’s seat and the other in the backseat. Suddenly, two other individuals rushed out of the store. One of them carried a long object shaped like a gun. Each person leaving the store wore a dark mask that covered the face except for the eyes. Garcia saw a similar disguise on one of the occupants of the car in front of her, after that person turned around in her direction. The pair on foot got into the waiting car, which sped away.

2. Testimony of Artero Vallejo, Jr., and supporting witnesses

In 1994, Artero Vallejo, Jr. (Vallejo), was friends with defendant and Santos. Vallejo testified that on December 29, the day of the capital crime, he worked his regular swing shift in Visalia, which began at 3:00 p.m. and ended between 11:00 p.m. and 11:30 p.m. After work, Vallejo went to Santos’s house. Both defendant and Santos were there.

Vallejo testified about incriminating statements Santos, defendant, and Jose made the night of the capital crime. Santos told Vallejo that “[t]hey tried to pull a little robbery,” that a “shooting” occurred, and that they got “nothing out of it.”

According to Vallejo, defendant volunteered that he “shot the clerk at the store,” and that the shooting occurred as follows: Defendant held the shotgun in one hand. The clerk offered no cash, and none could be found. Defendant warned the clerk that he would be shot if he did anything. Defendant ended up shooting him. Defendant then approached the wounded man and saw a smile on his face. Defendant said, “I told you I was going to kill you.” Defendant kicked the clerk and shot him a second time. Vallejo testified that, in recounting the crime, defendant acted like “it was no big deal.”

During the same conversation, defendant admitted taking a .25-caliber handgun from the store clerk. Defendant pulled the gun from his jacket pocket and showed it to Vallejo. At trial, Vallejo identified Hassan’s gun as the one that defendant had displayed.

Vallejo testified about other guns that linked defendant to the Casa Blanca crimes, as follows: When defendant needed guns, he would borrow them from Jesus Manuel Fernandez, or “Shorty” (Shorty). One or two weeks before the capital crime, Vallejo went with defendant and Santos to Shorty’s home and borrowed a shotgun and a .22-caliber rifle. Later, on December 28, the night before the murder, Vallejo was told by either defendant or Santos that defendant had picked up the same guns at Shorty’s house earlier that day. The purpose was to “pull a little job,” which Vallejo understood to mean an armed robbery, and to get some quick cash. Shorty’s wife transferred the weapons at that time.

Vallejo’s testimony also encompassed his contact with the other perpetrators, Jose and Louis, the night that Hassan was killed. Specifically, Jose and Louis arrived at Santos’s house while defendant, Santos, and Vallejo were there. According to Vallejo, Jose discussed events inside the Casa Blanca Market. Jose told Vallejo that “George [(i.e., defendant)] had shot him [(i.e., the clerk)], that he [(apparently, Jose)] couldn’t find the money, and that he said he was looking all over the place for the money.”

Vallejo further testified that all five men left Santos’s house together that night. After stopping briefly at Louis’s house, the group went out to “celebrate” the shooting. They visited a bar named The Break Room, and then attended a party in Farmersville. Vallejo testified that he and his companions each drank alcohol at both places, and that they also ingested “crank,” or methamphetamine, at the party. The group eventually split up. Santos and Louis went home, and defendant, Jose, and Vallejo attended a second party.

Vallejo denied being present at the Casa Blanca Market during the robbery murder or otherwise having any involvement in the crime.

3. Postcrime investigation

At 3:27 p.m. on December 29, 1994, Deputy Scott O’Neill of the Tulare County Sheriff’s Department was dispatched to the Casa Blanca Market. When he arrived a few minutes later, he found Hassan, dead, behind the cash register. His body was lying facedown on the floor. Based on witness statements at the scene, O’Neill estimated that the crime happened at 3:20 p.m.

The autopsy physician, Dr. Leonard Miller, testified that Hassan sustained two fatal gunshot wounds. One shot had penetrated the left side of the victim’s abdomen. The other shot had entered his lower back, toward the right side of the body. Each wound was inflicted with a shotgun.

Sheriff’s Detective James Hilger investigated the Casa Blanca Market crimes. They went unsolved for several months. The situation changed in August 1995. At that time, under circumstances discussed further below, Vallejo voluntarily contacted law enforcement officials. He offered to provide information about the killing and to identify the perpetrators. On August 11, Detective Hilger tape-recorded Vallejo’s statement. Defendant apparently was arrested the same day.

A short time later, law enforcement officials contacted Lupe. For the first time, he disclosed what he knew about the capital crime.

C. Defense Case

Defendant called two witnesses who were outside the Casa Blanca Market the day of the capital crime. Byron Northcutt, who lived one block away, testified that he heard three gunshots, and saw a man with a rifle leave and then reenter the store. Two men then left the store, led by the one with the rifle. They entered a waiting car. Both wore hoods. Northcutt could not tell if the second man had a gun. The second defense witness, Joel Mohr, was repairing a car 50 yards away when he saw one man leave the store, yelling at someone inside to hurry. A second man, wearing a hood, came out, stood in the driveway, and shot toward the store. At most, Mohr heard two shots. He did not see whether the first man had a gun or hood. Mohr watched the men enter a car that had been parked near the pay phone and that swung around to meet them. Two other men were in the front seat.

The defense also elicited testimony from Detective Hilger to the effect that certain details in Vallejo’s pretrial taped statement did not match his trial testimony. For instance, in the police interview, Vallejo said that when he arrived at Santos’s house after work on the night of the capital crime, Jose was already there with defendant and Santos. However, Vallejo testified at trial that he arrived before both Jose and Louis.

The rest of the defense case consisted of an alibi for the Casa Blanca crimes. It was offered by the following members of defendant’s family: Claudia Gutierrez Contreras, who was defendant’s girlfriend in December 1994 and his wife at the time of trial; Claudia’s sisters, Erika Gutierrez and Patricia Murillo; Patricia’s husband, Raul Murillo; and Martina Gutierrez, the mother of Claudia, Erika, and Patricia.

Together, these witnesses (whom we identify by their first names) testified as follows: Defendant picked up Claudia after she left work at 3:36 p.m. on December 29, 1994. After stopping at Claudia’s house, defendant and Claudia went to pick up Claudia’s sister, Erika, at the accounting firm in Visalia for which she worked. Defendant and Claudia—who had defendant’s infant son, Marco, in the car—waited 45 minutes in the parking lot until Erika left work.

Meanwhile, Erika looked out of an office window and recognized two couples in the parking lot: (1) defendant and Claudia, and (2) Patricia and Raul. Each couple waved at the other. Patricia and Raul had arrived there around 4:00 p.m. to obtain a personal loan from a finance company in Erika’s office building. After Erika left work at 5:00 p.m., defendant drove Claudia and Erika home. He did not leave their house before midnight.

Claudia testified that in January 1996, one year after the killing and five months after defendant’s arrest in August 1995, she found the written loan agreement that Patricia and Raul had signed on December 29, 1994. This information was passed along to Erika, Patricia, and Martina. These family members testified that the contract helped them recall defendant’s whereabouts when it was signed.

D. Prosecution Rebuttal

The prosecution challenged the defense theory that, shortly after the Casa Blanca Market crimes, defendant was in a car with his infant son, Marco, and with Claudia, meeting Claudia’s sister, Erika, after work. As noted, Marco’s mother is Arcadia Hernandez (Arcadia). Arcadia’s sister, Elisabeth Hernandez (Elisabeth), testified that throughout December 1994, Marco stayed with Arcadia and Elisabeth in their mother’s home, and that he was not visited or taken by defendant during this time.

E. Defense Surrebuttal

Claudia (defendant’s girlfriend in 1994 and his wife at trial) testified that a photograph depicting defendant with her and Marco was taken around Christmas, 1994. Defendant’s mother testified that Marco’s head was shaved in December 1994, as depicted in the same photograph.

II. PENALTY PHASE EVIDENCE

A. Prosecution Case

1. Victim impact evidence

Hassan’s widow, Alya Saed Hassan, testified (through an interpreter) about her husband’s character and the effect of his death on loved ones. The couple had been married for 30 years and had three children, the youngest of whom was 10 years old at the time of trial. Alya described her husband as irreplaceable—the love of her life. He was exceptionally hardworking. For 16 years, he labored on farms, and the couple saved money, in order to buy the Casa Blanca Market. During the eight-year period in which they owned the store, Hassan worked on the premises 15 hours a day. The family lived next door in a trailer. Alya regretted having to start using welfare benefits after Hassan’s death. The family could not afford mental health counseling to handle the loss.

2. Unadjudicated assault with a firearm

The prosecution presented evidence that, on August 29, 1994, four months before the capital crime, defendant shot at a car, knowing that his own son, Marco, was one of several people inside. The incident began when Arcadia came home from work and discovered that defendant had picked up Marco while he was being watched by Arcadia’s sisters, Elisabeth and Maria Torres (Maria). Six people drove in a Thunderbird to retrieve Marco from defendant’s mother’s home, where defendant lived. They were Arcadia, Elisabeth, Maria, Maria’s husband Ramon, Ramon’s brother Angel, and Maria and Ramon’s infant son.

According to all three witnesses who described the incident at trial— Maria, Elisabeth, and Ramon—Arcadia went to defendant’s door, and the two began arguing. The couple then sat down on a bench. Meanwhile, Maria and Elisabeth exited the car, took Marco from the house, and got into the car with him. Maria testified that defendant may have momentarily retrieved Marco during this process, but Elisabeth had no such recollection. At some point, defendant asked Ramon to identify the driver, Angel. Arcadia reentered the car last. It then contained the six original occupants plus Marco.

All three witnesses gave similar, though not identical, accounts of what happened next. Maria heard multiple shots, and turned to see defendant holding a gun and “pointing to the car” at a downward angle. For reasons she did not explain, Maria believed defendant may have shot up into the air first before firing at the car. Elisabeth, in turn, saw defendant pull an object out of his pants, and heard several gunshots. Though Elisabeth did not see a gun or the direction in which it was aimed, she knew defendant was the shooter because no one else was nearby. Ramon looked back out of the car window, and saw defendant get up from the bench and approach the car from behind. Defendant then took out a handgun and “pointed at the car.” Standing seven or eight feet away, defendant fired three or four shots. Arcadia screamed, and the Thunderbird sped away.

Angel, the driver, headed directly to a store, where the police were called. Officer James Rapozo of the Visalia Police Department arrived at the scene of the shooting around 10:00 p.m., soon after the shooting occurred. The victims described a custody dispute in which the child was retrieved from the father. The officer testified that he found two expended shells from a .380-caliber handgun in the road. He also saw two bullet holes in a wall nearby. One of them was two feet from the ground. In the dark, neither Officer Rapozo nor anyone in the Thunderbird saw damage to the car. The next day, however, Maria and Ramon saw a bullet hole in the rear spoiler.

B. Defense Case

Defendant’s older sister, Angelica Torres, provided a substantial amount of background information, as follows: Defendant’s parents and all 10 of their children, including defendant (the third youngest child), were natives of Mexico. When they wed, defendant’s father was 18 years old and his mother was 13 years old. They remained married at the time of trial.

Angelica recalled that, in Mexico, the family lived a “normal” life in a small town. They were neither rich nor poor. Both parents were hardworking. Defendant’s father was the main provider, but he could not support the family alone. Defendant’s mother was a seamstress. She cared for the children at home.

According to Angelica, she and defendant had a close emotional bond. She was 10 years older, and helped care for him as a child. When defendant was four years old and Angelica was 14 years old, she moved from Mexico to Los Angeles. Angelica stayed in touch with defendant and the rest of the family, visiting them often.

Angelica continued: When defendant was six or seven, the family moved to Visalia, where they bought their own home and have lived ever since. Both parents continued to support the family. Angelica, who moved back and forth between Los Angeles and Visalia, remained close to defendant. She eventually bought a home next door to her parents. At one point, Angelica, her mother, and other female relatives worked in the same factory. The extended family was both large and close.

At trial, Angelica acknowledged that her parents’ marriage was not strife free. A few days before defendant was bom in 1974, defendant’s father beat his mother—a fact that upset defendant when he learned about it several years later. Angelica insisted defendant was a normal, healthy, and playful child. She described her mother as affectionate and gentle, and her father as emotionally distant from all of his children. The parents argued over little things. Angelica learned from her siblings that, once or twice, while she was not present or living at home, her father hit her mother.

Angelica testified that the family shared a strong belief that defendant did not commit the capital crime. Defendant’s mother and other relatives helped care for his two children after his arrest. Their mother, Arcadia, was young and reportedly distracted from her parental duties. According to Angelica, defendant was a proud and devoted father.

Defendant’s wife Claudia testified that she had known defendant since the eighth grade. She would love, support, and communicate with him even if he spent his entire life in prison. She planned to maintain a relationship with defendant’s children and to help them stay close to their father. When asked how she would feel if defendant were sentenced to death, Claudia replied that “they could put me to death, too.”

The defense also called Bill Wittman, who was elected Sheriff of Tulare County 18 months before he appeared at trial. Wittman testified that he had known defendant for at least 10 years ending in 1993, before the capital crime. Defendant was a “good kid” who participated in recreational sports at a community center that Wittman helped build and run. Wittman occasionally visited defendant’s family in their home near the center. Except for defendant’s older brother, Fernando, who was a bully with an arrest record, other family members seemed warm and hospitable. Once, defendant refused payment for work he and other children had performed on Wittman’s ranch.

Louisa Duarte had lived next door to defendant’s family since they moved from Mexico to Visalia. She testified that defendant and his siblings were well-behaved and respectful. Defendant practiced speaking English, his second language, with Duarte. He always had a “special smile.”

C. Prosecution Rebuttal

Arcadia, the mother of defendant’s children, testified that defendant had seen his daughter, Jasmine, only twice since her birth. He provided no financial support for either Jasmine or her brother, Marco.

Jerry Speck supervised defendant when he was on juvenile probation for possessing a pellet gun at school. Speck testified that in October 1991, defendant declined Speck’s request to perform court-ordered community service. Defendant became loud and defiant and refused to calm down. Speck arrested him and took him to juvenile hall. On cross-examination, Speck disclosed that defendant was pleasant when he was not angry, and that he had trouble appreciating the consequences of his actions.

D. Defense Surrebuttal

Victor De Vaca was a teacher who met defendant when he attended middle school. De Vaca testified that he once drove defendant to a special event where defendant received an award that the teachers gave to certain students. Defendant was a typical student—“all boy”—in De Vaca’s view. On cross-examination, De Vaca noted that defendant had participated in a few fights at school, and that De Vaca had driven him home afterwards.

in. JURY SELECTION ISSUES

Defendant maintains that, for various reasons, the trial court failed to explain to the prospective jurors certain general legal principles applicable in all criminal trials. He contends the omission violated his federal and state constitutional rights to due process, an impartial jury, equal protection, effective representation, and a reliable capital determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 16, 17.) A related statutory claim is also made. (Code Civ. Proc., § 223.) No error occurred.

A. Background

The jury selection process took place over a three-week period in August and September 1996. The trial court first read the information to all prospective jurors, and emphasized that it involved “mere allegation.”

The court then explained the bifurcated nature of the trial, to wit, that jurors would decide guilt of the charged crimes in the first phase, and that only in the event of a first degree murder conviction and a special circumstance finding would a penalty phase occur. The court identified the death penalty as one possible sentencing choice. As a time estimate, the court predicted (accurately) that, at most, the guilt trial would last one to two weeks, and that the pretrial jury selection process could take “a little bit longer.”

Prospective jurors were divided into two panels. In the presence of both counsel, the court questioned and excused numerous candidates on hardship grounds. Counsel jointly stipulated to many of these excusáis. The court estimated that as many as 137 people “passed hardship.”

Next, the trial court described the jury selection process to each panel of prospective jurors. First, the court discussed the need for written questionnaires on a broad range of topics. The court also announced its plan to examine each person on an individual basis, outside the presence of other prospective jurors. In doing so, the court sought to promote candor and save time.

Second, the trial court told all prospective jurors that the death penalty would be explored during each personal sequestered voir dire. The court further stated that, during these sessions, both the court and counsel (i.e., “myself and the attorneys”) would inquire about “additional areas concerning [jurors’] ability to be fair and impartial.” Counsel would receive copies of the completed questionnaires before voir dire in order to study them and prepare questions.

Third, the trial court advised both groups of prospective jurors about the standard of proof at the guilt phase. The court said, “If the jury is convinced beyond a reasonable doubt the defendant is guilty of murder in the first degree, and that the special circumstance of murder in the commission of a robbery is true, then the trial will go into a second phase.” Each panel was also told that both parties were entitled to a fair and impartial jury, and that jurors must “abide by the law” set forth in the instructions.

Following these advisements, the trial court asked prospective jurors to complete a lengthy questionnaire, and to sign it under penalty of perjury. The written questions concerned such topics as personal background, views on capital punishment, attitudes toward the criminal justice system, and opinions about defendant and the charged crimes.

On the latter topic, question No. 64(a) asked whether, for any reason, the prospective juror had “formed or expressed any opinion as to the guilt or innocence” of defendant, and to explain any “yes” answer. Question No. 76 (echoed in question No. 85) addressed the related issue whether the person harbored any “bias” or “prejudice” toward defendant that would affect the ability to render a decision “under the law.” Question No. 79 alluded, in turn, to certain controlling legal principles—the defendant’s privilege not to testify, the presumption of innocence, and the People’s burden of proof. Thus, prospective jurors were asked to explain whether they “disagree[d] with the law” or could not “follow the law” allowing the defendant to remain silent at trial. A similar explanation was sought as to any belief that a criminal defendant “should have to prove he or she is not guilty,” as opposed to the People having to prove guilt.

Guided by the handwritten answers to such questions, the trial court and counsel jointly conducted individual sequestered examinations of all prospective jurors. Each interview had a similar format, as follows:

First, the trial court almost always began by repeating its advisement about application of the reasonable doubt standard at the guilt phase, and/or by emphasizing that the People bore such burden of proof. Otherwise, except in a few cases not involving persons who later served as actual or alternate jurors, any deviation from this general pattern involved instances in which (1) defense counsel advised prospective jurors about the standard and burden of proof at the guilt phase, (2) the prospective juror volunteered his or her understanding of such principles, or (3) defense counsel summarily exercised or agreed to a challenge for cause based on some patently disqualifying factor (e.g., automatic preference as to penalty or inability to attend trial).

Second, during the interviews, the trial court inquired about the person’s views on the death penalty and on life imprisonment without the possibility of parole. Both counsel routinely asked followup questions on sentencing.

Third, as previously authorized by the court, counsel on both sides inquired during individual sequestered voir dire, often vigorously, about other factors bearing on the prospective juror’s ability and willingness to serve in a fair and impartial manner. Many exchanges concerned the meaning of a criminal defendant’s right to a fair determination of guilt beyond a reasonable doubt, including any knowledge or experience gained during prior jury service in criminal trials. Other questions concerned whether the person harbored any bias against the defense, or could follow the law and instructions.

During this process, the trial court granted numerous challenges for cause by the parties. Apparently, 81 prospective jurors remained in the pool afterwards—almost 60 fewer persons than before the process began.

Defense counsel then asked whether the trial court intended to conduct “any so-called general type voir dire in the sense of jurors that have any problems with reasonable doubt or the burden of proof.” Counsel suggested that prospective jurors be assembled “in the box” for this purpose. The court declined to do so, saying “[w]e did a voir dire. I don’t know why I need to do any more.” When the court sought to clarify the defense request in any event, counsel said, “We never had a question that really has to do with just jurors[’] understanding and acceptance of the burden of proof, the presumption of innocence. Some of this general stuff that we always do.”

In response, the court offered to read CALJIC No. 0.50, a standard pretrial instruction on the basic functions, duties, and conduct of jurors. Counsel agreed. He said, “Fine with me,” “I don’t have any problem with that,” and “I don’t want to tie up a lot of time.” The court said it would “go ahead and do it,” and would ensure that no one had “any problem[]” with “following those laws.” Counsel did not raise the issue again.

One week later, at the next court session, the court assembled the prospective jurors to allow the parties to exercise peremptory challenges. Before this process began, the court instructed the jury with the legal principles to which defense counsel had referred. Specifically, prospective jurors were reminded of the nature of the charges, and were repeatedly told that the People bore the burden of proving guilt beyond a reasonable doubt. The court dismissed any suggestion that defendant “need[ed] to prove his innocence,” and reaffirmed that defendant “ha[d] no burden to prove anything.”

Ultimately, in selecting the actual jury, the prosecution exercised nine peremptory challenges and the defense exercised seven peremptory challenges. Each side exercised three peremptory challenges against potential alternate jurors. After the actual and alternate jurors were sworn, and before opening statements began, the court read CALJIC No. 0.50, as it had promised to do.

B. Analysis

Defendant’s main claim is that the trial court essentially had a sua sponte duty to question every prospective juror either individually or collectively about general principles of law concerning both the standard and burden of proof, and the presumption of innocence. Having not done so, the court allegedly deprived defendant of the opportunity to identify and excuse persons who were biased against him or unable to follow such laws. We disagree.

There is no constitutional right to voir dire per se. Nor is there any constitutional right to conduct voir dire in a particular manner. (People v. Robinson (2005) 37 Cal.4th 592, 613 [36 Cal.Rptr.3d 760, 124 P.3d 363].) Rather, the voir dire process serves as a means of implementing the defendant’s Sixth Amendment right to an impartial jury. (Robinson, at p. 613; accord, People v. Fuiava (2012) 53 Cal.4th 622, 654 [137 Cal.Rptr.3d 147, 269 P.3d 568] (Fuiava).)

Consistent with applicable statutory law, the trial court has wide latitude to decide the questions to be asked on voir dire (People v. Rogers (2009) 46 Cal.4th 1136, 1149 [95 Cal.Rptr.3d 652, 209 P.3d 977]), and to select the format in which such questioning occurs (see Stitely, supra, 35 Cal.4th 514, 536-539). The court likewise has broad discretion to contain voir dire within reasonable limits. (People v. Zambrano (2007) 41 Cal.4th 1082, 1120 [63 Cal.Rptr.3d 297, 163 P.3d 4].) Unless the voir dire “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.” (People v. Holt (1997) 15 Cal.4th 619, 661 [63 Cal.Rptr.2d 782, 937 P.2d 213] (Holt); accord, Fuiava, supra, 53 Cal.4th 622, 654; People v. Bolden (2002) 29 Cal.4th 515, 538 [127 Cal.Rptr.2d 802, 58 P.3d 931] (Bolden).) We know of no authority, and defendant cites none, suggesting that group voir dire is necessarily required, or that the trial court must always question every prospective juror either alone, or as part of a group, about general legal principles, including those at issue here.

In applying the foregoing authorities, we note as a threshold matter that defendant has not properly preserved his challenge to the fairness and adequacy of voir dire on reasonable doubt and similar concerns. Trial counsel requested a group voir dire on such general law after individual sequestered examinations had occurred and challenges for cause had been exercised. The court made a preliminary ruling that the individualized voir dire it had already conducted was sufficient, and that a resumption of the process in any form was unnecessary and unduly time consuming. After briefly discussing the matter further, and in an apparent abundance of caution, the court decided to give further instruction on the matter. Counsel did not object to this ruling on any ground. Instead, he embraced the court’s instructional approach and stopped pursuing additional voir dire.

Under these circumstances, defendant has forfeited his claim that the trial court’s rejection of his request for additional voir dire on certain issues, and its related decision to instruct jurors on their proper role at trial, was erroneous or incomplete. Regarding the alleged shortcoming in voir dire, defendant could not merely “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.” (Fuiava, supra, 53 Cal.4th 622, 653 [defendant forfeited claim that trial court should have asked questions he had requested about self-defense in the context of the particular case, where defendant did not object when the court instead asked prospective jurors about generally following the law on self-defense].)

Defendant’s substantive claim also fails on the merits. The trial court did not conduct voir dire alone, devoid of any meaningful participation by counsel. Rather, both parties had ample opportunity to probe for hidden bias and to explore any other factor bearing on juror impartiality. (See Holt, supra, 15 Cal.4th 619, 661.) Counsel took full advantage of the situation. Indeed, defendant admits in his opening brief on appeal that the court “did not restrict” counsel on voir dire. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 47 [17 Cal.Rptr.3d 710, 96 P.3d 30].)

Moreover, viewed as a whole, the oral examination and the questionnaires on which it was based covered the general principles of law that defendant now claims were not adequately explored on voir dire. Before completing the questionnaires, all prospective jurors were told that the reasonable doubt standard applied to a determination of guilt of the charged crimes, and that they must follow the law as instructed by the court. Against this backdrop, the questionnaire asked—albeit, in lay terms—about the presumption of innocence (i.e., whether the prospective juror had formed any bias or prejudged guilt) and about the People’s burden of proof (i.e., whether defendant must prove his own innocence).

Armed with the questionnaires, and guided by relevant written answers, both the court and counsel questioned prospective jurors about their views on the reasonable doubt standard, the burden of proof, and the presumption of innocence. The court began most exchanges by repeating its advisement on reasonable doubt. Where necessary or advisable, the court and counsel also explored whether prospective jurors could give defendant the benefit of these principles, or whether some bias or other factor would prevent them from following the law and instructions in this regard. In short, nothing prevented defendant from identifying and removing prospective jurors who did not understand or accept the general principles of law involved here.

Taking a different tack, defendant next contends that voir dire was prejudicially incomplete insofar as the trial court did not ask certain questions in the exact form recommended by the Judicial Council in the California Standards of Judicial Administration (Standards). (See, e.g., stds. 4.30(b)(13) [whether prospective juror can ignore everything heard as a juror in a prior criminal case and decide the present case based solely on the evidence and applicable law], 4.30(b)(14) [whether prospective juror can ignore instructions received as a juror in a prior civil case, and apply the different rules which govern the trial of criminal cases, including the People’s burden to prove guilt beyond a reasonable doubt], as renumbered and amended eff. Jan. 1, 2007.)

Contrary to what defendant implies, any trial court decision declining to use the Standards verbatim does not necessarily mean that voir dire failed to expose prospective jurors who were biased or unable to follow the law. (See, e.g., People v. Lopez (2013) 56 Cal.4th 1028, 1046 [157 Cal.Rptr.3d 570, 301 P.3d 1177]; Bolden, supra, 29 Cal.4th 515, 538.) Nor does any technical deviation from the Standards excuse a reviewing court from examining “ ‘the entire voir dire’ ” to determine whether it was sufficient to secure an impartial jury. (Lopez, supra, 56 Cal.4th at p. 1046, quoting Holt, supra, 15 Cal.4th 619, 661.)

As we have explained, our review shows that prospective jurors were informed before the exercise of challenges for cause about the need to apply the reasonable doubt standard and to follow the law and instructions. Later, at the start of the peremptory challenge phase, the court gave another reasonable doubt instruction that included additional principles about the People’s burden of proof and the presumption of innocence. In the interval between these two events, the trial court instructed and questioned specific jurors on all of these principles of law. Counsel on both sides freely asked their own informed questions on the topic. Thus, regarding the Standards, “all appropriate areas of inquiry [were] covered in an appropriate manner.” (Holt, supra, 15 Cal.4th 619, 661.)

Finally, defendant argues that voir dire concerning reasonable doubt and related principles was constitutionally deficient because defense counsel did not know until after all prospective jurors had been examined alone that no general group voir dire was planned. Citing no authority, defendant insists the trial court was required to specifically advise counsel of this procedure before jury selection began to ensure counsel examined each prospective juror about any biases he or she might harbor toward “specific legal doctrines.” No error occurred.

Contrary to what defendant suggests, defense counsel could not reasonably assume that group voir dire would inevitably occur or that it was necessary in light of jury selection procedures otherwise in place. Counsel presumably was competent and aware of the trial court’s authority to decide the manner in which questioning would occur, including the option to forgo general voir dire in open court. (See Holt, supra, 15 Cal.4th 619, 704 [assuming trial counsel had sound basis on which to conduct voir dire and ensure bias-free jury absent contrary evidence in record].) To this end, the trial court announced twice, before conducting any individual sequestered voir dire, that the private interviews would include, but would not be limited to, the death penalty. In fact, the court made clear that “additional areas” of potential bias would be explored, and that both the court and counsel would perform that task.

It follows that defense counsel was responsible during each individual sequestered session for being informed about any critical topic overlooked by the trial court, and for making tactical decisions on how best to respond. Counsel was on notice that he could examine prospective jurors one on one about their willingness and ability to apply reasonable doubt and related principles in determining guilt. As noted above, we presume counsel was competent to perform this task. Accordingly, the trial court had no constitutional or other duty to advise counsel about when or how to ask questions on certain general legal principles, or about individual sequestered voir dire constituting his sole opportunity to do so.

For all the foregoing reasons, we reject defendant’s claim that the trial court conducted an inadequate voir dire, or that reversible error otherwise occurred.

IV. GUILT AND SPECIAL CIRCUMSTANCE ISSUES

A. Relationship Between Charge and Conviction of Murder

Defendant observes that the information charged him with “MURDER, in violation of PENAL CODE SECTION 187(a),” and alleged that he acted “willfully, unlawfully, and with malice aforethought.” According to defendant, he stood accused only of “second degree malice murder,” and could not be convicted of first degree felony murder, as set forth in the instructions and verdict. Insisting he was never properly charged with the latter crime under section 189, defendant asks us to conclude that the trial court exceeded its jurisdiction and violated his federal and state constitutional rights to due process and a fair trial, trial by jury, and a reliable guilt determination. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15-17.)

Similar claims—whether framed in terms of a lack of jurisdiction, inadequate notice, erroneous instruction, insufficient proof, or the absence of jury unanimity—have been rejected before. As defendant recognizes, our cases have long made clear that an accusatory pleading charging malice murder supports conviction of first degree murder on a felony-murder theory. Malice murder and felony murder are two forms of the single statutory offense of murder. Thus, a charge of murder not specifying the degree is sufficient to charge murder in any degree. The information also need not specify the theory of murder on which the prosecution relies at trial. (See People v. Jones (2013) 57 Cal.4th 899, 968-969 [161 Cal.Rptr.3d 295, 306 P.3d 1136]); People v. Abel (2012) 53 Cal.4th 891, 937 [138 Cal.Rptr.3d 547, 271 P.3d 1040] (Abel); People v. Moore (2011) 51 Cal.4th 386, 412-413 [121 Cal.Rptr.3d 280, 247 P.3d 515] (Moore); People v. Geier (2007) 41 Cal.4th 555, 591 [61 Cal.Rptr.3d 580, 161 P.3d 104]; People v. Hughes (2002) 27 Cal.4th 287, 368-369 [116 Cal.Rptr.2d 401, 39 P.3d 432]; People v. Gallego (1990) 52 Cal.3d 115, 188-189 [276 Cal.Rptr. 679, 802 P.2d 169]; People v. Murtishaw (1981) 29 Cal.3d 733, 750-751 & fn. 11 [175 Cal.Rptr. 738, 631 P.2d 446]; In re Walker (1974) 10 Cal.3d 764, 781 [112 Cal.Rptr. 177, 518 P.2d 1129]; People v. Golston (1962) 58 Cal.2d 535, 539 [25 Cal.Rptr. 83, 375 P.2d 51]; People v. Witt (1915) 170 Cal. 104, 107-108 [148 P. 928].)

Defendant counters that insofar as we have recognized a single statutory offense of first degree murder, the only charging statute applicable here was section 189. This assertion stems solely from People v. Dillon (1983) 34 Cal.3d 441 [194 Cal.Rptr. 390, 668 P.2d 697]. In pertinent part, Dillon described section 189 “as a statutory enactment of the first degree felony-murder rule in California.” (Dillon, at p. 472.)

However, in People v. Harris (2008) 43 Cal.4th 1269 [78 Cal.Rptr.3d 295, 185 P.3d 727] (Harris), we rejected a similar argument, as follows: “Dillon made it clear that section 189 serves both a degree-fixing function and the function of establishing the offense of first degree felony murder. [Citation.] It defines second degree murder as well as first degree murder. Section 187 also includes both degrees of murder in a more general formulation.” (Id. at p. 1295.) As in Harris, the section 187 charge brought here supported a murder conviction in any degree, including first degree felony murder. Nothing in Dillon compels a different result. We decline to reconsider this view.

In his final challenge to the murder charge, defendant argues that the foregoing principles and authorities have been abrogated by Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi). The sole support for this claim is a statement in Apprendi that “ ‘any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.’ ” (Id. at p. 476, italics added.) The “fact” defendant claims was fatally omitted from murder as charged in the information here was his alleged commission of the serious felony (robbery) on which the first degree felony-murder verdict was ultimately based.

Contrary to what defendant implies, the Apprendi court expressly declined to address the constitutional implications, if any, of omitting sentencing factors from accusatory pleadings. (Apprendi, supra, 530 U.S. 466, 477, fa. 3 [noting that no “indictment question” was properly presented or actually addressed in the case].) Absent any authority compelling a different result, we conclude here, as in other cases, that defendant’s reliance on Apprendi is misplaced. (See Abel, supra, 53 Cal.4th 891, 938; People v. Famalaro (2011) 52 Cal.4th 1, 37 [127 Cal.Rptr.3d 40, 253 P.3d 1185] (Famalaro); Moore, supra, 51 Cal.4th 386, 413; Harris, supra, 43 Cal.4th 1269, 1295.)

In particular, Apprendi s core reasoning is that every factual finding (other than the fact of a prior conviction) required by law in order to increase the penalty beyond the prescribed statutory maximum for the offense is the “functional equivalent” for constitutional purposes of an element of a greater offense. (Apprendi, supra, 530 U.S. at p. 494, fn. 19.) Hence, consistent with due process and jury trial guarantees, sentencing factors having such an “ ‘elemental’ nature” must be submitted to a jury and proved by the state beyond a reasonable doubt. (Apprendi, at p. 494; see People v. Anderson (2009) 47 Cal.4th 92, 105-106, 116 [97 Cal.Rptr.3d 77, 211 P.3d 584].)

In light of the high court’s “narrow” holding (Apprendi, supra, 530 U.S. 466, 474), which focuses on facts that must be proved to, and found by, a jury, “[i]t is highly doubtful that Apprendi has any effect whatever on pleading requirements” (Famalaro, supra, 52 Cal.4th at p. 37). In other words, Apprendi’s requirements for how element-like sentencing factors must be proved and found create no “new notice requirements for alternative theories of a substantive offense such as a theory of first degree murder.” (Abel, supra, 53 Cal.4th at p. 938; accord, Moore, supra, 51 Cal.4th at p. 413.)

Thus, this court does not violate Apprendi by continuing to apply the traditional California rule that a murder charge under section 187 places the defense on notice of, and allows trial and conviction on, all degrees and theories of murder, including first degree felony murder under section 189. Defendant’s opposing view is unfounded. We reject it here.

B. Cross-examination of Lupe

Defendant argues that, for several reasons, the trial court erred in preventing him from admitting Lupe’s report cards to contradict testimony elicited on cross-examination about Lupe’s performance in high school after the capital crime. He alleges the court’s ruling violated his federal constitutional rights to due process, to confrontation and compulsory process, and to a reliable capital determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.)

1. Background

As noted, Lupe testified on direct examination about defendant’s statement promising to “get” anyone who spoke about the robbery murder. The implication, which redirect examination confirmed, was that Lupe felt personally threatened by defendant, and that he (Lupe) believed he would be harmed or killed if he made any incriminating statements. The prosecution elicited no other information about how the capital crime may have affected Lupe’s daily life at any point after December 29, 1994, the day the crime occurred.

With no initial objection from the prosecutor, defense counsel raised the latter issue near the end of Lupe’s cross-examination. Specifically, Lupe testified that he had read in the newspaper the day after the robbery murder that someone died in the store. Despite being scared and upset, Lupe did not report the incident to the police or to any other authority figure. Lupe testified, however, that once he was contacted by the police in August 1995, he had no difficulty cooperating with them and disclosing what he knew.

In the course of this exchange, defense counsel inquired about Lupe’s performance in high school during the same time period. When asked whether he did “better or worse” in school after the capital crime, Lupe replied, “I don’t know, a little worse.” He testified that as time passed, he felt no increased pressure to report the capital crime. Indeed, Lupe found that he “could concentrate more” a couple of months after returning to school in January 1995. He explained that he did not forget about the crime, but that the negative feelings did not bother him as much. Lupe further testified on cross-examination that, after first speaking with the police in August 1995, he felt relieved and “could concentrate better.”

At this point in the process, defense counsel asked whether Lupe had received any high school report cards, a question answered in the affirmative. The prosecutor requested a sidebar conference, and objected on relevance grounds. Defense counsel explained that, contrary to what Lupe had testified, his grades “went up” when he returned to school in January 1995, such that his existing 1.0 grade point average rose somewhat to “all Cs and passing.” Counsel contrasted this initial upward trend with Lupe’s grades after he spoke to the police in August 1995. That semester, according to counsel, Lupe’s grades did not improve as Lupe had implied they did. Rather, they “drop[ped] way down, worse than he had ever done. He had some D-minuses and Cs.”

Consistent with the prosecutor’s view, the trial court declined to allow Lupe to be cross-examined about his report cards. Lupe’s grades had no logical bearing, the court said, on whether Lupe felt good or bad because of the capital crime. The court viewed any inferences raised in that regard as improper impeachment on a collateral matter, saying, “It is way, way out.”

Cross-examination resumed. Defense counsel raised the possibility that Lupe was not telling the truth regarding his feelings about the capital crime and cooperating with the police. First, Lupe was asked whether, between the time the capital crime occurred in December 1994, and the time Lupe spoke to the police in August 1995, he was not actually bothered or distressed because he was “not really at the little market the day that the incident happened.” The answer was “No.” In a followup question, counsel asked whether, from the time Lupe spoke to the police about the capital crime through the next semester in school, he was actually bothered and distressed because he had “claimed to be involved in that incident when [he] really [was not].” Again, Lupe answered, “No.” This line of inquiry ended when Lupe denied implicating defendant in the shooting in order to shift blame away from Jose, defendant’s alleged accomplice and the boyfriend of Lupe’s sister, Yesenia.

Following both redirect and recross-examination, and outside the presence of the jury, defense counsel renewed his request to admit the report cards to impeach Lupe’s testimony about his school performance and about his feelings regarding the capital crime. Counsel claimed it was “common knowledge that young people do have problems with school” and that poor grades show “when a problem’s going on in their life.” All counsel sought to do, he said, was to ask Lupe about the apparent discrepancy between his testimony concerning the effect of his feelings on his school performance on the one hand, and his grades as reflected in his report cards on the other hand. In the alternative, counsel was willing to offer only the report cards themselves into evidence.

The prosecutor again objected on relevance grounds. She argued that the defense had not shown that there was any link between Lupe’s grades and the capital crime, or that other life problems had not affected his school performance.

Consistent with its prior ruling, the trial court declined to admit the grade reports in any form. The court reasoned that such evidence had “no relevance to anything.” In other words, to the extent Lupe’s actual grades contradicted his testimony about his school performance, such impeachment would involve an irrelevant, collateral matter. Hence, the court saw no reason to discuss whether the probative value was substantially outweighed by the risk of unfair prejudice, jury confusion, or the undue consumption of time under Evidence Code section 352. On this score, the court said, “I don’t think I even have to bring in [section] 352 because [the proffered impeachment evidence] is simply not relevant.”

2. Manner in which trial court exercised its discretion

Defendant first argues that the report cards contradicted Lupe’s testimony about whether the capital crime upset him and affected his school performance. This information, which was elicited on cross-examination, was assertedly material because it bore on the larger question whether Lupe was credible insofar as he implicated defendant in the capital crime. On this basis, defendant claims the trial court abused its discretion in preventing him from asking Lupe about his report cards and in excluding them at trial. We disagree.

To be relevant, evidence must have some “tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) This definition includes evidence “relevant to the credibility of a witness.” (Ibid.; see Evid. Code, § 780 [the fact finder may consider matters relevant to the truthfulness of the witness’s testimony].)

Conversely, a matter is “collateral” if it has no logical bearing on any material, disputed issue. (People v. Rodriguez (1999) 20 Cal.4th 1, 9 [82 Cal.Rptr.2d 413, 971 R2d 618] (Rodriguez}.) A fact may bear on the credibility of a witness and still be collateral to the case. {Ibid, [preventing prosecution witness who saw the murder from the roof of his apartment building from being impeached with evidence disputing his claim that he had management’s permission to be there]; see People v. Dement (2011) 53 Cal.4th 1, 50-52 [133 Cal.Rptr.3d 496, 264 P.3d 292] (Dement) [holding that an inmate who testified for the prosecution about seeing a prison murder could not be impeached with evidence that he had lied in court about a murder he was convicted of many years before]; Harris, supra, 43 Cal.4th 1269, 1291-1292 [not allowing prosecution witness who described alleged murderer’s incriminating statements to be impeached with his poor performance on juvenile probation even though it showed lax character].)

Of course, the trial court has wide latitude under state law to exclude evidence offered for impeachment that is collateral and has no relevance to the action. (People v. Homick (2012) 55 Cal.4th 816, 865 [150 Cal.Rptr.3d 1, 289 P.3d 791]; Harris, supra, 43 Cal.4th 1269, 1291; Rodriguez, supra, 20 Cal.4th 1, 9-10.) This exercise of discretion necessarily encompasses a determination that the probative value of such evidence is “substantially outweighed” by its prejudicial, “confusing,” or time-consuming nature. (Evid. Code, § 352; see People v. Lewis (2001) 26 Cal.4th 334, 374-375 [110 Cal.Rptr.2d 272, 28 P.3d 34] [noting that Evid. Code, § 352 gives trial court broad power to prevent “ ‘ “nitpicking” ’ ” over “ ‘ “collateral credibility issues” ’ ”].)

Also, as long as the excluded evidence would not have produced a “ ‘ “significantly different impression” ’ ” of the witness’s credibility, the confrontation clause and related constitutional guarantees do not limit the trial court’s discretion in this regard. (Dement, supra, 53 Cal.4th 1, 52 [The “ ‘ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense.’ ”]; see Harris, supra, 43 Cal.4th 1269, 1292 [“ ‘Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.’ ”]; accord, People v. Mendoza (2011) 52 Cal.4th 1056, 1090 [132 Cal.Rptr.3d 808, 263 P.3d 1].)

Here, the trial court did not abuse its discretion in excluding the report cards as virtually irrelevant and wholly collateral to the case. The report cards showed nothing more than that Lupe’s grade pattern differed from his testimony about his school performance (i.e., whether his performance or concentration was “worse” or “better”) in the months after the capital crime. At most, the report cards suggested he was lying or mistaken about the pattern of his grades during that time. Any discrepancy between Lupe’s grade pattern and his related testimony does not show (1) why he performed in school in a particular manner and earned certain grades, (2) whether he saw events at the crime scene or heard the perpetrators’ admissions afterwards, or (3) whether he had any reason to falsely implicate defendant in the latter events. In other words, no substantive inference could be drawn from the report cards, or from any testimony proffered thereon, about defendant’s guilt of the capital crime. Hence, the report cards merely constituted an attempt to collaterally impeach Lupe on an irrelevant matter.

It bears emphasis that the defense otherwise had “ample opportunity” to impeach Lupe. (Harris, supra, 43 Cal.4th 1269, 1292.) Cross-examination revealed certain discrepancies between Lupe’s trial testimony on the one hand, and both his testimony at the preliminary hearing and his statements to police on the other hand. Examples included whether defendant or Jose ever told Lupe what happened inside the Casa Blanca Market; whether defendant, Jose and Santos used masks when committing the capital crime; and whether Louis made a U-tum to pick up defendant and Jose before fleeing the crime scene. Lupe testified that he either could not remember, or did not know, why his various accounts may have differed in these respects.

In addition, defense counsel tested Lupe’s memory of certain details he gave on direct examination. This process covered key issues, such as the circumstances under which the guns were placed in Louis’s car before the capital crime. Lupe was a