Full opinion text
Opinion BAXTER, J. A jury convicted defendant Jonathan Keith Jackson of the first degree murder of Monique Cleveland (Pen. Code, § 187), the willful, deliberate, and premeditated attempted murder of Robert Cleveland (§§ 664, 187), and being a felon in possession of a firearm (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1)). The jury found true the allegations that defendant inflicted great bodily injury upon the attempted murder victim (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)), that he personally used a handgun in the commission of the murder and attempted murder (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)), and that a principal was armed with a handgun in the commission of the murder (§ 12022, subd. (a)(1)). The jury also found true the special circumstance that the murder was committed while defendant was engaged in the commission or attempted commission of a robbery. (§ 211; former § 190.2, subd. (a)(17)(i), now § 190.2, subd. (a)(17)(A).) The jury, however, was unable to reach a penalty verdict as to the murder conviction, and the court declared a mistrial. At the penalty retrial, the jury returned a verdict of death on the murder conviction. Appeal to this court is automatic. (§ 1239, subd. (b).) As we explain below, we find no prejudicial error at the guilt or penalty phase of defendant’s trial. We therefore affirm the judgment in its entirety. I. Facts A. The Guilt Phase Robert Cleveland (Robert) and his wife, Monique Cleveland (Monique), were shot during an attempted robbery at their residence. Monique was shot in the face and died. Robert survived gunshot wounds to his face, upper back, and abdomen. The evidence included Robert’s account of the crimes and testimony from two witnesses who heard defendant, at separate times, confess to the crimes. 1. The Prosecution Case In June 1996, Robert and Monique lived in a remote area of Mead Valley. Robert was a drug dealer who regularly sold to members of the Mead Valley Gangster Crips, including defendant, whom Robert knew by the name “Valley J.” Robert conducted many drug transactions in his home and often hid drugs in a light fixture in a recessed part of the kitchen ceiling. One night in June 1996, members of the Blanton family, who lived nearby, heard multiple gunshots. Shortly thereafter, they received a call from Robert asking for help. Robert had also called 911 to report the shootings. Michael Blanton and his two daughters rushed to the Cleveland home, where they found Robert slumped on the back porch, bleeding from gunshot wounds. Robert could barely speak but said he had been shot by Valley J. Monique was found in the hallway; she had been shot in the face and was already dead. Michael Blanton noticed that the plastic cover from the light fixture in the kitchen ceiling was on the ground. When police officers arrived at the scene, Robert was struggling to remain conscious. He told the responding officers that Valley J. and two or three other individuals had tried to rob him, and that Valley J. had shot him. Inside the house, the police found “Vally J” written in blood on the kitchen floor. In the bedroom, the police located a phone book listing a number for “Valley J.”; that number corresponded to a phone at the house where defendant’s girlfriend lived. The police also discovered a package of rock cocaine in the light fixture in the kitchen. A total of $507 was found in two different pairs of pants belonging to Robert. Robert underwent multiple surgeries to repair the gunshot injuries to his face, upper back, and abdomen. While recuperating in the hospital, Robert identified a photograph of defendant as Valley J. During a search of defendant’s grandparents’ house, the police recovered a green folder with the written notation “Mista Valley Jay, MVGC Crips.” The folder contained paperwork bearing both defendant’s real name and the moniker “Valley Jay.” Defendant was later taken into custody in Los Angeles for drinking in public; he gave the arresting officer a couple of false names. Robert was one of the three main witnesses in the guilt phase, and he testified as follows. On the night of the shooting, defendant came to Robert’s house in a minivan containing at least three other individuals. Defendant got out and knocked on the door. As Robert picked up his .45-caliber handgun and went to answer the door, he heard Monique go into the bathroom down the hall. Robert let defendant in and locked the door behind him. Defendant owed Robert $150 from a previous drug transaction and wanted to get additional drugs. Robert told defendant he did not have any drugs for him that night and said they could discuss the matter again the next morning. During the course of this conversation, Robert set his gun down on the kitchen counter. As defendant walked toward the door to leave, he suddenly pulled out a gun and shot Robert in the face from one or two feet away. Robert fell to the floor and looked up to see defendant struggling with his gun, which apparently had jammed. As Robert started to pull himself up from the floor, defendant opened the door. One of defendant’s companions then entered and shot Robert in the side while saying, “Where’s the money? Where’s the drugs?” and “Let’s get the bitch too.” At least one other person also entered the house. When the men asked where the drugs were hidden, Robert pointed to the light in the recessed kitchen ceiling and then heard the light cover hit the ground. Robert began losing consciousness and was only vaguely aware of hearing additional gunshots. He did not recall being shot a third time. After the men left, Robert regained consciousness. Thinking he was dying, Robert wrote defendant’s name in blood on the kitchen floor and then somehow managed to call for help. Although drugs and large sums of cash had been in the house, it appeared nothing was taken. The second main witness was Kevin Jackson (Jackson), who was unrelated to defendant. Jackson testified that a day or two after the shooting, he was smoking marijuana with defendant and “Alex” and asked whether they had heard that Robert and Monique had been shot and killed. Defendant replied, “Yeah. So what?” A short time later, defendant told Jackson, “Don’t trip, but I did that.” Defendant then described to Jackson a version of the events that largely tracked Robert’s testimony. Defendant said he had gone to purchase drugs from Robert, but there had been a dispute about the money defendant owed Robert. Defendant felt that Robert had “disrespected] ” him, and defendant decided “to take what he came for instead of paying for it.” Defendant left the house and went to the car where his friends were waiting. He told them he was going to “jack” Robert and “take everything [he] had.” Defendant returned to the house, and Robert answered the door holding a gun. When Robert put the gun on the counter, defendant pulled out his own gun. Robert was substantially bigger than defendant, and he jumped at defendant and tried to take defendant’s gun. Defendant had recently been hospitalized following a motorcycle accident and “couldn’t take a chance on [Robert] grabbing him,” so defendant stepped back and shot Robert. Defendant then let in his “homies,” and one of them told him to finish what he started. Defendant found Monique in another part of the house. While she was down on the floor, he grabbed her by the hair and asked her where the money was. Monique replied, “What money?” Defendant then “blew her brains out,” using a gun he had borrowed from one of his cohorts. During their conversation, defendant opened a nightstand drawer and showed Jackson the gun he used to shoot Robert. The third main witness was Kevin Jackson’s younger brother, Donald Profit, who was 14 years old at the time of the crimes. Like defendant, Profit was a member of the Mead Valley Gangster Crips. Profit testified he was smoking marijuana with defendant one or two days after the crimes, when defendant told Profit he “messed up” and confessed to shooting Robert and Monique. Defendant said he shot Robert in the head because he “had to get paid” and shot Monique because he “didn’t want no witnesses.” Defendant and his cohorts then searched the house for drugs. Profit claimed defendant told him he had taken eight ounces of “dope” from Robert. Profit later stated he had seen defendant with this quantity of drugs some two weeks before the shooting. Two expert witnesses testified regarding the likely manner in which Monique had been killed. Dr. Joseph Choi, a forensic pathologist who performed the autopsy, testified the gun had likely been between two and four inches from her face when she was shot. In his opinion, Monique’s injuries indicated she had been lying facedown on the floor while the shooter stood over her, lifted her head by the hair, and shot her in the left cheek. Elissa Mayo, a senior criminalist with the California Department of Justice, analyzed the blood spatter at the crime scene. Based on that analysis, Mayo estimated that Monique’s head was no higher than two feet above the floor when she was shot. 2. The Defense Case The defense rested without introducing any evidence. B. The Penalty Phase After convicting defendant of the charged crimes, the jury was unable to reach a penalty verdict. The following evidence was presented at the penalty retrial. 1. The Prosecution Case The prosecution introduced evidence of the circumstances of the crime. As he did in the guilt phase, Kevin Jackson recounted the story defendant had told him shortly after the shooting. Testimonial evidence and an autopsy photograph established that Monique was one month pregnant when she was murdered. Evidence concerning the circumstances of defendant’s prior convictions also was presented. Joseph Canada testified that in July 1991, he had pulled his car off to the side of the road to eat his lunch and then dozed off. When Canada awoke, he saw defendant, who appeared to be 16 years old, pointing a shotgun directly at Canada’s face from two to three feet away. Three other teenage males were pointing shotguns at Canada from a Jeep Cherokee parked approximately 10 to 15 feet away. Defendant demanded Canada’s wallet and keys and told him to lie facedown in the dirt. Canada thought he was going to die, but the teens drove off, taking Canada’s car along with the Jeep. Once they had gone, Canada mshed to a nearby house and called 911. Defendant and his accomplices were soon spotted and led the police on a chase. They eventually surrendered after a two-hour standoff. The incident continued to affect Canada years afterward. In July 1992, defendant and his cousin, Derrick Palmer, committed an armed robbery of a drugstore. While Palmer disarmed the store’s owner and took cash out of the register, defendant approached two store employees. One of these employees, Kenny Johnson, testified that defendant pointed a loaded gun at his face. Defendant then put his knee in Johnson’s back and jammed the gun into his neck so hard that it caused a blood clot. Defendant asked where the store cameras were, and Johnson replied there were no cameras. Defendant told Johnson: “When I count to three, if you don’t tell me, you’re dead.” Defendant counted to two, then ran away. Both Palmer and defendant were arrested after their mothers turned them in to the police. In September 1994, two police officers stopped a car in which defendant was riding in the front passenger seat. When defendant exited the car, the officers discovered a loaded handgun on his seat. Defendant was arrested for being a felon in possession of a loaded firearm. The prosecution also introduced evidence of the following altercations involving defendant while he was in jail or prison. In June 1995, James Ghan was a correctional officer at Mule Creek State Prison (Mule Creek), where there was tension between inmates in the Crips gang and inmates in the 415 gang. Ghan witnessed a group of six to eight 415 inmates rush across the prison yard to attack two or three Crips inmates. Other Crips ran to join the fray. Eventually as many as 18 people were involved in the brawl, which ended shortly after Ghan shot a 415 inmate who was kicking a Crips inmate in the head. Defendant was later identified as one of the Crips who participated in the brawl, although his role in the fight was unclear. Correctional Sergeant Vern Nichols testified that in August 1995, defendant and two other Mule Creek inmates refused an officer’s order to “get down” after a fight had broken out between two inmates elsewhere in the prison. One of the three inmates told the officer, “Fuck you. We don’t have to get down,” but Nichols was not sure whether it had been defendant. In November 1995, Correctional Officer Floyd Haynes saw defendant and another Mule Creek inmate fighting in the basketball court area of the prison yard. Haynes yelled at them to stop fighting and get down on the ground, which they did. Haynes was not sure what had prompted the fight. William Rose, a correctional deputy with the Riverside County Sheriff’s Department, testified about an incident that occurred when defendant was being held in the Southwest Detention Center. On one occasion in September 1996, defendant refused an order to respond to the guards who were conducting a head count. When defendant subsequently stepped out of his cell and was handcuffed, he used profanity and challenged the guards to a fight. In June 1997, Correctional Officer Jerry Baker broke up an altercation between defendant and inmate Robert Mayo in defendant’s cell at the Robert Presley Detention Center. Mayo claimed that he had gone into defendant’s cell after the two argued while playing basketball, and that defendant had “sucker-punched” him in the back of the head. With respect to victim impact testimony, Monique’s cousin, Jeannette Bums, described Monique’s life and the impact of her death on their family. 2. The Defense Case Four family members appeared on defendant’s behalf. Defendant’s maternal grandparents each testified that defendant’s father had little or no role in raising his son. Defendant’s grandfather also claimed that defendant, after getting out of prison, injured his head in a motorcycle accident and did not seem to be the same person afterward. Defendant’s older brother, Antione Jackson (Antione), described in detail the circumstances of defendant’s upbringing. When Antione was five and defendant was four, their mother moved in with a man named Alonzo. Antione described the year during which they lived with Alonzo as “torture.” Antione and defendant saw Alonzo beat their mother many times. Defendant tried to defend his mother, but Alonzo would throw him across the room. Antione also recalled numerous times when he, defendant, and their mother were forced to accompany Alonzo on trips to steal cars. A short time after their mother moved them out of Alonzo’s house, Alonzo came to their grandmother’s home with his “flesh burning,” like he was “melting.” Alonzo eventually died from his bums. After Alonzo was out of the picture, Antione and defendant were exposed to a great deal of violence. Their mother became abusive. She also moved them back and forth between neighborhoods affiliated with either the Crips or the Bloods, and children associated with the gangs often attacked them or challenged them to fights. Antione recounted his own early involvement in gangs and crimes, his extrication from his gang affiliations, and his later service in the army. Defendant’s mother, Paula Rice, confirmed and expanded on much of the testimony by her parents and Antione. Defendant’s biological father became a drug addict soon after defendant’s birth and had never been a part of his life. Rice spoke of the daily physical abuse she endured from Alonzo, which was regularly witnessed by, and sometimes involved, defendant. She also described the incredible lengths to which Alonzo would go to keep her under his control, and said he raped her in front of defendant on multiple occasions. Rice was able to move her family out of Alonzo’s house only after she responded to one of his regular beatings by stabbing him with a pair of scissors. Their relationship ended a few months later when he died from his bum injuries. Subsequently, Rice regularly moved the family between gang-affiliated neighborhoods, which often resulted in her two sons being attacked. Rice also described her involvement in another abusive relationship when defendant was approximately 13 years old, and defendant’s attempts to physically defend her on multiple occasions. II. Discussion A. Use of Stun Belt at Trial Defendant contends the trial court’s orders requiring him to wear a REACT stun belt during his trial were an abuse of discretion and violated his constitutional rights to due process, effective assistance of counsel, and a reliable penalty phase trial. These alleged errors and constitutional violations, he claims, require reversal of his convictions and death judgment. 1. Governing Legal Principles A trial court “ ‘has broad power to maintain courtroom security and orderly proceedings.’ [Citation.] On appeal, its decisions on these matters are reviewed for abuse of discretion.” (People v. Virgil (2011) 51 Cal.4th 1210, 1270 [126 Cal.Rptr.3d 465, 253 P.3d 553] (Virgil).) In People v. Duran (1976) 16 Cal.3d 282 [127 Cal.Rptr. 618, 545 P.2d 1322] (Duran), a case involving visible shackling, we held that “a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints.” (Id. at pp. 290-291, italics added.) Federal law is in accord. (See Deck v. Missouri (2005) 544 U.S. 622, 624 [161 L.Ed.2d 953, 125 S.Ct. 2007] [federal Constitution “forbids the use of visible shackles . . . unless that use is ‘justified by an essential state interest’ . . . specific to the defendant on trial”].) In Mar, supra, 28 Cal.4th 1201, we extended Duran's “manifest need” standard to the use of visible and nonvisible electronic stun belts. (Mar, Even though Mar was the first California opinion to hold Duran’s manifest need standard applicable to stun belts, we have applied the standard to cases tried before Mar was decided. (E.g., Virgil, supra, 51 Cal.4th at pp. 1269-1271; People v. Lomax (2010) 49 Cal.4th 530, 558-562 [112 Cal.Rptr.3d 96, 234 P.3d 377]; People v. Gamache (2010) 48 Cal.4th 347, 366-370 [106 Cal.Rptr.3d 771, 227 P.3d 342]; Mar, supra, 28 Cal.4th at pp. 1222-1223.) However, in cases where the trial predated Mar, we have not faulted the courts for failing to consider the potential physical harm and psychological impact of stun belts as part of the manifest need determination. (Virgil, supra, 51 Cal.4th at p. 1271 [observing Mar discussed these points to provide guidance in future trials]; Lomax, at p. 562; Gamache, at p. 367, fn. 7; Mar, at pp. 1225-1230.) As we have explained, the unjustified use of a stun belt may adversely affect the fairness of a trial or the reliability of a judgment in various ways. Like shackles that are visible to the jury, visible stun belts “may erode the presumption of innocence because they suggest to the jury that the defendant is a dangerous person who must be separated from the rest of the community.” (People v. Hernandez (2011) 51 Cal.4th 733, 742 [121 Cal.Rptr.3d 103, 247 P.3d 167]; see Duran, supra, 16 Cal.3d at p. 290 [visible shackling will likely lead jurors to infer the defendant is a violent person].) Moreover, as in cases of forced shackling, the forced wearing of a stun belt may discourage the defendant from taking the stand, or may impair the defendant’s credibility if he or she decides to testify. (Mar, supra, 28 Cal.4th at pp. 1224—1225; Duran, at p. 296.) Additionally, “requiring an unwilling defendant to wear a stun belt during trial may have significant psychological consequences that may impair a defendant’s capacity to concentrate on the events of the trial, interfere with the defendant’s ability to assist his or her counsel, and adversely affect his or her demeanor in the presence of the jury.” (Mar, at p. 1205.) In Duran, supra, 16 Cal.3d 282, and Mar, supra, 28 Cal.4th 1201, the respective trial courts failed to require a showing of manifest need before ordering the defendants to wear restraints while testifying. In Duran, we found it significant that, due to the erroneous order, the defendant was forced to wear visible wrist and anide restraints while exercising his right to testify. (Duran, at p. 296.) We also determined the defendant should have been “afforded a proper and full opportunity to cross-examine” a critical witness and was “denied a proper and full opportunity to explain why he fled” from the crime scene. (Id. at pp. 295-296.) Observing that the evidence inculpating the defendant did not compel a guilty verdict, and that the visible shackling damaged the defendant’s credibility in the eyes of the jury, we concluded the compounded effect of these errors required reversal of the judgment under People v. Watson (1956) 46 Cal.2d 818 [299 P.2d 243] (Watson). (Duran, at pp. 295-296.) In Mar, the defendant was forced to wear a stun belt that was not visible to the jury. The defendant, however, had “clearly stated that the device made it difficult for him to think clearly and that it added significantly to his anxiety, and the trial transcript confirm[ed] that defendant was nervous while testifying at trial.” (Mar, supra, 28 Cal.4th at p. 1224.) “Moreover, defense counsel specifically noted that defendant was ‘afraid that somebody’s going to push the button,’ and in light of the circumstances that defendant was on trial for having caused an injury to a law enforcement officer and that the activation of the stun belt was to be controlled by another law enforcement officer, defendant’s expressed anxiety in this regard, even if not justified, [was] plausible.” (Id. at pp. 1224-1225.) Because of “the relative closeness of the evidence, the crucial nature of defendant’s demeanor while testifying, and the likelihood that the stun belt had at least some effect on defendant’s demeanor while testifying,” we concluded the error was prejudicial, even under the Watson standard. (Id. at p. 1225.) Thus, in both Duran and Mar, the respective records disclosed that the unjustified use of shackling and a stun belt had adverse effects that were not harmless. In contrast to the situations presented in Duran and Mar, reversal of a judgment is unwarranted when the record on appeal is devoid of evidence that the unjustified use of shackles or a stun belt had any adverse effect. For instance, while restraints have the potential to bias jurors against the defendant (People v. Hernandez, supra, 51 Cal.4th at p. 742; Duran, supra, 16 Cal.3d at p. 290), their use may be harmless when there is no indication the jurors saw the restraints (see People v. Manibusan (2013) 58 Cal.4th 40, 85 [165 Cal.Rptr.3d 1] (Manibusan) [finding of harmlessness based in part on circumstance that “[n]othing in the record suggests that any juror saw the belt. . .”]; People v. Foster (2010) 50 Cal.4th 1301, 1322 [117 Cal.Rptr.3d 658, 242 P.3d 105]; People v. Letner and Tobin (2010) 50 Cal.4th 99, 155 [112 Cal.Rptr.3d 746, 235 P.3d 62] (Letner) [“we do not presume the prospective jurors viewed the restraint, and there is no evidence in the record demonstrating they did observe it”]; accord, U.S. v. McKissick (10th Cir. 2000) 204 F.3d 1282, 1299 [refusing to presume prejudice where no evidence in record that any juror noticed the stun belt]). Likewise, while restraints can impair a defendant’s ability to testify effectively (Duran, supra, 16 Cal.3d at p. 296), their use may be harmless when the defendant chose not to testify at trial, and there is nothing in the record suggesting a nexus between that decision and the forced wearing of the restraint. (Virgil, supra, 51 Cal.4th at p. 1271; see People v. Combs (2004) 34 Cal.4th 821, 838-839 [22 Cal.Rptr.3d 61, 101 P.3d 1007]; People v. Anderson (2001) 25 Cal.4th 543, 596 [106 Cal.Rptr.2d 575, 22 P.3d 347]; People v. Cox (1991) 53 Cal.3d 618, 652 [280 Cal.Rptr. 692, 809 P.2d 351].) Finally, while shackles and stun belts certainly “have the potential to impair an accused’s ability to communicate with counsel or participate in the defense,” the erroneous imposition of those restraints may be harmless where the record “does not reveal that any such impairment occurred.” (People v. Ervine (2009) 47 Cal.4th 745, 773-774 [102 Cal.Rptr.3d 786, 220 P.3d 820] [shackling]; see Manibusan, supra, 58 Cal.4th at pp. 85-86 [stun belt]; People v. Howard (2010) 51 Cal.4th 15, 30 [118 Cal.Rptr.3d 678, 243 P.3d 972] (Howard) [stun belt]; Letner, supra, 50 Cal.4th at p. 156 [“no evidence in the record demonstrating that [the defendant’s] ability to participate was affected in any manner by his wearing the leg brace”]; People v. Wallace (2008) 44 Cal.4th 1032, 1051 [81 Cal.Rptr.3d 651, 189 P.3d 911] (Wallace) [no evidence that shackling caused defendant to suffer from mental impairment, physical pain, or obstruction of communication with counsel, or that it influenced his decisions regarding testifying]; People v. Combs, supra, 34 Cal.4th at p. 839 [noting no evidence or claim that the defendant’s leg restraints influenced him not to testify, or that the restraints “distracted him or affected his demeanor before the jury”]; accord, Weaver v. State (Fla. 2004) 894 So.2d 178, 196; Stanford v. State (2000) 272 Ga. 267 [528 S.E.2d 246, 249-250]; State v. Odenbaugh (La. 2011) 82 So.3d 215, 257-258; State v. Johnson (2006) 112 Ohio St.3d 210 [2006 Ohio 6404, 858 N.E.2d 1144, 1179-1180].) 2. Analysis We turn to the facts in this case. Prior to defendant’s trial, which preceded Mar, supra, 28 Cal.4th 1201, defendant objected to being physically restrained and shackled during any of the court proceedings against him. At the time, the only published authority addressing a trial court’s discretion to order a defendant to wear a REACT stun belt was People v. Garcia (1997) 56 Cal.App.4th 1349 [66 Cal.Rptr.2d 350] (Garcia), which concluded that, unlike shackling, a stun belt was not a physical restraint requiring an on-the-record showing and finding of manifest need. (Id. at pp. 1355-1356 & fn. 1.) In light of Garcia, the prosecution responded to defendant’s objections with a request that defendant be required to wear a stun belt throughout the trial, or in the alternative, that defendant be given the option of wearing shackles instead. The prosecution supported its stun belt request by pointing to the allegations of the charged crimes and the incidents described in the statement of aggravation. Based on a deputy’s assurance that having two deputies in the courtroom during defendant’s trial would provide adequate security, the court declined to order shackling and determined that a stun belt would not be necessary. The court ultimately required use of a stun belt after the sheriff’s department could not guarantee the presence of two deputies unless a belt were ordered. When defendant first wore the belt in the courtroom, the court noted the belt had “a special safety guard” and stated that if problems were to “arise with comfort, or so forth,” defendant should “just let the deputies know at breaks. We will make him as comfortable as possible.” Defense counsel immediately stated the belt was uncomfortable for defendant and did not allow him to lean back in his chair, so the attending deputy worked to adjust the belt. Because the deputy thought defendant was concerned that leaning back would activate the belt, he assured defendant and the court that that would not happen. After the belt was adjusted and defendant was given a pillow, defendant said, “That’s a little better.” Later that day, defense counsel reported to the court that defendant was “indicating for just this afternoon” that he was very uncomfortable because the belt seemed tighter than before. The court ordered the attending deputy to do whatever he could to make defendant comfortable, and the deputy agreed. When the court acknowledged during this exchange that “sitting backwards with the box at the hip . . . certainly can be uncomfortable,” defense counsel stated, “Judge, just so we’re clear, I think we resolved that problem. I think he’s just got it on too tight today.” After the belt was readjusted, the defense reported no additional complaints or concerns about the stun belt at the guilt phase or the first penalty trial. After the first jury could not reach a penalty verdict, a different judge was assigned to preside over the penalty retrial. The prosecution again requested use of a stun belt, and defense counsel objected on two grounds. First, counsel argued the belt was unnecessary because defendant had not done “anything in the past to exhibit any kind of unruly behavior or any disrespect to the Court or any staff.” Second, the belt was uncomfortable for defendant, and counsel was “worried about any unconscious grimacing or exhibitions of discomfort that [defendant] might make that might be misconstrued by the jury as a reaction to witness testimony or anything like that.” When counsel asked the court to instead consider ordering a leg brace, the court expressed its belief that shackling was “most offensive.” Upon determining that a leg brace would not sufficiently address its concerns “about the violent nature of [defendant’s] responses to people in authority,” the court approved use of a stun belt and ordered a pillow to alleviate defendant’s discomfort. Defendant first contends the trial court abused its discretion in forcing him to wear the belt during the guilt phase because (1) having determined the belt would not be necessary if two deputies were available, the court should have ordered the sheriff’s department to provide two deputies instead of deferring to the department’s policy of not providing a second deputy unless a belt were ordered (see Mar, supra, 28 Cal.4th at p. 1218 [trial court must make its own determination of the manifest need for restraints and may not “abdicate^ this decision-making authority to security personnel or law enforcement”]); and (2) the court required use of the belt despite the absence of any on-the-record showing of nonconforming conduct by defendant (see id. at pp. 1220-1221). Defendant further contends the trial court abused its discretion in ordering a stun belt for the penalty retrial because (1) as before, there was no on-the-record showing of nonconforming conduct by defendant, and the court instead relied on unsworn out-of-court statements of an unidentified bailiff in concluding the belt was necessary (see Mar, supra, 28 Cal.4th at pp. 1220-1221); (2) the court failed to consider defendant’s three-year record of courtroom cooperation; and (3) the court failed to consider less drastic alternatives to the stun belt, such as additional deputy presence in the courtroom (see id. at p. 1206 [“court should impose the least restrictive measure that will satisfy the court’s legitimate security concerns . . .”]). In light of the People’s concession at oral argument that the trial court erred under Mar, supra, 28 Cal.4th 1201, we proceed directly to the issue of prejudice. As we shall explain, the record affirmatively dispels any notion of prejudice, leaving no reasonable possibility that defendant would have received a more favorable verdict had the trial court not required him to wear a stun belt. (People v. Brown (1988) 46 Cal.3d 432, 446-448 [250 Cal.Rptr. 604, 758 P.2d 1135] (Brown).) First, there is no evidence in the record that the jurors saw the stun belt at any time. Thus, there is no basis for finding that visibility of the belt may have biased the jurors’ perception of his character. (See People v. Foster, supra, 50 Cal.4th at p. 1322; Letner, supra, 50 Cal.4th at p. 155.) Second, defendant chose not to take the stand, and the record contains no suggestion the forced wearing of the belt played any role in that decision so as to inhibit his defense. (See Wallace, supra, 44 Cal.4th at p. 1051; People v. Cox, supra, 53 Cal.3d at p. 652.) We next assess whether the stun belt had any other adverse effect on defendant. During the first trial, the only time defendant voiced complaints about the belt’s effects was on the first day he wore it. In the morning, he complained the belt was uncomfortable and would not allow him to lean back in his chair. In response, the court had the belt adjusted, offered defendant a different chair (which he declined), and provided him a pillow. That afternoon, defendant again indicated discomfort because of the stun belt. At that point, defense counsel clarified that defendant’s earlier difficulty with leaning back had been “resolved,” and that the issue that afternoon pertained merely to the belt’s feeling tighter to defendant than before. The stun belt was readjusted, and the defense reported no additional complaints or concerns about the belt through the conclusion of the first trial. At a hearing before the penalty retrial commenced, defense counsel expressed worry to the trial court that the stun belt might cause defendant to unconsciously grimace or exhibit discomfort that might be misconstrued by the jury as a reaction to witness testimony. As in the first trial, the court ordered defendant to wear the belt but made sure a pillow was provided to address the discomfort issue. The retrial proceeded to its conclusion without any defense claim or assertion that the stun belt was affecting defendant’s demeanor. We observe that, at the outset of the first trial, the attending deputy said he thought defendant might be concerned that leaning back would activate the stun belt. Although the defense offered no indication that defendant actually had this worry, the deputy assured defendant and the court that leaning back would not activate the belt. Throughout the duration of both trials, the defense never once stated or suggested that the threat of electric shock affected defendant’s mental state or that the belt caused him to experience mental stress or impairment. Justice Liu evidently agrees that the stun belt was not visible to the jurors, that it did not affect defendant’s decision not to testify, that it did not inhibit defendant’s ability to confer with counsel, and that it was not prejudicial at the guilt phase. Nonetheless, Justice Liu identifies two incidents as supporting his notion that the belt may have impaired defendant’s ability to maintain a positive demeanor before the jury at the penalty retrial. First, he contends the penalty retrial court made a remark that defendant “could have reasonably interpreted ... as a warning that the bailiff would activate the stun belt if defendant were to engage in any further verbal or nonverbal communication with his family.” (Cone. & dis. opn., post, at p. 796.) This, however, is pure conjecture. The record contains no indication that defendant construed the court’s remark in the manner suggested. The defense made no claim or objection that the remark had any effect on defendant’s demeanor or mental state, and this despite the fact that defense counsel readily complained when the belt was too tight or made it difficult for defendant to lean back. Even defendant’s appellate briefing makes no mention of the remark. Second, Justice Liu notes that, at the first penalty trial, the defense moved to preclude the prosecution from commenting on defendant’s in-court demeanor, and the trial court agreed that, up to that point, “ ‘[t]he only real issue is lack of emotion ....’” (Conc. & dis. opn., post, at p. 795.) Although Justice Liu surmises that this exchange pertained to the stun belt’s effects, the defense offered no indication at trial that its motion had anything to do with the belt; likewise, defendant’s appellate briefing makes no reference to the exchange. The transcript of the proceedings, read in context, shows that the exchange occurred while the prosecution was still presenting its case in aggravation, so it is hardly surprising that defendant may have sat impassively while testimony of the prosecution’s witnesses was being taken. Moreover, the thrust of the defense’s motion was that there was no foundation for negative prosecutorial comment on defendant’s demeanor or supposed lack of remorse, because there was no evidence of defendant’s acting out or inability to control himself in court. As indicated by its comment, the trial court agreed. Neither of these incidents supports Justice Liu’s speculation that the stun belt may have caused defendant to exhibit any observable behavior that would have detracted from his defense. In fact, the record is to the contrary, affirmatively demonstrating the assessment of defense counsel that the jurors’ consideration of defendant’s courtroom demeanor would have a favorable effect on their penalty determination. Specifically, at each of the penalty trials counsel urged the court to give two special instructions that would have told the jurors their in-court observations of defendant could be considered in mitigation. When the court expressed skepticism about giving these instructions at the first penalty trial, defense counsel held fast and countered that case law permitted the jurors “to draw a humane perception of the defendant by his conduct, the way he looked.” Although the defense’s special instructions were refused at both penalty trials, the only reasonable inference that can be drawn from counsel’s vigorous efforts on this point is that the stun belt did not have the prejudicial effect urged by Justice Liu. Howard, supra, 51 Cal.4th 15, is instructive under these circumstances. In Howard, the defendant claimed the trial court erred and violated his constitutional rights by requiring him to wear a stun belt without making the requisite finding of manifest need. Although we agreed the court’s order was error, we found it was not prejudicial even assuming application of the “reasonable doubt” harmless error test of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824] (Chapman). (Howard, at p. 30.) There the record showed the defendant had made an extended statement to the court at sentencing that antipsychotic medication affected his mental state during trial. (Id. at p. 29.) Significantly, however, the defendant “made no reference to a stun belt or its effects on his demeanor.” (Ibid.) Therefore, we concluded, wearing the stun belt had “no appreciable effect on him, even by his own account” (id. at p. 30), and “the record affirmatively dispels any notion that he was prejudiced” (id. at p. 28). (See Manibusan, supra, 58 Cal.4th at p. 86 [defendant’s psychological impact argument lacked any support in the record and was inconsistent with his express agreement to wear stun belt and his failure to mention the issue in his new trial motion].) A similar finding of harmlessness is warranted here. When defendant began wearing the stun belt, the trial court told the defense to let the deputies know if any problems were to arise with the belt. As the record reflects, defendant and his counsel identified only one complaint, namely, that the belt was uncomfortable to wear, either because it would not allow defendant to lean back in his chair or because it was too tight. A pillow was provided, and each time the defense spoke up, the court ordered adjustment of the belt in order to make defendant as comfortable as possible. Notably, the defense made no mention at either trial of the stun belt’s potential or actual effects on defendant’s mental state, and the record contains no hint that wearing the belt caused defendant to experience mental distress or that it inhibited his ability to confer with counsel and participate in his defense. Moreover, defendant’s current claim of prejudicial psychological impact is inconsistent with his complete failure to mention the stun belt or its effects in any of his various motions for a mistrial, a new guilt trial, and a new penalty trial. (See Manibusan, supra, 58 Cal.4th at p. 86.) Finally, any contention that the belt may have caused defendant to exhibit a negative demeanor is highly dubious given defense counsel’s on-the-record arguments that the jurors should be specially instructed that their in-court observations of defendant could be considered in mitigation. Defendant claims his inability to turn around in his chair prevented him from seeing the prospective jurors at the penalty retrial and participating fully in the jury selection process. He also suggests his failure to face the prospective jurors may have alienated them. A fair reading of the reporter’s transcript discloses, however, that the stun belt had nothing to do with the circumstance that defendant could not see or face the prospective jurors. Rather, as defense counsel explained to the trial court, defendant had been specifically instructed to face forward at the counsel table and to not turn around at all, despite the unusual circumstance that the prospective jurors were all behind the counsel table. As soon as counsel brought this to the court’s attention, defendant was allowed to move to the end of the table. Once there, defendant could see the prospective jurors while still facing forward as instructed, and the defense made no further complaints along this line. Thus, any claimed interference and alienation during the jury selection process cannot be attributed to the stun belt. In sum, there is no evidence that the stun belt was visible to the jurors or that it affected defendant’s decision not to testify. Likewise, there is no indication the belt caused defendant mental anxiety or inhibited his ability to confer with counsel and participate in his defense. There is, however, evidence that defense counsel viewed defendant’s demeanor as weighing in his favor during the penalty trial. Accordingly, the record affirmatively dispels any notion of prejudice, leaving no reasonable possibility that defendant would have received a more favorable verdict had the trial court not required him to wear a stun belt. {Brown, supra, 46 Cal.3d at pp. 446-448; see Howard, supra, 51 Cal.4th at pp. 28, 30; Letner, supra, 50 Cal.4th at p. 156; People v. Ervine, supra, 47 Cal.4th at pp. 773-774; Wallace, supra, 44 Cal.4th at p. 1051; People v. Anderson, supra, 25 Cal.4th at p. 596; People v. Cox, supra, 53 Cal.3d at pp. 650, 652 [no prejudice found even where defense counsel complained the handcuff used on defendant was “ ‘very uncomfortable’ ”].) Defendant, citing lower federal court decisions, argues the same error we recognized in Mar, supra, 28 Cal.4th 1201, violated his federal constitutional rights to due process, effective assistance of counsel, and a reliable penalty phase trial. However, neither we nor the United States Supreme Court has decided whether such state law error also implicates the federal Constitution. (See Howard, supra, 51 Cal.4th at p. 30; Mar, supra, 28 Cal.4th at p. 1225, fn. 7.) We need not decide the issue in this case. As this opinion explains, the record affirmatively dispels any inference of prejudice under Brown, supra, 46 Cal.3d 432. For the same reason, the People have satisfied their burden under Chapman, supra, 386 U.S. 18, to show that any federal errors are harmless beyond a reasonable doubt. (See Howard, at p. 30; see also People v. Gonzalez (2006) 38 Cal.4th 932, 961 [44 Cal.Rptr.3d 237, 135 P.3d 649] [“. . . ‘Brown’s “reasonable possibility” standard and Chapman’s “reasonable doubt” test ... are the same in substance and effect.’ ”].) Finally, as defendant’s counsel acknowledged at oral argument, we have held that a court’s abuse of discretion in requiring use of a stun belt is not structural in nature and is not reversible per se. (Howard, at p. 30, fn. 6.) B. Guilt Phase Issue First Degree Murder Conviction and Robbery-murder Special-circumstance Finding The murder count and the sole special circumstance allegation were tried on the theory that defendant killed Monique while robbing or attempting to rob Robert. (Former § 190.2, subd. (a)(17)(i), now § 190.2, subd. (a)(17)(A).) The prosecution’s special circumstance verdict form, however, specified robbery only, and omitted reference to attempted robbery. The jury returned that form, which expressly stated that the murder was committed while defendant was engaged in the commission of a robbery. Defendant claims the evidence fails to support the jury’s robbery-murder special-circumstance finding, because there is no evidence that anything was actually taken from Robert. Hence, he urges reversal of that finding, the first degree murder conviction, and the death judgment. “ ‘On appeal, “ ‘we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” [Citation.] In conducting such a review, we “ ‘presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” [Citations.] “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.” [Citation.] These same principles apply to review of the sufficiency of the evidence to support a special circumstance finding. [Citations.]’ [Citation.]” (People v. Harris (2013) 57 Cal.4th 804, 849 [161 Cal.Rptr.3d 364, 306 P.3d 1195].) The federal standard of review is in accord. (People v. Rodriguez (1999) 20 Cal.4th 1, 11 [82 Cal.Rptr.2d 413, 971 P.2d 618], relying on Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 99 S.Ct. 2781].) We assume for the purposes of argument that the evidence was insufficient to establish that either defendant or his accomplices actually took anything from the Cleveland house. The prosecution, however, was under no obligation to prove that defendant had successfully completed a robbery, because both the first degree felony-murder conviction and the special circumstance finding could properly be premised on a finding that defendant had attempted to rob Robert. (See § 189; former § 190.2, subd. (a)(17)(i), now § 190.2, subd. (a)(17)(A).) As the record discloses, it was made abundantly clear to the jury that the prosecution need only prove the murder had occurred during an attempted robbery. The information, which was read to the jury, alleged that defendant had committed murder while engaged in the commission or attempted commission of the crime of robbery. The jury received instructions on the elements of robbery and the elements of attempt. As to the charge of murder, the court instructed that the prosecution must prove “a human being was killed; ... the killing was unlawful; and ... the killing occurred during the commission or attempted commission of a robbery.” (Italics added.) The court further instructed: “The specific intent to commit a robbery and the commission or attempted commission of such crime must be proved beyond a reasonable doubt.” (Italics added.) As for the special circumstance allegation, the jury was instructed to determine whether the murder “was committed while the defendant was engaged in the commission or attempted commission of a robbery,” and was cautioned that the special circumstance is not established if “the robbery or attempted commission of a robbery was merely incidental to the commission of the murder.” (Italics added.) Finally, the prosecution emphasized in closing argument that an attempted robbery was sufficient to support the charges against defendant. While conceding “at best it’s murky whether they got dope or money from that house,” the prosecution correctly explained, “there is no necessity that property is actually taken.” Defendant acknowledges the evidence at trial was sufficient to prove Monique’s murder occurred during the attempted commission of a robbery. But, he argues, the special verdict form shows the jury expressly found true only that the murder was committed while defendant “was engaged in the commission of the crime of ROBBERY.” Thus, he reasons, the felony-murder conviction and the robbery-murder special-circumstance finding are invalid because the evidence is insufficient to prove a completed robbery. This contention is meritless. The verdict form’s failure to reference an attempted commission of robbery did not serve to limit the charges against defendant. Nor did the jury’s return of that form restrict its finding to one of a completed robbery. “A verdict should be read in light of the charging instrument and the plea entered by the defendant. [Citations.] . . . [T]he form of the verdict generally is immaterial, so long as the intention of the jury to convict clearly may be seen. [Citations.]” (People v. Paul (1998) 18 Cal.4th 698, 706-707 [76 Cal.Rptr.2d 660, 958 P.2d 412]; see People v. Jones (1997) 58 Cal.App.4th 693, 710 [68 Cal.Rptr.2d 506] [“ 1 “A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court.” ’ ”].) As indicated, both the prosecution and the court told the jury to return the verdict form if it found true the robbery-murder special-circumstance allegation, and the court repeatedly instructed that the allegation could be found true if the prosecution proved the murder had been committed during the commission or attempted commission of a robbery. In returning the verdict form, the jury clearly manifested its intention to find true the allegation charged. That the form did not describe all of the circumstances under which the allegation could be proved is, under these circumstances, merely a technical defect that may be disregarded because “ ‘ “the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice.” ’ ” (People v. Jones (2003) 29 Cal.4th 1229, 1259 [131 Cal.Rptr.2d 468, 64 P.3d 762].) Defendant’s sufficiency of the evidence claim is rejected. C. Penalty Phase Issues 1. Granting of Prosecution’s Challenge for Cause At the penalty retrial, the trial court granted the prosecution’s request to excuse Prospective Juror J.C. for cause. Defendant contends this excusal violated the Sixth and Fourteenth Amendments to the federal Constitution under the standards established in Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770] (Witherspoon) and Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844] (Witt). This claim is without merit. Prospective Juror J.C.’s questionnaire responses indicated she had never given “much consideration” to the death penalty, although she believed it was imposed too often “against African-American males.” During voir dire, J.C. further explained her views, stating: “I wouldn’t say I’d be the first one to jump up and say give him the death penalty, no. You have to weigh options. But I don’t think I would be very likely to vote definitely for the death penalty.” K.M. was in the same group of prospective jurors and was questioned in front of J.C. After ascertaining that gang members had recently killed K.M.’s cousin, the court asked if K.M. would “just keep flashing back to that situation” and whether that situation would “black out what you’re hearing in this trial?” K.M. responded, “It’s too fresh right now.” Because K.M. might have difficulty sitting through the proceedings, the parties stipulated to his excusal. The prosecution thereafter asked the group of prospective jurors whether any of them did “not feel that they could in fact be a person who could participate in a verdict that will result in the death of [defendant],” and Prospective Juror J.C. raised her hand. When asked to explain her feelings about her ability to “be a juror in this case and to actually impose capital punishment,” J.C. stated: “I’m a widow. I’m a recent widow. 17 months ago I buried my husband. My husband died in my arms. I just can’t deal with death that well. No disrespect. I don’t want anything to do with this, sir.” The following exchange then occurred: “[Prosecutor]: It would be a personal hardship for you? “Prospective Juror [J.C.]: Very much so. “[Prosecutor]: Like [Prospective Juror K.M.]? “Prospective Juror [J.C.]: Very much so.” The prosecution later moved to dismiss Prospective Juror J.C. for cause. The defense submitted, and the court granted the motion. “The federal constitutional standard for dismissing a prospective juror for cause based on his or her views of capital punishment is ‘ “[w]hether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” ’ (Uttecht v. Brown (2007) 551 U.S. 1, 7 [167 L.Ed.2d 1014, 127 S.Ct. 2218], citing [Witt, supra,] 469 U.S. [at p.] 424 . . . .)” (People v. Friend (2009) 47 Cal.4th 1, 56 [97 Cal.Rptr.3d 1, 211 P.3d 520].) “When the prospective juror’s answers on voir dire are conflicting or equivocal, the trial court’s findings as to the prospective juror’s state of mind are binding on appellate courts if supported by substantial evidence.” (People v. Duenas (2012) 55 Cal.4th 1, 10 [144 Cal.Rptr.3d 820, 281 P.3d 887].) The voir dire of Prospective Juror J.C. amply supports the trial court’s decision to excuse her. Although initially she gave little indication that anything would prevent her from serving as a juror, she later stated, clearly and unequivocally, that she would be impaired. J.C. raised her hand when asked whether anyone could not participate in a verdict sentencing defendant to death, and proclaimed she did not “want anything to do with this.” She also affirmed that her situation was similar to that of Prospective Juror K.M., who had indicated a recent tragedy would make him unable to listen to and weigh the evidence presented at trial. J.C.’s voir dire responses furnished substantial evidence of her inability to perform her duties as a juror. To the extent defendant claims the trial court erred because Prospective Juror J.C. appeared impaired by the recent death of her husband and not by her views about capital punishment, defendant misunderstands Witt and Witherspoon. Those decisions limit the extent to which jurors may be excused for cause because of their views on capital punishment, but they do not hold such views are the only grounds on which a challenge for cause may be granted. (See Witt, supra, 469 U.S. at pp. 421-424; Witherspoon, supra, 391 U.S. at pp. 522-523.) Whether J.C.’s expressed inability to perform the duties of a juror was due to the death of her husband, or was instead based on her general views about the death penalty, her responses affirmed she was unable to consider and render a death verdict if appropriate. The trial court did not err in excusing her for cause. 2. Admission of Defendant’s Postarrest Statement Over defendant’s objection, the trial court allowed Los Angeles Police Officer Damon Aoki to give the following testimony at the penalty retrial. More than a month after the instant crimes, Officer Aoki approached defendant and several members of the 8 Trey gang who were drinking in public. Aoki took defendant into custody after he gave Aoki a false name. Although defendant gave another false name at the police station, a subsequent fingerprint check revealed defendant’s true identity and also the arrest warrant for the murder. At some point, defendant, who was handcuffed, told Aoki that “if he had had a gun” when the officers had stopped him, “he would have had to shoot it out with [them] due to the fact that he had two strikes.” Despite presenting this testimony to the jury, the prosecution made no mention of it during closing arguments. Although the record is somewhat unclear, the trial court apparently concluded that defendant’s statement that he would have shot the arresting officers had he had a gun was admissible to show defendant’s lack of remorse about Monique’s murder. On appeal, defendant maintains such evidence was irrelevant and highly prejudicial because postcrime evidence of remorselessness does not fit within any statutory sentencing factors. Thus, he claims, its admission violated both California law and his federal constitutional rights to due process, a fair trial, and a reliable penalty determination. Although “[c]onduct or statements at the scene of the crime demonstrating lack of remorse may be considered] in aggravation as a circumstance of the capital crime under section 190.3, factor (a),” “ ‘postcrime evidence of remorselessness does not fit within any statutory sentencing factor . . . .’ ” (People v. Pollock (2004) 32 Cal.4th 1153, 1184 [13 Cal.Rptr.3d 34, 89 P.3d 353].) Because such evidence is irrelevant to aggravation, it generally is inadmissible unless introduced to rebut evidence of remorse presented in mitigation. (Id. at pp. 1184-1185.) Here, the People do not contend Officer Aoki’s testimony was admissible to demonstrate a lack of remorse. Instead, the People invoke the settled rule that “ ‘ “a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.” ’ ” (People v. Zapien (1993) 4 Cal.4th 929, 976 [17 Cal.Rptr.2d 122, 846 P.2d 704]; see People v. Brown (2004) 33 Cal.4th 892, 901 [16 Cal.Rptr.3d 447, 94 P.3d 574] [“If a judgment rests on admissible evidence it will not be reversed because the trial court admitted that evidence upon a different theory, a mistaken theory, or one not raised below.”].) The People assert that, even if Officer Aoki’s testimony was not admissible to show defendant’s lack of remorse, it was properly admitted to show his consciousness of guilt. Defendant counters that, given the events preceding his statements to Aoki and defendant’s mention of his two strikes as the reason why he would want to shoot the arresting officers, it is unreasonable to infer anything about defendant’s supposed state of mind or his consciousness of guilt. Given the surrounding circumstances, including the fact that defendant falsely identified himself twice, a rational jury could view defendant’s statement about shooting it out with the arresting officers as reflecting defendant’s knowledge that he had committed two very serious crimes and his strong desire to evade capture. (See People v. Russell (2010) 50 Cal.4th 1228, 1253-1255 [117 Cal.Rptr.3d 615, 242 P.3d 68] [defendant allegedly stated he would shoot the police if they came]; People v. Dabb (1948) 32 Cal.2d 491, 495, 500 [197 P.2d 1] [when stopped by police, defendant started shooting immediately].) Although the record does not disclose why defendant chose to verbalize his thoughts to Officer Aoki, the circumstance that defendant used the term “two strikes” does not extinguish its tendency to show consciousness of guilt of the two Cleveland shootings, particularly since defendant may not have known what information the police had at the time. Because evidence that a defendant committed the crimes charged is one of the most crucial “circumstances of the crime of which the defendant was convicted” (§ 190.3, factor (a)), admission of the challenged testimony was not error. 3. Admission of Evidence Concerning Victim’s Pregnancy Over defendant’s objection, the trial court admitted testimony at the penalty retrial that Monique was approximately one month pregnant at the time of her death, as well as an autopsy photograph of the embryo. Defendant contends