People v. Montes (58 Cal. 4th 809, 2014)

Opinion

CHIN, J.

A Riverside County jury found defendant Joseph Montes guilty of first degree murder (Pen. Code, §§ 187, 189) (count I)), kidnapping during the commission of a carjacking (§ 209.5) (count II), carjacking (§ 215) (count III), and being a felon in possession of a firearm (former § 12021, subd. (a)(1), now § 29800, subd. (a)) (count IV). The jury found true three special-circumstance allegations, namely, that the murder was committed while defendant was engaged in the commission of a (1) robbery, (2) kidnapping for robbery, and (3) kidnapping. (§ 190.2, former subd. (a)(17)(i) & (ii), now subd. (a)(17)(A) & (B).) The jury also found true the enhancement allegations that a principal was armed with a firearm in the commission of the murder, the kidnapping during the commission of a carjacking, and the carjacking (§ 12022, subd. (a)(1)). After the penalty phase, the jury returned a verdict of death. The trial court denied defendant’s motions for new trial (§ 1181) and modification of the penalty (§ 190.4, subd. (e)), and sentenced him to death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) We reverse count III and stay the sentence for count II, but affirm the judgment in all other respects, including the death sentence.

Introduction

Responding to a call reporting gunshots in a remote part of Corona, police discovered the body of 16-year-old Mark Walker in the open trunk of his car. Walker had been shot five times at close range. The prosecution’s theory was that Walker had been robbed, carjacked, and kidnapped by defendant, by two of his codefendants at trial, Ashley Gallegos and Travis Hawkins, and by Miguel Garcia, who was a juvenile at the time of the murder. Apparently, the foursome carjacked and kidnapped Walker because they needed a ride to a birthday party for codefendant Salvador Varela. They shoved Walker into his trunk and drove Walker’s car to the party in Corona, where they stayed briefly. With Walker still in the trunk, they drove Walker’s car to a nearby isolated location, while Varela followed in his van. Once there, a member of the group shot Walker as he tried to get out of the trunk. The group abandoned Walker’s car, and Varela drove them back to the party. Several prosecution witnesses, including Varela’s brother George, his sister Sylvia, and his girlfriend Kimberly Speck, testified that defendant admitted he shot Walker.

Defendant, Gallegos, Hawkins, and Varela were tried together, although a separate jury sat for Varela because his admissions to police implicated the other codefendants’ confrontation rights under People v. Aranda (1965) 63 Cal.2d 518 [47 Cal.Rptr. 353, 407 P.2d 265] (Aranda) and Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620] (Bruton). The prosecution sought the death penalty only against defendant.

I. Facts

A. Guilt Phase

1. The Prosecution’s Case

a. The Day of the Murder

On Saturday, August 27, 1994, 16-year-old Mark Walker was living in Banning with his mother and stepfather. At approximately 5:30 p.m., he asked his mother whether he could go shopping at the mall; she agreed and gave him two $100 bills, which he put in his dark wallet. Walker said he planned to be out most of the evening, visiting friends and listening to a band. His mother told him to be home by 11:00 p.m. or to call if he planned to stay with a friend. About 6:30 p.m., Walker left in the family car, a gray Buick Regal. Neither his mother nor the friends he planned to visit ever heard from him again.

At dusk, Nathan Hanvey went to Jay’s Market in Beaumont. Hanvey attended high school with Walker and knew him as an acquaintance. He saw Walker waiting in line to buy a soda, and they briefly discussed a local football game. Hanvey noticed Walker’s dark wallet and saw that it contained a substantial amount of money. Hanvey also noticed five or six “scary looking” Hispanic men waiting in line. Hanvey recognized one of them, Travis Hawkins, and said hello, but he did not know the others. After Walker bought his soda, he left the store; the Hispanic group bought a six-pack of beer and also left. At trial, Hanvey identified defendant, Hawkins, and Gallegos as part of the group at the market.

Salvador Varela lived in an apartment in Corona with his sister Sylvia, his brother George, and George’s girlfriend, Marci Blancarte. Between 3:00 and 5:00 a.m. on the day of the murder, defendant, Gallegos, and two or three others dropped by the Varela apartment and spoke with George. Gallegos showed George a black handgun, which George offered to buy, but Gallegos declined to sell. George invited defendant and Gallegos to Varela’s birthday party that evening.

During the afternoon, defendant had repeatedly called the Varela apartment seeking a ride to the party from his Beaumont home for himself and Gallegos. George declined to pick them up because it was too far away. Sylvia called Gallegos that afternoon to offer him a ride, but Gallegos indicated he already had one.

Defendant arrived at the party before sunset while Sylvia and other guests were standing on the balcony. The group saw defendant drive up in a Buick. Defendant was accompanied by Gallegos, Hawkins, and Garcia. From the balcony, Arthur Arroyo saw Gallegos bend as he stepped from the front passenger side of the Buick as if he were retrieving something, possibly a gun, which he tucked in his shirt. Another guest, Kevin Fleming, watched the Buick park and saw the four male passengers enter the apartment. Hawkins joined a conversation with Fleming and the Varela brothers, telling them he had been in a convenience store where he could have “smoked” (shot) a clerk who gave him attitude about his clothing.

Within 10 minutes after he arrived, defendant asked George to help him drop off the Buick, which he claimed belonged to a friend. George refused, suspecting the car was stolen. Defendant then turned to Varela for assistance with the car. Varela initially refused, claiming he had had too much alcohol, but eventually agreed. His girlfriend, Kimberly Speck, had hidden his car keys, but relinquished them when Varela insisted he needed them to do a favor for defendant. Varela promised to return soon. Fleming and another guest, Christopher Eismann, offered to drive Varela, but he refused, saying he was “only going around the comer.” Varela left in his van with Gallegos. Defendant, Hawkins, and Garcia left in the Buick.

Around 8:00 p.m. that night, Alexander Silver was in the backyard of his Corona house, talking with his sister, Laura Esqueda. The house, which overlooked Palisades Road, was about three miles from the Varela residence. Silver and Esqueda heard four gunshots. Looking toward Palisades Road, they saw a van parked on the shoulder of the road, facing east, and a car next to the van, facing west. The headlights and taillights of the van and the car illuminated the scene. Silver saw three Hispanic men standing near the open trank of the Buick, one of whom may have extended an arm for an instant. Silver ran inside and called the police, but Esqueda, now joined by her husband, continued to watch. Esqueda saw three males run around the van to the passenger side. Her husband saw two people standing behind the Buick; he watched as they were joined by a third person who approached from the driver’s side of the van. The vehicle lights went off, and the couple saw no further movement.

Fifteen to 30 minutes after the five men had left Varela’s party, they returned in Varela’s van. The Buick did not return. Most of the group stood together, talking on the balcony. Witnesses gave varying accounts of the group’s mood after they returned. Fleming testified their demeanor had not changed. Sylvia testified Gallegos and Varela seemed very subdued. Speck testified Varela was pale, worried, and in a panic.

Defendant offered to buy pizza for the party, and asked George for change for a $100 bill. Blancarte saw defendant take $20 bills from a dark wallet to pay for the food.

Many partygoers saw firearms on display that night. Early in the evening, defendant showed Arroyo and others a nickel-plated revolver. Blancarte saw a large black handgun passed around the balcony and later noticed defendant showing a small handgun to two people in the bathroom. Around midnight, Varela and George showed Arroyo a nine-millimeter handgun that had been concealed under the bathroom sink.

Between 10:00 p.m. and midnight, a group that included defendant, Varela, George, Fleming, Hawkins, and Gallegos went to a nearby pool hall. While there, defendant and Hawkins got into an argument. Hawkins removed a small derringer from his pocket, but George told him to put it away. The group later returned to the party, which eventually wound down.

b. TTze Day After the Party

On Sunday morning, George left the party after 1:30 a.m. with a female companion and spent the night in Long Beach. Around 1:30 or 2:00 a.m., defendant’s cousin, Eddie Montes, drove Hawkins and Garcia to Beaumont. Defendant and Gallegos stayed at the Varela apartment all night. Sylvia testified that she, defendant, and Gallegos smoked methamphetamine together and played video games.

Later that morning, Varela and Speck went to a donut shop and bought a newspaper that contained an article about the dead body of a man found in the trunk of a car off Palisades Drive. Back at the apartment, Speck showed the article to defendant and Gallegos. Defendant reacted by denying he committed the crime, telling Speck, “Can you believe that they’re trying to pin this on me?” and “They’re trying to say that was me that killed that kid.” Later, however, defendant showed the article to Sylvia and bragged, “I did this,” and told her not to tell anyone. Defendant made a number of telephone calls, including one to his father in which he admitted responsibility for the killing. During the call, defendant argued with his father; after the call, he said he would have to go a few “rounds” with his father. Sylvia and Blancarte both testified they heard defendant say he had earned “his stripes” for the killing; Speck heard defendant say something about earning a stripe or a medal on his uniform.

George returned to the Varela apartment that afternoon and agreed to drive defendant and Gallegos to Beaumont. On the way, defendant removed a newspaper clipping from his pocket and told George an “old man” from Beaumont had been killed. Defendant said he committed the crime. He described the shooting. He added that he had pulled his sleeve down to protect his hands from blood spatter, and he pointed to what he said was a blood spot on his sleeve. He said that, after firing one or two shots, he had looked away as he continued to fire because he was “grossed out” by the sight. Defendant also said he had “jacked” the car, and that the gun was gone. George did not believe the story.

In Beaumont, George dropped off Gallegos and then drove to defendant’s house. When he parked, George saw his best friend, Victor Dominguez, standing in his yard not far from the Montes residence. Dominquez came up to the car and told George, “You’re riding around with a 187.” George, defendant, and Dominguez then went into defendant’s house. Defendant’s father was in the living room and looked angry. Defendant told them, “I had to do it. I ain’t gonna let four vatos go down for some white boy.” George and Dominguez then left to go to Dominguez’s house. As they walked alongside the Montes house, they saw the police arrive to arrest defendant.

c. The Criminal Investigation

By the time officers arrived at Palisades Road in response to the “shots fired” call, the van was gone, but the Buick was there with its trunk open and its trunk light on. In the trunk, the officers found Walker’s body on its back with one leg outside the car.

About 9:00 p.m. Detective Ronald Anderson joined the officers who had arrived a half hour earlier. The detective discovered tire tracks in a circular pattern across the dirt median. An identification technician collected physical evidence, including tire impressions. The tire impressions matched the type of tires on Varela’s van. The technician also collected two spent nine-millimeter cartridge casings from the trunk and two from the ground behind the Buick. He lifted two latent fingerprints, one from the hood and one from the glass on the driver’s side window.

On Sunday morning, the identification technician provided the latent print cards to the sheriff’s department fingerprint identification section. Around noon, Detective Anderson was notified the fingerprint from the driver’s side window matched that of defendant. At approximately 6:00 p.m., the police arrested defendant. They arrested Salvador Varela, Gallegos, and Hawkins between August 29 and September 2.

Dr. Joseph H. Choi determined Walker had been shot at close range five times, each within a few seconds of the others. Walker was shot on the top of his head, in the right side of his mouth, and in the left side of his face. The wounds indicated that all five shots came from the same direction. Walker was alive when the shots were fired, but died within minutes.

Several months after the murder, a jogger found a nine-millimeter chrome Clock pistol about a mile from the murder scene. Subsequent testing determined the gun was most likely the murder weapon. It was registered to Steven Glomb, whose teenage daughter knew Gallegos and Garcia’s brother Refugio. Glomb identified the Clock as one of two guns stolen from his collection in 1994; the other was a Walther PPK/S .380. In late August, Gallegos, Refugio, and others visited Glomb’s daughter. Refugio testified he and Gallegos took the two guns. Gallegos kept the Glock, and Refugio kept the .380.

Refugio testified Gallegos later came to his apartment to borrow the .380. Gallegos told him he was going to a party in Corona and wanted to have the gun in case he got jumped. Gallegos stuck the gun in his pants and then got into the front passenger seat of a gray car. A few days later, Gallegos returned the .380 and told Refugio they had carjacked and killed someone, taken $200 from “the kid,” and thrown away the nine-millimeter gun. Gallegos told Refugio they had not used the .380, but advised Refugio to get rid of it.

d. Gang Evidence

Police Sergeant Scott Beard testified as an expert on gangs in Beaumont. He said two Hispanic gangs were active in the city at the time of the murder, Varrio Beaumonte Rifa (VBR) and Northside Beaumont. Hawkins and Garcia were VBR members. Gallegos was a VBR associate. Defendant, Varela, and George were not known to be VBR members. Defendant had gang tattoos, but none for VBR. Sergeant Beard testified a person can get “jumped” into a gang by committing a crime.

2. The Defense Case

Neither defendant nor his codefendants testified. Defendant called three witnesses. Jason Gogolin testified George and another man were involved in an assault at an apartment unrelated to the capital crime. Russell Rigsby, a friend of the victim, testified he saw Walker on the day of the murder around dusk at a gas station in the town next to Beaumont. It was stipulated that an investigator for the prosecution had interviewed Rigsby prior to trial, and that Rigsby had stated that Walker mentioned he either had beer or was going to buy some beer. Detective Anderson testified that, during his initial interview with Speck, she had only discussed Varela’s coming and going from the party and had not mentioned defendant or any of the codefendants.

B. Penalty Phase

1. Prosecution Evidence

The prosecutor presented evidence that defendant had previously been convicted of felony burglary and had used his own waist chains to strike codefendant Gallegos while the two were in a holding cell along with other inmates. The prosecutor also introduced evidence that defendant possessed deadly weapons in jail while awaiting trial. Defendant had been discovered in his cell holding a toothbrush with a razorblade on the end, and a “shank” (a broken piece of plastic with a handle) was found in another search of his one-man cell.

Mark Walker’s family members described him as a responsible young man and a caring son and brother. They described the devastating impact his murder had on his family and friends.

The prosecutor showed the jury a 10-minute video tape composed of 115 photographs of Walker; it was accompanied by light instrumental music. The video concluded with an image of a snow-covered road and a photograph of Walker’s memorial bench at the cemetery, which his high school football team had donated. Walker’s mother described her distress at discovering that the bench and Walker’s gravestone were later vandalized.

2. Defense Evidence

Defendant presented the testimony of his mother, various relatives, and former teachers about his childhood and developmental disabilities. Defendant was hyperactive as a child and had difficulties in public and parochial school, where he was considered “slow.” Defendant’s parents divorced when he was in the sixth grade. His mother developed a drinking problem thereafter, and, in her brother’s opinion, she neglected her children. Defendant lived with his grandfather off and on and then went to live with his father.

Childhood testing indicated defendant had an IQ of 68 to 70. A subsequent test administered while he was awaiting trial showed an IQ of 77, with a possible range of 72 to 82. The clinical psychologist who administered the test testified this was at the 6th percentile for the general population and fell within the borderline mentally retarded range.

To explain his possession of weapons in jail, defendant presented evidence that he had been the victim of a stabbing in jail.

3. Prosecution Rebuttal

In rebuttal, the prosecutor presented evidence that, sometime in 1994, the police had discovered defendant in possession of an altered Phillips-head screwdriver. Defendant had not been arrested on that occasion.

II. Pretrial Issues

A. Denial of Discovery Motion Based on Discriminatory Prosecution

Defendant brought a motion to compel discovery of information from the Riverside County District Attorney’s Office (the District Attorney) concerning its charging of death penalty cases. He based his motion on the claim that the District Attorney had decided to prosecute him because of the race of the victim. Defendant contended the selective charging constituted a discriminatory prosecution in violation of equal protection. The trial court denied the motion. On appeal, defendant contends the trial court erred in denying his discovery motion, and he raises the underlying constitutional defense that the prosecutor engaged in discriminatory prosecution. We conclude defendant failed to make a showing sufficient to entitle him to discovery on the issue of discriminatory prosecution and has failed to establish a defense of discriminatory prosecution.

1. Background

Pursuant to Murgia v. Municipal Court (1975) 15 Cal.3d 286 [124 Cal.Rptr. 204, 540 P.2d 44] (Murgia), defendant filed a series of pretrial motions to obtain discovery of material concerning the District Attorney’s death penalty charging practices. He sought materials regarding each homicide case prosecuted by the office since 1978 in which special circumstances were alleged and the death penalty sought, along with homicide cases in which life in prison without parole was sought, and information about homicide cases in which special circumstances were not alleged. He also requested discovery of the race and ethnic background of each defendant and victim in these cases.

In support of his claim that the decision to seek the death penalty was a discriminatory prosecution based on the race and status of the victim, defendant cited instances in taped interviews in which investigating officers referred to the victim as “the white kid” and mentioned that the victim’s stepfather was a former police officer. Defendant submitted a study indicating that, for the period from 1992 to 1994, 81 percent of capital prosecutions undertaken by the District Attorney involved White victims, while Whites constituted only 39 percent of willful homicide victims in the county in that time period. After briefing and a hearing, the trial court denied the discovery motion, ruling defendant had failed to produce the requisite threshold showing of discriminatory prosecution.

2. Analysis

a. Discriminatory Prosecution and Related Discovery

“[Discriminatory enforcement of the laws may be a valid defense in a case in which the [defense] can establish deliberate invidious discrimination by prosecutorial authorities.” (Griffin v. Municipal Court (1977) 20 Cal.3d 300, 306 [142 Cal.Rptr. 286, 571 P.2d 997] (Griffin).) A prosecutor’s discretion to prosecute is constrained by federal principles of equal protection and may not be based on “ ‘an unjustifiable standard such as race, religion, or other arbitrary classification.’ ” (United States v. Armstrong (1996) 517 U.S. 456, 464 [134 L.Ed.2d 687, 116 S.Ct. 1480] (Armstrong), quoting Oyler v. Boles (1962) 368 U.S. 448, 456 [7 L.Ed.2d 446, 82 S.Ct. 501].) In Murgia, supra, 15 Cal.3d at page 306, we held that when a defendant seeks to defend a criminal prosecution based on discriminatory prosecution, “traditional principles of criminal discovery mandate that defendants be permitted to discover information relevant to such a claim.”

At the time of the Murgia decision, criminal discovery in California, unlike civil discovery, was “strictly a judicial creation.” (Griffin, supra, 20 Cal.3d at p. 306.) However, in 1990, Proposition 115 was passed, and it included the Criminal Discovery Statute, section 1054 et seq. Section 1054, subdivision (e), states that “no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States.” Discovery related to a claim of discriminatory prosecution is not provided for in section 1054.1, which sets forth the prosecutor’s discovery obligations, or in any other statute.

Defendant brought his discovery motion related to discriminatory prosecution in 1996. At least one California Court of Appeal opinion has held a Murgia discovery motion is constitutionally compelled discovery based on federal equal protection, and thus survives the passage of Proposition 115. (People v. Superior Court (Baez) (2000) 79 Cal.App.4th 1177, 1188 [94 Cal.Rptr.2d 706]; see Pipes & Gagen, Cal. Criminal Discovery (4th ed. 2008) §§ 6:5—6:7, pp. 730-732 [citing Cal. appellate opinions assuming a federal constitutional basis for Murgia discovery motions].) In Armstrong, the United States Supreme Court assumed discovery based on a defense of discriminatory prosecution was available to a criminal defendant defending against a federal charge in federal district court. (Armstrong, supra, 517 U.S. at p. 463.) The majority opinion held such discovery was not based on Federal Rules of Criminal Procedure, rule 16 (18 U.S.C.) and left open the question of whether this discovery was constitutionally based or was based on a federal district court’s inherent discovery powers. (Armstrong, at p. 463; see id. at p. 477 (dis. opn. of Stevens, J.).)

Here, we shall assume for the sake of argument that defendant’s Murgia discovery motion was validly made. We therefore turn to the question of whether defendant made the requisite showing under state or federal standards to obtain the discovery he sought through the motion.

Under our state law standard, a Murgia motion must “ ‘describe the requested information with at least some degree of specificity and must be sustained by plausible justification.’ ” (Griffin, supra, 20 Cal.3d at p. 306, quoting Ballard v. Superior Court (1966) 64 Cal.2d 159, 167 [49 Cal.Rptr. 302, 410 P.2d 838].) We have held a showing of “plausible justification” requires a defendant to “show by direct or circumstantial evidence that prosecutorial discretion was exercised with intentional and invidious discrimination in his case.” (People v. Keenan (1988) 46 Cal.3d 478, 506 [250 Cal.Rptr. 550, 758 P.2d 1081].) Similarly, under the federal standard, a defendant must produce “ ‘some evidence’ ” tending to show the existence of both a discriminatory effect and the prosecutor’s discriminatory intent. (Armstrong, supra, 517 U.S. at p. 468.)

b. Defendant’s Showing

Because a state that bases enforcement of its criminal laws on an unjustifiable standard such as race would violate the equal protection clause, a defendant has standing to contend he or she has been discriminated against on the basis of his purported victim’s race. (McCleskey v. Kemp (1987) 481 U.S. 279, 291-292, fn. 8 [95 L.Ed.2d 262, 107 S.Ct. 1756] (McCleskey).) Here, defendant contends the prosecutor discriminated in bringing a capital prosecution against him because the victim was White.

Defendant additionally contends he was subject to discriminatory prosecution because the victim was related to members of law enforcement. He points to a taped interview between codefendant Gallegos, police detectives, and the deputy district attorney, in which an interviewer mentioned that the victim’s stepfather was a former police officer and that his brothers were police officers. However, defendant fails to provide authority that this type of victim status constitutes an unjustifiable or arbitrary classification under federal equal protection. We therefore reject defendant’s arguments based on this aspect of the victim’s status.

With regard to his claim of discriminatory prosecution based on the race of the victim, defendant points to three items he presented in support of his discovery motions on the issue: (1) a statistical summary of death penalty prosecutions in Riverside County; (2) his expert’s declaration on the significance of this and other statistical reports on capital prosecutions; and (3) the use of racial terms by investigating officers and the deputy district attorney in interviews with suspects in the case. We discuss each below.

1. The Statistical Report and Expert Declaration

To support his claim that the District Attorney invidiously discriminated against murderers of White people in bringing capital prosecutions, defendant submitted a statistical report indicating that 81 percent of capital prosecutions undertaken by the District Attorney from 1992 to 1994 involved White victims, whereas Whites constituted only 39 percent of the “willful” homicide victims in Riverside County during that period.

As the prosecutor noted, defendant’s report was a bare statistical comparison of the race of homicide victims in Riverside County without consideration of individual case characteristics. Significantly, the study did not indicate what percentage of the non-White-victim homicides would have been eligible to be charged as capital homicides. The expert’s accompanying declaration contained a summary of studies purporting to demonstrate statistical discrepancies in the charging of the death penalty based on the race of the defendant and the victim based on data collected mainly from jurisdictions in southern states. The declaration did not appreciably strengthen defendant’s showing beyond what he presented through the Riverside statistical study.

Defendant contends his statistical report was adequate to meet his burden for obtaining discovery, which was to offer some evidence of both discriminatory effect and discriminatory intent. He cites a Ninth Circuit opinion stating that “[t]he Supreme Court has not determined whether statistics relating exclusively to the prosecuting authority are sufficient, standing alone, to establish a prima facie claim of discriminatory intent in a capital charging case.” (Belmontes v. Brown (9th Cir. 2005) 414 F.3d 1094, 1128.) We need not decide this issue because defendant’s statistical report was fundamentally flawed and failed to show discriminatory effect, let alone discriminatory intent. Defendant attempts to distinguish his statistical study from the one rejected by the United States Supreme Court in McCleskey. In McCleskey, supra, 481 U.S. at page 292, the high court rejected the argument that the defendant’s statistical study (the “Baldus study”) was sufficient to establish the existence of discriminatory intent for the Georgia capital cases the report analyzed. Defendant contends his study is distinguishable from the Baldus study because it focused on racial disparity in the charging authority (the District Attorney) rather than on racial disparity in sentencing (which extends to every actor in the process, including the jury). However, as discussed above, defendant’s study failed to take into account the case characteristics of the homicides, which is a crucial factor for a district attorney’s capital charging decisions. We conclude that whatever benefit defendant’s study gained by focusing on the charging authority was negated by the failure to address the homicide case characteristics.

2. Use of Racial Terms

In support of his claim that the use of racial terms provided evidence of discriminatory intent, defendant points to the following instances in which the prosecutor and investigating officers used racial terms in their interviews with the codefendants and other individuals in the case:

(1) Juan Santana lived below the Varela brothers and was arrested based on statements made by defendant. In an interview conducted in Spanish through an interpreter, an investigating officer urged Santana to confirm or deny whether he was present in the victim’s car the night of the killing because, as the officer contended, defendant and Varela, being “home boys,” were likely to blame Santana because he was a “wetback.”

(2) The interrogating officers used the term “White boy” in questions to the codefendants, such as “Did you kill the White boy?” and “Were they bragging about ripping off the White boy?”

(3) At the hearing on the discovery motion, the prosecutor denied defendant’s claim that the interrogating officers’ use of racial terms indicated racial animus, and noted that race may have played a part in the case to the extent the codefendants may have carjacked the victim because he was young, White, and vulnerable. In a supplemental motion, defense counsel pointed to this statement as confirming the importance of the race of the victim to the prosecutor.

We find persuasive the prosecutor’s responses at the hearing on the discovery motion. The prosecutor said the use of “wetback” by the interrogating officers was not derogatory in context because it was used by individuals on the street to refer to themselves and by defendant himself during his interview with the police. As to the use of “White boy,” the prosecutor pointed out defendant himself first described the victim as “the White guy” in an interview with police and that the interviewers’ use of the term followed from that initial identification. Finally, we conclude the prosecutor’s observation that Walker’s race may have been one reason why defendant and his cohorts targeted him for the carjacking was an unobjectionable comment on his view of the case, rather than an admission that he engaged in discriminatory prosecution based on the race of the victim.

We conclude defendant has not shown the prosecutor intentionally discriminated in the exercise of his charging discretion. Defendant has therefore failed to make the requisite showing of discriminatory prosecution to obtain discovery. Accordingly, we conclude the trial court did not err by denying the discovery motion under either the Murgia or Armstrong standard. In turn, assuming for the sake of argument that defendant is entitled to raise his constitutional defense for the first time on appeal, we conclude defendant failed to show he actually was subjected to a discriminatory prosecution.

B. Pitchess Motion

Seeking information about possible police misconduct to support his discovery motion based on discriminatory prosecution, defendant moved for discovery of the personnel records of three police officers under Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305]. Judge Ronald L. Taylor performed an in camera review of the records, which was transcribed and sealed. After reviewing the personnel records, he said there were no citizen complaints regarding two of the officers. The judge then indicated that, while there were some complaints in the third officer’s file, the complaints were not discoverable because they did not concern areas in which defendant was seeking discovery. Defendant has asked us to review what the judge considered to determine whether any records were incorrectly withheld.

We first note that the record in the present case is adequate to permit a meaningful appellate review. (People v. Prince (2007) 40 Cal.4th 1179, 1285 [57 Cal.Rptr.3d 543, 156 P.3d 1015].) It includes a full transcript of the in camera hearing in which Judge Taylor stated what documents he examined. No augmentation of the record is necessary. We have reviewed the record and independently conclude Judge Taylor did not abuse his discretion in denying the Pitchess motion. (Prince, at p. 1286.)

C. Severance Motions

The trial court denied each of defendant’s severance motions. Defendant contends the trial court erred in (1) refusing his request to conduct an in camera review of declarations he submitted under seal in support of his motions; (2) denying his motion to sever his trial from all other codefendants; and (3) denying his alternative motion to sever his trial from that of codefendant Hawkins. We conclude the trial court did not err in its rulings on the severance motions.

1. Denial of In Camera Review of Sealed Declarations

Defendant filed under seal several declarations by defense counsel in support of his severance motions. The first, submitted in support of the motion to sever his case from all codefendants, discussed defense investigation and strategy concerning the codefendants, and it stated counsel’s belief that the codefendants would put forth defenses asserting defendant was the shooter. Defendant also submitted two declarations in support of his separate request to sever his trial from codefendant Hawkins. These contended family dynamics were hindering defense counsel’s ability to conduct the penalty phase investigation. Defendant and codefendant Hawkins are first cousins; Hawkins’s mother is the sister of defendant’s father. Defense counsel contended some family members were supporting Hawkins over defendant, and were reluctant to talk to defendant’s representatives for fear of harming Hawkins at the joint trial. Defense counsel contended family members would be more willing to talk with defendant’s representatives if defendant’s trial were severed from that of Hawkins.

The prosecutor objected to the trial court’s considering any of the sealed declarations, while defendant argued the court should review them in camera. After a hearing on the issue, the trial court sustained the prosecutor’s objection. It reasoned that the People’s due process rights were implicated in the severance motions, and that, if it were to consider the sealed declarations in camera, the People would have no effective way of representing their substantial interest in the determination of the motions.

Defendant contends the trial court erred in failing to fulfill its obligation to consider all available evidence relevant to the severance motions. He cites two cases in which a trial court accepted in camera offers of proof for severance motions, People v. Hardy (1992) 2 Cal.4th 86, 167 [5 Cal.Rptr.2d 796, 825 P.2d 781], and People v. Odle (1988) 45 Cal.3d 386, 403 [247 Cal.Rptr. 137, 754 P.2d 184], but acknowledges he has found no authority stating that a trial court must do so.

Defendant points to other areas of the law in which trial courts accept in camera offers of proof, such as disputes concerning third party discovery and disputes over claims of privilege. These areas of the law are distinguishable. Discovery from third parties does not implicate a prosecution’s interests in as substantial a way as a severance motion. The party invoking a claim of privilege is entitled to in camera review of the relevant proffered evidence because the party seeks to prevent another party from using the alleged privileged material at trial. By contrast, defendant sought to use the material in support of a severance motion but nonetheless shield it from disclosure to the prosecutor based on the work product privilege.

In the absence of any law requiring a trial court to accept an in camera offer of proof for a severance motion, we conclude the trial court’s decision to permit or not permit such an offer is within the trial court’s discretion. (See People v. Guerra (2006) 37 Cal.4th 1067, 1113 [40 Cal.Rptr.3d 118, 129 P.3d 321] [abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence].) We have found no abuse of discretion in the trial court’s ruling in this case. Defendant’s claim that the trial court was unable to make an informed ruling on the merits of his motions without considering the sealed declarations is belied by the record. At the hearing on the motions, defense counsel discussed the relevant information raised in the sealed declarations. She mentioned possible antagonistic defenses between the codefendants, described how some mutual relatives appeared to be supporting codefendant Hawkins rather than defendant, and noted that some relatives were unwilling to talk to defendant’s representatives for fear of harming Hawkins’s position at trial. Despite defendant’s claim to the contrary, the trial court was not “in the dark” in ruling on the severance motions.

2. Motion to Sever from the Other Codefendants

Section 1098 expresses a legislative preference for joint trials. A trial court’s denial of a motion for severance is judged on the facts as they appeared at the time of the ruling and is reviewed for abuse of discretion. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40-41 [17 Cal.Rptr.3d 710, 96 P.3d 30].) If the ruling was correct when made, we will reverse it only if a defendant shows that joinder actually resulted in “gross unfairness” amounting to a denial of due process. (People v. Johnson (1988) 47 Cal.3d 576, 590 [253 Cal.Rptr. 710, 764 P.2d 1087].) Defendant contends his joint trial resulted in gross unfairness.

Defendant’s motion for severance from all codefendants was based on his concerns regarding (1) Aranda/Bruton issues (Aranda, supra, 63 Cal.2d 518; Bruton, supra, 391 U.S. 123), (2) irreconcilable defenses, (3) the likelihood his codefendants’ attorneys would act as “second prosecutors” and try to shift blame from their clients to defendant, and (4) the fact defendant was the only defendant facing the death penalty. None of these bases required severance of defendant’s case from all of his codefendants.

The trial court empaneled a separate jury for codefendant Varela because his statements to the police were incriminating to defendant and the other codefendants and were therefore inadmissible at a joint trial. (Aranda, supra, 63 Cal.2d 518; Bruton, supra, 391 U.S. 123 (Aranda/Bruton).) Because only Varela’s jury heard his statements incriminating defendant, the Aranda/Bruton concerns raised in defendant’s severance motion were addressed.

“[Antagonistic defenses do not warrant severance unless the acceptance of one party’s defense would preclude acquittal of the other party.” (People v. Lewis (2008) 43 Cal.4th 415, 461 [75 Cal.Rptr.3d 588, 181 P.3d 947].) Here, none of the codefendants testified or presented evidence at trial attempting to shift the blame to another codefendant, but defendant claims their antagonistic or irreconcilable defenses were reflected in testimony of various prosecution witnesses. Defendant contends those witnesses fabricated or skewed their testimony to incriminate defendant in an attempt to exonerate or lessen the culpability of the other codefendants. However, matters of credibility were for the jury to decide. (See People v. Mayberry (1975) 15 Cal.3d 143, 150 [125 Cal.Rptr. 745, 542 P.2d 1337].) We reject defendant’s attempt to use his assessments of witness credibility to argue denial of his severance motion led to a gross unfairness in his trial.

To support his claim that his codefendants’ attorneys would act as “second prosecutors,” defendant points out that counsel for Gallegos successfully moved under Evidence Code section 351 to exclude, as irrelevant, Gallegos’s statement made during a police interview that he knew the victim. For the reasons discussed post at pages 868-869, we conclude the trial court did not abuse its discretion in granting that motion, and that the exclusion of Gallegos’s statement did not render defendant’s trial grossly unfair.

Finally, “[b]oth this court and the United States Supreme Court have upheld the practice of conducting joint trials of defendants eligible for the death penalty with those who are not.” (People v. Tafoya (2007) 42 Cal.4th 147, 163-164 [64 Cal.Rptr.3d 163, 164 P.3d 590].)

In light of the above, we find no merit to the claim that the trial court abused its discretion in failing to sever defendant’s case from all of his codefendants.

3. Motion to Sever from Codefendant Hawkins

Defendant alternatively moved for severance from Hawkins, claiming denial of the motion would have an adverse impact on the ability of defendant’s counsel to investigate and prepare for the penalty phase. He contended his relatives on his father’s side of the family, who were related to Hawkins, appeared to be supporting Hawkins in their family feud and were unwilling to be interviewed by defendant’s counsel. In renewing this argument on appeal, defendant contends being jointly tried with Hawkins affected his ability to present evidence on his behalf at the guilt and penalty phases.

Neither defendant’s father nor anyone from that side of defendant’s family testified on defendant’s behalf at the guilt or penalty phases, and defendant’s father did not testify at the guilt phase in response to George’s testimony that defendant admitted he was the killer in front of defendant’s father. Defendant points out that, during closing argument at the guilt and penalty phases, the prosecutor mentioned defendant’s father did not testify, and then argued the jury could infer from the defense’s failure to call him that his testimony would have been adverse to defendant’s position. Defendant contends it is “reasonably possible” that if this severance motion had been granted, his father would have presented testimony disputing George’s account, and that would have precluded the prosecutor’s damaging argument.

We reject defendant’s claim that denial of a severance motion should be analyzed under the state law standard for errors at the penalty phase, namely, whether there is a “reasonable possibility” the error affected the penalty verdict. (People v. Brown (1988) 46 Cal.3d 432, 447 [250 Cal.Rptr. 604, 758 P.2d 1135].) Instead, defendant must show joinder actually resulted in “gross unfairness,” amounting to a denial of due process. (People v. Johnson, supra, 47 Cal.3d at p. 590.) In any event, defendant merely speculates that his father would have contradicted George’s account at a trial had he and Hawkins not been tried together. Equally speculative are defendant’s arguments that paternal relatives would have presented unspecified favorable evidence at his penalty phase had his trial been severed from Hawkins’s. Defendant fails to show the denial of his severance motion resulted in gross unfairness amounting to a denial of due process. (Ibid.)

D. Failure to Take a Blood Sample

Defendant moved under California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528] (Trombetta) to dismiss the case, or, in the alternative, to have the trial court give an ameliorative instruction, because the police did not take a blood sample when they arrested him. Here, as he did below, defendant argues a blood sample might have shown a high level of methamphetamine in his system and that such evidence could have been used to mount an affirmative defense of intoxication at the guilt phase or as mitigating evidence at the penalty phase. We conclude that the trial court did not err by denying the motion to dismiss and the request for an ameliorative instruction, and that defendant’s due process rights were not violated.

At a hearing on the motion, the two officers who initially arrested defendant testified to the following: They arrested defendant about 6:00 p.m. on August 28, nearly 24 hours from the time the Corona Police Department received the call about a murder in progress. At the time of his arrest, defendant was speaking so quickly Detective Anderson had to tell him to slow down so he could be understood. Detective Stewart testified defendant exhibited symptoms of “hypertension,” but Stewart attributed defendant’s state to the shock of being caught rather than to drug use. Stewart believed a blood sample could be useful to a defense of intoxication if a person is arrested soon after a crime, but not when, as here, the arrest occurred almost 24 hours later. Karla Sandrin, defendant’s trial counsel, provided a sworn declaration that the prosecutor informed her defendant had been “flying” when the prosecutor interviewed him after his arrest. The trial court denied the Trombetta motion, ruling the police were under no obligation to collect evidence in the case, and that the testimony revealed the officers did not believe defendant was under the influence of a narcotic at the time of his arrest.

The federal constitutional guarantee of due process imposes a duty on the state to preserve “evidence that might be expected to play a significant role in the suspect’s defense.” (Trombetta, supra, 467 U.S. at p. 488.) In other words, that evidence “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (Id., at p. 489.) Generally, due process does not require the police to collect particular items of evidence. (People v. Frye (1998) 18 Cal.4th 894, 943 [77 Cal.Rptr.2d 25, 959 P.2d 183].) “The police cannot be expected to ‘gather up everything which might eventually prove useful to the defense.’ ” (People v. Hogan (1982) 31 Cal.3d 815, 851 [183 Cal.Rptr. 817, 647 P.2d 93].) A trial court’s ruling on a Trombetta motion is upheld on appeal if a reviewing court finds substantial evidence supporting the ruling. (People v. Memro (1995) 11 Cal.4th 786, 831 [47 Cal.Rptr.2d 219, 905 P.2d 1305].)

This is not a case where evidence initially gathered was destroyed. The issue here is the asserted failure of the police to collect relevant exculpatory evidence. Although we have suggested that cases may arise in which the failure to collect evidence could justify sanctions against the prosecution at trial, the failure to collect a blood sample from defendant at the time of his arrest but almost 24 hours after the crime is not such a case. (People v. Frye, supra, 18 Cal.4th at p. 943 [no duty to collect bloody slipper for blood typing].)

In any event, defendant’s claim would fail even if Trombetta and its progeny apply to a claim of a failure to collect evidence. “Trombetta speaks of evidence whose exculpatory value is ‘apparent.’ ” (Arizona v. Youngblood (1988) 488 U.S. 51, 56, fn. * [102 L.Ed.2d 281, 109 S.Ct. 333].) Here, the testimony indicated the officers did not believe defendant was under the influence of drugs when arrested. The testimony also failed to establish an apparent exculpatory connection between the possible presence of a narcotic in a defendant’s blood when he was arrested and his level of intoxication, if any, when the murder was committed nearly 24 hours earlier.

Defendant’s failure to show the apparent exculpatory value of a blood sample at the time of his arrest also bears on the issue of whether the police acted in bad faith. “[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” (Arizona v. Youngblood, supra, 488 U.S. at p. 58.) Because “[t]he presence or absence of bad faith by the police . . . must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed” (id. at p. 57, fn. *), defendant has failed to establish bad faith in this case.

We conclude substantial evidence supported the trial court’s denial of the Trombetta motion.

E. Stun Belt during Trial

Over defendant’s objections, the trial court ordered that defendant be restrained with a REACT electronic stun belt for the duration of the trial. On appeal, defendant contends the trial court abused its discretion in ordering the use of the stun belt, and that his constitutional rights were violated by the ruling. We find these contentions meritless.

1. Background

On August 29, 1996, before jury selection began, the prosecutor first brought up the issue of defendant’s wearing leg restraints. In support of his request for shackling, the prosecutor cited defendant’s assault on codefendant Gallegos in a holding cell on September 8, 1995, and defendant’s possession of a homemade stabbing device in his cell on July 26, 1996. The prosecutor also mentioned that Varela had attacked and punched defendant in the face at the jail on March 5, 1995. The prosecutor raised as a courtroom security concern the animosity that existed between defendant and Varela because defendant’s implication of Varela led to Varela’s arrest in this case. The trial court declined to order restraints based on the jail incidents because defendant had done nothing in the courtroom to suggest an intent to act violently or to escape. It did request that additional deputies be assigned to the courtroom, and ordered that defendant and the cells in which he was held be searched before he entered the courtroom. The court said it would reconsider its ruling if new security concerns arose.

Less than a month later, the trial court revisited the issue of restraints based on concerns expressed by Deputy Sheriff Kathy Fitzpatrick, a courtroom bailiff. In response, the prosecutor asked the court to order that defendant be restrained by means not visible to the jury, either with a leg brace or an electric stun belt.

At a formal hearing on the request, Deputy Fitzpatrick testified she had been a deputy sheriff for 10 years and had been assigned to court services for about a month. Based on incident reports from the jail, she provided details of defendant’s assault on Gallegos and the discovery of the toothbrush with attached razorblades in defendant’s cell. She testified to an incident a week earlier in which a deputy discovered a handmade shank in defendant’s one-person cell. Fitzpatrick also expressed security concerns based on her experience with defendant in the courtroom. Fitzpatrick testified the court reporter told her that defendant “watches” her move around the courtroom and “studies” her gun as she moves, and that defendant “looks at” the guns of the other bailiffs when they answer the telephone or move past him. Fitzpatrick began to watch defendant, and noticed he was looking at the gun of a bailiff, Deputy Dennis Young. Fitzpatrick explained that defendant was sitting in very close proximity to the desk at which the three court bailiffs would be sitting or standing by, and that he was also close to the court clerk and the judge. She was concerned “about a lunge towards someone or somebody’s weapon.” She believed that “the react belt would be the most appropriate,” because it was her understanding that “with a leg brace ... he could still make a lunge.”

Another court bailiff, Deputy Young, testified he believed defendant should be restrained because of the type of crime alleged and the incidents at the jail. Deputy Young had no direct experience with electronic stun belts, but believed a stun belt would be the most effective form of restraint.

At the same hearing, Deputy Armando Tapia displayed a REACT electronic stun belt and described how it worked. He was aware of three defendants who previously had worn the belt in Riverside County; in one case, the belt accidentally had been activated.

Defense counsel objected to the use of the belt, contending the prosecution had not shown a need for it because defendant always had been cooperative with court staff. Based on his experience with stun belts, counsel expressed concern jurors would notice its bulk under defendant’s clothing and would focus even more attention on defendant, who already stood out as the only defendant facing the death penalty.

The court concluded the prosecution had shown a manifest need for the belt based on defendant’s past and current threats, his acts of violence against his codefendants, his actions involving weapons, and his other conduct described at the hearing. It found a real potential that violence would occur, that the restraint was necessary to minimize the likelihood of violence, and that the belt would be unobtrusive and not visible to jurors. It ordered that the belt be used at all of defendant’s future court appearances, but said it would revisit this ruling if additional evidence were presented during trial concerning the need for additional restraints or the inappropriateness of the ordered restraint.

During defendant’s motion for new trial after the jury verdicts, defense counsel submitted the transcript of an interview with Alternate Juror No. 3, who eventually sat as a deliberating juror at the penalty phase. One set of questions in the interview had involved court security. When asked by trial counsel whether anything about security in the courtroom attracted his attention, the alternate juror said “it looked like [defendant] was wearing some kind of belt” and that “it looked like” the bailiff seated behind defendant “had a box” “maybe” “with a button.” Alternate Juror No. 3 stated that “still to this day” he did not know what it was, and denied making any reference to these observations during jury deliberations.

2. Analysis

“Under California law, ‘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.’ [Citation.] Similarly, the federal ‘Constitution forbids the use of visible shackles . . . unless that use is “justified by an essential state interest”—such as the interest in courtroom security—specific to the defendant on trial.’ [Citation.] We have held that these principles also apply to the use of an electronic ‘stun belt,’ even if this device is not visible to the jury. [Citation.]” (People v. Lomax, supra, 49 Cal.4th at p. 559.)

“In deciding whether restraints are justified, the trial court may ‘take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial.’ [Citation.] These factors include evidence establishing that a defendant poses a safety risk, a flight risk, or is likely to disrupt the proceedings or otherwise engage in nonconforming behavior.’ [Citations.] If the record establishes restraints are necessary, a trial court should select the least obtrusive method that will be effective under the circumstances. [Citation.]” (People v. Gamache (2010) 48 Cal.4th 347, 367 [106 Cal.Rptr.3d 771, 227 P.3d 342].) “Although the court need not hold a formal hearing before imposing restraints, ‘the record must show the court based its determination on facts, not rumor and innuendo.’ ” (People v. Lomax, supra, 49 Cal.4th at p. 559.) “The court’s shackling decision ‘cannot be successfully challenged on review except on a showing of a manifest abuse of discretion.’ ” (People v. Sheldon (1989) 48 Cal.3d 935, 945 [258 Cal.Rptr. 242, 771 P.2d 1330].)

We conclude the trial court did not abuse its discretion in ordering the use of a restraint in this case. It held an extensive hearing at which evidence was presented that defendant posed a safety risk based on incidents in the jail and based on his studying the guns of the courtroom bailiffs. The court’s finding of a manifest need for some restraint was adequately supported.

We next consider defendant’s contention that the trial court did not consider the “least obtrusive or restrictive restraint that effectively [would] serve the specified security purposes.” (Mar, supra, 28 Cal.4th at p. 1226.) He claims the court should have considered leg shackles instead of a stun belt, and that its failure to do so prejudiced him because fear of being shocked by the belt caused him to restrain himself and appear affectless. Defendant points out that, at the penalty phase, the prosecutor mentioned defendant’s lack of affect and argued to the jury that it showed defendant lacked remorse for his crime.

In Mar, we recognized the invisibility of a stun belt does not make it presumptively the best choice of restraint in all situations, and we directed trial courts to also consider the possible psychological impact of a stun belt on a defendant’s participation at trial. (Mar, supra, 28 Cal.4th at pp. 1226-1227.) In that case, the trial court denied the defendant’s request to remove his stun belt when he testified, even though he asserted the belt made him anxious and unable to concentrate. (Id. at p. 1224.) We noted that the impact of the stun belt on the defendant’s demeanor was particularly important because the case largely turned on his credibility. (Ibid.) We concluded the trial court had failed to make a proper finding of manifest need for the stun belt, and that its use constituted prejudicial error because of the relative closeness of the evidence, the importance of the defendant’s demeanor while testifying, and the likelihood the belt had some effect on that demeanor. (Id. at pp. 1222, 1225.) Defendant contends we likewise should find prejudicial error in his case.

Our instructions in Mar to trial courts to consider the psychological impact of stun belts operate prospectively only. They therefore do not apply to defendant’s trial, which occurred six years before Mar. (People v. Gamache, supra, 48 Cal.4th at p. 367, fn. 7.) Furthermore, here, the trial court heard testimony that provided a basis for a finding of manifest need for a stun belt, namely, Deputy Fitzpatrick’s testimony regarding her fear that defendant might lunge for a bailiff’s gun and her belief that leg braces would be less effective in preventing such conduct than a stun belt.

Finally, assuming for the sake of argument that the trial court did not adequately consider the psychological impact of a stun belt on defendant, this case is distinguishable from Mar because defendant did not testify. Defendant contends the concerns for the psychological impact on a testifying defendant that Mar discussed are relevant to him because “a capital defendant’s demeanor is crucial to the jury’s penalty determination even if the defendant never takes the stand to testify.” However, his attempt to attribute his purportedly affectless facial expression to wearing the stun belt fails. It is not self-evident that a defendant’s fear or concern about being shocked by the stun belt would cause a defendant to have an affectless expression, and the defense never stated or suggested that the threat of electric shock affected defendant’s mental state. Even assuming it could have such an effect, defendant acknowledges that he showed emotion during trial when his mother testified at the penalty phase. His ability to show emotion on that occasion undercuts his argument that the mere presence of the stun belt prevented him from showing any em