People v. Johnson (62 Cal. 4th 600, 2016)

Opinion

CANTIL-SAKAUYE, C. J.

A jury convicted defendant Billy Joe Johnson of the first degree murder of Scott Miller (Pen. Code, § 187, subd. (a)), and found true the special circumstance allegations that the murder was committed by means of lying in wait (§ 190.2, subd. (a)(15)), and for the benefit of, or at the direction of, and in association with, a criminal street gang (§ 190.2, subd. (a)(22)). The jury also convicted defendant of conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a)), and as an accessory after the fact (§ 32), and found true a criminal street gang enhancement allegation as to all three counts. In connection with the murder and conspiracy counts, the jury further found true the allegation that a principal discharged a firearm. After the jury rendered its guilt phase verdicts, the court conducted a court trial on the special circumstance allegation that defendant previously had been convicted of murder (§ 190.2, subd. (a)(2)), and found that allegation true. At the conclusion of the penalty phase trial, the jury returned a verdict of death. The court denied an automatic motion for modification of the death verdict to life without the possibility of parole (§ 190.4, subd. (e)), and sentenced defendant to death. Defendant’s appeal is automatic. (§ 1239, subd. (b).) For the reasons that follow, we affirm the judgment.

I. Facts

A. Guilt Phase Evidence

1. Prosecution evidence

a. Events prior to the murder of Scott Miller

Scott “Scottish” Miller was a founding member of an Orange County based White supremacist street gang called Public Enemy Number 1 (PENI), which formed in the mid-1980s. By the mid- to late 1990s, Miller’s status within the gang had diminished, and he had become marginalized.

In February 2001, a local television station aired two news segments about PENI. The segments featured an interview with Miller, who spoke candidly about the gang’s activities, including its use of violence. Although news producers attempted to protect Miller’s identity by disguising his face and voice, PENI gang members immediately recognized Miller by his tattoos, mannerisms, and the objects around him, including his pit bull.

The news segments were considered bad timing for PENI, whose two main leaders were then being tried on charges of conspiracy to commit murder. As a result of the broadcasts, PENI leadership put a “green light” on Miller, marking him for execution. On several occasions during the year that followed, Miller told his girlfriend that he was concerned for his safety. According to one former gang member, however, Miller was still “running around” because no one had the courage to deal with him. Shortly before March 2002, officers in the gang unit at the Costa Mesa Police Department were actively looking for Miller to warn him that they had received credible information that PENI members were planning to kill him.

b. The murder of Scott Miller

On the evening of March 8, 2002, a little over one year after the news segments about PENI, defendant’s cousin hosted a party in Costa Mesa. Several members and associates of PENI attended the party, including Miller and defendant, who had recently transitioned to PENI after a falling out with the Nazi Low Riders, a White supremacist prison gang. Although defendant had known Miller for decades, he had not seen Miller since the news broadcasts had aired. According to the testimony of a mutual friend who also attended the party, Miller and defendant were laughing together and joked about Miller keeping “his guard up.”

Around 10:30 p.m. on the night of the party, Miller’s ex-girlfriend received a voicemail message from him. He sounded concerned. In the background she heard voices, one of which she recognized as defendant’s. Another woman who previously had dated Miller saw him when she first arrived at the party at 10:00 p.m. But she left the party shortly thereafter to buy drugs and by the time she returned around 11:00 p.m., Miller was no longer there.

Earlier that day, PENI member Michael Lamb had called Christina Hughes at her Anaheim apartment. He was looking for Tanya Hinton, a PENI associate who was staying there. Hughes told Lamb that Hinton was not at the apartment. He responded, “It is important, have her call me when she gets home.” Hughes gave Hinton the message when Hinton arrived at the apartment in the early evening, but told Hinton that she did not want any visitors coming to her place. Shortly before 11:30 p.m., however, Hughes walked downstairs from the upper level of the two-story apartment and saw Hinton with Lamb and PENI member Jacob Rump on the first floor. Both men had recently been released from prison. When Hughes demanded that they go, Hinton assured her the group was leaving, and Hughes went back upstairs. Minutes later, Hughes heard a single shot fired outside in the alley. A neighbor whose home faced the alley also heard a gunshot, followed by the sound of screeching tires. Sometime between 11:30 and 11:35 p.m., Hughes and a friend went to the alley to investigate. She saw the dead body of a man she did not recognize and a large amount of blood.

Police responded to the scene about 20 to 25 minutes after the shooting, and found Miller’s body facedown in the alley with blood coming from the head area. There was a bloody baseball cap and soda can underneath Miller’s head, which suggested he had been surprised by the gunshot and dropped the items where he was shot. In the blood, police found tire impressions that were heading away from the location of the body. They also recovered a nine-millimeter Luger casing on the ground 15 feet from the body.

An autopsy showed Miller had died from a single gunshot to the back of his head, which lacerated his cerebellum and cerebrum. According to the forensic pathologist, Miller probably lost consciousness immediately and death occurred within minutes. The absence of burning, singeing, stippling, or soot at the entrance wound suggested the barrel of the gun was some distance from the skin, not in contact with it.

The day after the shooting, defendant called Miller’s former girlfriend, asking her if she had heard what happened. He told her that “Scott is no longer with us” and something to the effect that if she needed anything, he would be there for her.

That same day, defendant spoke with his friend and fellow gang member Donald McLachlan about his involvement in Miller’s death. Defendant told McLachlan that he drove with Miller from the party in Costa Mesa to Anaheim, telling Miller they were going to get drugs. Defendant also indicated that he was walking next to Miller in the alley before he was killed. When Miller heard footsteps coming from behind, he asked defendant, “Are those PENI guys?” He was then introduced to Lamb and Rump. According to defendant, Miller seemed resigned to the idea that something was going to happen to him.

Defendant identified Lamb as the shooter. He also told McLachlan that he was angry and upset about the way the killing was handled and had confronted Lamb about it. Describing Miller as a “dear friend,” defendant thought Miller should have been executed by a shot to the face, not to the back of the head. As defendant envisioned the scenario, Miller should have been told to his face, “You had a good run, you ran afoul of the rules, it is time to go.” Defendant explained that Miller had to be killed because of the news interview and “his actions ... in the neighborhood.”

c. The investigation

Three days after the shooting, Lamb and Rump were taken into custody after leading police on a high-speed chase in a stolen car and fleeing into an Anaheim apartment complex. Just before his arrest, Lamb fired a shot at officers from a second-story balcony, then discarded his weapon by tossing it over the railing into a raised planter. A firearms expert concluded that the cartridge found at the scene of Miller’s death had been fired from the gun Lamb fired at officers. The gun had a capacity for 14 bullets in the magazine and one in the chamber. Lamb and Rump were charged with murdering Miller, and were jointly tried in 2007.

When a detective had tried to interview defendant in October 2002 regarding Miller’s death seven months earlier, defendant said he had nothing to say to him. In 2006, however, defendant contacted Lamb’s investigator about the crime, telling the investigator that he was the person who shot Miller, and agreeing to testify at Lamb and Rump’s trial that they had nothing to do with the shooting. At the time he contacted Lamb’s investigator, defendant had just begun serving a prison sentence of 45 years to life in an unrelated case.

Defendant testified on Lamb’s behalf at both the guilt and penalty phases of trial. According to defendant, the first time he saw Miller after the news segment about PENI was at the party in Costa Mesa, but he had been angry with Miller about the interview and other matters for some time. Between 8:00 and 10:00 p.m., he and Miller left the party in Costa Mesa to buy heroin. During the drive, defendant knew Miller would “cease to exist” before the night was over. After stopping briefly at a strip mall so that Miller could use the telephone, they continued driving into Anaheim, ending up in an alley near an apartment complex. Defendant parked his truck and they started walking down the alley. At one point, Miller and defendant started to turn left into an opening that led to a walkway to the apartments, with Miller walking a couple of paces ahead of defendant. Moments later, defendant grabbed a gun from his waistband and “blasted him.” Defendant ran back to his truck, which was located about 60 feet from Miller’s body. He testified that he saw no other cars in the alley as he was leaving, and that he drove off at a normal speed and returned to the party.

Defendant also testified regarding the firearm that was used to kill Miller. According to defendant, he ran into Lamb in a bar the day after the shooting and gave him the weapon, which Lamb said he needed to protect himself against Mexican gang members. Defendant indicated that the weapon had been in his possession for about six months. However, during cross-examination he said he did not know the location of the gun’s safety, and his answer regarding the number of bullets the firearm could hold was incorrect.

After testifying at the guilt phase of Lamb and Rump’s trial in 2007, but before taking the witness stand at Lamb’s penalty phase trial in 2008, defendant was charged with Miller’s murder, for which the prosecution was seeking the death penalty. Despite the court’s repeated admonitions regarding his right against self-incrimination, defendant continued to maintain that he shot Miller. He told Lamb’s penalty phase jury that he lives by his own laws and that he would kill “anyone like [Miller] that doesn’t abide by the rules.” Defendant testified more specifically that after seeing Miller’s interview on the news broadcast, he knew Miller was a “dead man” because he was giving up secrets “to the enemy” and divulging information that was detrimental to PENI.

d. Other evidence at defendant’s 2009 trial

The prosecutor, joined by the lead detective in the Miller shooting, read aloud to the jury a redacted version of the transcript of defendant’s prior testimony. The prosecution also called several gang expert witnesses who testified regarding defendant’s past and present gang affiliations, and the history, culture, and activities of White supremacist gangs generally and PENI in particular.

Eric Kraus, an Orange County parole officer who specializes in supervising White supremacist parolees, was defendant’s parole officer for about three years, beginning in early 2001. During that time, defendant was a documented associate of the Nazi Low Riders.

In May 2001, Kraus arrested defendant for a parole violation and he was returned to custody. About one week later, Kraus and Costa Mesa Police Lieutenant Clay Epperson visited defendant in prison at defendant’s request. Defendant informed Kraus that another prisoner had cut him with a razor on the back of the neck while they were in the exercise yard. Defendant explained that he had been assaulted for previously refusing to follow a “green light order” to kill his friend and prison cellmate Joseph Govey, but that the recent assault meant he would receive no further discipline for his disobedience. According to Kraus, such an order would have come from a “shot caller” in either the Aryan Brotherhood or the Nazi Low Riders prison gang.

During Kraus’s prison visit, defendant indicated to him that his current gang status was with PENI, “if anything.” Kraus believed that defendant’s self-report was confirmed by correspondence intercepted by prison officials, in which defendant identified himself as a member of PEN 1.

Like Kraus, Lieutenant Epperson expressed the view that defendant was a member of PENI at the time of Miller’s death. In forming that opinion, Epperson pointed to defendant’s statements during their May 2001 prison visit, his testimony at the Lamb and Rump trial, his prior conviction for dissuading a witness for the benefit of a criminal street gang, recorded telephone calls in which defendant issued orders on behalf of PENI, and his many PENI and White supremacist-themed tattoos.

Epperson also provided extensive testimony regarding the history, structure, and culture of White supremacist gangs. He indicated that despite the fact they sport tattoos of Nazi symbols to represent themselves, and are bound together by racial animus, anti-Semitism, and other forms of hatred, White supremacists are not ideologically driven. They tend to prey on their own community with crimes that benefit themselves and the gang, rather than commit hate crimes. The gangs are structured hierarchically, and status within the gang is earned by the amount of crime and violence the member has carried out to benefit the gang. Criminal successes are therefore boasted about and known to other gang members. Respect is an important theme in White supremacist gang culture, and disrespect from gang members and nonmembers alike is met with violence. An act that is viewed as disrespectful of the gang leadership would require even greater sanctions, including being marked for death. The “payback” for disrespecting gang leaders can occur immediately or days, months, even years, later.

Focusing more specifically on PENI, Epperson described the gang’s history and activities. Formed in 1986 by followers of a punk rock band, PENI soon transitioned into a street and prison gang and grew rapidly to fill a power vacuum when the prominence of the Nazi Low Riders began to decline. According to Epperson, PENl’s “stock in trade” is “self-serving thuggery and violence” and the gang often targets law enforcement, prison officials, and prosecutors. The gang’s moneymaking activities include identity theft and drug trafficking, which it carries out with the help of female associates.

2. Defense evidence

The defense called no witnesses or otherwise presented any evidence at the guilt phase.

B. Penalty Phase Evidence

1. Prosecution evidence

The prosecution’s case in aggravation included evidence regarding defendant’s violent criminal activity both in and out of custody, defendant’s prior criminal convictions and prison rules violations, recordings of defendant’s telephone conversations with PENI gang members and associates while he was in custody in the Orange County jail, and victim impact testimony.

a. Violent criminal activity and prior convictions

i. Robberies of Virgil Troutman and Catherine Brandolino

Four witnesses testified regarding defendant’s involvement in the April 1985 residential robbery of Virgil Troutman. According to Troutman, defendant and two other men burst into his Costa Mesa home demanding money and drugs and assaulting him and his friend. Troutman recognized the three intruders because they all had grown up together. After being punched in the eye by one of defendant’s confederates, Troutman and his friend were directed to empty their pockets. Defendant and the two other robbers took various valuables, including a diamond ring, then left the scene, threatening to kill Troutman and his friend if they called the police. Defendant’s parole officer testified that defendant telephoned him two days after the robbery, admitting that he had hit Troutman during the incident. On the parole officer’s advice, defendant turned himself in to police. According to the arresting officer, defendant indicated that he was angry with Troutman for selling cocaine to a young boy. Although Troutman testified that he had previously used cocaine, he denied ever having sold cocaine to anyone, including a child.

In connection with this incident, the prosecution presented evidence that defendant pleaded guilty to grand theft from a person. The prosecution also presented evidence showing that, about two years earlier, a jury found defendant guilty of second degree burglary for breaking into and entering a Santa Ana residence with an intent to steal.

Three other witnesses testified regarding defendant’s involvement in a robbery that occurred in April 1989, four years after the Troutman robbery. Catherine Schreiner, formerly Catherine Brandolino, told the jury that the incident occurred early in the morning as she and a girlfriend were returning to their car in the parking lot of a Denny’s restaurant. A man approached her girlfriend, then her, asking what time it was. After a pickup truck arrived and stopped about 10 feet away with its motor idling and passenger door open, the man suddenly grabbed Brandolino’s purse off her shoulder, jumped into the truck, and shut the door. Brandolino and her friend yelled at the men and held on to the truck, hying to open the door, but they jumped back when the truck took off. Brandolino’s friend, Linda Nguyen, gave a similar account of the incident.

Officer Michael Cacho of the Costa Mesa Police Department testified regarding the events that followed the 911 call reporting the purse-snatching incident. According to Officer Cacho, Brandolino and Nguyen provided him with descriptions of the robbers, and the license plate number and description of the truck, which was then broadcast to other officers. One of the officers who heard the broadcast located the truck, stopped the vehicle, and detained defendant, who was driving, and his passenger. Brandolino and Nguyen both identified the truck. At an in-field lineup, Nguyen indicated that she had not seen the driver’s face but believed the checkered shirt defendant was wearing matched the shirt worn by the driver.

The prosecution presented evidence that in connection with this incident defendant pleaded guilty to second degree robbery.

ii. The 1991 killing of Folsom State Prison inmate Clyde Nordeen

The prosecution presented extensive evidence regarding defendant’s involvement in the April 1991 killing of 56-year-old Clyde Nordeen, who was serving a sentence in Folsom State Prison for child molestation. Correctional Officer Marshall Stewart testified that on the day of the incident, he was on duty supervising defendant and about 25 to 30 other inmates who were assigned to a woodcutting job in a Folsom prison work area known as China Hill. As Officer Stewart explained, inmates assigned to China Hill are dressed in long-sleeved blue shirts, usually with a white T-shirt underneath, and they are permitted to use tools such as pickaxes and shovels. Officer Stewart testified that while conducting a perimeter security check around 11:30 a.m. on the day in question, he noticed blood along the back side of China Hill’s fence line. Following the trail of blood he discovered Nordeen’s badly beaten body in the back corner of a storage shed. Forensic Pathologist Gregory Reiber testified that Nordeen had suffered severe brain injury and extensive blunt force trauma to his head and face, including numerous lacerations and multiple fractures on his skull and eye sockets. He found no defensive wounds on Nordeen’s extremities and believed that his death was not instantaneous.

Other witnesses testified regarding the investigation into Nordeen’s killing. For example, a correctional officer documenting the scene at China Hill told the jury that a short distance from Nordeen’s body he found a concrete-filled metal pipe and a wooden pickax handle, both of which had blood on them. He also discovered other evidence nearby that appeared to be related to the crime, including another wooden pickax handle and a wooden handle possibly from a shovel.

Evidence of defendant’s involvement in Nordeen’s death was presented largely through the testimony of Sergeant Steven Vance, who led the prison’s investigation into the incident. Vance related to the jury the information given to him by Ronald Rostamo, one of the inmates assigned to the woodcutting job on China Hill on the day in question. According to Vance, Rostamo told him that around 11:00 a.m., he overheard inmate John Alder say to defendant, “He’s not dead yet.” He then saw Alder pick up a wooden pickax handle and heard him tell defendant there was another one on the ground “that would work.” Rostamo watched as defendant and Alder walked down a pathway toward the rear of the storage shed and disappeared from his view as they passed a small trailer. According to Rostamo, defendant and Alder reappeared two to three minutes later walking together back along the path and checking each other for bloodstains. Rostamo further reported that when defendant and Alder returned to the worksite, defendant said to Rostamo, “Give me your T-shirt, mine has blood on it.” Fearful of defendant, Rostamo went to the shed with defendant where defendant put on Rostamo’s white T-shirt and returned to his work at the wood pile. Rostamo told Vance finally that defendant and Alder hid their T-shirts underneath a small trailer near the shed. An investigator dispatched to that location found the hidden shirts. Rostamo’s account of the T-shirt exchange was further supported by the testimony of the correctional officer who conducted body searches of the inmates who returned from China Hill that day. He observed during his search that defendant and two other inmates were not wearing their long-sleeved blue shirts.

Nordeen’s killing was referred to the Sacramento County District Attorney but no charges were filed. Prison authorities, however, found defendant guilty of a prison rules violation and transferred him to the administrative segregation unit for 26 months.

iii. Recklessly evading a peace officer in 1994

Tom Dare, an officer with the Garden Grove Police Department, testified regarding an incident in October 1994 involving a driver who led him on a high-speed pursuit in a residential area and eluded arrest by escaping into the backyard of a neighborhood home. Officer Dare related that he was patrolling an area where a number of residential burglaries had recently occurred when he observed a driver make a quick and erratic turn into a driveway but then remain in the car. A check of the vehicle’s license plate showed the car had recently been impounded and released. As the officer made a U-turn to investigate further, the car exited the driveway and Dare followed. When the car ran a stop sign and Dare activated his overhead fights to conduct a traffic stop, the car accelerated to upward of 70 miles per hour, running stop signs and skidding erratically near children playing in a front yard. The driver then pulled into a driveway, slammed on the brakes, fled the car, and jumped into the backyard. Officers searched some of the backyards in the vicinity but eventually called off the search because the residents in the area tended to be uncooperative with law enforcement and it appeared the driver had escaped into one of the homes. When Dare searched the abandoned vehicle, he found on the front seat defendant’s driver’s license and a letter addressed to defendant from the Department of Corrections and Rehabilitation. Dare believed the driver was the same person depicted in the photograph on defendant’s driver’s license.

iv. The 2004 murder of Cory Lamons

During the guilt phase of trial, the jury learned that at the time defendant testified at Lamb and Rump’s 2007 trial claiming that he was the one who killed Scott Miller, he recently had begun serving a sentence of 45 years to life. During the penalty phase, the jury was told that that prison term was a third strike sentence imposed after defendant pleaded guilty to second degree murder for the April 2004 killing of Cory Lamons and that, in a bifurcated proceeding following its guilt phase verdicts, the court found true a third special circumstance allegation, that defendant was convicted previously of murder, within the meaning of section 190.2, subdivision (a)(2). The prosecution also presented to the jury the following evidence regarding the details of the Lamons murder.

Sara Lenard rented a room in the two-story Huntington Beach apartment where the murder occurred. She testified that around 4:00 p.m. on the day Lamons was killed, she walked downstairs from her second-floor bedroom to find four people on the first level of the apartment whom she had never seen before. Defendant was holding a hammer in his hand and standing with his back against the wall near the door leading to an attached garage. When Lenard asked what was going on, the woman in the group, later identified as defendant’s girlfriend Suzanne Miller, replied, “This isn’t going to be good.” When Lamons then walked into the apartment through the door leading from the garage, Lenard saw defendant strike Lamons with the hammer. According to Lenard, as defendant repeatedly hit Lamons in the head with the hammer, Lamons was screaming, “I didn’t do anything, I didn’t do anything.” Terrified, Lenard ran out the front door. She returned a couple of minutes later after the screaming had stopped. When she came back inside, she saw a lot of blood and Lamons lying motionless on the floor. Lenard left the apartment again, this time with her boyfriend, who had been in the bedroom upstairs during the incident. The couple returned to the apartment several hours later to retrieve their possessions. When they entered, defendant and Suzanne Miller were gone and the blood had been cleaned up, but there were two men Lenard did not recognize, who warned her and her boyfriend to “[kjeep your mouth shut or something like this will happen to you.”

Detective Steven Mack testified regarding the circumstances surrounding the discovery of Lamons’s body and defendant’s arrest two days after the killing. Mack told the jury he was conducting surveillance on a white Ford pickup truck based on information he had received that a group of individuals was trying to dispose of a body. At the time the truck was eventually pulled over in Riverside, defendant was at the wheel and Suzanne Miller was in the passenger seat. In the bed of the truck was a wood pile covered with carpeting. When Mack detected the odor of decomposing flesh and investigated further, he discovered Lamons’s body underneath the wood. It had been wrapped in dark material that was held together with strips of bedsheet.

Detective Mack testified further regarding the condition of Lamons’s body at the time it was discovered in the back of the truck. According to Mack, Lamons’s left eye and lips were swollen, and he had visible bruising on the forehead, knuckles and upper legs. The parties stipulated that the Orange County Coroner’s Division could not determine the precise cause of death due to the high level of drugs in Lamons’s body. The cause of death was therefore listed as “blunt force head injuries with methamphetamine and amphetamine intoxication.”

Mack also described the evidence obtained during a search of the Huntington Beach apartment where Lamons was killed. He told the jury that officers found bleach stains on the carpet leading to the door to the garage, and a claw hammer, the striking portion of which was consistent with the bruise marks on Lamons’s body. In the garage, officers found the remnants of a bedsheet that matched the material used to tie the material covering Lamons’s body.

Lamons’s mother testified briefly, telling the jury that she misses her son every day, and that the worst part for her is knowing that he died a violent death but she was not there to protect him.

The prosecutor and the lead detective in the Miller killing then read aloud to the jury the transcript of defendant’s testimony at the Lamb and Rump trial in which he discussed the Lamons murder. That portion of the prior testimony had been redacted during its presentation in the guilt phase of defendant’s trial for the Miller killing. The jury thus heard defendant admit that he beat Lamons to death with his hands and a hammer and then wrapped up his body. When asked why he killed Lamons, defendant replied that Lamons “had it coming.” Specifically, defendant said it was “gang-type stuff,” that Lamons was “ripping off girls,” and “being a dope fiend . . . stealing things, taking things, whatever.”

v. Violent conduct while in custody

The prosecution presented evidence of numerous incidents involving defendant’s use of force and violence while in custody.

Correctional Officer Mireles testified that in June 1991, she saw defendant attack his cellmate at Folsom State Prison. Defendant stood over the inmate punching him with closed fists until Mireles could separate them by removing the inmate from the cell and closing the door.

Correctional Officer Gomez testified that about one year later, in May 1992, he heard defendant shouting from his cell in the security housing unit at California Corcoran state prison (Corcoran). When Gomez went to investigate, he observed defendant’s cellmate seated on his own bunk, with bloodstains on his shirt. Defendant admitted hitting his cellmate, claiming that he did so after his cellmate said he would “beat my ass” and “took a swing at me.”

A different officer testified about another incident at Corcoran several months later in July 1992. Correctional Officer Schuman was in a tower with a view of the exercise yard when he observed defendant attack another inmate by hitting him on the head and shoulders with clenched fists. The inmate fell backward but defendant continued to hit him in the head, ignoring Schuman’s order to stop fighting. Defendant eventually complied with the order and lay prone on the ground after Schuman fired a round from a .37-millimeter gas gun in his direction. But when defendant and the other inmate resumed fighting, Schuman had to discharge the gas gun a second time to bring the situation under control.

Defendant had been released from custody at one point but was returned to prison for a parole violation in early 1995. Correctional Officer Wren testified that in May 1995, he responded to a “man down” report in a housing area for gang members in the California Institution for Men, Chino (Chino). Wren told the jury that he observed defendant’s cellmate lying on the cell floor bleeding profusely from deep cuts in his right shoulder, hand, forearm, chest and thigh. After removing the injured cellmate for medical treatment, Wren returned to the cell and observed that defendant had a laceration on his right hand. According to the officer, such injuries were consistent with the use of a razor blade. The prosecution presented evidence that defendant pleaded guilty to assault by a state prisoner and received a second strike sentence of four years to run consecutively to his then-current sentence.

Correctional Officer Hinojos testified that four months later, in September 1995, he responded to defendant’s cell at Chino after another “man down” report. According to Officer Hinojos, he observed that defendant’s cellmate had a head injury and defendant had minor abrasions and bleeding on several fingers.

In May 1996 defendant was back at Corcoran in the administrative segregation unit. Correctional Officer Smith testified that when he searched the cell occupied by defendant and his cellmate, he found on the cellmate’s side of the room two pieces of weapon-grade metal and, on defendant’s side, a handmade handcuff key.

Correctional Officer Priest testified about an incident at the same prison six months later, in November 1996. Officer Priest told the jury that he heard a commotion coming from the cell defendant shared with another inmate and observed defendant standing over his cellmate punching and kicking him in the head and upper torso while the cellmate was on the floor in a fetal position trying to protect himself. Priest ordered defendant to stop and exit the cell, but defendant continued punching and kicking his cellmate until Priest fired a nonlethal rubber baton round at him.

Culinary Officer Nava described for the jury defendant’s conduct during the Chino staff’s investigation into a homicide that had occurred at that facility in June 2003. As part of the investigation, inmates were being transported from their cells to the prison kitchen to be interviewed. Nava told the jury that he observed defendant shout out an order to fellow White inmates not to go to the kitchen for interviews. Nava alerted staff to defendant’s announcement and accompanied another officer to defendant’s cell to investigate. Defendant told them that no White inmates would be going to the kitchen. Afterward, no White inmate gave an interview.

vi. Orchestrating crimes while in custody

The prosecution played a number of tape recordings and presented transcripts of defendant’s monitored telephone calls while in custody in the Orange County jail from 2007 until a few weeks before trial in his case in 2009. The recordings were played at various points during testimony by Sheriff’s Deputy Seth Tunstall, who had monitored and recorded the conversations. Tunstall identified for the jury the participants in the telephone calls and their relationship to the PENI gang, and he described the individuals and organizations referenced in the calls.

In some of the calls, defendant seemed to be coordinating in-custody assaults on members of a rival White supremacist gang called the United Society of Aryan Skinheads (USAS). For example, in April 2007 defendant spoke with Rebecca Mangan, who was Lamb’s girlfriend at the time and an important conduit for defendant’s communications outside the jail. In that call, Mangan told defendant that a PENI gang member named “Stomper” had been stabbed by someone from USAS while in state prison. Defendant told Mangan that if she talked with PENI member “Half P” she should tell him what had happened to Stomper. He also directed Mangan to “[tjell him I said go get one now.” Defendant’s remarks during the recorded conversation indicated that Half P was in custody in the same prison where defendant had been housed before his transfer to county jail, and that there were “four of them,” meaning four USAS members that he and Half P had been “checking on.”

About one year later, in a March 2008 conversation with his friend Andrea Metzger, defendant asked her whether she had sent a letter regarding USAS to another PENI state prison inmate, “Patrick,” and instructed her to tell him “to be on the lookout for them” because they have “jumped . . . three homies in the last year.” Defendant told her to have Patrick tell ‘“anybody and everybody that has anything to do with . . . our people . . . .” Defendant added, ‘“Fuck them dudes, . . . smash them all until they fucking go blind.” Defendant then told Metzger he needed ‘“it to go . . . [everywhere, all worldwide . . . [that] if you run into one of them fuckers, just smash them, period, no if, ands, or huts about it.”

Other telephone calls suggested that defendant was setting up crimes to be committed outside prison facilities. For example, in a series of conversations in late May and early June 2007, defendant spoke with PENI gang members Jason Cary and Jason Jones and to Jill Walker, another woman who helped facilitate his communications outside the jail, regarding what appeared to be a plan for a home invasion robbery. Defendant told Walker to ‘“grab his scooter” and ‘“anything else that ain’t nailed down,” and to ‘“take him down” and ‘“divvy it up when they’re done.” When Walker informed defendant that ‘“the Mexican dudes were gonna take care of it,” defendant asked, ‘“You didn’t tell ’em where it was at or anything did ya?” She assured him she had not. Defendant then instructed Walker to ‘“call the homeboy back right now” so defendant could ‘“set up the fucking guidelines.” He also directed Cary to get in touch with ‘“the homeboy” on a ‘“secure line,” telling him that he “want|ed| to make this thing happen.” In a conversation with Jones, defendant instructed him that ‘“everything goes,” including a $30,000 ‘“scooter.” In a third and final conversation about the apparent plan, defendant told Cary that defendant’s brother wants him ‘“there” on Monday. He also expressed frustration, saying he did not ‘“know why . . . this is so difficult for everybody to understand.” When Cary said it was ‘“just a matter of getting together,” defendant provided him with the names of others who ‘“should be ready.” Defendant then commented that ‘“evidently somebody needed to hear my voice to . . . tell ’em . . . [to] put the pieces of the puzzle together and fucking make it happen.”

In one of the recorded conversations described above, defendant indicated that he already had a cash buyer for the ‘“scooter” and agreed with Walker that he would split the proceeds from the sale with her. The prosecution also played for the jury a monitored call between defendant and his two brothers in which defendant apparently again sought to profit by putting PENI gang members ‘“to work.” In that July 2007 conversation, defendant said he needed to find ‘“some jobs.” He also said that ‘“the dudes will go do it . . . [and] . . . [t]hey tell me they’ll give me a third, right off the top.” Defendant also said he planned to ‘“throw [the money] into mom’s bank account” so that he could access it.

To bolster the monitored calls evidence, the prosecutor read into the record the portions of defendant’s testimony at Lamb and Rump’s earlier trial in which he indicated that he still had contact with others outside of jail and that Mangan set up his communications with other people. Defendant also admitted in his prior testimony that he “possibly” attempted to set up home invasion robberies while in jail and “probably” ordered “a hit” on people. The subject of ordering hits arose again, during defendant’s testimony on his own behalf in the defense case in mitigation, when the prosecutor elicited from defendant that he had “probably” tried more than five times in the past week to arrange for assaults on USAS members. As defendant explained, he was “on a mission.”

b. Victim impact testimony

As evidence in aggravation relating to the circumstances of the capital crime (§ 190.3, factor (a)), the prosecutor called Scott Miller’s mother, Bonnie Miller, to testify about the impact her son’s death had on her and other family members. According to Ms. Miller, after the murder, Miller’s father suffered a fatal stroke, his older brother Calvin had to be hospitalized after a breakdown, and his elderly grandmother, with whom Miller was very close, nearly died from a heart condition. Ms. Miller testified further that she has full-time custody of Miller’s son, “Little Scott,” who was born shortly after Miller’s death. According to Ms. Miller, Little Scott does not comprehend why he does not have a father like his friends do, and it broke her heart to tell him he would never see his father. She told the jury it also breaks her heart to take Little Scott to the beach to watch the surfers because she realizes that Miller, who was an avid surfer, will never have a chance to teach his son to surf. Ms. Miller concluded her testimony by explaining that part of her died when her son was murdered and, except for her love for Little Scott, she has since shut herself off from the rest of the world.

2. Defense evidence

The defense presented a multifaceted case in mitigation that included character witnesses, expert testimony regarding defendant’s social history and psychological profile, and testimony by the former warden of San Quentin State Prison, who contrasted the day-to-day existence of a death row inmate with that of an inmate at a high security prison. Defendant also testified on his own behalf.

a. Character evidence

Two witnesses who had testified during the prosecution’s case-in-chief at the guilt phase of trial described for the jury a different side of defendant. Shirley Williams testified that she was good friends with defendant and his entire family, and that if she was in trouble in any way, defendant was there to help. According to Williams, defendant was always courteous to her and respectful and protective of women generally. She considered defendant a good father who loved his children, and she never saw him get violent or enraged; she experienced his gentler side only.

Another prosecution witness at the guilt phase, Donald McLachlan, told the jury he considers defendant “a friend in every definition of the word.” He explained that if someone was having problems with a girlfriend or wife, or needed money, defendant would be there. McLachlan also recounted that on one occasion, defendant intervened to protect McLachlan’s possessions when people started taking things from his residence after he had been taken into custody.

Suzanne Miller’s testimony at the penalty phase reiterated the theme that there were two sides to defendant. Miller, who was defendant’s girlfriend, acknowledged that defendant was capable of great violence. But she described defendant as loving and respectful, and believed his life had value. Miller also characterized defendant as very protective, explaining to the jury that defendant agreed to a sentence of 45 years to life for Lamons’s murder so that she and the other codefendants in the case could receive determinate sentences rather than life terms.

Joseph Govey testified about defendant’s loyalty as a friend. He told the jury that when he and defendant were cellmates 20 years earlier, defendant showed Govey a letter indicating that an Aryan Brotherhood shot-caller had ordered defendant to kill him but defendant refused to do so.

b. Social history and psychological assessment

The defense presented extensive expert testimony by Roberto Flores de Apodaca, Ph.D., a clinical psychologist. In forming his opinions, Dr. Flores conducted two interviews of defendant, administered psychological tests, and reviewed various records provided by the defense team.

Dr. Flores began his testimony by describing defendant’s family background and social development, much of which was reported to him by defendant himself. Defendant’s parents separated when he was 10 years old and he had had virtually no contact with his father since that time. His father’s departure from the family was the point at which defendant started having behavioral problems in school and running afoul of the law. Defendant told Dr. Flores that he was grateful to his mother for working hard and providing for him and his four older brothers. But Dr. Flores was of the view that defendant’s mother was overwhelmed and unable to adequately exercise any authority over defendant. Defendant reported positive relationships with his four siblings, with whom he spent the bulk of his time. Dr. Flores believed that defendant’s older brothers provided him with some parent-like care and guidance, but ultimately were not successful authority figures for him.

Notwithstanding defendant’s description of an “idyllic” childhood and adolescence with his siblings, his criminal activities and substance abuse began at an early age. Starting with alcohol use at age 10, defendant had moved on to marijuana, LSD, and cocaine by the time he was 14 or 15 years old. By age 25, methamphetamine was defendant’s “drug of choice.” According to Dr. Flores, defendant’s alcohol and drug abuse were both a cause and effect of his bad decisions that tended toward criminality, choices he was making on his own because he had no real authority figure in his life. For example, at age 10, defendant was arrested for receiving stolen property, specifically, some diamond earrings that he had sold to buy alcohol. Dr. Flores pointed out that defendant, who was 46 years old at the time of trial, had spent about 25 years of his adult life in prison, and he agreed with defense counsel that the prison environment provided defendant with structure and effectual authority figures.

Dr. Flores shared with the jury defendant’s positive comments regarding his two former wives and his two children, 25-year-old Justin and eight-year-old Ryder. Defendant identified his drug use and lengthy incarcerations as the reasons for the marriage breakups, and he told Dr. Flores that he remained committed to his former wives and his children. Dr. Flores gleaned from these and other comments that although defendant can be violent and vengeful when, in his judgment, the situation called for it, he also can be loyal, committed, and helpful in other circumstances. In defendant’s own words, “The two things that cannot be forgiven are [child molesters] and rats, everything else can be forgiven in life.”

Dr. Flores also discussed the results of the intelligence and psychological tests he administered to defendant. He determined that defendant’s intelligence quotient on a nonverbal intelligence test was 92, below the average score of 100 in the general population, but possibly attributable to his having given up on school at such an early age. Defendant’s responses on the personality assessment inventory showed that he was prone to drug abuse, aggression, and violence, and that he had no regard for the rights of others, social norms, or the law. That assessment further indicated that, with regard to defendant’s propensity for aggression, he was irritable and short tempered, and that he sometimes was unable to control his anger. In Dr. Flores’s view, defendant’s drug abuse was both the cause and effect of this impulsivity. Finally, Dr. Flores described the results of the Hare psychopathy checklist, a test that quantifies the subject’s psychopathological tendencies associated with a “basic criminality makeup,” which the tester then compares to the scores of inmates in the prison population generally. The checklist showed, among other traits, that defendant was cunning, manipulative, callous, and impulsive, and that he lacked guilt or remorse. Defendant’s score, 34 out of 40, placed him in the 97th percentile of the prison population generally. In connection with this assessment, Dr. Flores referred to defendant as a “principle psychopath,” meaning that his antisocial, criminal, and violent actions and behaviors are governed by his own internal ethical code, which derives from principles and values of his gang.

Regarding a diagnosis, Dr. Flores concluded that defendant met the criteria for antisocial personality disorder and that he was not amenable to treatment.

Defendant informed Dr. Flores during the interviews that he wanted to receive the death penalty. In Dr. Flores’s view, defendant’s stated reasons for preferring a death verdict—a more desirable quality of life on death row— was rational and not impulsive. Dr. Flores also believed that the other option for defendant, which likely would be spending the rest of his life in the security housing unit (SHU) at Pelican Bay State Prison, would not be compatible with his mental makeup.

c. Differences between life in a security housing unit and life on death row

Daniel Vasquez, the former warden at San Quentin State Prison, testified regarding the differences between the day-to-day life of an inmate placed in the SHU at Pelican Bay State Prison and that of a death row inmate at San Quentin. As Vasquez explained, the SHU at Pelican Bay is one of the most secure correctional facilities in the country, and prisoners who are documented street or prison gang members are sometimes placed there indefinitely. Inmates assigned to the SHU are locked in their cells almost 24 hours per day. They are allowed three cubic feet of property, including a television or radio. Although inmates in the SHU are allowed to exercise by themselves in a small indoor yard and to shower about three times a week, they have no outside visibility or fresh air and are not permitted face-to-face contact with visitors or other inmates.

Vasquez then described life on death row. According to Vasquez, condemned prisoners in death row’s most desirable area, called the North Seg, can exercise right outside their cell door, and have more time out of their cells than inmates in the SHU. Good behavior is a requirement for assignment to North Seg and there is a long waiting list. Another area within death row, called East Block, is less attractive because the day-to-day existence is mostly repetitive and movement outside the cell is more restrictive. For example, inmates are searched and handcuffed when they are escorted to the outdoor exercise yard, which is densely populated with other death row inmates and guarded by armed officers. Death row inmates who exhibit bad or dangerous behavior are housed in the adjustment center, where the daily routine is similarly repetitive and restrictive. As Vasquez explained, death row inmates are allowed attorney and family visits and, with a record of good behavior, may be permitted face-to-face visits. Death row inmates also are allowed up to six cubic feet of personal property, depending on their behavior grade.

In response to defense counsel’s hypothetical question, Vasquez expressed his opinion that it was understandable for a convict with a documented history of prison gang affiliations to express a preference for living out his days on death row rather than in the SHU in Pelican Bay. As Vasquez pointed out, death row inmates have more protection from gang members and enemies and less pressure to align with gangs.

In response to defense counsel’s line of questioning regarding misconduct by prison guards, Vasquez indicated he was aware of an inquiry by the Federal Bureau of Investigations into allegations that in the late 1980s and early 1990s guards at Corcoran staged fights between inmates and bet on them. According to Vasquez, the investigation resulted in indictments against some staff.

During cross-examination by the prosecutor, Vasquez answered questions regarding the records that chronicled defendant’s 20-year history of incarceration in the state’s prison system. He told the jury that the records showed numerous instances in which defendant was briefly released from prison but returned to custody for violating the conditions of his parole. The prosecutor also elicited from Vasquez information regarding defendant’s numerous prison rules violations. Reading from prison records, Vasquez testified, for example, that during defendant’s first prison commitment, he was written up five times for rules violations.

d. Defendant’s testimony

Defendant testified on his own behalf, telling the jury he would prefer being on death row at San Quentin than in the SHU at Pelican Bay. He also spoke about his social history, prison experiences, and gang affiliation, and offered his own perspectives on Miller’s murder and the evidence regarding his other crimes and acts of violence.

Defendant first commented on Miller’s murder. He said that he felt “bad” for Miller’s mother, but that Miller “messed up on laws written by us” and knew the consequences of his actions. When defense counsel asked defendant whether he had tried to assume more culpability for Miller’s murder by saying he shot him when he had not, defendant replied, ’'Pretty much.” Yet defendant still maintained that he was the shooter and that Lamb and Rump had nothing to do with killing Miller. During cross-examination, however, the prosecutor asked defendant to explain why he had to tell Lamb’s girlfriend to remind Lamb, shortly before defendant testified at Lamb and Rump’s trial in 2007, how defendant had gotten the murder weapon to him. In connection with that line of questioning, the prosecutor played for the jury a tape recording of a monitored call from the Orange County jail between defendant and Rebecca Mangan in which Mangan said ‘“he,” meaning Lamb, needed to know how defendant got ‘“the bullshit to him.” Defendant replied, ‘“Oh, that, that was, at the fucking, uh, uh, Margaritaville,” a detail that had been ‘“fucking hatched a long time ago.”

As he had done during his interviews with Dr. Flores, defendant described for the jury his upbringing, family relationships, and history of drug use. He recalled that as a boy he was involved in all types of sports but did not enjoy school because of the ‘“authority figure” aspect of it. He characterized his father as a strict disciplinarian who would punish him harshly for showing disrespect, but spoke about his fondness for his mother and his two former wives, and his love for his own children. Defendant told the jury that he always had maintained good contact with his older son Justin, even during lengthy incarcerations. He acknowledged that his prison time and drug use had ruined his marriages, and reflected that had he never used drugs he probably would have lived a crime-free life. But defendant also admitted that he ‘“still love[s] drugs” and ‘“will do drugs” until he dies.

Defendant testified that he had grown up through the prison system, and he believed the decades he spent in that environment had produced his violent side. According to defendant, prison is a ‘“kill or be killed” situation, and ‘“everybody can get got, no matter how big you are, how small you are, the bodies hit the floor.” Defendant indicated that he himself almost had been killed when he was stabbed in the neck for disobeying a shot-caller’s order to kill his cellmate Joseph Govey.

Defendant also testified regarding his involvement in White supremacist gangs. He explained that he did not join a gang during his first incarceration because at that time he was ‘“too young, too naive to see that my race needed help.” He eventually aligned himself with a White supremacist gang because he wanted to help the older and younger inmates who were being preyed upon. Defendant indicated that he ‘“lives” for his race, but has no problem with other races ‘“unless they come into my area” selling drugs or burglarizing homes. He does not want ‘“people harassing my people” and would do “everything feasibly possible to make sure that they leave the neighborhood,” including killing them, “if that’s what it takes.” Defendant emphasized that he had never been convicted of a hate crime and had never beat up someone because of his race.

Defendant then offered the jury his explanations for some of the crimes and acts of violence that were described during the prosecution’s case in aggravation. With regard to the killing of Folsom prison inmate Clyde Nordeen, defendant guessed that the reason no charges were filed against him was because Nordeen was a child molester. Defendant did not like it that Nordeen got “a little two-year sentence” for raping children. As for the various assaults on his Folsom prison cellmates, defendant explained that the prison had placed known informants in his cell in an attempt to get him to talk about the fatal attack on Nordeen. Defendant also offered his reasons for assaulting fellow inmates in Corcoran. For example, he asserted that a September 1995 attack on an African-American inmate took place in a “gladiator arena.” According to defendant, one of the guards asked if defendant minded him taking home the security camera recording of the exercise-yard fight, so that he could show his children the proper way to “beat somebody’s ass.” Defendant admitted that in November 1996 he assaulted an inmate who had dropped out of one of the gangs. As defendant put it, he “did what I had to do.”

Defendant did not deny having engaged in numerous crimes and acts of violence both inside and outside the custodial setting, including two homicides that were not part of the prosecution’s case in aggravation. He pointed out, however, that he always directed his violence toward drug dealers, addicts, gangsters, and convicts, and never against law enforcement. In defendant’s words, “My actions have hurt people. I am sorry about that, but you know, the people that I hurt knew the job was tough when they took it. They signed onto the same thing that I signed onto.” In this regard, defendant admitted the 1985 burglary of Virgil Troutman’s home, which he described as a drug house. As defendant explained, Troutman was a drug dealer who refused to front defendant some drugs; defendant also had heard Troutman sold drugs to children, which bothered him. Defendant used a similar theme when discussing his involvement in Cory Lamons’s murder, explaining that Lamons was a drug addict who owed defendant money and was stealing from women he knew.

Defendant minimized or flatly denied his involvement in other incidents presented in the prosecution’s penalty phase case, however. Specifically, defendant indicated that he did not know that his “jackass” friend was going to steal a woman’s purse in April 1989, and he claimed he was high on cocaine and alcohol when that crime occurred. Defendant also insisted that he had never run from the police and was not the person who evaded Garden Grove officers in a high-speed chase in October 1994. He explained that he co-owned the car, which had been impounded, but maintained that “Alex” had retrieved the car and then run from police because he was carrying a pound of marijuana.

Defense counsel’s direct examination of defendant ended as it had begun, by eliciting from defendant that his goal was to get the best situation for himself and he therefore preferred to live out the rest of his life on death row.

II. Discussion

A. Guilt Phase Claims

1. Sufficiency of the evidence of lying in wait

The prosecution presented alternative theories of defendant’s first degree murder liability for Miller’s death: (1) that the killing was premeditated and deliberated murder, or (2) that it was committed by means of lying in wait. (§ 189.) The jury found defendant guilty of first degree murder. The jury also found true the associated lying-in-wait special-circumstance allegation. (§ 190.2, subd. (a)(15).) Defendant asserts that his murder conviction based on lying in wait and the lying-in-wait special-circumstance finding were not supported by substantial evidence, and therefore cannot stand. Under the applicable standard for assessing his challenge to the sufficiency of the evidence (People v. Booker (2011) 51 Cal.4th 141, 172 [119 Cal.Rptr.3d 722, 245 P.3d 366]; People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738]; Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781]), we conclude to the contrary that a reasonable trier of fact could have found defendant guilty of first degree murder on a lying-in-wait theory, and the truth of the lying-in-wait special-circumstance allegation, beyond a reasonable doubt.

The capital murder in this case occurred in 2002, subsequent to a then-recent amendment to the statutory provision setting forth the lying-in-wait special circumstance. (§ 190.2, subd. (a)(15).) Like the former version, the amended lying-in-wait special circumstance requires “ ‘ “an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) ... a surprise attack on an unsuspecting victim from a position of advantage