People v. Peoples (62 Cal. 4th 718, 2016)

Opinion

LIU, J.

On August 4, 2000, defendant Louis James Peoples was sentenced to death for murdering James Loper, Stephen Chacko, Besun Yu, and Jun Gao. This appeal is automatic. We affirm the judgment.

I. FACTS AND BACKGROUND

In an amended information filed on May 11, 1999, in San Joaquin County Superior Court, the district attorney charged defendant with four counts of first degree murder (Pen. Code, § 187; all further statutory references are to the Penal Code unless otherwise indicated), one count of attempted murder (§§ 664, 187), three counts of second degree robbery (§ 211), four counts of auto burglary (§ 459), and one count of receiving stolen property (§ 496, subd. (a)). The amended information alleged firearm use enhancements as to the murders, the attempted murder, and three of the four burglary counts (former §§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1)) and the infliction of great bodily injury with respect to the attempted murder count (former § 12022.7, subd. (a)). Finally, the amended information alleged multiple-murder, lying in wait, and robbery special circumstances. (§ 190.2, subd. (a)(3), (15), (17).)

The trial court dismissed two of the four counts of burglary. A jury convicted defendant of four counts of first degree murder, three counts of second degree robbery, two counts of burglary, and one count of receiving stolen property. The jury also found true the firearm use enhancement with respect to each of the murders and the multiple-murder, lying in wait, and robbery special-circumstance allegations. The jury could not reach a verdict on the attempted murder charge, and the trial court declared a mistrial as to that count and the related allegations.

The same jury heard evidence in defendant’s first penalty phase trial but could not achieve unanimity on a penalty verdict. The trial court declared a mistrial. The trial court empaneled a second penalty jury, which ultimately returned a verdict of death. The trial court denied the automatic motion to modify the verdict and imposed the death sentence.

A. Guilt Phase

Over the course of a five-month period from June to November 1997, defendant received stolen property and committed two burglaries, three robberies, and four murders.

1. Burglary of Michael King’s van

On the morning of June 21, 1997, defendant broke into the van of off-duty Alameda County Deputy Sheriff Michael King while King and his family were watching his son play baseball at Anderson Park in Stockton. Upon returning to the van, King noticed the passenger side door was unlocked, and several items were missing, including his wife’s purse, two checkbooks, and King’s fanny pack, which in turn contained his fully loaded .40-caliber Glock service pistol, his sheriff’s deputy badge, and his identification card. The King family’s telephone number was on the stolen checkbooks. King filed a police report with Officer Michael Scofield of the Stockton Police Department.

On June 22, King contacted Scofield to report two phone calls the Kings received at home. In the second call, a male caller said, “Thank you for the fucking gun, you idiot,” and hung up.

On November 13, one day after his arrest, defendant discussed the burglary of King’s van in an interview with Dr. Kent Rogerson, a private practice psychiatrist retained by the prosecution to conduct a general psychiatric exam and assess defendant’s competency. In addition, police found a “slim jim,” which can be used to access locked vehicles, in defendant’s apartment.

2. Cal Spray shooting and burglary

During the summer of 1994, defendant worked as a “miscellaneous man” at California Spray Dry Company (Cal Spray), which processes animal remains for dehydrated animal food and fertilizer products. He was later promoted to operator—a position that required him to closely monitor valve switches on dryer tanks. On several occasions, defendant failed to monitor the dryer valves, resulting in significant product damage. Defendant’s coworkers also noted that he periodically displayed nervous and erratic behavior. Michael Liebelt, who trained defendant at Cal Spray, explained that defendant’s erratic behavior and repeated mistakes resulted in his eventual dismissal. Defendant’s supervisor at Cal Spray, Gregory Beal, testified at trial that defendant disagreed with his termination from Cal Spray and took it personally.

Three years later, around 3:30 a.m. on September 16, 1997, Cal Spray employee Thomas Harrison pulled into the Cal Spray plant’s secure parking lot on the outskirts of Stockton for his morning shift. His coworker, Timothy Steele, entered the lot around the same time. When Steele entered the lot, he noticed someone leaning into the open passenger side door of a blue pickup truck.

When Harrison and Steele exited their vehicles, they noticed that most of the lot’s vehicles were vandalized, including the pickup truck of employee David Grimes. Harrison then approached the blue pickup truck to investigate. When Harrison was halfway to the truck, the man who had been leaning into the open door fired two gunshots at Harrison. Harrison later realized the man was defendant, his former coworker at Cal Spray. Harrison fell to the ground as defendant continued to shoot. Harrison felt pain in his right leg and pelvic bone, and cried out that he had been shot.

As defendant began to flee, running toward a hole in a nearby fence, he fired two shots at Steele. Steele heard one of the bullets sail by his head. Steele called 911 using Harrison’s cell phone, and medical personnel arrived and transported Harrison to the hospital. Harrison sustained a bullet wound to his upper right leg and was hospitalized for nine days.

Evidence technicians recovered seven .40-caliber shell casings from the scene. Several vehicles in the parking lot had been vandalized. The police found a large pair of bolt cutters in one of the vandalized vehicles and discovered a two-foot-wide hole that appeared freshly cut in the fence surrounding the plant. Additionally, police found shoe prints left in dried blood on the lot.

A few hours before the shooting, Beal had received a phone call. Although Beal’s home phone number was unlisted, employees had access to the number. The male caller addressed Beal by his first name and reported a fire in one of the plant’s dryers. Beal did not recognize the voice but believed the caller knew the plant’s procedures. Beal rushed to the plant but found no fire.

The next day, between 2:30 and 3:30 a.m., Cal Spray shift supervisor Michael Liebelt also received a phone call. The caller asked if “anybody had been shot out there . . . , if anybody had died out there.” When Liebelt demanded that the caller identify himself, the caller asked whether “anyone had gotten wasted out there last night?” The caller then giggled and hung up.

3. Bank of the West robbery

Sometime between 3:30 and 4:30 p.m. on October 24, 1997, defendant walked into a Bank of the West branch in Stockton and handed bank teller Jason Tunquist a note that demanded money and threatened the use of a gun. Defendant pulled out his gun, cocked it, and aimed it at Tunquist. Tunquist gave defendant a stack of bills totaling $900, and defendant fled the bank.

Tunquist described the assailant to police as male, about five feet seven inches in height and 150 pounds, 45 or 50 years old, with a “weathered look.” Although he was unable to identify the robber from a police photo lineup, Tunquist later identified defendant as the robber about a month later when he saw defendant’s photo in the newspaper.

4. Murder of James Loper

Defendant began working as a tow truck driver at Charter Way Tow in June 1997. He was suspended on October 6, 1997, for 30 days after testing positive for methamphetamine during a routine drug test. One of the owners of Charter Way Tow, Rodney Dove, reported that defendant was upset when he was suspended.

Around 2:50 a.m. on October 29, 1997, Charter Way Tow telephone operator Mary Kuwabara received a call requesting a tow from a man who identified himself as “Jason Lee.” The caller said he was on Eight Mile Road, west of Interstate 5. Kuwabara dispatched Loper to the call because he was second on the list of three on-call drivers, and the first driver had been dispatched to an earlier call. The earlier caller had identified himself as “Doug Stone” and requested a slide-back tow truck; Loper was the only driver on duty who did not have a slide-back truck. The caller’s location was on the opposite end of Stockton from the Eight Mile Road location.

Around 3:45 a.m. that same morning, San Joaquin County Deputy Sheriffs Kenneth Bassett and Bill Gardner were on routine patrol traveling west on Eight Mile Road in a rural area near Stockton. After stopping to investigate an unoccupied tow truck parked on the side of the road with its lights on and engine running, Gardner saw the body of James Loper lying underneath the truck. Loper was unresponsive, and the deputies called for an ambulance.

On the driver’s side of the truck, Bassett found nine spent gun cartridges, which were later determined to be .40-caliber casings. Based on the position of the cartridges, Basset believed the shooter fired multiple times at Loper after Loper climbed under the truck. The deputies called for medical personnel and backup from police detectives. Medical personnel arrived and removed Loper from under the truck. San Joaquin County Sheriff’s Detectives Antonio Cruz and John Huber responded to the scene and took over the investigation. Investigators recovered physical evidence from the scene, including boot prints later determined to be from Ariat brand boots.

Loper’s autopsy revealed 10 gunshot wounds, all of which were sustained while he was alive. At trial, forensic pathologist Dr. Sally Fitterer testified that gunshot wounds to Loper’s abdomen caused his death.

The day after the murder, defendant called Charter Way Tow and spoke with Sandi Dove. Defendant said Loper was a “good guy” and told Dove he was sorry about Loper’s death. Defendant also asked if the company wanted him to come back from suspension before the end of his 30-day suspension because they were shorthanded. Dove declined and told defendant that he had to serve out his suspension.

5. Murder of Stephen Chacko and robbery of Mayfair Liquors

Shortly after 7:30 a.m. on November 4, 1997, Stockton Police Officer Ernest Alverson responded to a report of shots fired at the Mayfair Liquors store in Stockton. Upon arrival, Alverson saw a man, later identified as Stephen Chacko, bloody and lying lifeless in the parking lot of the store. Alverson and his partner, Officer Bowen, went inside the store and were later joined by Detective Jeff Coon. Police found blood, broken items, and .40-caliber shell cartridges inside the store. A trail of blood from one of the store aisles led out into the parking lot, where additional spent .40-caliber cartridges were found.

At the scene, investigators recovered 19 bullet fragments, 14 shell casings, and one live round. Investigators also recovered video footage from a security camera inside the store, which was shown to the jury, that placed the time of the robbery and murder at around 7:20 a.m. The footage, though not very clear, shows Chacko standing in the main aisle of the store, between the cash register and the other aisles, and defendant in one of the aisles with his arm extended. Later, defendant is seen standing behind the open drawer of the register, then moving to the left and slightly extending his right arm.

The autopsy of Chacko revealed five gunshot wounds. A gunshot wound below Chacko’s armpit was fatal.

Based on the shell casings and the weapon used in the shooting, Detective Coon believed that the Mayfair Liquors murder and the Eight Mile Road murder were connected. In addition, the subject in the security video resembled the subject in the Bank of the West video.

6. Murders of Be sun Yu and Jun Gao and robbery of Village Oaks Market

Around 9:55 a.m. on November 11, 1997, San Joaquin County Deputy Sheriff Charles Locke responded to a report of gunshots fired with two individuals injured at the Village Oaks Market in Stockton. Locke entered the store and found Besun Yu in a crouched position behind the cash register. She was unresponsive and had a weak pulse. Locke administered CPR. An autopsy later revealed that Yu sustained three gunshot wounds, including the fatal shot that severed her spinal cord.

Locke also saw the body of Jun Gao, lying facedown with a pool of blood near his head. An autopsy later revealed that Gao sustained a single gunshot wound that perforated his left jugular vein and carotid artery.

Locke observed .40-caliber shell casings near the cash register, and it appeared that another register had been forcibly removed. The safe in the store’s office was unlocked, and inside were rolls of coins. Evidence technicians recovered five shell casings, four bullets, and two bullet fragments from the scene. Forensic firearms expert Michael Giusto opined that the shell casings recovered at the scene were most likely fired from a Glock pistol. The missing cash register was recovered hours later on Highway 99 in Stockton. The cash register drawer was also found that evening on the outskirts of Stockton. Detective Coon received information about a vehicle possibly associated with the crime—a 1990s, four-door, dark-gray Nissan Stanza, with primer or oxidation marks.

7. Investigation and apprehension

Around 1:00 p.m. on November 12, 1997, Stockton Police Officer Brian Swanson saw a vehicle that matched the description of the suspect vehicle in the Village Oak Market murders in the parking lot of an apartment complex near the crime scene. The car was registered to Carol Peoples. Her husband, Louis James Peoples, was listed as a possible owner. The apartment complex was one block from Anderson Park and Mayfair Liquors, less than one mile from the Bank of the West, two miles from the Village Oaks Market, and seven miles from the Eight Mile Road murder scene. Detective Coon recognized defendant’s name as a person who had been terminated from Charter Way Tow, and he told officers to detain anyone that got in the car. Aided by a photo of defendant, officers saw a white male matching his description leaving the complex and arrested him at 3:15 p.m.

At the time of his arrest, defendant was carrying a backpack that contained a black nylon jacket, green knit gloves with silver duct tape on the fingers and backs, a black baseball hat, a California license plate, an Oregon driver’s license in the name of Nathan Gelder, the checkbooks in Michael and Eva King’s names, a police scanner, and a radio call book containing radio frequencies for police and fire personnel. Additionally, the backpack contained a blue folder with the handwritten words “Biography of a Crime Spree.” The folder contained newspaper clippings about the crimes and a note that read, “Some of the inserts in this scrapbook were merely for the motive of revenge, some was to support my family when I was unemployed. Some of them started out to be one thing and turned into something a little more extreme. I have to admit I’ve always wanted to murder someone, and the idea of a crime spree has appealed to me for some time now, hence, the crime spree. I guess we will see where it goes. (I never thought the two people in the Village Oaks store would die, after all, I only shot them two times each. Ha! Ha!)”

Defendant was also wearing a fanny pack that contained a small pair of binoculars, a Swiss Army-type knife, a mini MagLite flashlight, a Buck-type knife in a holster with defendant’s initials, handcuffs, pepper spray, a Social Security card in the name of Justin Werner, a nylon gun holster, and Michael King’s sheriff’s deputy badge and identification. It appeared defendant had changed the photo on King’s identification to his own.

Officer Swanson did not observe defendant to be intoxicated or exhibiting obvious signs of drug use at the time of the arrest. Defendant did not exhibit any unusual behavior during the 10-minute drive to the police station.

Police searched defendant’s apartment that night after obtaining a search warrant. Police found the following items: a pair of Ariat brand boots with a print pattern similar to that found at the Eight Mile Road murder scene; a map of Stockton with marked locations, including Mayfair Liquors and Village Oaks Market; a “slim jim”; and a note that read, “CWT Charter Way Tow. Can I help you? Dude, yeah, check this out. You and the popos are all fucked up about Jimbo. He was a punk. He was on dope like the rest of your Charter Way drivers. Jimbo didn’t want to pay. That’s why he got capped. He wasn’t the goodie goodie everybody thought he was. So get it straight.”

Beginning around 4:30 p.m. on the day of the arrest, Detective Huber and Detective Coon advised defendant of his Miranda rights and interviewed him without his lawyer present. (See Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602] (Miranda).) The interview lasted approximately 12 hours, ending around 4:30 a.m. on November 13, 1997. According to Huber, defendant did not appear under the influence of drugs at the time of the interview; however, he appeared sleepy and may have been experiencing symptoms of withdrawal.

Defendant denied involvement in the crimes during the first nine or 10 hours of the videotaped interview. During the last hour, he confessed to the homicides and other crimes, and drew a diagram indicating the location of the murder weapon. Officers were initially unable to locate the murder weapon. Later that morning defendant accompanied two detectives to the location. Officers recovered a gray plastic bag in a vacant lot about three blocks from defendant’s apartment that contained a black leather pouch and a box of .40-caliber hollow-point bullets. The pouch contained a handgun that had been altered—the serial number was destroyed and the breech face sanded down—but was later identified as the .40-caliber Glock pistol defendant stole from Deputy King’s vehicle on June 21. The pouch also contained one rubber glove, an off-white piece of paper, and six white envelopes, including one containing a note that read, “Give me all the 100’s, 50’s, 20’s and 10’s. Make it fast, and nobody will get shot.”

After recovering the .40-caliber handgun, the prosecution’s firearms expert Michael Guisto test-fired the pistol and determined that all the cartridges collected in the case investigation were fired from the same gun. Furthermore, Guisto noted that the difference in breech marks on the cartridges recovered from the Eight Mile Road murder scene and the Mayfair Liquors murder scene suggested a possible alteration of the gun between the shootings. Such alteration could be accomplished using sandpaper. In a videotaped interview on November 14, defendant admitted to Detective Huber that he had sanded the gun down.

8. Defense Expert Testimony

During the guilt phase, defendant presented the testimony of three expert witnesses: Drs. Joseph Chong-Sang Wu, Daniel Amen, and Monte Buchsbaum. Dr. Wu testified that he had performed a positron emission tomography (PET) brain scan on defendant, from which he had concluded that defendant’s brain was “clearly abnormal” with respect to the degree of activity in his frontal lobe, evincing brain damage related to the impairment of high-level functioning and the regulation of aggressive impulses. Dr. Wu could not say with certainty the cause of these abnormalities, but that they were consistent with methamphetamine abuse. Dr. Amen testified that he had performed multiple single photon emission computed tomography (SPECT) brain scans on defendant, from which he had concluded that defendant’s brain was abnormal in a manner consistent with methamphetamine abuse or head trauma, and that the scans showed reduced brain activity in executive functioning areas and high activity in the cingulate gyrus, the latter of which is consistent with the presence of compulsive, repetitive thoughts. Finally, Dr. Buchsbaum testified on the basis of Drs. Wu’s and Amen’s scans that defendant had a defect in his frontal lobe consistent with methamphetamine abuse, head trauma, or a combination of the two, that could cause a lack of impulse control. In his closing argument, defense counsel argued that these brain abnormalities called into question defendant’s ability to “control his thoughts, feelings, or behavior,” and therefore to form the specific intent necessary for a conviction of first degree murder and robbery.

B. Penalty Phase

The first penalty phase jury was unable to reach a unanimous verdict. After the first penalty phase trial ended in a mistrial, a second jury was empaneled and ultimately sentenced defendant to death. The following evidence was presented to the second penalty phase jury.

1. Prosecution evidence

a. Circumstances of the crime

The prosecution presented many of the same witnesses and evidence during the penalty retrial that were presented during the guilt phase and first penalty trial.

b. Victim impact evidence

The victims’ family members testified about the lives of the victims and the effect of their murders.

James Loper was married to his high school sweetheart and was the father of two boys, ages six and eight. His wife testified that Loper’s murder had “torn [the family] apart,” and subsequently, their older son began experiencing problems in school. His mother, Hazel, testified that Loper loved his family and worked very hard to provide for them. Hazel also testified that Loper’s father was “not doing well” since the murder and could not testify for fear that he could not control himself in defendant’s presence.

Stephen Chacko’s wife, Anice, testified that Chacko had moved to the United States from India to be with Anice and together they owned Mayfair Liquors. The couple had two children, and Anice was pregnant with their third child at the time of Chacko’s murder. Anice testified that Chacko was a loving family man who worked hard to support the family. After Chacko’s murder, Anice had to move to India to live with Chacko’s family because she and the children were homeless. Anice testified that the children missed their father and did not understand why he was gone.

The prosecution was unable to present victim impact evidence regarding the murder of Jun Gao because he did not have family in the United States. He had recently emigrated from China to help his friend Besun Yu run the Village Oaks Market.

Besun Yu was a married mother of three, who was described by her children as sweet, kind, loving, and hardworking. Yu’s son Jack testified that since her murder, the family had drifted apart because Yu was the “pillar that [held] everything together.” Yu’s husband was unable to testify and was “not himself’ since her murder. Yu’s son David testified that the aftermath of her murder was “very hard” on the family. Yu’s daughter, Karen, testified that defendant had “ruined [her] whole family.”

c. Prior convictions

The prosecution introduced into evidence defendant’s certified prior convictions for felony burglary in Florida from 1982.

2. Defense evidence

a. Testimony of defendant’s family and friends

The defense presented testimony from defendant’s mother, Loretta Peoples, who described defendant as a loving father and husband. She detailed defendant’s rough upbringing and described his father, Luther, as a verbally abusive alcoholic. Defendant had a history of bed-wetting that continued into his teenage years. On one occasion, he soiled his pants and was publicly humiliated and degraded by his mother. When defendant was a teenager, his mother relinquished parental control to the sheriff, and defendant became a ward of the court. He was assigned a juvenile court counselor who was later convicted of molesting children. According to Dr. Gretchen White, defendant confided in her that he had been molested by the counselor on at least two occasions.

Defendant’s father, Luther, testified that Loretta was worried about defendant during his teen years because of his drug use and problems with the law, including a stint in a juvenile correctional facility for 18 months during high school. Defendant’s older brother Larry described defendant as sensitive, quiet, and passive. Larry could not recall a history of violence but did note defendant’s history of drug use.

Defendant’s 15-year-old stepson and nine-year-old daughter testified that defendant was a loving father. Defendant’s wife, Carol, testified that the couple used drugs, including methamphetamine, from the beginning of their relationship in 1988. Carol described defendant as a loving family man and good father. Carol also reported that defendant was never violent toward her during the nine years they lived together.

Defendant’s neighbors testified that he was a good father and had never been violent. In addition, a minister who conducted prisoner outreach testified on defendant’s behalf. It was only the third time since he started his prison ministry in 1953 that the minister had testified on an inmate’s behalf.

b. Expert testimony

The defense offered expert testimony from Dr. Wu and Dr. Amen regarding the results of PET and SPECT brain scans they had performed on defendant. Dr. Amen opined that the SPECT scans showed a functionally damaged brain that affected defendant’s thought process. Defendant’s methamphetamine use exacerbated his condition. Dr. Wu testified that he was 95 percent certain that defendant’s brain was abnormal based on his PET scan. Additionally, there was a greater than 95 percent probability that a methamphetamine user would have an abnormal brain scan.

Dr. George Woods, a psychiatrist, opined that defendant’s violent acts were attributable to methamphetamine impairment, which caused him to misper-ceive reality and led to paranoid ideations and aggressions. Since being in jail and off drugs, defendant had gained an appreciation of the harm of his actions. Dr. Woods believed defendant was truly remorseful.

Dr. David Lisak, a clinical psychologist, testified about the psychological and emotional effects that a traumatic sexual experience can have on an adolescent boy.

c. Correctional officers’ testimony

San Joaquin County Sheriff’s deputies who had contact with defendant in their capacity as correctional officers testified that defendant was calm, quiet, and respectful while in their custody. None of the officers reported instances where defendant resisted their commands or failed to obey orders. By all accounts, he was a model prisoner.

3. Prosecution rebuttal evidence

Dr. Helen Mayberg, a clinical neurologist, criticized the defense experts’ opinions that defendant’s brain scans revealed serious abnormalities. Instead, Dr. Mayberg opined that if the scans demonstrated any neurobiological condition, it was possibly depression. Because defendant’s crimes required “tremendous deliberation, planning, forethought, decision-making, execution, [and] follow-through,” Mayberg said, his conduct was not attributable to brain damage, intoxication, or other drug-related issues.

Dr. Kent Rogerson, a psychiatrist for the prosecution, diagnosed defendant with methamphetamine dependency and an antisocial personality disorder with schizoid traits. Dr. Rogerson opined that defendant’s crimes were not impulsive; they were goal-directed conduct. Although defendant’s methamphetamine abuse seriously affected his life, his writings and reaction to his crimes indicated that he was capable of making conscious decisions to harm people.

II. DISCUSSION

A. Guilt Phase Issues

1. Admission of involuntary statement to the police

Defendant claims that the trial court erroneously admitted his involuntary statement to the police in violation of his state and federal constitutional rights against self-incrimination, against cruel and unusual punishment, to a fair trial, to due process, and to a reliable determination of guilt and punishment.

a. Background

Following defendant’s arrest on November 12, 1997, Detectives Huber and Coon interrogated him in videotaped sessions from approximately 4:00 p.m. on November 12 to approximately 4:45 a.m. on November 13. The detectives advised defendant of his Miranda rights. Over the course of the interrogation, defendant showed signs of physical and mental exhaustion: sweating, pulling out his hair, rubbing his skin, twitching his facial muscles, grinding his teeth, and at times appearing to fall asleep. He was provided with bathroom breaks, coffee, waters, sodas, and pizza. Detectives also asked defendant if he wanted to speak with a lawyer.

The detectives questioned defendant constantly for the first 10 hours of the interview, during which he denied any knowledge of the crimes. Detectives suggested to defendant that aspects of his story were contradicted by information they already knew, and they attempted to secure his trust by offering various charitable reconstructions of his crimes, such as “you didn’t mean to [shoot anyone].” Toward the end of the interrogation, the police confronted him with his wife’s statements made to police after his arrest and threatened to “drag” her into the case and “lean on” his stepson. They also showed pictures of his family to defendant and pleaded with him not to make his family’s life any more difficult than he already had. Defendant eventually agreed to show police where he had left the murder weapon.

On October 13, 1998, defendant filed a motion to suppress his statements to police given on November 12 and 13, 1997. The prosecutor filed an opposition on October 26, 1998. Defendant filed a reply that included a motion to redact any inadmissible portions of the statements under Evidence Code section 352 if the trial court denied the motion to suppress.

Dr. Richard Leo, a professor in the department of criminology at the University of California, Irvine, testified about the tactics used by police in securing defendant’s confession. He opined that the detectives used coercive techniques to undermine defendant’s free will over 50 times during the 12-hour interrogation. Specifically, Dr. Leo characterized the police’s threats to involve defendant’s wife and stepson in the interrogation as “classic” and “high-end” coercive techniques. Dr. Leo acknowledged that as a social scientist, he may define “coercion” differently than the law does.

The trial court noted that the 12-hour interview was “a very lengthy interrogation.” However, the trial court determined, based on the totality of circumstances, that defendant’s statements were not elicited by “undue coercion.” The trial court denied both of defendant’s motions and admitted the videotaped confession into evidence. The tapes were played during the guilt phase of the trial.

b. Analysis

“The Lourteenth Amendment of the federal Constitution and article I, section 7 of the California Constitution make ‘inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion.’ ” (People v. Sapp (2003) 31 Cal.4th 240, 267 [2 Cal.Rptr.3d 554, 73 P.3d 433].) The prosecution must prove by a preponderance of the evidence that a defendant freely and voluntarily gave police statements before the statements can be admitted. (Ibid.) “ ‘Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the “totality of [the] circumstances.” ’ ” (Ibid.) The test considers several factors, including any element of police coercion, the length of the interrogation and its location and continuity, and the defendant’s maturity, education, and physical and mental health. (People v. Massie (1998) 19 Cal.4th 550, 576 [79 Cal.Rptr.2d 816, 967 P.2d 29].) The determinative question “ ‘is whether defendant’s choice to confess was not “essentially free” because his will was overborne.’ ” (Ibid.) “ ‘When, as here, the interview was tape-recorded, the facts surrounding the giving of the statement are undisputed, and the appellate court may independently review the trial court’s determination of voluntariness.’ ” (People v. Maury (2003) 30 Cal.4th 342, 404 [133 Cal.Rptr.2d 561, 68 P.3d 1].)

Defendant argues that his statement to police after his arrest was the product of coercion and thus the trial court should have excluded it and any fruits of the allegedly tainted statement. But defendant’s contentions that police detectives negotiated with him by offering “inducements” for his confession and that they threated to accuse his wife of the crimes are belied by the record. The detectives asked defendant questions designed to build rapport but never offered him leniency for his confession and never threatened a harsher penalty if he remained silent. Further, the detectives made clear to defendant they had no influence over how he would be treated in prison or in court. In addition, police detectives told defendant that his wife had implicated him in the crimes and that they would have to “drag” her further into the case if he did not confess. The detectives did not suggest that they would charge his wife with a crime.

It is true that the duration of the interrogation was substantial, and at points defendant showed some signs of fatigue. These factors weigh against the admission of the statement. However, other factors weigh against a finding that the statement was involuntary. Defendant was given numerous breaks, drinks, and food, and he was offered the chance to speak with a lawyer numerous times. He was also given the opportunity to speak with his wife, which he declined. We have previously found that a similarly lengthy interrogation did not amount to coercion under the “ ‘totality of the circumstances’ ” where, as here, the defendant was provided with food, drinks, and breaks upon request. (People v. Hill (1992) 3 Cal.4th 959, 981 [13 Cal.Rptr.2d 475, 839 P.2d 984], overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [108 Cal.Rptr.2d 409, 25 P.3d 618].) On the whole, and on our independent review of the videotape recording of the confession, we conclude that the prosecution met its burden of establishing by a preponderance of the evidence that defendant’s statement was not coerced.

2. Testimony of defense forensic expert

Defendant contends that the trial court erroneously limited his forensic expert’s testimony regarding crime scene reconstruction in violation of his state and federal constitutional rights to present a defense, to confront and cross-examine witnesses, to due process, to a fair trial, to a reliable and individualized determination of death eligibility and sentence, and to freedom against cruel and unusual punishment.

Here, and in most other claims, defendant argues that the asserted error violated both his state and federal constitutional rights. “In most instances, insofar as defendant raised the issue at all in the trial court, he failed explicitly to make some or all of the constitutional arguments he now advances. In each instance, unless otherwise indicated, it appears that either (1) the appellate claim is of a kind (e.g., failure to instruct sua sponte; erroneous instruction affecting defendant’s substantial rights) that required no trial court action by the defendant to preserve it, or (2) the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court’s act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution. To that extent, defendant’s new constitutional arguments are not forfeited on appeal. [Citations.] [¶] In the latter instance, of course, rejection, on the merits, of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional ‘gloss’ as well. No separate constitutional discussion is required in such cases, and we therefore provide none.” (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 [42 Cal.Rptr.3d 677, 133 P.3d 581].)

a. Background

Toward the end of the prosecution’s case-in-chief in the guilt trial, the defense proffered the testimony of Brent Turvey, a forensic expert on crime scene reconstruction. Defendant proffered Turvey’s testimony in part to rebut the testimony of criminalist Kathleen Ciula, who, based on the scene at Mayfair Liquors, had reconstructed the likely sequence of events during the robbery. Defense counsel explained that in addition to his reconstruction of events during the robberies, Turvey would testify that the Cal Spray crime scene showed signs that defendant was experiencing accumulated rage and that the other crime scenes suggested less planning than the Cal Spray robbery. In the expert’s opinion, defendant’s crimes demonstrated that his ability to plan and deliberate was deteriorating over time.

The trial court expressed concern that Turvey’s testimony regarding defendant’s state of mind during the commission of the crimes was unreliable. Turvey testified during an evidentiary hearing on July 1, 1999. On July 6, the hearing resumed, and Turvey provided a report to the court and the parties. During the July 6 hearing, defense counsel argued that Turvey’s testimony not only was admissible for its own sake but also would provide foundation for the expert testimony of Dr. Woods, the previously mentioned forensic psychologist.

The trial court ruled that Turvey would be allowed to testify regarding crime scene reconstruction and would be allowed to explain which crime scene evidence suggested planning or precautionary behavior. However, invoking its discretion under Evidence Code section 352, the trial court prohibited Turvey from testifying about defendant’s mental state during the commission of the crimes. Ultimately, the defense did not call Turvey to testify at the guilt trial or the penalty retrial.

b. Analysis

“ ‘Exclusion of evidence as more prejudicial, confusing or distracting than probative, under Evidence Code section 352, is reviewed for abuse of discretion.’ [Citation.] But ‘exclusion of evidence that produces only speculative inferences is not an abuse of discretion.’ ” (People v. Cornwell (2005) 37 Cal.4th 50, 81 [33 Cal.Rptr.3d 1, 117 P.3d 622], disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [87 Cal.Rptr.3d 209, 198 P.3d 11].)

To the extent that defendant claims he was denied an opportunity to rebut the testimony of the prosecution’s crime scene expert, that claim is unsupported by the record. The trial court permitted Turvey to testify regarding Dr. Ciula’s crime scene reconstruction and to offer his own reconstruction.

As to Turvey’s potential testimony about defendant’s mental state during the commission of the crimes, the trial court did not abuse its discretion in excluding such testimony as unreliable. The defense explained that Turvey would testify that the fact that defendant’s series of crimes began with shooting of people he knew and transitioned to murders of people he did not know was evidence that defendant’s proficiency in committing the crimes deteriorated over time. However, during voir dire, Turvey could not explain to the trial court’s satisfaction why this evidence could not more easily be explained by a difference in motives for the murders. The trial court also found the testimony to require considerable speculation.

Finally, defendant’s reliance on our decision in People v. Davis (2009) 46 Cal.4th 539 [94 Cal.Rptr.3d 322, 208 P.3d 78] is misplaced. In Davis, an expert in psychiatry was allowed to testify about a sexual disorder called “paraphilia” and to describe the characteristics typical of those who have this disorder. (Id. at pp. 562, 605.) We deemed it a “close[] question” whether the trial court erred in allowing the expert to testify about whether the defendant’s behavior showed signs of paraphilia. But we declined to reach the issue, finding that the testimony was harmless. (Id. at p. 605.) Davis does not support defendant’s argument that the trial court abused its discretion.

B. Issues Recurring in Penalty and Guilt Phases

Because defendant’s first penalty phase ended in a mistrial and a new jury was seated for the penalty retrial where a verdict of death was eventually reached, much of the evidence introduced in the guilt phase was reintroduced at this penalty phase retrial. Defendant challenges a number of evidentiary rulings that were initially made during the guilt phase that also applied during the penalty retrial as the prosecutor and defendant sought to admit or exclude the same evidence for the new jury. Defendant also contends that the trial court erred in denying various defense motions for continuances in both phases.

1. Exclusion of lay testimony on the effects of methamphetamine

Defendant claims that the trial court erroneously excluded lay witness testimony on the effects of methamphetamine use during the guilt trial and the penalty retrial.

Before defendant presented his case in the guilt phase, the trial court was informed that defendant intended to present lay testimony on the effects of methamphetamine based on the witnesses’ personal experiences with the drug. The prosecutor objected on relevance grounds. The court prohibited lay witnesses from testifying about the effects of drugs but allowed them to testify about their drug-related interactions with defendant and their observations of him, including while he was using drugs. Before calling witnesses, defense counsel indicated that he understood the ruling, had instructed the relevant witnesses not to testify to the effects of drugs on themselves, and knew a violation would lead to sanctions. The court prohibited similar testimony during the penalty retrial.

The Attorney General asserts that defendant failed to preserve this claim under Evidence Code section 353, subdivision (a), because he failed to object to the trial court’s ruling on the matter. This is incorrect. Evidence Code section 353 requires “an objection to or a motion to exclude or to strike the evidence” as a condition precedent to setting aside an “erroneous admission of evidence.” (Italics added.) Defendant claims an erroneous exclusion of evidence. Our review of allegedly erroneous exclusions of evidence is governed by Evidence Code section 354. “ ‘As a condition precedent to challenging the exclusion of proffered testimony, Evidence Code section 354, subdivision (a), requires the proponent make known to the court the “substance, purpose, and relevance of the excluded evidence.” ’ ” (People v. Morrison (2004) 34 Cal.4th 698, 711 [21 Cal.Rptr.3d 682, 101 P.3d 568].) The record shows that defendant did so.

In response to the prosecutor’s objections at both the guilt trial and the penalty retrial, the trial court asked defendant to provide an offer of proof for lay testimony on the effects of methamphetamine. Defense counsel argued that defendant’s relationship with the witnesses and the witnesses’ experiences with methamphetamine were relevant to understanding defendant’s mental state. For example, Michael Quigel sold defendant methamphetamine on several occasions, including the night before the Village Oaks Market incident. Defense counsel explained: “[Mr. Quigel] will testify that the drugs are strong, that he used the drugs, himself, he knows the quality of the drugs, he’s been an addict for—since he was 17 years old, for roughly six or seven years. And the drugs that he used and that he sold were very, very good quality.” Defendant intended to introduce this lay testimony as a foundation for expert testimony on the effects of the methamphetamine defendant used. Defendant thus preserved the claim.

We review a trial court’s decision to exclude evidence for abuse of discretion. (People v. Linton (2013) 56 Cal.4th 1146, 1181 [158 Cal.Rptr.3d 521, 302 P.3d 927].) The decision to exclude evidence ‘“will not be disturbed except on a showing [that] the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 [82 Cal.Rptr.2d 413, 971 P.2d 618].) The trial court determined that a lay witness’s testimony about his own experience with drugs would be of limited probative value and speculative as to defendant’s own response to drugs. Furthermore, the court indicated that defendant could introduce evidence of the physical effects of methamphetamine through expert testimony if he so desired, and defendant did. Three experts testified about the effects of methamphetamine on defendant’s brain functions, and one expert testified about his capacity to form the requisite mental state for the crimes. The trial court did not abuse its discretion in excluding the lay testimony.

2. Introduction of crime details during cross-examination

Defendant contends that the trial court erred in allowing the prosecutor to present details of the crimes during his cross-examination of certain defense witnesses during the guilt trial and the penalty retrial in violation of his state and federal constitutional rights to due process and to a reliable and individualized sentencing determination.

a. Background

During both phases of the trial, Dr. Wu and Dr. Amen testified for the defense and opined that defendant suffers from mental disease or brain defects that impair his ability to use proper judgment, to plan, and to inhibit aggressive impulses, especially when using methamphetamine. Dr. Buchsbaum corroborated this testimony during the guilt trial but did not testify during the penalty retrial.

The prosecutor cross-examined each of these witnesses about their knowledge of the details of each crime. Over many defense objections, the trial court allowed this line of inquiry because the experts testified as to the condition of defendant’s brain and how that condition affected his ability to maintain organized thinking, including during the commission of the crimes.

During the penalty retrial, the defense called Dr. Lisak, a psychiatrist, who opined that a person with low self-esteem, who was molested in adolescence, could feel anger and resentment as an adult. Dr. Lisak also testified that 25 percent of men who had been sexually abused as a child went on to commit acts of violence. Again over many defense objections, the trial court permitted the prosecutor to cross-examine Dr. Lisak about the details of defendant’s crimes.

Dr. Woods testified that defendant’s heavy use of methamphetamine induced paranoia and caused misperception of reality, including during the commission of the crimes. The trial court allowed the prosecutor to show Dr. Woods numerous photographs of the crime scenes as well as mannequins of Stephen Chacko, Jun Gao, and Besun Yu, and the prosecutor questioned Dr. Woods about his knowledge of the details of the crimes.

Finally, defense witness Guy Lazarro, defendant’s former coworker in Florida, testified that he had never observed defendant act violently, that defendant was a good worker, and that he would rehire defendant any time. The trial court permitted the prosecutor to question Lazarro about his knowledge of the victims of each of defendant’s crimes.

b. Analysis

“An expert witness may be cross-examined about ‘the matter upon which his or her opinion is based and the reasons for his or her opinion.’ [Citation.] The scope of this inquiry is broad and includes questions about whether the expert sufficiently considered matters inconsistent with the opinion. [Citation.] Thus, an adverse party may bring to the attention of the jury that an expert did not know or consider information relevant to the issue on which the expert has offered an opinion.” (People v. Doolin, supra, 45 Cal.4th at p. 434.) “[I]t is well settled that the scope of cross-examination of an expert witness is especially broad; a prosecutor may bring in facts beyond those introduced on direct examination in order to explore the grounds and reliability of the expert’s opinion.” (People v. Lancaster (2007) 41 Cal.4th 50, 105 [58 Cal.Rptr.3d 608, 158 P.3d 157].)

As an initial matter, during the penalty retrial, defendant did not object to the cross-examination of Lazarro on the same ground that he now raises as error. He has thus forfeited this claim. (People v. Davenport (1995) 11 Cal.4th 1171, 1214 [47 Cal.Rptr.2d 800, 906 P.2d 1068], disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 536 [15 Cal.Rptr.3d 743, 93 P.3d 344].)

Although the defense experts had expertise in various scientific and social scientific disciplines, the ultimate point of their testimony was to establish either that defendant did not have the requisite mental state to commit the charged offenses or that his mental, psychological, and emotional profile should be used as a mitigating factor in the penalty phase. Given the nature of this testimony, the prosecutor was permitted in the guilt phase to discredit the witnesses by asking how defendant could have carried out his crimes without the mental faculties that Dr. Amen, Dr. Wu, and Dr. Buchsbaum said were impaired. (See People v. Smithey (1999) 20 Cal.4th 936, 961 [86 Cal.Rptr.2d 243, 978 P.2d 1171]; see also People v. Doolin, supra, 45 Cal.4th at p. 434 [cross-examination permitted on whether “expert sufficiently considered matters inconsistent with the opinion”].) Similarly, the prosecutor was permitted to ask the sorts of questions to which defense counsel objected in the penalty retrial, as one of the factors for the jury to consider is the “circumstances of the crime.” (§ 190.3, factor (a).) Accordingly, the trial court did not abuse its discretion in ruling that the prosecutor was permitted to cross-examine the witnesses about the details of defendant’s crimes.

3. Admission of autopsy photographs

Defendant claims that the trial court prejudicially erred in admitting various autopsy photographs at the guilt trial and the penalty retrial in violation of his state and federal rights to present a defense, to confrontation, to due process, to a fair trial, to a reliable and individualized determination of death eligibility and sentence, and to freedom from cruel and unusual punishment.

At trial, defense counsel objected to the admission of autopsy photographs on constitutional grounds and on the grounds that they were cumulative and inflammatory. The prosecution argued that the photographs were relevant to show defendant’s premeditation and intent to kill based on the angles and positions of the wounds on the victims’ bodies. Additionally, the prosecution argued that the photographs were necessary to rebut the defense argument that he was under the influence of methamphetamine because they suggested defendant had good aim.

The trial court ruled admissible and the prosecutor submitted into evidence the following photographs, identified by their prosecution exhibit numbers: (1) No. 101, depicting Loper’s fully clothed body on an autopsy table, with mud and dirt on his face and clothes; (2) No. 102, showing the entry and exit wounds on Loper’s right arm; (3) No. 103, depicting Loper’s body, showing blood and various gunshot wounds; (4) No. 104, showing the right side of Loper’s body with scrape marks and gunshot wounds on the right arm; (5) No. 105, depicting the left side of Loper’s body, showing gunshot wounds and the medical examiner’s hand holding Loper’s left hand in an unusual position due to his fractured humerus; (6) No. 108, showing Loper’s left hand after it had been cleaned, and showing abrasions and scrapes on the hand; (7) No. 110, depicting the right side of Loper’s head and showing scrapes on the face; (8) No. 180, showing Chacko’s body with injuries on his head; (9) Nos. 181 and 182, depicting the gunshot wounds around Chacko’s torso; (10) No. 185, showing Chacko’s body with additional gunshot wounds; (11) No. 187, depicting gunshot wounds on Chacko’s chest; (12) No. 189, also showing Chacko’s bruised head; (13) No. 228, depicting injuries to the left side of Gao’s head; (14) No. 229, showing gunshot wounds to Gao’s body; (15) No. 230, showing injuries to the right side of Gao’s head; and (16) No. 232, showing two gunshot entry wounds on Yu’s back.

We review the trial court’s decision to admit photographs under Evidence Code section 352 for abuse of discretion. (People v. McKinzie (2012) 54 Cal.4th 1302, 1351 [144 Cal.Rptr.3d 427, 281 P.3d 412], disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3 [188 Cal.Rptr.3d 328, 349 P.3d 1028].) “ ‘ “The court’s exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect.” ’ ” (McKinzie, at p. 1351.) “ ‘To determine whether there was an abuse of discretion, we address two factors: (1) whether the photographs were relevant, and (2) whether the trial court abused its discretion in finding that the probative value of each photograph outweighed its prejudicial effect.’ ” (People v. Lewis (2009) 46 Cal.4th 1255, 1282 [96 Cal.Rptr.3d 512, 210 P.3d 1119].)

The trial court did not abuse its discretion. The photographs demonstrate various characteristics of the bullet wounds and other injuries that the victims sustained. At the guilt trial, the photographs were relevant to the issue of defendant’s state of mind during the commission of the crimes. They can reasonably be seen as supporting the prosecution’s assertion that defendant committed the crimes with the requisite intent to kill and with premeditation. They also could be viewed as rebutting the defense’s contention that defendant was impaired by methamphetamine at the time of the crimes. Similarly, in the penalty retrial, the photographs were admissible because they demonstrated the circumstances of the crimes. (§ 190.3, factor (a).)

The photos are “not of such a nature as to overcome the jury’s rationality.” (People v. Whisenhunt (2008) 44 Cal.4th 174, 212 [79 Cal.Rptr.3d 125, 186 P.3d 496].) The photos, though depicting homicide victims, are relatively austere and clinical. They are not clearly more prejudicial than probative. The defendant’s claim is therefore without merit

4. Denials of motions for continuance

Defendant contends that the trial court erred in denying various defense motions for continuances.

a. Guilt trial

Defendant filed two motions to continue the start of the guilt trial. The court heard argument on February 25, 1999. In the hearing, the court observed that the motion requested a five-month conhnuance but did not request the appointment of second counsel. Only on February 22, 1999, three days before the hearing on the second motion, had defendant requested the appointment of second counsel. The court attributed the delay to the public defender’s office’s “improvident” decision not to request second counsel until after the change of venue motion was granted. The court was also doubtful of the necessity of a continuance because the motion was based in part on defense counsel’s difficulty in building rapport with defendant. The court observed that at the time of the hearing the case had been pending for 14 months and that defense counsel, who was known to be a talented trial lawyer, had been working exclusively on this case for nine months. The trial court found that the defense had not established good cause for a conhnuance but said it would appoint a third attorney to defendant’s case if needed. On March 3, 1999, the court denied defendant’s motion for reconsideration.

b. Penalty retrial

On December 28, 1999, defendant filed a motion for a conhnuance of the penalty retrial on the grounds that the defense needed more time to prepare for the possibility that the prosecution might call additional rebuttal experts and to prepare its own mental health evidence. The prosecution had not filed any nohce of intent to call new rebuttal witnesses, and the trial court denied the motion for lack of good cause. However, the trial court indicated it would address the possibility of a continuance if it became clear that the prosecution would call additional witnesses and that the defense needed more time to prepare.

On March 7, 2000, after two months of jury selechon, defendant filed a second motion to continue the penalty retrial. Defense counsel explained that the motion was similar to the first motion to continue the penalty retrial. The motion included a declaration under seal. The court conducted an in camera hearing on the motion. The court denied the motion but slightly altered the court’s schedule.

c. Analysis

“[T]he decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court. [Citations.] The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a conhnuance is seldom successfully attacked.” (People v. Beames (2007) 40 Cal.4th 907, 920 [55 Cal.Rptr.3d 865, 153 P.3d 955].)

In denying the motions for a continuance of the start of the guilt phase, the trial court explained that the case had been pending for 14 months and that defense counsel had been working exclusively on the case for nine months. The court readily assigned a second investigator and a second counsel, and even expressed willingness to grant a third counsel. Regarding the motions brought during the penalty retrial, the trial court determined that the defense did not need more time to develop mental health evidence in order to adequately present its case in mitigation and that it would only grant a continuance based on the possibility that the prosecution would call witnesses not called during the first penalty trial if such events actually transpired. On these facts, we cannot conclude that the trial court abused its discretion in denying the motions. To the extent defendant raises a constitutional claim on the basis of this supposed error, it is without merit.

C. Penalty Phase Issues

1. Penalty phase retrial

Defendant claims that section 190.4, subdivision (b), which authorizes the court to empanel a second penalty jury after the first penalty jury fails to reach a unanimous verdict, is unconstitutional as applied to him. In particular, he argues (1) due to alleged prosecutorial misconduct throughout the first penalty trial, the penalty retrial violated his state and federal constitutional rights against double jeopardy and to due process and to fundamental fairness; (2) the penalty retrial, after eight jurors in the first penalty trial voted against the death penalty, violated the Eighth Amendment’s guarantee of “heightened reliability” in capital cases; (3) the penalty retrial violated his right to a fair trial; (4) the penalty retrial violated his Eighth Amendment right against cruel and unusual punishment.

The penalty retrial did not violate defendant’s state and federal rights against double jeopardy. The federal Constitution prohibits a retrial when the prosecution commits misconduct with the intent to provoke a mistrial. (Oregon v. Kennedy (1982) 456 U.S. 667, 675-679 [72 L.Ed.2d 416, 102 S.Ct. 2083].) Similarly, the double jeopardy clause of the California Constitution bars retrial when misconduct “results in a defendant’s successful motion for mistrial” and either (1) the prosecution intentionally committed misconduct to trigger a mistrial or (2) the prosecution believed an acquittal was likely, committed misconduct to thwart the acquittal, and the misconduct deprived the defendant of the reasonable prospect of an acquittal. (People v. Batts (2003) 30 Cal.4th 660, 665-666 [134 Cal.Rptr.2d 67, 68 P.3d 357].) Double jeopardy principles do not bar retrial if “the mistrial was justified by ‘manifest necessity’—for example, a hung jury.” (Id. at p. 679.) Here, the trial court