People v. Casares (62 Cal. 4th 808, 2016)

Opinion

WERDEGAR, J.

A Tulare County jury convicted defendant Jose Lupercio Casares of the attempted premeditated murder of Alvaro Lopez and the murder of Guadalupe Sanchez. (Pen. Code, §§ 664, 187. j With respect to the murder, the jury found true a lying-in-wait special-circumstance allegation. (§ 190.2, subd. (a)(15).) As to both offenses the jury found defendant personally used a firearm (§§ 1203.06, subd. (a)(1), 1192.7, subd. (c)(8); former § 12022.5); it found not true an allegation he personally inflicted great bodily injury on Lopez (former § 12022.7). The jury also convicted defendant of carrying a concealed firearm (former § 12025, subd. (b)) and possessing cocaine (Health & Saf. Code, § 11350). After a penalty phase, the same jury returned a death verdict. The trial court sentenced defendant to death and stayed imposition of sentence on the noncapital counts. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. Facts

A. Guilt Phase

1. Prosecution’s case-in-chief

a. Witness testimony

(1) Alvaro Lopez

In March 1989, Alvaro Lopez lived in Farmersville with his sister, Hidalia, and her boyfriend, Guadalupe Sanchez. Lopez had become acquainted with defendant while they were in jail. On the afternoon of March 30, 1989, Lopez and Sanchez went to defendant’s house on Sweet Street in Visalia, where defendant asked Lopez to obtain three ounces of cocaine for resale. Lopez relied on Sanchez to procure the drug; after he had done so, between 6:00 and 7:00 p.m., the two men returned to defendant’s house. Sanchez was driving and Lopez was in the front passenger seat; defendant got in the back seat behind Sanchez and Ruben Contreras sat next to defendant. Neither Sanchez nor Lopez was armed.

The group set off for the purported buyer’s house, stopping at a store on Highway 63 next to the Patterson Tract house in Visalia where defendant said the buyer lived. Lopez and Sanchez entered the store and bought two beers while defendant went to the house. When defendant returned to the car, he said the buyer had visitors and they would wait for him up the road. Sanchez continued down the road for a short distance, then pulled over and put the car in park with the motor running. Defendant immediately put a pistol to Sanchez’s head, told Contreras to “secure” Lopez, and ordered Sanchez to give him the cocaine. Contreras put a knife to the side of Lopez’s neck. Sanchez complied with defendant’s demand, handing the drug back over his right shoulder. Defendant then shot Sanchez. Lopez grabbed Contreras’s hand and, feeling Sanchez’s head roll onto his shoulder, tried to open the car door. Lopez heard a second shot, which struck him in the left arm. With Contreras stabbing him, Lopez pushed the car door open with his leg, got out of the car, and fell. Defendant again shot at Lopez, who got up and ran across the road. A man saw him there and Lopez was taken to the hospital for treatment. He had sustained 17 knife and gunshot wounds, several of them life threatening, and remained hospitalized for two weeks.

Lopez did not immediately identify defendant as the perpetrator, instead telling detectives two Mexican hitchhikers committed the crimes, because he wanted to exact his own revenge. His girlfriend Evangelina Avalos visited Lopez at the hospital and told him to tell the truth. Lopez then asked to speak with detectives and identified defendant from a photo lineup. For a long time, however, including at the preliminary hearing, he denied drugs were involved in the incident, only disclosing that fact a few months before trial.

(2) Gilbert Galaviz

In March 1989, Gilbert Galaviz was living on Sweet Street in Visalia with Maria Lupercio Contreras and Alicia Lupercio, Ruben Contreras’s sisters. On the 30th of that month, Galaviz testified, defendant, who was staying at the house, and Ruben Contreras came to the house. In the late afternoon, he saw them get into a small beige four-door car. Two other men whom Galaviz did not know were also in the car. The men left and returned about an hour later. Just before dark, about 7:00 or 7:30, Galaviz saw defendant and Contreras leave again in the same car. Contreras was carrying a knife and defendant a gun that Galaviz had seen him cleaning earlier that day. Galaviz recalled defendant was wearing black pants and a hat with a Harley Davidson symbol on it. About 8:30 that evening, defendant and Contreras returned to the Sweet Street house with blood on their clothes. They went to the bathroom and began washing up; defendant changed clothes and cleaned a gun. They said they had killed a pig and almost killed another one, but it got away. Defendant offered Galaviz some cocaine.

b. Physical evidence

The body of Guadalupe Sanchez was found lying supine in a residential area, on the south side of Avenue 328 in Visalia; nearby were a bloody knife and two shell casings. Around the palm of his left hand was his watch. The cause of death was a single gunshot wound to the head. The bullet entered the back of the head just to the left of the midline and traveled left to right and slightly downward, exiting under the right eye. Powder tattooing around the entry wound and thermal burning of the tissue under the wound indicated that the muzzle of the gun when fired was either touching the skin or within an inch of it.

The car Sanchez had been driving was found the day after the murder, about three blocks from the Sweet Street house where defendant was staying. Blood was on the seats, in the trunk, on the floorboard, side panels, and glove box, and on the exterior on the passenger side and hood. A bullet hole in the windshield originated from inside the car, the shot having been fired from the left side of the driver’s headrest.

Detective Eric Grant of the Tulare County Sheriffs Office crime lab processed the car and collected many fingerprints, which were first analyzed by Detective Brian Johnson, who had spent most of his 18-year career in the crime lab. Johnson testified his lab used a standard of eight to 10 points of comparison when calling a match between a latent print and a known set of prints; he personally liked to see 10 to 12 matching points, but acknowledged that some labs consider fewer than eight points to be sufficient. Johnson determined that none of the fingerprints submitted to him matched those of Maria Lopez (sic; possibly Maria Contreras, a resident of the Sweet Street house, or Maria Vasquez, a girlfriend of Alvaro Lopez), Lopez’s sister Hidalia, Evangelina Avalos, or Gilbert Galaviz, but three of the prints matched Ruben Contreras’s. Johnson and his supervisor were unable to make a comparison of two prints, one made in blood and taken from the driver’s side rear seat and one left on the passenger’s side trunk.

All of the prints Grant obtained were eventually sent to the state Department of Justice’s Lresno Regional Laboratory for further analysis. Richard Kinney, a latent print analyst at the Lresno lab, confirmed the matches Johnson and his supervisor had made, as well as the exclusions. In addition, Kinney found the bloody print on the rear seat had the same ridge characteristics and placement as defendant’s known print, based on more than 10 matching characteristics. He also determined that the print lifted from the trunk matched defendant’s palm print, based on at least 10 matching characteristics.

c. Defendant’s arrest; murder weapon

Defendant was arrested on April 8, 1989, outside a residence in the 100 block of Strawberry Street. After an officer forced him to the ground, a handgun later determined to be the murder weapon was found underneath him. The gun did not possess a “hair trigger”; it required from nine to 15 pounds of pressure to fire. Two small packages of cocaine were found in a pocket of the jacket defendant was wearing at the time of his arrest.

d. Additional evidence of Lopez’s drug dealings

In 1989, Grade Mendez was living with cocaine dealer Abundio Burciaga and knew Alvaro Lopez and Guadalupe Sanchez, who was Burciaga’s cousin. Lopez worked for Burciaga for at least two years before Sanchez’s murder, and continued to sell drugs for a year thereafter. Burciaga would go to Los Angeles weekly to buy $4,000 to $5,000 worth of cocaine, and Lopez often went with him. Lopez would also buy drugs in Los Angeles for Burciaga and bring them back. Burciaga ultimately fired Lopez for stealing from him. On March 30, 1989, Mendez testified, Lopez and Sanchez came to Burciaga’s house and Burciaga gave them a brown bag with about $5,000 in it.

After hearing that Sanchez had been killed, Burciaga had two conversations with Mendez concerning the killing. In one, he told her he had intended for Lopez to be killed; in the other, he said “they” had meant for Lopez to be killed, referring to a man called “El Capitan.”

2. Defense case

a. Alibi evidence

The defense sought to show that defendant was at an apartment on Strawberry Street at the time the murder was committed.

Defendant’s cousin Antonio Navarro Lupercio testified that, on March 30, 1989, he went to the Strawberry Street apartment and saw defendant and Contreras playing cards about 2:00 p.m. Antonio saw defendant drink a beer and heard him mention he had a court date on the 31st. Defendant was still there when Antonio left about 6:00 p.m. On cross-examination, Antonio admitted he was unsure on what date he made these observations, although he was sure defendant said he had a court date on the 31st. He also acknowledged being uncertain about the time of his visit, and that he had previously testified he arrived at 4:30 p.m. and left at 7:30 p.m.

Defendant’s cousin Ambrosia Martinez testified she was at the Strawberry Street apartment on March 30, 1989, and saw defendant there around 6:00 or 6:30 p.m.; he told her he had to go to court the following day. On cross-examination, she admitted she was unsure about the date and whether it was defendant or someone else who said defendant had to go to court.

Defendant’s friend Guadalupe Medina testified he went to the Strawberry Street residence and saw defendant there almost every day. Medina recalled telling an officer that on one occasion, about 5:30 or 6:00 p.m., defendant declined a beer because he said he had to go to court the next day. Medina could not recall the exact date when this happened, and could not recall when defendant left the residence on that occasion.

Delia Contreras, the mother of two of defendant’s children and the sister of Ruben Contreras, Maria Lupercio Contreras, and Alicia Lupercio, testified she drove defendant and Ruben to court on March 31, 1989, picking them up at the Sweet Street residence about 7:00 a.m. She also testified that, the night before she took them to court, she drove by the Strawberry Street residence about 6:00 or 7:00 p.m. and saw defendant there.

The parties stipulated that on March 31, 1989, defendant made an appearance on the morning calendar in the Visalia Municipal Court.

b. Gilbert Galaviz

The defense also sought to show that Gilbert Galaviz, not defendant, committed the murder with Ruben Contreras.

Maria Contreras, Ruben Contreras’s sister, was found to be unavailable to testify at defendant’s trial; her testimony at defendant’s preliminary hearing and Ruben Contreras’s trial was read to the jury. In that testimony, Maria stated that in March 1989 she was living on Sweet Street with her sister Alicia Lupercio, Alicia’s children, her brother-in-law Manuel Lupercio, and her boyfriend, Galaviz. Defendant also stayed at the residence “off and on.” On March 30 of that year, she went to a shopping mall about 3:00 p.m. and returned at 9:00 p.m., entering the house through the back door and going directly to her room and to bed. Alicia and her children were in the house; Maria did not know who else was present. Maria slept through the night and was therefore unaware of what may have happened in the house, but believed Galaviz was absent because she would have had to get up and let him in. The next morning, Maria did not see defendant or Ruben. Galaviz returned home sometime after 10:00 a.m. He was carrying his shirt, his pants were stained and dirty, and there was blood on his clothing. When Maria asked him what happened, he at first said, “Nothing”; when she repeated the question, he “came out real smart and said, T killed a pig.’ ” She offered to wash the clothes, but Galaviz told her instead to get rid of them and to burn them. When she persisted, telling him he could wear the clothes to work, he again insisted she get rid of them. Eventually he took the clothes and she never saw them again. About a week later, Maria learned Ruben had been arrested for the murder of Sanchez and the attempted murder of Lopez. Although she had seen blood on Galaviz’s clothes, she did not think he was involved because he had previously gotten into fights and come home in the same condition. During the time she lived with Galaviz, she saw him with a black gun with a clip. She last saw the gun in a box in which he kept his clothes. Galaviz told her he sold the gun to defendant on April 1.

Delia Contreras testified that when she arrived at the Sweet Street residence on the morning of March 31 to take defendant and Ruben to court, the two were sleeping in the living room, and Alicia and her children were in one of the two bedrooms. She did not recall seeing Galaviz at the residence at that time. In late February 1989, she had seen Galaviz in possession of a gun that was generally the same color and shape as the one found in defendant’s possession at the time of his arrest. About two days before March 30 of that year, she saw a gun in a box of clothes in the bedroom her sister and Galaviz shared in the Sweet Street residence.

Called to the witness stand, Alicia Lupercio repeatedly said she could not remember the events of March 30, 1989. But when Detective Pinon interviewed Alicia on May 6, 1989, she had told him that on March 30 defendant, her brother Ruben, and Galaviz were at her home on Sweet Street; defendant and Ruben left at 4:00 p.m., but she did not see whom they left with; Galaviz stayed and worked on a car; and defendant and Ruben did not return until about 10:00 p.m. Alicia did not recall what they were wearing when they returned or whether they had blood on their clothing, and she had never seen defendant or Galaviz with a gun.

Severa de la Rosa was close friends with Ruben Contreras’s mother and a cousin of Estella Lopez Galaviz and Lolly Lopez. She also knew Galaviz well; he had lived with her family until his marriage to her niece, with whom he had had a child. De la Rosa testified that on April 1, 1989, she saw Galaviz and another man in a small beige truck at a Circle K convenience store in Visalia. Galaviz tried to sell her a gun and some rings. It was “usual” for him to have a gun in his possession. A defense investigator showed her a catalog of guns, from which she picked out a black nine-millimeter gun as looking similar to the one Galaviz had.

Lolly Lopez, the sister of Estella Lopez Galaviz and Maria Vasquez, testified that, several months after the crime, Gilbert Galaviz told her he was sitting in the back seat of a car in Visalia when “Alejandra’s son” shot a man in the back of the head. She later learned the man was Ruben Contreras. Galaviz indicated drugs and money were involved.

Joann Galaviz, Gilbert Galaviz’s sister, denied telling defense investigator Dan Wells that in September 1989 she heard a woman named Helen fighting with Gilbert about an occasion when he shot a man in Visalia. Joann testified she had been confused; she had actually heard Gilbert and Helen talking about a different murder that Gilbert committed in Shafter. Wells testified, to the contrary, that Joann was not confused when he spoke with her about a murder in Visalia.

3. Prosecution’s rebuttal

The prosecution re-called Galaviz, who denied accusations raised in the defense case. He testified he never had a close relationship with Lolly Lopez and never had a conversation with her about being involved in a murder that took place in March 1989, when Ruben Contreras shot a man in Patterson Tract. He did not see Severa de la Rosa in Visalia shortly after Sanchez’s murder and did not try to sell her a gun or a ring about that time. Although he sometimes visited his sister Joann in Bakersfield, and sometimes took women there with him, he did not recall if he ever took Estella Galaviz and did not recall having an argument with Estella there about a killing that took place in either Tulare or Kern County; he never told Estella anything about a killing by defendant or Contreras. Estella testified, consistently, that Galaviz never told her about a killing that occurred on March 30, 1989, in Patterson Tract; rather, he told her about a killing in Shafter.

B. Penalty Phase

1. Aggravating evidence

a. August 8, 1979, shooting at occupied vehicle

Sometime after midnight on August 8, 1979, City of Tulare Police Officer Rush Mayberry was parked at the intersection of Pratt Street and Inyo Avenue across from a well-lit shopping center. Two cars were parked in the lot and a white car was moving through it. Defendant was standing near one of the parked cars and, when the white car passed the two parked cars, he retrieved a .22-caliber Remington rifle from the back seat of one of the parked vehicles. He then went to the rear of one of the cars and, from a distance of about 50 feet, fired twice at the white car. One shot left a dent in the lower part of the car’s trunk; the other put a dent in the corner of the bumper. Mayberry responded to the scene and detained defendant and two others. From the back seat of the car Mayberry retrieved the rifle, which was loaded with two rounds in the magazine and one round in the chamber. Defendant, who said he had been drinking that evening, told detectives the car had driven by three times, and the occupants had used racial slurs and threatened him with bodily harm. At one point, defendant said, one of the occupants got out of the vehicle, walked up to him, and said they had a gun and could kill him; at no point, however, did the occupants brandish a gun, and defendant never saw one. On the car’s third pass, one of the occupants motioned him over, and defendant assumed they wanted a confrontation. Defendant then shot at the vehicle, intending only to hit the tires.

b. November 26, 1980, Boas Minnow Farm robbery

On November 26, 1980, Paula Estes was working at Boas Minnow Farm when two Hispanic men entered the store and looked around, saying they were interested in buying handguns. A third Hispanic man then walked in, pulled a ski mask over his face and, at gunpoint, told Estes to lie down on the floor. Estes complied and was blindfolded and tied up with her hands behind her back. The robbers took guns out of the display case and off the rack and stole about $200 before fleeing in an old station wagon.

In November 1980, Delia Contreras owned a green station wagon. She did not recall who had the vehicle on the morning of November 26. When asked if she told Detective Diaz that defendant, her common law husband, and others were at her trailer and left in the green station wagon at 7:00 a.m., she said that she did not know, they “just took off,” and she did not see where they went, but that they might have left in the station wagon.

c. August 23, 1984, possession of handgun at Arrow Motel

On August 23, 1984, Visalia Police Department narcotics agent Rory Vadnais and other officers went to the Arrow Motel in Goshen, where they made contact with defendant. Vadnais noticed a bulge that appeared to be the outline of a handgun in defendant’s right front pants pocket. Defendant was arrested and found to be in possession of a loaded .22-caliber revolver.

d. February 19, 1987, possession of handgun at Strawberry Street

On February 19, 1987, police made contact with defendant at an apartment located on Strawberry Street in Visalia. A police officer searched defendant’s person and recovered car keys from his jacket pocket. The officer had several times previously seen defendant sitting in the driver’s seat of a 1974 Monte Carlo parked in front of the apartment building. Police determined that the keys fit the Monte Carlo and found a two-shot .45-caliber derringer under the driver’s seat.

e. March 16, 1989, possession of handgun at Circle K

On the night of March 16, 1989, Officer Michael Stow of the Visalia Police Department saw a van parked at the Circle K convenience store on Old Dinuba Road. Officer Stowe pulled in behind the vehicle and approached defendant, the only occupant, who was seated in the driver’s seat. He asked defendant for identification and defendant orally identified himself. Defendant told Stowe the van did not belong to him. Stowe searched the vehicle for documentary identification and found a loaded gun and ammunition on the floorboard to the right side of the driver’s seat.

f. Sexual assaults on Rosa B.

Rosa B. testified that when she was 12 years old she lived on a ranch in the Mexican state of Michoacan. Her ranch was relatively close to the ranch where defendant lived with his family, only about two hours’ walk away. The families were on friendly terms; her parents were defendant’s godparents. Defendant’s father came to Rosa’s house and told her several times she was going to be his daughter-in-law. Defendant visited her to ask her to be his girlfriend. When she declined, he did not seem angry. One night about two months later, defendant and six members of his family, some of them armed, came to the house where Rosa was staying and forcibly took her to their ranch, where she was held for about five months. At first she was kept in a banana orchard; then she was taken to their house. Defendant raped her many times, always at his father’s command. Several times Rosa heard defendant’s father threaten to kill him. Defendant did not have to use force; Rosa submitted because his father ordered her to do so. One morning about five months after her abduction, Rosa’s brother rescued her, shooting and killing defendant’s father.

g. Prior felony convictions

Defendant pleaded guilty to one count of robbery in connection with the Boas Minnow Farm incident. In another case he was convicted of one count of possession of narcotics for sale.

2. Mitigating evidence

a. Physical and mental abuse by defendant’s father

Defendant’s younger sister Maria Delores (Lola) Lupercio Casares testified their father physically abused all the members of their family, including defendant. He beat their mother on a daily basis and would hang her by a rope over a ceiling rafter until she passed out. Defendant was present and witnessed these episodes of abuse. When Rosa was brought to live with defendant’s family, Lola saw defendant’s father order defendant to “make her his,” in other words, to rape her. Once when defendant could not perform sexually, the father belittled him, saying “You’re not a man, you’re good for nothing.” The father also sometimes beat defendant.

Defendant’s cousin Antonio Navarro Lupercio testified he lived near defendant during their childhood and saw him on a daily basis. Antonio saw defendant’s father beat him unconscious, and saw the father abuse all members of the household. Defendant was “very much” afraid of his father.

Defendant’s uncle Alfredo Navarro testified that when defendant was a child he saw defendant’s father beat him with pieces of wood or whatever he could find, and defendant appeared to be very frightened of his father.

b. Testimony by Richard A. Blak, Ph.D.

Psychologist Richard A. Blak, PhD., interviewed defendant, administered psychological tests, and reviewed documents provided by defense counsel. Blak testified defendant had suffered from dysthymia, a type of chronic depression, and generalized anxiety reaction since childhood as a result of severe abuse and victimization by his father. Defendant’s intellectual functioning was in the borderline to very low average range. Defendant also suffered from avoidant, obsessive-compulsive, and antisocial personality disorders and abused alcohol and drugs as an adult. These conditions existed at the time of the capital crime and impaired defendant’s capacity to appreciate the quality of his actions.

II. Discussion

A. Guilt Phase Issues

1. Sufficiency of evidence of first degree murder and lying-in-wait special circumstance

a. Standard of review

Defendant contends that the prosecution adduced insufficient evidence to support the first degree murder conviction on the sole theory submitted to the jury, that of premeditation and deliberation, and that the trial court therefore erred in instructing the jury on this theory. He also contends the evidence was insufficient to support the jury’s true finding on the lying-in-wait special-circumstance allegation and that the trial court erred in denying his motion under section 1118.1 to dismiss the allegation at the close of the prosecution’s case.

“When a defendant challenges the sufficiency of the evidence, ‘ “[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ ” (People v. Clark (2011) 52 Cal.4th 856, 942 [131 Cal.Rptr.3d 225, 261 P.3d 243] (Clark).) “The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence.” (People v. Bean (1988) 46 Cal.3d 919, 932 [251 Cal.Rptr. 467, 760 P.2d 996].) “Although a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have established guilt beyond a reasonable doubt.” (People v. Yeoman (2003) 31 Cal.4th 93, 128 [2 Cal.Rptr.3d 186, 72 P.3d 1166].) “ ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ” (Bean, at p. 933; see People v. Jones (2013) 57 Cal.4th 899, 961 [161 Cal.Rptr.3d 295, 306 P.3d 1136] (Jones).) We apply the same principles in reviewing the sufficiency of the evidence to support a special circumstance finding. (People v. Brady (2010) 50 Cal.4th 547, 563, fn. 8 [113 Cal.Rptr.3d 458, 236 P.3d 312].)

b. First degree murder

‘“A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. (§ 189 [‘willful, deliberate and premeditated killing’ as first degree murder].) ‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. (People v. Bender (1945) 27 Cal.2d 164, 183 [163 P.2d 8]; People v. Thomas (1945) 25 Cal.2d 880, 900 [156 P.2d 7]; see People v. Perez (1992) 2 Cal.4th 1117, 1123-1124 [9 Cal.Rptr.2d 577, 831 P.2d 1159] . . . .)” (People v. Koontz (2002) 27 Cal.4th 1041, 1080 [119 Cal.Rptr.2d 859, 46 P.3d 335].) “ ‘ ‘“The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.” ’ ” (Ibid.)

In People v. Anderson (1968) 70 Cal.2d 15, 26-27 [73 Cal.Rptr. 550, 447 P.2d 942] (Anderson), this court identified “three factors commonly present in cases of premeditated murder: ‘(1) [F]acts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as “planning” activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a “motive” to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of “a pre-existing reflection” and “careful thought and weighing of considerations” rather than “mere unconsidered or rash impulse hastily executed” [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a “preconceived design” to take his victim’s fife in a particular way for a “reason” which the jury can reasonably infer from facts of type (1) or (2).’ ” (People v. Koontz, supra, 27 Cal.4th at p. 1081.) “As we have cautioned, however, ‘[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate. The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law of murder in any way.’ [Citation.] In other words, the Anderson guidelines are descriptive, not normative.” (Ibid.)

Here, viewed in the light most favorable to the judgment (People v. Panah (2005) 35 Cal.4th 395, 487 [25 Cal.Rptr.3d 672, 107 P.3d 790]), the evidence showed that on March 30, 1989, defendant asked Alvaro Lopez to procure three ounces of cocaine for sale to an unnamed buyer. Before meeting up with Lopez and murder victim Guadalupe Sanchez to consummate the deal, defendant was seen cleaning a gun, with which he armed himself before he and his confederate, Contreras—carrying a knife—got into the victims’ car. Neither Sanchez nor Lopez was armed. Defendant positioned himself behind Sanchez, who was driving; Contreras, behind Lopez on the passenger side. After driving to a store on Highway 63 next to a house where defendant said the buyer lived, defendant went up to the purported buyer’s house while Sanchez and Lopez bought a beer at the store. Returning to the car, defendant told the victims the buyer had visitors and would meet them up ahead. Sanchez continued down the road for a short distance, pulled over, and put the car in park with the motor running. Defendant immediately put a pistol to Sanchez’s head, ordered Contreras to “secure” Lopez, and demanded the cocaine. Sanchez complied, defendant shot him, and Contreras began stabbing Lopez, who tried to open the car door. Defendant fired a shot that struck Lopez in the arm. With Contreras stabbing him, Lopez managed to push the car door open with his leg, got out of the car, and fell. Defendant shot at him again; Lopez got up and ran across the road.

This evidence permitted a rational jury to find that defendant formed a plan to rob and kill Sanchez and Lopez with Contreras’s assistance, preparing ahead of time to execute the plan by cleaning his gun and arming himself with it. The method by which defendant killed Sanchez (a gunshot to the back of the head at very close range) was sufficiently particular and exacting to support the inference he intentionally killed him according to a preconceived design. (People v. Romero (2008) 44 Cal.4th 386, 401 [79 Cal.Rptr.3d 334, 187 P.3d 56] (Romero).)

Defendant contends the record contains no substantial evidence of planning activity, motive to kill, or an exacting method of execution. Rather, he urges, the evidence reveals a rash, impulsive act that occurred in a struggle over the gun. He argues the prosecution’s argument invited the jury to speculate, i.e., to “start out by assuming” that defendant planned to kill Sanchez and Lopez and work from that assumption to infer that the motive for the plan was to take their vehicle as a getaway car without the risk of their reporting the theft to law enforcement. In the prosecution’s scenario, defendant had the victims drive to a residential area rather than some remote location so as to avoid arousing their suspicion. Defendant ridicules the prosecutor’s interpretation of the facts to show motive or preconceived plan, arguing that because drug dealers like Sanchez and Lopez would never have reported to law enforcement having been robbed of drugs and their car during a drug transaction, defendant could have had no motive to kill Sanchez and Lopez. Instead, he asserts, the circumstances of the crime suggest an unconsidered, impulsive killing. He contends no substantial evidence supports the prosecution’s theory that the purported buyer of the cocaine was a ruse, further undermining the prosecutor’s theory that the killing was part of a preconceived plan. In support, defendant points to Lopez’s testimony that “he pulled the pistol” (see ante, fn. 2), which he contends suggests Sanchez was shot when he tried to wrest the gun from the shooter’s hand. Finally, defendant argues, the record contains insufficient evidence of a manner of killing so “particular and exacting” as to support an inference “defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life.” (Anderson, supra, 70 Cal.2d at p. 27.) Rather, he contends, the evidence—specifically, Lopez’s testimony regarding “pull[] the pistol,” the gunshot residue on the driver’s headrest, and the fact Sanchez’s wristwatch was pulled up on his palm when his body was found—reflects that the shooting occurred during a struggle over the gun.

We are unpersuaded. That the location of the killing was not ideal does not negate an inference that it was planned. Although the prosecutor inartfully asked the jury to “assume” defendant planned to kill the victims, in context he was essentially arguing the evidence logically fit such a theory of the case and inviting the jury to interpret it similarly, as he was entitled to do. The prosecution’s theory, that the purported buyer was a ruse, was not an element of the crime required to be supported by substantial evidence, but was rather an inference that the jury was free to draw or reject and which found support in the circumstances that no buyer ever actually appeared and, that after a short drive down the road, defendant immediately carried out the robbery and execution-style murder of Sanchez. Despite Lopez’s confusing initial testimony about “pull[ing] the pistol,” on cross-exantination Lopez clarified that defendant shot Sanchez immediately after demanding and receiving the cocaine and there was no struggle over the gun. In this connection, forensic scientist Gary Conner’s testimony the murder weapon did not have a hair trigger, but required nine to 15 pounds of force to fire, is significant. Although the fact Sanchez’s watch was pulled up onto his palm when his body was found could support an inference the killing occurred in the course of a struggle, no testimony established how the watch came to be in that position and, as the Attorney General suggests, the jury could equally well have inferred it happened when Sanchez was dragged out of the car. Assuming, as defendant posits, the attack on Lopez was “chaotic,” this merely reflects the surviving victim’s effort to escape the deadly threat and does not undermine the inference of premeditation and deliberation flowing from the manner in which defendant killed Sanchez.

Essentially, defendant argues competing inferences he wishes the jury had drawn, but substantial evidence supports the jury’s decision that his shooting of Sanchez during a purported drug deal was the product of premeditation and deliberation. Defendant’s claim of insufficient evidence, together with his derivative due process argument, therefore fails.

c. Special circumstance

At the time of defendant’s crime, the special circumstance of murder while lying in wait (former § 190.2, subd. (a)(15)) required “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) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage.” (People v. Morales (1989) 48 Cal.3d 527, 557 [257 Cal.Rptr. 64, 770 P.2d 244] (Morales)) “The element of concealment is satisfied by a showing ‘ “that a defendant’s true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim.” ’ ” (People v. Sims (1993) 5 Cal.4th 405, 432-433 [20 Cal.Rptr.2d 537, 853 P.2d 992] (Sims); see People v. Moon (2005) 37 Cal.4th 1, 22 [32 Cal.Rptr.3d 894, 117 P.3d 591] (Moon).) “As for the watching and waiting element, the purpose of this requirement ‘is to distinguish those cases in which a defendant acts insidiously from those in which he acts out of rash impulse. [Citation.] This period need not continue for any particular length “ ‘of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.’ ” ’ ” (People v. Mendoza (2011) 52 Cal.4th 1056, 1073 [132 Cal.Rptr.3d 808, 263 P.3d 1] (Mendoza)) Defendant contends his case is “qualitatively different” from others in which this court has upheld lying-in-wait special-circumstance findings, in that the evidence of premeditation and deliberation was weak, the evidence failed to show that the concealment of purpose was murderous, the “legally relevant” period of watching and waiting occurred in a few seconds, and the victim was not surprised by the attack. These shortcomings, he contends, dictate reversal of the special circumstance finding.

At the close of the prosecution’s case at the guilt phase the defense moved under section 1118.1 to strike the special circumstance for insufficient evidence. In denying the motion, the court reasoned the fact defendant and Contreras armed themselves before meeting with the victims supported an inference they intended to rob or kill them; their concealment of their weapons and acting in concert to rob and kill the victims reflected a plan to carry out their criminal act at an opportune time and place; their sitting in the back seat gave them a position of advantage that facilitated their surprise attack, and they concealed their purpose from the victims until defendant held a gun to Sanchez’s head and demanded the cocaine, which occurred only after the car had been driven several miles and made two stops. Finally, the court found support for a conclusion the murder occurred immediately after the period of watching and waiting, in that defendant shot Sanchez immediately after Sanchez complied with defendant’s demand for the cocaine, in “a continuous and unbroken plan to wait, watch, rob and kill.”

Defendant takes issue with the conclusion that sufficient evidence supported the elements of the special circumstance in this case. (His further challenges to the jury instructions on the lying-in-wait special circumstance are discussed post, in pt. II.A.4.) He first urges there was insufficient evidence he concealed a murderous purpose. Unlike in several other lying-in-wait special-circumstance cases, he notes, such a purpose was not established by the admission of evidence of other similar crimes reflecting a murderous purpose. (E.g., People v. Carpenter (1997) 15 Cal.4th 312, 378, 389 [63 Cal.Rptr.2d 1, 935 P.2d 708] (Carpenter) [uncharged rape murders]; People v. Stevens (2007) 41 Cal.4th 182, 187-189 [59 Cal.Rptr.3d 196, 158 P.3d 763] (Stevens) [nonfatal freeway shooting occurring shortly after fatal shooting]; Moon, supra, 37 Cal.4th at pp. 22-23 [second lying-in-wait murder shortly after, and in same manner as, first lying-in-wait murder].) Nor was there in this case, as in People v. Jurado (2006) 38 Cal.4th 72, 82-88 [41 Cal.Rptr.3d 319, 131 P.3d 400] (Jurado), People v. Hillhouse (2002) 27 Cal.4th 469, 480-481 [117 Cal.Rptr.2d 45, 40 P.3d 754] (Hillhouse), and other cases defendant cites, evidence of a preannounced intention to kill the victim. Defendant points to no authority, however, holding evidence of other similar crimes or a preannounced intent to kill is necessary to establish the special circumstance. ‘“When we decide issues of sufficiency of evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts.” (People v. Thomas (1992) 2 Cal.4th 489, 516 [7 Cal.Rptr.2d 199, 828 P.2d 101].) Here, as the trial court reasoned, evidence that defendant and Contreras armed themselves before getting into the victims’ car, concealed the weapons they were carrying, employed an apparent ruse to obviate suspicion, took concerted action once defendant demanded the cocaine from Sanchez, and did so only after Sanchez had driven several miles and made two stops, all reasonably supported an inference defendant and Contreras concealed a murderous purpose from the victims. That they also entertained an intent to rob the victims does not exclude an intent to kill.

Defendant further contends the evidence failed to show a substantial period of watchful waiting for an opportune time to attack. In his view, the period of waiting and watching was interrupted when defendant and Contreras left the victims and went to a nearby house while the victims went to a store and bought and drank beer, and resumed only when defendant and Contreras rejoined the victims in the car. Any arguable period of watching and waiting before the killing, which occurred mere seconds thereafter, he argues, was too insubstantial to satisfy the requirement of the lying-in-wait special circumstance. We disagree. “A killer need not view his intended victim during the entire period of watching and waiting.” (People v. Edwards (1991) 54 Cal.3d 787, 825 [1 Cal.Rptr.2d 696, 819 P.2d 436] (Edwards).) The purpose of the ‘“watchful waiting” requirement—“ ‘to distinguish those cases in which a defendant acts insidiously from those in which he acts out of rash impulse’ ” (Mendoza, supra, 52 Cal.4th at p. 1073)—is satisfied here despite the circumstance that the victims were out of defendant’s sight for a few moments. If the jury accepted the prosecutor’s ‘“ruse” theory, it could reasonably have concluded that nothing occurred during that interval to indicate either an abandonment of the plan, an alteration in defendant’s purpose, or a dawning awareness of that purpose on the victims’ part.

In sum, the evidence showing that defendant directed Sanchez to drive up the road to wait for the purported drug buyer and then—once Sanchez stopped the car—immediately and in an unbroken sequence of events put his gun to Sanchez’s head, robbed him of the cocaine, and shot him from the back seat of the car, together supported the jury’s finding that defendant mounted a surprise attack on Sanchez after a substantial period of watchful waiting for an opportune time to attack. Defendant’s challenge to the sufficiency of the evidence of the lying-in-wait special-circumstance allegation therefore lacks merit.

2. Restriction on cross-examination of Gilbert Galaviz

Gilbert Galaviz testified that defendant and Ruben Contreras left the Sweet Street house on the day of the murder and got into Sanchez’s car armed with a gun and a knife, respectively. When they returned, according to Galaviz, they had blood on their clothes; asked what had happened, defendant said, “ ‘We killed a pig.’ ” At the time of trial, Galaviz was serving a 25-year-to-life sentence for murder. On cross-examination, defense counsel asked Galaviz if he used a knife to commit the murder of which he was convicted. The trial court sustained the prosecutor’s objection on the ground the facts underlying the conviction were irrelevant. Defendant contends the trial court erred in so ruling, and that the error denied him his federal and state constitutional rights to confrontation, to present a defense, to a fair trial, to due process of law, and to a reliable determination of guilt and penalty. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16.)

“ ‘[T]he exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.’ ” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679 [89 L.Ed.2d 674, 106 S.Ct. 1431], quoting Davis v. Alaska (1974) 415 U.S. 308, 316-317 [39 L.Ed.2d 347, 94 S.Ct. 1105].) “It does not follow, [however], that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel’s inquiry into the potential bias of a prosecution witness.” (475 U.S. at p. 679, citing Delaware v. Fensterer (1985) 474 U.S. 15, 20 [88 L.Ed.2d 15, 106 S.Ct. 292].) “ ‘[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.’ ” (People v. Williams (1997) 16 Cal.4th 153, 208 [66 Cal.Rptr.2d 123, 940 P.2d 710].) The “ ‘ “Application of the ordinary rules of evidence generally does not impermissibly infringe on a capital defendant’s constitutional rights.” ’ ” (People v. Eubanks (2011) 53 Cal.4th 110, 143 [134 Cal.Rptr.3d 795, 266 P.3d 301].)

Under California law, the right to cross-examine or impeach the credibility of a witness concerning a felony conviction does not extend to the facts underlying the offense. (People v. McClellan (1969) 71 Cal.2d 793, 809 [80 Cal.Rptr. 31, 457 P.2d 871]; People v. Heckathorne (1988) 202 Cal.App.3d 458, 462 [248 Cal.Rptr. 399]; see Evid. Code, § 786 [evidence of traits of character other than honesty or veracity, or their opposites, is inadmissible to support or attack a witness’s credibility].) Defendant contends he should have been allowed to elicit from Galaviz the fact he used a knife in another homicide because its relevance extended beyond the witness’s credibility, in that it tended to show Galaviz, not defendant, perpetrated the offenses in this case, inasmuch as one of the victims was stabbed with a knife. Defendant forfeited the point by not advancing it at trial (People v. Pearson (2013) 56 Cal.4th 393, 470, fn. 10 [154 Cal.Rptr.3d 541, 297 P.3d 793]; Evid. Code, § 354), and it lacks merit in any event. “A criminal defendant may introduce evidence of third party culpability if such evidence raises a reasonable doubt as to his guilt, but the evidence must consist of direct or circumstantial evidence that links the third person to the crime. It is not enough that another person has the motive or opportunity to commit it.” (People v. Abilez (2007) 41 Cal.4th 472, 517 [61 Cal.Rptr.3d 526, 161 P.3d 58].) That Galaviz had used a knife on a prior unrelated occasion hardly linked him to the commission of the present crimes. Accordingly, the trial court did not abuse its discretion in excluding the evidence. Moreover, defendant suffered no prejudice. Defense counsel elicited from two other witnesses—Galaviz’s sister, Joann, and investigator Dan Wells—the fact Galaviz had committed a knife murder. The court’s ruling did not deprive defendant of his right to present a defense.

3. Instructions assertedly undermining requirement of proof beyond a reasonable doubt

The trial court instructed the jury with various standard instructions (CALJIC Nos. 2.01, 2.21.2, 2.22, 2.27, 2.51, and 8.20) on how to consider and weigh the evidence. Defendant contends these instructions undermined the requirement of proof beyond a reasonable doubt, requiring reversal of the judgment. We reach the merits of the claim despite defendant’s failure to object to any of the instructions below (§ 1259; Clark, supra, 52 Cal.4th at p. 957, fn. 31), examining whether there is a reasonable likelihood the jury understood the instructions in the way defendant asserts (People v. Solomon (2010) 49 Cal.4th 792, 822 [112 Cal.Rptr.3d 244, 234 P.3d 501]).

As defendant acknowledges, we have rejected his arguments in prior cases. Because defendant advances no persuasive reason to depart from our precedents, we adhere to them here. Thus, CALJIC No. 2.01 (concerning the sufficiency of circumstantial evidence) did not compel the jury to find defendant guilty and the special circumstance true using a standard lower than proof beyond a reasonable doubt. (Jones, supra, 57 Cal.4th at p. 972.) Nor did it create an impermissible mandatory presumption by requiring the jury to draw an incriminatory inference whenever such an inference appeared “reasonable” unless the defense rebutted it by producing a reasonable exculpatory interpretation. (People v. Thomas (2012) 53 Cal.4th 771, 812 [137 Cal.Rptr.3d 533, 269 P.3d 1109]; People v. Brasure (2008) 42 Cal.4th 1037, 1058-1059 [71 Cal.Rptr.3d 675, 175 P.3d 632].) Similarly, CALJIC Nos. 2.21.2 (a witness’s willfully false testimony), 2.22 (weighing conflicting testimony), 2.27 (sufficiency of the testimony of a single witness to prove a fact), and 8.20 (defining premeditation and deliberation) did not replace the reasonable doubt standard with the preponderance of the evidence test by urging the jury to decide material issues by determining which side had presented relatively stronger evidence. (People v. Streeter (2012) 54 Cal.4th 205, 253 [142 Cal.Rptr.3d 481, 278 P.3d 754] (Streeter).) CALJIC No. 2.51 (on motive) does not improperly allow the jury to find guilt based on the presence of a motive, nor does it lessen the prosecution’s burden of proof by shifting the burden to defendants to show absence of motive. (Streeter, at p. 253.) Nor, contrary to defendant’s apparent view, did the instruction mislead the jury regarding the probative value of motive evidence, given that it directed jurors to give the presence or absence of motive the weight to which they found it to be entitled. (People v. McKinzie (2012) 54 Cal.4th 1302, 1356 [144 Cal.Rptr.3d 427, 281 P.3d 412].) “Each of these instructions ‘ “is unobjectionable when, as here, it is accompanied by the usual instructions on reasonable doubt, the presumption of innocence, and the People’s burden of proof.” ’ ” (Streeter, supra, at p. 253.)

4. Asserted errors in lying-in-wait special-circumstance instructions

The jury was given the then standard CALJIC instruction on the lying-in-wait special circumstance, CALJIC No. 8.81.15 (1989 rev.). Defendant contends the instruction failed to explain to the jury that the key elements of the special circumstance—concealment of purpose and watchful waiting for a time to act—referred to a concealed intent to kill and waiting for a time to launch a lethal attack. His contention lacks merit.

As defendant acknowledges, in Streeter, supra, 54 Cal.4th 205, we rejected the contention that CALJIC No. 8.81.15 erroneously permitted the jury to return a true finding on the lying-in-wait special-circumstance allegation based on a nonlethal intent. (Streeter, at p. 251.) We reasoned the instruction told the jury that “ ‘for a killing to be perpetuated [sic| while lying in wait’: (1) the killing must be intentional and (2) ‘both the concealment and watchful waiting as well as the killing must occur during the same time period, or in an uninterrupted attack commencing no later than the moment concealment ends.’ In addition, the instruction required an immediate killing or a continuous flow of the uninterrupted lethal events from the period of lying in wait. [Citation.] Finally, the instruction stated that, ‘[W]hen a defendant intentionally murders another person, 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) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage, the special circumstance of murder while lying in wait has been established.’ [Citation.] Because the instruction required an intentional killing and an uninterrupted connection between the lethal acts and the period of lying in wait, a reasonable jury would not have believed that the nonlethal act and intent [here, that of robbing the victims of the cocaine] would have satisfied the requirements of concealment of purpose and watchful waiting to act.” (Ibid.) Defendant fails to persuade us our reasoning in Streeter was flawed, and the same reasoning compels rejection of his claim in this case.

Defendant further contends the instruction is confusing and contradictory and failed to provide the jury with adequate guidance concerning the concept of “ ‘cognizable interruption’ ” (Morales, supra, 48 Cal.3d at p. 558) as it relates to the relevant period of watchful waiting in this case. In People v. Cruz (2008) 44 Cal.4th 636, 678 [80 Cal.Rptr.3d 126, 187 P.3d 970], we held that CALJIC No. 8.81.15 is not “ ‘impossible to understand and apply,’ ” and adhere to that view here. And because we have generally approved the instructional language (e.g., Sims, supra, 5 Cal.4th 405 , 434 [rejecting challenge to 1983 version of CALJIC No. 8.81.15, which was substantially similar to the 1989 version used in this case]), if defendant wanted the jury to receive more detailed instruction concerning “cognizable interruption” it was incumbent on him to request it. (See People v. Hardy (1992) 2 Cal.4th 86, 153 [5 Cal.Rptr.2d 796, 825 P.2d 781].) He failed to do so and thus may not complain of the asserted deficiency on appeal. To the extent defendant may be arguing the evidence in this case established as a matter of law, and the jury should have been instructed, that a cognizable interruption in the required watchful waiting occurred based on his leaving the car to speak with the purported buyer at the latter’s house while the victims went inside the convenience store, out of his sight, his argument fails. As noted, a killer need not keep his intended victim in sight during the entire period of watchful waiting (Edwards, supra, 54 Cal.3d at p. 825); under the state of the evidence in this case whether a cognizable interruption occurred remained a factual question for the jury.

B. Penalty Phase Issues

1. Denial of defendant’s motion to exclude evidence of gun possession

Defendant filed two motions to exclude, on Fourth Amendment grounds, evidence of two incidents of illegal gun possession. The first motion argued that the search of a vehicle parked on Strawberry Street from which a gun was recovered exceeded the scope of a warrant directing the search of the residence at 101 Strawberry Street and “vehicles on said property.” The second motion argued that police had insufficient cause to detain and search defendant and his vehicle parked in the lot of the Circle K convenience store. The trial court denied both motions and on appeal defendant asserts error in both rulings.

Preliminarily, while acknowledging we have not squarely ruled on the question, the Attorney General contends the exclusionary rule should not apply to the penalty phase of a capital trial when the prosecutor seeks to introduce section 190.3, factor (b) evidence. (See People v. McKinnon (2011) 52 Cal.4th 610, 684, fn. 45 [130 Cal.Rptr.3d 590, 259 P.3d 1186] [assuming availability of exclusionary remedy]; People v. Huggins (2006) 38 Cal.4th 175, 241 [41 Cal.Rptr.3d 593, 131 P.3d 995] [same].) She argues the exclusionary rule has little deterrent value at the penalty phase, the purpose of which is “to enable the jury to make an individualized determination of the appropriate penalty based on the character of the defendant and the circumstances of the crime.” (People v. Cowan (2010) 50 Cal.4th 401, 499 [113 Cal.Rptr.3d 850, 236 P.3d 1074].) That is, she asserts law enforcement would not likely be deterred from conducting unreasonable searches and seizures because of the remote possibility the evidence could not be used during the penalty phase in an unrelated prosecution occurring potentially years later, and any limited deterrent value is outweighed by the societal costs of exclusion of the evidence and the resultant incomplete picture of the defendant’s criminal activities.

Given the prosecution’s failure to litigate these issues below, we decline to resolve the question whether the exclusionary remedy should remain available for Fourth Amendment violations in connection with section 190.3, factor (b) evidence presented in the penalty phase of a capital trial; we assume its availability for purposes of this appeal and proceed to address the parties’ substantive arguments.

a. Strawberry Street incident

The record of the hearing on defendant’s motion to suppress evidence reveals the following: On the morning of February 19, 1987, police executed a warrant to search an apartment located at 101 Strawberry Street in Visalia. Defendant was present in the apartment at the time of the search. Neither defendant nor his vehicle, a black 1974 Monte Carlo which was parked on the street in front of the apartment building, was named in the warrant. A police officer searched defendant’s person and recovered car keys from his left front pants pocket. The officer had several times previously seen defendant sitting in the driver’s seat of the Monte Carlo, although he had never seen him driving it, and had never seen anyone else in or around the car. Police determined that the keys fit the Monte Carlo and found a small .45-caliber derringer under the driver’s seat. When asked, through an interpreter, whether he owned any vehicles, defendant replied he did not; he specifically denied the Monte Carlo belonged to him. The trial court ruled that defendant lacked standing to contest the search of the Monte Carlo because he claimed no ownership or right to possession of it.

Defendant contends the trial court erred in concluding he lacked standing to contest the search. He further contends the search of the Monte Carlo was beyond the scope of the warrant and was otherwise done without probable cause.

“In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court’s resolution of the factual inquiry under the deferential substantial evidence standard. Whether the relevant law applies to the facts is a mixed question of law and fact that is subject to independent review.” (People v. Thompson (2010) 49 Cal.4th 79, 111-112 [109 Cal.Rptr.3d 549, 231 P.3d 289].)

“[C]apacity to claim the protection of the Fourth Amendment depends . . . upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” (Rakas v. Illinois (1978) 439 U.S. 128, 143 [58 L.Ed.2d 387, 99 S.Ct. 421].) A legitimate expectation of privacy in a vehicle requires a showing of a property or possessory interest therein. (Id. at p. 148.) Defendant argues that the fact he possessed the keys to the Monte Carlo raised an inference he lawfully possessed the car, even if it did not belong to him, and that as a consequence he had a legitimate expectation of privacy in the car’s contents. As he observes, the prosecution itself at the suppression hearing urged the court to draw the inference defendant possessed the gun based on his possession of the car it was found in. Defendant argued below, and renews the argument here, that the prosecution cannot have it both ways. That is, the prosecution cannot contend both that defendant possessed the car in order to link him to the gun found inside it, and that he lacked a possessory interest in it in order to defeat his claim to a legitimate expectation of privacy for purposes of challenging the warrantless search of the car.

Defendant is correct. The record of the suppression hearing does not support the trial court’s implicit finding that defendant disclaimed a posses-sory interest in the car merely by virt