People v. Masters (62 Cal. 4th 1019, 2016)

Opinion

LIU, J.

A jury convicted defendant Jarvis J. Masters of the first degree murder of Sergeant Dean Burchfield, a correctional officer at San Quentin State Prison (Pen. Code, §§ 187, subd. (a), 189; further undesignated statutory references are to the Penal Code), and conspiracy (§ 182) to commit murder and to commit assault on correctional staff (§ 4501), and found true the special circumstance allegation that the murder involved the knowing and intentional killing of a peace officer engaged in the performance of his duties (§ 190.2, subd. (a)(7)). The jury returned a verdict of death. The trial court denied the automatic motion to modify the verdict (§ 190.4, subd. (e)) and sentenced Masters to death on the murder count and to life with the possibility of parole on the conspiracy count.

This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.

I. Factual Background

Masters, fellow inmates Andre Johnson and Lawrence Woodard, and the prosecutor’s main witness, Rufus Willis, were members of a prison gang housed in the section of San Quentin State Prison where the murder of Sergeant Burchfield occurred. In May 1985, these prisoners and others formed a conspiracy to assault prison guards. Masters, Woodard, Willis, and others decided Sergeant Burchfield would be the first target of the plot, and Johnson stabbed him to death with a prisoner-made weapon on the night of June 8, 1985.

Masters, Johnson, and Woodard were tried simultaneously before two separate juries: one for Masters and Woodard, and the other for Johnson. Willis testified against them under a grant of immunity.

Masters, Johnson, and Woodard were found guilty. The jury that convicted Masters and Woodard considered Woodard’s sentence first, but was unable to reach a verdict. Following Masters’s penalty phase trial and death verdict, the prosecutor elected not to retry Woodard’s penalty phase, and the trial court sentenced him to life imprisonment without the possibility of parole. CPeople v. Johnson (1993) 19 Cal.App.4th 778, 780 [23 Cal.Rptr.2d 703] {Johnson).) Johnson’s jury reached a verdict of death for him, but the court granted the automatic motion for modification and reduced his sentence to life without parole. (Ibid.) Johnson and Woodard appealed, and the Court of Appeal affirmed their convictions and sentences in a consolidated decision that was partially published. {Id. at p. 794.)

A. Guilt Phase

1. Prosecution Case

a. The BGF

The prosecutor presented testimony and documents concerning the nature and structure of the Black Guerilla Family (BGF), an African-American gang that espoused a violent, revolutionary philosophy. The BGF clashed with other prison gangs, such as the Aryan Brotherhood and the Mexican Mafia. The BGF at times allied with another African-American gang, the Crips.

The BGF was highly ordered and disciplined. Its members attended group meetings that covered subjects such as BGF history and philosophy and the manufacture and use of prisoner-made weapons. Members were required to write and possess various BGF-related documents, such as daily reports of their activities or maps of their housing sections that showed the gang affiliations of nearby prisoners. The BGF used various codes and Swahili words to communicate and identify themselves.

The BGF had a well-defined hierarchical structure. In addition to the main central committee, each section of the prison had its own central committee. BGF members were assigned various ranks and areas of authority.

b. The Conspiracy

Rufus Willis testified about the formation of the conspiracy to murder Sergeant Burchfield. Willis was serving a 25-year-to-life sentence for murder, kidnapping, and robbery at Folsom Prison when he joined the BGF in 1982. He rose through the ranks, eventually becoming the commander of Donner section in San Quentin. Several weeks before Sergeant Burchfield’s murder, Willis received a note from Willie Redmond, the BGF commander in Carson section, mentioning that he was planning to assault a prison staff member. Willis was soon after transferred to Carson section and became the “Akili,” the intelligence officer, on the BGF central committee in that section. Also on the Carson section committee were Lawrence Woodard, a lieutenant, and Masters, who served as the “Usalama,” the security chief.

Masters, Woodard, Willis, and Redmond met on the exercise yard to discuss BGF activities. According to Willis, Masters at the first meeting presented a plan to assault Aryan Brotherhood and Mexican Mafia members. Redmond rejected the plan because he wanted to assault prison guards first before attacking the other gangs. Redmond ordered Masters to revise the plan.

At a second meeting on the exercise yard with Woodard, Willis, Redmond, and another BGF committee member, Masters presented his new plan. Masters had created a list of several officers to assault. It was decided that Sergeant Burchfield would be the first target because Redmond believed he had been supplying Aryan Brotherhood members with weaponry. Willis suggested that Andre Johnson should be the one to commit the attack. After the second meeting, Redmond was transferred out of Carson section.

Masters, Woodard, Willis, and another Carson section committee member met again in the exercise yard to further discuss the plan. Members of the committee also met with members of the Crips to convince them to join in the plot to assault the guards. Willis twice met on the exercise yard with Crips members, and Masters was at one of those meetings.

Masters, Woodard, and Willis agreed on the plan for Johnson to assault Sergeant Burchfield. Masters would obtain a piece of metal from another BGF member, sharpen it, and pass it to Johnson. Johnson was chosen to commit the assault in part because he was housed in the second tier of cells in Carson section. Because of the inadequate lighting in the prison, this tier was quite dark during Sergeant Burchfield’s night shift. Masters would arrange for an inmate to indicate when Sergeant Burchfield was approaching the second tier. Johnson would stab Sergeant Burchfield when he came to his cell. After the assault, Johnson was to pass the weapon to another BGF member on the second tier, who would dispose of it.

Willis also testified about the Swahili and code names used by various BGF members. Willis was known as “Zulu” and “A-l.” He claimed Masters was known as “Askari,” “Askari II,” “Askari Left Hand,” and “U-l.” Johnson was known as “Little Askari,” “Somo,” “Dray,” and “the Younger.” Woodard was known as “Old Man Askari” and “M’ll.”

c. The Murder

On June 8, 1985, Sergeant Burchfield started his assigned shift at 11:00 p.m. He mentioned to the other officers that Carson section seemed especially noisy that night, and said he was going to walk the tiers to check on the prisoners. Officer Rick Lipton was assigned to patrol the gunrail, a separate elevated walkway that paralleled the cell tiers. Officer Lipton was armed with a rifle and followed roughly in line with Sergeant Burchfield as he walked along the cells. Because of the darkness, Officer Lipton could only see Sergeant Burchfield from the waist down. At some point along the first few cells on the second tier, Officer Lipton saw Sergeant Burchfield stop in front of a cell, and then stumble backward against the railing and collapse in the middle of the tier. Sergeant Burchfield later died of a single chest wound.

At trial, Officer Lipton testified that the stabbing occurred near the front of the second cell on the second tier, which was Johnson’s cell. He told the same thing to his girlfriend and the officer who relieved him that night. However, Officer Lipton later told the investigating officers, wrote in his report, and testified at the preliminary hearing that the stabbing happened in front of the fourth cell, which housed a member of the Crips gang. Masters was housed in a cell on the fourth tier at the time of the murder.

d. The Investigation

Within 15 minutes of the murder, an officer found a sharpened piece of metal on the floor of a secured area of the first tier of Carson section, roughly below Johnson’s cell. The metal had no evidence of blood on it, but an FBI metallurgist determined that it had been cut from the bed in a BGF member’s cell in Carson section. This weapon could have inflicted the wound to Sergeant Burchfield. Officers later found a makeshift spear shaft created from rolled-up newspaper and cloth on top of a security screen, also generally below Johnson’s cell. In later searches in the cells and common areas of Carson section, officers found other pieces of metal that came from the same bed, as well as many other prisoner-made weapons. The items found in the common areas were not preserved.

In the days following the murder, Willis hied to contact prison officials with an offer to provide information in exchange for his release from prison. Willis eventually met with an investigator from the prosecutor’s office to discuss the murder. The investigator suggested that Willis would be released from prison if he cooperated with the investigation. But the prosecutor later told Willis that there would be no agreement for his release. The prosecutor offered to notify the parole board of his assistance, told Willis he would be granted immunity for the crimes he had committed in prison, including his participation in Sergeant Burchfield’s murder, and that he would be moved to an out-of-state prison for his protection.

After meeting with the investigator, Willis wrote to Masters and requested details about the murder. Shortly thereafter, Willis testified he received a note addressed to another BGF member; the jury also heard, however, that at the preliminary hearing Willis testified this note was originally addressed to him, but he altered the note. Willis testified, and a handwriting expert confirmed, that the note was in Masters’s handwriting. According to Willis’s translation of the terms and names in the notes, the note’s author discussed having sharpened a piece of metal, the author did not know whether the weapon used on Sergeant Burchfield had been passed along to be destroyed as had been planned, and the author was trying to ensure members of the Crips would commit the next attack on a guard. The note was signed with an ambiguous code name.

Not satisfied with the note, Willis again wrote to Masters and requested a report about the attack. Willis received a document, confirmed by a handwriting expert to be in Masters’s handwriting, entitled “Usalama Report.” It set out the reasons and planning behind “[t]he usalama assignment carried out on [June 8, 1985].” The report explained that Sergeant Burchfield had been communicating with members of the Aryan Brotherhood and supplying them with weapons. It also stated that Masters and others “approved” of the attack and “prepared” Johnson for it. It stated Johnson had been effective, and only BGF members knew he was the killer. It also discussed the plan to coordinate the attacks to be committed by Crips members. The note was signed with a code name assigned to Masters. Willis testified that “about a half hour or hour” had elapsed between his first request for details about the murder and his receipt of the second note.

After Willis began cooperating with the authorities, he sent a series of notes to Johnson. Johnson replied, answering a number of questions about the murder. Johnson confirmed that he stabbed Sergeant Burchfield with a makeshift spear and that afterward he tore the sharpened piece of metal off the spear shaft and threw both pieces off the tier. Johnson’s note stated that “Askari” had sharpened the metal and that “Askari II” had sent it to Johnson. Willis testified that both of these names referred to Masters.

Bobby Evans was also imprisoned in San Quentin in 1985. He testified he was an “enforcer” on the BGF main central committee. He had not been aware of the plan to assault Sergeant Burchfield before the murder. Approximately one month after the stabbing, Evans was transferred to the prison’s adjustment center. Eventually, Masters, Johnson, and Woodard were housed there as well. Each of them told Evans about their involvement in the killing. Their statements were essentially consistent with Willis’s testimony. Specifically, Masters told Evans that he was part of the BGF central committee in Carson section and had voted in favor of killing Sergeant Burchfield.

2. Defense Case

The defense focused on undermining the credibility of Willis and Evans, and disputing the significance of the BGF notes. While in prison, Willis had committed and ordered the stabbings of several inmates. He had distributed illegal drugs. He had extorted prison staff by promising them protection or threatening to harm them. In exchange, Willis sought favors, such as freedom to pass notes and weapons to other inmates and access to other inmates’ confidential files.

Willis initially provided information about Sergeant Burchfield’s murder to the authorities because he hoped to be able to work out a deal in which he would be released from prison. Even after the prosecutor promised only immunity and protective measures, Willis told two other inmates that he had come up with a plan to be released early. He told one of these inmates that he “would do whatever he had to do to make sure he didn’t spend the rest of his life in prison.”

Willis admitted that BGF notes were sometimes written by several people to obscure the identity of their authors. Willis had made some alterations to the notes incriminating Masters, such as substituting another BGF member’s code name for his own. After Sergeant Burchfield’s murder, Willis destroyed up to 300 notes he and other BGF members had authored.

Masters also presented evidence suggesting that Willis was angry with the BGF, that he actually considered himself to be a member of the Crips, and that he had made his own plans to assault prison staff and other inmates. A Crips member who had been incarcerated in San Quentin testified that Willis told him in 1983 that the BGF was responsible for the death of one of Willis’s friends at Folsom Prison. Willis had tried to intervene in an assault on his friend but was also attacked. Willis said he was planning to get revenge on the BGF. According to this Crips member, the BGF and the Crips were not allies, but were in conflict.

Willis’s cousin was an inmate in San Quentin in 1984. He testified that Willis had said he wanted to leave the BGF. Willis was planning to form an independent “hit squad” that would assault prison staff. Another incarcerated Crips member also heard Willis discuss his hit squad and plans to assault staff members. This inmate and Willis’s cousin believed Willis was manipulative and untrustworthy. Two inmates who were imprisoned with Willis after he began cooperating with the authorities testified that Willis claimed to be a member of the Crips.

Evans’s credibility was similarly attacked through evidence of his extensive criminal history and motives for testifying for the prosecution. He had been convicted of four burglaries and an attempted robbery. He admitted that he had stabbed numerous inmates. He also testified that while out of prison he had supervised the BGF’s street crimes. Evans did not testify under a grant of immunity. As discussed more fully below, however, according to Evans and James Hahn of the Department of Corrections and Rehabilitation, Evans testified in exchange for safety and security considerations.

Masters also presented the theory that Sergeant Burchfield had been killed by the Crips, not the BGF. According to Willis, when he met with Crips members to discuss the plan for coordinated attacks, they wanted to wait for the anniversary of the murder of one of its members, named Montgomery. One of the officers who responded to Carson section immediately after Sergeant Burchfield’s murder heard someone yell, “Let’s get another one for Montgomery.”

Officer Lipton on different occasions had said that Sergeant Burchfield was stabbed near the fourth cell on the second tier, which at the time of the murder housed a Crips member. A correctional officer found what might have been blood on the bars of that cell.

In addition, another correctional officer had found a state-issued shoe on top of the security screen, near the spear shaft. The shoe had a piece of metal in it that was cut from the same source as the sharpened piece believed to have been used to stab Sergeant Burchfield. Officers searched the fourth cell on the second tier and found only three shoes.

Finally, Masters highlighted many of the shortcomings in the prison staff’s investigation. For instance, the correctional officer who found the sharpened piece of metal believed to have been used to stab Sergeant Burchfield carried it around in his pocket for several hours rather than immediately preserving it as evidence. The envelopes that later held this piece of metal were not retained. Many items of possible significance were lost or destroyed, including various other prisoner-made weapons, the seized shoes, and numerous inmate notes that contained supposed tips about or claims of responsibility for the murder.

B. Penalty Phase

1. Case in Aggravation

The prosecutor presented evidence regarding Masters’s extensive juvenile and adult criminal record. The prosecutor also presented evidence of Masters’s history of unadjudicated criminal activity, which included two murders.

In 1974, when Masters was 12 years old, he took some change from another boy’s pocket, but ultimately gave the money back after the boy pleaded with Masters not to take it. Masters later told police that he had merely borrowed a dime from the boy but returned it when the boy said he wanted it back.

In 1975, when Masters was 13 years old, he got into a fight and cut another boy with a knife. A short time later, Masters came to the boy’s house armed with a handgun and fired it at the house, yelling, “I’m going to kill you.” Masters was arrested and admitted to the police that he had gone to the house with a makeshift gun and had pulled the trigger but claimed it did not fire.

In 1976, when Masters was 14 years old, he got into a confrontation with a fellow student at school and screamed that he was going to kill the boy. Masters found a hacksaw and threatened to kill the other student.

Also around that time, Masters was taken to the principal’s office for a disciplinary problem and he tried to climb out the window. When the assistant principal intervened, Masters picked up a large metal hole punch and threatened to kill him with it.

Around a week later, Masters and another boy stopped a boy riding his bike and demanded that he give them his watch, which the cyclist did. Masters was later arrested and told the police that he merely asked to see the watch and that after he looked at it, he gave it to the other boy, who ran away with it.

By 1978, when Masters was 16 years old, he had been adjudicated a ward of the California Youth Authority. He and two other wards forced a fourth ward to perform a sex act on one of them. Masters hit the victim, pinned him to the floor, and warned him not to tell the authorities. The next day, Masters and one of the other wards again beat the victim and forced him to orally copulate the other ward. The victim reported the incidents to a counselor. The victim testified at trial that these incidents did not happen. But he had told the prosecutor earlier that the report he gave was true and that he did not want to testify against Masters. Another former ward in the same facility testified that he saw the assaults. During his case in mitigation, Masters testified that he used to “pick on” the victim, but that any sexual activity the victim had engaged in was consensual.

When Masters was 17 years old, he and another person robbed a gas station, threatening the owner with a rifle. Masters was arrested and prosecuted as an adult, pleaded guilty to robbery, and admitted he personally used a firearm.

In 1980, after he turned 18, Masters committed a string of robberies in the Los Angeles area that continued until he was arrested a few months later. The jury heard testimony about several of these robberies. For example, during a two-week period, Masters robbed the same restaurant three times. He was armed with a handgun each time. During one of those robberies, Masters struck one of the victims with his gun. During another robbery, he brandished his gun and said to one of his victims, ‘Til blow your motherfucking brains out.”

After the police arrested Masters, he admitted committing several of the robberies. He told the officers he would “get off anyway,” explaining that he would “beat it” because he would “just have a psychiatrist tell [the jury] how crazy” he was. Masters also professed to “know how the system works,” asserting that he would not be charged with all the robberies and at most would serve “only a couple of years.” He said he had hidden the guns used during the robberies and would not say where because he would need them when he got out.

Masters was also implicated in two other robbery-related incidents that occurred during his robbery spree. In one incident, two police officers were dispatched to a robbery in progress at a gas station. After they arrived, one of the officers saw a flash from a gunshot and then heard another shot. The officers searched for the assailant but did not locate anyone. Masters later admitted to the police that he and another man had gone to the gas station to commit a robbery. When the police arrived, he hid behind a tree and shot at the officers.

In the other incident, Bob Hamil was killed during a robbery in his liquor store. Masters initially told the police he did not commit this robbery, but claimed to have heard about the crime. When questioned by the police, however, some of Masters’s statements implied he had been a participant. For example, Masters stated, “It looked like [Hamil] got a gun and was going to run after us and shoot at us from the back.” When asked why Masters used a partner for this robbery, he responded, “Because the dude really knows the freeways.” When asked if he was “loaded” during the robbery, Masters initially replied, “No, I wasn’t loaded,” but then denied any involvement. Masters also was familiar with details of the crime, including the fact that Hamil was shot in the chest, that Hamil had a .38-caliber handgun, and that the robbers drove away in a stolen Camaro.

In 1981, when Masters was 19 and incarcerated in county jail on the robbery charges, a deputy found in his cell a double-edge razor blade attached to a toothbrush and a single-edge razor blade melted into some tubing. As the deputy led Masters away from the cell, he told another inmate that he “just got busted with a shank.”

Around that time, Masters had a physical altercation with some deputies. Several deputies were attempting to subdue an inmate who had been fighting when Masters began screaming and attempting to “rile” other inmates. When the deputies tried to remove Masters from his cell, he pushed one of them in the chest. Masters struggled with the five deputies attempting to control him until they were able to handcuff him.

Masters eventually was convicted of 12 counts of robbery, and he was found to have personally used a firearm in seven of them. He received a 20-year sentence.

While Masters was imprisoned at San Quentin in 1984 for his robbery convictions, inmate David Jackson was killed on the exercise yard. A guard saw Jackson walk toward Masters and a group of other inmates. The guard looked away, and when he looked back, he saw Jackson staggering away from the group with blood on his shirt and a prisoner-made knife sticking out of his neck. Jackson later died at the hospital.

Masters was transferred to the adjustment center in the prison soon after Jackson’s death. Masters told Johnnie Hoze, the BGF security chief in the center, that he had been transferred there for killing Jackson. Masters said that he had stabbed Jackson in the neck and left the weapon there. Several times over the next year, Masters told several BGF members that he had killed Jackson. Masters said that Jackson was murdered because he had been buying drugs from a Caucasian instead of BGF members. Masters also said that the “adrenaline rush” that he experienced while stabbing Jackson was better than having sex.

A few months after Jackson’s death, a correctional officer searching Masters’s cell found a two-inch-long prisoner-made weapon. A few months after that, a correctional officer was escorting an inmate when a nearly six-foot-long spear flew out of Masters’s cell. The spear, made of a rolled-up newspaper and a sharpened piece of metal, narrowly missed hitting the inmate in the neck.

Masters attempted to escape during the course of his trial. A deputy sheriff was in the process of removing Masters’s restraints in a holding cell when an altercation occurred between Lawrence Woodard and other deputies. Masters’s hands and feet had been freed from his waist chain, and he ran for the door. The deputy tackled Masters, but the officer hit his head on a bench as they were falling. Masters got up and again ran for the door. The deputy was able to grab Masters’s waist chain. As the deputy tried to grab Masters’s arms, Masters began swinging his elbows, hitting the deputy once in the neck. The deputy pinned Masters against a wall until other deputies arrived and were able to subdue him.

2. Case in Mitigation

To establish lingering doubt, Masters sought to further undermine the credibility of Bobby Evans’s testimony that Masters had admitted his role in Sergeant Burchfield’s murder. Masters also challenged the evidence tying Masters to the Hamil and Jackson murders, and disputed the significance of the other unadjudicated violent criminal activity. Further, the defense recounted Masters’s social history of neglect, abuse, crime, and violence; described prison conditions and the effect they had on prisoners; and discussed Masters’s ability to be lawful and productive if sentenced to life imprisonment.

a. Bobby Evans

Bobby Evans was recalled as a witness. He testified that before being imprisoned, he had been hired to shoot several people. He ultimately shot six people, but none died.

James Hahn was a parole agent employed by the Department of Corrections and Rehabilitation. He was also recalled to testify about the actions he took on Evans’s behalf. He spoke to Evans around 10 times between June 1989 and October 30, 1989, the date Evans first testified at trial. In June, Evans told Agent Hahn that he was facing prison time after pleading guilty to attempted robbery in Alameda County, and that he did not want to return to prison because the BGF had threatened to kill him. Agent Hahn told Evans he would “take care” of Evans’s safety and security, but could not make any promises regarding either Evans’s case in Alameda County or any other benefit he might receive for providing information. Agent Hahn said he would try to get the sentencing hearing in Alameda County postponed long enough so that Evans would end up serving his time in county jail rather than in prison.

Russell Giuntini was an Alameda County deputy district attorney. On two or three occasions, Agent Hahn called him and asked that Evans’s sentencing hearing be postponed.

Agent Hahn told Evans that, if he did have to return to prison, he (Hahn) would try to arrange it so that Evans could serve his sentence in another state. Agent Hahn also said he would try to place Evans and his family in a witness relocation program. Agent Hahn admitted that he did not document his efforts to have Evans’s sentencing hearing postponed.

William Denny also was an Alameda County deputy district attorney. Denny was prosecuting Evans’s attempted robbery case. Giuntini testified that he called Denny at Agent Hahn’s behest. In response to Giuntini’s inquiries, Denny twice requested that Evans’s sentencing hearing be postponed. Agent Hahn also called Denny once to ask if Evans had accumulated enough presentence credits to be released based on time served.

b. Other Criminal Activity

A police officer testified that he took no steps to charge Masters for his role in the robbery and murder of Hamil at the liquor store. Masters testified that he did not commit the robbery. During the police interview after he was arrested, Masters was intimidated because there were several officers questioning him, but there was no tape recorder. As a result, he bragged about some of the crimes he committed and then lied about others. He viewed the interview as a game.

Masters also testified about his robbery spree. After committing the gas station robbery when he was 17 years old, he was incarcerated in a California Youth Authority facility. He escaped from custody. He then committed the string of robberies because he felt he had “nothing to lose” since he would have to serve time for escaping. Masters testified that when he committed robberies he was out of control and angry with himself and “the system.” He denied striking or shooting anyone during any of these crimes. Masters testified that when the police officers responded to the aborted gas station robbery, he shot only into the air, not at the officers.

Masters admitted having a physical confrontation with deputies in the Los Angeles County jail and possessing prisoner-made weapons. He also testified that during the altercation with the deputy during the trial, he was not trying to escape or hit the officer with his elbows. Rather, he claimed that he was trying to intervene in and diffuse the confrontation Lawrence Woodard was having with the other deputies.

Three inmates who had been on the exercise yard when Jackson was killed testified that Masters was not near Jackson when he was stabbed. A correctional officer searched Masters immediately after Jackson’s murder but found no contraband, blood, cuts, or abrasions. Masters testified that he did not stab Jackson.

Hoze testified that he withdrew from the BGF after Sergeant Burchfield’s murder. He stated that he and Masters were no longer friends because Masters had threatened to kill him and his entire family. Hoze said he “wanted [Masters] dead.”

Masters refused to answer any questions about Sergeant Burchfield’s murder or the BGF.

c. Masters’s Social History

Masters, various family members, and others familiar with his social history testified about his family and his childhood and teenage years.

Craig Haney was a psychology professor. In his testimony, he divided Masters’s social history into five stages. The first stage, from birth to age six, was a period of neglect and abandonment by his family. The second stage, from ages six to nine, was a period of positive social development, although it was tinged with pain due to Masters’s separation from his biological family. The third stage, from ages nine to 15, was a period of distrust of adult authority figures amid increasing influence by neighborhood gangs. The fourth stage, from ages 15 to 18, was a period marked by both negative and positive experiences in institutional settings. The fifth stage was Masters’s imprisonment in San Quentin, which Dr. Haney described as being placed in “the worst prison in the California system at the worst time in its history.”

Cynthia Campbell was Masters’s mother. She had a total of eight children with five men. Masters was her fifth child and the second of three fathered by her husband at the time, Billy Masters. The marriage was unstable and beset with violence. The family lived on welfare and moved frequently due to lack of money for rent. Billy frequently physically abused Campbell and threatened to kill her. When Masters was about two years old, Billy set a fire in their house. Masters’s maternal aunt and uncle arrived to find the children screaming and crying. The parents were fighting. Billy brandished a straight razor and threatened to kill them all. Masters’s uncle hit Billy with a pipe until he ran away. He did not return to the family. Masters had no childhood memories of his father.

After Billy left, Campbell became a prostitute and drug user. She essentially provided no care for the children. Eventually, they moved into a house with Otis Harris. This relationship was also a violent one. On one occasion, Masters and his siblings hid under a bed while Harris beat Campbell until she lost consciousness. The children continued to be neglected. Campbell had sex with numerous men in the house. Masters sometimes secretly watched. Harris and Campbell sold and took drugs in the house. Masters felt that things were best when Campbell and Harris were high on drugs because they would be more calm.

After his mother gave birth to twins, Masters’s older sister was responsible for taking care of the girl while Masters was responsible for taking care of the boy. The boy later died of sudden infant death syndrome. Often the children would be left alone for days without sufficient food. Campbell would sometimes arrange for other prostitutes to babysit, and they would occasionally give Masters alcohol. The house was dirty, as were the children. Eventually, people at the children’s schools began washing the children and their clothes.

Harris never exhibited any affection toward Masters. He hit Masters numerous times with his hands and an electrical cord. When Masters was four or five years old, he stood with a butcher knife over a sleeping Harris and contemplated stabbing him.

When Masters was six years old, the children were placed in foster care. Masters was separated from his siblings and placed with an elderly couple, the Procks. They took good care of him. Masters became particularly close to his foster mother. When Masters was around nine years old, Mrs. Prock died, and he was placed in a new foster home. He stayed there for about a year. His new foster parents favored their biological children and treated the foster children as the “chorekeepers” of the house. Masters began running away to the Procks’ house, particularly after he was not allowed to attend Mrs. Prock’s funeral.

Masters was then placed in several juvenile facilities. He preferred this to living with foster parents, although he occasionally ran away. Masters received sporadic visits from various family members.

When Masters was 12 years old, he was placed in the home of his maternal uncle and his wife. He lived with them and their two children for several years. During that time, Masters’s mother bought him a bike and used him as a courier for delivering drugs to her customers. Masters also became exposed to gangs through his older half brother, Tommy. After the incident in which he shot at a house, Masters was placed in juvenile camps for a number of months. When he returned to his aunt’s house, he became heavily involved with a gang. He had numerous disciplinary problems at school and was disrespectful toward authority figures. The school Masters attended was considered a “holding tank” for problem students. At one point, his social worker had him committed to a hospital for psychological treatment, including forced medication.

When Masters was 15 years old, he was placed under the care of the California Youth Authority. Violence between the wards and between the staff and the wards was prevalent. Masters had testified in a civil trial regarding the conditions at a facility where he was housed.

When Masters was 16 years old, he was transferred to a different institution. Masters responded well to the emphasis on positive reinforcement. He excelled in sports, was placed on the academic honor roll, and obtained his high school diploma. A counselor testified that Masters was the “top ward in the dorm.” After a year, Masters was paroled to a group home in Stockton.

Masters’s family reunited, and he returned to Southern California to join them. Masters’s mother was still using drugs. At times, she used Masters to deliver drugs for her. Masters stayed at his aunt’s house, but he was surrounded by gangs and criminal activity. After his arrest for robbing a gas station, on the night of his 18th birthday, a group of deputies at the jail beat him up.

d. Prison Conditions

Robert Slater was a staff psychiatrist at San Quentin from 1982 to 1984. He testified about the conditions at the prison. At that time, San Quentin housed very serious criminals, including many who had created problems at other prisons. The overcrowding of violent prisoners created “oppressive” conditions. The level of violence between inmates was so high that they generally had a “sense of impending and immediate annihilation.” In 1984, 12 inmates were murdered and several more who had been assaulted would have died if they had not received immediate medical attention. Much of the violence was racially motivated. The presence of armed guards on the gunrails of the prison and the frequent firing of warning shots added to the level of fear. In Dr. Slater’s opinion, the only thing that prevented riots was the near-constant lockdowns. Dr. Slater believed that the constant fear led the inmates to misperceive potential threats, which could lead to their taking preemptive actions in what they believed was self-defense.

John Irwin was a sociology professor and former inmate. He agreed that the conditions at San Quentin caused prisoners to become paranoid. He explained that prison culture also encouraged inmates to bolster their reputations by falsely claiming they committed acts of violence.

Dr. Haney testified that the fearful conditions at San Quentin fostered the formation of the prison gangs. The gangs provided structure and security for their members.

e. Masters’s Future

Masters testified that he had matured and no longer wanted to participate in violence or criminal activities. Masters testified that his mother’s death made him realize that life was precious. He claimed to have withdrawn from the BGF, even though doing so meant he might be attacked. According to Masters, he had intervened in several potentially violent situations and helped to resolve them peacefully.

Dr. Haney testified that he believed Masters had recently undergone significant changes that included self-improvement, openness, critical thinking, and the ability to have a perspective apart from an institutional setting. Dr. Haney trusted Masters’s statement that he had withdrawn from the BGF and noted that he had received only three minor disciplinary infractions since 1986. Dr. Irwin similarly testified that it is common for inmates to phase out of gangs as they age. A correctional officer testified in rebuttal, however, that he had recently observed Masters appearing to lead BGF classes on the exercise yard.

Dr. Haney testified that Masters would adapt well if he were to be confined under a life sentence in a highly structured prison environment.

II. Pretrial Issues

A. Denial of Pretestimony Lineup and Questioning

Masters contends that rulings by the magistrate at the preliminary hearing and by the trial court erroneously prevented him from testing the accuracy of Willis’s identification of him. In this claim, as in most of his claims on appeal, Masters contends that the asserted error or misconduct he raises infringed his state and federal constitutional rights to a fair and reliable trial. What we stated in People v. Boyer (2006) 38 Cal.4th 412, 441, footnote 17 [42 Cal.Rptr.3d 677, 133 P.3d 581], applies in the present case: “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.”

In order to test Willis’s ability to identify Masters, Johnson, and Woodard, the magistrate granted their request that they not initially be in the courtroom while he testified at the preliminary hearing. Outside their presence, Willis testified he had known each of them for a few months before Sergeant Burchfield was murdered. Willis testified that he had seen Masters as he walked past Willis’s cell and that they had met several times on the exercise yard.

Masters’s counsel then asked Willis a series of questions about Masters’s appearance:

“Q. Mr. Masters is about maybe five seven in height, right?

“A. Somewhere—yes, maybe.

“Q. And he’s probably about, what, maybe 195, 200 pounds?

“A. I don’t think he’s that heavy.

“Q. About 190?

“A. I don’t think he’s that heavy.

“Q. 140, what?

“A. Somewhere up in there. Between 140, 160 pounds.

“Q. He’s very—very light skinned; isn’t he?

“A. No, he’s not.

“Q. Very dark skinned?

“A. Dark skinned.

“Q. He didn’t have any scars or other marks on his face; did he?

“A. I don’t remember.

“Q. He didn’t have any tattoos on his body anywhere?

“A. I don’t remember.

“Q. Didn’t have any tattoos on his face; did he?

“A. I don’t remember.

“Q. He wore glasses; is that right?

“A. That is correct.

“Q. He had a big afro; is that right?

“A. That is wrong.

“Q. He had a small afro?

“A. Yes, he kept his hair about as short as mine.

“Q. He didn’t have any facial hair [between January and June 1985], did he?

“A. I don’t remember. [¶] . . . [¶]

“Q. Okay. He’s a fellow probably in his early 30s when you saw him?

“A. He looked to be.

“Q. Early—early 30s?

“A. He looked to be in his 30s, I don’t know whether it was early or late, I’m just saying he looked to be in his 30s. He looked rather old to me.

“Q. He looked like mid to latter part of his 30s maybe, maybe that old?

“A. I don’t know, it just looked like maybe he was in his 30s. Maybe early 30s—

“Q. Okay.

“A. Or late 20s. [¶] . . . [¶]

“Q. He had an earring in his left ear, right—was it left—left ear; didn’t he? [¶] ■ ■ ■ [¶]

“A. I ain’t never seen him with an earring.

“Q. Okay. His tone of voice is very loud, deep voice, right?

“A. Squeaky voice.

“Q. Squeaky voice. He’s built rather stocky, rather heavy?

“A. Slim. [¶] . . . [¶]

“Q. You don’t really remember very much about what he looks like; do you?

“A. Yes, I remember what he looks like. But he was—he was bald headed at that time, kind of chubby, he seemed to be kind of chubby.

“Q. Okay. He was bald on the top of his head?

“A. No, he kept his hair bald, all his hair, he kept his hair shaved off.

“Q. And he was kind of fat, you said?”

“A. Kind of husky. You’re talking about Masters, right ?

‘“Q. Masters, correct.

‘“A. That’s correct. He was kind of heavy like, husky—

‘“Q. When you say—

‘“A.—chubby.

‘“Q.—chubby or husky, do you mean muscular or just fat ?

‘“A. Well, he had a little stomach on him, weighed about maybe 175, 180.

‘“Q. Okay. What else do you remember about him, about his physical appearance?

‘“A. At that time he wasn’t toned, by that I mean no definition in his muscular—you know, that’s about it.”

Outside of Willis’s presence, Masters’s counsel informed the magistrate that Masters’s physical characteristics did not match Willis’s description. According to Masters’s counsel, at the time of Sergeant Burchfield’s murder Masters was 22 years old, six feet tall, neither heavy nor fat; had a tattoo on his left cheek; had a mustache; and did not wear his hair as Willis described it. Masters’s counsel also noted Willis’s descriptions of Andre Johnson and Lawrence Woodard were “relatively accurate.”

Masters’s counsel requested a lineup at which Willis could attempt to identify Masters. Based on Willis’s testimony “as to the number of times that [he met Masters] on the yard,” the magistrate denied the request. Masters, Johnson, and Woodard were brought into the courtroom but were not seated next to their respective attorneys. Willis returned to the courtroom and correctly identified each of them.

Much later during the prelintinary hearing, the magistrate disclosed the existence of a prison memorandum in which inmate Harold Richardson, another BGF member, had purportedly confessed his role in the planning of Sergeant Burchfield’s murder. At the time of the prelintinary hearing, Richardson was 31 years old, five feet seven inches tall, bald, and not wearing glasses. He weighed about 185 pounds and did not characterize his own skin as “dark.” Masters believed Richardson matched Willis’s description of Masters and asked to recall Willis as a witness. The magistrate denied his request.

After the preliminary hearing ended, Masters moved in the superior court to set aside and dismiss the information based in part on the magistrate’s refusal to order a lineup and to recall Willis to permit him to be further questioned about his identification of Masters. The court denied the motion.

Masters contends the court’s rulings denied him a fair trial. “In Evans v. Superior Court (1974) 11 Cal.3d 617 [114 Cal.Rptr. 121, 522 P.2d 681], we held that when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of mistaken identification, due process may require ‘that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate.’ [Citation.] ... A trial court ruling on a request for a pretrial lineup considers the benefits to be derived from it, the reasonableness of the request, and the resulting burden on the prosecution, the police, the court, and the witnesses. [Citation.] Further, ‘[t]he broad discretion vested in a trial judge or magistrate includes the right and responsibility on fairness considerations to deny a motion for a lineup when that motion is not made timely. Such motion should normally be made as soon after arrest or arraignment as practicable. We note that motions which are not made until shortly before trial should, unless good cause is clearly demonstrated, be denied in most instances by reason of such delay.’ [Citations.]” (People v. Abel (2012) 53 Cal.4th 891, 911-912 [138 Cal.Rptr.3d 547, 271 P.3d 1040].) On appeal following conviction, the defendant must demonstrate the prejudice suffered at trial caused by the magistrate’s asserted error during the preliminary hearing. (See People v. Mena (2012) 54 Cal.4th 146, 156 [141 Cal.Rptr.3d 469, 277 P.3d 160] (Mena), citing People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 [165 Cal.Rptr. 851, 612 P.2d 941].)

In response to Masters’s claim that the trial court erred in denying his request for a lineup, the Attorney General contends the request was untimely. We need not decide whether the request was timely because Masters fails to establish there is a reasonable likelihood that Willis would not have been able to properly identify him at the preliminary hearing. The magistrate ruled, and we agree, there was no reasonable likelihood of misidentification that a lineup could have resolved because Masters and Willis knew each other and had spent time together. Masters does not dispute that he and Willis were confined in the same section in San Quentin for the months preceding Sergeant Burchfield’s murder and that Willis had several opportunities to see him. Willis’s initial responses during the preliminary hearing to leading questions that described Masters’s physical characteristics do not necessarily cast doubt on his ability to identify the participants of the conspiracy.

Even if we were to assume that the magistrate erred by denying Masters the opportunity to confront Willis with the similarities between his description of Masters and Richardson’s physical characteristics, Masters fails to demonstrate that it is reasonably probable that he would have obtained a more favorable result absent the error. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243] (Watson); Mena, supra, 54 Cal.4th at pp. 161, 164 [applying Watson standard to denial of pretrial lineup because there is no federal constitutional right to a lineup].) Generally speaking, it “ ‘has long been recognized that “[i]n the case of in-court identifications not preceded by a lineup . . . , the weaknesses, if any, are directly apparent at the trial itself and can be argued to the court and jury (Mena, supra, 54 Cal.4th at p. 162.)

At trial, Masters stood before the jury, and his counsel cross-examined Willis:

“Q. Mr. Masters, you’d say, is about six feet tall?”

‘“A. Yes. Six foot, six-one.

‘“Q. Got hair on his head?

“A. Yes.

”Q. Mustache?

“A. Really can’t see. It’s kind of blurry.

“Q. But he’s got hair on his face? Mustache, goatee?

“A. Yeah. Looks kind of dark.

“Q. Slender, slim?

“A. Looks husky around top.

“Q. He’s got a rather distinctive tattoo on his left cheek, doesn’t he?”

‘“A. I [saw] it the last time at the preliminary hearing. [¶] . . . [¶]

‘“Q. Have you ever seen Mr. Masters wear glasses?

“A. I don’t recall. [¶] . . . [¶]

‘“Q. Now this person that you claim was Mr. Masters on the yard, Mr. Willis, he wasn’t six foot or six feet one, was he?

‘“A. Didn’t appear to be.

‘“Q. In fact, he was about five feet seven.

“A. Like I say, I recall describing him to that effect in the preliminary hearing, but I know Mr. Masters. I’ve had so many meetings with Mr. Masters it’s pathetic.”

Masters had the opportunity at trial, and availed himself of the opportunity, to challenge in front of the jury Willis’s identification of him. Moreover, he had the opportunity to argue to the jury the weaknesses in Willis’s identification, including the lack of a lineup and the possible suggestiveness of the procedure employed at the preliminary hearing.

Even if the magistrate had permitted Masters to examine Willis about Richardson once his existence had been disclosed, there is no reasonable probability that the magistrate would have disbelieved Willis’s identification of Masters as the person he met with several times on the exercise yard. Willis knew Richardson and Masters, and Willis also knew who participated in the conspiracy. In addition, Willis identified Masters at trial as one of the conspirators, and the jury heard evidence about the weaknesses in Willis’s prior identification.

Moreover, a note written in Masters’s handwriting also implicated him in the conspiracy. Thus, even if we were to assume that Willis had met with Richardson and not Masters in the exercise yard to discuss the attack, Masters’s guilt was independently established by this and other notes. Masters’s statements to Evans also confirmed his role in the conspiracy.

Further, even if we were to assume that the magistrate erred by denying his requests for a pretrial lineup and a further opportunity to examine Willis, Masters fails to demonstrate prejudicial error because the magistrate’s rulings did not deny Masters a reasonable opportunity to challenge Willis’s identification of him or otherwise deprive him of a fair trial. Masters’s related claim that the trial court erred by denying his motion to dismiss necessarily fails for the same reasons.

B. Denial of Motion to Sever

Before the start of the trial, Masters moved to sever his case from Johnson’s and Woodard’s on the ground he intended to introduce the statements from three other BGF members, including Harold Richardson and Charles Drume. Masters argued for severance because these inmates’ statements, discussed more fully below, implicated Johnson and Woodard but did not refer to Masters. The trial court, noting that Richardson’s and Drume’s statements were likely inadmissible, denied Masters’s motion to sever. As noted, Johnson’s case was ultimately severed from Masters’s and Woodard’s, and was heard by a separate jury.

Masters contends that the trial court abused its discretion by denying his motion to sever his trial. Specifically, Masters contends severance was required because admission of the statements would have violated Johnson’s and Woodard’s rights, and because the statements made his defense antagonistic to Johnson’s and Woodard’s.

There is a statutory preference for joint trials of jointly charged defendants. (§ 1098.) “ ‘The court may, in its discretion, order separate trials if, among other reasons, there is an incriminating confession by one defendant that implicates a codefendant, or if the defendants will present conflicting defenses. [Citations.] Additionally, severance may be called for when “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” [Citations.] [¶] We review a trial court’s denial of a severance motion for abuse of discretion based on the facts as they appeared when the court ruled on the motion. [Citation.] If we conclude the trial court abused its discretion, reversal is required only if it is reasonably probable that the defendant would have obtained a more favorable result at a separate trial. [Citations.] If the court’s joinder ruling was proper when it was made, however, we may reverse a judgment only on a showing that joinder “ ‘resulted in “gross unfairness” amounting to a denial of due process.’ ” ’ ” (People v. Homick (2012) 55 Cal.4th 816, 848 [150 Cal.Rptr.3d 1, 289 P.3d 791] (Homick).)

Masters contends that Richardson’s and Drume’s statements implicated People v. Aranda (1965) 63 Cal.2d 518 [47 Cal.Rptr. 353, 407 P.2d 265] (severance may be appropriate when the prosecution proposes to introduce into evidence an extrajudicial statement of one defendant that implicates a codefendant) and Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620] (nontestifying codefendant’s extrajudicial statement that incriminates the other defendant is inadmissible at a joint trial) and therefore warranted severance. In the typical Aranda-Bruton situation, the prosecutor will seek to introduce at trial a statement made by one codefendant that implicates another codefendant. Here, however, Masters sought to introduce statements made by purported uncharged accomplices, and on appeal he contends People v. Hill (1992) 3 Cal.4th 959, 994 [13 Cal.Rptr.2d 475, 839 P.2d 984], governs the introduction of such statements. Even if we were to assume that an uncharged accomplice’s statements may be subject to Aranda-Bruton, in this instance it would be Johnson and Woodard who would have been prejudiced and not Masters, who was the proponent of the proffered statements.

Masters also contends that Richardson’s and Drume’s statements warranted severing his trial from Johnson’s and Woodard’s because the statements created conflicting defenses. But we need not decide whether Richardson’s and Drume’s statements would have created conflicting defenses that would have required severance because, as discussed more fully below, the trial court found the proffered statements unreliable and thus inadmissible. It was the court’s evidentiary rulings, and not its ruling on the severance motion, that precluded Masters from using the evidence he sought to admit. As such, it properly denied Masters’s motion to sever because the record does not disclose conflicting defenses in the absence of the excluded statements.

C. Denial of Immunity for Witnesses

Masters contends BGF member Harold Richardson should have been granted immunity so that he could have been compelled to testify for Masters.

At the preliminary hearing, Masters called Richardson as a witness, and Richardson asserted his constitutional privilege against self-incrimination. Masters then requested that the prosecutor grant Richardson immunity and, in the alternative, moved for the magistrate to grant immunity. The prosecutor declined Masters’s request and objected to his motion.

The magistrate then conducted an evidentiary hearing at which defense counsel examined the prosecutor. The prosecutor testified that he did not offer immunity to Richardson because Richardson had refused to a give a tape-recorded statement. The prosecutor explained that, by contrast, he had offered Willis immunity because his statements were corroborated by other evidence. The prosecutor was willing to grant immunity to another potential witness whose statements also were corroborated by other evidence and tape-recorded. No other potential witnesses were offered immunity.

Eventually, because defense counsel repeatedly asked questions that were beyond the scope of the hearing, the magistrate vacated his decision to conduct an evidentiary hearing, struck the prosecutor’s testimony, and denied Masters’s request to examine other witnesses. The magistrate also denied Masters’s request for the production of writings concerning the prosecutor’s offers of immunity. The magistrate then denied Masters’s motion for a grant of immunity to Richardson.

Preliminarily, we note that it is unusual for a magistrate to conduct such an evidentiary hearing. Certainly, a court may inquire of any counsel to solicit information it needs to rule on a motion. As an officer of the court, counsel so questioned has an obligation to answer the court’s inquiry honestly and, in the absence of any appropriate claim of privilege, completely. We express no opinion, however, as to the propriety of procedures employed by the magistrate in this case.

1. Judicially Conferred Immunity

After the preliminary hearing had ended, Masters moved in the superior court to set aside and dismiss the information based on the magistrate’s refusal to grant Richardson immunity, among other grounds. The court denied the motion.

At trial, outside the presence of the jury, Masters called Richardson as a witness, and Richardson repeatedly asserted his privilege against self-incrimination. The trial court then stated it did not intend to grant judicial immunity to Richardson, and Masters did not press the issue.

We previously have “characterized as ‘doubtful’ the ‘proposition that the trial court has inherent authority to grant immunity.’ ” (People v. Stewart (2004) 33 Cal.4th 425, 468 [15 Cal.Rptr.3d 656, 93 P.3d 271] (Stewart).) We have noted that “the power to confer immunity is granted by statute to the executive.” (Ibid., citing § 1324.) Moreover, “prosecutors are not under a general obligation to provide immunity to witnesses in order to assist a defendant.” (People v. Williams (2008) 43 Cal.4th 584, 622 [75 Cal.Rptr.3d 691, 181 P.3d 1035]; see People v. Samuels (2005) 36 Cal.4th 96, 127-128 [30 Cal.Rptr.3d 105, 113 P.3d 1125] [prosecutor did not commit misconduct by not granting immunity to a nonessential defense witness who asserted her right against self-incrimination and refused to testify].)

At the same time, we have acknowledged that the Third Circuit in Government of Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964, 972 [17 V.I. 623] (Smith), articulated limited circumstances in which judicially conferred use immunity might be constitutionally necessary. (See Stewart, supra, 33 Cal.4th at pp. 468-469; People v. Hunter (1989) 49 Cal.3d 957, 974 [264 Cal.Rptr. 367, 782 P.2d 608].) Smith held that a court has the inherent authority to grant immunity if the failure would otherwise prevent the defendant “from presenting exculpatory evidence