People v. Salazar (63 Cal. 4th 214, 2016)

Opinion

CORRIGAN, J.

A jury convicted defendant Magdaleno Salazar of the first degree murder of Enrique Guevara, with personal use of a firearm. Defendant admitted the truth of a special circumstance allegation that he had a prior murder conviction. After a penalty trial, the jury returned a verdict of death, and the court imposed that sentence. We affirm the judgment in its entirety.

I. FACTS

A. Guilt Phase

1. Prosecution

Around 2:30 a.m. on July 25, 1993, Kathy Mendez and her friend Cynthia Bonilla were at a Jack in the Box restaurant. They met defendant, whom Mendez knew as “Toy,” and Enrique Echeverría, whom she knew as “Rascal.” Mendez, defendant, and Echeverría were all members of the Harpys gang, based in southwest Los Angeles. Defendant drove the four of them to another restaurant, the Yoshinoya Beef Bowl, at the corner of Figueroa and 30th Streets. The Beef Bowl was on the fringe of Harpys territory, and was sometimes frequented by members of other gangs.

Mendez, defendant, and Echeverría were the only Harpys gang members present in the Beef Bowl. Defendant was wearing a white shirt and Echeverría a black one. Mendez heard the men say they needed to “take care of the neighborhood,” and should not be “caught slipping.” This meant they intended to control the Beef Bowl as gang territory, and not be caught unaware by rival gang members.

Two other customers testified that they were approached in the Beef Bowl that night and “hit up” by gang members asking where they were from, a way of seeking their gang identification. Arnold Lemus said he was eating with two friends when “some guys came over and they hit us up.” The man doing the talking was wearing a white shirt. Lemus told him that he and his friends were a “party crew,” meaning a group that hung out together and went to parties. The man in the white shirt “thrjew] out” the name “Harpys,” to which Lemus responded “it was cool, because I didn’t have nothing against nobody like that.” Juan Salazar, one of Lemus’s companions, had difficulty remembering on the witness stand. In a statement to police at the time of the events, he had said that one of the people who approached them was wearing a white shirt and looked like a gang member. At trial, he recalled only that one of the men “hit [Lemus] up,” asking “where we from,” meaning “what neighborhood are you from, what gang.”

While Mendez waited in a line of customers, defendant and Echeverría left the restaurant and stood just outside. As the door opened, Mendez heard defendant tell Echeverría to get the “cuete,” a slang term for a gun. Echeverría retrieved something from the car and put it in his waistband. Mendez then saw a man walk past the Beef Bowl. He was shirtless, had a cast on his leg, and to Mendez he looked like a gang member. Defendant and Echeverría confronted this man in front of the Beef Bowl and began wrestling with him. The front of the restaurant was glass from floor to ceiling. Mendez heard gunshots, and saw defendant shooting in the direction of the cafe next door, the Au Rendezvous. She threw herself to the floor. There were “a lot of shots,” maybe eight or nine.

When the shooting stopped, Mendez went outside. Defendant was half-carrying Echeverría toward the car. Drops of blood marked their path. Defendant was holding what looked like a nine-millimeter pistol. He helped Echeverría into the car and drove away. Mendez went into the Au Rendezvous, where the man with the cast on his leg was lying face down. There was a lot of blood.

Emilio Antelo was the Beef Bowl security guard. He was standing outside, between the Beef Bowl and the Au Rendezvous, when a car pulled up and parked. A teenaged passenger got out and entered the Beef Bowl. As the driver approached, Antelo prepared to stop him because Beef Bowl policy required customers to wear shirts. Antelo then heard a “metallic sound,” turned, and saw a man cocking a pistol. The gunman walked past Antelo and toward the shirtless man. Antelo heard another pistol being cocked, and saw a second gunman approach the shirtless man, who appeared to be unarmed. Both guns were semiautomatic pistols. All three men were Hispanic. The gunmen said something to the other man, which Antelo could not understand. Antelo went inside the Beef Bowl, and heard gunfire. When the shooting stopped, he told the cook to call the police, went outside, and saw the shirtless man on the ground.

A third eyewitness, Patrick Turner, was walking past the Beef Bowl on his way to the Au Rendezvous. Turner had great difficulty recalling the events; most of his testimony was reconstructed from his statement to police at the scene. He saw a small car drive up and park. The passenger went into the Beef Bowl, but the driver was confronted by two men, one wearing a white shirt and the other a black one. They asked him, “don’t I know you from somewhere?” The three began “arguing and scuffling.” They wrestled with each other, moving into the Au Rendezvous. The man in the black shirt stood in the doorway shooting. He and the man in white, who was limping, then went to a car and drove off. The black-shirted man was in the driver’s seat.

The victim was Enrique Guevara. His cousin, Giovanni Guevara, was with him on the night of the shooting but had succumbed to a fatal disease by the time of trial. The parties stipulated that Giovanni would have testified as follows: When he and his cousin went to the Beef Bowl, Enrique was not wearing a shirt and had a cast on his leg. Enrique parked the car in front of the Au Rendezvous. As Giovanni entered the Beef Bowl, he saw “two gangster-looking guys.” Moments later he heard gunshots, but did not see who was shooting. He was told his cousin had been shot to death.

Sabino Nungaray, a Harpys gang member, testified that around 3:00 on the morning in question, defendant knocked on his door and told him that Echeverría had been shot. Nungaray went with them to a hospital. As he helped Echeverría into the building, defendant drove away.

Fifteen bullet casings were recovered, both inside and outside the Au Rendezvous. Twelve were nine-millimeter, fired from the same gun, and three were .25 caliber, fired from another weapon. Guevara had been shot nine times, in the chest, the back, the tops of both shoulders, the back of the head, the neck, the back of the upper arm, the forearm, and the hand. There was no soot or stippling around the wounds, indicating that they were inflicted from a distance of greater than two feet. Three of the bullet fragments recovered from Guevara’s body were from a nine-millimeter weapon. Six others could not be assigned a caliber.

2. Defense

Echeverría testified for the defense. He told the jury that he had shot and killed Guevara, had been convicted of the killing, and was currently in prison. He said he and defendant were standing outside the Beef Bowl when a car drove by. The occupants were “staring us down” and “looked like gang-bangers.” Echeverría went to his car, retrieved a nine-millimeter automatic, cocked it, and placed it in his waistband. The other car parked, and the passenger went into the Beef Bowl. Defendant followed him inside. The driver emerged, shirtless, and appeared to be “under the influence.” He produced a .25-caliber automatic and said something to Echeverría including the word “Trece,” which Echeverría took as a gang reference. Then the man began shooting.

Echeverría said he was shot three times. As he reached for his gun, his assailant came closer and shot him three more times. Echeverría grappled with the man and fired all 14 rounds in his clip as the two wrestled. Echeverría fell on top of his attacker in the Au Rendezvous. Defendant appeared and helped him to the car. Echeverría had dropped his gun, which defendant retrieved. Defendant drove to Nungaray’s house, then to the hospital.

A defense investigator testified that during an interview in the prosecutor’s office shortly before trial, Kathy Mendez had said she did not actually see anyone firing a gun. Someone else had told her who was shooting. On cross-examination, the investigator acknowledged that Mendez said this before she was able to review her earlier statements. Mendez then acknowledged that her memory of the events had been better when she gave those statements.

The parties stipulated that Guevara had gunshot residue particles on his hands. Defendant admitted the special circumstance allegation that he had a prior conviction of first degree murder.

B. Penalty Phase

1. Prosecution

The deputy district attorney who prosecuted defendant for the prior murder testified about the circumstances of that crime. Defendant and two fellow Harpys were visiting friends when they saw a neighbor leave the apartment building. Believing he might be a drug dealer who had money, they decided to rob him when he returned. The victim was shot and killed in the hallway. The theory of the prosecution was that defendant was an aider and abettor, not the shooter.

Guevara’s mother and sister testified about the impact his death had on them.

2. Defense

Defendant’s mother and sister, and a longtime friend, testified on his behalf. His family spoke about his affectionate nature, and their attempts to keep him from associating with gang members. Defendant’s friend said he had counseled her to stay away from gangs, and helped change her life.

II. DISCUSSION

A. Pretrial Issues

1. Use of Juvenile Murder Conviction as a Special Circumstance

Defendant was 17 years old when he committed the prior murder, but was tried and convicted as an adult. He contends the Eighth Amendment barred the prosecution from alleging that conviction as a special circumstance, because he was a juvenile at the time of the crime. Defendant concedes in his opening brief that prior violent conduct by a juvenile, including murder, is properly considered at the penalty phase as an aggravating circumstance. (People v. Bivert (2011) 52 Cal.4th 96, 122-123 [127 Cal.Rptr.3d 261, 254 P.3d 300] (Bivert), and cases therein cited.) However, he notes that the special circumstance provided by section 190.2, subdivision (a)(2) is different from the aggravating factor provided by section 190.3, factor (b). The special circumstance serves the narrowing function of determining eligibility for the death penalty, whereas the aggravating factor allows consideration of prior criminal activity as part of an individualized penalty determination. (People v. Bacigalupo (1993) 6 Cal.4th 457, 468-469 [24 Cal.Rptr.2d 808, 862 P.2d 808].)

Defendant asks us to apply the Eighth Amendment’s ban on imposing the death penalty for crimes committed by juveniles, established in Roper v. Simmons (2005) 543 U.S. 551 [161 L.Ed.2d 1, 125 S.Ct. 1183], to preclude the state from seeking the death penalty “solely on the basis of a crime [he] committed while still a minor.” The flaw in this argument is that defendant did not face the death penalty as punishment for the crime he committed as a juvenile. He faced that penalty for murdering Guevara when he was an adult, having suffered a prior murder conviction. (Cf. Bivert, supra, 52 Cal.4th at p. 123.) “As we have previously noted, Roper v. Simmons, supra, 543 U.S. 551, spoke only to the question of punishment for juvenile offenses . . . .” (Bivert, at p. 122, citing People v. Bramit (2009) 46 Cal.4th 1221, 1239 [96 Cal.Rptr.3d 574, 210 P.3d 1171].) Defendant provides no authority for the proposition that it is unconstitutional to base a special circumstance on a prior conviction for a murder committed as a juvenile. Adults who commit first degree murder despite having a previous murder conviction, whether or not the prior offense occurred when they were juveniles, are a distinct subclass of murderers that can “with reliability be classified among the worst offenders.” (Roper, supra, 543 U.S. at p. 569; see People v. Bacigalupo, supra, 6 Cal.4th at pp. 467-468.)

Furthermore, defendant offers no persuasive reason why it should be constitutional for a jury to consider a murder committed as a juvenile for the purpose of its penalty determination, but unconstitutional for the state to include convictions for such murders in the prior-murder-conviction special circumstance. It is true that special circumstances and aggravating factors serve different functions in our capital scheme, but in neither instance is the defendant being punished for juvenile misconduct. In both instances, the past conduct only serves as a guiding consideration: a prelintinary one, as a special circumstance determining death eligibility for a murder committed as an adult, and an ultimate one, as an aggravating factor to be weighed in the final determination of the appropriate penalty for that murder. In People v. Pride (1992) 3 Cal.4th 195 [10 Cal.Rptr.2d 636, 833 P.2d 643], we noted that basing an aggravating factor on a conviction for a felony committed as a juvenile did not amount to added punishment for the prior crime. Rather, the jury was properly allowed to weigh the fact that the defendant committed the capital crime undeterred by his prior conviction. {Id. at p. 257.)

It does not violate the Eighth Amendment for the Legislature to conclude, as a matter of policy, that an adult who murdered as a juvenile, failed to learn from that experience, and killed yet again, is a person “within the narrowed class of murderers for whom death would be an appropriate penalty.” (People v. Bacigalupo, supra, 6 Cal.4th at p. 468.) The punishment is not imposed for the juvenile offense, but for the crime committed as an adult, considered in light of the defendant’s criminal history.

Defendant argues that section 190.2, subdivision (a)(2) creates an ‘“unsupportable and unreliable distinction” between two classes of adult capital defendants who have previously committed murder as juveniles: those whose prior murders were tried in juvenile court and those whose prior murders were tried in superior court. However, he fails to support this equal protection claim with a showing that the classification affects similarly situated groups. (See Manduley v. Superior Court (2002) 27 Cal.4th 537, 568 [117 Cal.Rptr.2d 168, 41 P.3d 3] (Manduley).) Equal protection principles do not foreclose the Legislature from concluding that those who commit a capital crime after being convicted of a juvenile murder in superior court are more culpable than those whose prior murder was adjudicated in juvenile court.

Defendant also contends that the use of juvenile murder convictions as special circumstances violates the Eighth Amendment and the constitutional guarantees of due process and equal protection because California’s juvenile transfer policies permit prosecutors and juvenile courts to exercise arbitrary discretion over which homicides result in murder convictions instead of juvenile court adjudications. At the time of defendant’s prior conviction, he was presumptively unfit for treatment under the juvenile court law, due to the serious nature of the charged crime. (See Manduley, supra, 27 Cal.4th at pp. 548-549.) In Manduley, reviewing subsequent changes in the governing statutes that broadened the circumstances in which minors over the age of 14 can be prosecuted as adults, and increased the discretion of prosecutors to file such proceedings, we held that the expanded procedures violated neither due process nor equal protection principles. (Id. at pp. 562-573.) Our reasoning applies with even greater force to the policies in place when defendant was prosecuted as a juvenile.

Defendant seeks to distinguish Manduley on the basis that it says nothing about the constitutionality of juvenile transfer procedures in the context of rendering a defendant eligible for the death penalty. He claims that because a juvenile’s culpability, maturity, and capacity for treatment and consideration as an adult are not individually considered in the transfer process, a resulting conviction may not constitutionally serve as a special circumstance. We are not persuaded. The prior-murder special circumstance does not turn on the procedures underlying the prior conviction, but on the gravity of the conduct that is the necessary predicate of that conviction.

In People v. Trevino (2001) 26 Cal.4th 237 [109 Cal.Rptr.2d 567, 27 P.3d 283], we held that a prior murder committed in Texas when the defendant was 15 years old was a proper basis for a special circumstance finding, even though the defendant could not have been prosecuted as an adult in California at the time of that murder. We noted that under section 190.2, subdivision (a)(2), “the focus is on the conduct, not the age or other personal characteristics of the person who engaged in that conduct. It is the offense, and not necessarily the offender, that must satisfy statutory requirements . . . (Trevino, at p. 241.) Trevino rejected the idea that “ ‘every time the prosecution allege [s] a murder conviction from a foreign jurisdiction, the trial court must determine whether the guilt ascertainment procedures of that jurisdiction afforded the same procedural protections as those in California.’ ” (Id. at p. 243, quoting People v. Andrews (1989) 49 Cal.3d 200, 222 [260 Cal.Rptr. 583, 776 P.2d 285].) “Because the age of the offender is not an element of first or second degree murder under California law, the prior-murder special circumstance may be based on a conviction in another jurisdiction for a crime for which the defendant could not have been tried as an adult in California.” (Trevino, at p. 244.)

Thus, the procedures for trying juveniles as adults have no bearing on whether a prior murder conviction qualifies as a special circumstance, so long as there is no constitutional infirmity in the procedures themselves. (See Manduley, supra, 27 Cal.4th at p. 573 [rejecting claim that prosecutorial discretion in charging juveniles as adults violates equal protection clause].) The high court’s Eighth Amendment jurisprudence on punishment for crimes committed by juveniles does not speak to the question of special circumstances for crimes they commit later as adults. When a murder committed by a juvenile results in an adult criminal conviction, there is no legal proscription against the use of that conviction as a special circumstance if the defendant murders a second victim after reaching the age of majority.

2. Adequacy of Voir Dire

a. Background

At an early stage of the pretrial proceedings, the court brought up the subject of voir dire. Defense counsel said he had a questionnaire, “unless you have your own you like to use.” The court replied that in the absence of pretrial publicity, it did not find questionnaires especially helpful. It had “done it both ways,” but told counsel it was inclined to do the questioning itself. The court invited counsel to watch it conduct such an oral voir dire in an upcoming case, adding that they could review the transcript if they were unable to attend. At a subsequent hearing, the court reaffirmed that it would handle the voir dire. Defense counsel stated, “that is fine,” and noted that he had sent the court a questionnaire that it “might want to take a look at.” Counsel said, “I am not strongly advocating a questionnaire, but ... it might be helpful.” The case was continued for further pretrial discussions.

Several weeks later, the court proposed bifurcating the special circumstance question from the rest of the guilt phase. If defendant were to be convicted, the special circumstance would be tried at a second phase. For purposes of the death-qualification voir dire, the jury would be informed of the charges against defendant, and told there was a special circumstance allegation, but the nature of that allegation would not be specified. The court thought this was the fairest way to “minimize potential prejudice” to defendant. Defense counsel agreed. The court then described in some detail the manner in which it would conduct voir dire, and asked counsel if there were any particular topics they wanted the court to explore. It said it would be happy to consider any questions they submitted.

Defense counsel objected to questioning prospective jurors in the presence of the other panelists. The court observed that “the law has been changed, as you know,” and said, “if I feel it’s not going well, then we’ll reconsider. But I’m comfortable we can do it that way.” Counsel maintained his objection, and brought up the questionnaire he had submitted. The court said it would review the questionnaire “for any particular questions,” but was not inclined to ask the jurors to complete it. Counsel lodged an objection.

Jury selection began on January 25, 1999. The court excused some panelists for hardship, personal knowledge of witnesses, or close ties to law enforcement. It gave the remaining candidates a clear, detailed, and conversational explanation of the voir dire process and the procedures followed in capital cases. It emphasized the importance of finding jurors who could be impartial and objective. It urged the panelists to give true and complete answers, telling them that if they wanted to discuss an answer privately they could do so at side bar. The court said the most important thing was for them to “tell us what you think,” not “what you think we want to hear. There are no right answers to the questions that I am going to be asking you this morning.” It added that it was “important that we learn what’s on your mind,” and advised the panelists not to be affected by the answers of others.

The court then explained the presumption of innocence, the prosecutor’s burden, the defendant’s right not to testify, and the jurors’ obligation to avoid prejudgment. Periodically, the court stopped to ask if anyone had a problem with the concepts it was discussing. It next described the phases of a capital trial, telling the panel that if defendant was found guilty of murder, it would next consider the special circumstance allegation. Only if the jury found it true would there be a penalty trial. If defendant was found not guilty, or the special circumstance not true, “we go home.” The court noted, “now, some of you might be saying, my goodness, judge, why are you even talking about this when the defendant is presumed to be innocent? Well, I talk about it because this is the only chance we have to talk to you about it. We don’t want to surprise you. And it is important for us to get your views and feelings about the death penalty.”

The court paused to make sure it was “getting through to folks,” calling on a panelist at random to ask if its explanations were clear. It then explained how the penalty phase would operate, generally describing the mitigating evidence the defense might put on (“the good things in the defendant’s life and background”) and the aggravating evidence the prosecution might present (“any bad things in the defendant’s background”). The only choices before the jury would be life in prison without parole, “which means the defendant will not be released,” and the death penalty, which is “normally done by lethal injection.” The court emphasized that if the mitigating evidence outweighed the aggravating evidence, or if the balance was equal, “the jury must vote for life.” Only if the aggravating evidence substantially outweighed the mitigating evidence could the death penalty be considered, and “even then the jury ... is not required to vote for death.”

The court advised the panel that the cost of incarceration was an irrelevant consideration, that the jury must accept the death penalty as more severe than life in prison, and that penalty considerations could not be allowed to affect the guilt determination. It then explained why the candidates’ feelings about the death penalty were important. “Jurors who would automatically vote for death are not allowed to sit in this kind of case, just as those who would automatically vote for life are not permitted to sit,” because “that kind of juror is incapable of weighing the mitigating evidence against the aggravating evidence.” “What we need are jurors who can consider all the evidence and make a decision based on the evidence.” The court added that it would be giving the panelists some time to think over what it was telling them.

In the court’s experience, people “break down into four categories.” Those in category one do not believe in the death penalty and could never vote to sentence someone to death. Persons in category two are strong proponents of the death penalty and would always vote for death if someone took a life. Those in category three believe in the death penalty, but could not bring themselves to vote for it in a particular case, even if they agreed that the aggravating evidence substantially outweighed the mitigating evidence. The court described in detail its past experience with jurors who, during the proceedings, discovered that the burden of sitting in judgment on the life of another was simply too much for them. It advised the candidates, “this is a serious matter, folks. Please think about this, give a lot of thought to it.” Category four candidates were those who could keep an open mind, consider all the evidence, and return a verdict of either life in prison or death.

The court told the panel that unlike at the guilt phase, where the prosecution would bear the burden of proof, there would be no burden of proof at the penalty phase. “It is up to the jurors to weigh all the evidence, to consider the arguments and to make a decision.” The court emphasized that it did not mean to tell the candidates how to decide the case, but needed to ascertain their feelings about the death penalty. It then took a recess, asking them to ponder their views in light of the court’s explanations.

After the recess, the court questioned the prospective jurors individually. It began by asking their reactions upon learning this was a capital case, giving them an open-ended opportunity to describe their thoughts, before asking which category they placed themselves in. When this pattern had been established, the court no longer directly asked for general reactions but simply called on the panelists and let them speak. If any panelist expressed any misunderstanding of the process, the court used the occasion to clarify the point for them and the panel as a whole. When the candidates identified the category to which they belonged, the court restated the views that characterized that category. It also periodically reaffirmed the serious nature of the process, and encouraged candid and independent answers.

After 27 jurors had been questioned, defense counsel objected to the way the court was conducting voir dire. He said, “It is too fast. I can’t follow it. You are asking, are you number one, two, three, four. It is just meaningless except [for] your definition that is recorded in memory before we took a break. I think you have to delve into these individuals a little more in depth.” The court disagreed, noting that the most recent panelist had explained “why she is a number one,” and declaring itself “very comfortable with the way this voir dire is going.”

After completing the questioning of the first panel, the court called counsel to the bench and said it intended to excuse all those who had placed themselves in categories one and three. Defense counsel objected again, this time on the ground that the court had not attempted to “rehabilitate” the prospective jurors in category three, instead asking leading questions as to their inability to impose the death penalty that allowed them to simply say, “that is right.” The court responded that it had no “obligation to rehabilitate anybody on this very serious issue.” It noted that the panelists had categorized themselves, its follow-up questions were intended to clarify their views, and they had provided a variety of responses with no indication of being influenced by the process. The court was “comfortable with excusing these people because I do believe that they have honestly told us that they have feelings that would substantially impair their ability to serve as jurors in this case.”

The court excused the 21 panelists who declared they were either opposed to the death penalty in all cases or unable to vote for death despite having no categorical objection to capital punishment. It then questioned the remaining candidates on matters unrelated to the penalty determination. When the voir dire was finished, it invited counsel to submit follow-up questions. Neither did, except for the prosecutor asking the court to ascertain whether one candidate who had previous experience on a capital case had participated in a penalty phase. There were no challenges for cause. The court moved then to peremptory challenges.

The next day, the court followed substantially the same procedure with a second panel of prospective jurors, providing a detailed introductory discussion and then questioning each panelist individually. Six candidates were excused because they did not believe in the death penalty and would never vote for it, two because they would always vote for death, including one person who volunteered that he would always vote for death if the defendant had a prior murder conviction, and two because they were not necessarily opposed to the death penalty but could not impose it themselves. Fifteen prospective jurors in this panel put themselves in category four, able to weigh the evidence and reach either result. However, the court failed to question three members of the second panel as to their death penalty views. These omitted candidates were included in the next round of voir dire on general topics. None of them spoke up to say they had not been asked for their death penalty views, nor did either attorney bring the omission to the court’s attention at any point.

At the end of the second panel’s general voir dire, the court again asked counsel if they had follow-up questions. Defense counsel obtained clarification on the nature of a criminal case in which one candidate had served as a juror, and asked the court to advise the panel not to draw adverse inferences because defendant was in custody or because the trial was being held on a floor of the courthouse with extra security screening. The court gave these advisements. Again there were no challenges for cause, and the court moved on to peremptories. The last juror seated, Juror No. 10, was one of those whose death penalty views were not explored.

b. Analysis

Defendant raises a series of challenges to the conduct of voir dire. He claims (1) questioning prospective jurors as a group about their views on the death penalty is an unconstitutional practice in general; (2) the court erred in this case by denying his particular request for sequestered voir dire; (3) the manner in which the court conducted voir dire made it impossible to determine whether the candidates held disqualifying views about capital punishment; (4) the four categories framed by the court for the candidates were defective; (5) relying on jurors’ self-assessments was improper; (6) the incomplete voir dire resulted in the seating of a juror who was not death qualified; and (7) the court’s questioning on general topics was flawed because it relied on panelists coming forward with information instead of being asked specific questions, particularly on the subject of gang membership.

Code of Civil Procedure section 223, adopted by initiative measure in 1990, requires the court to conduct voir dire in criminal cases. At the time of trial, former section 223 stated in pertinent part: “In a criminal case, the court shall conduct the examination of prospective jurors. However, the court may permit the parties, upon a showing of good cause, to supplement the examination by such further inquiry as it deems proper, or shall itself submit to the prospective jurors upon such a showing, such additional questions by the parties as it deems proper. Voir dire of any prospective jurors shall, where practicable, occur in the presence of the other jurors in all criminal cases, including death penalty cases.” (Added by Prop. 115, as approved by voters, Primary Elec. (June 5, 1990).) Here, the court invited counsel to submit follow-up questions, without seeking a showing of good cause.

We have repeatedly rejected constitutional challenges to the statutory authorization of group voir dire in capital cases. (People v. Chism (2014) 58 Cal.4th 1266, 1286 [171 Cal.Rptr.3d 347, 324 P.3d 183]; People v. Watkins (2012) 55 Cal.4th 999, 1011 [150 Cal.Rptr.3d 299, 290 P.3d 364]; People v. Thomas (2012) 53 Cal.4th 771, 789 [137 Cal.Rptr.3d 533, 269 P.3d 1109].) Defendant does not convince us to alter our view on this point. Indeed, the record in this case demonstrates the advantages of group voir dire. Panelists provided a variety of responses reflecting divergent views on the death penalty and their ability to serve on a capital jury. The court was able to educate each panel as a whole by explaining misconceptions reflected in some prospective jurors’ comments. The court emphasized to all that it was seeking each panelist’s own views, that there were no right or wrong answers, and that each person was in the best position to evaluate his or her own views. Instructions of this sort are more effectively delivered in a group setting than in individual interviews.

Nor does defendant show that the court abused its discretion in denying his request for individual questioning in this case. Defense counsel made a blanket objection to the conduct of group voir dire, without any specific claim that it would be “impracticable” under the particular circumstances. (Code Civ. Proc., § 223.) The court stated its willingness to reconsider its decision if “it’s not going well.” Counsel interposed no further objection to questioning the candidates in groups. No error appears. (See People v. Capistrano (2014) 59 Cal.4th 830, 863 [176 Cal.Rptr.3d 27, 331 P.3d 201] (Capistrano) [affirming the denial of a “generic, boilerplate” motion for sequestered voir dire “that made no attempt to show specifically why open court voir dire in this case was not practicable”].)

Next, defendant contends the method of voir dire employed by the court was insufficient to reliably determine whether the panelists’ views would disqualify them from serving as jurors at a penalty trial. “Recent decisions of this court have emphasized the importance of meaningful death-qualifying voir dire. We have reminded trial courts of their duty to know and follow proper procedure, and to devote sufficient time and effort to the process. [Citations.] At bottom, both the court and counsel ‘must have sufficient information regarding the prospective juror’s state of mind to permit a reliable determination as to whether the juror’s views [on capital punishment] would “ ‘prevent or substantially impair’ ” the performance of his or her duties.’ [Citation.] . . . [¶] Nonetheless, the trial court has broad discretion over the number and nature of questions about the death penalty. We have rejected complaints about ‘hasty’ [citation] or ‘perfunctory’ voir dire.” (People v. Stitely (2005) 35 Cal.4th 514, 539-540 [26 Cal.Rptr.3d 1, 108 P.3d 182]; accord, Capistrano, supra, 59 Cal.4th at p. 856; see Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct. 844] (Witt).) ‘“Unless the voir dire ‘is so inadequate that the reviewing court can say that the resulting trial was fundamentally unfair, the manner in which voir dire is conducted is not a basis for reversal.’ ” (People v. Contreras (2013) 58 Cal.4th 123, 143 [165 Cal.Rptr.3d 204, 314 P.3d 450] {Contreras).)

Defendant claims that in cases where we have rejected claims of hasty or perfunctory voir dire, the courts used written questionnaires as a supplement. (People v. Stitely, supra, 35 Cal.4th at pp. 538-540; People v. Navarette (2003) 30 Cal.4th 458, 486-488 [133 Cal.Rptr.2d 89, 66 P.3d 1182].) However, in People v. Hernandez (2003) 30 Cal.4th 835, 855-856 [134 Cal.Rptr.2d 602, 69 P.3d 446], we rejected such a claim without mentioning a questionnaire. And in Capistrano, supra, 59 Cal.4th at pages 854-856, we found no error in the court’s assertedly perfunctory dismissal of a number of prospective jurors based on oral questions about their death penalty views, before a questionnaire was passed out. We have never held that a questionnaire is required for purposes of voir dire. (People v. Carpenter (1997) 15 Cal.4th 312, 353 [63 Cal.Rptr.2d 1, 935 P.2d 708]; see People v. Fuiava (2012) 53 Cal.4th 622, 652 [137 Cal.Rptr.3d 147, 269 P.3d 568] (Fuiava).) There is no magic formula for qualifying prospective jurors in a capital case. Questionnaires may be problematic if couched in legalistic terms that are rigid or confusing. What is important is a process that allows the court and counsel to ascertain the panelists’ honest views about the death penalty and their ability to perform a juror’s duty.

The court’s approach in this case was personal and conversational, both with the panels as a whole and during individual questioning. It provided the panels with a comprehensive description of the trial process in a capital case, followed by specific inquiries about each candidate’s views on the question of penalty. This process was within the limits of the broad discretion our trial courts exercise over methods of voir dire. The introductory explanation of the juror’s role in a capital case was informal, clear, and detailed. The court took care to ensure that the concepts being conveyed were understood, and to impress on the panelists that it was not seeking to influence their answers or ultimate votes, should they be seated on the jury. It repeatedly emphasized the seriousness of the task at hand, as well as the personal and normative nature of penalty deliberations.

Once individual questioning began, many prospective jurors were asked an initial open-ended question about how they felt when they learned this was a capital case. The court carefully ascertained each candidate’s self-assessment. No panelist expressed confusion or professed inability to self-classify. Nor, contrary to defense counsel’s claim when he lodged his objection to the process, were the panelists simply asked to assign themselves a number. If a candidate referred to a number without describing the category, the court followed up with a clarifying question to ensure that the classification properly reflected the candidate’s views. And because the questioning took place in a group setting, everyone heard the description of the classifications many times.

Defendant’s complaints about the court’s failure to “rehabilitate” prospective jurors who said they would be unable to impose the death penalty are misplaced. Counsel are entitled to ascertain a prospective juror’s true views on the death penalty. Once those views have been made clear, the court is not obliged to question them further. Nor do counsel have the right to try to influence or characterize those views to gain a strategic advantage in the selection process. “If a prospective juror states unequivocally that he or she would be unable to impose the death penalty regardless of the evidence, the prospective juror is, by definition, someone whose views ‘would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” ’ (Witt, supra, 469 U.S. at p. 424.) Further inquiry concerning the juror’s ability to follow the law is not required.” (Capistrano, supra, 59 Cal.4th at p. 859.)

Defendant faults the court for not asking a number of the questions proposed in the questionnaire submitted by defense counsel. But merely proffering a questionnaire is no substitute for making specific objections to the court’s failure to ask certain questions. We have held that “a defendant may not challenge on appeal alleged shortcomings in the trial court’s voir dire of the prospective jurors when the defendant, having had the opportunity to alert the trial court to the supposed problem, failed to do so. It is not sufficient ... for a defendant merely to suggest that particular questions be asked, and then silently stand by when the trial court suggests and subsequently takes a different course—a trial court reasonably could view such silence as constituting assent to the court’s approach.” (Fuiava, supra, 53 Cal.4th at p. 653; accord, Contreras, supra, 58 Cal.4th at p. 144.)

Here, while defense counsel objected to the speed of the court’s questioning and its failure to “rehabilitate” prospective jurors who placed themselves in category three, he did not object to the court’s failure to ask any particular question. Accordingly, defendant’s claims in this regard are forfeited. (Fuiava, supra, 53 Cal.4th at p. 653; People v. McKinnon (2011) 52 Cal.4th 610, 640 [130 Cal.Rptr.3d 590, 259 P.3d 1186] (McKinnon); People v. Foster (2010) 50 Cal.4th 1301, 1324 [117 Cal.Rptr.3d 658, 242 P.3d 105].) Moreover, defendant’s complaints about the questioning of individual panelists regarding their death penalty views fails to account for the court’s lengthy prefatory remarks, describing the nature of the penalty phase and the jurors’ responsibility to weigh the evidence in aggravation and mitigation without allowing their personal views to predetermine the outcome.

We emphasize that the prospective jurors were properly informed of the extent of their discretion. Importantly, the trial court correctly and repeatedly instructed them that they were not required to vote for death. (See People v. Brown (1985) 40 Cal.3d 512, 538-544 [230 Cal.Rptr. 834, 726 P.2d 516].) In one representative instance, it told the panelists, “nobody is telling you you have to vote for death, okay. The law says that there is a presumption in favor of life, actually. . . . And [it] only allow[s] the jury to vote for death if the aggravating evidence so substantially outweighs the mitigating evidence that the jury believes that death is appropriate . . . .” The court reminded them that “[i]t is only if you have substantial disparity in favor of the aggravating [factors] that death can even be considered.” The court’s accurate descriptions of the extent of juror discretion informed the candidates’ self-categorization. In particular, the court’s explanations made it unlikely that panelists would have placed themselves in category three merely because they were reluctant to vote for death, or apprehensive that the law would require them to vote for death even if they thought it inappropriate in the particular case.

Even if it were preserved, there is no merit in defendant’s claim that the court failed to inquire whether the prospective jurors would always favor the death sentence over life without parole whenever the two alternatives are available. The court thoroughly explained to the panels that these would be the alternatives before the jury in a penalty phase. Its inquiry as to whether the candidates would always favor the death penalty was premised on that consideration. Similarly, while defendant faults the court for not questioning the jurors about their ability to fairly evaluate the evidence at the guilt phase, the court’s introductory comments emphasized that the guilt and penalty phases were separate, that the defendant was presumed innocent, and that “you can’t be looking over your shoulder” at the guilt phase by considering its implications as to penalty.

Defendant’s objections to the way the court framed its four categories likewise fail, in light of the court’s comprehensive review of what would be required of jurors during penalty deliberations. In that context, the categories were sufficient for the purpose of death-qualification voir dire. Defendant also complains that the voir dire unduly relied on prospective jurors’ self-assessments. Again the court’s explanations sufficiently focused the inquiry. When they were asked to categorize themselves, the candidates had in mind the court’s descriptions of the penalty phase and the qualities required of jurors. Further, the voir dire process necessarily depends to a significant degree on self-assessment. No one is in a better position to know the panelists’ views and inclinations than they themselves. Here the court sought direct, unequivocal answers from the candidates regarding their death penalty views, encouraging them to be honest and to keep in mind the importance of the matter. It was able to observe not only the content of the responses, but also the manner in which they were conveyed.

“[W]e apply a ‘rule of deference’ [citation] based on the trial court’s ability to assess the demeanor and credibility of the prospective [juror].” (Capistrano, supra, 59 Cal.4th at p. 859.) “ ‘[A] trial judge who observes and speaks with a prospective juror and hears that person’s responses (noting, among other things, the person’s tone of voice, apparent level of confidence, and demeanor), gleans valuable information that simply does not appear on the record. [Citation.] As the high court observed in Witt, supra, 469 U.S. 412, 428, “the question whether a venireman is biased has traditionally been determined through voir dire culminating in a finding by the trial judge concerning the venireman’s state of mind . . . based upon determinations of demeanor and credibility that are peculiarly within a trial judge’s province.” ’ ” (Capistrano, at pp. 855-856.)

Accordingly, we reject defendant’s challenges to the court’s method of conducting the death-qualification voir dire in this case. A closer question arises from the court’s failure to apply its method consistently with the second voir dire panel. It appears the court questioned these 28 panelists as they sat in the spectator section of the courtroom. In so doing it overlooked three candidates, including the one who became Juror No. 10. Defense counsel did not bring the oversight to the court’s attention, however, and therefore this claim of error is forfeited. Although at the time of defendant’s trial no objection was required to preserve a claim that a prospective juror was improperly excused based on his or her views of capital punishment, that rule has never been applied to other jury selection issues, including claims of inadequate voir dire. (McKinnon, supra, 52 Cal.4th at pp. 637, 640.)

The court and both attorneys must bear a share of blame for failing to ensure that all panelists were questioned. However, the primary responsibility for protecting defendant’s interests lay with defense counsel. There is no excuse for his failure to alert the court that some candidates had been passed over. Contrary to defendant’s suggestion that the speed of the process was such that it was “virtually impossible” for counsel to keep track, it was a simple matter to record the prospective jurors’ identities and the category to which they assigned themselves. When the questioning of the second panel was completed, the court conferred with counsel about which candidates were in categories one and three, and neither attorney expressed any discomfort with his ability to monitor the classifications as they had occurred.

Juror No. 10 was questioned during the voir dire covering general subjects. She did not mention that she had been overlooked during the previous round, but at that point it should have been clear to all that her views on the death penalty had not been ascertained. Defense counsel was offered a chance to pose follow-up questions at the end of the general voir dire, but did not explore the matter. He had a peremptory challenge available when he agreed to accept Juror No. 10, the last panelist to be seated. We cannot overlook the possibility that counsel was aware of the court’s omission, and refrained from pointing it out for tactical purposes. Based on Juror No. 10’s answers, the defense may have decided she was inclined in its favor, or at least not negatively disposed. A high school graduate, she and her husband both worked as mail handlers for the post office. She had a brother serving a long prison sentence for a purse snatching, with a prior conviction for “hijacking.” She had served on both civil and criminal juries. She belonged to no organizations and had never been in the military. Though she did not own a gun, she had “no problem” with gun ownership.

The consideration that counsel may have chosen to take a chance with this panelist and create a claim of penalty phase error goes to the heart of the forfeiture rule. “[A]s a general rule, ‘the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal.’ [Citations.] This applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights. [Citations.] [¶] The reasons for the rule are these: ‘ “In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.” ’ ” (In re Seaton (2004) 34 Cal.4th 193, 198 [17 Cal.Rptr.3d 633, 95 P.3d 896]; accord, McKinnon, supra, 52 Cal.4th at p. 638.) Accordingly, defendant did not preserve this claim of inadequate voir dire. (People v. Taylor (2010) 48 Cal.4th 574, 608 [108 Cal.Rptr.3d 87, 229 P.3d 12].)

Ordinarily we proceed to consider the merits of forfeited claims of insufficient voir dire, as we did in People v. Taylor, supra, 48 Cal.4th at page 608. However, counsel’s inaction leaves us with no basis for doing that here. Juror No. 10 may have been biased against the death penalty, or perfectly neutral. This record affords no grounds for us to conclude that the trial was “ ‘fundamentally unfair.’ ” (Contreras, supra, 58 Cal.4th at p. 143.) To establish that the erroneous inclusion of a juror violated the right to a fair and impartial penalty phase jury, a defendant must show that an incompetent juror actually sat on the jury that imposed the death sentence. (People v. Blair (2005) 36 Cal.4th 686, 742 [31 Cal.Rptr.3d 485, 115 P.3d 1145]; see People v. Black (2014) 58 Cal.4th 912, 919-920 [169 Cal.Rptr.3d 363, 320 P.3d 800].) Here, defendant failed to make a record that would permit us to evaluate his claim.

Defendant’s final challenge to the voir dire process concerns the questioning on general topics. He claims the court failed to adequately explore the candidates’ views about gang members, asking one prospective juror only, ‘“do you know anybody in a gang?” However, defense counsel made no objection. Furthermore, shortly after this question the court explained to the panel how gang evidence might properly be used at trial. It cautioned: ‘“But I want to make sure I don’t have a bunch of jurors that are going to say, well, gee, the fellow’s a gang member, therefore, he’s guilty. You’ve got to keep an open mind. Wait to hear what the evidence is.” This claim of error is meritless as well as forfeited. (Fuiava, supra, 53 Cal.4th at pp. 653-655.)

3. Constitutionality of Death-qualification Process

‘“Citing the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal Constitution and article I of the California Constitution, defendant contends that the death qualification of juries in California is unconstitutional. The claim is forfeited by defendant’s failure to raise it below. (People v. Howard (2010) 51 Cal.4th 15, 26 [118 Cal.Rptr.3d 678, 243 P.3d 972] (Howard).) It is also meritless.

“ ‘The death qualification process is not rendered unconstitutional by empirical studies concluding that, because it removes jurors who would automatically vote for death or for life, it results in juries biased against the defense. [Citations.] [¶] Lockhart v. McCree (1986) 476 U.S. 162 [90 L.Ed.2d 137, 106 S.Ct. 1758] . . . , which approved the death qualification process, remains good law despite some criticism in law review articles. [Citations.] “We may not depart from the high court ruling as to the United States Constitution, and defendant presents no good reason to reconsider our ruling[s] as to the California Constitution.” [Citation.] [¶] The impacts of the death qualification process on the race, gender, and religion of the jurors do not affect its constitutionality. [Citations.] Nor does the process violate a defendant’s constitutional rights, including the Eighth Amendment right not to be subjected to cruel and unusual punishment, by affording the prosecutor an opportunity to increase the chances of getting a conviction. [Citations.] Defendant claims the voir dire process itself produces a biased jury. We have held otherwise. [Citation.] [¶] Death qualification does not violate the Sixth Amendment by undermining the functions of a jury as a cross-section of the community participating in the administration of justice. [Citations.] Finally, defendant’s constitutional rights were not violated by the prosecutor’s use of peremptory challenges to exclude jurors with reservations about capital punishment.’ (Howard, supra, 51 Cal.4th at pp. 26-27; see People v. Taylor, supra, 48 Cal.4th at pp. 602-603.) We adhere to the views expressed in these decisions and reject defendant’s claims.” (People v. Tully (2012) 54 Cal.4th 952, 1066 [145 Cal.Rptr.3d 146, 282 P.3d 173]; see also Capistrano, supra, 59 Cal.4th at p. 864.)

B. Guilt Phase Issues

1. Exclusion of Evidence That Echeverría Was Convicted of Manslaughter

Before his opening statement, defense counsel approached the bench and told the court he and the prosecutor had discussed whether the jury should be informed that Echeverría had been convicted of manslaughter for Guevara’s killing. Counsel said he intended to do that, though he conceded the prosecutor “may be right” that the conviction was irrelevant. The prosecutor objected. The court ruled that “you cannot tell them this guy got manslaughter because it was a different case, different evidence . . . .” The court suggested counsel stipulate that Echeverría was convicted of the killing, without mentioning a specific crime. Counsel so stipulated.

Nevertheless, immediately before calling Echeverría to the witness stand, defense counsel renewed his request to inform the jury that Echeverría had been convicted of voluntary manslaughter. The prosecutor objected again, and again the court sustained the objection. It explained that the difficulty “this poses for the People is a suggestion that if one person who is involved in this was convicted of a particular crime, then the other participant allegedly involved should be convicted of the same crime. And this is an entirely different case. I think that it would be inviting the jury to speculate as to . . . why he was convicted of voluntary manslaughter as opposed to what the proper verdict might be in this case. And it might be . . . manslaughter. I believe he should be limited to stating that yes, I was convicted of something that arose from the same incident without specifying what felony.”

Defendant claims the exclusion of evidence as to the nature of Echeverría’s conviction violated his due process right to present a defense. He relies on cases holding that defendants must be allowed to present evidence that another person may have committed the charged crime. (Chambers v. Mississippi (1973) 410 U.S. 284 [35 L.Ed.2d 297, 93 S.Ct. 1038]; Cudjo v. Ayers (9th Cir. 2012) 698 F.3d 752.) These cases are inapposite; defendant presented Echeverría’s testimony that it was Echeverría who killed Guevara. Defendant argues that the jury was required to speculate about Echeverría’s level of culpability. Not so; the jury heard the evidence and was fully equipped to determine for itself the relative levels of Echeverría’s and defendant’s culpability. It could not know what evidence was presented at Echeverría’s trial, nor what theories were pursued by the prosecution and the defense in that case. The trial court properly ruled that evidence of the specific crime of which Echeverría was convicted was irrelevant and misleading. (Evid. Code, § 352.)

2. Sufficiency of the Evidence

Defendant contends the evidence was insufficient to establish his guilt of first degree murder. The claim fails.

“Our task in deciding a challenge to the sufficiency of the evidence is a well-established one. ‘[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value— from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] In cases in which the People rely primarily on circumstantial evidence, the standard of review is the same. [Citations.]’ (People v. Thomas (1992) 2 Cal.4th 489, 514 [7 Cal.Rptr.2d 199, 828 P.2d 101].) ‘ “An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise. [Citation.]” ’ (People v. Halvorsen (2007) 42 Cal.4th 379, 419 [64 Cal.Rptr.3d 721, 165 P.3d 512].)” (People v. Solomon (2010) 49 Cal.4th 792, 811-812 [112 Cal.Rptr.3d 244, 234 P.3d 501].)

Defendant disputes the credibility of Kathy Mendez’s testimony, arguing that from her vantage point inside the Beef Bowl she could not have seen defendant and Echeverría wrestling with Guevara on the sidewalk, or defendant shooting into the Au Rendezvous Cafe next door. However, Mendez testified that she was standing at the end of a long line, nearly at the door of the Beef Bowl, and that the entire front wall of the restaurant was glass. The photographic evidence confirms that a person standing near the front of the restaurant would have a clear view of the sidewalk outside. Defendant also claims Mendez was mistaken when she said she saw Guevara walk by the Beef Bowl before the confrontation began. He notes that Guevara’s car was parked in front of the Au Rendezvous, not the Beef Bowl, and that Entibo Antelo, the security guard who was standing outside near the Beef Bowl door, testified that Guevara had just begun to approach the Beef Bowl after getting out of his car when defendant and Echeverría accosted him. While Mendez’s testimony is inconsistent with the other evidence on this point, it is not an important detail. Furthermore, the jury was properly instructed on how to weigh conflicts in the testimony. (CALJIC Nos. 2.21.1 & 2.22.)

Defendant notes that Mendez gave inconsistent statements, both to the police and on the stand, about whether she saw him shooting. But when reminded of her second statement to the police, Mendez testified on direct, cross, and redirect examination that she saw defendant doing the shooting. It was for the jury to determine the credibility of her statements.

Defendant challenges Mendez’s account of the wrestling on the sidewalk, claiming Antelo did not confirm it. Antelo, however, testified that he went inside the Beef Bowl as soon as the second armed man approached Guevara, because he “immediately thought there was going to be a problem.” The third prosecution eyewitness, Patrick Turner, confirmed that the wrestling began on the sidewalk and continued into the Au Rendezvous. Echeverría gave a similar account in his testimony, though he claimed that only he wrestled with Guevara.

Defendant contends the physical evidence was consistent with Echeverría’s testimony. In fact, the evidence refuted his account and supported the conclusion that it was defendant who shot Guevara and inflicted some of Echeverría’s wounds. As defendant concedes, the casings recovered at the scene established that only two weapons were used, a .25 calibe