People v. Sánchez (63 Cal. 4th 411, 2016)

Opinion

CHIN, J.

A jury convicted defendant, Edgardo Sánchez, of the first degree murder of Officer John A. Hoglund under the special circumstances of murder to prevent arrest, murder of a peace officer, and murder in the commission of robbery; of the first degree murder of Lee Chul Kim under the special circumstance of murder in the commission of robbery; of the attempted murder of Luis Enrique Medina; and of 26 counts of robbery, two counts of attempted robbery, five counts of assault with a deadly weapon, and two counts of assault with a stun gun. The jury also found true the special circumstance allegation of multiple murder and that defendant personally used a firearm as to many, although not all, of the counts. After a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict and imposed a judgment of death. This appeal is automatic. We reverse one robbery count, modify the determinate prison sentence accordingly, and otherwise affirm the judgment.

I. The Facts

A. Guilt Phase

1. Overview

Defendant and several cohorts, usually including his two codefendants, Jose Contreras and Benjamin Navarro, committed seven separate takeover-style armed robberies of business establishments from December 1991 to May 1992. During one robbery, defendant and Contreras shot the store owner to death. During another robbery, defendant applied a stun gun to two victims to try to coerce one of them to unlock a safe. While leaving the scene of the final robbery, defendant shot to death a police officer responding to a silent alarm.

Videotape containing images of all three defendants captured portions of the last robbery. Numerous eyewitness identifications and other evidence also connected defendant to the crimes.

At trial, defense counsel conceded that defendant was involved in some of the robberies, and that the videotape of the final robbery showed defendant committing it. But he argued there was a reasonable doubt about his involvement in some of the robberies and about his guilt of some of the specific crimes.

2. Prosecution Evidence

a. Outrigger Lounge

During the evening of December 31, 1991, the Outrigger Lounge in Sun Valley was crowded with customers preparing to celebrate the New Year. Around 8:00 p.m., at least three men entered the lounge and, at gunpoint, ordered the customers to go to the floor. The gunmen spoke English with a Hispanic accent.

One gunman, identified as defendant, wielded a short shotgun. He jumped over the bar, knocking down the bartender, Robert Lehman, in the process. Pointing his shotgun at Lehman, defendant took Lehman’s wallet, watch, and money clip. He also took around $410 from the cash register. Defendant then forced Lehman to go to the office, where defendant took about $800 from the safe.

The perpetrators also took property at gunpoint from customers Walter deWitt, Margaret Tucker, Eugene Engelsberger, Praneet Gallegos, Marjorie Livesley, Lois Skinner, and Dennis Sorenson. The owner of the lounge, Jeannette Luettjohann, testified that the gunmen took about $1,600 in cash and $125 to $130 worth of food. One gunman hit John Tucker, Margaret’s husband, with the butt of a shotgun, breaking two ribs.

Anne Pickard, Sorenson’s girlfriend, who was in the restroom when the robbery began, came out in time to see people on the floor. She later identified defendant as the man with the short shotgun. She had previously identified him from photographic and live lineups with differing degrees of certainty. Barbara Salazar, an employee, tentatively identified defendant from a photographic lineup as one of the gunmen. Engelsberger identified defendant from a photographic lineup. Gallegos identified defendant as the man with the shotgun in court and from a photographic lineup. Some witnesses identified Contreras and Navarro as gunmen with various degrees of certainty.

Livesley identified a gold chain found on defendant’s person when he was later arrested as one that had been taken from her during the robbery.

Lor this incident, defendant was convicted of robbing Margaret Tucker, Eugene Engelsberger, Praneet Gallegos, Jeanette Luettjohann, Marjorie Livesley, Lois Skinner, Robert Lehman, and Walter deWitt, and of assaulting John Tucker with a deadly weapon.

b. El 7 Mares Restaurant

On the evening of April 18, 1992, around 8:00 p.m., as many as six armed men invaded the El 7 Mares Restaurant in Los Angeles. All were speaking Spanish; some witnesses said they had Central American accents. One perpetrator, holding a shotgun, told two others to “[tjake care of the guard.” The men took private security guard Rene Aguilar’s equipment, including his handcuffs, and later led him at gunpoint to the kitchen area. A gunman entered the office of Magdaleno Urrieta, the restaurant manager, and forced him to turn over $5,000 to $5,500 in cash. The gunmen then forced customers and employees, including Urrieta, into the kitchen and told them to fie facedown on the floor.

The gunmen took a watch and about $200 from customer Nelson Hernandez and about $8,000 worth of jewelry from his wife; money from the cash register; around $290 from waitress Lupe Guizar; and a watch, chain, wedding ring, and wallet containing about $80 from Urrieta.

Aguilar and Guizar identified defendant and his codefendants as among the gunmen. Aguilar described defendant as short and Contreras as tall. Nelson Hernandez identified Navarro as one of the gunmen; he identified a watch found in a residence linked to defendant as similar to the watch taken from him. Aguilar’s handcuffs were later found in Navarro’s home.

For this incident, defendant was convicted of robbing Magdaleno Urrieta, Nelson Hernandez, Lupe Guizar, and Rene Aguilar.

c. Mercado Buenos Aires

On April 24, 1992, around 5:25 p.m., at least four gunmen invaded the Mercado Buenos Aires supermarket in Van Nuys. One gunman said, “This is a robbery. Hands upon your head.” Witnesses said the men spoke Spanish with what sounded like a Central American accent.

The store owner, Manuel Rodriguez, observed one gunman grab a well-dressed customer by the hair and, apparently believing the customer was the owner, tell him, “You’re going to show us where the money is.” Manuel told the gunman to leave the customer alone, as he, Manuel, was the owner. A gunman took Manuel into the store office and demanded that he give him money. Manuel turned over cash, checks, and food stamps worth about $3,000 and told the gunman there was no more money. Manuel’s wife, Clelia Rodriguez, was brought into the office with a gun pointed to her head. One gunman told another to cut off one of her fingers to force Manuel to say where the rest of the money was. The gunman also threatened to kill her if Manuel did not say where more money was. Manuel responded that there was nothing else but to take what they wanted.

Eventually, the gunmen herded Manuel, Clelia, their son Paul, a customer, and two employees, Dario de Luro and Arturo Flores, into a back bathroom. Manuel Rodriguez testified that the gunmen took his chain and wedding ring, Clelia’s chain and bracelet, and de Luro’s wallet and watch. He believed they took wallets and watches from others before they entered the bathroom. Paul Rodriguez testified that the gunmen took his necklace and ring and a wallet from de Luro.

Manuel Rodriguez identified defendant from photographic and live lineups and at trial as the man who pointed the gun at his wife. He identified Contreras as the gunman who threatened to cut off Clelia’s finger and, with less certainty, Navarro as another gunman. He testified that defendant and Contreras seemed to be giving the orders. Paul Rodriguez identified defendant from photographic and live lineups and at trial as the gunman giving the orders. With less certainty, he identified Contreras as another of the gunmen. Manuel and Paul identified a necklace and a bracelet found on defendant’s person when he was later arrested as similar to items taken during the robbery.

For this incident, defendant was convicted of robbing Manuel Rodriguez, Paul Rodriguez, Clelia Rodriguez, Arturo Flores, and Dario de Luro.

d. Woodley Market

On the morning of May 4, 1992, around 9:35 a.m., three or four gunmen entered the Woodley Market, a food store in Van Nuys. Owner Lee Chul Kim had just returned from the bank carrying cash in a brown leather bag. One gunman approached employee Victor Cisneros, pointed a gun at him, and forced him to go to the back of the store and lie down. The gunman spoke Spanish with what Cisneros described as an “El Salvadoran” accent. Another gunman approached Teresa Torres, a cashier, and told her not to touch anything.

Employee Guillermo Galvez observed Kim running from a gunman, identified as defendant, who was following Kim and pointing a handgun at him. While he was running, Kim dropped the money bag and the keys to the store cash drawer. Employees Eduardo Rivera and Galvez observed Kim, followed by defendant, run to the meat freezer and try to close the door. Rivera heard Kim say something that sounded as if he was “in fear, like [he was] terrorized.” As defendant attempted to and eventually succeeded in opening the freezer door, Galvez heard Kim crying “please don’t do anything to me,” and saying “that the keys were here and he would give them everything.” Cisneros heard Kim, with fear in his voice, say, “Okay, Okay, please, please, okay.” He heard another voice say, in Spanish with a Salvadoran accent, ‘“The keys, the keys.” Torres could not see Kim, but she, as well as Rivera, heard him say, ‘“Please, please.” Galvez and Rivera saw defendant hit Kim in the neck with the gun. When Galvez last saw Kim alive, he was on his knees in the freezer.

Gunfire erupted from the freezer area. Galvez observed defendant and Contreras fire at Kim. He estimated he heard around 10 gunshots from two different guns. Defendant shot downwards at Kim. Cisneros heard the sound of a gun being dropped, then he looked and observed a hand pick up a gun. A voice said, ‘“Let’s go.” The men then ran past Cisneros and out of the store.

Kim was shot eight times by two different guns. Six of the shots alone would have been fatal or potentially fatal. Evidence indicated that Kim managed to get off some shots of his own from a .25-caliber semiautomatic handgun that he carried on his person. His empty holster, but not his gun, was found in his pocket.

Cisneros and Galvez identified defendant at trial as one of the gunmen. Rivera identified defendant at the preliminary hearing with ‘“95 percent” certainty and identified him earlier at a live lineup. Cisneros, Torres, and Rivera also identified Contreras.

For this incident, defendant was convicted of the attempted robbery and first degree murder of Kim under the special circumstance of murder in the commission of robbery. The jury found him not guilty of attempting to rob Galvez and Rivera.

e. Casa Gamino

Armando Lopez was the manager, and Maricella Mendoza a hostess, at the Casa Gamino Restaurant in Paramount. Around 9:30 p.m. on the evening of May 17, 1992, several gunmen entered the restaurant. One gunman grabbed Mendoza by the hair, pointed a gun at her, and took her to the kitchen, where one of the gunmen demanded she open a cash register. When she could not open it because she was nervous, a man slapped her. Gunmen took other employees, including Armando’s brothers, Arturo and Javier Lopez, and Esequiel Flores, to the kitchen area, where they robbed them and Mendoza of jewelry and other property.

Another gunman, identified as defendant, placed a gun against Armando’s stomach, and took him to the back. During these events, defendant sometimes spoke English and sometimes Spanish with a Central American accent. Defendant displayed what looked like a stun gun and said to Armando, “I’m going to kill you with this if you say anything.” Defendant then forced him into the office and demanded money. He took the money that was in the office, around $20,000.

In the office, defendant demanded that Armando open the safe. Armando did not know the combination and told defendant he could not open it. Defendant slapped him, then shot him with the stun gun two or three times on his ribs and stomach, causing him to scream loudly in pain. Armando testified the gun had ‘“like some blue flames coming out of it.” Javier Lopez saw defendant give Armando electric shocks and heard Armando screaming and saying he did not know the combination. Defendant demanded again that Armando open the safe. Armando responded ‘“that I was unable to open the door. I said I had children.” In response, defendant placed his gun in his mouth and counted ‘“one, two, three, and he said, ‘If you do not open the safe, I’m going to kill you.’ ”

Another gunman then brought Mendoza into the office. There, as she testified, ‘“They began torturing me in order to make Armando talk.” ‘“They had a stun gun, and they were hitting me on my shoulders and my back. And they put the gun inside Armando’s mouth. They told him that if he was not going to open the safe . . . , they would kill him and they would kill me as well.” When she told them she did not know how to open the safe, defendant hit her in the head with a gun. Being shocked with the stun gun was very painful and caused her to scream. They used it on her about six times, and she could see ‘“blue bolts” coming from it. Both Armando and Mendoza testified that the same man, identified by Armando as defendant, used the stun gun on both of them.

A gunman then took Mendoza to the back and told her ‘“to scream . . . loudly so that Armando would open the safe.” He threatened to ‘“put me inside some water that was there, and then he said he was going to use the stun gun to hit me on the heart so that I would die if I didn’t scream loud enough.” She screamed to Armando to open the safe. Arturo and Javier Lopez heard her scream many times.

Armando was forced to open a cash register. A gunman took $300 to $400 from it. Defendant took Armando’s gold bracelet, ring, and watch. Gunmen also took property from Lucia Lopez, Javier’s wife. Lucia heard Mendoza screaming from the kitchen area.

Armando, Mendoza, and Javier heard some of the robbers refer to one of the gunmen, identified by Armando as defendant, by the name ‘“Morro.” Armando testified that defendant responded to that name. The gunmen then left. Javier estimated that the robbery lasted about 25 to 27 minutes.

Armando identified defendant in court as the man who used the stun gun on him. Previously he identified two photographs from a lineup—one of defendant and one of a nonsuspect—as possibly being the gunman. He also tentatively identified Contreras and Navarro as other gunmen. Mendoza tentatively identified Navarro as one of the gunmen but was unable to identify defendant. Arturo identified defendant as the gunman who was with Armando, and Contreras as another gunman. Lucia and Javier identified defendant as one of the gunmen and had previously identified him from photographic and live lineups. They also identified Contreras. Flores identified Navarro from a photographic lineup as a gunman. Customers Norman and Charlene Busby identified Contreras and Navarro. Customer John Khounthavong, an off-duty police officer, identified Contreras, and customer Raul Ramirez identified Navarro from a photographic lineup.

The stun gun used in the robbery was never found, but an expert testified about the characteristics of stun guns. Unlike a Taser, which can be used from a distance, a stun gun must be applied directly to the person to have an effect. The expert demonstrated the use of a stun gun that witnesses testified looked like the one defendant used. It generated blue sparks and could be used to immobilize a person.

For this incident, defendant was convicted of robbing and assaulting Armando Lopez with a deadly weapon and with a stun gun, of robbing and assaulting Maricella Mendoza with a deadly weapon and with a stun gun, and with robbing Javier Lopez, Esequiel Flores, and Arturo Lopez.

f. Ofelia ’s Restaurant

Ofelia Saavedra and her husband, Juan Saavedra, owned Ofelia’s Restaurant in South Gate. Their daughter, Leticia Saavedra, and Obdulia Garcia also worked in the restaurant.

Around 11:30 a.m. on May 22, 1992, Ofelia observed her husband walking toward the back door followed by a man, identified as defendant, wielding a gun. Around this same time, Leticia was returning from an errand and was entering the restaurant through the back door. Ofelia heard defendant, speaking Spanish, tell Juan to stop. Juan responded by saying, “Let me open the door for my daughter.” A struggle ensued between defendant and Juan over the gun. Ofelia, holding a knife, turned to face defendant.

Leticia entered the restaurant in time to observe the struggle. Defendant was threatening to kill Juan, and Juan was saying to let go of the gun. In the struggle, the gun went off twice, firing into the floor. Then a second gunman, identified as Contreras, appeared. Ofelia pointed the knife at Contreras but dropped it after he threatened to shoot her. Leticia saw Contreras hit her father in the head with his gun at least five times, causing bleeding. Contreras took Ofelia to the dining area, where he took property from Garcia.

After the gunshots, defendant said, “Let’s go, the cops are coming,” and the gunmen left running. A slip-on black shoe that the parties stipulated belonged to defendant was left behind. The gunmen left in two cars, one red and one blue.

Leticia identified defendant from a live lineup and later in court as the man who struggled with her father. She also identified a photograph of the car defendant was driving when he was arrested as similar to the red getaway car. Ofelia identified defendant in court and Contreras from a photographic lineup.

For this incident, defendant was convicted of assaulting with a deadly weapon and attempting to rob Juan Saavedra, of robbing Obdulia Garcia, and of assaulting Ofelia Saavedra with a deadly weapon.

g. George’s Market

On May 29, 1992, around 1:30 p.m., several gunmen invaded George’s Market, a delicatessen in Maywood. Portions of the robbery were captured on a videotape that was played for the jury.

Defendant and Contreras went behind the counter where owner Linda Park and her son Tom Park were standing and, at gunpoint, demanded money. They threatened to kill Tom if he did not reveal where the money was. At one point, defendant slapped him, knocking his glasses to the floor. At another point, defendant pulled the slide of his semiautomatic handgun as though placing a bullet into the chamber. They took about $1,500 from each of two cash registers, around $1,000 worth of food stamps, a few hundred dollars from under the counter, three bundles of $2,000 each, and a handgun the Park family kept behind the counter.

During these events, a gunman robbed employee Gumercindo Salgado, taking $200 to $300 from a cash register. The gunmen left, with defendant the last to leave. Shortly after they left, those inside the store heard gunshots.

The gunmen prevented the Parks from pushing the store’s silent alarm button, but Salgado activated the silent alarm in the butcher shop. Two police vehicles responded to the alarm. Officer John Hoglund, wearing a uniform, was alone in the vehicle nearer the scene. Officer Kenneth Meisels and Reserve Officer William Wallace—20 minutes into his first-ever duty shift— were together in the second vehicle farther away. Officer Hoglund radioed Officer Meisels that he would respond to the alarm and later said he had arrived at the location.

As Officer Meisels neared the store, he observed a red sports car with a dark-tinted back window containing a single occupant speed past and run a stop sign. He tried to pursue it, but it was going too fast. He attempted to contact Officer Hoglund. Receiving no response, he gave up pursuing the car and drove to the scene of the silent alarm. Officers Meisels and Wallace arrived to see Officer Hoglund’s police vehicle parked in front of the market with his bullet-riddled body partly inside the car with his legs outside. Officer Hoglund’s firearm was in its unsnapped holster.

Erik Sanchez was driving in the area when he saw a police vehicle stop and an officer get out. He heard four to five gunshots and saw the officer fall half in the vehicle. He did not see the shooter but he saw four men run and get into two cars, one of which was a red Mazda RX 7 with a tinted back window. He tried to get the Mazda’s license number but could not do so because the numbers were obscured. The Mazda’s driver was an Hispanic male.

Luis Enrique Medina testified that he double-parked in front of George’s Market that day waiting while a friend went inside the store. He observed a man, who the evidence indicated was Navarro, walking back and forth in front as if watching the store. Some men came out and then went back inside the store. They were speaking Spanish with a Central American accent. Medina observed a police officer turn on the lights of his vehicle, then get out and stand up. Some men came out of the store and started running. The officer told them to stop. The last one out, whom the evidence showed was defendant, passed by Medina’s car and pulled out a gun. Medina, a former police officer in Mexico familiar with guns, believed the gun was a black nine-millimeter handgun.

Defendant swore at the police officer and said, “You’re going to die.” When, as Medina testified, the officer “wanted to pull out his gun and his radio,” defendant shot him. The officer was hit in the body and fell. As the officer fell, defendant shot him again, this time in the head.

After shooting the officer, defendant aimed the gun at Medina from about eight feet away. Defendant was looking at Medina with his finger on the trigger. Medina could tell the gun was empty because the slide was open. He testified that defendant “was trying to shoot, but there were no bullets in the gun,” and “he made a gesture as to remove the clip that was there.”

Defendant’s cohorts called and he ran to them. He got into a small red car, and they drove away. Medina was unable to get the license number of the car because something was obscuring it.

Officer Hoglund died of three gunshot wounds, two into the torso (one through the heart), and one through the brain. The positioning of the head wound was consistent with the officer being in the car slumped forward when shot in the head. Each of the gunshots individually would have been fatal. The bullets were consistent with those from a nine-millimeter handgun.

Defendant’s image appeared on the videotape. Tom and Linda Park identified him at photographic and live lineups and later at trial, and customer Elvira Acosta identified him from a live lineup and later in court. Witnesses also identified Contreras and Navarro. Officers Meisels and Wallace, and witness Erik Sanchez, testified that the car defendant was driving when he was later arrested was similar to the red car they observed.

Medina was not positive of his identification of defendant in court. He had changed his testimony at the preliminary hearing regarding the identity of the shooter, although he eventually identified defendant. He testified at trial the reason for this was that at the preliminary hearing, he had been “afraid, and I was afraid for my family.” But he consistently identified defendant, who was wearing a distinctive striped shirt in the videotape, as the man who shot the officer.

Los Angeles County Sheriff’s Deputy Delores Perales, who investigated this case, testified that in her experience with semiautomatic weapons, it is obvious when the gun is empty. A criminalist testified that a magazine of a nine-millimeter semiautomatic handgun can hold from six to as many as 19 bullets. If the slide locks to the rear, that would indicate the gun was out of ammunition.

For this incident, defendant was convicted of the first degree murder of Officer Hoglund under the special circumstances of murder to prevent arrest, murder of a peace officer, and murder in the commission of robbery; of robbing Linda Park, Tom Park, and Gumercindo Salgado; and of the attempted murder of Luis Enrique Medina.

h. Uncharged Incident at Rod’s Coffee Shop

Brian Wellman, the manager of Rod’s Coffee Shop in Arcadia, observed five men enter the establishment shortly before midnight on November 7, 1990. He offered them a table. He testified that “as they came in, they just were kind of looking around, and I felt very uneasy right off the bat.” Two of the five had some coffee and “took a couple of sips,” then the men left the shop without ordering anything else. Shortly thereafter, Wellman observed “that they were all kind of congregated near the back door, and that made me kind of nervous.” “They did not seem to be leaving.” Wellman observed them standing near a car parked in the driveway facing the street. The car appeared to be “ready to drive away” rather than parked properly in the parking lot. He also observed another vehicle off to the side. Apprehensive that the group was planning a robbery, Wellman called the police.

Sergeant Randy Kirby and Detective Robert Anderson responded. They observed and then stopped an orange Datsun and a silver Honda. Defendant was the driver of the Datsun. The Honda contained a loaded .357 Magnum. The Datsun contained a loaded .22-caliber revolver under the front passenger seat and a loaded .38-caliber revolver under the driver’s seat. Next to the handgun under the passenger seat was a functional black stun gun.

The stun gun was booked into evidence but not preserved. Detective Anderson testified that the stun gun was functional and, when activated, emitted blue sparks. Armando Lopez and Maricella Mendoza later identified a stun gun that emitted similar blue sparks as one that “looked like the one” used in the Casa Gamino robbery.

i. Other Evidence

Bullets and bullet casings found at the scenes of the three robberies during which shots were fired—the Woodley Market, Ofelia’s Restaurant, and George’s Market robberies—were examined. The examination established that a single nine-millimeter gun fired at least some of the shots during each of those robberies. Three different guns—two 9-millimeter handguns and a .25-caliber handgun (possibly victim Kim’s gun)—fired shots during the Woodley Market robbery. Three different guns—two 9-millimeter handguns and a .22-caliber handgun—fired shots during the George’s Market robbery.

Contreras and Navarro, who originally gave police the name “Hector Reyna,” were arrested on May 31, 1992. When Navarro was arrested, he was driving an orange Nissan with 13-year-old Rosa S. as a passenger.

The officer who arrested Navarro also observed a red Mazda believed to be involved in the robberies. Later the same evening, he stopped that car and arrested defendant, the driver. The car’s rear license plate number was obscured. Witnesses testified that the car was similar to the red car seen leaving the scene of the Ofelia’s Restaurant and George’s Market robberies. When he was arrested, defendant had a white sock containing jewelry concealed in his underwear. Witnesses later identified items of jewelry removed from the sock as similar to jewelry taken in the Outrigger Lounge and Mercado Buenos Aires robberies. When arrested, and as late as his first court appearance, defendant identified himself as “Carlos Antonio Juarez.”

The prosecution placed into evidence photographs found in some of the defendants’ residences showing the defendants together, sometimes with firearms that witnesses said resembled firearms used in the robberies.

Rosa S. testified that she was with Navarro, whom she knew as “Hector,” when he was arrested. Two days earlier, the day of the George’s Market robbery, she had been at the house of a friend of Navarro’s she knew as “El Morro.” She identified defendant in court and from the videotape of the George’s Market robbery as the friend. Defendant and Navarro left the house, then returned about an hour later with a large amount of money. Defendant drove the red car he was later arrested in. Later other men, including Contreras, arrived, some with handguns. In Rosa’s presence, they divided the money among themselves.

While Rosa S. was still at defendant’s house, and in defendant’s presence, someone said, “Carlos”—meaning defendant—“shot a cop.” Defendant himself said, “I shot a cop.” He said he “shot because the officer had gotten in his way.” In the same conversation, he also said that “he had already shot like eight or nine people in his country.”

3. Defense Evidence

Los Angeles County Sheriff’s Deputy Nicholas Cabrera testified that he interviewed witnesses shortly after the Casa Gamino robbery, at a time when matters were chaotic. Armando Lopez told him he believed one of the robbers, apparently referring to defendant, “was of Mexican descent,” and the other robbers came from Central America.

B. Penalty Phase

The prosecution presented evidence that in 1990, defendant was convicted of possession for sale of cocaine base.

Defendant presented substantial evidence in mitigation. He was from Honduras, the youngest of 10 children. His mother, two brothers, and a sister testified about his life in Honduras. He also presented several witnesses who testified that he had embraced religion in jail and would be of help to others in the future. Arturo Talamante, a “Hispanic coordinator of the ministry in prisons,” testified that in 25 years, he had found only two people, including defendant, “who have the spirituality that he [defendant] has had.” Luke Packel, a Catholic missionary, expressed the opinion that because of the depth of his religious feelings, defendant’s “life has completely turned around.”

Defendant testified. He discussed his religious conversion in jail. He studied the Bible and “surrendered fully to the learning, to learn more about our Lord.” He wrote some Bible studies, hoping they would help others. He said he shot and killed Kim, but only after Kim shot him first. He admitted shooting Officer Hoglund to escape after the robbery. At first he did not feel remorse, but over time, he came to “realize that human life has an infinite value to it,” and now he had “the genuine desire to rescue others from their mistakes.” He concluded his direct examination by saying that he now knows that “human life has an infinite value to it, and I ask our Lord to grant me the opportunity to prove that to others so that they can once and for all abandon that path and to be saved by our Lord.”

II. Discussion

A. Jury Selection Issues

1. Denial of Sequestered Voir Dire

Defendant moved the court “to conduct individualized, sequestered death qualification in compliance with Hovey v. Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301].” The court denied the motion. Defendant contends the court erred, and that it was required to question the jurors individually about their views on the death penalty. We disagree.

“Code of Civil Procedure section 223 provides in part: ‘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.’ That provision, added by initiative (Prop. 115) in 1990, had the effect of abrogating this court’s supervisory direction in Hovey v. Superior Court[, supra,] 28 Cal.3d 1, 80 (Hovey) that the death-qualifying voir dire always be conducted individually and in sequestration, i.e., out of the other prospective jurors’ presence.” (People v. Brasure (2008) 42 Cal.4th 1037, 1050 [71 Cal.Rptr.3d 675, 175 P.3d 632].)

Defendant contends the Hovey rule is constitutionally compelled. It is not. “The Hovey rule was not constitutionally compelled; the electorate was free to abrogate it by initiative statute.” (People v. Brasure, supra, 42 Cal.4th at p. 1050.) He also contends the court abused its discretion. “Under Code of Civil Procedure section 223, the trial court retains the discretion to conduct sequestered voir dire if it concludes that collective voir dire would not be practicable.” (People v. Thomas (2012) 53 Cal.4th 771, 789 [137 Cal.Rptr.3d 533, 269 P.3d 1109].) In this case, the prospective jurors were asked to fill out a detailed questionnaire so they could state their opinions untainted by the other prospective jurors. The court did not abuse its discretion in finding this procedure adequate to ensure a fair jury selection process. (People v. Watkins (2012) 55 Cal.4th 999, 1011 [150 Cal.Rptr.3d 299, 290 P.3d 364].)

Defendant argues that, even after filling out the questionnaires, some prospective jurors might have been influenced during voir dire by answers other prospective jurors gave. But ‘“the purpose and effect of the ‘group voir dire’ requirement of Code of Civil Procedure section 223 would be obviated if nonsequestered questioning were deemed ‘[im]practicable’ because of the speculative concern that one prospective juror’s death penalty responses might influence the responses of others in the venire. It is precisely this premise of Hovey v. Superior Court, supra, 28 Cal.3d 1, that Proposition 115’s adoption of Code of Civil Procedure section 223 was intended to overrule.” (People v. McKinnon (2011) 52 Cal.4th 610, 634 [130 Cal.Rptr.3d 590, 259 P.3d 1186].) We see no abuse of discretion.

2. Prosecutor’s Use of Peremptory Challenges

During jury selection, defendant twice objected that the prosecutor exercised peremptory challenges against ‘“Hispanic” prospective jurors for reasons of group bias in violation of his state and federal constitutional rights. (See Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson); People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler).) He appears to define the group broadly to include anyone who self-identities as Hispanic or a member of a Hispanic subgroup, or anyone with a Spanish surname. (See People v. Trevino (1985) 39 Cal.3d 667, 676, 686 [217 Cal.Rptr. 652, 704 P.2d 719].) Both times, the trial court found that defendant had not made out a prima facie case of discriminatory challenges and denied the objection. Defendant contends the court erred.

a. Applicable Legal Principles

“Both the state and federal Constitutions prohibit the use of peremptory strikes to remove prospective jurors on the basis of group bias. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) The now familiar BatsonlWheeler inquiry consists of three distinct steps. First, the opponent of the strike must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose in the exercise of peremptory challenges. Second, if the prima facie case has been made, the burden shifts to the proponent of the strike to explain adequately the basis for excusing the juror by offering permissible, nondiscriminatory justifications. Third, if the party has offered a nondiscriminatory reason, the trial court must decide whether the opponent of the strike has proved the ultimate question of purposeful discrimination. (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 125 S.Ct. 2410] (Johnson).)” (People v. Scott (2015) 61 Cal.4th 363, 383 [188 Cal.Rptr.3d 328, 349 P.3d 1028] (Scott).)

The trial court ruled defendant had not made out a prima facie case of discriminatory purpose on both occasions. It invited the district attorney to state reasons for some of the excusáis but did not rule on the validity of those reasons. Under these circumstances, we review the correctness of the court’s first stage rulings that defendant had not made out a prima facie case. (Scott, supra, 61 Cal.4th at p. 386.) We review those rulings independently where, as here, the trial predated Johnson v. California, supra, 545 U.S. 162 (Johnson), and it is not clear from the record whether the trial court analyzed the Batson/Wheeler motion under Johnson’s standard of an inference of discriminatory purpose. (Scott, at p. 384.)

“Although the question at the first stage concerning the existence of a prima facie case depends on consideration of the entire record of voir dire as of the time the motion was made [citation], we have observed that certain types of evidence may prove particularly relevant. [Citation.] Among these are that a party has struck most or all of the members of the identified group from the venire, that a party has used a disproportionate number of strikes against the group, that the party has failed to engage these jurors in more than desultory voir dire, that the defendant is a member of the identified group, and that the victim is a member of the group to which the majority of the remaining jurors belong. [Citation.] A court may also consider nondiscriminatory reasons for a peremptory challenge that are apparent from and ‘clearly established’ in the record (People v. Box (2000) 23 Cal.4th 1153, 1189 [99 Cal.Rptr.2d 69, 5 P.3d 130]; see People v. Turner (1994) 8 Cal.4th 137, 168 [32 Cal.Rptr.2d 762, 878 P.2d 521]) and that necessarily dispel any inference of bias. (People v. Taylor (2010) 48 Cal.4th 574, 644 [108 Cal.Rptr.3d 87, 229 P.3d 12]; accord, U.S. v. Stephens (7th Cir. 2005) 421 F.3d 503, 518, 516 [‘the examination of “apparent” reasons in the record . . . involves only reasons for the challenges that are objectively evident in the record . . .’ such that ‘there is no longer any suspicion, or inference, of discrimination in those strikes’]; cf. Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102, 1110 [‘refutation of the inference requires more than a determination that the record could have supported race-neutral reasons for the prosecutor’s use of his peremptory challenges . . (Scott, supra, 61 Cal.4th at p. 384.)

“[A] reviewing court may not rely on a prosecutor’s statement of reasons to support a trial court’s finding that the defendant failed to make out a prima facie case of discrimination. Although a court reviewing a first-stage ruling that no inference of discrimination exists ‘may consider apparent reasons for the challenges discernable on the record’ as part of its ‘consideration of “all relevant circumstances” ’ [citation], the fact that the prosecutor volunteered one or more nondiscriminatory reasons for excusing the juror is of no relevance at the first stage.” (Scott, supra, 61 Cal.4th at p. 390.)

Accordingly, we now review independently the totality of the circumstances as they existed when defendant objected to determine whether the trial court correctly ruled that defendant did not make out a prima facie case of discrimination. As we explain, we find no error.

b. First Finding of No Prima Facie Case

During jury selection, the court worked with groups of 18 prospective jurors, 12 of whom would be placed in the jury box and made subject to challenge. When one of the 12 was challenged, another would replace that one and then be subject to challenge. As needed, more prospective jurors would be added to replenish the number to 18.

When defendant made his first Batson/Wheeler objection, the prosecution had used two of its first eight peremptory challenges to excuse two of the five Hispanic jurors then available for challenge: P.G. and E.A. Both prospective jurors identified themselves as Mexican-American in their jury questionnaire. The court found no prima facie case but invited the prosecution to state its reasons for the challenges. Because the two prosecutors, Deputy District Attorneys Susan Speer and Michael Grosbard, each exercised one of the challenges, each explained the reasons. The court did not evaluate those reasons but simply denied the motion.

Regarding P.G., Grosbard said he “was extremely against the death penalty on the questionnaire. Always, never, never on the questioning. And here in court he said he didn’t like it. He ultimately equivocated, but he—his questionnaire showed he was extremely against it. We don’t think he could be fair on the issue.” Regarding E.A., Speer said she “came from a very disturbed background and indicated she had recent surgery, was on medication. She was abused as a child, indicated she could probably set that aside, but she indicated she also had medical problems from the surgery. She was also very anti-death penalty on the questionnaire.”

Exercising two of eight peremptory challenges to excuse two of the five Hispanic prospective jurors then subject to challenge did not itself provide an inference of discriminatory purpose. The prosecution had not excused most or all of the group and did not use a significantly disproportionate number of strikes against that group. Nothing indicates the questioning was desultory.

As defendant notes, the three defendants were Hispanic and the two murder victims were not. But many other victims were Hispanic, including attempted murder victim Medina and the two victims of the particularly vicious assaults with the stun gun at the Casa Gamino Restaurant. Moreover, the evidence the jury was to hear indicated defendants came from Central America. Medina testified he was from Mexico. The jurors could reasonably infer that at least some of the other victims, many of whom testified with the aid of an interpreter, came from Spanish-speaking countries. It is not clear prosecutors would be motivated to excuse prospective jurors who self-identified as Mexican-American in a case involving so many apparently Hispanic victims, including at least one from Mexico. This factor does not support an inference of discriminatory purpose.

Moreover, as initially sworn, the actual jury contained six non-Hispanic African-Americans, five non-Hispanic Whites, and one Hispanic. This suggests that, at the time of the motions, it was not clear that the victims belonged to the group to which a majority of the remaining jurors would belong. It appears none of the victims were African-American. Accordingly, this factor does not support an inference of discrimination.

Additionally, the record clearly establishes nondiscriminatory reasons for the two challenges that dispel any inference of bias. P.G. said he had “never been in favor of the death penalty,” and he did not believe “it has been applied in a standard way to the diverse population of offenders.” During voir dire, he indicated he could impose the death penalty “if things are very desperate, very clear that it’s not even,” because he accepted that it was the law. But he also said that he was not in favor of it and would support “tak[ing] it off the books.”

E.A. indicated on the questionnaire that she had been sexually abused as a child and was “recovering from a brain operation for seizure disorder.” She was on medication and had her doctor’s permission to serve as a juror. She would have “[djifficulty” to “judge in terms of the death penalty.” Regarding the death penalty, she wrote, “I feel sad that we have the death penalty, life is precious to me. Death penalty is necessary though because of the crime involved. I feel reluctant to be directly involved with a decision regarding the death penalty.” She added, “I understand the penalty of death. I do not want to be in a position to make a decision on this penalty.” During voir dire, she indicated that choosing life would not be an “emotional decision,” Choosing death would be “difficult,” but she could “detach” herself.

All of these circumstances support the conclusion that the prosecution excused these jurors for nondiscriminatory reasons and not due to group bias. These reasons, apparent from the record, are included in the actual reasons the prosecutors stated. This is no coincidence. The mere fact the prosecutors stated the reasons is not relevant to support a finding of no prima facie case. But the reasons apparent from the record and the reasons the prosecutor stated will generally, if not always, coincide.

Defendant notes that the prosecution challenged for cause another of the Hispanic prospective jurors, E.S., who eventually became an actual juror, on the basis that the juror had difficulty understanding the proceedings. The court denied the challenge. A prosecutor (and indeed any party) is entitled to challenge prospective jurors for cause. (People v. Kelly (2007) 42 Cal.4th 763, 780 [68 Cal.Rptr.3d 531, 171 P.3d 548].) Although a specious challenge for cause might in some circumstances support an inference of bias in a prosecutor’s peremptory challenges, nothing in this record suggests the challenge was specious. The record indicates the trial court was concerned that E.S. might have trouble with English, was probably not well educated, and offered a somewhat inappropriate response suggesting he would have a problem with the age of defendants. Moreover, the prosecutor did not challenge this juror peremptorily.

The totality of the circumstances as they existed at the time of the court’s first ruling did not suggest an inference of discriminatory purpose. The court properly found no prima facie case.

c. Second Finding of No Prima Facie Case

After the court denied the first Batson/Wheeler motion, jury selection continued. The prosecution accepted the jury multiple times with three Hispanic prospective jurors on the panel while defendants continued exercising peremptory challenges.

During this time, Prospective Juror R.F. was called. He was the sixth and final Hispanic to be called other than those excused for cause or hardship. R.F. provided no response when asked his racial or ethnic background on the questionnaire, and the record does not otherwise indicate his race or ethnicity; he qualifies as Hispanic because he has a Spanish surname. Outside the presence of the jury, defendant’s attorney challenged R.F. for cause for reasons not clear from the record. The court denied the challenge, stating, “I hope somebody excuses him, but I don’t believe it rises to cause.” When back in front of the jury, the prosecution exercised a peremptory challenge against R.F.

Later, defendant challenged one of the three remaining Hispanic jurors. After this, the prosecution accepted the jury two more times with the two remaining Hispanic prospective jurors on it. Then, after defendants exercised additional peremptory challenges, the prosecution challenged Hispanic Prospective Juror T.M. On her questionnaire, she identified herself as ‘“Hispanic/white.”

At this point, defendant made his second Batson/Wheeler objection, pointing out that the prosecution had challenged four of the six prospective Hispanic jurors subject to peremptory challenge. The court again found no prima facie case but invited the prosecution to “make a record with respect to [T.M.].” The prosecutor stated his reasons for that challenge: “She had some equivocation about the death penalty in her jury questionnaire. She indicated that: Police are fair most of the time. Sometimes I get the impression they prejudice people on how they look. She had mixed feelings about the death penalty. On page 20: Could you see yourself rejecting life and choosing the death penalty instead? She wrote no. She does work for the Department of Children Services [s/c]. I think she would tend to be more sympathetic to the problems of the defendants in the penalty phase. She seemed more in tune with the defense attorneys than she was when the prosecution voir dired her. She had some problems with immunized witnesses on her questionnaire.” The court did not evaluate those reasons but instead reiterated that it found no prima facie case.

The totality of the circumstances that existed at the time of this second objection also did not support an inference of a discriminatory purpose. Defendant stresses that at this point, the prosecution had exercised four of its 10 peremptory challenges to challenge four out of six (i.e., two-thirds) of the prospective Hispanic jurors, which meant that, after defendant challenged another of the Hispanic prospective jurors, only one Hispanic individual was actually on the jury. It appears that, as of this time, 19 percent of the jurors subject to challenge (six of 32) were Hispanic. Considered alone, these circumstances might suggest a discriminatory purpose, but under the totality of circumstances, they do not. The prosecution challenged R.F. immediately after defendant himself had challenged R.F. for cause, and the court, while denying the cause challenge, had stated the wish that someone would excuse him. This circumstance strongly suggests a nondiscriminatory purpose for the challenge.

Additionally, before the prosecution finally challenged T.M. (as well as R.F.) it had accepted the jury several times with three and then, after defendant challenged one, two Hispanic jurors on it. This circumstance, although not dispositive, “strongly suggests that race was not a motive behind the challenge.” (People v. Kelly, supra, 42 Cal.4th at p. 780; see People v. Cunningham (2015) 61 Cal.4th 609, 664 [189 Cal.Rptr.3d 737, 352 P.3d 318]; People v. Clark (2011) 52 Cal.4th 856, 906 [131 Cal.Rptr.3d 225, 261 P.3d 243].)

Additionally, the record clearly establishes nondiscriminatory reasons for challenging T.M. On the questionnaire, she answered “Yes” when asked whether she had “moral, ethical or religious beliefs that would make it difficult for you to vote for” the death penalty, explaining that “it would be hard, but it depends on the overall crime.” After stating that she could return a verdict of life imprisonment, she answered “No” to the question: “Given the fact that you have two options available to you, can you see yourself, in the appropriate case, rejecting life imprisonment without the possibility of parole and choosing the death penalty instead.” During voir dire, she said she could vote for the death penalty, but her questionnaire answers provided a strong reason for a prosecutor to excuse her out of concern about her views and not for a discriminatory purpose.

Defendant notes that the court did not invite the prosecution to state its reasons for excusing R.F. But because defendant himself had just challenged that juror for cause, and the court had expressed the wish that someone would excuse him, such an explanation was hardly necessary.

Defendant asks us to engage in comparative juror analysis, but such analysis is inappropriate in a first stage case such as this, where we do not evaluate the prosecution’s stated reasons for the challenges. (People v. Taylor, supra, 48 Cal.4th at pp. 616-617.) Moreover, even if we were to engage in comparative juror analysis in this situation, it would not aid defendant for the reasons stated in Justice Liu’s concurring opinion.

In short, the totality of the relevant facts as of the time of the objections does not give rise to an inference of a discriminatory purpose. The trial court properly denied the Batson/Wheeler objections.

B. Guilt Phase Issues

1. Admission of Two Witnesses’ Preliminary Hearing Testimony

The prosecution could not locate three witnesses at the time of trial and sought to have their preliminary hearing testimony admitted. The court denied the request as to one witness, finding the prosecution had not shown due diligence in locating him. It admitted the preliminary hearing testimony of the other two witnesses—Eduardo Rivera and Rosa S. Defendant contends the court erred as to these two witnesses.

a. Applicable Legal Principles

A criminal defendant has a state and federal constitutional right to confront witnesses, but the right is not absolute. If a witness is unavailable at trial and has given testimony at a previous court proceeding against the same defendant at which the defendant had the opportunity to cross-examine the witness, the previous testimony may be admitted at trial. In a criminal case, the prosecution bears the burden of showing that the witness is unavailable and, additionally, that it made a “good-faith effort” (Barber v. Page (1968) 390 U.S. 719, 725 [20 L.Ed.2d 255, 88 S.Ct. 1318]) or, equivalently, exercised reasonable or due diligence to obtain the witness’s presence at trial. (People v. Cromer (2001) 24 Cal.4th 889, 892 [103 Cal.Rptr.2d 23, 15 P.3d 243] (Cromer); see People v. Valencia (2008) 43 Cal.4th 268, 291-292 [74 Cal.Rptr.3d 605, 180 P.3d 351] [“California law and federal constitutional requirements are the same in this regard.”].)

“[T]he term ‘due diligence’ is ‘incapable of a mechanical definition,’ but it ‘connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.’ ” (Cromer, supra, 24 Cal.4th at p. 904.) Relevant considerations include the timeliness of the search, the importance of the witness’s testimony, and whether leads were competently explored. (Ibid.) The reviewing court defers to the trial court’s determination of the historical facts if supported by substantial evidence, but it reviews the trial court’s ultimate finding of due diligence independently, not deferentially. (People v. Bunyard (2009) 45 Cal.4th 836, 851 [89 Cal.Rptr.3d 264, 200 P.3d 879] (Bunyard); Cromer, supra, 24 Cal.4th at pp. 900-901.)

b. Eduardo Rivera

Defendant agreed that the due diligence question regarding Eduardo Rivera could be based on the district attorney’s offer of proof, which included the following. After the crime, Rivera, a Mexican national, told others that “he was distraught and was having a lot of mental and psychiatric problems as a result of witnessing the killing.” Several months before trial, he told various people that “he was returning to Mexico to buy a plot of land and was not planning to return.” Around April 1994 (i.e., six months before the Oct. 13, 1994 hearing), after a fourth suspect was arrested in these crimes, the district attorney’s office attempted unsuccessfully to locate Rivera. Two investigators “found the same information, that everyone told him he had left, he was no longer at his former address or former employment or former phone numbers.”

Since April 1994, Will Abram, an investigator with the district attorney’s office, had tried to locate Rivera. With the assistance of the Immigration and Naturalization Service, he determined that Rivera was, in fact, a Mexican national. Abram located Rivera’s brother on September 23, 1994, living in the San Francisco area, who confirmed that Rivera had “returned to Mexico with no definite plans to return at this time.” The brother could not give a telephone number for Rivera because he had no telephone. The location was “a small village outside of Guadalajara which, to our information, has one phone. His brother has made several attempts to leave messages at that phone to have his brother return his call, to no avail.”

Abram also told the court that the last conversation with the brother “was on October 4, last week, and the brother reiterated at that time that he made several attempts to call and left messages for his brother to return the call and he has not heard from Mr. Rivera yet.”

Based on these facts, the court found that the prosecution had exercised due diligence to obtain Rivera’s presence at trial and admitted his preliminary hearing testimony.

At trial, defendant argued that the prosecution should have sent an investigator to Mexico to try to find Rivera and convince him to come to California voluntarily to testify. On appeal, relying on cases that postdate the trial, he also argues that the prosecution should have made use of a treaty between Mexico and the United States that took effect in 1991 and that, as one of the cases defendant cites describes it, “allows the prosecution to request the assistance of Mexican authorities to invite a person in Mexico to come to California and testify and to inform the person concerning the extent to which expenses will be paid.” (People v. Sandoval (2001) 87 Cal.App.4th 1425, 1439 [105 Cal.Rptr.2d 504], fn. omitted (Sandoval); see People v. Herrera (2010) 49 Cal.4th 613, 626-627 & fn. 7 [110 Cal.Rptr.3d 729, 232 P.3d 710].)

The Attorney General argues that defendant has forfeited the claim that the prosecution should have made use of the treaty because he did not make that argument at trial. We disagree. Defendant objected to the admission of the preliminary hearing testimony and argued the prosecution had not shown due diligence in procuring the witness’s presence. Given that the prosecution has the burden of showing due diligence, this objection was sufficient to preserve the contention. The argument at trial need not be identical to the appellate argument in all respects. However, the circumstance that no one suggested the prosecution make use of the then very recent treaty is relevant to the question of whether the prosecution had made a good faith effort, i.e., exercised due diligence, to obtain the witness. The prosecution must do what is reasonable under the circumstances, not necessarily everything that can be suggested in hindsight.

Under the circumstances here, we conclude the prosecution exercised due diligence. It determined that Rivera had left California and returned to his native Mexico, and was apparently living in a village with only one communal telephone. It located Rivera’s brother, who tried, unsuccessfully, several times to contact Rivera. It is speculative to believe that additional efforts would have resulted in finding him and convincing him to return voluntarily to the United States to testify.

Nor was Rivera’s testimony particularly important. (Cromer, supra, 24 Cal.4th at p. 904.) Rivera, although important in the sense that he positively identified defendant as the perpetrator of very serious crimes, was but one of many witnesses, whose testimony was consistent and who overwhelmingly established defendant’s guilt of the crimes about which Rivera testified. In a case like this, with dozens of witnesses, there is a limit to what one can expect the prosecution to do to procure the attendance of a noncritical witness.

Defendant relies on Sandoval, supra, 87 Cal.App.4th 1425. But, unlike that case, Rivera was not a “crucial witness.” (Id. at p. 1428.) Nor, also unlike Sandoval, had the prosecution established contact with Rivera.

We conclude the trial court correctly found the prosecution exercised due diligence to try to locate Rivera and properly admitted his preliminary hearing testimony.

c. Rosa S.

Rosa S. was 13 years old at the time of the events about which she testified (May 1992), 14 years old when she testified at the preliminary hearing (Mar. 1993), and 16 years old at the time of the due diligence hearing on October 13, 1994. It appears she gave birth to a baby in January 1994, several months before the due diligence hearing.

Rosa had testified at the preliminary hearing under a grant of use immunity. Before she testified, the prosecution informed the court that it was having difficulty locating her. Two days later, it stated that it had finally located her the previous day when she was arrested in an unrelated matter. It requested that she be held to testify as a material witness under Penal Code section 1332. (See Bunyard, supra, 45 Cal.4th at p. 847.) The court ordered $20,000 bail be set to ensure her testimony. Two days later, after she had testified on direct examination and cross-examination had begun, the prosecution asked the court to set no bail at all because the witness had “indicated she has wanted to stay on the street, not any intention of returning home or resurfacing in this case.” The court maintained the $20,000 bail, and Rosa completed her testimony.

At trial, the prosecution informed the court it could not locate Rosa, and a due diligence hearing was held, based on representations from the two prosecutors and the testimony of investigator Will Abram.

The prosecutor stated that Rosa “has always been very cooperative in terms of testifying in this matter and providing information.” On May 4, 1994, after a fourth suspect in these robberies had been arrested, one of the prosecutors and