People v. Nelson (1 Cal. 5th 513, 2016)

Opinion

LIU, J.

Defendant Sergio Dujuan Nelson was convicted of the first degree murders of Robin Shirley and Lee Thompson. (Pen. Code, § 187; all undesig-nated statutory references are to this code.) The jury also found true the special circumstance allegations that Nelson committed multiple murders and that the murders were committed while lying in wait. (§ 190.2, subd. (a)(3), (15).) It also found true firearm-use allegations. (Former § 12022.5, subd. (a).) The first jury was unable to reach a penalty verdict, and the trial court declared a mistrial. At the second penalty phase, the jury returned a verdict of death. The trial court denied Nelson’s motions for a new trial (§ 1181) and for modification of the penalty verdict (§ 190.4, subd. (e)), and entered a judgment of death. This appeal is automatic. (Cal. Const., art. VI, §11; Pen. Code, § 1239, subd. (b).) We reverse the judgment on the lying-in-wait special circumstance due to insufficiency of the evidence. We also reverse the penalty phase judgment due to the trial court’s unwarranted intrusion into the jury’s deliberative process and remand for retrial of the penalty phase. We otherwise affirm the judgment.

I. FACTS

A. Guilt Phase

1. Overview

On September 11, 1993, Nelson resigned from his job at Target after failing to receive a promotion. Shortly before 4:00 a.m. on October 2, 1993, he shot and killed Robin Shirley, the woman who received the promotion Nelson believed he had deserved, and Lee Thompson, a coworker who had defended Shirley when Nelson harassed her about her promotion. Nelson knew Shirley typically waited in the parking lot for the store to open. He rode to the Target parking lot on his bicycle, armed with a loaded gun. Shirley and Thompson were in the front seat of Thompson’s car. Nelson parked his bicycle, approached the car on foot from behind and fired several shots into the car through an open rear window, then started to walk away before returning and firing again into the car. After shooting Shirley and Thompson, Nelson fled the scene on his bicycle, which he then abandoned when police chased him. In his closing argument, Nelson’s attorney conceded Nelson had killed the victims but argued the shootings had not been deliberate and premeditated.

2. Prosecution Case

On May, 2, 1992, Nelson, then 17, was hired at the La Verne Target store on Foothill Boulevard near White Avenue as a member of the “push team” that unloaded trucks and stocked shelves. Alejandro Sandoval, the push team leader, testified Nelson was an excellent worker who took on additional responsibilities and occasionally filled in for Sandoval. Still, both Sandoval and his supervisor, Kristin Strickland, told Nelson he needed to improve his interpersonal skills, because Nelson was demanding of coworkers and inappropriately acted like a supervisor even when he was not in charge. Nelson seemed receptive to the advice and continued to work hard.

In the spring of 1993, Nelson’s ex-girlfriend, Karen Horner, was hired at the Target store and joined the push team. (All undesignated calendar references are to 1993.) Nelson and Horner, a woman in her late 30’s, had become romantically involved while Nelson was 16 and still in high school and had lived together from November 1991 until late 1992. After their relationship ended, Nelson and Horner remained friends. According to Horner, they continued to socialize and occasionally were intimate.

In June 1993 Sandoval was promoted and his position as push team leader became available. Both Nelson and Robin Shirley, a fellow push team member, applied for the job. Shirley and Nelson were “good friends at work,” and she occasionally gave him rides to work. Horner, who was jealous of Shirley, believed “something was going on” between Nelson and Shirley because they often socialized at work and Nelson had been to Shirley’s home. Nelson told Horner that he wanted the promotion. Sandoval told Nelson he believed Nelson would be promoted. Nelson bragged to his coworkers that he was going to get the job and told other team members not to bother applying.

The day before the official announcement, Strickland told Nelson he would not be promoted. Nelson was upset that “people might make fun of him” and wanted to quit. Strickland encouraged him to stay, suggesting that he could be promoted in the future, but Nelson submitted a form indicating his intention to resign effective that day. Later that day he told Strickland he had changed his mind.

The next morning, Strickland announced over the loudspeaker that Shirley had received the promotion. Some members of the push team taunted Nelson over Shirley’s promotion. After Shirley was promoted, Nelson would have nothing to do with her. His job performance declined; he kept to himself and was noticeably depressed. Horner told Nelson he should have received the promotion because he was “quicker” than Shirley and because Sandoval “pumped [him] up for it.” Soon after Shirley was promoted, Nelson told Sandoval that he was “mad” because he felt he had deserved the promotion and burst into tears.

In late August, Lee Thompson and his friend, Robert Comeau, began working at the Target store. Comeau testified that he, Thompson, and Shirley often spent time together during lunch and breaks. According to many of her coworkers, Shirley regularly arrived at work early and parked her truck in front of the Target store. Those workers testified that employees often gathered in the parking lot and sat together in their cars before work. They noted that it was not uncommon for Shirley and Thompson to be seated in one or the other’s car before work. Comeau agreed that it was not uncommon for Thompson and Shirley to sit in a car together before the store opened, talking or listening to music, but he added that “[s]ometimes it was me and Robin or me and Lee or some other people.”

Soon after he started working at Target, Comeau was in the stockroom with Shirley and Thompson when Nelson joined them and angrily told Shirley that he deserved the promotion, not her. Thompson accused Nelson of harassing Shirley and told him to leave. Nelson left when Comeau approached him.

A few days later, Comeau heard a work radio “flick on and off’ and then heard Thompson and someone else talking. Thompson sounded upset; it seemed like there was going to be a fight. Comeau approached and saw Thompson and Nelson a couple of feet apart facing each other. Comeau told Thompson not to fight and pushed him away from Nelson. Nelson told Thompson, “I will get you, I wifi get you back some day.”

The next day, September 11, Nelson received a warning notice from Strickland due to his disruptive comments about Shirley. Nelson signed the warning, but then resigned effective that day.

At approximately 3:40 a.m. on October 2, witness Richard Hart and an acquaintance were outside of a 7-Eleven store near the Target when Hart heard a sound similar to repeated gunfire coming from the front of the Target store. He looked toward Target and saw a “muzzle flash” where a man was standing next to a truck and a car; the truck belonged to Shirley and the car, a Plymouth, to Thompson’s mother. Hart later identified the man as Nelson in a lineup and at trial. Nelson was clad in black clothing and wearing a black baseball cap. He appeared to be firing a gun into the Plymouth, but then stopped, turned around, and walked away. Hart heard a “gurgling” or “a rumbling” from the vicinity of the two vehicles. Nelson walked back to the car and fired again into it. Before Hart lost sight of him, Nelson appeared to adjust his pants or put something in them. Hart called 911.

La Verne Police Officer Larry Ross, the first responder, saw two people, Shirley and Thompson, in the Plymouth. He also observed the car’s doors were closed, its front windows were up, and its rear windows were rolled about halfway down. The radio was on. The car keys were in the ignition, but the engine was off. Ross checked Shirley and Thompson for vital signs and concluded they were dead.

Shirley was seated in the front passenger seat with a bullet wound to her forehead. Her head was tilted slightly to the left, and she was slumped towards the center of the seat. Before Ross could photograph her position, her body slumped “down further and further.” She was fully clothed with her shoes and socks on. Her arms were bent and facing inward and her hands were closed and on her lap. Thompson was in the driver’s seat, which was somewhat reclined, and he was slumped over. His bloodied head rested on the right floorboard. Thompson was also fully clothed except for his shoes, which were on the floor beneath the steering wheel.

Sergeant Carlton Williams was in his patrol car when he heard over the police radio that a thin black or Hispanic man wearing dark clothing who may have been involved in the Target shooting was heading toward White Avenue. He saw a male wearing dark clothing heading south on White Avenue on a bicycle and illuminated him with a spotlight. The bicyclist’s physique was consistent with Nelson’s. The bicyclist abruptly made a U-turn and quickly rode north. Williams pursued him until he abandoned the bicycle, ran across a dirt field, and disappeared into a commercial complex. Williams confiscated the bicycle. Williams testified that there were trees and brush near the Target store where someone could hide a bicycle.

When Horner arrived for work on October 2, she saw yellow tape surrounding Shirley’s truck and Thompson’s mother’s car and heard a rumor that two people had been killed. Horner left work. She, Nelson’s cousin, Alex Cosey, and Nelson’s friend, Johnny Lopez, drove around looking for Nelson. Lopez used a pay telephone to call Nelson’s pager. As they waited for Nelson to return the page, he appeared across the street from them wearing a dark baseball cap and black clothing. Horner asked where he had been, but Nelson did not answer. When Horner said that there were two dead people at Target, Nelson responded, “Who? Robin and Lee?”

Lopez drove Horner and Nelson toward the house in Pomona where Nelson lived. Horner asked Nelson where his gun was. He pulled down his waistband and showed it to her. Nelson had Lopez drop him off near the railroad tracks behind his house. Nelson got out of the car wearing a black holster and carrying the gun.

Police later searched the area by the railroad tracks near where Lopez dropped Nelson off. They found a black holster concealed in bushes by the tracks and a Taurus nine-millimeter semiautomatic handgun buried beneath a cinder block. The gun had a live round in the chamber and six live rounds in the magazine. In postarrest interviews, Nelson admitted he owned the holster and the gun. During an October 5 interview, he claimed that he had thrown the empty gun in a dumpster about a week earlier because Pomona police officers told him that he could be charged with second degree murder if the gun ended up in the wrong hands. When asked for details about that incident, Nelson declined to discuss it further.

Seven expended casings and two bullets were recovered at the murder scene. Five were on or under the Plymouth’s back seat. Firearms examiner Dwight Vanhorn testified that the expended cartridge cases from the scene and the expended bullets recovered from the bodies came from Nelson’s gun.

Senior medical examiner James Ribe testified that Shirley and Thompson died from multiple gunshot wounds. The first two shots that struck Shirley were concurrent causes of death. One bullet entered her middle forehead and the second one the back left side of her neck. A third, nonfatal, bullet entered her left shoulder. The first bullet had been fired from no more than 24 inches away. Thompson suffered a wound to his left temple and four wounds to his left back and side. The trajectory of the four bullets was consistent with Thompson having been leaning forward as the wounds were inflicted. Except for a gunshot to his shoulder blade, all of Thompson’s wounds were fatal. Senior criminalist Elizabeth Devine testified that the first round fired caused the wounds to Shirley’s neck and that the second round fired caused the wound to Thompson’s temple.

Lieutenant Carl Brubaker testified that his officers interviewed Target employees and Nelson’s family and friends in an attempt to discover if this case involved jealousy or a lover’s triangle. Those officers did not uncover evidence of a romantic relationship between Nelson and Shirley or a lover’s triangle between Nelson, Shirley, and Thompson. His officers only learned that there was friction between Nelson and Shirley and between Nelson and Thompson.

On October 2, officers executed a search warrant at Nelson’s house in Pomona. They recovered a pager from Nelson’s room and then placed Nelson under arrest for murder. At the police station, he waived his Miranda (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]) rights and was interviewed. Nelson said that when Shirley received the promotion he was not angry but did not feel “capable of performing the way [he] used to.” He denied knowing Shirley had been murdered but said he had heard from his aunt that two non-Target employees had been killed and dumped at Target. When he realized that he was suspected of the murders, Nelson said, “I didn’t do it. I wasn’t there.” He claimed that on the morning of the shooting he was at or near home, except for when he and his cousin Alex Cosey went running, between 7:00 a.m. and 7:30 a.m. Nelson said that two days earlier he had ridden Cosey’s bicycle to a mall where it had been stolen. Nelson added that he recently painted that bicycle black. He claimed he had not seen or spoken to Horner the day of the shooting. In a second interview two days later, Nelson repeated the claimed time sequence for the day of the murders. He said that on the day of the shooting another cousin Phillip Davis gave him a ride home from football practice. He identified the confiscated bicycle as the one stolen from him two days before the murders.

During this interview, Nelson said he did not know Lee Thompson because he had just started working at Target when Nelson quit. Nelson said he “couldn’t work there mentally” because Strickland accused him of “bad mouthing the other employees.” He claimed he stopped socializing with employees two weeks before Shirley was promoted because the workers were “saying a bunch of lies.” Nelson denied having bragged he would get promoted, but admitted he knew that Strickland had said his bragging was one reason he was not promoted. He said that, before the promotion, he and Shirley were “friends.” He said that it had been “normal” for him, Sandoval, and Shirley to arrive at the Target store early and wait for Strickland to open the store. Nelson knew that Shirley owned two trucks and that she drove both to work. Nelson denied ever getting mad at or threatening Shirley or telling anyone that he should have received the promotion. Nelson said he did not know what kind of car Thompson drove.

Nelson said he had only used the repainted bicycle for two days before it was stolen. He admitted having bought a black holster and a nine-millimeter gun from Cosey but said he never bought bullets for the gun or shot it and had thrown it in the trash the day after he quit Target.

3. Defense Case

At trial, the defense conceded that Nelson shot and killed the victims but attempted to establish it was a spontaneous act committed without premeditation or deliberation. To that end, the defense presented testimony that Nelson suffered from various mental health problems, including depression so severe he had made at least one suicide attempt and had repeatedly made suicide threats. The defense also presented evidence to show Nelson’s fragile mental state was worsened by his mother’s rejection of him in favor of her boyfriend and a complicated relationship with Karen Horner and her daughter, Valerie—Nelson was in love with Valerie, but sexually involved with Karen. The defense also presented evidence that Robin Shirley had flirted with male employees at Target, but presented no evidence of a romantic relationship between her and Nelson. Essentially, the defense attempted to show that Nelson’s mental health problems, family dysfunction, and sexual and relationship issues combined with his failure to win a coveted promotion led him to snap and kill the victims impulsively.

Valerie Horner (Valerie) testified she first met Nelson in 1991 through her brother Allen with whom Nelson was friends. (Here and elsewhere, individuals with the same surname are referred to by their first names to avoid confusion.) Nelson was often at the Horners’ house that summer because he was not getting along with his mother’s boyfriend and his mother did not pay attention to him. Nelson told Valerie he loved her but she told him that she wanted to “just remain friends.” Sometime in August 1991, Karen became angry because Valerie, Nelson, and Valerie’s cousins were in Valerie’s bedroom with the door closed. Karen sent Valerie to stay with relatives until school started. That fall, Nelson began skipping classes and then dropped out of school. He told Valerie that he was seeing an older woman who, Valerie learned, was her mother. Nelson told Valerie if he could not have her, he “went for second best.”

Nelson called Valerie in February 1992, sounding very depressed. He picked her up the next day and drove to the trailer park in San Bernardino where he lived with Karen, who was not at home. Nelson appeared very thin and said he saw no reason to live. Valerie testified that Nelson often spoke that way. While they were in the trailer, Valerie had sex with Nelson because she “cared” for him and because she wanted to “get back” at her mother. In April 1992, Nelson and Valerie stopped speaking.

Yvonne Cosey, Nelson’s aunt, testified that Nelson was depressed and became anorexic after his mother kicked him out of her home in 1991. Nelson had been living with Karen, but moved into Yvonne’s house in Pomona in June of 1993. Karen frequently visited and called Nelson at Cosey’s house. Alex Cosey, Yvonne’s son, testified he was aware of Nelson’s problems at the Target store, but felt Nelson had appeared “normal” in the months before the shooting. Yvonne testified that in September, Nelson became quiet and withdrawn. She was unaware he had quit his job. She thought that his personality had changed because she had been laid off in September and had asked him to contribute financially to the household.

Alex also testified that he gave Nelson the nine-millimeter gun in June 1993, after his family was threatened by a gang that controlled their neighborhood. Another cousin Phillip Davis testified that he and Nelson had armed themselves after a gang member pointed a gun at Davis that June. Alex testified Nelson kept the gun beneath his pillow and that he had last seen Nelson with it a couple of weeks before the murders during an altercation with the gang. Cosey also testified that Nelson almost always wore dark clothing, a detail confirmed by Johnny Lopez.

Johnny Lopez testified that he visited Nelson and Karen in San Bernardino while they lived together and described them as constantly arguing. In February 1992, Nelson started giving away his belongings as part of his decision to kill himself. Lopez believed Nelson’s problems were caused in part by his relationship with Karen. Once Karen was “out of the scene,” Lopez and Nelson spent more time together and Lopez felt that Nelson seemed “back to normal.”

Michelle Horner was married to Allen Horner, Karen Horner’s son. Michelle testified that Karen and Nelson lived with her and her husband in the fall of 1992. Nelson “constantly” talked about committing suicide, often while holding a knife. Michelle and Allen spent hours telling Nelson not to kill himself; afterwards, Nelson would go to bed “like it was nothing.” Michelle did not consider the threats to be serious. She thought Nelson simply wanted attention. After Nelson and Karen moved to a trailer in San Bernardino, Nelson prevented Michelle and Allen from talking to or seeing Karen. Michelle felt that Nelson controlled Karen through most of the relationship. She had also seen bruises on Karen’s hands. Karen moved back in with Michelle and Allen in March 1993. Between the time Nelson quit his job at Target and the shooting, Karen called him daily. During the conversations, Karen accused Nelson of flirting with his coworkers, called Shirley a “whore” and a “bitch,” and told Nelson that he should have received the promotion.

Michelle testified that she, Allen, Karen, her sister and Nelson spent 12 hours together at the Los Angeles County Fair two days before the shooting. Nelson had seemed to her “to be the same person” he had always been.

On March 29, 1992, Nelson was treated at a Kaiser Permanente hospital emergency room for an overdose of Robaxin, a muscle relaxant. Dr. Robert Frost, the treating physician, testified that Nelson reported having consumed about 10 tablets when the usual dosage was one tablet. Dr. Frost could not determine if Nelson actually had taken Robaxin because blood work did not reveal drugs in Nelson’s system. Nelson’s stomach was pumped and he was referred for a psychological consultation.

Psychologist Herb Glazeroff conducted that consultation. Nelson told Dr. Glazeroff he tried to commit suicide because he felt he was a burden to others but did not mention any prior suicide attempts. Dr. Glazeroff diagnosed Nelson with an “adjustment disorder with depressed mood” and referred him to a local clinic. Dr. Glazeroff concluded Nelson’s action was not “a serious suicide attempt” because it appeared that Nelson had acted impulsively, had reported his conduct, and had come to the hospital voluntarily. Dr. Glazeroff concluded that Nelson presented “no psychotic indicators” and that his cognitive function was intact. He discharged Nelson after determining that he was not “at risk to harm himself.”

Several witnesses who had worked at Target at the same time as Nelson, Shirley, and Thompson also testified. Two of them—Tracy Robinson and Elizabeth Rylander—testified that, while Shirley and Nelson were friends at work, and Nelson had made physical advances to Shirley, she had no romantic interest in him. They stopped associating at work after Shirley was promoted. Robinson also testified that Shirley, who was married but had been separated, was “flirty” with other male employees, including Thompson whom she thought was “very cute.” Raymond Nieto and Charles McGruder, father of Justin McGurder, also a Target employee, testified that Shirley had pursued Nieto and Justin when the two men worked at Target, but neither had been interested. However, Frances Voss, another Target employee, testified she had never seen evidence Shirley was intimate with any of her co workers.

Robinson also testified that Nelson had irked Thompson by telling him how to do his job. Robinson, Voss, and Nieto testified that Nelson was devastated when he was not promoted and fell into a depression.

Dr. Stephen Wells, a forensic psychologist, met with Nelson five times in the summer of 1994 for a total of 10 and one-half hours. Besides interviewing Nelson, Dr. Wells also interviewed his mother, reviewed police reports, and read Nelson’s medical and high school records. Additionally, Dr. Wells administered three standardized tests to Nelson: (1) the Million Clinical Multi-Axial (MCMI); (2) the Minnesota Multi-Phasic Personality Inventory (MMPI); and (3) the California Psychological Inventory. Dr. Wells testified that the test results supported a diagnosis of paranoid schizophrenia and dysthymia, a type of long-standing depression. He explained that these disorders can cause a person to experience disordered thinking, act on delusional ideas, misinterpret social situations, and have difficulty handling anxiety and recognizing alternatives during a conflict.

Dr. Wells characterized Nelson’s relationships with Karen Horner and her daughter Valerie as “pathological,” in part because Nelson loved Valerie and not her mother, yet he was intimate with Karen. Regarding Nelson’s relationship with Shirley, Nelson told Dr. Wells it had been friendly, but “not . . . intimate or romantic.”

Regarding the shooting, Nelson told Dr. Wells he remembered having trouble sleeping before riding his bicycle to Target carrying his gun. He did not know what he was going to do, but contemplated shooting himself. When he approached the Plymouth, he thought he saw Thompson bending toward the floor. He fired at Thompson because he believed he was reaching for a gun. The next thing he recalled was fleeing the scene on his bicycle. When a police officer chased him, he “dumped the bike and took off running.”

Dr. Wells opined that Nelson’s failure to get promoted was a “major occurrence” that changed the way Nelson felt about his life, Target, his coworkers, and Shirley in particular. After Shirley was promoted, Nelson became paranoid, angry, and resentful towards those who played an important role in his life and entered the “early stages of the schizophrenic process.” Wells concluded that Nelson was suffering from paranoid schizophrenia on the morning he killed Shirley and Thompson. He felt Nelson was also suffering from anxiety, dysthymia, and personality disorders due to his dysfunctional family life. Although Wells believed that Nelson suffered from schizophrenia when he shot Shirley and Thompson, he testified that Nelson “was sane at the time” of the murders and was able to think, make decisions, and “come up with his own ideas” and “carry [them] out.” Wells concluded that Nelson “doubted himself as a man” and “doubted himself sexually.” He concluded that Nelson had tried to function like an adult but he was “just a child” who “had gotten himself involved in a situation ... far beyond his level of maturity.”

Dr. Wells also concluded that Nelson was not malingering. But Wells conceded he had not detected any sign of schizophrenia during their initial meetings and had not reached that diagnosis until he received the psychological test results. Wells acknowledged that he was “surprised” by those test results. He admitted that he had not included in his report that the MCMI interpretation of Nelson’s results indicated that Nelson’s responses might have indicated a “broad tendency to magnify the level of experienced illness or a categorical inclination to complain and be self-pitying.” Wells additionally acknowledged that the results of “validity scales” on Nelson’s MMPI test would cause most psychologists to be concerned that Nelson had been lying in his responses. Wells conceded that it was “possible” that Nelson had lied.

4. Prosecution’s Rebuttal Case

Allen Horner testified that he had been close friends with Nelson since 1988 and they had spent time together on a daily basis until 1991. Their friendship became strained when Nelson became involved with Allen’s mother. In 1992, Nelson and Karen stayed with Allen and his family and Allen resumed his friendship with Nelson. Two days before the Target shooting, Nelson spent the day with Allen’s family at the Los Angeles County Fair until 1:00 a.m. Allen testified that Nelson had seemed “normal” and “happy” throughout the day.

Monica Vergara, Thompson’s fiancée, testified that they had become engaged to be married nine days before he was killed. During the time that Thompson worked at Target, Vergara saw him every day. Thompson had told her that he and Shirley were friends, and he often had talked to Vergara about Shirley. Vergara never knew Thompson to own a gun.

Forensic Psychiatrist Ronald Markman reviewed the history of the case, Dr. Wells’s report on Nelson and the results of the psychological tests Wells administered to Nelson. Dr. Markman testified he could not draw any conclusion about Nelson’s mental condition because he had not met with him. But Markman testified that the results of the tests administered to Nelson suggested that Nelson pervasively lied during the testing in an attempt “to look bad” and “exaggerate his condition.” Markman believed that Dr. Wells’s clinical diagnosis was “simply taken from the test results,” which Markman opined were invalid. Markman did not disagree with Wells’s diagnosis that Nelson suffered from depression. As to Wells’s diagnosis of paranoid schizophrenia, however, Markman testified that if he were to interview a person with paranoid schizophrenia, he could detect symptoms of the illness during their first meeting. He explained that schizophrenia develops over time and that paranoid schizophrenics “may not be significantly impaired in [their] day to day behavior or function.” He added that paranoid schizophrenics can have a high “sensitivity to reality” and are able to “think in very exact terms,” make plans and decisions in their daily lives, and “weigh and consider pros and cons” of those daily decisions.

Detective Dale Nancarrow searched the Plymouth’s interior after the bodies were removed. He found no weapons or objects that would have appeared to be weapons. There were no bullet holes anywhere on the outside of the car.

Shirley’s mother, Ellis Verdugo, testified that Shirley’s children lived with her for two weeks before Easter in 1993 because there had been “some strain” between Shirley and her husband. Shirley saw her husband daily during those two weeks. Afterward, Shirley and her children moved back in with Shirley’s husband and they all lived together until Shirley was killed.

Deputy Sheriff Robert Fowler testified that he had had repeated contact with Nelson since November 1993, when Nelson first appeared in superior court on the murder charges. Deputy Fowler testified that Nelson always was cooperative and never had been classified as requiring “special handling” as a suicide risk or for any other mental or medical problem.

B. Penalty Phase

As noted, there were two penalty phase trials in this case. The first ended in a mistrial after the jury deadlocked. The second will be discussed below.

1. Prosecution Case

The prosecution presented evidence regarding the murders in the Target parking lot similar to that admitted at the guilt phase. In addition, it presented victim impact testimony from victim Robin Shirley’s husband, Robert, Shirley’s mother, victim Lee Thompson’s fiancée, and Thompson’s mother. Robert Shirley testified that he and Robin Shirley had been married for 11 years and had two young children. Shirley was his best friend, and his life would never be the same without her. Their children were devastated by their mother’s death. Ellis Verdugo, Shirley’s mother, testified that she and Shirley visited daily and were close. She missed Shirley terribly. Monica Vergara, Lee’s fiancée, testified they were to have been married in the fall of 1993. She testified he was always trying to help people and was the only person in her life on whom she could truly depend for support. Thompson’s mother, Clara, testified he was a wonderful son and that his family loved and missed him tremendously. The prosecution also presented testimony from Alex Cosey that, on the day of the shooting, Nelson told him that he had shot two people at Target and that, when the woman made a “grunt noise,” he went “back to her and shot her again.”

2. Defense Evidence

Nelson presented evidence from Target employees similar to that admitted at the guilt phase. In addition, some employees testified that they never had seen Nelson exhibit anger towards Shirley or threaten her. Charles McGruder, employee Justin McGruder’s father, testified that Nelson visited Justin in the hospital and that Nelson appeared to be a hardworking, career-oriented, gregarious young man. Nelson presented evidence about his childhood from many family members, including evidence of parental neglect, his legal emancipation in March 1992 at the age of 17, his depression, and how he helped his grandmother pay her mortgage.

Family members and friends testified it was completely out of character for Nelson to have committed the murders. Raymond Nieto testified that Nelson told him that he was depressed because he had “been put down” at work and that he had been “in charge” but “they just went over him and didn’t give him a promotion.” The director of the National Safe Workplace Institute proffered expert testimony regarding perpetrators of workplace violence. Their self-esteem often is heavily dependent on their jobs. When their work situation is threatened, they engage in aggression toward the work environment. They often lack coping skills, have poor impulse control, become isolated, and blame others for a work disappointment. They may seem superficially fine, but are tortured inside. They may engage in behavior uncharacteristic with their past. As they become isolated, they often become irrational and unstable.

II. GUILT PHASE ISSUES

A. Expert Opinion

Nelson contends the trial court erred by permitting criminalist Elizabeth Devine to testify it was her expert opinion that Shirley was shot first. He argues that Devine’s qualifications for making a shot sequence determination failed to meet the foundational requirements of Evidence Code section 720, subdivision (a) because she lacked crime reconstruction expertise. He argues further that the shot sequence testimony was speculative and therefore unreliable for purposes of Evidence Code section 801, subdivision (b), and the Eighth and Fourteenth Amendments* “heightened reliability” requirement in capital cases.

Where, as here, Nelson raises federal constitutional claims he failed to make at trial, we apply the following analysis: “In each instance, unless otherwise indicated, it appears that either (1) the appellate claim is of a kind (e.g., failure to instruct sua sponte; erroneous instruction affecting defendant’s substantial rights) that required no trial court action by the defendant to preserve it, or (2) the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court’s act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution. To that extent, defendant’s new constitutional arguments are not forfeited on appeal. [Citations.] [¶] In the latter instance, of course, rejection, on the merits, of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional ‘gloss’ as well. No separate constitutional discussion is required in such cases, and we therefore provide none.” (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 [42 Cal.Rptr.3d 677, 133 P.3d 581]; see also People v. Hartsch (2010) 49 Cal.4th 472, 493, fn. 19 [110 Cal.Rptr.3d 673, 232 P.3d 663].)

We conclude that the trial court properly admitted Devine’s testimony on shot sequence.

1. Background

The prosecutor called Elizabeth Devine to testify that, in her expert opinion, the hrst bullet Nelson hred through the Plymouth’s left rear window hit Shirley and the second round hit Thompson in the head. Nelson objected that her proffered testimony on shot sequence lacked the proper foundation and expertise because Devine’s area of expertise was serology, not ballistics or crime reconstruction. The court ordered the prosecutor to lay a foundation for Devine’s testimony before she could render an opinion on the shot sequence.

Before the jury, Devine testified that she was a senior criminalist with the Los Angeles County Sheriff’s Department. Devine explained that a criminalist “analyzes, collects, and uses scientihc means to come to some determination about evidence.” At the time of trial, she had been employed as a criminalist for nine years. She had a master’s degree in forensic science and criminalistics from California State University at Los Angeles, and her course work included death investigations. She had also been trained in bloodstain pattern interpretation. After graduate school, she took advanced courses in crime scene reconstruction and bullet trajectories at the California Criminalistics Institute in Sacramento. She testified that the primary means of learning crime scene reconstruction is field experience. To that end, she had examined at least 300 crime scenes, and her field experience included at least three years of instruction from Ron Lenhart, a renowned expert in bloodstain patterns and crime scene reconstruction. During that period, Devine evaluated evidence and photographs from crime scenes to answer questions related to reconstruction. At the time of trial, she was working in the serology section of the Los Angeles County crime lab. She explained that, besides collecting blood and other bodily fluids from crime scenes, serologists interpret bloodstain patterns to determine a suspect’s position during a shooting and where the victims were located at the time they were shot.

To determine what had happened the morning of the Target shooting, Devine examined the crime scene, interviewed the detectives handling the case, examined photographs of the victims inside the Plymouth, inspected and photographed the car, reviewed the autopsy photographs, reports, and protocol, and talked to the medical examiner who had performed the autopsies. Based on her investigation, Devine concluded that all of the bullets were fired through or into the Plymouth’s open left rear window. She testified that she had also developed an opinion regarding which shot had been fired first.

Before she was allowed to give that opinion, defense counsel conducted voir dire on her qualifications. Under defense questioning, she testified she had previously qualified to testify as an expert regarding bullet trajectories, although trajectories were not specifically her area of expertise.

Defense counsel renewed his objection to Devine’s expertise to testify about shot sequence. The trial court overruled the objection. It determined that, “based on her education, training and experience,” Devine could provide the jury with a “scenario . . . from known facts and opinions with reference to the sequence” of the first shots.

Devine then testified that Shirley was shot before Thompson. She opined that the first bullet fired caused an entrance and exit wound to Shirley’s neck and then lodged in the front passenger door, while the second bullet passed through Thompson’s temple as his head was turned to the left and then grazed Shirley’s upper left shoulder before landing on the front passenger seat behind Shirley. She based her opinion about the sequence of the first two shots on the fact that the driver’s seat had been slightly reclined when Thompson was shot in the temple, and in that position the bullet that killed Thompson would have been unable to graze Shirley’s left shoulder. Her shoulder would have been accessible to the bullet only if, when it was fired, she was slightly slumped forward. Devine opined that Shirley slumped forward when she was shot in the neck before Thompson was shot.

Regarding expert testimony, the jury was instructed that “[a] person is qualified to testify as an expert if he or she has special knowledge, skill, experience, training or education sufficient to qualify him or her as an expert on the subject to which his or her testimony relates. [¶] A duly qualified expert may give an opinion on questions in controversy at a trial. [¶] To assist you in deciding such questions, you may consider the opinion with the reasons given for, if any, by the expert who gives the opinion. You may also consider the qualifications and credibility of the expert. [¶] You are not bound to accept an expert opinion as conclusive, but should give to it the weight to which you find it to be entitled. You may disregard any such opinion if you find it to be unreasonable.”

2. Analysis

“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) ‘“Against the objection of a party, such special knowledge . . . must be shown before the witness may testify as an expert.” (Ibid.) The witness’s expertise ‘“may be shown by any otherwise admissible evidence, including his [or her] own testimony.” (Id., subd. (b).) Evidence Code section 801 provides that ‘“[i]f a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”

“The trial court’s determination of whether a witness qualifies as an expert is a matter of discretion and will not be disturbed absent a showing of manifest abuse. [Citation.] ‘ “Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than to its admissibility.” ’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 321-322 [75 Cal.Rptr.2d 412, 956 P.2d 374].)

Devine’s training in the examination of crime scenes, crime scene reconstruction, bullet trajectories, and bloodstain pattern analysis was sufficient to permit her to render an opinion on shot sequence. It was not necessary for the scope of Devine’s employment to be specifically focused on that subject matter. (People v. Robinson (2005) 37 Cal.4th 592, 632 [36 Cal.Rptr.3d 760, 124 P.3d 363] [“the opinion evidence here at issue did not require that the witness have expertise beyond that which was shown”].) Accordingly, we conclude that the trial court did not abuse its discretion in deciding that Devine was qualified to render an opinion on shot sequence (Evid. Code, § 720, subd. (a); People v. Fuiava (2012) 53 Cal.4th 622, 672 [137 Cal.Rptr.3d 147, 269 P.3d 568]), that Devine’s challenged opinion was the proper subject of expert testimony (Evid. Code, § 801; People v. McDonald (1984) 37 Cal.3d 351, 367 [208 Cal.Rptr. 236, 690 P.2d 709]), and that the evidence Devine relied on in reaching her opinion that Shirley was shot first was not speculative, but was of a “type that reasonably may be relied upon by an expert in forming an opinion.” (Evid. Code, § 801, subd. (b); see People v. Jones (2012) 54 Cal.4th 1, 59-61 [140 Cal.Rptr.3d 383, 275 P.3d 496].)

Defense counsel was entitled to present his own expert as a defense witness on the issue of shot sequence but did not do so. Defense counsel also was entitled to challenge the persuasive value of Devine’s opinion on shot sequence through cross-examination, which he did. As noted, questions regarding the validity or the credibility of an expert’s knowledge are matters for the jury to decide (People v. Bolin, supra, 18 Cal.4th at p. 322) but do not provide a basis for excluding the expert’s testimony in the first instance and did not do so in this case.

Having concluded that the court did not abuse its discretion in admitting Devine’s opinion testimony that Shirley was shot first, we find no merit in Nelson’s claim that Devine’s “unsupported” opinion on shot sequence violated any federal constitutional right. (See People v. Prince (2007) 40 Cal.4th 1179, 1229 [57 Cal.Rptr.3d 543, 156 P.3d 1015] [“ ‘Application of the ordinary rules of evidence generally does not impermissibly infringe upon a capital defendant’s constitutional rights’ ”].)

B. Pleat of Passion Instruction

Nelson contends the trial court prejudicially erred by refusing to instruct the jury on voluntary manslaughter based on heat of passion. We conclude the claim is without merit because there was insufficient evidence in the record to warrant such instructions.

At trial, defense counsel argued that the jury should be instructed on voluntary manslaughter based on heat of passion as to both victims. He asked the trial court to instruct the jury with CALJIC No. 8.42, which explains the doctrine of heat of passion, and with CALJIC No. 8.44, which explains that no specific emotion constitutes heat of passion. Counsel also proposed four pinpoint instructions on heat of passion. Defense counsel argued that the evidence showed that Nelson killed the victims in a fit of jealous rage when he discovered Shirley, with whom he was in love, with his rival, Thompson.

The trial court denied the requested heat of passion instructions on the ground that the evidence did not support them. It ultimately instructed the jury on first degree murder based on premeditation and deliberation as well as lying in wait, unpremeditated second degree murder, second degree malice murder, voluntary manslaughter committed with the honest but unreasonable belief in the need to defend oneself as to Thompson, and involuntary manslaughter.

“Murder is the unlawful killing of a human being . . . with malice aforethought.” (§ 187, subd. (a).) “Manslaughter is the unlawful killing of a human being without malice.” (§ 192, subd. (a).) Manslaughter is a lesser included offense of murder, and a defendant who commits an intentional and unlawful killing but who lacks malice is guilty of voluntary manslaughter. Heat of passion is one of the mental states that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter. (People v. Breverman (1998) 19 Cal.4th 142, 154 [77 Cal.Rptr.2d 870, 960 P.2d 1094] (Breverman).)

“An instruction on a lesser included offense must be given only if there is substantial evidence from which a jury could reasonably conclude that the defendant committed the lesser, uncharged offense, but not the greater, charged offense.” (People v. Thomas (2012) 53 Cal.4th 771, 813 [137 Cal.Rptr.3d 533, 269 P.3d 1109].) The “substantial evidence requirement is not satisfied by ‘ “any evidence ... no matter how weak,” ’ but rather by evidence from which a jury . . . could conclude ‘that the lesser offense, but not the greater, was committed.’ ” (People v. Avila (2009) 46 Cal.4th 680, 705 [94 Cal.Rptr.3d 699, 208 P.3d 634].) “On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense.” (People v. Souza (2012) 54 Cal.4th 90, 113 [141 Cal.Rptr.3d 419, 277 P.3d 118].)

The fundamental inquiry when examining heat of passion in the context of manslaughter “ ‘is whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion ... to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.’ ” (People v. Beltran (2013) 56 Cal.4th 935, 948 [157 Cal.Rptr.3d 503, 301 P.3d 1120] (Beltran).) Heat of passion is “a state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation.” (Id. at p. 942.) Further, the ‘“proper standard focuses upon whether the person of average disposition would be induced to react from passion and not from judgment.” (Id. at p. 939.)

This, however, ‘“does not mean that a defendant does not form malice unless he thinks rationally or exercises sound judgment.” (Beltran, supra, 56 Cal.4th at p. 950, italics omitted.) For purposes of the heat of passion doctrine, ‘“provocation is sufficient not because it affects the quality of one’s thought processes, but because it eclipses reflection. A person in this state simply reacts from emotion due to the provocation, without deliberation or judgment.” (Ibid.) The standard requires more than evidence that a defendant’s passions were aroused. The facts and circumstances must be “ ‘sufficient to arouse the passions of the ordinarily reasonable man.’ ” (Ibid.) Moreover, the defendant must “actually be motivated by passion in committing the killing”; that is, he or she must be acting “ ‘ ‘“under the smart of that sudden quarrel or heat of passion.” ’ ” (Id. at p. 951.) Accordingly, it is not sufficient that a person ‘“is provoked and [then] later kills.” (Ibid., italics added.)

Defendant advances the following scenario in support of his claim that heat of passion instructions were warranted in this case: ‘“An adolescent boy fell in love with his coworker, a relentless flirt who egged on the boy as she did others. He went to see her early one morning before she started work. He approached her truck, only to find it empty. Nearby was a brown car that the teenager did not recognize. He looked in the car and was shocked to see the object of his desire cuddling with a man. He was further shocked to see that the man was another coworker who was the youth’s rival. Enraged and out of control, the teen used the gun he carried for protection to shoot and kill the couple.” Defendant fails to provide any citation to the record that would provide an evidentiary basis for this scenario.

Defendant presented no evidence he was in love with Shirley or that she ‘“egged” him on. While Nelson’s witnesses testified Shirley was flirtatious toward other male employees, they also testified she did not like Nelson in a romantic way. Nelson himself told Dr. Wells that although he and Shirley were friendly, they did not have ‘“an intimate or romantic” relationship. Nor did Nelson present any evidence that his alleged romantic feelings for Shirley drove him to look for her at the Target parking lot on the morning of the murders. The only evidence he presented regarding his motivation for being in the parking lot were his statements to Dr. Wells that he was suffering from insomnia and ‘“went to the Target Center without any clear idea of what he was going to do,” but that he thought he might shoot himself. Furthermore, Nelson told Wells that he shot Thompson, not because he found Thompson with Shirley, but because he thought Thompson was reaching for a gun. Moreover, regarding the victims’ relationship, although there was evidence Shirley thought Thompson was “very cute,” there was no evidence they were romantically involved. In short, Nelson failed to present substantial evidence that he killed the victims in a moment of jealous rage.

The improbability of this jealous rage scenario would also have been underscored for the trial court by the prosecution’s strong evidence that the murders were motivated by Nelson’s anger at having been passed over for a promotion in favor of Shirley, his work conflicts with Thompson, and the strong evidence of premeditation and deliberation.

Nelson’s further claim that Karen Horner’s disparaging comments about Shirley aroused his passions and provoked him fails because “ ‘[t]he provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim.’ ” (People v. Moye (2009) 47 Cal.4th 537, 549-550 [98 Cal.Rptr.3d 113, 213 P.3d 652].) Moreover, even if we assumed Horner’s comments incited Nelson, that incitement must be objectively sufficient “ ‘to arouse the passions of the ordinarily reasonable man.’ ” (Beltran, supra, 56 Cal.4th at p. 950.) Horner’s statements fail that test.

Because no jury composed of reasonable persons could have concluded that when Nelson shot and killed Shirley and Thompson, he “simply react[ed] from emotion due to . . . provocation, without deliberation or judgment” (Beltran, supra, 56 Cal.4th at p. 950), the trial court properly refused his heat of passion instructions. In light of this conclusion, the trial court’s supposedly erroneous statements regarding heat of passion Nelson mentions are of no moment.

Nelson contends that the trial court’s failure to instruct on heat of passion deprived him of his rights to due process, a fair trial, trial by jury, confrontation and cross-examination, presentation of a defense, effective assistance of counsel, equal protection, and reliable guilt and penalty phase verdicts in a capital case, guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal Constitution. Citing Beck v. Alabama (1980) 447 U.S. 625 [65 L.Ed.2d 392, 100 S.Ct. 2382] (Beck), he contends the federal Constitution requires instruction on lesser included offenses in capital cases.

In Beck, the United States Supreme Court held that a sentence of death violates the Fourteenth Amendment when the jury was not permitted to consider a verdict of guilt for a lesser included noncapital offense and “ ‘the evidence would [have] permit[ted] a jury rationally to find [the defendant] guilty of the lesser offense and acquit him of the greater.’ ” (Beck, supra, 447 U.S. at p. 635.) As demonstrated, however, the evidence would not have supported a conviction for voluntary manslaughter based on a heat of passion theory. Accordingly, Beck is not implicated. In any event, Beck’s principles are satisfied if the jury was provided some noncapital third option between the capital charge and acquittal. (Schad v. Arizona (1991) 501 U.S. 624, 647 [115 L.Ed.2d 555, 111 S.Ct. 2491]; see People v. Sakarias (2000) 22 Cal.4th 596, 621 fn. 3 [94 Cal.Rptr.2d 17, 995 P.2d 152]; Breverman, supra, 19 Cal.4th at p. 167.) Here, where the jury was provided with the option of first degree murder without special circumstances, or of second degree murder on two separate theories, or manslaughter, we find no due process or other federal constitutional error.

C. Provocation Instructions

Nelson contends that the trial court committed prejudicial error by refusing to give the jury two instructions regarding provocation. He contends that the trial court’s failure to give these instructions deprived him of his federal constitutional right to adequate instructions on the defense theory of the case and of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. We conclude the trial court properly denied the requested instructions because there was insufficient evidence to warrant them.

Defense counsel asked the trial court to instruct the jury pursuant to CALJIC No. 8.73 as follows: “If evidence established that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing [it] may have on whether the defendant killed with or without deliberation and premeditation.” Counsel also requested a defense instruction that stated: “In deciding whether or not you are convinced beyond a reasonable doubt that the defendant deliberated and premeditated, you should consider the effects of provocation on the defendant at the time of the killings. This provocation may come from any person, including persons other than the victims.” The trial court rejected both instructions.

“The evidentiary premise of a provocation defense is the defendant’s emotional reaction to the conduct of another, which emotion may negate a requisite mental state.” (People v. Ward (2005) 36 Cal.4th 186, 215 [30 Cal.Rptr.3d 464, 114 P.3d 717].) “[U]nder the principles expressed in CALJIC No. 8.73, provocation is relevant only to the extent it ‘bears on the question’ whether defendant premeditated and deliberated. [Citation.] Because CALJIC No. 8.73 relates the evidence of provocation to the specific legal issue of premeditation and deliberation, it is a ‘pinpoint instruction’ . . . , and need not be given on the court’s own motion. [Citations.]” (People v. Rogers (2006) 39 Cal.4th 826, 878-879 [48 Cal.Rptr.3d 1, 141 P.3d 135].) However, on request, a criminal defendant is entitled to pinpoint instructions that relate particular facts to an element of the charged offense and highlight or explain a theory of the defense if the instructions are supported by substantial evidence. (People v. Mayfield (1997) 14 Cal.4th 668, 778 [60 Cal.Rptr.2d 1, 928 P.2d 485].)

According to Nelson, the question “is whether there was substantial evidence that [Nelson] was subjectively provoked into the shootings by unexpectedly seeing [the victims] together in an intimate setting.” As demonstrated in the previous part, there was no evidence to support Nelson’s assertion either that he was in love with Shirley or that Shirley and Thompson were intimately involved. Thus, there was no evidentiary basis for the instructions based on a theory Nelson was provoked by a jealous rage upon seeing the victims together. Nelson also suggests he could have been provoked by his residual anger at having been passed over for the promotion in favor of Shirley. But this theory relies on the fortuity of Nelson having been in the Target parking lot, when there was strong evidence of deliberation and premeditation: he painted his bicycle black, he armed himself, he went to where he knew Shirley would be, and he sneaked up on the victims. Even if we were to credit Nelson’s statement to Dr. Wells that he did not know why he went to the Target parking lot, his explanation of why he killed the victims does not support his provocation theory. He told Dr. Wells he shot the victims because he thought Thompson was reaching for a gun, not because his anger at having been passed up for the promotion flared up when he saw the two victims together. Accordingly, there was an insufficient evidentiary basis for the instructions, and the trial court did not err in declining to give them.

Finally, Nelson contends the trial court erred in refusing to instruct that provocation may come from a person other than a victim. Because there was insufficient evidence of any provocation, the trial court did not err by declining to give the third-party provocation instruction.

D. Mental States for First Degree Murder

Nelson contends that the trial court committed prejudicial error by modifying CALJIC No. 2.02 (Sufficiency of Circumstantial Evidence to Prove Specific Intent or Mental State) and giving an instruction that combined CALJIC No. 3.31 (Concurrence of Act and Specific Intent) and CALJIC No. 3.31.5 (Mental State). (All cites to CALJIC are to the fifth edition, 1988 unless otherwise noted.) He argues that the modified instructions “relieved the jury from finding both specific intent and the mental states of first degree murder” and thus ‘“permitted the jury to find first degree murder without finding deliberation so long as the jury found a specific intent to kill.”

The Attorney General argues the claim is not preserved for review because Nelson did not object at trial. The claim, however, is that the instruction misstated the elements of the crime, an assertion that may be considered on appeal despite the absence of an objection below. (§ 1259; People v. Hillhouse (2002) 27 Cal.4th 469, 503 [117 Cal.Rptr.2d 45, 40 P.3d 754].)

The trial court instructed the jury with the following version of CALJIC No. 2.02 (1992 rev.) (5th ed. 1988): ‘“The specific intent or mental state with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the defendant guilty of the crimes charged unless the proved circumstances are not only consistent with the theory that the defendant had the required specific intent or mental state, but cannot be reconciled with any other rational conclusion. [¶] Also, if the evidence as