People v. Holmes, McClain & Newborn ( 2022 )


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  •          IN THE SUPREME COURT OF
    CALIFORNIA
    THE PEOPLE,
    Plaintiff and Respondent,
    v.
    KARL HOLMES, HERBERT McCLAIN and LORENZO
    NEWBORN,
    Defendants and Appellants.
    S058734
    Los Angeles County Superior Court
    BA092268
    January 31, 2022
    Justice Corrigan authored the opinion of the Court, in which
    Chief Justice Cantil-Sakauye and Justices Groban, Jenkins,
    and O’Rourke* concurred.
    Justice Kruger filed a concurring opinion.
    Justice Liu filed a dissenting opinion.
    *
    Associate Justice of the Court of Appeal, Fourth Appellate
    District, Division One, assigned by the Chief Justice pursuant
    to article VI, section 6 of the California Constitution.
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    S058734
    Opinion of the Court by Corrigan, J.
    On Halloween night in 1993, a group of young teenagers
    walking home from a party were mistaken for gang members
    and became the target of gunfire. Three were killed. Defendants
    Karl Holmes, Herbert McClain, and Lorenzo Newborn1 were
    each convicted of three counts of murder, five counts of
    attempted murder, and one count of conspiracy to commit
    murder.2 Special circumstances for lying in wait and multiple
    murder were found true as to each murder count.3 The jury
    found that Holmes was armed with a firearm in committing the
    offenses4 but found firearm allegations not true as to the other
    defendants. McClain was convicted of an additional attempted
    murder, with personal use of a firearm, based on an earlier
    incident.5
    After the jury failed to reach a penalty verdict, that phase
    1
    Two codefendants originally included in the charges,
    Aurelius Bailey and Solomon Bowen, were tried separately and
    are not parties to this appeal.
    2
    Penal Code sections 187, subdivision (a), 664, and 182,
    subdivision (a). Further undesignated statutory references are
    to the Penal Code.
    3
    Section 190.2, subdivision (a)(3) and (15).
    4
    Section 12022, subdivision (a)(1).
    5
    Sections 187, subdivision (a), 664, and 12022.5,
    subdivision (a).
    1
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    was retried, and death verdicts were returned against all
    defendants. In addition, the court imposed life sentences on all
    attempted murder counts, 25-year-to-life sentences on the
    conspiracy counts, and five-year sentences on the firearm
    enhancements. 6 We affirm the judgment in its entirety.
    I. BACKGROUND
    A. Guilt Phase
    1. October 28 Attempted Murder of Robert Price
    (McClain Only)
    McClain was a member of the Bloods gang, P-9. Robert
    Price was a member of the rival gang, Raymond Avenue Crips.
    On October 28, 1993, McClain encountered Price, as he left the
    Community Arms apartment complex. The men had seen each
    other before but never spoken. McClain asked Price for a
    cigarette. When Price gave him one, McClain responded, “Thank
    you, Blood,” then shot Price in the face with a .380-caliber
    handgun. As Price tried to flee, McClain fired several shots,
    hitting Price twice in the back.
    Price survived and was interviewed at the hospital where
    he refused to identify his assailant. He later identified McClain
    from a six-person photo lineup and again during both grand jury
    and trial testimony. Although warned by McClain not to testify,
    Price did so in exchange for a promise to relocate his family.
    6
    All of these sentences were ordered to run consecutively
    except that the conspiracy sentences were stayed pursuant to
    section 654.
    2
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    2. October 31 Shootings
    a. Shooting of Fernando Hodges and Hospital
    Gathering
    Three evenings later, on October 31, 1993, P-9 gang
    member Fernando Hodges was shot at the Community Arms
    basketball court, and taken to Huntington Memorial Hospital,
    where he died. Police believed one of the Raymond Avenue Crips
    was responsible.
    Holmes and Solomon Bowen joined a large crowd of
    Hodges’s family and friends at the hospital. Around 20 to 30
    people attired in hooded sweatshirts and baggy clothing
    gathered outside the emergency room but did not enter the
    hospital. A hospital security officer believed they were gang
    members. After an older man at the center of the group seemed
    to give “some direction or guidance, possibly orders,” the group
    left.
    b. Activities Before the Wilson Street Shootings
    After Bowen left the hospital, he and Newborn went to
    Willie McFee’s house. They were armed and looking for
    Raymond Avenue Crips (Crips) gang member Dion Nelson,
    known as “Crazy D.” Newborn cried and said his close friend,
    Hodges, had been killed. McFee declined to say where Crazy D
    lived. Newborn and Bowen left, joining several men running
    toward some railroad tracks. McFee called Crazy D to warn him.
    Less than five minutes later, McFee heard multiple
    gunshots from near the tracks. A second series of gunshots,
    apparently from a different weapon, came from near Crazy D’s
    house. Shots were also fired toward McFee’s home. A bullet
    struck his air conditioning unit and two shell casings were found
    nearby.
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    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    c. Shootings on Wilson Street
    Earlier that night, 14-year-old Reggie Crawford, 13-year-
    old Edgar Evans, and 13-year-old Stephen Coats attended a
    Halloween birthday party in Pasadena. Around 10:00 p.m., they
    left with Coats’s brother, Kenneth, and seven other boys.7 As
    they walked to the Coats home, a car carrying four or five
    Hispanic men sped by and turned from North Wilson Street
    (hereafter Wilson Street) onto Villa. Immediately afterward,
    four or five cars “packed full” of Black men drove down Villa
    toward Wilson Street. These men displayed P-9 gang signs and
    swerved near the curb as they passed by. One witness said three
    of these cars were dark-colored compacts, and another recalled
    that one was tan or grey. Holmes owned a grey Ford Tempo.
    About three minutes later, three boys left the group of
    departing party goers. Crawford, Evans, and the Coats brothers
    continued walking down Wilson Street with Lawrence A., Lloyd
    S., A.A., and A.P. As they walked, Stephen and Kenneth’s
    mother, Deborah Bush, drove by and offered her sons a ride
    home, but they declined. Stephen joked that Bush drove so
    slowly he could get home sooner on foot. As they continued on,
    Stephen, Crawford, and A.A. sang a song called “Gangster
    Lean.” When the song ended, Kenneth heard a deep male voice
    say, “Now, Blood.”
    Shots erupted. Several witnesses described what
    happened. Lloyd heard a single boom followed by approximately
    20 gunshots and saw blue sparks pass by his feet. Initially he
    thought the noise and sparks came from “a pack of firecrackers.”
    7
    To avoid confusion, we refer to the Coats brothers by their
    first names.
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    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    He and A.A hid behind a brick barbeque. A.A. had been shot in
    the hand. Lawrence also hid when he heard the gunshots. When
    the firing stopped, he emerged and called out to his friends. No
    one responded, but a figure stood nearby. Gunfire resumed.
    Lawrence retreated to his hiding spot but was shot in the leg as
    he ran.
    Kenneth also initially thought the gunshots were
    firecrackers. He and his friends kept walking until they noticed
    Evans holding his stomach. Evans cried, “Mama,” and began
    crawling away. Stephen then pushed Kenneth away and said,
    “I’m hit.” As he tried to hide, Kenneth saw the outline of two
    figures. One was taller and heavier and wore his hair in braids.
    The figures ran toward Orange Grove.
    The three boys who had split from the group earlier ran
    back to their friends when the firing stopped. Crawford and
    Stephen lay unmoving. Kenneth screamed, “They shot my
    brother!” and “Let me to him.” Evans lay on some stairs, still
    calling for his mother. A.P. sat in a driveway, shot in the leg.
    Lloyd knocked on a nearby door and asked to use the
    phone. He called his mother while the homeowner called police.
    Bush had heard the shots as she pulled into her driveway and
    ran back down the street toward her sons. When she arrived at
    the scene, she found two boys on the ground. Crawford had no
    pulse. Bush saw that her son Stephen “had a bullet in his head
    and . . . was already gone.” She never saw Evans. Kenneth ran
    up to her, crying “I want my brother. Please don’t let this be my
    brother.” Bush’s daughter arrived and covered Stephen’s body
    with a jacket. Paramedics and police arrived shortly thereafter.
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    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    Stephen sustained multiple gunshot wounds. Crawford
    was struck by three to five rounds and died from a shot to his
    chest. Evans died from a similar wound.
    d. Eyewitnesses
    Gabriel Pina and Lillian Gonzales were walking their dog
    around 10:00 p.m. when four cars sped past and turned out of
    sight. The couple later saw most of the cars parked on a different
    street with a large group of people gathered nearby. The lead
    car reversed down the street toward them, stopped, then drove
    back up the street again. Pina identified the lead driver as
    McClain. A few minutes later, the couple heard gunshots. A
    gunman in a trench coat ran from Wilson Street and got into a
    car. Pina identified the fleeing man as Holmes.
    Jessica Ramirez, who lived near Wilson Street, saw two
    stopped cars and a group of Black men. Shortly thereafter, she
    heard what she thought were fireworks or gunshots.
    e. Ballistics Evidence
    Multiple nine-millimeter and .38- or .357-caliber shell
    casings and fragments, along with live .38-caliber rounds, were
    recovered from locations on Wilson Street. Expended nine-
    millimeter casings and a live .38-caliber round were also
    recovered from North Pasadena Avenue (Pasadena Avenue)
    near McFee’s house. The live round found on Pasadena Avenue
    and the three live rounds collected on Wilson Street were .38-
    special wad cutter bullets made by PMC Company. Almost all of
    the nine-millimeter casings at both locations were fired from the
    same weapon. The bullets recovered from the bodies of Crawford
    and Stephen Coats were both .38- or .357-caliber, but they had
    been fired from different weapons.
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    PEOPLE v. HOLMES, McCLAIN and NEWBORN
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    3. Conduct After the Shootings
    a. Holmes
    In December 1993, Derrick Tate met Holmes while
    visiting a friend, Terranius “T” Pitts. Holmes wore a P-9 hat and
    talked about the Halloween shootings saying they were in
    retaliation for the Crips’ killing of Hodges. He described hiding
    in bushes, jumping out, yelling “trick-or-treat,” and opening fire
    on a group. He claimed he planned to get a hat made that said
    “trick-or-treat.” Holmes said McClain was not involved in the
    shootings. According to Tate, McClain had suggested he and
    Tate leave California together. McClain was also considering
    “turn[ing] himself in” because “[h]e was tired of running.”
    Tate revealed this information while incarcerated on a
    joyriding charge, ultimately serving time for that offense. He
    was given no reward money, but his food and lodging expenses
    were paid during the week of his testimony. Tate had previously
    suffered three or four felony convictions outside California.
    Tate was frightened to appear in court because he heard
    that a witness had been killed. A few weeks earlier, Tate’s
    mother and girlfriend received visits from people looking for
    him. Someone phoned to warn his mother that Tate “had better
    not show up in court.” The presence of Pitts’s girlfriend made
    him nervous, and she was excluded from the courtroom during
    his testimony.
    b. McClain
    A day or two after the shootings, McClain told Mario
    Stevens that he and others had “put in some work” on some
    Crips on Wilson Street.
    McClain visited his cousin, James Carpenter, shortly after
    the shootings. When Carpenter was interviewed in December
    7
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    after his arrest for robbery, he said McClain spoke about
    shooting three Crips in retaliation for the murder of Hodges.
    McClain had bragged, “Boom boom pow pow pow, I can still hear
    the noise.” During this visit, McClain and the others learned
    that the shooting victims had been children, not Crips. McClain
    then cut his hair and made immediate plans to leave town. At
    trial, Carpenter denied overhearing any conversation about the
    Halloween shooting. He did testify that McClain sold a .38-
    caliber gun to another cousin, Michael Thompson, who was later
    arrested in possession of it.
    Troy Welcome corroborated a number of Carpenter’s
    statements. Welcome saw McClain in Tulare on November 2,
    1993, when McClain got into Welcome’s car and placed a gun on
    his lap. McClain hinted, by singing along with a popular song,
    that the gun had been used in a shooting. He sang the same song
    at a park later that weekend. McClain told Welcome he was “on
    the run.”
    McClain was on parole but stopped reporting for
    appointments after October 25, 1993. Flying from Ontario,
    California to Memphis, Tennessee on November 7, he told a
    fellow passenger that he was traveling under an assumed
    identity. He said he did not fly out of Los Angeles because he
    believed there was additional police scrutiny there.
    c. Newborn
    Holmes’s cousin DeSean8 testified for the prosecution
    against Newborn. After DeSean was arrested in 1995 for
    burglarizing McFee’s house, he and Newborn were housed in the
    8
    To avoid confusion with defendant Holmes, we refer to
    DeSean Holmes by his first name.
    8
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    Wayside Jail. Newborn told DeSean that he went to McFee’s
    house on Halloween 1993 and “got into it” with some people
    there. Newborn said he shot at McFee’s house from across the
    street using a Glock nine-millimeter handgun.
    Newborn also described the Wilson Street shooting. That
    night, he was riding around with people who said they were
    shooting Crips. Newborn insisted the shooting was not his fault.
    After they had circled the block once, a fellow passenger said,
    “those are the Crips right there,” and shooting broke out.
    Newborn hoped to use a girl as an alibi, but he could not get in
    touch with her.
    DeSean was a reluctant witness because his mother had
    been threatened. Newborn had also told DeSean directly that, if
    he ever got out of custody, he would “smash everybody that was
    on his list.” DeSean assumed he was among them.
    4. Defense Evidence
    Holmes, McClain, and Newborn each put on a defense.
    Holmes presented evidence that on Halloween he was
    home with his wife and infant son at 6:30 p.m., left to go to the
    hospital after learning of the Hodges shooting, and was home by
    10:00 p.m.
    McClain testified that he had turned himself in and denied
    any involvement with the shootings. He went to Tulare after
    Halloween and saw Carpenter, but only went there to sell drugs.
    McClain denied speaking with Welcome or telling Stevens he
    had “put in some work.” He admitted being present when Price
    was shot but said he was not the shooter.
    Newborn called Shawntia Blaylock, a woman who had
    been dating Hodges and was at the hospital the night he died.
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    PEOPLE v. HOLMES, McCLAIN and NEWBORN
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    Although she recalled seeing many people, neither Newborn nor
    the witness who claimed to have seen him was present. Newborn
    also presented evidence that he had not learned of Hodges’s
    death until the following day.
    B. Penalty Phase
    The first jury hung at the penalty phase. The discussion
    below relates evidence presented in the retrial. McClain was
    represented by counsel at the guilt phase and first penalty
    phase. As discussed further below (see post, at pp. 97–106) he
    chose to represent himself at the penalty retrial and was
    assisted by advisory counsel.
    1. Victim Impact
    a. Edgar Evans
    Robert N., Evans’s cousin, had taken cover during the
    gunfire, then ran to the injured. Crawford and Coats lay on the
    ground, and his cousin was on some stairs crying for his mother.
    Robert suffers continuing distress from the loss of his friends.
    Evans’s mother testified about their last conversation,
    when she gave him permission to go to the Halloween party. She
    had asked Evans to call home if he would be late, and she
    became concerned when she had not heard from him by 10:00
    p.m. She considered calling the police but decided against it.
    Shortly after 11:00 p.m., another mother called to tell her about
    the Wilson Street shooting and suggested she go to the hospital.
    There, she saw Evans’s feet on a stretcher and knew it was her
    son. A nurse gave her Bible verses found in Evans’s pocket.
    A cousin testified that after the murder Evans’s mother
    was “really out of it. She didn’t want to eat, couldn’t sleep, just
    cried most of the time.” Evans’s older sister was also distraught.
    She did not understand how her brother could have been
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    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    murdered when he was just walking home from a party. She
    stopped attending school and became afraid to leave the house.
    Evans’s father also took the death poorly, losing business and
    retreating socially.
    Neighbors remembered Evans as a kind and helpful child
    who attended church with his mother. He was a talented writer
    and had won an essay contest on Dr. Martin Luther King, Jr.’s
    “I Have a Dream” speech.
    b. Stephen Coats
    Kenneth Coats described the immediate aftermath of the
    shooting. When the gunfire stopped, he left his hiding place to
    look for Stephen. His mother, sister, and aunt approached as he
    reached his brother’s body. Kenneth wanted to pick him up and
    take him home, but his mother explained that the police needed
    to investigate. Stephen’s body was partially wrapped around a
    tree, and Crawford’s lay partially in the street. Kenneth
    implored his friends to get up before realizing they were dead.
    Stephen’s mother testified about seeing her son with the
    other youngsters just moments before his death. When she
    pulled into her driveway and heard gunshots, she ran back
    toward the children. She saw Stephen’s body lying on the ground
    with a head wound. He had no pulse. She recalled telling
    Kenneth not to move his brother’s body and holding her 12-year-
    old daughter. She knew she should leave the scene so the
    investigators could work, but explained, “I had to virtually drag
    my kids home. . . . For the first time in my life I had three kids
    to bring home, I had to leave one behind. And that was the most
    difficult thing I had to do.”
    Stephen’s father learned of the shooting later that night
    when his daughter called, crying and inconsolable. He felt
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    PEOPLE v. HOLMES, McCLAIN and NEWBORN
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    “disbelief, surprise, shock,” and “kept thinking, well, it was
    Halloween, maybe they are playing a cruel joke or something.”
    Mr. Coats went to the scene and testified that he would “never
    forget” the image of his son “lying on the ground . . . lifeless, ants
    crawling on his face, in his nose, the bullet hole in his head.”
    Coats blamed himself for his son’s death, believing the child
    would still be alive if he had insisted he spend Halloween at
    home.
    Stephen enjoyed playing video games and basketball. A
    talented artist, he had painted a mural at Washington Middle
    School.
    c. Reggie Crawford
    Crawford’s mother had not wanted her children to go
    trick-or-treating because she felt it was dangerous but allowed
    Crawford to attend a party instead. In their last conversation,
    she hurried her son out the door, telling him he looked nice. She
    drove past the boys as they walked home later that night but
    continued on because the group would not fit in her car. About
    five minutes later she heard gunshots; then Robert N. ran in
    saying her son had been shot. The crime scene was blocked off,
    and officers told her to go to the hospital. Once there, she was
    not allowed to go past the waiting area even though she insisted
    her son had been hurt and she needed to see him. She still did
    not know he had died. She eventually went home to wait for
    news and did not learn of Crawford’s death until hours later.
    Telling her other children was like going “through living hell”
    because “they didn’t know how to handle it.”
    d. Surviving Victims
    Some of the other youngsters who were fired upon
    testified. Lloyd S. was 12 years old that night. He said the
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    PEOPLE v. HOLMES, McCLAIN and NEWBORN
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    shooting affected his life in many ways and “hurt” him. He was
    unable to attend school afterward and began studying at home
    instead.
    Lawrence A. was 14 years old that Halloween. He was shot
    in the leg when he left his hiding place to call for his friends. His
    brother, A.A., and cousin, A.P., were also hit. When Lawrence
    saw that Coats and Crawford were on the ground and bleeding
    profusely, he “went into shock” because there was nothing he
    could do. He heard Evans moaning but stayed with his injured
    brother and cousin until the ambulance arrived. Lawrence said
    the experience taught him it is difficult to make it on the streets
    and “[y]ou never know who is coming.”
    A.A., then 13 years old, was shot in the hand and
    experienced lingering problems from the injury. He recalled
    seeing his friends’ bodies on the ground and hearing a woman
    screaming. He described removing a bandana from one friend’s
    head to keep as a memento.
    2. Aggravating Conduct
    a. Holmes
    Holmes had been arrested on August 3, 1990, for having a
    loaded gun in his pocket at a carnival.
    When the guilty verdict in this case was announced,
    Holmes yelled at the jury: “Fuck you, you motherfuckers. P-9
    rules.”
    b. McClain
    McClain had felony convictions for grand theft auto and
    three instances of possessing a firearm as a felon. The
    prosecution also presented evidence of several unadjudicated
    violent offenses.
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    PEOPLE v. HOLMES, McCLAIN and NEWBORN
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    On July 27, 1989, Raquel Flores was parked in front of her
    home when McClain approached and asked if a certain person
    lived there. When she said no, McClain reached forward, pulled
    the chains from around her neck, and ran away. Flores
    identified McClain in a field show-up half an hour later.
    On August 9, 1990, Bernard Rowe and Bryant Cook stood
    in Rowe’s front yard when McClain and another man
    approached with handguns and stole a Mustang from the
    driveway. They were stopped by police 10 minutes later, and
    Rowe identified McClain as the thief.
    In 1995, while incarcerated, McClain tried to attack
    another inmate. Afterward, McClain was found with a jail-made
    stabbing implement, or shank.
    During this trial, after witness Joseph Petelle testified
    and was leaving the courtroom, McClain said, “I’ll kill you.”
    McClain also threatened deputies. McClain asked a deputy why
    his belt was warm and learned it was because the deputies had
    just tested it. When Newborn noted that his belt was cold,
    McClain said, “if you do one of us, you’ll have to do us all.”
    Newborn then said, “if you push one button . . . .” When a deputy
    asked what had been said, Newborn repeated McClain’s threats
    and added, “If you push one button, then you better push all
    three, because you know what I’m going to do.” McClain then
    said, “Don’t get within two feet of me or I’ll kill you, and I’ll [sic]
    have weapons this time.” (See further discussion, post, at pp.
    111–113.)
    c. Newborn
    Newborn was involved in two fights in 1986 while a ward
    at California Youth Authority. In the first, he was the “clear[]
    aggressor,” striking a fellow ward after an argument. In the
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    second, he broke away from a supervisor while being disciplined,
    hopped over a barrier, and started fighting with another ward.
    The jury heard evidence of domestic violence Newborn
    committed against several partners. Arguing with Tanchell
    Anderson shortly after their relationship ended in 1991, name-
    calling escalated to an exchange of blows. Anderson told police
    Newborn had knocked her to the ground and punched her in the
    face about 30 times.
    When Newborn was dating Aneadra Keaton in 1992, he
    once broke into a house she was visiting and assaulted her,
    pushed her down a stairway, and forced her to leave. Another
    time, Newborn hit Keaton several times during an argument.
    Detrick Bright was driving a car in August 1992 when
    Newborn kicked in her car window, injuring her with broken
    glass. In 1993, he took her pager and hit her several times.
    When police arrived, Newborn resisted and had to be subdued
    with mace. Later that year, Newborn sprayed the then-pregnant
    Bright in the face with household cleaners.
    In November 1992, Rochelle Douglas had been dating
    Newborn for over three years and was eight-and-a-half months
    pregnant with his child. One day they argued, and Newborn
    asserted the child was not his. He told her not to “put the baby
    in his name” when it was born or he would hurt her. He then hit
    her several times in the face.
    Two other incidents were introduced. In 1992, Newborn
    threatened Louise Jernigan with a gun during an argument. In
    May 1993, he resisted arrest. Officers responding to reports of
    an armed man asked to search Newborn and directed him to
    place his hands on his head. He refused to comply, yelling curses
    and attempting to incite a nearby crowd.
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    3. Mitigation
    a. Holmes
    Holmes presented evidence to cast doubt on the guilt
    verdicts. An officer with the Pasadena Police Department gang
    unit testified that he did not personally see whether any P-9
    members were present at the hospital on Halloween night.
    Eyewitness Gabriel Pina conceded that his description of the
    cars on Wilson Street was vague and partially inaccurate. A
    detective testified that, in photographs, Holmes did not appear
    to have a ponytail or to be “fat and flabby,” as Kenneth Coats
    described the two men who fled from the shooting.
    Holmes’s father had raised Holmes and his three siblings,
    after his wife’s sudden death. His early childhood was
    uneventful until his mother’s passing when Holmes was 14 or
    15 years old. An aunt testified that the mother’s unexpected
    death had a profound impact on Holmes and the entire family.
    The family was close, and Holmes’s execution would affect them
    all.
    b. McClain
    McClain’s advisory attorney testified that, as witness
    Petelle passed by counsel table McClain actually said: “You’re
    a dickhead,” not “I’ll kill you.”
    The mother of McClain’s daughter testified that it would
    sadden her and all her children if McClain were executed.
    McClain’s mother testified that it would be hard for the family
    to deal with her son’s execution because they believed him to be
    innocent.
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    c. Newborn
    Newborn disputed Jernigan’s testimony, asserting he did
    not brandish a weapon or speak to her at all.
    Newborn’s mother testified that he was born when she
    was in high school and already had another child. During the
    five years she was married to Newborn’s father, he abused her.
    After the divorce, Newborn’s relationship with his father was
    hostile. He was close to two of his brothers until one was killed
    and the other incarcerated. Fernando Hodges then became a
    close friend and remained so until his death.
    Newborn suffered various physical and intellectual
    infirmities. He walked with a noticeable limp and was teased by
    his peers. As a child, he repeatedly ate laundry detergent if it
    was not stored properly. In his early teen years he wet the bed.
    He was hospitalized with three childhood head injuries but
    treated only with aspirin. Newborn was sent to juvenile camp at
    age 13 and California Youth Authority at age 15. Suffering from
    a learning disability and speech impediment, he was ultimately
    labeled intellectually disabled. Of the 500 students at the
    California Youth Authority, his I.Q. ranked 490th. He was
    medicated for being “hyper” and developed a tolerance. After he
    received increasingly higher doses, it was “like he just wasn’t
    [t]here.”
    17
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    II. DISCUSSION
    A. Guilt Phase
    1. Pretrial Issues
    a. Joinder/Severance
    i. Joinder of Crimes
    McClain contends the court erred in failing to sever the
    attempted murder of Price from the Wilson Street shooting
    charges.9 The court acted within its discretion.
    The law favors trying all charged offenses together.
    (People v. O’Malley (2016) 
    62 Cal.4th 944
    , 967 (O’Malley).)
    Section 954 provides in pertinent part: “An accusatory pleading
    may charge two or more different offenses . . . of the same class
    of crimes or offenses, under separate counts.” Murder and
    attempted murder, both of which are “assaultive crimes,” are
    9
    As all three defendants have done with regard to virtually
    every claim, McClain asserts “that the error violated his rights
    to a fair trial and reliable penalty determination under the
    Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
    States Constitution and corresponding provisions of the
    California Constitution. In most instances, defendant[s] failed
    to make these constitutional arguments in the trial court.
    Nevertheless, unless otherwise indicated, we consider the
    merits of these newly raised arguments because either (1) the
    appellate claim is of a kind that required no objection to preserve
    it, or (2) the claim invokes no facts or legal standards different
    from those before the trial court, but merely asserts that an
    error had the additional legal consequence of violating the
    Constitution. [Citation.] In those circumstances, defendant[s’]
    new constitutional arguments are not forfeited on appeal.
    [Citations.] Where rejection of a claim of error on the merits
    necessarily leads to a rejection of the newly asserted
    constitutional objection, no separate constitutional analysis is
    required and we have provided none.” (People v. Virgil (2011) 
    51 Cal.4th 1210
    , 1233−1234, fn. 4.)
    18
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    offenses “ ‘ “of the same class” ’ ” and may be joined for trial.
    (People v. Zambrano (2007) 
    41 Cal.4th 1082
    , 1128; see People v.
    Miller (1990) 
    50 Cal.3d 954
    , 987.) A denial of severance is
    reviewed for abuse of discretion. (Zambrano, at p. 1128.) “ ‘The
    state’s interest in joinder gives the court broader discretion in
    ruling on a motion for severance than it has in ruling on
    admissibility of evidence.’ ” (Alcala v. Superior Court (2008) 
    43 Cal.4th 1205
    , 1221.) Where, as here, the statutory requirements
    for joinder are met, the defendant must make a clear showing of
    prejudice to demonstrate that the trial court abused its
    discretion. (Ibid.)
    In reviewing such a ruling, we consider: “(1) whether
    evidence of the crimes to be jointly tried is cross-admissible; (2)
    whether some charges are unusually likely to inflame the jury
    against the defendant; (3) whether a weak case has been joined
    with a stronger case so that the spillover effect of aggregate
    evidence might alter the outcome of some or all of the charges;
    and (4) whether any charge carries the death penalty or the
    joinder of charges converts the matter into a capital case.”
    (O’Malley, supra, 62 Cal.4th at p. 968.) McClain contends each
    of these factors supported severance, making joinder of the
    charges an abuse of discretion.10
    “ ‘ “[T]he first step in assessing whether a combined trial
    [was] prejudicial is to determine whether evidence on each of the
    10
    He also maintains the court failed to exercise its discretion
    at all. The record reveals otherwise. The court reviewed the
    motion and opposition documents, all of which comprehensively
    argued the opposing positions on severance. It then ruled on the
    motion. Its care was evident in its express acknowledgment that
    facts might later emerge warranting reconsideration of that
    decision.
    19
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    joined charges would have been admissible, under Evidence
    Code section 1101, in separate trials on the others. If so, any
    inference of prejudice is dispelled.” ’ ” (People v. Jenkins (2000)
    
    22 Cal.4th 900
    , 948.) Although cross-admissibility is not “a
    precondition to joinder of charges” (O’Malley, supra, 62 Cal.4th
    at p. 968, citing § 954.1), its existence negates prejudice.
    (Jenkins, at p. 948.) McClain asserts that evidence of the
    charges was not cross-admissible because there were no
    common elements between offenses and the offenses did not
    relate to one another. That is not the case. Evidence of the attack
    on Price would likely have been admissible in a hypothetical
    separate trial on the Halloween charges because it was relevant
    to prove McClain’s state of mind. Evidence of uncharged crimes
    may be admitted when relevant to prove a disputed fact, like a
    defendant’s intent or motive. (Evid. Code, § 1101, subd. (b).)
    Like the Halloween shootings, the Price attack was clearly gang-
    motivated, as evidenced by Price’s testimony that McClain said
    “thank you, Blood” when handed a cigarette. McClain concedes
    this was a gang-related insult, because Price was a member of
    the Crips. But the connection between the shootings surpasses
    simple gang enmity. The shootings appeared to be connected in
    a sequence of retaliatory violence. (See People v. Price (1991) 
    1 Cal.4th 324
    , 388–389 (Price).) Three days after Bloods member
    McClain shot Crips member Price without provocation, a Crips
    member shot and killed Bloods member Hodges in the same
    apartment complex. The Wilson Street shootings took place
    within hours. Holmes and McClain told others the shootings
    were in retaliation for the Hodges killing. Someone was heard
    to say: “now Blood,” right before the gunfire began. Newborn
    told his cousin he shot at McFee’s house and later rode with
    others looking for Crips to shoot. Even McClain, then
    20
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    representing himself, agreed this “chain of events” made
    defendants “look guilty.”
    McClain next asserts the Halloween charges were unduly
    inflammatory, rendering joinder with the Price charge
    improper. Although the Halloween shootings garnered
    significant media attention, both crimes were demonstrably
    cruel. (See Price, 
    supra,
     1 Cal.4th at p. 390.) Price was shot in
    the face at close range, his kind act for a stranger repaid with
    gunfire. Indeed, McClain concedes the gang aspect of the Price
    shooting rendered it “inherently inflammatory.” The Halloween
    shootings were in the same vein. As in the Price case, the
    incidents were “different in their particulars,” but “equally
    abhorrent.” (Id. at p. 390.)
    Nor is there a concern that joinder could improperly
    enhance a weak case. Strong evidence implicated McClain in
    both offenses. Price selected McClain’s image from a
    photographic lineup before he knew McClain’s name. He
    testified emphatically and consistently that McClain shot him.
    A great deal of evidence also confirmed McClain’s involvement
    in the Halloween shootings. McClain admitted his involvement
    to Stevens and showed Welcome a gun he had used in a shooting.
    He changed his appearance, failed to meet with his parole
    officer, and fled the area days after the crimes. He told a fellow
    passenger he was traveling under an assumed identity and
    feared police detection. Given the strength of the evidence of
    McClain’s involvement with both the Price and Halloween
    crimes, failure to sever did not lead to two separate, weak cases
    becoming one in the minds of jurors, as McClain claims.
    Finally, the fact that this is a capital case does not demand
    a different outcome. “Even where the People present capital
    21
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    charges, joinder is proper so long as evidence of each charge is
    so strong that consolidation is unlikely to affect the verdict.”
    (People v. Ochoa (2001) 
    26 Cal.4th 398
    , 423; accord, O’Malley,
    supra, 62 Cal.4th at p. 969.) That standard was met here.
    ii. Joinder of Parties
    Each defendant moved repeatedly to sever his case from
    those of his codefendants. Defendants now argue the court’s
    refusal to grant severance resulted in error under People v.
    Aranda (1965) 
    63 Cal.2d 518
     (Aranda) and Bruton v. United
    States (1968) 
    391 U.S. 123
     (Bruton), violating their right to
    confront and cross-examine witnesses against them. There was
    no error.
    1)     Legal Principles
    The law of joinder and severance is settled. “When two or
    more defendants are jointly charged with any public offense,
    whether felony or misdemeanor, they must be tried jointly,
    unless the court order[s] separate trials.” (§ 1098, italics added.)
    The Legislature has “ ‘ “expressed a preference for joint trials” ’ ”
    (People v. Bryant, Smith and Wheeler (2014) 
    60 Cal.4th 335
    , 378
    (Bryant, Smith and Wheeler)), which promote efficiency “ ‘and
    “serve the interests of justice by avoiding the scandal and
    inequity of inconsistent verdicts.” ’ ” (Id. at p. 379, quoting
    Zafiro v. United States (1993) 
    506 U.S. 534
    , 537 (Zafiro).) We
    review a denial of severance for abuse of discretion, considering
    the facts as they appeared at the time of the ruling. (Bryant,
    Smith and Wheeler, at p. 379.) If the ruling was proper when
    made, a reviewing court may reverse only upon a showing that
    joinder “ ‘ “ ‘resulted in “gross unfairness” amounting to a denial
    of due process.’ ” ’ ” (Ibid.)
    22
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    The confrontation principles applicable in joint trials are
    also well established. A criminal defendant has a Sixth
    Amendment right to confront and cross-examine adverse
    witnesses. (Pointer v. Texas (1965) 
    380 U.S. 400
    .) “A problem
    arises when a codefendant’s confession implicating the
    defendant is introduced into evidence at their joint trial. If the
    declarant codefendant invokes the Fifth Amendment right
    against self-incrimination and declines to testify, the implicated
    defendant is unable to cross-examine the declarant” about the
    confession. (People v. Lewis (2008) 
    43 Cal.4th 415
    , 453 (Lewis).)
    The United States Supreme Court addressed this concern
    in Bruton. It held that when a nontestifying codefendant’s
    confession is admitted and implicates the defendant, the
    defendant’s right to cross-examination is violated. (Bruton,
    
    supra,
     391 U.S. at pp. 127−128.) A jury instruction to disregard
    the codefendant’s statement in assessing the defendant’s guilt
    will not cure the violation. (Id. at pp. 135–137.) “The high court
    reasoned that although juries ordinarily can and will follow a
    judge’s instructions to disregard inadmissible evidence, ‘there
    are some contexts in which the risk that the jury will not, or
    cannot, . . . is so great, and the consequences of failure so vital
    to the defendant, that the practical and human limitations of
    the jury system cannot be ignored.’ ” (Lewis, supra, 43 Cal.4th
    at p. 453.) We had reached a similar conclusion in Aranda,
    explaining that if the prosecution seeks to introduce a statement
    in which one codefendant implicates another, the trial court may
    address the request in one of three ways. It may: (1) admit the
    statement but ensure it is redacted to eliminate references to
    codefendants; (2) grant severance if redaction is impossible; or
    (3) exclude the statement. (Aranda, supra, 63 Cal.2d at pp. 530–
    531.)
    23
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    The high court has continued to refine these rules. In
    Richardson v. Marsh (1987) 
    481 U.S. 200
    , 211, it explained, “the
    Confrontation Clause is not violated by the admission of a
    nontestifying codefendant’s confession with a proper limiting
    instruction when . . . the confession is redacted to eliminate not
    only the defendant’s name, but any reference to his or her
    existence.” In Gray v. Maryland (1998) 
    523 U.S. 185
    , 192 (Gray),
    however, it clarified that when the redaction “simply replace[s]
    a name with an obvious blank space or a word such as ‘deleted’
    or a symbol or other similarly obvious indication[] of alteration,”
    the resulting statement must be excluded as indistinguishable
    from the statements in Bruton. “When, despite redaction, the
    statement obviously refers directly to the defendant, and
    involves inferences that a jury ordinarily could make
    immediately, even [where] the confession [is] the very first item
    introduced at trial, the Bruton rule applies and introduction of
    the statement at a joint trial violates the defendant’s rights
    under the confrontation clause.” (People v. Burney (2009) 
    47 Cal.4th 203
    , 231.)
    2)     Discussion
    a)  Claims Related to DeSean
    Holmes’s Testimony
    McClain and Holmes moved for severance before trial,
    arguing Newborn had made statements after his arrest that
    implicated them.11 The prosecution proposed to redact the
    11
    Newborn had previously sought severance based on
    general Aranda/Bruton concerns. The court denied the motion
    without prejudice, assuring the parties it would exclude
    “anything that looks like or smells like Aranda/Bruton issues.”
    24
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    statements to avoid the implication, and the motions were
    denied. The motions were renewed before DeSean Holmes was
    called to testify about incriminating statements Newborn made
    during their joint incarceration. Previously, the prosecution had
    agreed that DeSean would not be required to testify about his
    cousin, Holmes. McClain protested that DeSean’s examination
    would result in the presentation of “half-truths” and inferences
    that would not be subject to cross-examination. He and Holmes
    sought severance and a mistrial. The motions were denied.
    DeSean testified that Newborn said he had shot at
    McFee’s house on Halloween and also rode around with people
    who were shooting at Crips. DeSean mentioned no names in his
    testimony and gave no evidence incriminating Holmes or
    McClain. Further, the court instructed that DeSean’s testimony
    was offered against Newborn alone. Nevertheless, McClain and
    Holmes both contend DeSean’s reference to unnamed others
    who committed crimes with Newborn allowed the jury to infer
    that they were the accomplices Newborn identified. No
    Aranda/Bruton error occurred, and the court did not abuse its
    discretion in denying severance. (See Lewis, supra, 43 Cal.4th
    at p. 455.)
    DeSean’s testimony conveyed precisely the type of
    redacted statement Aranda contemplated. A defendant’s
    confrontation right is not violated if a codefendant’s statement
    can be redacted to eliminate a specific reference. (Aranda,
    supra, 63 Cal.2d at pp. 530–531.) Although the high court later
    held that the right to confrontation is offended when a redaction
    refers directly or by clear inference to a given defendant (Gray,
    
    supra,
     523 U.S at p. 192), the redaction here comported with
    Gray’s holding. There was ample evidence that a sizable group
    was involved in the Wilson Street attack. DeSean’s testimony
    25
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    referred to unspecified and unenumerated “others” who had
    accompanied Newborn. This group could have included anyone.
    Neither McClain nor Holmes was implicated by this
    purposefully vague reference, and no prejudice resulted from the
    statement’s introduction.
    McClain argues to the contrary, raising two concerns
    unrelated to Newborn’s statements. First, McClain complains
    he was erroneously prevented from cross-examining DeSean
    about DeSean’s invocation of the privilege against self-
    incrimination regarding a separate shooting incident. Although
    DeSean described himself as a crime victim in that incident, the
    parties later stipulated he was not, in fact, a victim. McClain
    asserts this limit on his ability to cross-examine DeSean,
    coupled with the redacted statement, allowed the jury to infer
    that he, McClain, was involved in both the shooting incident
    DeSean referred to and the Halloween shootings Newborn
    described. The argument is unpersuasive. The trial court
    appropriately guarded DeSean’s invocation of his right against
    self-incrimination. Nothing about this ruling rendered
    Newborn’s redacted statement suggestive of McClain’s
    involvement with the Halloween shooting. The two simply do
    not relate, and McClain’s efforts to conflate them fail.
    Second, McClain argues it was error for the court to deny
    his severance motions because it had granted the prosecution’s
    motion to sever Bowen and Bailey and there was no meaningful
    distinction between the cases. McClain’s attorney apparently
    accepted the court’s decision at the time, because he requested
    only an opportunity to revisit how redacted statements would be
    used before their admission. The court accommodated this
    request. Assuming the current argument was not forfeited, it
    lacks merit. Each severance denial is evaluated based on
    26
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    circumstances known to the trial court at the time the decision
    is made. (Bryant, Smith and Wheeler, supra, 60 Cal.4th at p.
    379.) Although McClain argues the severance of Bowen and
    Bailey belies any concern about judicial economy, these concerns
    would only have increased with further divisions. Each
    successive severance would tax scarce resources, burdening both
    the court and witnesses who would be compelled to return to
    testify in multiple trials.12 The trial court explained as much,
    stating, “We have severed off . . . two clients. The building is
    bankrupt; the county is bankrupt. Separate trials for every
    defendant would be unacceptable to everyone.” Even
    considering the severance of two other codefendants, the court
    did not abuse its discretion in denying McClain’s motion; he has
    not shown that the resulting consolidated trial was grossly
    unfair. (See People v. Turner (1984) 
    37 Cal.3d 302
    , 313.)
    Holmes’s claims are also unavailing. DeSean testified that
    he saw Holmes with Hodges and others in October 1993. To the
    extent this testimony implicated Holmes in a crime, it did not
    offend the confrontation clause because DeSean was available
    for cross-examination. (See Bruton, 
    supra,
     391 U.S. at pp. 127–
    128, 135–137.) Moreover, the jury was given CALJIC No. 2.07,
    telling them to consider DeSean’s testimony only against
    Newborn. Jurors are generally presumed to follow instructions.
    (People v. Sandoval (2015) 
    62 Cal.4th 394
    , 422.)
    Holmes also contends the joint trial prevented him from
    cross-examining DeSean about his statements in a telephone
    conversation with defense counsel. DeSean claimed Newborn’s
    12
    We note that the guilt phase lasted well over four months,
    including jury selection. It involved 73 witnesses and 173
    exhibits, including lengthy audiotapes.
    27
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    attorney called him and said he “had the right not to say
    anything and . . . do what Fuhrman did in the O.J. trial.”13
    Newborn’s attorney disputed DeSean’s account, noting that
    Holmes’s attorney had also participated in the call. Although
    Holmes’s attorney agreed the conversation “did not go the way
    [DeSean] is saying,” he was uncomfortable about potentially
    becoming an impeachment witness. Newborn insisted it was
    important to impeach DeSean. Ultimately, DeSean asserted
    that it was counsel for Holmes, not Newborn, who told him he
    could decline to testify and invoke the Fifth Amendment. He was
    not challenged on the point during his testimony.
    Holmes claims his attorney’s efforts to examine DeSean
    were “completely ineffective” because he could not impeach
    DeSean without becoming a witness. He contends the jury could
    have been left with the impression that he was trying to
    manipulate the legal system, an inference that may have been
    exacerbated by introduction of the agreement that DeSean
    would not be testifying against him. Holmes did not object on
    this basis at trial. Even assuming the claim is not forfeited, it
    fails on the merits.
    13
    As was widely reported and televised at the time, Mark
    Fuhrman was a former Los Angeles Police detective and central
    figure in the O.J. Simpson murder trial. Fuhrman was called to
    testify about evidence he recovered at the Simpson estate,
    including a bloody glove. On cross-examination, he was asked
    about his history of using racial epithets against African-
    Americans and testified that he had not done so during the past
    decade. He was impeached with numerous recordings in which
    he used such an epithet. Asked whether he planted or
    manufactured evidence in the Simpson case, he invoked his
    Fifth Amendment privilege against self-incrimination.
    28
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    Although it is true that Holmes’s attorney did not examine
    DeSean in depth about the referenced conversation, the
    impeaching point was definitively made. The parties expressly
    stipulated that at no time did counsel for Holmes encourage
    DeSean to invoke the privilege or otherwise encourage him not
    to testify. The stipulation effectively impeached DeSean’s
    testimony, and counsel could reasonably have chosen to rely on
    it instead of pursuing the potentially risky strategy of further
    probing the issue on cross-examination.
    Nevertheless, Holmes claims his right to counsel was
    impaired by his attorney’s conflict. The Sixth Amendment and
    California Constitution guarantee the right to loyal and conflict-
    free counsel. (People v. Doolin (2009) 
    45 Cal.4th 390
    , 417–418.)
    “In the context of a conflict of interest claim, deficient
    performance is demonstrated by a showing that defense counsel
    labored under an actual conflict of interest ‘that affected
    counsel’s performance — as opposed to a mere theoretical
    division of loyalties.’ ” (Id. at p. 417.) An adverse impact on
    performance is shown by demonstrating counsel did or did not
    do something he otherwise might have done absent the conflict.
    (Id. at pp. 417–418.) Holmes fails to show the existence of any
    actual impact on his counsel’s performance. Nor has Holmes
    shown prejudice from any such asserted conflict. To obtain relief
    for ineffective assistance of counsel, a defendant must show both
    deficient performance “and a reasonable probability that but for
    counsel’s deficiencies, the result of the proceeding would have
    been different.” (Id. at p. 421.) Here, the jury was instructed that
    DeSean’s testimony pertained only to Newborn. (See People
    v. Sandoval, supra, 62 Cal.4th at p. 422.) The parties had also
    stipulated, contrary to DeSean’s testimony, that Holmes’s
    attorney never advised DeSean along the lines he alleged. Thus,
    29
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    the jury would have understood that DeSean’s testimony did not
    relate to Holmes and his allegations about Holmes’s attorney
    were agreed to be untrue. 14
    Holmes also claims the joint trial resulted in gross
    unfairness because DeSean’s agreement not to testify against
    him may have implied that DeSean either feared, or was trying
    to protect, him. However, the agreement made clear that
    questions from other defendants could be limited only to the
    extent permitted by law. DeSean was thus aware of the
    possibility he would be asked about Holmes, and he agreed to
    answer any such questions honestly. Although DeSean
    indicated that he was afraid of some people, he never testified
    that he feared Holmes. Nor did his testimony suggest he was
    protecting his cousin. It is speculative to conclude the jury would
    have drawn the negative inferences Holmes suggests. Moreover,
    any such inference would have been cured by the jury’s
    instruction to consider DeSean’s testimony against Newborn
    alone.
    b)    Claims Related to Derrick
    Tate’s Testimony
    During an Evidence Code section 402 hearing, Newborn
    raised an Aranda issue concerning Derrick Tate’s expected
    testimony that Holmes had said he, Newborn and one Ernest
    14
    Separately, Holmes suggests the conflict gave rise to
    misconduct because the prosecutor’s closing argument alluded
    to DeSean’s statement about Holmes’s attorney. However, the
    prosecutor immediately corrected his statement after an
    objection was raised. The fleeting comment, immediately
    corrected, does not constitute prosecutorial misconduct
    rendering the trial grossly unfair.
    30
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    Holly committed the Halloween shootings. The prosecutor
    responded that Tate had been instructed not to mention
    Newborn or McClain, and the court stressed that Tate could only
    refer to any of Holmes’s coparticipants by generic pronouns,
    such as “others.” The court permitted McClain to elicit that he
    was not among the “others” Holmes had mentioned. When
    Newborn objected, noting he would be unable to extract similar
    testimony, the prosecutor proposed a limiting instruction, to
    which Newborn agreed.
    The jury was told that Tate’s testimony “concerning the
    statement of Karl Holmes [was] limited to defendants Karl
    Holmes and Herbert McClain.” When Tate testified, he did not
    identify the “others” Holmes had mentioned. He did agree that
    Holmes said McClain had not been involved.
    Newborn now argues Tate’s testimony implicated him by
    process of elimination, in violation of Aranda/Bruton principles.
    Not so. The court reasonably concluded Newborn’s concerns
    could be sufficiently addressed by redaction and a limiting
    instruction. Tate was directed to refer only to “others” who
    joined Holmes in the shooting, and he complied with this
    direction. Moreover, Newborn specifically agreed to a limiting
    instruction that the “others” did not include McClain. There was
    extensive evidence that a large group converged upon the
    hospital after Hodges was shot and that several cars full of
    people flashing P-9 signs were present on Wilson Street
    immediately before the shooting. Any mention of “others” was
    broad enough to avoid the specific inference of which defendants
    complain. Nor did the court abuse its discretion in denying
    severance before Tate testified. (See Bryant, Smith and Wheeler,
    supra, 60 Cal.4th at p. 379.) “ ‘[A] trial court must order a joint
    trial as the “rule” and may order separate trials only as an
    31
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    “exception.” ’ ” (People v. Cleveland (2004) 
    32 Cal.4th 704
    , 726.)
    “[I]mportant concerns of public policy are served if a single jury
    is given a full and fair overview of the defendants’ joint conduct
    and the assertions they make to defend against ensuing
    charges.” (Bryant, Smith and Wheeler, at p. 379.) Separate trials
    may be warranted under certain circumstances, including
    conflicting defenses, incriminating confessions, confusing
    differences in the charged counts, risks of prejudice from
    association with codefendants, or possibilities for exoneration by
    codefendants testifying in a separate trial. (See ibid.) None of
    those circumstances is present here. Apart from an additional
    charge against McClain, the defendants faced nearly identical
    charges. There was little risk that evidence on multiple counts
    would engender confusion. (See Cleveland, at p. 726.) Strong
    cases existed against each defendant, and there is no reason to
    think that any of them was prejudiced by association with any
    other. Nor is there an indication any defendant would have
    given exonerating testimony in a separate trial. (See ibid.) They
    did not offer conflicting defenses, and the case did not involve a
    confession by any defendant incriminating the others. (Ibid.) As
    in People v. Cleveland, “this was a classic case for joint trial.”
    (Ibid.)
    c)        Claims Regarding Defendant
    McClain’s Testimony
    Holmes and McClain both moved for severance before
    McClain testified. Holmes worried he would be implicated by
    McClain’s statement to Carpenter about the shooting of people
    he thought were Crips but later learned were children.
    McClain’s motion similarly sought to prevent the prosecution
    from asking about this statement. The court denied the motions,
    32
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    reasoning that the prosecution had a right to impeach McClain
    with prior inconsistent statements if he chose to testify.
    Holmes now claims something akin to Griffin error
    occurred during McClain’s testimony because, by examining
    McClain about his decision to testify, the prosecutor came close
    to commenting on Holmes’s silence. In Griffin v. California
    (1965) 
    380 U.S. 609
    , 615, the United States Supreme Court held
    the Fifth Amendment forbids the prosecution from commenting
    on a defendant’s silence at any phase of trial. No Griffin error
    occurred here. On cross-examination, McClain asserted that
    prosecution witnesses were lying, and he was telling the truth.
    The prosecutor challenged this assertion by asking whether
    McClain would “get up there and admit it” if he had killed the
    victims. Understood in context, this question related to
    McClain’s own credibility and was not an impermissible
    commentary on the codefendants’ silence. Indeed, McClain’s
    response endorsed his codefendants’ decision not to take the
    stand. He said, “my homeboys got to do what their lawyers tell
    them for their best interest.” He explained that he was not doing
    the same because he did not believe his attorney had his best
    interests in mind. Rather than be “railroad[ed],” he wanted to
    take the stand to speak the truth. Jury instructions also
    addressed the issue. Specifically, the jury was told: (1) a
    question is not evidence and is useful only to the extent it helps
    jurors understand the response; (2) a defendant has the right
    not to testify and no inferences may be drawn from the decision
    not to do so; and (3) “[i]n deciding whether or not to testify, the
    defendant may choose to rely on the state of the evidence and
    upon the failure, if any, of the People to prove beyond a
    reasonable doubt every essential element of the charge against
    him.” Accordingly, the court had no obligation to sever Holmes’s
    33
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    trial from McClain’s on its own motion. (People v. Turner, supra,
    37 Cal.3d at p. 313.)
    Separately, although he did not seek relief below,
    Newborn contends the court erred in failing to sever his case or
    grant a mistrial sua sponte because McClain’s testimony would
    not have been admitted against him in a separate trial. In
    Zafiro, 
    supra,
     506 U.S. at page 539, the United States Supreme
    Court explained that severance should be granted “only if there
    is a serious risk that a joint trial would compromise a specific
    trial right of one of the defendants,” which might occur if
    evidence admitted against a codefendant would have been
    inadmissible in a trial against the defendant alone. However,
    the high court rejected the argument Newborn makes here. It
    explained: “A defendant normally would not be entitled to
    exclude the testimony of a former codefendant if the . . . court
    did sever their trials, and we see no reason why relevant and
    competent testimony would be prejudicial merely because the
    witness is also a codefendant.” (Id. at p. 540) Newborn fails to
    show how he could have been prejudiced. McClain asserted that
    all three defendants were innocent, that Newborn and Holmes
    heeded their attorneys’ advice not to testify, and that he was
    testifying against his lawyer’s advice because he felt
    “railroad[ed].” Finally, nothing in the record suggests the jury
    was “unable or unwilling to assess independently the respective
    culpability of each codefendant or [was] confused by the limiting
    instructions.” (People v. Ervin (2000) 
    22 Cal.4th 48
    , 69; see
    Zafiro, at pp. 540–541.)
    34
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    b. Jury Selection
    i. Cause Challenge
    Defendants contend the for-cause excusal of Juror No. 126
    deprived them of due process and a representative jury. The
    claim fails.
    1)     Background
    Juror No. 126 expressed considerable ambivalence about
    the death penalty in her questionnaire. Asked for her general
    feelings on the subject, she responded: “I’m for the death
    penalty I think. I never really thought about it. —
    Ambivalence — ” When asked whether California should have
    the death penalty, she checked both the “yes” and “no” boxes and
    wrote, “I think so, but I don’t know at this time.” She marked
    “yes” when asked whether it would be difficult for any reason to
    sit on a case where she would be called upon to impose the death
    penalty, adding, “who would not find it difficult to make a
    decision regarding someone’s life.” Although stating it would not
    be impossible for her to vote for either outcome, she
    acknowledged she would not like the responsibility of casting a
    vote that would cause someone to be executed. She did not know
    whether she might refuse to find special circumstances true,
    regardless of evidence, to avoid having to consider penalty. She
    explained: “I’m really not sure how I feel about the death
    penalty. I gues[s] it would be ambivalence. On one hand I believe
    in time and with help people can change. These [sic] way of life,
    how they see and do things. On the other maybe there are some
    people who will never change, who have no conscious, remorse
    or any feelings of guilt.”
    During voir dire, Juror No. 126 repeated that her position
    toward the death penalty was best described as “ambivalent.”
    35
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    When the court explained the jury’s role in evaluating penalty
    phase and asked whether Juror No. 126 was capable of
    participating in those deliberations, she replied she was “not
    certain” she could. The court asked whether there were any
    circumstances in which she could impose the death penalty,
    observing that if she and her fellow jurors voted in favor of
    death, they are “actually . . . the one[s] putting that person to
    death.” Given additional time to consider her feelings, the juror
    explained she had given it a great deal of thought and remained
    uncertain whether imposing the death penalty was something
    she could do. The court then asked if Juror No. 126 would feel
    more comfortable not sitting on a death penalty case, and she
    responded, “I am sure we all would. Yes, I would.” The court
    then indicated its intent to relieve her of service. McClain’s
    attorney asked to inquire further, but the court denied the
    request. In a chambers conference immediately afterward, the
    court explained that it had asked enough questions and did not
    think further inquiries were needed. The court concluded the
    juror’s “heart” would make her unable to serve in a capital case.
    The court offered defense counsel an opportunity to make a
    record of questions she would have asked, but counsel submitted
    the matter and raised no objection to the dismissal.
    2)     Discussion
    Defendants contend the court improperly refused to
    permit defense questioning and improperly excused the juror.
    Assuming the claims were preserved, they lack merit.
    In a capital case, particular circumstances may support
    the excusal of a potential juror for cause. (People v. Cash (2002)
    
    28 Cal.4th 703
    , 720.) The test is whether the juror’s views
    toward capital punishment would “ ‘prevent or substantially
    36
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    impair the performance of [her] duties as a juror in accordance
    with [her] instructions and [her] oath.’ ” (Wainwright v. Witt
    (1985) 
    469 U.S. 412
    , 424 (Witt).) A juror’s bias need not be
    demonstrated with “ ‘unmistakable clarity’ ” (ibid.), however,
    and “deference must be paid to the trial judge who sees and
    hears the juror” (id. at p. 426). When a prospective juror has
    made conflicting or ambiguous statements, we accept as binding
    the trial court’s determination on the juror’s true state of mind.
    (People v. Souza (2012) 
    54 Cal.4th 90
    , 123.) An excusal for cause
    will be upheld on appeal “ ‘if supported by substantial
    evidence.’ ” (People v. Jones (2017) 
    3 Cal.5th 583
    , 615.)
    We have also explained a party is entitled to ask questions
    that are specific enough to determine whether prospective jurors
    harbor bias, based on a fact or circumstance that may be shown
    by the trial evidence, and thus be unable to consider aggravating
    and mitigating evidence when determining penalty. (People v.
    Cash, 
    supra,
     28 Cal.4th at pp. 720–721.) Voir dire concerning
    death-qualification must thread the needle between two
    extremes, ensuring it is neither “so abstract that it fails to”
    identify jurors whose attitudes “would prevent or substantially
    impair the performance of their duties,” and yet, not so specific
    as to encourage prejudgment. (Id. at p. 721.) Trial courts are
    vested with the considerable discretion necessary to accomplish
    this exercise. (Id. at p. 722)
    The court was not obliged to permit further questioning
    on this record. (See People v. Cash, 
    supra,
     28 Cal.4th at p. 721.)
    Defendants challenge the court’s refusal to allow inquiry about
    whether the juror could “shoulder the responsibility of sitting as
    a capital juror and render[] a judgment.” But the record shows
    Juror No. 126 was questioned about this very subject.
    Defendants identify no other line of questioning they were
    37
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    prevented from pursuing, and the record reveals none. The court
    said in camera that defendants could “make [their] record” and
    “ask questions.” They declined, with McClain’s counsel agreeing
    simply to “submit it.” No error occurred.
    The court’s excusal for cause was within its discretion. As
    we have repeatedly held, the trial court is in the best position to
    assess the juror’s demeanor. (People v. Souza, supra, 54 Cal.4th
    at p. 123.) It did so here, concluding Juror No. 126 did not wish
    to, and would ultimately be unable to, serve as a juror in a death
    penalty case. That decision is fairly supported by the record. The
    juror’s questionnaire responses were consistently equivocal. It
    was clear she struggled to fully articulate her views and was
    uncomfortable with the death penalty and with her potential
    role in adjudicating it.
    She provided a number of narrative responses in the
    questionnaire adding further reflections on capital punishment.
    Her views were discussed at length during voir dire. Her
    discomfort appeared palpable, prompting the court to twice offer
    her more time to reflect on her views. Both times she responded
    by expressing doubt that she could serve as a death penalty
    juror or vote for execution. Defendants’ complaint that the court
    “short circuited” voir dire without sufficiently probing the juror’s
    views is not well taken. A court must evaluate prospective jurors
    individually as they present themselves. Some are more able
    than others to express deeply held views and to make them
    understood. “[M]any prospective jurors ‘simply cannot be asked
    enough questions to reach the point where their bias has been
    made “unmistakably clear,” ’ but ‘[d]espite this lack of clarity in
    the printed record . . . there will be situations where the trial
    judge is left with the definite impression that a prospective juror
    would be unable to faithfully and impartially apply the law.’ ([ ]
    38
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    Witt[, supra,] 469 U.S. [at pp.] 424–426 . . . .)” (People v. Silveria
    and Travis (2020) 
    10 Cal.5th 195
    , 258.) The court cannot
    artificially truncate the process or foreclose legitimate inquiry,
    but that did not occur here. The trial court carefully reviewed
    the juror’s questionnaire responses and conducted thorough voir
    dire. After assessing Juror No. 126’s demeanor in addition to her
    written and verbal responses, it concluded she was not qualified
    to serve. The court’s decision is supported by the record, and we
    are presented with no reason to disturb it. (Ibid.)
    ii. Peremptory Challenges
    Defendants contend the prosecution’s use of peremptory
    challenges violated Batson v. Kentucky (1986) 
    476 U.S. 79
     and
    People v. Wheeler (1978) 
    22 Cal.3d 258
    . The trial court found
    there was no prima facie showing of discrimination. Although
    we find this issue to be close, we conclude there was not a prima
    facie showing on this record.
    Three hundred and three panelists reported for evaluation
    as potential jurors. After excusals for hardship or cause, a group
    of 83 remained.15 Of that number it appears from the judge’s
    notes that at least 16 panelists were African-American women.
    The prosecution had exercised 12 challenges when the defense
    made a Batson/Wheeler motion challenging its use of
    peremptories against African-American women, “a cognizable
    15
    Our colleague in the dissent focuses on the 64 panelists
    actually examined rather than the total number in the venire.
    The discrepancy is significant. It is accurate to say that 64
    panelists were examined. However, an advocate takes into
    account all those who may come into the box for consideration.
    All panelists are in play until the jury is finalized.
    39
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    subgroup” for purposes of this analysis.16 (See People v. Clair
    (1992) 
    2 Cal.4th 629
    , 652.) Of the 12 panelists excused at that
    point, six were members of the identified group. In ruling on the
    prima facie showing, the court stated it found nothing: “in the
    nature of bias or prejudice” in the excusals, in light of the jurors’
    questionnaire and voir dire responses. It concluded the
    prosecution had “a right to preempt those people they have done
    so far.”
    The law is clear and firmly established. “ ‘Both the federal
    and state Constitutions prohibit any advocate’s use of
    peremptory challenges to exclude prospective jurors based on
    race.’ ” (People v. Parker (2017) 
    2 Cal.5th 1184
    , 1210 (Parker).)
    “ ‘Doing so violates both the equal protection clause of the
    United States Constitution and the right to trial by a jury drawn
    from a representative cross-section of the community under
    article I, section 16 of the California Constitution.’ ” (Id. at p.
    1211.) The law also recognizes “ ‘a rebuttable presumption that
    a peremptory challenge is being exercised properly, and the
    burden is on the opposing party to demonstrate impermissible
    discrimination.’ [Citation.] ‘A three-step procedure applies at
    trial when a defendant alleges discriminatory use of peremptory
    challenges. First, the defendant must make a prima facie
    showing that the prosecution exercised a challenge based on
    impermissible criteria. Second, if the trial court finds a prima
    16
    Although at trial defendants challenged only the excusal
    of African-American women, some briefing mentions panelists
    from other protected categories. Our review is limited to the
    motion actually made. (See People v. Bolin (1998) 
    18 Cal.4th 297
    , 317.) Accordingly, we examine the propriety of the
    prosecution’s excusal of panelists from the group identified at
    trial. (See People v. Rhoades (2019) 
    8 Cal.5th 393
    , 429, fn. 14.)
    40
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    facie case, then the prosecution must offer nondiscriminatory
    reasons for the challenge. Third, the trial court must determine
    whether the prosecution’s offered justification is credible and
    whether, in light of all relevant circumstances, the defendant
    has shown purposeful race discrimination. [Citation.] “The
    ultimate burden of persuasion regarding [discriminatory]
    motivation rests with, and never shifts from, the [defendant].” ’ ”
    (Ibid.)
    When this jury was selected in 1995, there was some
    confusion as to the nature of the required prima facie showing.
    In People v. Johnson (2003) 
    30 Cal.4th 1302
    , 1306, we held: “to
    state a prima facie case, the objector must show that it is more
    likely than not the . . . challenges . . . were based on
    impermissible group bias.” The United States Supreme Court
    subsequently disapproved the “more likely than not”
    formulation as setting too high a threshold. Instead, it explained
    that Baston’s first step is satisfied if the objector produces
    sufficient evidence to support an inference that discrimination
    occurred. (Johnson v. California (2005) 
    545 U.S. 162
    , 170.) For
    cases tried before Johnson v. California, we have “adopted a
    mode of analysis under which, rather than accord the usual
    deference to the trial court’s no-prima-facie case determination,
    we ‘review the record independently to determine whether the
    record supports an inference that the prosecutor excused a juror
    on a prohibited discriminatory basis.’ ” (People v. Rhoades,
    supra, 8 Cal.5th at pp. 428–429.) We apply that analytical
    approach here and consider “ ‘all relevant circumstances’ ” in
    doing so. (Id. at p. 429.)
    “A court may . . . consider nondiscriminatory reasons for a
    peremptory challenge that are apparent from and ‘clearly
    established’ in the record [citations] and that necessarily dispel
    41
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    any inference of bias.” (People v. Scott (2015) 
    61 Cal.4th 363
    ,
    384.) Here, the trial court found no prima facie case of
    discrimination, and the prosecution was not asked to provide
    any reason for its challenges. Accordingly, our review is
    necessarily circumscribed.
    In conducting our review “[w]e have identified certain
    types of evidence as ‘especially relevant.’ ” (People v. Rhoades,
    supra, 8 Cal.5th at p. 429.) These include: whether a party has
    struck most or all of the members of the identified group from
    the venire; has used a disproportionate number of strikes
    against the group; or has only engaged the panelists in desultory
    voir dire.17 (People v. Rhoades, at p. 429.)
    Our independent review does not reflect the court erred.
    First, the court was well aware of, and sensitive to, the issue.
    17
    People v. Rhoades also noted as “especially relevant”
    factors “ ‘whether the defendant is a member of [the identified]
    group, and whether the victim is a member of the group to which
    a majority of remaining jurors belong.’ ” (People v. Rhoades,
    supra, 8 Cal.5th at p. 429.) Those factors are not implicated
    here. All three defendants and all victims are African-American
    males. As we discuss in greater detail below, 10 of the
    empaneled jurors were equally divided among African-
    Americans and Whites, with the remaining two jurors being of
    Hispanic descent. Flowers v. Mississippi (2019) 588 U.S. __, 
    139 S.Ct. 2228
    , 2243, a third stage Batson case, mentions two
    additions to the list of especially relevant factors: comparing
    panelists who were excused against those who were not, and
    evaluating whether the prosecutor misrepresented the record in
    defending the strikes. Because this is a first stage case, and the
    prosecution was not asked to defend its strikes, these relevant
    third stage factors are not at play here. Further we note that
    defendants do not assert they were precluded from presenting
    additional evidence or arguing the relevance of the Flowers
    factors based on the record.
    42
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    Indeed, during a later in-chambers discussion of another issue,
    the court turned to the question of peremptory challenges,
    inviting both sides to consider the appearance that their pattern
    of challenges might convey to an observer. The court told both
    sides to “be careful,” and elaborated: “I think your peremptories
    are proper, but you are giving the appearance of [bias]. I am not
    admonishing you. I’m just saying I’m sensitive to that on both
    sides.”18
    Turning to the pertinent “especially relevant” factors, the
    record reveals the following. African-American women
    comprised at least 19 percent of the 83 available potential
    jurors. When the motion was made, African-American women
    made up 26 percent of the 34 panelists who had been questioned.
    Yet the prosecution used six of its first 12 challenges to excuse
    them, a rate of 50 percent.19 Those numbers are important and
    reflect an obvious disparity. But, as with most relevant factors,
    they must be considered in context. (See Parker, supra, 2 Cal.5th
    at p. 1212.) African-American women comprised 33 percent of
    the jurors ultimately seated, a proportion which slightly
    exceeded their representation among the 34 panelists who had
    been questioned when the motion was lodged.
    18
    When the selected jurors were ultimately sworn the
    defense had excused nine Whites, two African-Americans, three
    Asian-Americans and one Hispanic. We emphasize that one
    party’s Batson/Wheeler violation in no way excuses similar
    misconduct by the other side. (See People v. Reynoso (2003) 
    31 Cal.4th 903
    , 926.) We note these figures only to provide context
    for the court’s observations.
    19
    The other prosecution excusals were three White women,
    one Asian-American man, one Hispanic man, and one Hawaiian
    woman.
    43
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    Defendants rely on Williams v. Runnels (9th Cir. 2006)
    
    432 F.3d 1102
    , 1107. While not binding precedent, opinions from
    other jurisdictions may provide useful analytical approaches. In
    Runnels “the prosecutor used three of his first four peremptory
    challenges to remove African-Americans from the jury. In
    addition, it appears that only four of the first forty-nine
    potential jurors were African-American.” (Ibid.) Defendants
    contend the strike rate in this case was greater than the 75
    percent seen in Williams v. Runnels, and greater than that in
    several other circuit court decisions. (See Paulino v. Castro (9th
    Cir. 2004) 
    371 F.3d 1083
    , 1090 [83 percent]; Fernandez v. Roe
    (9th Cir. 2002) 
    286 F.3d 1073
    , 1078 [57 percent removal rate];
    Turner v. Marshall (9th Cir. 1995) 
    63 F.3d 807
    , 812–813 [56
    percent]). Defendants are mistaken. As described above, the
    strike rate here was 50 percent, not the 75 percent seen in
    Williams v. Runnels, or the higher figures in the other federal
    decisions. Far more tellingly, in Runnels, the state excluded
    three out of four African-Americans, a rate over 9 times20 their
    representation among panelists who had been examined. The
    numbers here are not nearly as stark. It is true that, when the
    motion was made, the district attorney had excused African-
    American women at a rate higher than their representation
    among those called to the box. That fact certainly is noteworthy,
    however context remains informative.
    Even a high exclusion rate does not invariably
    demonstrate excusals were motivated by discriminatory
    animus; other factors may also be relevant. In People v. Sánchez
    20
    Calculated by dividing the 75 percent strike rate by the
    eight percent representation rate, yielding an exclusion rate of
    9.4.
    44
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    (2016) 
    63 Cal.4th 411
    , 439, the prosecution exercised four of 10
    peremptory challenges against an identified group, only six of
    whom were present in the venire, i.e., a 40 percent strike rate,
    and a two-thirds removal rate. (Ibid.) After the defendant
    challenged another juror from that group, six of 32 group
    members, or 19 percent, remained in the venire, and only one
    served on the jury. (Ibid.) Here as in Sánchez the rate of removal
    was two-thirds: four of six jurors in that case, and six of nine
    here. We also note the 40 percent strike rate in Sánchez was
    marginally lower than the 50 percent rate here. Despite these
    similar figures, we reasoned in Sánchez that even if the strike
    rate “[c]onsidered alone . . . might suggest a discriminatory
    purpose,” under the totality of the circumstances, the suggestion
    was unsupported. (Ibid.)
    While the exclusion rate is important, considered in
    context it does not give rise to an inference the excusals were
    motivated by racial bias for purposes of our independent
    appellate review. (See Parker, supra, 2 Cal.5th at p. 1212.) Here
    the prosecution ultimately accepted a jury with four African-
    American women, a statistically higher figure than this
    subgroup’s representation in the box. “ ‘While acceptance of one
    or more black jurors by the prosecution does not necessarily
    settle all questions about how the prosecution used its
    peremptory challenges, these facts nonetheless help lessen the
    strength of any inference of discrimination that the pattern of
    the prosecutor’s strikes might otherwise imply.’ [Citations.] We
    have previously held that the prosecutor’s acceptance of a jury
    panel including multiple African-American prospective jurors,
    ‘while not conclusive, was “an indication of the prosecutor’s good
    faith in exercising his peremptories, and . . . an appropriate
    factor for the trial judge to consider in ruling on a Wheeler
    45
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    objection . . . .” ’ ” (People v. Johnson (2019) 
    8 Cal.5th 475
    , 508;
    see also People v. McDaniel (2021) 
    12 Cal.5th 97
    , 124 [“Despite
    the relatively high rate of strikes against Black jurors at the
    time of the motion, the final racial composition of the jury was
    diverse and contained more Black jurors than jurors of any other
    race”]; People v. Lenix (2008) 
    44 Cal.4th 602
    , 610, fn. 6.)
    The rate of strikes following a Batson/Wheeler motion is
    also a relevant consideration. (See People v. Johnson, supra, 8
    Cal.5th at p. 507.) In People v. Reed (2018) 
    4 Cal.5th 989
    , 1000–
    1001, we explained: “the prosecutor’s decision to strike one black
    juror while accepting another who replaced her suggests that
    nonrace related differences between the jurors, rather than race,
    explain the prosecutor’s actions.” Similarly here, after
    defendants’ motion, the female African-American panelist who
    had been excused was replaced in the jury box by an African-
    American woman who ultimately served as a juror.21 Although
    the prosecution excused two African-American women after the
    Batson/Wheeler motion, this case is quite different from Miller-
    El v. Dretke (2005) 
    545 U.S. 231
    , 250, where the prosecution
    merely made a “late-stage decision to accept a [single] black
    panel member.” After the defendants’ Batson/Wheeler motion
    here, the prosecution exercised four peremptory strikes before
    passing the jury, leaving 19 strikes unused. 22 As we have
    21
    Two of the African-American women ultimately seated on
    the jury had been members of the panel from an early point in
    the jury selection process and were never the subject of a strike.
    22
    California Code of Civil Procedure, section 231,
    subdivision (a) provides that, in a capital case, codefendants are
    entitled to 20 joint challenges and 5 individual challenges each,
    and the People are entitled to an equal total number. Here the
    prosecution used 16 challenges and the defense 15.
    46
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    previously concluded, “the fact that the prosecution accepted a
    panel with [four African-American female] jurors when it had
    enough remaining peremptory challenges to strike them
    suggests that the prosecutor did not harbor bias against [the
    identified group of] jurors.” (People v. McDaniel, supra, 12
    Cal.5th at p. 124.) The prosecution also repeatedly excused
    jurors who were not members of the identified group rather than
    excusing a number of African-American women then in the box.
    Also relevant in dispelling any inference of discriminatory
    motive was the prosecutor’s repeated passing of two African-
    American women who had been present in the box from nearly
    the beginning of the selection process, and who ultimately
    served on the jury. (See People v. Clark (2011) 
    52 Cal.4th 856
    ,
    906.) When advocates pass a challenge they evince a willingness
    to accept the panel as constituted. The prosecutor here passed
    the challenge when the group of 40 panelists seated or excused
    contained several African-American women. (See People v.
    Reed, supra, 4 Cal.5th at p. 1000.)
    We have also observed: the selection of a jury is a fluid
    process, with challenges for cause and peremptory strikes
    continually changing the composition of the jury before it is
    finally empaneled. As we noted in People v. Johnson (1989) 
    47 Cal.3d 1194
    : “[T]he particular combination or mix of jurors
    which a lawyer seeks may, and often does, change as certain
    jurors are removed or seated in the jury box. It may be
    acceptable, for example, to have one juror with a particular point
    of view but unacceptable to have more than one with that view.
    If the panel as seated appears to contain a sufficient number of
    jurors who appear strong-willed and favorable to a lawyer’s
    position, the lawyer might be satisfied with a jury that includes
    one or more passive or timid appearing jurors. However, if one
    47
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    or more of the supposed favorable or strong jurors is excused
    either for cause or [by] peremptory challenge and the
    replacement jurors appear to be passive or timid types, it would
    not be unusual or unreasonable for the lawyer to peremptorily
    challenge one of these apparently less favorable jurors even
    though other similar types remain. These same considerations
    apply when considering the age, education, training,
    employment, prior jury service, and experience of the
    prospective jurors.” (Id. at p. 1220.)
    We are mindful that the prosecution’s passing on the jury
    as a whole did not occur until after the trial court’s statement to
    the parties that, while their use of peremptories had been
    proper, the court was aware the defense had accepted the jury
    three times. It noted the defense had accepted some White
    panelists and excused some African-American panel members,
    “seven Black people [were] left on the jury,”23 and the case
    involved three African-American defendants. The judge
    continued, “In my court I want the appearance of fairness,” and
    alerted the parties they were “on notice” that “[t]he appearance
    of justice is as important as justice.”
    This    statement     did    not    immediately    follow   the
    Batson/Wheeler motion. It occurred during the in-chambers
    discussion described at page 44, ante. Between the defendants’
    motion and the in-chambers statement, several panelists were
    excused: a White woman (by the defense); a Hispanic man (by
    the prosecution); a for-cause excusal, race not reflected; an
    23
    The trial court appears to be mistaken about this fact; only
    four African-American people, all women, were present on the
    jury at the time the court addressed the parties.
    48
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    African-American woman (by the prosecution, following defense
    acceptance); a Hispanic woman (by the prosecution, following
    defense acceptance); an Asian man (by the defense); an African-
    American woman (by the prosecution), and a White man (by the
    defense).24 After the court’s later in-chambers comment, it
    excused one more juror for cause, the defense exercised one
    further peremptory challenge and all parties accepted the panel.
    The court explicitly noted it considered all the
    peremptories exercised by both sides to have been proper. We
    need not question the trial court’s perspective in this regard; as
    we have noted, in this unique context of review we are required
    to consider the record independently. (People v. Rhoades, supra,
    8 Cal.5th at pp. 428–429.) Here, the group of seated jurors
    included four African-American women, one African-American
    man, three White women, two White men, one Hispanic woman,
    and one Hispanic man. As noted, the defense did not renew a
    Batson/Wheeler motion after the prosecution’s excusals of
    Panelist Nos. 107 or 109 or after it had passed on the jury. Nor
    did the defense object to the composition of the jury as finally
    constituted.
    24
    The last two African-American women excused were
    Panelists Nos. 107 and 109. The former had been seated as a
    juror on both felony and misdemeanor cases. These included a
    capital case which hung 9–3 in the guilt phase and a child
    molestation case the year before this one, which hung 8–4.
    Panelist No. 109 was a court clerk in another department. The
    judge began the colloquy by saying he knew her well and told
    the group about her employment. Neither party asked her any
    questions. The defense passed the challenge and the prosecution
    excused her. The defense did not object to the use of either
    peremptory.
    49
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    People v. Battle is instructive by way of contrast. (Battle,
    supra, 11 Cal.5th at p. 774.) There, an African-American
    defendant was convicted by an all-White jury. His victims were
    White and mitigation evidence was offered to prove defendant
    was, himself, the victim of life-long discrimination. Here, all
    defendants and victims were African-American, as were a
    number of witnesses, along with five of the seated jurors. In
    Battle, we found the jury’s composition “serve[d] as standalone
    evidence to inform our step-one analysis,” and that it was
    “particularly germane where the case was racially charged.”
    (Ibid.) Even so, in light of the other circumstances, we concluded
    the defendant’s “showing [did not] suffice to give rise to an
    inference that discriminatory intent motivated [a juror’s]
    excusal.” (Id. at p. 775.)
    As in People v. Johnson, supra, 8 Cal.5th at page 510,
    footnote 7, “[W]e need not resort to examining the record for
    obvious race-neutral reasons for the prosecutor’s peremptory
    strikes that would ‘ “necessarily dispel any inference of bias.” ’ ”
    After independently examining the entire record, including the
    trial court’s observations and the final jury composition, we
    conclude the court acted within its discretion in denying
    defendants’ Batson/Wheeler motion.
    2. Evidentiary Issues
    a. Admission of Hearsay
    Newborn and Holmes argue the court erred in allowing
    Bowen’s girlfriend, LaChandra Carr, to relate hearsay when
    cross-examined about an inconsistent statement. Carr told the
    grand jury she saw Newborn and Holmes at the hospital the
    night of the murders. At trial, however, she claimed she spent
    the entire night at home with Bowen’s mother. Admitting she
    50
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    told the grand jury something different, she stated: “The truth
    is I really wasn’t there.” Asked to explain her prior testimony,
    Carr said she “knew they were there from when [Bowen] called
    [her] from the hospital. I just knew everyone who was there.”
    The court denied defendants’ motion to strike these statements
    as hearsay. Instead, it gave a limiting instruction that Carr’s
    grand jury statements could be considered only for the purpose
    of showing inconsistency with her current testimony.25
    During further cross-examination, Carr repeated that
    Bowen had called her from the hospital and said Newborn was
    also there. The defense moved for a mistrial, arguing this
    testimony related double hearsay. The court disagreed,
    explaining that jurors would have to decide “whether what she
    said is true, whether she was at the hospital” or not. It
    instructed, however, that Bowen’s “alleged statements” to Carr
    could not be used against any defendant.
    Defendants renew their hearsay arguments here. A trial
    court’s ruling on the admissibility of evidence, including “on the
    hearsay nature of the evidence in question,” is reviewed for
    abuse of discretion. (People v. Waidla (2000) 
    22 Cal.4th 690
    ,
    725.) The court’s rulings were within that scope.
    25
    Under some circumstances, a prior inconsistent statement
    may be admissible not only for its impeachment value, but for
    its truth. (People v. Guerra (2006) 
    37 Cal.4th 1067
    , 1144 [“Prior
    inconsistent statements are admissible under [Evidence Code
    section 1235] to prove their substance as well as to impeach the
    declarant]; see Simons, Cal. Evidence Manual (2021) § 2:42, pp.
    134–137; CALCRIM No. 318.) That general rule would not apply
    here to encompass hearsay statements Carr attributed to
    Bowen.
    51
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    Carr’s testimony to the grand jury was admissible as a
    prior inconsistent statement. A witness’s out-of-court statement
    “is not made inadmissible by the hearsay rule if the statement
    is inconsistent with his testimony at the hearing and is offered
    in compliance with [Evidence Code] Section 770.” (Evid. Code, §
    1235.) Evidence Code section 770, subdivision (a) in turn,
    requires that the witness have “an opportunity to explain or to
    deny the [inconsistent] statement” while testifying. Carr’s trial
    and grand jury testimony were in direct conflict as to where she
    was on Halloween night and what she knew, or did not know,
    about the whereabouts of others. She was given an opportunity
    to explain the inconsistency. In doing so, she related additional
    out-of-court statements from Bowen. Defendants’ complaint,
    that these later statements were hearsay, fails because it
    appears they were not admitted for their truth. They were,
    however, relevant to help the jury evaluate the credibility of
    Carr’s attempt to reconcile her inconsistent accounts. She
    claimed that she relied on them to infer that Holmes and
    Newborn were there and, thus, explain her prior statement. The
    trial court gave a limiting instruction admonishing the jury it
    could not consider Bowen’s statements “against any defendant.”
    Accordingly, Bowen’s statements were not admitted against any
    defendant for the truth of their content. They were only to be
    considered as to Carr’s credibility.26
    26
    Defendants also challenge the admission of Carr’s
    testimony that Bowen had told her he was present at the Wilson
    Street shootings “but he was no driver and he was no shooter.”
    They contend this testimony violated Bruton, 
    supra,
     
    391 U.S. 123
    . The objection was not raised below and is not well taken
    now. Bruton addressed “the powerfully incriminating
    extrajudicial statements of a codefendant” who is jointly tried
    and not subject to cross-examination. (Id. at p. 135; 
    id.
     at p.
    52
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    b. Eyewitness Testimony
    Holmes and McClain argue the admission of Gabriel
    Pina’s eyewitness testimony violated their rights to due process.
    No error appears.
    On the night of the shootings, Gabriel Pina saw both the
    driver of the lead car racing toward Wilson Street, and a man
    who ran from the scene and got into a car. Pina later went to the
    police and was shown several photo arrays. He picked a picture
    of McClain as the driver in one group of photos but
    acknowledged that the photograph showed his head tilted at a
    different angle. He was then shown an image of McClain in a
    newspaper, “folded . . . up” and “pretty far away,” and confirmed
    the identification. Pina also picked Holmes’s photo as the man
    who ran to a car after the shooting. He recognized Holmes
    because of his facial features and scarring. Defendants each
    unsuccessfully moved to suppress these identifications.
    To determine whether the admission of identification
    evidence violates due process, “we consider (1) whether the
    identification procedure was unduly suggestive and
    unnecessary, and, if so, (2) whether the identification itself was
    nevertheless reliable under the totality of the circumstances,
    136.) Here, the jurors knew that not all perpetrators were being
    tried together. Indeed, Bowen had been severed from the case
    and was not a codefendant. His statement, related during Carr’s
    testimony, inculpated only himself. Further, testimony at trial
    indicated that multiple cars carrying African-American men
    drove through Wilson Street that night, dispelling any inference
    that if Bowen neither drove nor shot defendants necessarily did.
    There was no reason that Carr’s testimony about Bowen’s
    involvement could have prejudiced defendants. For the same
    reasons, any error in admitting the testimony was harmless.
    (See People v. Watson (1956) 
    46 Cal.2d 818
    , 836.)
    53
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    taking into account such factors as the opportunity of the
    witness to view the suspect at the time of the offense, the
    witness’s degree of attention at the time of the offense, the
    accuracy of his or her prior description of the suspect, the level
    of certainty demonstrated at the time of the identification, and
    the lapse of time between the offense and the identification.”
    (People v. Cunningham (2001) 
    25 Cal.4th 926
    , 989; Manson
    v. Brathwaite (1977) 
    432 U.S. 98
    , 104–107; Neil v. Biggers (1972)
    
    409 U.S. 188
    , 199–200.) We note, however, that in a recent
    decision evaluating the propriety of a jury instruction
    concerning witness certainty, we observed “[t]here is [now] near
    unanimity in the empirical research that ‘ “under most
    circumstances, witness confidence or certainty is not a good
    indicator of identification accuracy.” ’ ” (People v. Lemcke (2021)
    
    11 Cal.5th 644
    , 665.) A procedure is unfair if it suggests in
    advance the identity of the person police suspect. (People v.
    Ochoa (1998) 
    19 Cal.4th 353
    , 413 (Ochoa).) We defer to the trial
    court’s factual findings but independently review its
    determination whether an identification procedure was unduly
    suggestive. (People v. Gonzalez (2006) 
    38 Cal.4th 932
    , 943.)
    Reversal is not warranted unless there is a “substantial
    likelihood of irreparable misidentification.” (Manson, at p. 108.)
    “In other words, ‘[i]f we find that a challenged procedure is not
    impermissibly suggestive, our inquiry into the due process claim
    ends.’ ” (Ochoa, at p. 412.)
    Holmes first challenges the procedure because the photo
    arrays shown to Pina included two photographs of him. The
    photographs showed Holmes at different ages and with different
    haircuts, however. Pina selected only one of the photographs,
    failing to identify Holmes in the other. Holmes also contends the
    procedure was unduly suggestive because Pina initially made
    54
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    only a hesitant identification of McClain, which he did not
    confirm until after he was shown a newspaper photograph. 27
    Pina contacted police after seeing the photo of a different
    suspect on television. He then looked through six six-packs of
    photographs, attempting to identify that other suspect. During
    the process, he saw Holmes’s image, recognizing his distinctive
    facial features and scarring. Pina got a good look at Holmes the
    night of the shooting and saw him clearly. (See People
    v. Cunningham, supra, 25 Cal.4th at p. 989.) He was especially
    attentive to the men he saw given the unusual situation. He
    gave an accurate description of the suspects’ hairstyles and
    distinctive features. The challenged procedure was not unduly
    suggestive, and it is not substantially likely that Pina
    misidentified Holmes, particularly in light of all the additional
    evidence. (See Manson v. Brathwaite, supra, 432 U.S. at pp.
    104–107; Ochoa, 
    supra,
     19 Cal.4th at p. 412.)
    McClain raises similar arguments. He contends the array
    shown to Pina was unduly suggestive because, in the group
    containing his picture, his photograph was darker than the
    others and he was the only person with a gold chain and long
    hair. The argument fails. In the six different photo arrays Pina
    viewed many men had long hair, including two in the six-pack
    with McClain’s photo. McClain also asserts the police showed
    Pina a newspaper photo of him before the photographic array.
    This assertion is contradicted by Pina’s grand jury testimony.
    27
    Holmes asserts that Pina made no identification when he
    spoke to police on the night of the murders. In fact, he was never
    asked to do so. Pina described the several cars that drove past,
    but officers did not ask whether he could recognize any of the
    drivers.
    55
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    Pina testified he saw the newspaper photo after he saw McClain
    in the lineup. Pina recognized a photograph in the array but
    could not be certain of the identification because the man’s face
    was tilted at a different angle than the man Pina saw. The six-
    pack photograph also showed McClain’s hair in a ponytail, but
    when Pina saw him his hair was loose. After Pina explained
    these factors to investigators, he was shown the newspaper
    photo, and immediately identified McClain.
    The trial court did not err in denying McClain’s
    suppression motion. “[F]or a witness identification procedure to
    violate the due process clauses, the state must, at the threshold,
    improperly suggest something to the witness — i.e., it must,
    wittingly or unwittingly, initiate an unduly suggestive
    procedure. Due process does not forbid the state to provide
    useful further information in response to a witness’s request, for
    the state is not suggesting anything.” (Ochoa, supra, 19 Cal.4th
    at p. 413, italics added.) Ochoa addressed analogous
    circumstances. The witness in Ochoa asked to see a suspect’s
    profile after identifying him with some uncertainty from a
    photographic lineup. (Id. at p. 412.) She was shown a single
    image of Ochoa in profile but not shown profile views of any
    other individuals whose pictures were in the lineup. (Ibid.) She
    then confirmed her identification. We found no unfairness in the
    procedure because it did not suggest in advance of the witness’s
    identification the identity of the person suspected by the police.
    (Id. at p. 413.) The same is true here. Pina was shown an
    additional image of McClain only after he had selected
    McClain’s photo. Indeed, the newspaper photograph here was
    shown alongside other images, though Pina only paid attention
    56
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    to McClain’s because it was the image he recognized.28 As in
    Ochoa, police did not suggest McClain’s identity before Pina
    identified him. (Id. at p. 413.)
    Moreover, even if the procedure had been flawed, the
    evidence was nevertheless admissible because this particular
    identification was reliable under the totality of the
    circumstances. (See Manson v. Brathwaite, supra, 432 U.S. at
    pp. 104–107.) As with Holmes, nearly all considerations support
    reliability. Pina testified that he had a clear view of McClain
    because McClain drove up and down the street and stopped
    directly under a streetlamp. Pina paid attention to the suspects
    because of their odd behavior. McClain’s driving maneuvers, in
    particular, were unusual. Pina described him as
    “literally . . . reaching over the steering wheel to see” Pina and
    his companion. Before the shooting began, Pina told his
    girlfriend to hide if “something happens” and kept his focus on
    the cars. Although Pina identified McClain one or two months
    after the crimes, there was no indication the passage of time
    impaired his ability to recall the events or make an
    identification. Finally, Pina made “eye-to-eye” contact with
    McClain, knew the angle of McClain’s head and the long, loose
    hairstyle he wore on the night of the murders, and observed how
    those particulars differed in the photographs he was shown. The
    defense was able to thoroughly cross-examine Pina and delve
    into factors bearing on the reliability of his identifications.
    28
    It is not clear whether the other images displayed in the
    newspaper shown to Pina were of suspects involved in the
    Halloween shooting. The photograph was not offered into
    evidence by any party.
    57
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    Accordingly, the jury was well able to properly consider the
    weight to give them.
    c. Admission of Inflammatory Evidence
    Defendants raise two challenges to the admission of
    evidence about their uncharged misconduct. The governing law
    is settled.
    “ ‘Character evidence, sometimes described as evidence of
    propensity or disposition to engage in a specific conduct, is
    generally inadmissible to prove a person’s conduct on a specified
    occasion. (Evid. Code, § 1101, subd. (a).) Evidence that a person
    committed a crime, civil wrong, or other act may be admitted,
    however, not to prove a person’s predisposition to commit such
    an act, but rather to prove some other material fact, such as that
    person’s intent or identity. (Id., § 1101, subd. (b).)’ ” (People v.
    Leon (2015) 
    61 Cal.4th 569
    , 597.) “The relevance depends, in
    part, on whether the act is sufficiently similar to the current
    charges to support a rational inference of intent, common
    design, identity, or other material fact.” (Id. at p. 598.) The
    greatest degree of similarity is required to show identity, which
    requires proof of enough distinctive features in common with the
    charged offense to support the inference that the same person
    committed both acts; the least similarity is necessary to
    demonstrate intent. (Ibid.)
    The next step is an evaluation of the evidence’s prejudicial
    impact. (See Evid. Code, § 352.) “ ‘If evidence of prior conduct is
    sufficiently similar to the charged crimes to be relevant to prove
    the defendant’s intent, common plan, or identity, the trial court
    then must consider whether the probative value of the evidence
    “is ‘substantially outweighed by the probability that its
    admission [would] . . . create substantial danger of undue
    58
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    prejudice, of confusing the issues, or of misleading the jury.’ ” ’ ”
    (People v. Leon, supra, 61 Cal.4th at p. 599.) The trial court’s
    decision whether to admit uncharged misconduct evidence is
    reviewed for abuse of discretion. (Id. at p. 597.)
    i. Unadjudicated Arrest
    McClain contends the court erred and violated his
    constitutional rights in admitting evidence that on September
    12, 1992, he was arrested with Bowen for weapon possession.29
    Any asserted error was harmless.
    The prosecution offered the evidence to demonstrate
    McClain’s connection with other codefendants more than a year
    before the charged crimes. In particular, he argued the arrest
    showed McClain and Bowen had access to weapons. McClain
    countered that the arrest was for a different crime and involved
    different weapons from those used in the Halloween shootings.
    He offered to stipulate that he and Bowen were acquainted. The
    court admitted the evidence, explaining it was relevant, in part,
    to show McClain’s access to weapons.
    We need not discuss the merits of defendant’s challenge.
    Even if we were to find error, admission of the evidence was not
    unduly prejudicial. A consideration of impermissible prejudice
    that might flow from otherwise relevant evidence evaluates how
    inflammatory the uncharged act is when compared to those
    charged. Whether the uncharged act was not previously
    adjudicated is also a relevant consideration. (People v. Ewoldt
    (1994) 
    7 Cal.4th 380
    , 405.) McClain’s weapons possession arrest
    29
    McClain’s related claim that the prosecutor committed
    misconduct during closing argument by referencing his
    unadjudicated arrest is addressed post, at pages 84 to 85.
    59
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    was far less inflammatory than the murders here. (Ibid.) Any
    prejudicial impact of the evidence was further dissipated by the
    jury instructions that the uncharged act could not to be
    considered as proof of McClain’s bad character or criminal
    disposition.
    ii. Gang Evidence
    Holmes and McClain also challenge the admission of
    evidence regarding gang affiliation. Although conceding some of
    this evidence was relevant, they contend the quantity and
    emotional impact of the gang evidence was unduly prejudicial
    depriving them of a fair trial and due process. The evidence was
    properly admitted.
    Holmes complains the evidence connecting him with the
    P-9 gang was more tangential than that offered against his
    codefendants. However, Mario Stevens identified him as a P-9
    member , and Derrick Tate testified that Holmes wore a hat that
    said “P-9.” There was some contrary evidence, including
    McClain’s testimony that Holmes was not a member of the gang.
    However, the jury was equipped to weigh all the testimony and
    decide the question for itself.
    McClain did not dispute his membership. Instead, he now
    argues the introduction of gang evidence against him was
    cumulative and unduly prejudicial. McClain did not lodge an
    objection on this basis at trial. Throughout the briefing
    defendants raise a number of claims that were not preserved
    below. The general rule is that a failure to object in the trial
    court waives the right to asset error on appeal. 30 (See People v.
    30
    For examples of exceptions to this general rule see ante,
    page 19, footnote 9.
    60
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    Dykes (2009) 
    46 Cal.4th 731
    , 756 (Dykes).) However,
    particularly in capital cases, we often choose to address even a
    waived claim on the merits. Here we will not repeat the general
    rule in each instance in order to avoid tedious repetition. We will
    note any failure to object at trial and cite authority for the
    waiver rule. By noting that state of the record, and citation to
    supporting authority, we invoke the general waiver principle.
    McClain’s lately-asserted challenge also lacks merit.
    Although evidence of gang membership carries the potential for
    prejudice, it “ ‘is often relevant to, and admissible regarding, the
    charged offense. Evidence of the defendant’s gang affiliation —
    including evidence of the gang’s territory, membership, signs,
    symbols, beliefs and practices, criminal enterprises, rivalries,
    and the like — can help prove identity, motive, modus operandi,
    specific intent, means of applying force or fear, or other issues
    pertinent to guilt of the charged crime.’ ” (People v. Becerrada
    (2017) 
    2 Cal.5th 1009
    , 1022.) Given the circumstances of the
    shootings, which were clearly intended as gang retaliation,
    defendants’ membership was highly relevant to prove their
    involvement, motive, and intent to kill. The prosecution had a
    right to present the evidence, notwithstanding McClain’s failure
    to contest it.
    Defendants also claim the court abused its discretion in
    allowing witnesses to testify about gang-related threats.
    DeSean Holmes told the jury he was afraid to testify because his
    life had been threatened. He described threats made to his
    mother, coach, and others. Derrick Tate testified about threats
    to his mother and grandmother and admitted he feared for his
    own safety. Willie McFee gave similar testimony. He had
    received death threats over a year and a half and believed they
    came from gang members. The prosecution also played a tape in
    61
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    which McFee told police            about    receiving   anonymous,
    threatening phone calls.
    Defendants objected to some of this evidence on hearsay
    grounds but did not raise an objection under Evidence Code
    sections 1101 or 352.31 The claims are both forfeited (Dykes,
    supra, 46 Cal.4th at p. 756) and meritless. “Evidence that a
    witness is afraid to testify or fears retaliation for testifying is
    relevant to the credibility of that witness and is therefore
    admissible.” (People v. Burgener (2003) 
    29 Cal.4th 833
    , 869; see
    Simons, Cal. Evidence Manual, supra, § 3.47, pp. 290–291.)
    Testimony about threats the witnesses and their family
    members received also supported the prosecution’s theory that
    the shootings were committed by gang members and motivated
    by gang-related concerns. These were legitimate purposes. The
    evidence’s probative value was not outweighed by any undue
    prejudice to defendants. The testimony was not particularly
    inflammatory, and the witnesses did not identify the people, or
    even the gang, making the threats.
    Finally, Holmes and McClain argue expert Derrick
    Carter’s testimony about gangs, in particular a list of P-9 gang
    members, was irrelevant and inflammatory. Neither objection
    was raised below (Dykes, supra, 46 Cal.4th at p. 756), and the
    forfeited claims would fail on the merits. Evidence about gang
    activity, and the defendants’ gang membership, was highly
    relevant given the apparent gang-related motivation for the
    31
    Defendants do not renew their hearsay arguments here.
    After the objection to Tate’s testimony, the court admonished
    the jury that statements about his motivation for testifying were
    not offered for truth and could be considered only with regard to
    his state of mind.
    62
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    murders. The court did not abuse its discretion in admitting
    expert testimony on the subject. Defendants’ criticisms about
    the content of Carter’s testimony address the weight of that
    evidence, not to its admissibility. The jury was entitled to
    consider this evidence, along with Carter’s credibility, and was
    properly instructed how to do so. (See CALJIC No. 2.20.)
    d. Restrictions on Cross-Examination
    i. DeSean Holmes
    Newborn    alleges    his   rights     to   due   process   and
    confrontation were violated on five occasions when he was not
    permitted to cross-examine DeSean Holmes as fully as he
    wished. Holmes and McClain join these claims but assert no
    additional arguments of their own. The rulings were within the
    court’s discretion. Considered individually and cumulatively,
    these reasonable limits on cross-examination did not infringe
    defendants’ constitutional rights.
    Newborn first claims he was prevented from questioning
    DeSean about a prior arrest. In February 1995, DeSean
    burglarized Willie McFee’s home. By the time DeSean was
    arrested for the burglary two months later, he was already
    incarcerated for a separate, unspecified offense. After DeSean
    testified to these facts, the court sustained an objection to
    further questioning about the offense for which DeSean was
    incarcerated without an offer of proof as to relevance. None was
    made, and Newborn’s attorney moved to a different line of
    inquiry. Newborn now complains further cross-examination
    would have demonstrated the nature and magnitude of
    DeSean’s bias. But his failure to make an offer of proof as to the
    impeachment evidence that might have been elicited, despite
    the court’s express invitation to do so, forfeits the issue on
    63
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    appeal. (See People v. Valdez (2004) 
    32 Cal.4th 73
    , 108.) Nor is
    there any suggestion such an offer would have been futile.
    Indeed, the court solicited additional information to assist its
    evaluation. Newborn offered none below and does not do so here.
    The court reasonably exercised its discretion (People
    v. Quartermain (1997) 
    16 Cal.4th 600
    , 623) to limit cross-
    examination on a witness’s unrelated prior offense, particularly
    when presented with no additional offer of proof or further
    argument.
    Newborn next claims he was unable to explore whether
    DeSean tried to gain favor with law enforcement by falsely
    attributing a double homicide to Danny Cooks and Ernest
    Holly.32 Newborn tried to show that DeSean identified Cooks
    and Holly because he was dating Holly’s ex-girlfriend. Yet the
    record demonstrates Newborn was able to elicit precisely the
    testimony he sought. After a relevance objection, Newborn
    rephrased his question and DeSean testified that he had been
    dating Holly’s ex-girlfriend around the time he implicated Cooks
    and Holly in the homicides. Newborn complains he was
    prevented from seeking further details but identifies no ruling
    that so limited him. More importantly, he fails to explain how
    additional information about the relationship would have been
    probative. The essential facts establishing DeSean’s asserted
    motive to falsely accuse someone else of murder were before the
    jury.
    Newborn’s third allegation of deficient cross-examination
    concerns DeSean’s testimony about another shooting. In
    32
    Cooks and DeSean were connected in criminal activity
    unrelated to this case. Holly was one of the men Tate accused of
    participating in the Halloween shootings.
    64
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    response to Newborn’s questioning, DeSean said he sought
    protective custody in September 1995 because he “was the
    victim of a shooting.” Newborn elicited extensive testimony
    about the case, with DeSean twice asserting he was a “victim.”
    In concluding this line of questioning, Newborn asked, “just for
    clarification, so you don’t mislead the judge, the shooting case
    where you say you were the victim, nobody shot at you, did
    they?” DeSean replied, “Yes.” The court denied a motion to
    strike but precluded further questioning on the subject. The
    next day, Newborn made an offer of proof that DeSean was not
    a victim but instead drove the car from which shots were fired,
    although he did not know his passenger intended to shoot. The
    shooting victim was DeSean’s close friend. The prosecutor
    explained that DeSean felt victimized because he was surprised
    by the passenger’s assault on his friend. The court repeated that
    the incident could not be probed further but noted the parties
    could stipulate DeSean was not a victim. This ruling was proper.
    The court “ ‘retains wide latitude in restricting cross-
    examination that is repetitive, prejudicial, confusing of the
    issues, or of marginal relevance.’ ” (People v. Linton (2013) 
    56 Cal.4th 1146
    , 1188.) Newborn made his point that DeSean was
    not the target of gunfire, despite having characterized himself
    as a victim. Further questioning on this unrelated incident, and
    why DeSean may have felt victimized, would have consumed
    time on matters that were only marginally relevant. Because
    Newborn has not shown that the prohibited cross-examination
    would have produced “ ‘a significantly different impression of
    [DeSean’s] credibility,’ ” there was no Sixth Amendment
    violation. (People v. Williams (2016) 
    1 Cal.5th 1166
    , 1192.)
    Next, Newborn claims he could not examine DeSean
    sufficiently about an alleged carjacking and the murder of
    65
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    Majhdi Parrish, a witness to that offense. DeSean claimed he
    was afraid to testify because Parrish had been killed after
    testifying in a carjacking case, and Newborn wanted to elicit
    that DeSean himself had committed the carjacking. The court
    ruled both sides could ask about the incident. Although
    DeSean’s attorney had warned that DeSean would invoke his
    Fifth Amendment privilege if asked about the carjacking,
    Newborn pursued this line of questioning nevertheless. When
    DeSean said he had heard of witnesses being killed, Newborn
    asked if Majhdi Parrish was that witness. DeSean invoked the
    Fifth Amendment. The court overruled his privilege claim and
    instructed him to answer. DeSean testified that he had heard
    about Parrish’s death. Newborn’s attorney then sought to ask
    whether DeSean was “innocent or guilty” of the carjacking,
    whether he was concerned about Parrish’s death, and whether
    Parrish was a “complaining victim.” Objections were sustained
    to each question after DeSean again invoked his Fifth
    Amendment privilege. Newborn complains these rulings
    prevented him from establishing DeSean’s motive to help the
    prosecution and avoid liability for the crime against Parrish.
    The claim fails because Newborn’s assertions were refuted by
    other testimony. Detective Brown testified that Parrish had
    been killed while DeSean was in custody and DeSean was not a
    suspect in that homicide. The evidence showed DeSean’s single
    felony conviction was for the burglary of McFee’s home. To the
    extent Newborn hoped to show that DeSean was responsible for
    Parrish’s death, the record is to the contrary. It is not evident
    that further questioning on these matters would have yielded
    useful impeachment evidence. No confrontation error occurred.
    (See Delaware v. Van Arsdall (1986) 
    475 U.S. 673
    , 679.)
    66
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    Finally, Newborn claims the court prevented him from
    adequately addressing DeSean’s civil lawsuit against the
    Pasadena Police Department. DeSean testified that he was not
    honest in his initial police interview because he did not believe
    the department was trustworthy and he had a lawsuit pending
    against it. Newborn now complains he should have been allowed
    to demonstrate DeSean’s motive to somehow advance this civil
    suit by testifying for the prosecution. It appears Newborn
    adequately covered the point. Although the prosecution twice
    objected to questions on this topic, the questions were rephrased
    and DeSean gave answers. Newborn’s counsel chose to move on.
    Even if more questions had been asked, it is not clear what
    additional evidence could have been adduced. DeSean was
    unclear about the nature of the lawsuit, its existence, or the
    identity of his attorney. Had such a suit been filed, it would be
    a matter of public record. But no offer of proof was made in that
    regard. The cross-examination was sufficient, and Newborn
    suffered no constitutional deprivation in connection with it.
    ii. Robert Price
    McClain argues the court improperly prevented him from
    asking Robert Price about a prior arrest. Price testified that
    McClain shot him in the face and back at the Community Arms
    apartment complex. He agreed on cross-examination that he
    was given $200 before his grand jury testimony but explained
    the money was for his travel and medical expenses. He also
    received $100 to pay for a medical evaluation of whether a bullet
    could be removed from his leg, potentially producing ballistics
    evidence. On redirect, Price was asked about his motivations for
    testifying. He responded that he knew one victim’s parents. The
    killings had “touched” him, and he wanted to see those
    responsible convicted. On recross-examination, McClain sought
    67
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    to elicit whether Price had been arrested for lewd and lascivious
    conduct on a minor. The court sustained a prosecution objection
    and prohibited further questioning about Price’s arrest. This
    ruling was within its discretion.
    A trial court abuses its discretion when it acts arbitrarily,
    capriciously, or absurdly, causing a miscarriage of justice.
    (People v. Rodrigues (1994) 
    8 Cal.4th 1060
    , 1124.) The court’s
    decision here was measured. The prosecutor and McClain’s
    attorney agreed that “an arrest is [not] evidence of anything.”
    After hearing from the parties, the court considered the question
    and reasonably concluded Price’s testimony did not open the
    door to impeachment questions based on an unrelated arrest.
    Moreover, Price had been amply impeached. In addition to
    describing the money he received before his grand jury
    testimony, Price admitted convictions for five felonies and
    membership in the Crips gang. He testified that he had been
    drinking on the day he was shot and initially lied to police about
    the shooter’s identity because he wanted to retaliate personally.
    Additional inquiry into an unadjudicated arrest would have
    added little to these substantive admissions.
    McClain also argues the ruling violated his right to
    “effective” confrontation, citing Davis v. Alaska (1974) 
    415 U.S. 308
    , 318. He argues for the first time here that testimony about
    Price’s arrest could have illuminated why Price wished to
    implicate McClain, or why McClain shot Price. McClain had an
    opportunity to make an offer of proof at trial and did not do so.
    Indeed, his attorney agreed with the prosecutor that, absent an
    offer of proof, it was improper to impeach Price with the arrest.
    McClain now argues the court created a confrontation problem
    by permitting the prosecutor to elicit that Price was friendly
    with a victim’s parents and wanted to see retribution for the
    68
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    child’s murder. However, McClain could have cross-examined on
    this point but chose not to. There was no confrontation violation.
    e. Witness Sequestration
    Holmes and Newborn raise several claims regarding the
    overnight sequestration of prosecution witness LaChandra
    Carr. We reject them.
    i. Background
    As noted, Carr’s trial and grand jury testimony differed.
    She told the grand jury that she saw Newborn and Holmes at
    the hospital the night of the murders. At trial she disavowed
    those statements and denied being there. Carr’s trial testimony
    was also evasive. She said she was contacted by police “a
    hundred million times,” yet she claimed to “remember nothing”
    about those conversations and refused to give direct answers
    about her previous statements. 33 Eventually, the court
    interrupted the questioning and admonished Carr that “three
    young men are facing the death penalty.” The court continued,
    33
    For example, questioned about one statement, Carr
    testified:
    “A: I said that?
    “Q: Do you recall using those words?
    “A: No.
    “Q: Do you want to look at the transcript of what you
    said?
    “A: It have to be there if you said it, but I don’t
    remember saying it.
    “Q: You don’t remember saying those words?
    “A: No.
    “Q: Well, could you have said those words?
    “A:   I probably have.”
    69
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    “These jurors are here, these lawyers are doing their job and you
    think this is cute, so I will tell you what — .” Carr interrupted,
    asking, “How is it cute when I am telling the truth?” The court
    responded, “Listen to me: I will put you in jail. What we are
    going to do, we will stop the proceedings tonight. You think
    about how cute these proceedings are.”
    Outside the presence of the jury and defendants, the court
    held a hearing with all counsel to determine whether to detain
    Carr overnight, noting there was reason to think she would not
    return to court in the morning. Addressing Carr, the court
    explained, “This is a very serious case. You don’t think it is. I do,
    and so what I am going to do is keep you in custody and make
    sure you return tomorrow. [¶] If you think you are helping either
    side here, you’re not. What you are doing is acting like this is for
    you. [¶] . . . The defendants’ lives are at stake and we have . . .
    three people who are already dead. [¶] . . . [Y]ou are sitting there
    acting like you don’t care and you don’t want to answer any
    questions, and I am not going to tolerate it.” Finding good cause,
    the court ordered Carr into the custody of District Attorney
    investigators to be secured as a material witness. Carr “was
    placed in a motel” overnight and finished her testimony the next
    day.
    ii. Discussion
    Holmes and Newborn first contend Carr’s sequestration
    violated section 1332 because there was insufficient cause to
    believe she would fail to appear.34 They assert the detention
    34
    Section 1332 provides, in pertinent part, that “when the
    court is satisfied, by proof on oath, that there is good cause to
    believe that any material witness for the prosecution or defense
    . . . will not appear and testify . . . the court may order the
    70
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    likely coerced Carr into giving testimony favorable to the
    prosecution. Defendants lack standing to assert violations of
    another person’s statutory or constitutional rights.35 (People v.
    Boyer (2006) 
    38 Cal.4th 412
    , 444.) Accordingly, we evaluate any
    coercive effect of the detention not by determining whether
    “some constitutional transgression” occurred against Carr, but
    by assessing whether some misconduct improperly affected the
    nature of her testimony. (Ibid.) This determination is based on
    the entire record, with deference to the trial court’s credibility
    determinations where supported by substantial evidence. (Ibid.)
    Holmes and Newborn cite no evidence of coercion, and our
    independent review reveals none. Carr’s own testimony belies
    the assertion. Returning to court the next day, Carr again
    repudiated her grand jury testimony. She explained that she
    had not been at the hospital and did not know why she had ever
    said defendants were there. She could only surmise that she
    thought they were present based on Bowen’s phone call. This
    testimony favored the defense, not the prosecution.
    Defendants also argue their absence from the detention
    hearing was reversible error. A criminal defendant has federal
    and state constitutional rights to be present at a critical stage of
    witness to enter into a written undertaking to the effect that he
    or she will appear and testify at the time and place ordered by
    the court or that he or she will forfeit an amount the court deems
    proper.” (§ 1332, subd. (a).) “If the witness required to enter into
    an undertaking to appear and testify . . . refuses compliance
    with the order . . . the court may commit the witness . . . to the
    custody of the sheriff.” (§ 1332, subd. (b).)
    35
    We note that a witness’s mere evasiveness does not
    constitute good cause under section 1332, and, to the extent the
    trial court based its decision solely on her evasiveness, it acted
    improperly.
    71
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    the proceedings. (People v. Perry (2006) 
    38 Cal.4th 302
    , 311.)
    The proceeding must be “critical to the outcome of the case,” and
    the defendant’s presence must “contribute to the fairness of the
    proceeding.” (Id. at p. 312.) Neither condition was met here.
    First, Carr’s detention hearing was not critical to the case and
    in fact, had no bearing on its outcome. Defendants do not
    attempt to show otherwise. They focus instead on the second
    requirement, arguing that because they were personally
    acquainted with Carr they could have advised their attorneys as
    to how the hearing was likely to make her favor the prosecution.
    This argument fails as well. As discussed, Carr did not change
    her testimony in any way that favored the prosecution. Further,
    “a defendant may ordinarily be excluded from conferences on
    questions of law, even if those questions are critical to the
    outcome of the case, because the defendant’s presence would not
    contribute to the fairness of the proceeding.” (Ibid.) Defendants
    point to nothing in the record to suggest their attorneys were
    not fully equipped to detect or respond to any potentially
    coercive aspects of the hearing. No specialized knowledge of this
    witness was necessary for counsel to represent their clients’
    interests. Accordingly, defendants’ absence from the hearing
    resulted in no error.
    3. Sufficiency of Evidence
    Each defendant makes multiple challenges to the
    sufficiency of the evidence supporting his convictions. When
    considering such a challenge, “ ‘we review the entire record in
    the light most favorable to the judgment to determine whether
    it contains substantial evidence — that is, evidence that is
    reasonable, credible, and of solid value — from which a
    reasonable trier of fact could find the defendant guilty beyond a
    reasonable doubt.’ ” (People v. Edwards (2013) 
    57 Cal.4th 72
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    658, 715, quoting People v. Lindberg (2008) 
    45 Cal.4th 1
    , 27.)
    We consider “ ‘whether . . . any rational trier of fact could have
    found the essential elements of the crime beyond a reasonable
    doubt.’ ” (Edwards, at p. 715, quoting Jackson v. Virginia (1979)
    
    443 U.S. 307
    , 319.) “[A] reviewing court ‘presumes in support of
    the judgment the existence of every fact the trier could
    reasonably deduce from the evidence.’ ” (Edwards, at p. 715,
    quoting People v. Kraft (2000) 
    23 Cal.4th 978
    , 1053.) The same
    standard of review applies to the sufficiency of the evidence
    supporting special circumstance findings. Substantial evidence
    supports each of the convictions.
    a. Attempted Murder of Price
    McClain argues his conviction for the attempted murder
    of Robert Price cannot stand because it was based entirely on
    unreliable testimony from Price, “a Crip gang member and
    convicted felon who never told the same story twice.” Price
    testified that McClain approached him at the Community Arms
    apartment complex, used a gang-related slur, and shot him. He
    explained that he did not identify McClain when interviewed by
    police that evening because he had hoped to retaliate against
    McClain directly. Price’s credibility was a matter for the jury to
    assess, and a reasonable trier of fact could have credited his
    testimony. Indeed, McClain conceded that he was at the
    Community Arms complex the night Price was shot. McClain’s
    closing argument featured the same attacks on Price’s
    credibility he now makes on appeal. The jury heard, and
    apparently rejected them.36
    36
    McClain also argues the attempted murder conviction
    cannot form the basis of his death sentence in light of the special
    need for reliability in capital sentencing. Because we have
    73
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    b. Conspiracy
    Holmes and McClain argue there was insufficient
    evidence of their conspiracy to commit murder. “A conviction of
    conspiracy requires proof that the defendant and another person
    had the specific intent to agree or conspire to commit an offense,
    as well as the specific intent to commit the elements of that
    offense, together with proof of the commission of an overt act ‘by
    one or more of the parties to such agreement’ in furtherance of
    the conspiracy.” (People v. Morante (1999) 
    20 Cal.4th 403
    , 416;
    People v. Johnson (2013) 
    57 Cal.4th 250
    , 257.) Defendants
    challenge the evidence supporting both the agreement and overt
    act requirements. The evidence was sufficient.
    Both defendants assert the prosecution improperly relied
    on their gang membership in lieu of proving a conspiracy.
    Standing alone, a gang’s general agreement to fight rivals may
    not suffice to support a particular conspiracy charge (see U.S.
    v. Garcia (9th Cir. 1998) 
    151 F.3d 1243
    , 1247). Here, the
    prosecution presented ample evidence that violence against the
    victims was both prearranged and carried out.
    Holmes does not dispute that he went to the hospital after
    learning Fernando Hodges had been shot. He argues his mere
    presence there was insufficient to show that he entered a
    conspiracy. But the evidence was more extensive. The jury
    heard testimony that a crowd of 20 to 30, which included
    Holmes, had gathered. Most appeared to be gang members.
    They were quiet, seemed to be awaiting instruction, and did not
    attempt to go inside the hospital as ordinary visitors would do.
    concluded no error infects the attempted murder conviction,
    nothing about this conviction requires reversal of McClain’s
    death sentence.
    74
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    The prosecution argued a plan was formulated in this group to
    avenge Hodges’s death by killing Crips. After the crimes,
    Holmes told Derrick Tate that he and others committed the
    Wilson Street murders in retaliation for the Hodges shooting.
    This evidence was sufficient to support a finding that Holmes
    entered an agreement to find and harm members of the Crips
    gang. (See People v. Morante, supra, 20 Cal.4th at p. 416.)
    McClain challenges the evidence supporting his entry into
    a conspiracy because, unlike Holmes, he was not at the hospital
    after Hodges’ shooting. Even so, substantial evidence supports
    the jury’s conclusion that McClain joined in an agreement to
    commit the crimes and did so. (See People v. Morante, supra, 20
    Cal.4th at p. 416.) McClain testified that even before Hodges
    was taken to the hospital, he heard Hodges had been shot by
    “some Crips.” While others gathered at the hospital, McClain
    paged his fellow P-9 members, alerting them that he planned to
    search for Crips to shoot. McClain now argues his assertedly
    lone search for Crips to harm does not support a finding of
    conspiracy. The jury may not have credited his testimony,
    however, in light of evidence that he was with those involved in
    the Wilson Street shooting. Eyewitness Gabriel Pina testified
    that he saw McClain peering through the front window of one of
    the four cars involved in the shooting. The same eyewitness saw
    Holmes return to his nearby car after the shots were fired.
    Shortly thereafter, McClain bragged that he and others had “put
    in some work” on some Crips at Wilson Street. The evidence
    showed McClain intended to go out that Halloween night to kill
    Crips, informed fellow gang members of that plan, and
    ultimately rode around with them looking for victims. These
    facts support a finding of conspiracy to commit murder, as the
    jury concluded.
    75
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    Holmes and McClain also argue there is insufficient
    evidence of an overt act. “Under our statute, an agreement to
    commit a crime, by itself, does not complete the crime of
    conspiracy. The commission of an overt act in furtherance of the
    agreement is also required.” (People v. Johnson, supra, 57
    Cal.4th at p. 259.) There was evidence of multiple overt acts.
    At some point during the evening, Newborn went to
    McFee’s house looking for known Crips member “Crazy D.” A
    bulge beneath his clothing suggested Newborn was armed.
    McFee saw four men running down the street, followed minutes
    later by several gunshots. Some shots appeared to come from
    near Crazy D’s home, and one struck McFee’s own residence.
    McFee’s testimony was corroborated by his roommate, Charles
    Baker, and by physical evidence, including shell casings found
    in front of McFee’s house and across the street. Ballistics
    evidence linked the ammunition used in this shooting with that
    used on Wilson Street. Newborn also told DeSean Holmes that
    he shot at McFee’s house with a nine-millimeter Glock,
    consistent with the shell casings found there. 37
    Nevertheless, defendants contend the jury could not
    properly have found that they were involved in a 9:00 p.m.
    shooting at McFee’s home because emergency call reports did
    not log a shooting complaint from that location until 1:00 a.m.
    They insist the McFee shooting could not have been in
    furtherance of the Wilson Street attack because it happened
    later. This argument fails. An officer testified that the log
    reflects when the call was made. But the log does not indicate
    when the shots complained of were actually fired. It does not
    37
    Although DeSean claimed to have no direct memory of this
    conversation at trial, he told police about it when interviewed.
    76
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    necessarily correlate with the time shots were fired. Baker, who
    was present at McFee’s home, testified that the shooting
    happened around 9:00 p.m. He recalled it was “fairly early” in
    the evening because McFee’s son was still awake. The jury could
    have credited this testimony and rejected the contrary timing
    suggested by the call log.
    Additional evidence of overt acts was presented in
    testimony about the Wilson Street shootings. Four or five cars
    sped past the victims. Each car contained several Black men
    who displayed P-9 gang signs. One shooting victim wore a blue
    bandana, which caused defendants to mistake the group for
    Crips.38 McClain told Mario Stevens that he and others had shot
    Crips on Wilson Street.39 The Wilson Street shooters fired from
    behind bushes. When Holmes told Derrick Tate he had
    committed a murder to avenge Hodges’s death, he said he had
    jumped from some bushes, yelled, “Trick[-]or[-]treat,” and began
    firing. One of the victims heard an assailant say, “Now, Blood,”
    the same epithet Robert Price testified McClain had used during
    the attempted murder three days earlier. The jury could have
    reasonably credited this evidence, which is sufficient to
    38
    Other victims wore or carried black bandanas, not
    associated with the Crips gang.
    39
    Immediately after Stevens so testified, McClain said, “You
    are a lying ass piece of shit, man. You are lying through your
    teeth, man.” The court advised McClain that he would have an
    opportunity to cross-examine the statement and present
    evidence, if he wished, to challenge that testimony. The
    prosecution requested the court admonish the jury to disregard
    the outburst, and the court advised the jury that McClain’s
    statements were “not evidence at this time.”
    77
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    demonstrate that the conspirators committed overt acts. (See
    People v. Johnson, supra, 57 Cal.4th at p. 259.)
    c. Wilson Street Murders and Attempted Murders
    Holmes     and    McClain        argue   insufficient   evidence
    supported their convictions for the murders and attempted
    murders on Wilson Street.40 The evidence was sufficient.
    A number of witnesses connected Holmes and McClain to
    both planning and motive. Their friend and fellow gang member
    had been killed earlier that night by a rival gang. McClain
    testified that he called P-9 members to tell them he intended to
    seek revenge. Although the victims were children, not Crips, one
    of them had a blue bandana, a Crips symbol, visible in his pocket
    when defendants saw them. Holmes concedes he was at the
    hospital where Hodges was taken and where a number of people,
    including Newborn and Bowen, gathered to discuss retaliation.
    Eyewitness Pina connected both Holmes and McClain to
    the Wilson Street shooting. A car drove up and idled near Pina
    who got a good look at the driver and later described him. The
    lead car then drove toward the remaining cars and someone
    from the crowd spoke to the driver. Shots erupted moments
    later. Afterward, Pina saw Holmes run toward the parked cars.
    Some days later, he went to the police station and identified
    McClain as the driver of the lead car and Holmes as one of the
    men who ran to the parked cars after the shooting.
    40
    The jury was properly instructed on first-degree murder
    (CALJIC No. 8.20) and attempted murder (CALJIC No. 8.66).
    Specifically, the jury was instructed that attempted murder
    required proof of a “direct but ineffectual act” done by a person
    in an effort to kill another, with “malice aforethought,” meaning
    “a specific intent to kill.”
    78
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    Evidence of defendants’ statements also tied them to the
    crimes. Derrick Tate testified that Holmes also bragged about
    having been involved in the shooting, saying he wanted to get a
    hat made to commemorate the event. Holmes had confessed his
    involvement to Tate, explaining the details of the crime and its
    vengeful purpose. The day after the shooting, McClain told
    Mario Stevens “him and his homeys had went down there on
    Wilson and shot some — some Crips.”
    McClain’s actions after the crimes also pointed to his
    involvement. His cousin, James Carpenter, told police McClain
    had talked about committing the murders and became nervous
    upon learning the victims had been children. Thereafter,
    McClain cut his hair and left town, telling a fellow passenger he
    was flying under a fake name and had recently cut his hair. The
    passenger recalled his ticket was under the name Robert, with
    a last name like McCain or McClain, though he had given her a
    pager number with the name “Herb.”
    Finally, defendants raise a number of additional
    sufficiency arguments. All fail. McClain asserts his conviction is
    based on informant testimony given after deals were made. This
    fact alone does not render the evidence deficient. The jury was
    aware of agreements but remained entitled to credit the
    testimony. Holmes asserts that LaChandra Carr’s testimony
    failed to connect him with the Wilson Street shooting because,
    although he was at the hospital gathering, no evidence indicates
    he spoke with Newborn and Bowen or formed a plan to retaliate
    for Hodges’s death. However, the jury could have inferred such
    planning from his admitted presence, particularly in light of the
    ample additional evidence of his involvement. Holmes also
    argues Derrick Tate’s testimony that he bragged about the
    shooting was unreliable because, though they were not
    79
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    incarcerated at the time, Tate should be treated as an
    “inherently suspect” jailhouse informant. Putting aside the
    factual mischaracterization of Tate’s status, this court has
    “consistently rejected claims that the testimony of jailhouse
    informants is inherently unreliable.” (People v. Hoyos (2007) 
    41 Cal.4th 872
    , 898.) As we have explained, there must be a “legal
    ground for exclusion of otherwise relevant evidence.” (People v.
    Hovarter (2008) 
    44 Cal.4th 983
    , 996.) 41 Holmes identifies none.
    d. Personal Use of Firearm
    Holmes contends insufficient evidence supports the jury’s
    true finding of personal firearm use. (§ 12022.5, subd. (a).) As to
    each count of murder and attempted murder, the jury found that
    Holmes “personally used a firearm, to wit, a handgun.” He
    argues the only evidence supporting the enhancement should be
    discounted as unreliable. Substantial evidence supports the
    jury’s conclusions. (See People v. Edwards, supra, 57 Cal.4th at
    p. 715.) Derrick Tate testified that Holmes admitted he was a
    killer. Holmes told Tate that he and others had “blasted” after
    jumping from some bushes. Holmes argues this testimony
    should be discounted because Tate was a felon who spoke with
    police to gain favor or reward money. In fact, though Tate was
    given transportation, lodging, and food while in California to
    testify, he received neither reward nor benefit in his felony
    prosecution. The reliability of his testimony was properly
    subject to jury evaluation.
    The jury was likewise free to weigh the testimony of
    Gabriel Pina’s girlfriend, Lillian Gonzales. Seconds after shots
    41
    Holmes and McClain also assert Gabriel Pina’s
    identification was “manifestly unreliable.” We have rejected
    those claims. (See ante, at pp. 54–59.)
    80
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    were fired, Gonzales saw a man wearing a trench coat and
    holding a gun run from Wilson Street and get into a nearby car.
    Gonzales acknowledged she was nearsighted, with 20/400 vision
    in one eye and 20/20 vision in the other but testified that she
    was able to see the black gun held by the man from a distance
    of about six houses. Pina later identified Holmes as the gunman.
    Holmes claims Gonzales’s testimony is unreliable because, in
    her prior interviews and grand jury testimony, she failed to
    mention that the person she saw running was holding a gun.
    Although she had confided this fact to coworkers, she
    acknowledged that she did not mention it in earlier questioning.
    The evidence on firearm use was sufficient; the credibility
    assertions Holmes makes were squarely before the jury.
    e. Special Circumstances
    McClain and Newborn challenge the special circumstance
    findings, arguing they were not major participants in the
    Halloween shootings. (See Tison v. Arizona (1987) 
    481 U.S. 137
    .)
    McClain argues his role was, at most, that of a coconspirator
    who was elsewhere when the shootings occurred. Newborn
    similarly contends the evidence shows only that he was at
    McFee’s house, not the multiple-murder site. Both arguments
    fail. Simply because Newborn and others were involved in a
    shooting at McFee’s house does not mean they could not have
    committed other crimes that night, as McClain and Newborn
    seem to urge.
    The multiple-murder special circumstance does not
    require a finding of intent to kill more than one victim. (People
    v. Rogers (2006) 
    39 Cal.4th 826
    , 892.) Here, three children
    perished, all shot during the same short encounter. Viewed in
    the light most favorable to the judgment, the jury reasonably
    81
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    could have concluded that McClain and Newborn intended to
    kill at least one victim and were responsible for killing others.
    (See People v. Maciel (2013) 
    57 Cal.4th 482
    , 521.)
    The lying-in-wait special circumstance required, at the
    time of the crime, that the murder be committed with intent to
    kill while lying in wait.42 (People v. Streeter, supra, 54 Cal.4th
    at p. 246.) This special circumstance requires concealment of
    purpose, a period of watchful waiting, and a surprise attack.
    (Ibid.) Those elements were satisfied. The victims were walking
    down the street, unaware of hidden assailants. The first
    gunshots came from behind bushes where the assailants hid. In
    describing the night to Derrick Tate, Holmes said he hid in
    bushes, then jumped out and began firing. As Holmes admitted
    to Tate, and as others described, the assailants hid behind
    bushes before jumping out and firing.
    Even if Newborn and McClain were not the shooters,
    substantial evidence supports the jury’s true findings on an
    aiding and abetting theory under section 190.2 as it existed in
    1993. Subdivision (c) of the statute then provided, “Every person
    whether or not the actual killer found guilty of intentionally
    aiding, abetting, counseling, commanding, inducing, soliciting,
    requesting, or assisting any actor in the commission of murder
    in the first degree shall suffer death or confinement in state
    prison for a term of life without the possibility of parole” in a
    case in which a special circumstance has been found true. (§
    42
    First degree murder perpetrated by means of lying in wait
    was distinct from the special circumstance because it required
    only wanton and reckless intent to inflict injury likely to cause
    death and could be perpetrated by means of, not necessarily
    while, lying in wait. (People v. Streeter (2012) 
    54 Cal.4th 205
    ,
    246.)
    82
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    190.2, former subd. (b).) Evidence establishing these
    requirements was presented against both defendants. Newborn
    was seen at McFee’s house with a bulge under his clothing that
    appeared to be a weapon. Shortly after he left, shots were fired.
    Physical evidence connected the weapon used at McFee’s house
    with the weapon used on Wilson Street. Similarly, McClain was
    seen driving the lead car and later bragged that he had shot
    Crips on Wilson Street. He also held a .38-caliber or nine-
    millimeter gun while singing lyrics that implied he had used the
    gun to kill someone.
    4. Prosecutorial Misconduct
    Defendants argue several remarks during the prosecutor’s
    closing argument were misconduct. Improper comment by a
    prosecutor requires reversal if it so infects a trial with
    unfairness as to deny due process or “ ‘if it involves the use of
    deceptive or reprehensible methods to persuade.’ ” (People v.
    Winbush (2017) 
    2 Cal.5th 402
    , 480 (Winbush).) The remarks
    complained of here neither deceived the jury nor undermined
    due process.
    McClain was arrested with Bowen for firearm possession
    about a year before the Halloween shootings. The prosecutor
    mentioned this arrest in closing argument to suggest that
    McClain did not intend to act innocently, or alone, on the night
    of the murders. McClain objected, noting the arrest was for gun
    possession, not for “shooting at anyone.” The court allowed
    argument to proceed, implicitly overruling the objection. No
    further mention was made of the arrest. McClain now complains
    the prosecutor improperly argued facts not in evidence. Counsel
    is not permitted to “assume or state facts not in evidence
    [citation] or mischaracterize the evidence [citation]”; however,
    83
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    the reasonableness of inferences counsel draws from matters in
    evidence “ ‘ “is for the jury to decide.” ’ ” (People v. Valdez, 
    supra,
    32 Cal.4th at pp. 133–134.) McClain’s prior arrest with Bowen
    was a fact in evidence. The prosecutor could appropriately refer
    to it in asking the jury to disbelieve McClain’s claim that he
    intended to act alone on the night of the murders. These
    “comments did not mischaracterize or assume facts not in
    evidence, but merely commented on the evidence and made
    permissible inferences.” (Id. at p. 134.)43
    McClain next claims the prosecutor committed
    misconduct by referring to security guard Horace Carlyle’s
    testimony that a group gathered at the hospital after Hodges’s
    death appeared to include gang members. Defense counsel did
    not object below. (See Dykes, 
    supra,
     46 Cal.4th at p. 756; see also
    Winbush, supra, 2 Cal.5th at p. 481.) Even if preserved, the
    claim would fail. Carlyle testified that he believed a group
    gathered outside the hospital might be gang members. Although
    the court prevented further questioning on the subject, the
    testimony about Carlyle’s belief was not stricken. Accordingly,
    the prosecutor’s reference was an appropriate comment on the
    evidence (People v. Leon, 
    supra,
     61 Cal.4th at pp. 605–606), and
    its weight was for the jury to determine.
    At one point in his argument, the prosecutor observed that
    witnesses had been afraid to testify and noted that defendants
    43
    McClain also contends the prosecutor misstated the law
    by creating a misimpression that his use of a gun in the Price
    and Wilson Street shootings would permit the jury to find him
    guilty of both crimes. He fails to identify the precise argument
    he finds objectionable. In any event, he failed to raise this
    objection below. (See Dykes, 
    supra,
     46 Cal.4th at p. 756; see also
    Winbush, supra, 2 Cal.5th at p. 481.)
    84
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    had the ability to retaliate against them. McClain asserts these
    comments were improper. The argument was fair comment.
    Numerous witnesses testified that they or their families had
    been threatened and that they were afraid to testify. The
    prosecutor appropriately discussed this evidence and did not
    improperly assert that McClain or any codefendant had
    threatened witnesses, jurors, or anyone else in the courtroom.
    The prosecutor briefly resorted to flowery rhetoric but doing so
    was neither deceptive nor reprehensible. (See Winbush, supra,
    2 Cal.5th at p. 481.)
    McClain next complains three of the prosecutor’s
    comments sought to lessen the state’s burden of proof or shift it
    to McClain. No objection was raised below, and none of the
    remarks constituted misconduct. First, the prosecutor noted
    that McClain had said P-9 members were not welcome at King’s
    Manor because it was controlled by a rival gang. The prosecutor
    simply mentioned this evidence but attached no nefarious
    significance to it, as McClain now asserts. Second, the
    prosecutor acknowledged that many witnesses, including his
    own, belonged to gangs, had been threatened, or had received
    some financial incentive to testify. This was fair comment on the
    evidence and not, as McClain asserts, an attempt to blame
    defendants for the poor quality of their witnesses. Finally, the
    prosecutor argued that if any P-9 member had resembled
    McClain, McClain would have presented evidence of the fact.
    This stray remark, to which McClain did not object, did not
    impermissibly shift the burden of proof or rise to the level of
    misconduct. It is not misconduct to argue the absence of
    evidence reasonably available. (See People v. Bennett (2009) 
    45 Cal.4th 577
    , 596; People v. Cornwell (2005) 
    37 Cal.4th 50
    , 90.)
    85
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    Defendants next argue the prosecutor improperly sought
    to rouse sympathy by referring to photographs of the victims,
    which had remained on display during arguments, without
    objection. The prosecutor noted that the photos showed “dead
    children; big children, but dead children.” Defendants failed to
    object to the comment (see Dykes, 
    supra,
     46 Cal.4th at p. 756;
    see also Winbush, supra, 2 Cal.5th at p. 481) and the claim lacks
    merit. Advocates have wide latitude to comment on the evidence
    and may present vigorous argument to do so. (People v. Leon,
    
    supra,
     61 Cal.4th at pp. 605–606.) So long as the prosecutor’s
    argument is a fair comment on the evidence, or constitutes a
    reasonable inference from it, no misconduct will be found. (Ibid.)
    Here, the prosecutor’s reference to the victims’ photographs was
    a fair discussion of the evidence. “Crimes of violence . . . are
    almost always upsetting. Discussing the manner in which they
    are committed is fair comment. There is no requirement that
    crimes of violence be described dispassionately or with
    philosophic detachment.” (Id. at p. 606.)
    The prosecutor urged jurors to view themselves as “the
    only thing between [defendants] and their next victims.” After
    the court sustained an objection, the prosecutor told jurors they
    would be sending a message by their verdict “one way or the
    other.” Defendants again objected, and the court admonished
    that the jury’s “duty is not to send a message but to determine
    the evidence in this case and make a determination in
    deliberation.” Defendants now renew their claim that these
    statements constituted prejudicial misconduct. “ ‘ “It is, of
    course, improper [for the prosecutor] to make arguments to the
    jury that give it the impression that ‘emotion may reign over
    reason,’ and to present ‘irrelevant information or inflammatory
    rhetoric that diverts the jury’s attention from its proper role, or
    86
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    invites an irrational, purely subjective response.’ ” ’ ” (People
    v. Covarrubias (2016) 
    1 Cal.5th 838
    , 894 (Covarrubias).)
    However, any allegedly improper statements by the prosecutor
    must be considered in light of the entire argument. (Ibid.) “ ‘In
    conducting [our] inquiry, we “do not lightly infer” that the jury
    drew the most damaging rather than the least damaging
    meaning from the prosecutor’s statements.’ ” (Ibid.)
    The prosecutor’s assertion that jurors were the only thing
    standing between defendants and their next victims improperly
    appealed to jurors’ fear of violence, suggesting they decide the
    case based on this emotion rather than a critical and neutral
    evaluation of the evidence. But the impropriety does not violate
    due process when, as here, an objection was sustained and
    followed by a curative instruction. (Greer v. Miller (1987) 
    483 U.S. 756
    , 765–766.) For the same reason, the claim fails under
    state law. (Winbush, supra, 2 Cal.5th at p. 480.) Defendants
    object that the court’s admonition was not sufficiently curative
    because, after noting that defendants had a right to a fair trial,
    the court added, “[B]ut also the reason they have a right to a fair
    trial is because we have three dead people. He has a right to
    comment on it.” However, defendants ignore the court’s
    unequivocal condemnation of the prosecutor’s statement as “a
    patent appeal to passion and prejudice. It is improper; it is
    misconduct.” In light of this clear and contemporaneous rebuke,
    the prosecutor’s statement would not have so inflamed the jury’s
    passions or infected the trial with unfairness that due process
    was denied. (See ibid.) Indeed, the prosecutor may have
    undermined his own credibility by employing a strategy firmly
    condemned by the court.
    In a related point, McClain and Holmes contend it was
    misconduct for the prosecutor to urge the jury to solve the social
    87
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    problems of gangs and violence by returning convictions. Again,
    no objection was interposed. (See Dykes, 
    supra,
     46 Cal.4th at
    p. 756; see also Winbush, supra, 2 Cal.5th at p. 481.) Had it been
    properly preserved, the prosecutor’s comments were
    tantamount to comparing the jury to “ ‘the conscience of the
    community,’ ” a practice we have routinely upheld as proper.
    (People v. Gamache (2010) 
    48 Cal.4th 347
    , 388–389.)
    Finally, defendants argue it was misconduct for the
    prosecutor to request convictions so that the victims could rest
    in peace. Again they did not object (see Dykes, 
    supra,
     46 Cal.4th
    at p. 756; see also Winbush, supra, 2 Cal.5th at p. 481), and the
    assertion fails on the merits as well. Viewed in context of the
    closing argument as a whole, the statement did not constitute
    inflammatory rhetoric designed to provoke a thoughtless
    emotional response. (Covarrubias, supra, 1 Cal.5th at p. 894.) It
    was fair comment on the crimes committed and the jury’s role in
    dispensing justice.
    5. Instruction Issues
    a. Consciousness of Guilt (CALJIC No. 2.03)
    Holmes argues the consciousness of guilt instruction,
    CALJIC No. 2.03,44 was improperly argumentative, constituted
    an improper pinpoint instruction, and lessened the prosecution’s
    burden of proof. He acknowledges we have consistently rejected
    44
    As given, CALJIC No. 2.03 provides: “If you find that
    before this trial defendant made a willfully false or deliberately
    misleading statement concerning the crime for which is now
    being tried, you may consider such statement as a circumstance
    tending to prove a consciousness of guilt. However, that conduct
    is not sufficient by itself to prove guilt, and its weight and
    significance, if any, are matters for your determination.”
    88
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    similar claims (see, e.g., Covarrubias, supra, 1 Cal.5th at p. 922;
    People v. Holloway (2004) 
    33 Cal.4th 96
    , 142), and offers no
    reason to reconsider these holdings.
    b. Suppression of Evidence (CALJIC No. 2.06)
    Evidence was presented that McClain cut his hair and
    Newborn disposed of a weapon shortly after the Halloween
    shootings. Accordingly, the court gave CALJIC No. 2.06,
    concerning defense suppression of evidence. 45 Holmes and
    McClain argue the instruction was unnecessary, argumentative,
    and permitted the jury to draw irrational inferences.
    We review of an instructional error claim by evaluating
    whether the jury could have applied the challenged instruction
    in an impermissible manner. (People v. Smithey (1999) 
    20 Cal.4th 936
    , 963.) “ ‘ “[T]he correctness of jury instructions is to
    be determined from the entire charge of the court, not . . . from
    a particular instruction.” ’ ” (People v. Musselwhite (1998) 
    17 Cal.4th 1216
    , 1248.)
    There was no error. The instruction invites the jury to
    consider the significance of a defendant’s alteration of physical
    appearance and destruction of evidence. (See People v. Adams
    (2014) 
    60 Cal.4th 541
    , 571.) It was not improperly
    45
    As given, CALJIC No. 2.06 provided: “If you find that a
    defendant attempted to suppress evidence against himself
    herself [sic] in any manner, such as by the intimidation of a
    witness, by an offer to compensate a witness, by destroying
    evidence[,] by concealing evidence, by cutting hair, such attempt
    may be considered by you as a circumstance tending to show a
    consciousness of guilt. However, such conduct is not sufficient
    by itself to prove guilt, and its weight and significance, if any,
    are matters for your consideration.”
    89
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    argumentative, nor did it permit the jury to draw irrational
    inferences. (People v. Stitely (2005) 
    35 Cal.4th 514
    , 555.)
    c. Other Crimes (CALJIC Nos. 2.50, 2.50.2,
    2.50.2)
    Over McClain’s objection, the jury was given CALJIC Nos.
    2.50,46 2.50.1,47 and 2.50.248 regarding other crimes evidence as
    46
    As given, CALJIC No. 2.50 provided: “Evidence has been
    introduced for the purpose of showing that a defendant
    committed a crime other than that for which he is on trial. [¶]
    Such evidence, if believed, was not received and may not be
    considered by you to prove the defendant is a person of bad
    character or that he has a disposition to commit crimes. [¶] Such
    evidence was received and may be considered by you only for the
    limited purpose of determining if it tends to show: The
    defendant had knowledge or possessed the means that might
    have been useful or necessary for the commission of the crime
    charged, [¶] The existence of a conspiracy. [¶] For the limited
    purpose for which you may consider such evidence, you must
    weigh it in the same manner as you do all other evidence in this
    case. [¶] You are not permitted to consider such evidence for any
    other purpose.”
    47
    As given, CALJIC No. 2.50.1 provided: “Within the
    meaning of the preceding instruction, the other crime
    purportedly committed by the defendant must be proved by a
    preponderance of the evidence. You must not consider such
    evidence for any purpose until you are satisfied that a particular
    defendant committed the other crime. [¶] The prosecution has
    the burden of proving these facts by a preponderance of the
    evidence.”
    48
    As given, CALJIC No. 2.50.2 provided: “ ‘Preponderance of
    the evidence’ means evidence that has more convincing force
    and the greater probability of truth than that opposed to it. If
    the evidence is so evenly balanced that you are unable to find []
    the evidence on either side of an issue preponderates, your
    finding on that issue must be against the party who had the
    burden of proving it. [¶] You should consider all of the evidence
    bearing upon every issue regardless of who produced it.”
    90
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    proof of conspiracy. McClain renews his arguments here, but
    they lack merit.
    McClain first argues the instructions lessened the
    prosecution’s burden of proof. We rejected a similar claim in
    O’Malley, supra, 
    62 Cal.4th 944
    . Challenging the same three
    instructions, O’Malley argued the jury could have misconstrued
    the instructions to permit conviction of conspiracy to commit
    murder of one victim simply by finding by a preponderance of
    the evidence that he had assaulted and robbed someone else. (Id.
    at p. 991.) We concluded there was no suggestion the jury was
    confused about what other crimes it could consider, or how those
    other crimes were to be analyzed in relation to the charged
    offenses. (Ibid.) The same is true here. An instructional error
    claim is reviewed in the context of the record and instructions
    as a whole to determine whether there is “ ‘ “a reasonable
    likelihood that the jury was misled to defendant’s prejudice.” ’ ”
    (Ibid.) We assume that jurors are intelligent and well able to
    understand and integrate all the instructions given. (Ibid.) The
    instructions made clear that the uncharged acts could only be
    considered in connection with the conspiracy charge. CALJIC
    No. 2.50.1 informed the jury that the evidence could not be
    considered unless it had been proven by a preponderance of the
    evidence. There is no reasonable likelihood jurors were misled.
    McClain next argues the instructions failed to harmonize
    the different burdens of proof, permitting conviction of
    conspiracy on a constitutionally deficient standard. That is not
    so. Taken together, the instructions explain that the other
    crimes cannot be considered at all unless they were proven by a
    91
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    preponderance of the evidence. If the jury concluded that
    threshold showing was met, it could then determine whether
    those crimes, along with any other evidence, established beyond
    a reasonable doubt that McClain committed conspiracy. The
    instructions are accurate and were properly given. (See
    O’Malley, supra, 62 Cal.4th at p. 991; People v. Sattiewhite
    (2014) 
    59 Cal.4th 446
    , 475.)
    McClain contends the other crimes instruction was
    erroneous because it could have been used to determine his guilt
    for the charged crimes. The instruction’s language reveals the
    flaw in this argument. CALJIC No. 2.50 states that other crimes
    evidence “may be considered by you [only] for the limited
    purpose of determining if it tends to show: [¶] . . . [¶] [The
    defendant had knowledge or possessed the means that might
    have been useful or necessary for the commission of the crime
    charged;]” the existence of a conspiracy. (Italics added.)
    Finally, McClain claims the instructions allowed the jury
    to find him guilty of conspiracy if they believed him to be of bad
    character. CALJIC No. 2.50 specifically instructed otherwise:
    “evidence, if believed, may not be considered by you to prove that
    defendant is a person of bad character or that [he] has a
    disposition to commit crimes.” The jury was also instructed that
    the crime of conspiracy requires proof of an agreement and an
    overt act in furtherance of that agreement. (CALJIC No. 6.10.)
    There is no reason to believe jurors were unable to apply these
    instructions. (People v. Sattiewhite, supra, 59 Cal.4th at p. 475.)
    McClain’s argument that the jury was confused because it was
    unsure which of his “other crimes” it could consider is similarly
    unavailing. (See O’Malley, supra, 62 Cal.4th at p. 991.) The jury
    92
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    was given CALJIC No. 2.23,49 which explained that the felony
    convictions were relevant to the separate issue of credibility.
    d. Motive (CALJIC No. 2.51)
    The jury received CALJIC No. 2.51: “Motive is not an
    element of the crime charged and need not be shown. However,
    you may consider motive or lack of motive as a circumstance in
    this case. Presence of motive may tend to establish guilt.
    Absence of motive may tend to establish innocence. You will
    therefore give its presence or absence, as the case may be, the
    weight to which you find it to be entitled.” McClain argues this
    instruction improperly shifted the burden of proof to him,
    lessened the prosecution’s burden, and impermissibly allowed
    the jury to determine guilt based upon motive. We have
    previously rejected similar claims and do so again.
    People v. Prieto (2003) 
    30 Cal.4th 226
    , 254, explained that
    CALJIC No. 2.51 does not concern a standard of proof, but
    rather addresses motive. Because there was no reason a jury
    could or would confuse a motive instruction with a reasonable
    doubt instruction, we concluded CALJIC No. 2.51 does not
    violate the defendant’s right to due process. (Prieto, at p. 254.)
    McClain argues the jury should have been cautioned that motive
    alone is insufficient to establish guilt. People v. Snow (2003) 
    30 Cal.4th 43
    , 97–98, rejected this contention, explaining: “If the
    challenged instruction somehow suggested that motive alone
    49
    As given, CALJIC No. 2.23 provided, “The fact that a
    witness has been convicted of a felony, if such be a fact, may be
    considered by you only for the purpose of determining the
    believability of that witness. The fact of such a conviction does
    not necessarily destroy or impair a witness’ believability. It is
    one of the circumstances that you may take into consideration
    in weighing the testimony of such a witness.”
    93
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    was sufficient to establish guilt, defendant’s point might have
    merit. But in fact the instruction tells the jury that motive is not
    an element of the crime charged (murder) and need not be
    shown, which leaves little conceptual room for the idea that
    motive could establish all the elements of murder.” (Ibid.) The
    trial court did not err by giving CALJIC No. 2.51.
    e. Burden of Proof (CALJIC Nos. 1.00, 2.01, 2.51,
    2.52)
    Holmes argues the court violated his rights to due process
    and a fair trial by instructing the jury with CALJIC Nos. 1.00,50
    2.01,51 2.51, and 2.5252 because those instructions
    impermissibly discussed guilt and innocence. Holmes contends
    these instructions violated his state and federal constitutional
    50
    CALJIC No. 1.00, titled “Respective Duties of Judge and
    Jury,” provided in pertinent part, “You must not be biased
    against the defendant because he has been arrested for this
    offense, charged with a crime, or brought to trial. None of these
    circumstances is evidence of guilt and you must not infer or
    assume from any or all of them that he is more likely to be guilty
    than innocent.”
    51
    CALJIC No. 2.01, titled “Sufficiency of Circumstantial
    Evidence — Generally,” provided in pertinent part, “Also, if the
    circumstantial evidence as to any particular count is susceptible
    of two reasonable interpretations, one of which points to the
    defendant’s guilt and the other to his innocence, you must adopt
    that interpretation which points to the defendant’s innocence,
    and reject that interpretation which points to his guilt.”
    52
    CALJIC No. 2.52, entitled “Flight After Crime,” provided,
    “The flight of a person immediately after the commission of a
    crime, or after he is accused of a crime, is not sufficient in itself
    to establish his guilt, but is a fact which, if proved, may be
    considered by you in light of all other proved facts in deciding
    the question of his guilt or innocence. The weight to which such
    circumstance is entitled is a matter for the jury to determine.”
    94
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    rights because they suggested the jury’s decision was between
    guilt and innocence rather than whether there was a reasonable
    doubt as to his guilt. As Holmes acknowledges, we have rejected
    similar arguments. (See, e.g., People v. Streeter, supra,
    54 Cal.4th at p. 253; People v. Kelly (2007) 
    42 Cal.4th 763
    , 792.)
    Likewise, here. “Each of these instructions ‘ “is unobjectionable
    when, as here, it is accompanied by the usual instructions on
    reasonable doubt, the presumption of innocence, and the
    People’s burden of proof.” ’ ” (Streeter, at p. 253.)
    f. Special Circumstance Instruction
    Newborn and McClain argue the jury was erroneously
    instructed with the 1993 version of CALJIC No. 8.80.1,53 which
    53
    “If you find the a [sic] defendant in this case guilty of
    murder of the first degree, you must then determine if one or
    more of the following special circumstances: is true or not true:
    that a defendant committed one or more murders in addition to
    first degree murder and a murder was committed while lying in
    wait. [¶] The People have the burden of proving the truth of a
    special circumstance. If you have a reasonable doubt as to
    whether a special circumstance is true, you must find it to be
    not true. [¶] If you find that a defendant was not the actual killer
    of a human being, or if you are unable to decide whether the
    defendant was the actual killer or an aider and abettor or co-
    conspirator, you cannot find the special circumstance to be true
    as to that defendant unless you are satisfied beyond a
    reasonable doubt that such defendant with the intent to kill
    aided, abetted, counseled, commanded, induced, solicited,
    requested, or assisted any actor in the commission of the murder
    in the first degree. [¶] You must decide separately as to each of
    the defendants the existence or nonexistence of each special
    circumstance alleged in this case. If you cannot agree as to all
    the defendants, but can agree as to one or more of them, you
    make your findings as to the one or more upon which you do
    agree. [¶] You must decide separately each special circumstance
    alleged in this case as to each of the defendants. If you cannot
    95
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    did not inform jurors of the constitutional requirement that each
    defendant be “a major participant” in the homicidal conduct
    alleged and that each defendant harbor either an intent to kill
    or a mental state of reckless indifference to human life. (See
    Tison v. Arizona, 
    supra,
     
    481 U.S. 137
    .) They assert Tison
    established the level of personal involvement required for an
    aider and abettor to be eligible for the death penalty. They
    misread the decision. Tison instead addressed “the
    proportionality of the death penalty in . . . midrange felony-
    murder cases.” (Id. at p. 155.) Those issues are not involved here.
    Defendants’ challenge to CALJIC No. 8.80.1 is unfounded. (See
    Tapia v. Superior Court (1991) 
    53 Cal.3d 282
    , 298, fn. 16.)54
    B. Penalty Phase55
    1. Pretrial Issues
    a. Issues related to McClain’s Counsel
    McClain argues he was denied his right to counsel during
    the penalty retrial by various rulings. No error occurred.
    agree as to all of the special circumstances, but you can agree as
    to one or more of them, you must make your findings as to the
    one or more upon which you do agree. [¶] In order to find a
    special circumstance alleged in this case to be true or untrue,
    you must agree unanimously. [¶] You will state your special
    finding as to whether this special circumstance is or is not true
    on the form that will be supplied.” (CALJIC No. 8.80.1.)
    54
    The language defendants argue should have been included
    was later added to CALJIC No. 8.80.1 in felony-murder cases.
    We recently held this language is flawed because it permits “the
    jury to find the multiple-murder special circumstance true
    without finding defendant intended to kill a human being.”
    (Covarrubias, supra, 1 Cal.5th at p. 929.)
    55
    Holmes contends guilt phase errors individually and
    collectively rendered the trial unfair and had the additional
    96
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    i. Background
    On March 15, 1996, a little over a month after the first
    jury deadlocked, the prosecution announced its intent to retry
    the penalty phase. A week later, Newborn and McClain
    requested a continuance, arguing they needed additional
    investigation and time to prepare for a retrial of “the entire
    case.” The request was denied. The court found no good cause
    for the delay because counsel “could anticipate this was going to
    go to trial again.”
    The next day, McClain’s attorney Elizabeth Harris moved
    to continue the penalty retrial for 60 days due to persistent
    health issues. The court relieved Harris, and appointed Richard
    Leonard, an experienced death penalty advocate, as
    replacement counsel. The other alternative was for McClain to
    represent himself, but the court advised against that. The court
    adjourned to contact Leonard regarding the appointment.
    When the parties returned to court, McClain said he had
    met with Leonard but preferred to represent himself. The court
    told McClain to make that request in writing within 10 days,
    taking into account that it was a death penalty case and
    addressing “some of the behavior that we have had.” It
    cautioned that McClain would be “fighting for [his] very life”
    handling a death penalty case, which very few lawyers are
    effect of poisoning his penalty phase defense. No such prejudice
    could have attached because the jury that convicted these
    defendants failed to agree on a penalty verdict. The penalty
    phase was ultimately retried before a new jury, which returned
    a verdict of death. To the extent any errors occurred during the
    guilt phase, none could have affected the penalty determination
    reached by a different jury that heard newly presented evidence
    and received its own instructions.
    97
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    equipped to do. Leonard could remain involved as standby
    counsel, however, if McClain proceeded in propria persona.
    A few days later, McClain filed a “Motion to Represent Self
    in Pro Per or to Appoint New Counsel,” citing both Faretta v.
    California (1975) 
    422 U.S. 806
    , 807 (Faretta) and People v.
    Marsden (1970) 
    2 Cal.3d 118
    . The prosecutor argued McClain
    should be permitted to represent himself, with standby counsel
    and with a continuance to allow standby counsel time to
    prepare. Tackling McClain’s Faretta motion first, the court
    probed whether McClain had engaged in any acts of violence
    against law enforcement that might affect his self-
    representation decision. Because McClain had been in an
    altercation with a fellow inmate, the court requested additional
    briefing on what safety measures would be appropriate if he
    were to proceed in propria persona.
    The matter was continued to April 9, 1996. That same day,
    McClain filed a “Petition to Proceed in Propria Persona,” listing
    numerous advisements and admonitions about the right of self-
    representation. The court reviewed these admonitions with
    McClain. It also clarified the specific security measures that
    would be employed, explaining that McClain would not be able
    to leave the confines of a small area while conducting his
    defense. The court stated: “I will allow you to stand. You will be
    wearing a belt, and that is because of the past activities. [¶] . . .
    I will make it so you look presentable, but you will not go past a
    certain area. Understand? [¶] There will be a podium. You can
    use that.” McClain indicated his assent. The court also informed
    McClain that if it allowed him to proceed in propria persona, “we
    will have Mr. Leonard, who has been appointed by the
    supervising judge, as standby counsel.” Leonard added that
    McClain preferred he serve in the role of advisory counsel
    98
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    instead, and McClain confirmed that was his wish. The court
    accepted McClain’s waivers and granted his propria persona
    request. McClain indicated readiness to proceed to trial a week
    later, but the court granted a continuance until June 28, 1996,
    a period of over 10 weeks. The case was then continued once
    more, to August 12, 1996. As a result, Newborn received
    additional preparation time, as he had requested on March 15.
    ii. Discussion
    McClain first contends the court arbitrarily and
    unreasonably denied attorney Harris’s request for a
    continuance, ultimately depriving him of the right to effective
    assistance of counsel. The court relieved attorney Harris due to
    her medical condition. McClain argues Harris requested only a
    60-day continuance to recuperate. He asserts the denial of this
    request resulted in his loss of counsel and a much longer trial
    delay. The record does not bear out McClain’s assertions.
    When Harris appeared in court after the first continuance
    request was denied, she told the court in stark terms that her
    health prevented her from continuing to represent McClain:
    “Your honor, the court has mentioned my health; and I am very
    serious when I say this: I can’t try this case, judge. I literally
    cannot do it.” Initially, the court responded, “I don’t feel like I
    want to do it either,” and “we are just going to have to do it.”
    However, the next day Harris filed a formal motion to continue
    the case for 60 days due to her ongoing health problems. In fact,
    Harris’s illness prevented her from appearing at the hearing on
    this motion. The court noted its awareness of Harris’s health
    issues and commented, “The new rules of court are that we do
    not grant any continuance on a [section] 1050 without good
    cause. [¶] . . . [¶] So the question is do we relieve Miss Harris.”
    99
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    Having reviewed declarations from Harris and her doctors, the
    court appeared persuaded that Harris might need considerably
    more than 60 days to recover sufficiently and proceed to trial.
    To that end, the court asked the attorney standing in for Harris
    to recommend substitute counsel, and Leonard was suggested.
    People v. Mungia (2008) 
    44 Cal.4th 1101
    , 1119, held it was
    not an abuse of discretion for a court to replace counsel, rather
    than grant a requested continuance so that an attorney could
    recover from a heart attack. We reasoned that there was no
    guarantee the attorney would have actually recuperated by the
    date projected. (Ibid.) Similarly here, although Harris requested
    a 60-day continuance, her moving papers did not indicate that
    that her health condition would necessarily be resolved by then.
    Trial courts enjoy broad discretion with regard to continuances,
    and “only an unreasoning and arbitrary ‘insistence upon
    expeditiousness in the face of a justifiable request for delay’
    violates the right to the assistance of counsel.” (Morris v. Slappy
    (1983) 
    461 U.S. 1
    , 11−12.) The request here was further
    complicated by the fact that the trial involved two other
    codefendants whose rights were also implicated. As in Mungia,
    “the court did not abuse its discretion by declining to wait for
    more information.” (Mungia, at p. 1119)
    McClain next contends the trial court denied his Marsden
    motion without a hearing in violating his rights to a fair trial
    and the effective assistance of counsel. He asserts the court was
    obliged to permit him to “put on the record instances of [his
    asserted] misconduct” and its failure to do so was an abuse of
    discretion. Not so. McClain sought substitution of counsel only
    if the court denied his Faretta motion. He asked for “an order
    . . . to act as his own counsel, . . . or in the alternative to appoint
    new counsel.” (Italics added.) The court determined this motion
    100
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    was in reality a Faretta motion, not a Marsden motion, a hearing
    on which would have required the prosecutor’s exclusion.
    Because the court granted McClain’s Faretta motion, it had no
    occasion to consider the alternative request for substitution of
    counsel. At no time did McClain object to attorney Leonard’s
    participation as advisory counsel. McClain cannot be heard to
    now complain that the court granted his request as he framed
    it. The court did not violate his constitutional rights by failing
    to address an alternative motion that had become moot.
    Finally, McClain argues his waiver of the right to counsel
    was not knowing, voluntary, or intelligent. Of course, criminal
    defendants have a constitutional right to the assistance of
    counsel during all critical stages of the proceedings. (See
    Faretta, 
    supra,
     422 U.S. at p. 807; United States v. Wade (1967)
    
    388 U.S. 218
    , 223–227.) This right may be waived, however. “An
    effective waiver requires that the defendant possess the mental
    capacity to comprehend the nature and object of the proceedings
    against him or her, and waive the right knowingly and
    voluntarily. [Citations.] There is no prescribed script or
    admonition that trial courts must use to warn a defendant of the
    perils of self-representation. But the record as a whole must
    establish that the defendant understood the ‘dangers and
    disadvantages’ of waiving the right to counsel, including the
    risks and intricacies of the case. [Citations.] If a defendant
    validly waives the right to counsel, a trial court must grant the
    request for self-representation.” (People v. Daniels (2017) 
    3 Cal.5th 961
    , 977–978, italics added (Daniels).) “Where a trial
    court has granted a defendant’s request for self-representation,
    the question on appeal is ‘whether the defendant knowingly and
    intelligently waived the right to counsel.’ ” (People v. Burgener
    101
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    (2016) 
    1 Cal.5th 461
    , 471 (Burgener).) “We review a Faretta
    waiver de novo, examining the entire record to determine the
    validity of a defendant’s waiver.” (Daniels, at p. 978.)
    McClain first asserts that the trial court failed to “fully
    and accurately inform him of his legal options with regard to
    counsel” because it suggested his only options were self-
    representation or representation by attorney Leonard. He
    claims the court simply elicited responses to boilerplate
    questions and did not conduct the probing inquiry required by
    Faretta. (See Moran v. Godinez (9th Cir. 1994) 
    57 F.3d 690
    , 705.)
    The record reflects otherwise.
    The court carefully and thoroughly advised McClain of his
    constitutional rights and the consequences of waiving them.
    McClain expressly confirmed, both orally and in writing, “I
    understand that I have the right to be represented by a lawyer
    at all stages of the proceedings and, if I do not have funds to
    employ counsel, one will be appointed for me by the court.” To
    this end, McClain successfully asked the court to appoint
    Leonard to serve as his “advisory counsel.” McClain affirmed
    that he understood his constitutional rights, that he wished to
    act as his own lawyer, and that he would be “giving up the right
    to be represented by a lawyer appointed by the court.” Asked if
    he understood that he would “have to conduct [his] own defense
    by [him]self and without the aid of a lawyer,” McClain said he
    did and was “willing to do that.” The court also warned that he
    might not be allowed to change his mind and have a lawyer
    appointed, depending on the stage of the proceedings. McClain
    assured the court he understood. These warnings, and many
    others, were also contained in McClain’s own “Petition to
    Proceed in Propria Persona” executed on April 9, 1996. There is
    no basis to McClain’s assertion that he was not fully or
    102
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    accurately informed of his legal options. Indeed, he identifies no
    specific fact that was kept from him, or about which he was
    ignorant. The trial court read from his own petition to ensure
    McClain understood what he had signed, and it probed beyond
    the form to assess McClain’s willingness and ability to serve as
    his own counsel. (Burgener, supra, 1 Cal.5th at p. 465.) The
    record reflects the waiver was freely given.
    McClain next contends the court failed to apprise him,
    either in the petition or orally, of his Eighth and Fourteenth
    Amendment rights to have the penalty jury consider his
    character, record, and the circumstances of his offense.
    However, a waiver of the right to counsel is valid so long as the
    defendant understands “the nature and object of the proceedings
    against him or her” and relinquishes “the right knowingly and
    voluntarily.” (Daniels, supra, 3 Cal.5th at p. 977.) No magic
    words are required, so long as the record demonstrates the
    defendant was aware of “the ‘dangers and disadvantages’ of
    waiving the right to counsel, including the risks and intricacies
    of the case.” (Id. at p. 978.) The court need not inform a
    defendant of attendant rights a valid waiver also relinquishes.
    Nor does the failure to advise about specific constitutional
    provisions defeat an otherwise valid waiver. (Ibid.) This record
    demonstrates McClain was sufficiently advised. The court
    warned McClain on numerous occasions of the dangers
    associated with self-representation, particularly in a capital
    case. Nevertheless, it was satisfied that he understood the risks
    of doing so. McClain’s complaint that he was not fully aware of
    arguments that could be made to a penalty-phase jury does not
    render his waiver invalid. When a defendant knowingly and
    intelligently waives the right to counsel he assumes the role of
    attorney in full. The court is not obligated to coach him how to
    103
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    conduct the defense he has taken upon himself. We note also
    that McClain had participated in the initial penalty phase trial,
    at which all defendants presented a case in mitigation. Thus,
    the arena into which he chose to enter was not completely terra
    incognita.
    Finally, McClain contends his lack of education, the
    complexity of a multi-defendant capital case, and the highly
    specialized nature of penalty-phase litigation combined to
    render his Faretta waiver invalid. In determining whether to
    permit a Faretta waiver, we have suggested “the court provide
    advisements falling into three general categories: (1) ensuring
    the defendant’s awareness of the ‘ “dangers and disadvantages” ’
    [citation] associated with self-representation; (2) inquiring into
    the defendant’s intellectual capacity; and (3) informing the
    defendant that he or she cannot later claim inadequacy of
    representation.” (Daniels, supra, 3 Cal.5th at p. 978; see People
    v. Lopez (1977) 
    71 Cal.App.3d 568
    , 572–574.)
    McClain now argues his failure to graduate from high
    school and his work as a brick layer and store clerk “hardly
    prepared him to defend himself in a capital penalty phase.” But
    the court warned him of the difficulty of presenting such a
    defense, sharing its opinion that “very few lawyers” were
    qualified to handle death penalty cases. The court also expressly
    inquired into McClain’s educational background, previous
    employment, and experience with self-representation. The court
    explained that McClain would be expected to follow all the
    technical and substantive rules of criminal procedure and
    evidence and was required to uphold the dignity and standards
    of the court. It further explained that McClain would be
    expected to select a jury, make preliminary motions, give an
    opening statement and closing argument, and cross-examine
    104
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    witnesses. McClain indicated he understood and was prepared
    to undertake these tasks. After again asking whether McClain
    was certain he wanted to represent himself, the court was
    satisfied with his representations and granted him propria
    persona status.
    As in Daniels, “[t]he record as a whole supports the court’s
    conclusion” that McClain was competent to waive his right to
    counsel. (Daniels, supra, 3 Cal.5th at p. 980.) Despite the court’s
    strong warnings that McClain was fighting for his life and
    should do so with the assistance of a competently trained
    lawyer, McClain repeatedly made clear he wished to represent
    himself. McClain’s waiver “reflects his personal preference to
    control his own defense — which, no matter how ill advised, he
    was entitled to do under Faretta.” (Ibid.)
    We also note that, in ruling on a Faretta motion the court
    confronts a particularly delicate determination. A defendant has
    a right to counsel and a right to represent himself. These critical
    rights stand side by side, but do not intersect. If a defendant
    knowingly and voluntarily waives the first, the court must grant
    an otherwise valid request to exercise the second, unless the
    defendant is unable to competently pursue it.
    b. Joinder
    Holmes and Newborn frequently sought to sever their
    trials during the penalty phase, generally due to McClain’s
    conduct. The court denied each request. Defendants now
    contend the rulings deprived them of due process and a reliable
    penalty determination. We conclude to the contrary.
    i. Background
    During a pretrial hearing, Newborn and Holmes sought
    severance based on McClain’s “obscenities and profanities”
    105
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    during the guilt phase trial. The court denied the motion, noting
    that Newborn himself had engaged in similar behavior the week
    before.56 The court explained, “They are all together. They told
    the court this and the jury, they’re P-9’s they’re damn proud of
    it. [¶] They won’t be severed. I don’t find any rationale for that
    argument at all.” A little over a week later, Holmes moved to
    sever his penalty trial from Newborn’s and McClain’s. The
    motion was denied. Representing himself, McClain’s opening
    statement was laden with profanity and he was admonished
    several times for his argumentative style. He also admitted his
    gang membership. McClain’s codefendants did not renew their
    motions for severance at that point.
    Newborn sought severance again after McClain
    threatened witness Joseph Petelle. Petelle told the court that,
    when he left the stand and walked past counsel table, McClain
    had whispered, “I’ll kill you.” McClain’s advisory counsel
    disputed this account, explaining that he understood McClain to
    say, “You’re a dick head.” The court allowed the prosecution to
    present evidence of the threat under section 190.3, factor (b).
    The court denied Newborn’s severance motion but gave a
    limiting instruction that the statement to Petelle was offered
    against McClain only.
    Newborn and Holmes sought severance again near the end
    of the trial when McClain threatened a deputy. (See post, at
    pp. 118–121.) The motion was denied. Newborn sought
    56
    When the prosecutor announced an intent to retry the
    penalty phase, Newborn turned to him and said, “Fuck you.” He
    then added, “Fuck you. Suck my dick.” The court added, “For the
    record” that Newborn “was facing the court when he said, ‘Fuck
    you,’ and was also giving a P-9 sign.”
    106
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    severance a final time when he unsuccessfully moved for a
    mistrial before closing argument.
    ii. Discussion
    The law governing severance is settled. As noted earlier
    (ante, at pp. 19, 20) joint trials are preferred. (See § 1098; People
    v. Sánchez, supra, 63 Cal.4th at pp. 463–464 (Sánchez); Bryant,
    Smith and Wheeler, supra, 60 Cal.4th at p. 378.) They “promote
    efficiency and help avoid inconsistent verdicts.” (Sánchez, at
    p. 464; see Zafiro, 
    supra,
     506 U.S. at p. 537.) Further,
    “ ‘[i]mportant concerns of public policy are served if a single jury
    is given a full and fair overview of the defendants’ joint conduct
    and the assertions they make to defend against [the] ensuing
    charges.’ ” (Sánchez, at p. 464.) Review is for abuse of discretion
    based on the facts before the trial court at the time it ruled.
    (Ibid.) If the denial of severance was proper at the time, we may
    reverse only upon a showing “that the joint trial caused gross
    unfairness that denied due process.” (Ibid.)
    Generally, severance may be appropriate “if there is an
    incriminating confession, prejudicial association, likely
    confusion due to evidence on multiple counts, conflicting
    defenses, or the possibility that a codefendant might provide
    exonerating testimony at a separate trial.” (Sánchez, supra, 63
    Cal.4th at p. 464.) Some of these factors have less force here
    because defendants had already been found guilty. Newborn
    and Holmes argue they were prejudiced by association with
    McClain, whose repeated outbursts and use of profanity may
    have influenced the jury to impose the death penalty on all of
    them. Holmes asserts the court recognized this disadvantage
    when it warned McClain his presentation style could negatively
    impact his codefendants. “Prejudicial association might exist if
    107
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    ‘the characteristics or culpability of one or more defendants [is]
    such that the jury will find the remaining defendants guilty
    simply because of their association with a reprehensible person,
    rather than assessing each defendant’s individual guilt of the
    crimes at issue.’ ” (Ibid.) Although prejudicial association may
    justify severance in some circumstances, that is not the case
    here.
    We rejected a similar claim of prejudicial association
    based on a codefendant’s self-representation in Bryant, Smith
    and Wheeler. There, we explained, “no authority holds that
    severance is required simply because self-represented and
    attorney-represented codefendants have been joined for trial. To
    the contrary, many courts have held there is no per se bar
    against joint trials in these circumstances. (See, e.g., U.S. v.
    Celestin (1st Cir. 2010) 
    612 F.3d 14
    , 21; U.S. v. Veteto (11th Cir.
    1983) 
    701 F.2d 136
    , 139.) . . . It is always possible that a
    codefendant or, for that matter, another attorney might engage
    in inappropriate behavior. Protection against that possibility is
    found not in severance, but in the court’s duty to control the
    proceedings and ensure each defendant receives a fair and
    reliable trial. A court, of course, may take appropriate measures
    to prevent and sanction misconduct. (See, e.g., Veteto, at pp.
    138–139 [suggesting various precautionary steps].) Severance is
    not required simply as a preemptive measure based on an
    assumption that the court will be unable to control the
    proceedings.” (Bryant, Smith and Wheeler, supra, 60 Cal.4th at
    p. 385.)
    The trial court here took repeated and appropriate steps
    to manage the courtroom. Although McClain’s presentation was
    confrontational and replete with profanity, the court frequently
    admonished him and instructed the jury. The court made clear
    108
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    that McClain did not speak for the other defendants and that
    what he said while questioning or during outbursts was not
    evidence against them.
    Newborn and Holmes also argue severance was warranted
    because the evidence they presented in aggravation and
    mitigation differed from McClain’s. They rely on a
    distinguishable Massachusetts federal district court decision
    permitting but not requiring penalty phase severance where
    mitigation evidence for one defendant constituted aggravating
    evidence for another. (See U.S. v. Green (D.Mass. 2004) 
    324 F.Supp.2d 311
    .) This situation was different. McClain’s
    statements about wanting to avenge Hodges’s death did not
    undermine the other defendants’ presentations. Holmes
    presented lingering doubt evidence, and both he and Newborn
    introduced considerable evidence of their backgrounds. The
    mitigation and aggravation evidence differed, as it will for all
    jointly tried codefendants, but that fact alone did not require
    severance.
    We likewise found joinder proper in Sánchez, supra, 63
    Cal.4th at page 465, despite an argument that the defendant
    was prejudiced by his codefendants’ presentation of stronger
    mitigation cases than his own. We observed, “ ‘[I]t is not
    surprising that different defendants presented different
    mitigating evidence regarding their backgrounds. That
    circumstance alone clearly cannot establish that the jury failed
    to give each defendant individualized consideration.’ ” (Ibid.) So
    too here. Each defendant presented their own mitigation
    evidence. As in Sanchez, nothing in this record suggests that
    “the jury failed to give individualized consideration to [each]
    defendant’s proper sentence.” (Ibid.)
    109
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    c. Restraints
    All three defendants contend the court improperly
    required them to wear stun belts during the penalty phase
    retrial. They also complain it was error to admit testimony
    disclosing that restraints were in use. Although the question is
    close, we reject defendants’ claims.
    i. Imposition of Restraints
    Based on hostile conduct defendants exhibited during the
    guilt trial, bailiffs suggested they wear restraints in the penalty
    phase. After Mario Stevens testified, McClain had said, “You are
    a lying ass piece of shit, man. You are lying through your teeth,
    man.” After witness Joseph Petelle testified during the penalty
    retrial and was leaving the courtroom, McClain said, “I’ll kill
    you.” McClain also made a lewd gesture when the guilty verdicts
    were read, displaying his middle finger. Holmes reacted to the
    verdicts with hostility, telling the jury, “Fuck you, you
    motherfuckers. P-9 rules.” In addressing the severance motion,
    Newborn’s counsel observed Holmes commented on the jurors’
    intelligence; maligned their values, and heritage; and suggested
    they were sexually perverse. In 1995, while incarcerated,
    McClain tried to attack another inmate. Afterward, McClain
    was found with a jail-made stabbing implement.
    At the first penalty trial, the court ordered defendants to
    wear stun belts after the bailiffs requested they do so “based on
    some activity.” Defendants were given documents explaining
    what the belts were and how they could be used. The court
    cautioned that the belts were “capable of delivering an impulse
    of 50,000 volts” when activated, and activation could occur if
    defendants “attempt[ed] to escape,” made “sudden or hostile
    movements,” tampered with the stun belt, or failed “to comply
    110
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    with verbal commands.” Defendants all acknowledged their
    understanding of these terms, though McClain objected. We
    need not and do not decide the propriety of the court’s imposition
    of restraints at the first penalty trial.
    Defendants wore the belts without incident during that
    phase. After the prosecutor stated there would be a retrial,
    Newborn turned to him and said, “Fuck you.” When the
    prosecutor asked that the record reflect the statement, Newborn
    responded, “Fuck you. Suck my dick.” The court then noted, “We
    will have to probably have to use the restraints again,” adding
    “[f]or the record” that Newborn “was facing the court when he
    said, ‘Fuck you,’ and was also giving a P-9 sign.” In declining to
    sever McClain’s penalty retrial from his co-defendants’, the
    court noted they all “told the court . . . and the jury, they’re P-
    9s, they’re damn proud of it. . . . I am not happy with their
    attitude. They are not going to run this court.” Finding manifest
    need for restraints at the penalty retrial “based on [defendants’]
    conduct,” and “act[ing] up in th[e] courtroom,” the court ordered
    defendants wear stun belts, noting the decision was entirely the
    court’s, not that of the bailiffs’. No defendant objected to this
    decision.
    Trial courts have “ ‘ “broad power to maintain courtroom
    security and orderly proceedings.” ’ ” (Covarrubias, supra, 1
    Cal.5th at p. 870.) However, the court’s discretion to impose
    physical restraints is constrained by constitutional principles.
    Under California law, “a defendant cannot be subjected to
    physical restraints of any kind in the courtroom while in the
    jury’s presence, unless there is a showing of a manifest need for
    such restraints.” (People v. Duran (1976) 
    16 Cal.3d 282
    , 290–
    291.) Similarly, the federal “Constitution forbids the use of
    visible shackles . . . unless that use is ‘justified by an essential
    111
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    state interest’ — such as the interest in courtroom security —
    specific to the defendant on trial.” (Deck v. Missouri (2005) 
    544 U.S. 622
    , 624, italics omitted.) “ ‘We have held that these
    principles also apply to the use of an electronic ‘stun belt,’ even
    if this device is not visible to the jury.’ ” (Covarrubias, at p. 870.)
    In determining whether a stun belt is justified, the court
    must examine several factors, including the nature of the
    security risk posed by the defendant, whether the defendant is
    a flight risk, and whether the defendant will be disruptive.
    (Covarrubias, supra, 1 Cal.5th at pp. 870–871.) Verbal
    outbursts merely detrimental to a defendant’s own case, without
    more, may not constitute sufficient justification. (See People v.
    Mar (2002) 
    28 Cal.4th 1201
    , 1223, fn. 6.) A formal hearing is not
    required, but the record must reflect that the court based its
    determination that restraints were warranted “ ‘ “on facts, not
    rumor and innuendo.” ’ ” (Covarrubias, at p. 871.) The decision
    to impose restraints is reviewed for abuse of discretion. (Id. at
    p. 870.) “ ‘The imposition of physical restraints without evidence
    of violence, a threat of violence, or other nonconforming conduct
    is an abuse of discretion.’ ” (Id. at p. 871, italics added.)
    The court did not abuse its discretion by requiring that
    defendants wear stun belts during the penalty phase retrial.
    The record shows each defendant engaged in substantial
    “ ‘nonconforming conduct’ ” justifying employment of the belts.
    (Covarrubias, supra, 1 Cal.5th at p. 871.) Holmes called the
    jurors “motherfuckers;” and subjected them to the ad hominem
    attacks described above. McClain threatened a witness and
    made a lewd gesture toward the jury. Newborn confronted the
    prosecution with an expletive-laden outburst which, like
    Holmes’s, made reference to the P-9 gang. This obscene,
    disruptive, and threatening behavior was sufficient to justify
    112
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    the use of restraints, particularly considering the collective risk
    posed by three individuals intent on emphasizing their
    membership in a violent gang. The court was confronted with a
    trio of volatile defendants. They had been convicted of
    conspiring to commit, and then committing, exceptionally
    violent crimes, subjecting them to life in prison or execution.
    Under these circumstances there may be well-founded concern
    that disruptive conduct by one will spur an outburst and
    escalation by the others. The court’s decision to impose
    restraints was not arbitrary, capricious, or patently absurd. (See
    Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 390; People
    v. Lomax (2010) 
    49 Cal.4th 530
    , 559.)
    Defendants also argue the court improperly delegated to
    bailiffs its decision regarding the need for security. The record
    is to the contrary. Although bailiffs had suggested using stun
    belts before the first penalty phase, the court made clear that
    the decision to do so was its own. When explaining to McClain
    the bounds of his self-representation, the court noted that
    McClain would be wearing a stun belt “because of the past
    activities.” Toward the end of the retrial, in discussing a late
    severance motion, the court repeated that its decision to require
    stun belts was “based on [defendants’] conduct,” a great deal of
    which occurred in the court’s presence. The court stressed it had
    made that decision for everyone’s benefit. There was no error.
    ii. Disclosure of Restraints
    During the penalty retrial, the trial court was informed
    that McClain had threatened the bailiffs. Deputy Browning
    testified in limine that McClain had threatened to kill him. As
    Browning placed a stun belt on McClain in the holding cell,
    McClain asked why the belt was warm. Browning explained it
    113
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    was warm because the belts were tested each morning. Newborn
    then asked why the belts were tested. Browning said it was
    departmental policy to ensure the belts were operational. In
    response, McClain yelled from the cell, “If you do one of us, you’ll
    have to do us all.” Browning said: “What?” and Newborn
    repeated McClain’s comment. Then McClain said, “Don’t get
    within two feet of me or I’ll kill you. We’ll all have weapons this
    time.”
    Holmes moved for severance and alternatively requested
    that the incident, if admitted, be “sanitized” to avoid prejudicing
    him. During the penalty retrial, Deputy Browning testified only
    against McClain. He related that one morning, while placing “an
    electronic device on each one of the defendants,” McClain said,
    “Don’t get within two feet of me or I’ll kill you. I’ll [sic] have
    weapons this time.” After the defense requested a limiting
    instruction, the court told the jury that the devices are used to
    “assure tranquility in the court, security for everyone. It does
    not mean that [defendants] are guilty or not guilty,” and
    specifically admonished that Browning’s testimony was not to
    be considered against Holmes or Newborn.
    Defendants     now      complain       Browning’s   testimony
    improperly disclosed to the jury that they wore stun belts. No
    error is apparent. The jury learned only that electronic devices
    were placed on the defendants. The particular nature of the
    devices, or any reason for their use, was never specified, nor did
    the jury ever see one of the belts. Moreover, the court gave a
    limiting instruction explaining that the devices did not imply
    the defendants were “guilty or not.” Holmes and McClain
    contend this instruction was insufficient to cure the error, but
    they failed to object or seek additional, or different, instructions.
    114
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    The court’s instruction carefully refrained from mentioning that
    the devices were used for restraint or immobilization.
    Finally, despite Holmes’s current arguments, his attorney
    was not ineffective in dealing with the evidence. We have
    concluded the imposition of restraints was supported. Holmes’s
    attorney asked the court to “sanitize” Deputy Browning’s
    testimony to avoid prejudice to Holmes. The court did so.
    Although Deputy Browning testified in limine that McClain
    said, “We’ll all have weapons next time,” he told the jury
    McClain said, “I’ll have weapons next time.” (Italics added.) The
    court also provided a limiting instruction that Browning’s
    testimony constituted aggravating evidence against McClain
    only. Holmes does not argue, much less establish, that
    “ ‘ “counsel’s representation fell below an objective standard of
    reasonableness under prevailing professional norms” ’ ” or that,
    “ ‘ “but for counsel’s failings, the result would have been more
    favorable.” ’ ” (People v. Rices (2017) 
    4 Cal.5th 49
    , 80.) The jury
    was not permitted to consider the fact that Holmes wore an
    electronic device as a factor in aggravation against him. The
    record does not reflect prejudice.
    2. Evidentiary Issues
    a. Video of Holmes’s Outburst
    When the jury returned its guilty verdict against Holmes,
    his rude retort and mention of P-9’s supremacy (see ante, at
    pp. 14, 113) was recorded on videotape. The prosecution sought
    to introduce this tape during the penalty retrial. Holmes
    objected that his outburst merely expressed displeasure with
    the verdict and did not evince P-9 affiliation or other
    aggravating conduct under section 190.3. The court admitted
    the tape. It acknowledged that, while the “P-9 rules” statement
    115
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    might be prejudicial, it was also “highly probative” on penalty
    phase issues. The videotape was played for the jury, with
    expletives removed. The prosecutor also read Holmes’s full
    statement.
    During argument, the prosecutor read a portion of
    McClain’s testimony explaining that he went looking for rival
    gang members to kill. The prosecutor argued, “That’s what Herb
    McClain did with his homeys, Lorenzo [Newborn] and Karl
    Holmes. They went out to smoke and kill Crips and you are here
    today as a result of that. [¶] Why did they do it? Because they
    are P-9 gang members intent on retaliating for the death of a
    fellow P-9.” The prosecutor then played the expurgated tape of
    Holmes’s outburst. During deliberation, the jury asked to review
    the videotape.
    McClain and Newborn now complain the court should
    have instructed that Holmes’s outburst should be considered as
    a factor in aggravation against Holmes alone, a request they
    failed to make below. The court properly admitted it as to all
    three, concluding there was evidence they were all P-9 members.
    No defendant ever disputed P-9 membership, which was amply
    proven.
    Defendants next argue the court erred by admitting the
    videotape and statement because a defendant’s lack of remorse
    may not be admitted in aggravation unless and until the
    defendant puts the question of remorse in issue. The arguments
    fail to persuade. The evidence was not offered, nor argued, to
    show lack of remorse. While there was substantial guilt phase
    evidence about the P-9 gang, the tape was played at retrial to a
    newly empaneled jury. Defendants’ gang membership was a
    relevant circumstance of the crime, “ ‘admissible at a penalty
    116
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    retrial . . . under section 190.3.’ ” (People v. Banks (2014) 
    59 Cal.4th 1113
    , 1195; People v. Carter (2003) 
    30 Cal.4th 1166
    ,
    1194–1196.) “Thus, at least in cases in which the jury that
    decides the penalty did not adjudicate the defendant’s guilt, we
    have said it ‘ “ ‘is certainly the rule that if the evidence would
    have been admissible on the trial of the guilt issue, it is
    admissible on the trial aimed at fixing the penalty.’ ” ’ ” (Banks,
    at p. 1195.)
    b. McClain’s Threats to Deputies
    McClain argues the court erred under section 190.3, factor
    (b) by admitting evidence that he threatened Deputy Browning.
    (See ante, at p. 115.) No error occurred. Deputies David Admire
    and Les Tranberg gave similar testimony. Both heard McClain
    tell Browning to stay away and that he would have a weapon,
    although neither heard McClain say, “I’ll kill you.”
    McClain first urges that the prosecution failed to provide
    timely notice that evidence of the threat would be introduced in
    aggravation. He failed to object on this basis. (See Dykes, 
    supra,
    46 Cal.4th at p. 756; see also People v. Mills (2010) 
    48 Cal.4th 158
    , 205.) Even if preserved, the claim fails. Although the
    prosecution is required to provide notice of section 190.3, factor
    (b) aggravating evidence, that requirement is satisfied when
    notice is provided as soon as the information becomes known to
    the prosecution. (People v. Whalen (2013) 
    56 Cal.4th 1
    , 73−74.)
    McClain did not make the threat until the retrial was nearly
    complete. It was then promptly brought to the attention of both
    the court and the prosecution. An in limine hearing provided
    timely and adequate notice to McClain. (See ibid.)
    Second, seizing on comments from that hearing, McClain
    claims the trial court improperly assumed the role of prosecutor
    117
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    “because it was irate that McClain allegedly threatened its
    bailiff.” The record is contrary. The prosecution moved for an
    Evidence Code section 402 hearing and sought admission of the
    threat evidence. Although Deputy Browning did report the
    threat to the trial court, it was the prosecutor who proffered the
    evidence. The court fulfilled its proper role in ruling on
    admissibility.
    Third, McClain claims Browning improperly testified that
    Newborn said “If you do one of us, you’ll have to do us all.”
    Because he could not cross-examine Newborn, McClain
    contends his right to confront the inculpatory statement was
    violated. (See Aranda, supra, 
    63 Cal.2d 518
    ; Bruton, 
    supra,
     
    391 U.S. 123
    ). That argument fails. First, the statement was not
    hearsay. It was not offered to prove the truth of the assertion
    that an action against one would, as a matter of fact, require
    action against all. Nor was it offered to establish the necessity
    to employ the belts. Instead, it was offered to prove the threat
    had been made. Second, Newborn was simply repeating what
    McClain himself said to Browning. Newborn was not making an
    independent inculpatory statement that tended to incriminate
    McClain. Indeed, McClain made no objection to Browning’s
    testimony about Newborn’s repetition. (See Dykes, 
    supra,
     46
    Cal.4th at p. 756.)
    Finally, McClain asserts the incident was improperly
    admitted as a criminal threat because there was no evidence
    Browning feared for his personal safety. Evidence of an
    uncharged crime generally cannot be presented as an
    aggravating factor “unless a ‘ “rational trier of fact could have
    found the essential elements of the crime beyond a reasonable
    doubt.” ’ ” (People v. Boyd (1985) 
    38 Cal.3d 762
    , 778; see Jackson
    v. Virginia, 
    supra,
     443 U.S. at pp. 318–319.) The essential
    118
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    elements of a criminal threat are: “(1) the defendant willfully
    threatened death or great bodily injury to another person; (2)
    the threat was made with the specific intent that it be taken as
    a threat, regardless of the defendant’s intent to carry it out; (3)
    the threat was ‘on its face and under the circumstances in which
    it [was] made, . . . so unequivocal, unconditional, immediate,
    and specific as to convey to the person threatened, a gravity of
    purpose and an immediate prospect of execution’; (4) the threat
    caused the person threatened ‘to be in sustained fear for his or
    her own safety or for his or her immediate family’s safety’; and
    (5) this fear was reasonable under the circumstances. (§ 422,
    subd. (a); see People v. Toledo (2001) 
    26 Cal.4th 221
    , 227–228
    [
    109 Cal.Rptr.2d 315
    , 
    26 P.3d 1051
    ].)” (People v. Turner (2020)
    
    10 Cal.5th 786
    , 826, italics added.)57
    McClain focuses on statements by the court suggesting the
    bailiffs were not gravely concerned about safety because they
    often received threats. However, Deputy Browning’s own
    testimony was different. Browning testified that he wrote a
    report after the incident requesting additional security in the
    courtroom so that “court personnel . . . would not be endangered
    57
    At the time of trial, section 422 provided: “Any person who
    willfully threatens to commit a crime which will result in death
    or great bodily injury to another person, with the specific intent
    that the statement is to be taken as a threat, even if there is no
    intent of actually carrying it out, which, on its face and under
    the circumstances in which it is made, is so unequivocal,
    unconditional, immediate, and specific as to convey to the
    person threatened, a gravity of purpose and an immediate
    prospect of execution of the threat, and thereby causes that
    person reasonably to be in sustained fear for his or her own
    safety or for his or her immediate family’s safety, shall be
    punished by imprisonment in the county jail not to exceed one
    year, or by imprisonment in the state prison.” (Former § 422.)
    119
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    or possibly killed.” This evidence may have suggested that the
    death threat from a convicted murderer and admitted gang
    member, who had previously engaged in seriously disruptive
    conduct, placed Browning in sustained fear for the safety of
    himself and his fellow deputies. McClain protests that, with the
    stun belt on, he was incapable of doing harm; however
    section 422 does not require an immediate ability or even an
    actual intention, to carry out the threat. (People v. Wilson (2010)
    
    186 Cal.App.4th 789
    , 807.) Finally, even if the “sustained fear”
    element was lacking, there was ample proof that McClain
    committed an attempted criminal threat (see People v. Toledo,
    
    supra,
     26 Cal.4that pp. 230–231, 234), a crime involving the
    threat of force or violence and thus properly admitted in
    aggravation under section 190.3, factor (b).
    c. Newborn’s Threats to Louise Jernigan
    The prosecution called Louise Jernigan to testify about
    threats Newborn made against her. During the hearing to
    determine the admissibility of her testimony, Jernigan stated,
    among other things, that Newborn had cursed at her and said,
    “You accused me of killing your son, and we’re going to get you,
    too.” The trial court admitted her testimony as evidence of a
    criminal threat. At the penalty retrial, Jernigan testified that
    while visiting a friend’s business, Newborn “came in, [and] put
    a gun to [her] side.” Although Jernigan did not see the gun when
    Newborn entered, she could feel it pressing against her. She
    claimed Newborn “want[ed] to shoot [her] because he knew that”
    she knew “that he killed [her] son Keith,” who had been killed
    only weeks earlier.” The court interjected with an instruction
    that Jernigan’s statement was offered only to show her state of
    mind and did not “go to the truth of the matter.” Jernigan then
    testified that she pushed Newborn away but followed him
    120
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    outside, where they argued. After Newborn left, she called the
    police. Additional evidence showed that during the incident
    Jernigan accused Newborn of killing her son and Newborn said,
    “Fuck you. You accused me of killing your son, and we’re going
    to get you, too.”
    Newborn asserts the court erred in admitting Jernigan’s
    statements about Newborn having killed her son. However, the
    evidence was admitted for a legitimate purpose. The altercation
    was offered to show that Newborn had made criminal threats
    against Jernigan (§ 422, subd (a)), actions involving “the express
    or implied threat to use force or violence” under section 190.3,
    factor (b). As discussed, a criminal threat under section 422
    requires proof that the recipient feared for her safety, or that of
    her family, and that the fear was reasonable under the
    circumstances. (People v. Toledo, 
    supra,
     26 Cal.4th at pp. 227–
    228.) These elements require an evaluation of the victim’s state
    of mind. (Id. at p. 228.) Moreover, a threat must be examined
    both “ ‘ “on its face and under the circumstances in which it was
    made.” ’ ” (People v. Felix (2001) 
    92 Cal.App.4th 905
    , 914.)
    Jernigan’s belief that Newborn was responsible for her son’s
    death was relevant to show her state of mind at the time and to
    explain the circumstances surrounding Newborn’s threat; her
    belief was the source of the dispute with Newborn and thus
    provided relevant context for understanding the meaning and
    intent behind the threat.
    Newborn next claims Jernigan’s accusation was unduly
    prejudicial under Evidence Code section 352. The claim lacks
    merit. Courts ordinarily enjoy broad discretion to evaluate
    whether the probative value of evidence is outweighed by
    concerns of undue prejudice, confusion, or consumption of time.
    (People v. Rodrigues, 
    supra,
     8 Cal.4th at p. 1124.) As noted,
    121
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    testimony regarding Jernigan’s belief and resulting accusations
    demonstrated the very reason for Newborn’s threat and
    provided essential context for it. The trial court was within its
    discretion in determining this probative value was not
    substantially outweighed by the risk of undue prejudice and
    provided a limiting instruction to explain the proper use of
    Jernigan’s testimony.
    d. Holding Cell Graffiti
    Over objection, the prosecution was allowed to introduce
    evidence of graffiti found in the courtroom’s holding cell.
    Defendants contend this was error because the graffiti did not
    constitute a threat and there was insufficient evidence to
    demonstrate that any of the defendants produced the graffiti.
    Any error in admitting the evidence did not prejudice
    defendants.
    Arguing admissibility, the prosecutor described
    photographs of the graffiti: “the first photograph displays a P-
    9, the word ‘Monsta’ on top of it. Within the P [are] the words
    Parke Street and within the 9” are “the word[s] Nine Lives.”
    “[T]he words P-9” were written below. “Next to it is ‘Blood Gang’
    and beneath are the notations: ‘Boom 1,’ ‘Sunday Shoes 1 and
    Monsta Herb 1.’ ” “Beneath these words are the words ‘Anybody
    killa,’ K-I-L-L-A, Sheriff, spelled S-H-I-R-E-F-F, police and
    again the word ‘killa.’ ” Officer Carlos Lopez testified in the
    penalty phase that Holmes’s nickname was “Boom” and
    Newborn’s nickname was “Sunday Shoes.” Although “Monsta
    Herb 1” was not a known nickname, McClain’s first name is
    Herbert. He introduced himself as “Herb” to a fellow passenger
    as he was flying out of state. The prosecutor argued that
    crossing out the words “police” and sheriff” indicated police
    122
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    officers and sheriff’s deputies were intended murder targets of
    the graffiti artists. The court ruled the graffiti admissible,
    concluding it was “highly relevant and probative,” and any
    prejudice was “outweighed by the fact” that the graffiti named
    each “of the three defendants.”
    Assuming without deciding this evidence was erroneously
    admitted, we conclude there is no reasonable possibility
    different penalty verdicts would have been reached had it been
    excluded. (See People v. Silveria and Travis, supra, 10 Cal.5th
    at pp. 265–266.) The reference to the graffiti was relatively
    vague. Particularly when considered within the context of a
    lengthy trial, it was relatively brief. Admission of the graffiti
    accomplished little more than confirm defendants were
    members of the P-9 gang and engaged in threatening conduct
    toward law enforcement, as demonstrated by other evidence.
    Any error in admitting the graffiti was harmless. (Ibid.)
    e. Holmes’s Juvenile Weapon Possession
    At age 15, Holmes was found to possess a loaded firearm,
    in violation of section 12031. Over objection, the court allowed
    the prosecution to present this juvenile adjudication as
    aggravating evidence. A police officer testified that after Holmes
    was seen at a carnival with a gun in his pants pocket, he was
    arrested and found to possess a loaded revolver. Holmes now
    argues this juvenile adjudication was inadmissible under
    section 190.3, factor (b). Not so.
    Section 190.3, factor (b) permits evidence of a defendant’s
    criminal activity involving “the use or attempted use of force or
    violence or the express or implied threat to use force or violence.”
    Holmes argues his offense did not involve the use of force or
    violence because he never acted violently, cooperated fully when
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    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    arrested, and only carried the revolver to ensure his own safety.
    Former section 12031 prohibits “carrying a loaded firearm . . .
    in any public place.” Although firearm possession is not a
    factor (b) offense in every circumstance, “ ‘[t]he factual
    circumstances surrounding the possession . . . may indicate an
    implied threat of violence.’ ” (People v. Jackson (2014) 
    58 Cal.4th 724
    , 759.) If so, admission of the offense under factor (b) is
    appropriate. Here, Holmes was walking through a crowded
    carnival with a loaded pistol protruding visibly from his pants
    pocket. His demeanor and display of the weapon possession
    were sufficiently concerning that someone reported him to the
    authorities. Especially in view of the fact that similar firearms
    were used in committing the crimes here, “the jury legitimately
    could infer an implied threat of violence from all the
    circumstances” surrounding Holmes gun possession. (Dykes,
    
    supra,
     46 Cal.4th at p. 777; see also Jackson, at pp. 759–760.)
    The court did not abuse its discretion in admitting the evidence.
    f. Exclusion of Former Codefendants’ Favorable
    Dispositions
    The prosecution moved to exclude evidence that
    codefendants Bowen and Bailey entered into negotiated
    dispositions that did not include the death penalty. Defendants
    did not object, and the trial court granted the motion.
    Defendants now argue their due process and Eighth
    Amendment rights were violated because Bowen and Bailey
    were equally or more culpable but received more favorable
    sentences. This claim was forfeited by defendants’ failure to
    object (see Dykes, 
    supra,
     46 Cal.4th at p. 756) and lacks merit.
    “It is well established that ‘[t]he punishment meted out to
    a codefendant is irrelevant to the decision the jury must make
    at the penalty phase: whether the defendant before it should be
    124
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    sentenced to death.’ ” (People v. Turner (1994) 
    8 Cal.4th 137
    ,
    206; see also People v. Beardslee (1991) 
    53 Cal.3d 68
    , 111–112.)
    Defendants rely instead on a federal court concurring opinion,
    which suggested the jury should be permitted to consider an
    equally culpable codefendant’s disposition in mitigation. (See
    Morris v. Ylst (9th Cir. 2006) 
    447 F.3d 735
    , 746–748 (conc. opn.
    of Ferguson, J.).) Leaving aside the persuasive value of the
    concurrence, which is unbinding on this or any court, the
    comparison is inapt. There is no evidence to establish that
    Bowen and Bailey were equally culpable with the defendants
    here. The trials were severed, and no showing was made as to
    the relative degree of involvement or other factors that might
    relate to culpability. Defendants also failed to establish that the
    government sought the death penalty for them but not for Bailey
    and Bowen. (See id. at p. 747 (conc. opn. of Ferguson, J.).) The
    prosecution reminded the court that the evidence related to
    Bowen and Bailey differed in significant respects from the
    evidence against these defendants. Unlike the defendants in
    Morris v. Ylst, the prosecution’s position here was that Bowen
    and Bailey were not “equally guilty” compared to defendants.
    (Id. at p. 746 (conc. opn. of Ferguson, J.).). The trial court did not
    err in excluding the evidence.
    g. Lingering Doubt Evidence
    All defendants raise various claims related to lingering
    doubt evidence. We reject them.
    i. Newborn and Holmes
    Newborn and Holmes contend the court improperly
    prohibited them from introducing evidence from the first trial to
    create lingering doubt. (See Oregon v. Guzek (2006) 
    546 U.S. 517
    , 519.) Their claim fails because they offered none. Contrary
    125
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    to their assertions, the record reflects that neither of them
    sought to present evidence of this nature. (See Evid. Code, § 354,
    subd. (a).) Newborn argues the first penalty jury received
    substantially more evidence concerning innocence but points to
    none he was prevented from introducing. Holmes complains
    McClain was prevented from offering testimony from an
    eyewitness expert, but he points to no evidence of his own that
    was barred. Neither defendant preserved a claim of improper
    evidentiary exclusion.
    ii. McClain
    McClain claims the court improperly excluded lingering
    doubt evidence that he did seek to introduce. Although some of
    this evidence should have been admitted, the error was
    harmless.
    There is no federal or state constitutional right to present
    lingering doubt evidence. (Franklin v. Lynaugh (1988) 
    487 U.S. 164
    , 173−174; People v. Cox (1991) 
    53 Cal.3d 618
    , 675.) However,
    we have held as a matter of state law that “evidence of the
    circumstances of the offense, including evidence that may create
    a lingering doubt as to the defendant’s guilt of the offense, is
    admissible at a penalty retrial as a factor in mitigation under
    section 190.3.” (People v. Hamilton (2009) 
    45 Cal.4th 863
    , 912
    (Hamilton); see People v. Gay (2008) 
    42 Cal.4th 1195
    , 1221
    (Gay).) These holdings do not mean defendants are free to
    relitigate a guilty verdict, even at a penalty retrial. “A defendant
    . . . has no right to introduce evidence not otherwise admissible
    at the penalty phase for the purpose of creating a doubt as to his
    or her guilt. [Citations.] ‘ “The test for admissibility is not
    whether the evidence tends to prove the defendant did not
    commit the crime, but, whether it relates to the circumstances
    126
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    of the crime or the aggravating or mitigating circumstances.”
    [Citation.]’ [Citation.] The evidence must not be unreliable
    [citation], incompetent, irrelevant, lack probative value, or
    solely attack the legality of the prior adjudication [citations].”
    (Hamilton, at p. 912.)
    McClain sought to present testimony from severed
    codefendants Bowen and Bailey about their plea agreement and
    McClain’s purported lack of involvement in the murders. He
    argued these men could tell the jury whether he was present or
    not at the shooting scene and “if they [had] seen [him] at any
    time during the night.” The court denied the request, explaining
    it was not appropriate evidence for the penalty phase. This
    ruling was within the court’s discretion. It was clear from
    McClain’s offer of proof that he was merely speculating about
    the evidence Bowen and Bailey might provide. He made no
    specific offer of proof. Neither man testified in the guilt phase
    trial, and McClain did not claim he was aware from any source
    that they were present at the crime scene. He apparently based
    his speculation on the men’s negotiated dispositions, but, as the
    prosecutor noted, they had steadfastly refused to admit guilt.
    Because McClain offered no basis for the court to conclude
    Bowen and Bailey would provide admissible evidence about the
    circumstances of the crime, the court did not err in excluding
    their testimony. (See Hamilton, 
    supra,
     45 Cal.4th at p. 912.)
    The analysis is different for eyewitness expert Kathy
    Pezdek. McClain sought to present Pezdek’s testimony to refute
    Gabriel Pina’s identification of him as the driver of the lead car
    on Wilson Street. The trial court denied the request, reasoning
    that identity was not an issue at the penalty phase and the
    evidence would be irrelevant. To the contrary, the proffered
    testimony was relevant as to lingering doubt, and section 190.3
    127
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    makes such lingering doubt evidence admissible at a penalty
    retrial. (Gay, 
    supra,
     42 Cal.4th at pp. 1219−1221.) Pezdek
    testified in the guilt phase. Her testimony remained relevant
    and should have been admitted in the penalty retrial. (Id. at
    pp. 1219-1220; see People v. Banks, supra, 59 Cal.4th at p.
    1195.) However, the error was harmless because there is no
    reasonable possibility it affected the penalty verdict. (See
    Hamilton, 
    supra,
     45 Cal.4th at p. 912.) Pezdek’s guilt phase
    testimony primarily established that eyewitnesses can be
    fallible. Yet Pina was thoroughly cross-examined in the penalty
    retrial, with similar attacks on the accuracy of his identification.
    Finally, significant aggravating evidence was presented against
    McClain. Beyond the circumstances of the crimes, which
    involved the gang-related murder of innocent children, there
    was evidence of McClain’s four prior felony convictions and
    three unadjudicated instances of violent conduct. In light of this
    evidence, there is no reasonable possibility the jury would have
    reached a different verdict if presented with Pezdek’s expert
    testimony on identification.
    iii. Prosecutorial Misconduct
    Holmes and McClain argue the prosecutor committed
    misconduct in arguments related to lingering doubt. If
    prosecutorial misconduct renders a trial so fundamentally
    unfair that the conviction constitutes a denial of due process, it
    violates the federal Constitution. (Covarrubias, supra, 1 Cal.5th
    at p. 894.) “ ‘ “[M]isconduct that does not render a trial
    fundamentally unfair nevertheless violates California law if it
    involves ‘the use of deceptive or reprehensible methods to
    attempt to persuade either the court or the jury.’ ” ’ ” (Ibid.)
    Even if these claims had been preserved (see Dykes, 
    supra,
     46
    Cal.4th at p. 756; see also Winbush, supra, 2 Cal.5th at p. 481),
    128
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    they lack merit. The arguments complained of did not constitute
    misconduct.
    Holmes asserts it was misconduct for the prosecutor to
    argue that jurors “must accept the verdicts and findings
    rendered by the jury in the guilt phase of this trial.” He claims
    the argument required jurors to “assume the worst about the
    circumstances of the offense” and thus deprived him of
    “individualized and non-arbitrary sentencing.” A prosecutorial
    misconduct claim is not preserved for appeal unless the
    defendant made a timely objection on the same ground and
    asked that the jury be admonished to disregard the impropriety.
    (Covarrubias, supra, 1 Cal.5th at pp. 893–894.) Holmes’s lack of
    objection below forfeits the claim. Further, there was no
    misconduct. The prosecutor did no more than paraphrase the
    special instruction on lingering doubt the jury was about to
    receive. It stated, “as a penalty jury, you must ‘accept’ the guilt
    phase verdicts and findings.” The rule strikes a balance. A guilt
    conviction establishes the facts were proven beyond a
    reasonable doubt. The fact that there may yet be a residual
    “lingering doubt” may be considered by the jury as a fact
    militating against a death sentence. That does not mean,
    however, that the new penalty jury is entitled to ignore a prior,
    and properly arrived at, guilt determination. The prosecutor’s
    reference to this principle did not violate due process or use
    improper methods of persuasion.
    McClain raises two misconduct claims. First, he contends
    the prosecutor made misrepresentations to the court about the
    pleas of Bowen and Bailey. When McClain proposed calling
    these original codefendants, the prosecutor responded that
    although they had pled guilty they did not admit guilt. He said
    both men had “consistently denied being present at the shooting
    129
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    scene or having any involvement in the shooting,” and expressed
    doubt about how they could testify to McClain’s absence from
    the scene. McClain disagreed but did not object to the
    prosecutor’s comments. (See Dykes, 
    supra,
     46 Cal.4th at p. 756;
    see also Winbush, supra, 2 Cal.5th at p. 481.) On the merits, the
    statement was not misconduct because it merely reflected the
    prosecutor’s good faith belief about the codefendants’ plea
    agreements. In fact, the court was already aware of these
    agreements. McClain has not shown that the prosecutor’s
    statements about Bowen and Bailey were false, and there is no
    reasonable likelihood the court was misled by his argument.
    Second, McClain asserts it was misconduct for the
    prosecutor to assert in closing argument that McClain had failed
    to present lingering doubt evidence. After McClain objected that
    he was not given the opportunity to present such evidence, the
    prosecutor clarified that the defense had no burden, “but they
    [did] have the opportunity.” This argument was neither
    reprehensible nor deceptive. (Covarrubias, supra, 1 Cal.5th at
    p. 894.) Other than testimony from eyewitness expert Pezdek
    (see ante, at p. 128), McClain did not attempt to present
    lingering doubt evidence. Contrary to his assertions, the court
    did not preclude all lingering doubt testimony. It allowed
    Holmes to call Gabriel Pina to challenge his eyewitness
    identification, and, as noted, McClain was able to elicit
    concessions from Pina on cross-examination. McClain offered no
    further evidence of his own on lingering doubt after the Pezdek
    ruling. A prosecutor enjoys a wide latitude in closing argument
    and “ ‘has the right to fully state his views as to what the
    evidence shows and to urge whatever conclusions he deems
    proper.’ ” (People v. Valencia (2008) 
    43 Cal.4th 268
    , 284.) The
    130
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    argument here was permissible commentary on the state of
    McClain’s evidence.
    iv. Instructional Error
    During deliberations, jurors sent a note asking whether
    they could review testimony from the prior trial and whether
    there was “any other eyewitness testimony or independent
    investigation.” The court responded that Pina’s identification
    “was only part of the evidence at the trial of the guilt phase.”
    Other evidence had been presented, but the court admonished
    the jury not to speculate about it. It instructed: “For the
    purposes of your duties in this trial you must accept the fact that
    there was sufficient evidence beyond a reasonable doubt to
    convict the defendants of the charges against them.” It also
    reread the special instruction on lingering doubt. It explained:
    “Lingering doubts as to guilt may be considered as a factor in
    mitigation. A lingering doubt is defined as any doubt, however
    slight, which is not sufficient to create in the mind of a juror a
    reasonable doubt.”
    McClain now complains this instruction was ambiguous
    and open to erroneous interpretation because the court
    prevented him from presenting evidence to support a lingering
    doubt defense. The premise of this argument fails because, apart
    from one witness, the court did not erroneously exclude
    lingering doubt evidence or prevent McClain from offering it.
    Nor is the instruction itself constitutionally infirm. The
    instruction here resembles one given in Hamilton, which stated
    that “ ‘lingering doubts . . . on the question of guilt may be
    considered by [the jury] in determining the appropriate penalty.
    [¶] A lingering doubt is defined as any doubt, however slight,
    which is not sufficient to create in the minds of the jurors a
    131
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    reasonable doubt.’ ” (Hamilton, 
    supra,
     45 Cal.4th at p. 949,
    italics omitted.) Hamilton held that this instruction, coupled
    with counsel’s argument, was sufficient to inform the jury of the
    role lingering doubt could properly play in its penalty
    determination. (Id. at pp. 948–949.)
    The jury in Hamilton also sought clarification about
    lingering doubt, asking “ ‘if we have questions, however slight,
    “lingering doubt,” about the conviction for murder (in the 1st
    trial) is that appropriate? In other words is that to be considered
    as mitigating or at all.’ ” (Hamilton, supra, 45 Cal.4th at p. 949.)
    The court directed jurors to the lingering doubt instruction, and
    Hamilton claimed this response was inadequate. (Ibid.) We
    concluded otherwise, explaining that the question revealed the
    jury’s confusion as to whether a slight doubt was enough to
    constitute a mitigating factor or if it had no place in the penalty
    deliberation. (Id. at p. 950.) Although the jury’s question here
    was different, it does not cast doubt on the validity of the
    lingering doubt instruction. Indeed, the jurors’ question
    revealed no uncertainty about the instruction at all. It simply
    asked whether the jury was permitted to obtain additional
    evidence and, if so, what that evidence might be. The court
    properly directed the jury’s attention away from evidence
    presented at the first trial and, as in Hamilton, instructed on
    the role lingering doubt might play in their deliberations, based
    on the evidence they heard. The instruction was not erroneous
    or ambiguous, and the court did not err in giving it.
    h. Character Evidence Elicited from Clarence
    Jones
    McClain asserts several errors in connection with the
    testimony of his witness Clarence Jones. No error occurred.
    132
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    McClain called Jones, a county jail inmate and longtime
    acquaintance. In aggravation, the prosecution had offered
    evidence that, in 1995, McClain had tried to attack another
    inmate and was found in possession of a shank. It appears
    McClain called Jones to counter that evidence. After Jones was
    sworn, McClain stated: “I called you today to get a better
    understanding from your point of view on the tiers.” He then
    asked about “an incident [that] occurred involving a shank or
    some type of an assault on the tier in 3100,” and whether Jones
    saw “any weapons in anybody’s hand?” Jones said he
    remembered the incident but saw no weapon. McClain then
    asked: “Would it be uncommon, particularly in a racial incident,
    for someone else to throw a weapon out on the tier?” The
    prosecution objected that the question called for speculation and
    lacked foundation.
    The court then asked several foundational questions.
    These established that Jones had been the county jail for about
    a year, had been there before, and had seen similar incidents.
    He knew what a shank is and how they are made. Following
    these answers, the court said: “The gentleman is an expert in, I
    guess, what you [McClain] are asking.” McClain made no
    objection to the court’s questioning or its conclusion. McClain
    then asked: “So would it be unusual, say, for one race person to
    be involved in an altercation with a person of another race and
    somebody would take it upon themselves to throw some type of
    weapon as an aid to that person?” Jones nodded and McClain
    said: “No further questions.” The court confirmed that Jones
    intended his nod as affirmation.
    McClain now complains the court improperly elicited
    character evidence from Jones and failed to act impartially by
    questioning the witness. The claim is forfeit (see Dykes, 
    supra,
    133
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    46 Cal.4th at p. 756) and meritless. “Evidence Code section 775
    ‘ “ ‘confers upon the trial judge the power, discretion and
    affirmative duty . . . [to] participate in the examination of
    witnesses whenever he believes that he may fairly aid in
    eliciting the truth, in preventing misunderstanding, in
    clarifying the testimony or covering omissions, in allowing a
    witness his right of explanation, and in eliciting facts material
    to a just determination of the cause.’ ” [Citations.] [¶] The
    constraints on the trial judge’s questioning of witnesses in the
    presence of a jury are akin to the limitations on the court’s role
    as commentator. The trial judge’s interrogation “must be . . .
    temperate, nonargumentative, and scrupulously fair.” ’ ” (People
    v. Harris (2005) 
    37 Cal.4th 310
    , 350 (Harris).) The court adhered
    to those requirements. It merely helped the self-represented
    McClain lay a proper foundation for the questions he wanted to
    ask.
    The question about          whether     something might   be
    “unusual” in a jail setting called for information beyond the
    common experience of jurors. Accordingly, it was appropriate to
    establish that Jones had “special knowledge, skill, experience,
    training, or education” to permit him to give the expert opinion
    McClain sought on the presence of weapons in jail, how they
    might be deployed, by whom, and under what circumstances.
    (Evid. Code, § 720, subd. (a).) The court’s questions did not call
    for, or elicit, character evidence about McClain.
    McClain urges that questioning by the court is improper
    when attorneys are performing competently. His failure to lay
    foundation for his questions and make their significance clear,
    was not competent performance. The court has the authority
    and obligation to appropriately control and expedite
    proceedings. (Harris, supra, 37 Cal.4th at p. 348.) Its conduct
    134
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    reflected no bias. On the contrary, it was an efficient way for the
    court to help McClain examine a witness effectively and advance
    the proceedings.
    McClain also objects to aspects of cross-examination.
    Inquiry established that, contrary to his direct testimony, Jones
    was not present when the incident in question occurred and that
    he knew nothing about the circumstances. Jones also asserted
    that he had never been involved in an attack on an inmate or
    deputy. Questioning then turned to the witness’s conviction
    history. It revealed that he had recently been convicted of
    robbery and carjacking and sentenced to prison. Jones asked:
    “Am I on trial or what? Then said: “I take the 5th.” He did not
    give answers about other felony convictions. The prosecutor
    turned to the relationship between Jones and McClain, eliciting
    that they had known each other for 10 to 20 years. After
    ultimately securing admissions that Jones suffered other felony
    convictions, the examination ended.
    McClain chose to conduct a redirect examination. This
    colloquy ensued:
    “Q [by McClain]: Mr. Jones, I brought you here to give the
    jury a better - - another point of view of exactly what goes on the
    tier, not for you to be put on trial, right?
    “A [by Jones]: Right.
    “Q: Just so you don’t feel uncomfortable, I just want to
    pass that to you.
    “A: Right.”
    McClain said he had “no further questions.” However,
    Jones sought to say more, relating in part: “I’ve been knowing
    this guy for quite a long time and as far as, you know, my opinion
    135
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    of him, he’s a good guy and he’s not what these people claim that
    he is. And I feel, you know, further down life’s road that his
    innocence will be proven, that he is really innocent of the crime
    he is being, you know, placed under.” McClain did not object, or
    ask the statements be stricken. The court asked if there was
    additional recross-examination. Jones interjected: “I am not
    finished your honor.” He went on to say that the death penalty
    was pursued unevenly and that “I don’t think it’s fair, you know,
    for the young brother, you know, to be found guilty on a D.P.”
    Again, McClain made no motion to strike, electing to let the
    testimony stand. Recross questioning turned again to one of
    Jones’s felony convictions and McClain objected as “outside the
    scope.” The court overruled the objection, explaining: “You
    brought him here. He is giving a character reference for you. The
    court let him answer your questions.” In response to further
    questions Jones gave a number of rambling answers, during
    which he asserted the following. He repeatedly insisted he was
    “treated unfair every time I went through the court system.” He
    was convicted of robbery because “my counsel didn’t represent
    me right. I was forced to go in pro per. And that’s the only reason
    why I sat in the jury trial and got convicted.” In connection with
    his assertion of repeated unfair treatment, the prosecution
    asked about other cases in which Jones was convicted but given
    probation with minimal or concurrent sentences, and whether
    he considered those dispositions unfair. Jones agreed that
    during one appearance he had been shackled but insisted it was
    “for no reason.” There was no indication that he was currently
    shackled. The examination ended with the following exchange:
    “Q [by the prosecution]: You are not a dangerous man, are
    you?
    “A [by Jones]: No.”
    136
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    There was no objection, and all the answers were allowed to
    stand. Again, McClain chose to probe further and the following
    exchange took place:
    “Q [by McClain]: I mean it’s obvious the way they bring
    you in here with all those chains, they are trying to paint a
    picture you are some dangerous dude.
    “A [by Jones]: Exactly. . . . From my understanding, as far
    as this black thing around here [apparently referring to a stun
    belt] this is a zapper, and this is not supposed to be exposed to
    the jury. . . . I told the sheriff downstairs that the picture that
    they are painting, you know, for the jury on me, you know.
    “Q: Would inadvertently reflect on me?
    “A: Yes, exactly.”
    At this point the prosecutor said: “I would ask the court to
    admonish the jury that nothing concerning this shackling
    should reflect upon Mr. McClain.”
    McClain’s assertion of error fails on this record. A
    witness’s credibility may be impeached with evidence of felony
    convictions. (Evid. Code, § 788.) As relevant here, in evaluating
    credibility, the fact finder is also permitted to consider the
    witness’s demeanor while testifying and the manner in which he
    testifies; the character of his testimony; his opportunity to
    perceive any matter about which he testifies; the existence or
    nonexistence of a bias, interest, or other motive; and his attitude
    toward the action in which he testifies or toward the giving of
    testimony. (Evid. Code, § 780, subds. (a), (b), (d), (f), (j).) The vast
    majority of the cross-examination questions addressed these
    factors or followed up on statements that the witness gave
    during direct. To the extent some of the colloquy may have
    strayed off course, much was solicited by questions McClain
    137
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    himself asked, by his own comments, and by his other tactical
    choices. His only objection during the cross-examination was to
    questioning “beyond the scope.” He declined to ask that any
    answer be stricken and repeatedly gave his witness an
    opportunity to speak further. The court gave him very broad
    latitude in presenting the witness, permitting McClain to made
    declaratory and argumentative statements, comment on the
    proceedings and ask leading questions. No error appears.
    The prosecutor’s questions about a previous shackling
    were asked to probe Jones’s repeated assertions that he had
    been treated unfairly “every time [he] went through the court
    system.” The questions were unobjected to. At no time did the
    prosecutor suggest or allude to the fact that Jones was shackled
    during his testimony here.
    Finally, McClain argues the court erred by forcing Jones
    to appear in shackles. Because McClain never objected on this
    ground the claim is forfeited. (See Dykes, 
    supra,
     46 Cal.4th at
    p. 756; see also People v. Stankewitz (1990) 
    51 Cal.3d 72
    , 95.)
    The record does not indicate that any shackles or restraints
    were observable by the jury. Before Jones was called, there was
    some testimony and a discussion about exhibits, all of which
    took place in the jury’s presence. McClain was then asked if he
    was ready to present a witness or witnesses. The court inquired
    if a break was needed. The bailiff indicated that the witness was
    “outside in the hall,” and they were ready to proceed.
    Whereupon there was a “pause in the proceedings,” after which
    Jones was sworn and examinations began. It appears it was
    McClain who brought Jones’s restraints to the jury’s attention.
    On redirect examination, McClain pointed out that Jones was
    shackled. After Jones was dismissed, the court admonished the
    138
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    jury that the fact that Jones was “shackled and brought here
    with deputies has no reflection on Mr. McClain.”
    To the extent there was any irregularity, McClain cannot
    be heard to complain. “Under the doctrine of invited error, when
    a party by its own conduct induces the commission of error, it
    may not claim on appeal that the judgment should be reversed
    because of that error.” (Mary M. v. City of Los Angeles (1991) 
    54 Cal.3d 202
    , 212.) Moreover, it was unlikely McClain suffered
    prejudice from the shackling of his witness. “[A]lthough the
    limitation on physical restraints applies to defense witnesses as
    well as defendants, ‘the prejudicial effect of shackling defense
    witnesses is less consequential since “the shackled witness . . .
    [does] not directly affect the presumption of innocence.” ’ ”
    (People v. Allen (1986) 
    42 Cal.3d 1222
    , 1264–1265, quoting
    People v. Duran, supra, 16 Cal.3d at p. 288, fn. 4.) The court
    appropriately dispelled any potential prejudice from Jones’s
    appearance with its admonition following his testimony.
    3. Restriction on Closing Argument
    Newborn argues the court improperly restricted his
    attorney’s ability to argue the appropriate role of mercy in
    capital sentencing. The court committed no error.
    During closing argument, Newborn’s attorney addressed
    CALJIC No. 8.85, factor (k) evidence and explained that the jury
    should not simply weigh factors in aggravation and mitigation
    as if “keeping score.” He argued, “If you had only factors in
    aggravation and little, if any, factors in mitigation, something
    as little and simple as mercy, you could still vote life without
    parole.” The court sustained an objection that the argument
    misstated the law and suggested Newborn’s attorney “argue it
    another way.” Newborn’s attorney then quoted from CALJIC
    139
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    No. 8.85 that the jury could consider “ ‘any other circumstance
    which extenuates the gravity of the crime, even though it is not
    a legal excuse for the crime, and any other sympathetic or other
    aspect of the defendant’s character.’ ” He added, “That is what I
    am trying to say. And I am asking you to consider all of these
    things, including everything that everybody has said, including
    mercy; because mercy is twice blessed. That is an old saying and
    I hope you don’t find it corny.” The court overruled the
    prosecutor’s objection and explained that counsel was permitted
    to explain the concept of mercy. Newborn’s attorney continued,
    explaining that “twice blessed” means mercy “is blessed by the
    person receiving it, but it is also . . . a blessing to the person who
    gives it.”58
    Newborn argues the court erred when it sustained the
    prosecutor’s first objection, leaving jurors with a misimpression
    about the role of mercy in capital sentencing. Not so. Counsel’s
    argument was confusing and potentially suggested that the jury
    could ignore aggravating and mitigating factors and base its
    penalty decision entirely on a decision to exercise mercy. We
    disapproved an instruction along analogous lines in People v.
    Lewis (2001) 
    26 Cal.4th 334
    , 393. For similar reasons, we have
    repeatedly held it is not error for courts to omit the word
    “ ‘mercy’ ” in jury instructions. (People v. Ervine (2009) 
    47 Cal.4th 745
    , 801.) The court here did not err in sustaining an
    objection to argument that encouraged jurors to decide penalty
    based on “an emotional response to the mitigating evidence
    58
    The reference appears to be a paraphrase of Shakespeare:
    “The quality of mercy is not strain’d / It droppeth as the gentle
    rain from heaven / Upon the place beneath: it is twice blest; / It
    blesseth him that gives and him that takes.” (Shakespeare, The
    Merchant of Venice, act IV, scene 1, lines 184–187.)
    140
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    instead of a reasoned moral response.” (Id. at p. 802; see also
    People v. Boyce (2014) 
    59 Cal.4th 672
    , 707.) Moreover, despite
    the one sustained objection, the court permitted Newborn’s
    counsel to explore the concept of mercy in detail, and it was
    mentioned several times throughout the argument. The court’s
    ruling was an appropriate exercise of its discretion and not
    error. (See People v. Simon (2016) 
    1 Cal.5th 98
    , 147.)
    4. Instruction Issues
    a. Sentencing Discretion (CALJIC No. 8.88)
    McClain and Holmes contend CALJIC No. 8.8859 is
    unconstitutional in various respects. We have repeatedly
    59
    CALJIC No. 8.88 provided in part: “It is now your duty to
    determine which of the two penalties, death or confinement in
    the state prison for life without possibility of parole, shall be
    imposed on each defendant. [¶] After having heard all of the
    evidence, and after having heard and considered the arguments
    of counsel, you shall consider, take into account and be guided
    by the applicable factors of aggravating and mitigating
    circumstances upon which you have been instructed. [¶] An
    aggravating factor is any fact, condition or event attending the
    commission of a crime which increases its guilt or enormity, or
    adds to its injurious consequences which is above and beyond
    the elements of the crime itself. A mitigating circumstance is
    any fact, condition or event which as such, does not constitute a
    justification or excuse for the crime in question, but may be
    considered as an extenuating circumstance in determining the
    appropriateness of the death penalty. [¶] The weighing of
    aggravating and mitigating circumstances does not mean a
    mere mechanical counting of factors on each side of an
    imaginary scale, or the arbitrary assignment of weights to any
    of them. You are free to assign whatever moral or sympathetic
    value you deem appropriate to each and all of the various factors
    you are permitted to consider. In weighing the various
    circumstances you determine under the relevant evidence which
    penalty is justified and appropriate by considering the totality
    141
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    rejected similar claims. The instruction is legally sound and
    provides appropriate guidance on how the jury should approach
    its task in determining the appropriate penalty. “ ‘[T]he
    instruction is “not unconstitutional for failing to inform the jury
    that: (a) death must be the appropriate penalty, not just a
    warranted penalty [citation]; (b) [a sentence of life without the
    possibility of parole] is required, if it finds that the mitigating
    circumstances outweigh those in aggravation [citation] or that
    the aggravating circumstances do not outweigh those in
    mitigation [citation]; (c) [a sentence of life without the possibility
    of parole] may be imposed even if the aggravating circumstances
    outweigh those in mitigation [citation]; [and] (d) neither party
    bears the burden of persuasion on the penalty
    determination.” ’ ” (People v. Garton (2018) 
    4 Cal.5th 485
    , 523;
    see also People v. Linton, supra, 56 Cal.4th at p. 1211.)
    b. Failure to Define Life Without the Possibility of
    Parole
    McClain and Holmes argue the trial court had a sua
    sponte duty to instruct the jury on the meaning of life without
    the possibility of parole. We have previously rejected similar
    claims, explaining “the term has a plain meaning that does not
    require further explanation.” (People v. Watson (2008) 
    43 Cal.4th 652
    , 700.) Defendants do not persuade us to hold
    otherwise.
    of the aggravating circumstances with the totality of the
    mitigating circumstances. To return a judgment of death, each
    of you must be persuaded that the aggravating circumstances
    are so substantial in comparison with the mitigating
    circumstances that it warrants death instead of life without
    parole.”
    142
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    5. Challenges to Death Penalty Statutory Scheme
    Defendants raise a number of challenges to California’s
    death penalty law, each of which we have previously rejected.
    We decline to reconsider our holdings as follows:
    • Section 190.3, factor (a), which permits a jury to consider
    circumstances of the offense in sentencing, does not result
    in arbitrary or capricious imposition of the death penalty
    in violation of the Fifth, Sixth, Eighth, or Fourteenth
    Amendments to the United States Constitution. (People v.
    Simon, supra, 1 Cal.5th at p. 149.)
    • California’s death penalty scheme does not violate the
    federal Constitution for “ ‘failing to require . . . unanimity
    as to aggravating factors [and] proof of all aggravating
    factors beyond a reasonable doubt,’ ” and Apprendi v. New
    Jersey (2000) 
    530 U.S. 466
     and Ring v. Arizona (2002) 
    536 U.S. 584
     do not alter this conclusion. (People v. Lopez
    (2018) 
    5 Cal.5th 339
    , 370; see Lewis, 
    supra,
     43 Cal.4th at
    p. 533.)
    • The lack of written jury findings in the penalty phase does
    not violate due process or the Eighth Amendment, nor
    does it “deprive a capital defendant of meaningful
    appellate review.” (Winbush, supra, 2 Cal.5th at p. 490.)
    • “Intercase proportionality review, comparing defendant’s
    case to other murder cases to assess relative culpability, is
    not required by the due process, equal protection, fair
    trial, or cruel and unusual punishment clauses of the
    federal Constitution.” (Winbush, supra, 2 Cal.5th at p.
    490.)
    • The jury’s consideration of unadjudicated criminal activity
    as a factor in aggravation under section 190.3, factor (b)
    does not violate due process or the Fifth, Sixth, Eighth, or
    143
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    Fourteenth Amendments, or render the death sentence
    unreliable. (People v. Spencer (2018) 
    5 Cal.5th 642
    , 695.)
    • The use of adjectives in the list of mitigation factors,
    including the terms “extreme” and “substantial,” do not
    prevent the jury’s consideration of mitigation in violation
    of the Fifth, Sixth, Eighth, or Fourteenth Amendments to
    the United States Constitution. (People v. Mora and
    Rangel (2018) 
    5 Cal.5th 442
    , 519.)
    • The jury need not have been instructed that factors in
    mitigation could be considered solely for purposes of
    mitigation. (People v. Landry (2016) 
    2 Cal.5th 52
    , 123.)
    • The trial court was not required to delete inapplicable
    sentencing factors from CALJIC No. 8.85. (People v.
    Jackson (2016) 
    1 Cal.5th 269
    , 372.)
    • “ ‘California’s death penalty law does not violate equal
    protection by treating capital and noncapital defendants
    differently.’ ” (People v. Anderson (2018) 
    5 Cal.5th 372
    ,
    425.)
    • California’s death penalty statute does not violate
    international law. (People v. Anderson, supra, 5 Cal.5th at
    p. 425; see also Sánchez, supra, 63 Cal.4th at p. 488.)
    • “ ‘California’s death penalty law “adequately narrows the
    class of murderers subject to the death penalty” and does
    not violate the Eighth Amendment.’ ” (People v. Lopez,
    supra, 5 Cal.5th at p. 370.)
    • Finally, “California’s grant of discretion to prosecutors to
    decide in which cases to seek the death penalty is
    constitutional.” (People v. Gamache, 
    supra,
     48 Cal.4th at
    p. 406; see also People v. Rundle (2008) 
    43 Cal.4th 76
    , 199;
    People v. Tafoya (2007) 
    42 Cal.4th 147
    , 198.)
    144
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Opinion of the Court by Corrigan, J.
    C. Cumulative Error
    McClain and Holmes contend the cumulative prejudicial
    effect of errors in the guilt and penalty phases of their trials
    require reversal of their convictions and sentences of death. We
    have rejected the vast majority of their assignments of error. In
    the few instances in which we have found or assumed error, we
    have determined no prejudice resulted. Whether the claims are
    considered separately or together, no prejudicial error resulted
    at either stage of the proceedings.
    III. DISPOSITION
    We affirm the judgment.
    CORRIGAN, J.
    We Concur:
    CANTIL-SAKAUYE, C. J.
    GROBAN, J.
    JENKINS, J.
    O’ROURKE, J.*
    _______________________
    *
    Associate Justice of the Court of Appeal, Fourth Appellate
    District, Division One, assigned by the Chief Justice pursuant
    to article VI, section 6 of the California Constitution.
    145
    PEOPLE v. HOLMES, MCCLAIN and NEWBORN
    S058734
    Concurring Opinion by Justice Kruger
    The defendants in this case appeared without physical
    restraints at the guilt phase of their joint trial. At the first
    penalty phase, however, the trial court required all three
    defendants to wear stun belts “based on some activity.” The
    court then reimposed the stun belt order for the penalty retrial,
    in apparent response to a verbal outburst made by one of the
    defendants at the close of the first penalty trial. The majority
    upholds the order as within the trial court’s discretion. Based
    on the record before us, I cannot agree.
    I.
    A trial court, of necessity, has “broad power to maintain
    courtroom security and orderly proceedings.” (People v. Hayes
    (1999) 
    21 Cal.4th 1211
    , 1269.) But requiring a defendant to
    wear physical restraints at trial can pose significant risks of
    unfairness. For that reason, California law holds that “a
    defendant cannot be subjected to physical restraints of any kind
    in the courtroom while in the jury’s presence, unless there is a
    showing of a manifest need for such restraints.” (People v.
    Duran (1976) 
    16 Cal.3d 282
    , 290–291 (Duran).) The federal
    Constitution similarly “forbids the use of visible shackles during
    the penalty phase, as it forbids their use during the guilt phase,
    unless that use is ‘justified by an essential state interest’ — such
    as the interest in courtroom security — specific to the defendant
    on trial.” (Deck v. Missouri (2005) 
    544 U.S. 622
    , 624.) In People
    1
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Kruger, J., concurring
    v. Mar (2002) 
    28 Cal.4th 1201
    , we held that the same standard
    applies when a court requires the defendant to wear an
    electronic stun belt, “ ‘even if this device is not visible to the
    jury.’ ” (People v. Covarrubias (2016) 
    1 Cal.5th 838
    , 870.)1
    In determining whether there is a manifest need to
    physically restrain a particular defendant, “ ‘ “the trial court
    may ‘take into account the factors that courts have traditionally
    relied on in gauging potential security problems and the risk of
    escape at trial.’ ” ’ ” (People v. Covarrubias, supra, 1 Cal.5th at
    p. 870.) A trial court may not impose restraints merely because
    of the nature of a defendant’s charged crimes, even in capital
    cases. (People v. Bryant, Smith and Wheeler (2014) 
    60 Cal.4th 335
    , 389–390 [“facts that the defendant is an unsavory character
    and charged with a violent crime are not sufficient to support a
    finding of manifest need”]; People v. Hawkins (1995) 
    10 Cal.4th 920
    , 944 [the defendant’s “record of violence, or the fact that he
    is a capital defendant, cannot alone justify his shackling”]; see
    also Duran, supra, 16 Cal.3d at p. 293 [that the “defendant was
    a state prison inmate who had been convicted of robbery and
    was charged with a violent crime did not, without more, justify
    the use of physical restraints”].) “ ‘The imposition of physical
    restraints without evidence of violence, a threat of violence, or
    other nonconforming conduct is an abuse of discretion.’ ”
    (Covarrubias, at p. 871.) Finally, “ ‘[a]lthough the court need
    not hold a formal hearing before imposing restraints, “the record
    1
    This case was tried before People v. Mar. But “[e]ven
    though Mar was the first California opinion to hold Duran’s
    manifest need standard applicable to stun belts, we have
    applied the standard to cases tried before Mar was decided.”
    (People v. Jackson (2014) 
    58 Cal.4th 724
    , 739.)
    2
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Kruger, J., concurring
    must show the court based its determination on facts, not rumor
    and innuendo.” ’ ” (Ibid.)
    The question now before us is whether the trial court made
    the requisite individualized determination of need with respect
    to each of the three defendants in this case, and whether those
    determinations were based on substantial evidence in the
    record. (People v. Gamache (2010) 
    48 Cal.4th 347
    , 368.) Our
    task is complicated by the fact the trial court never made
    express findings of manifest need, nor otherwise explained the
    basis for its decision to impose restraints on each of the
    defendants. The only indications of the court’s thinking in the
    record are elliptical and not clearly rooted in security concerns.
    After allowing the defendants to appear unrestrained at the
    guilt phase, the trial court ordered them to wear stun belts at
    the penalty phase “based on some activity.” The court did not
    explain what the “activity” in question was. The court then
    announced its intention to reimpose the order at the conclusion
    of the first penalty trial, which had ended in a hung jury. When
    the prosecutor declared he would retry the penalty phase,
    defendant Newborn gave him the finger and cursed at him in
    vulgar terms. In response, the court noted: “We will have to
    probably use the restraints again.” The court reiterated its
    intent in the following court session, when Newborn’s counsel
    moved for severance from McClain because of admissions and
    profanities during McClain’s guilt phase testimony. The trial
    court responded: “And then they shouldn’t be saddled with your
    client’s loudmouth remarks last week. They are all together.
    They told the court this and the jury, they’re P-9’s, they’re damn
    proud of it. They won’t be severed. . . . I am not mad at you. I
    am not happy with their attitude. They are not going to run this
    3
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Kruger, J., concurring
    court. I am going to run this trial. Have you got the word? And
    you will be belted.”
    In the absence of any express findings or explanation for
    the basis of the stun belt order, the majority does the only thing
    it can do, which is to comb the record for facts that would
    support an inference that the trial court made the necessary
    determinations of manifest need. The majority ultimately finds
    what it is looking for in Newborn’s vulgar statement to the
    prosecutor and other similar instances of what it terms
    “nonconforming behavior” by the other defendants. Holmes, the
    majority emphasizes, had also reacted inappropriately at an
    earlier stage of the proceedings, responding to the reading of the
    guilty verdicts by saying, “ ‘Fuck you, you motherfuckers. P-9
    rules.’ ” (Maj. opn., ante, at p. 111.) (The majority also suggests
    that Holmes subjected the jurors to other “ad hominem” attacks
    (id. at p. 113), but no other verbal outbursts by Holmes appear
    on the record.2) And as for McClain, the majority says he had
    “threatened a witness and made a lewd gesture toward the
    jury.” (Ibid.) The lewd gesture is supported by the record, but
    the witness-threatening is not.3 The record instead shows that
    2
    The confusion stems from a comment made by counsel
    rather than anything Holmes said or did: When seeking
    severance for purposes of the penalty retrial, one of the defense
    lawyers referred to Holmes’s response to the guilty verdict as an
    attack on jurors’ intelligence, values, and sexual perversion.
    This was a florid description of Holmes’s guilty-verdict outburst,
    not a reference to additional incidents.
    3
    The majority asserts that McClain said, “ ‘I’ll kill you’ ” to
    a witness as he was leaving the stand. (Maj. opn., ante, at
    p. 111.) McClain’s words to the witness do not appear on the
    record. And while the witness accused McClain of threatening
    him, standby counsel testified that McClain had instead called
    the witness a “dick head.” The trial court ultimately made no
    4
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Kruger, J., concurring
    McClain had disrupted the guilt phase proceedings to accuse a
    witness of lying, flipped off the jury when the guilty verdicts
    were announced, and cursed at the prosecutor in a hearing
    shortly after the first penalty phase ended in mistrial.
    At bottom, with “ ‘ “rumor and innuendo” ’ ” stripped away
    (People v. Covarrubias, supra, 1 Cal.5th at p. 871), what we have
    is a series of seemingly isolated incidents in which one or
    another defendant spoke out of turn in the courtroom, using
    vulgar and highly inappropriate terms. The statements and
    gestures were directed at other individuals in the courtroom, but
    there is no indication in the record that the trial court regarded
    the incidents as threatening. To the contrary, at one point the
    trial court observed that the defendants’ behavior was not so
    uncommon and the jurors did not appear shocked, having heard
    other people use profanity on the stand. As for defendant
    Holmes, the Attorney General defends the trial court’s decision
    to admit a videotape of Holmes’s outburst as evidence against
    all three defendants by vigorously denying that Holmes’s
    statement to the jury was threatening; a viewing of the
    finding that McClain threatened the witness, nor did it
    otherwise indicate it regarded the incident as presenting a
    security concern. Instead, the court explained to McClain:
    “Listen, I am not going to chastise you. You bring things on
    yourself sometimes because you don’t really understand the
    proceedings. Anything you say to any witness can come back to
    hurt you. . . . I know sometimes you just do it because you are
    unsophisticated or some other reason, but you can’t do it. It will
    come back.” In any event, the incident occurred during the
    penalty retrial — well after the trial court decided to impose
    restraints — and so could not have played any part in the trial
    court’s determination of manifest need.
    5
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Kruger, J., concurring
    videotape, which is in the record before us, supports the
    Attorney General’s characterization.
    The law is clear that, at least standing alone, isolated
    verbal outbursts — even “expletive-laden” ones (maj. opn., ante,
    at p. 113) — do not establish manifest need to restrain
    defendants by means of a device capable of delivering
    “debilitating electric shock” (People v. Mar, supra, 28 Cal.4th at
    p. 1204). As we said in Mar, “a stun belt may not properly be
    used, over a defendant’s objection, to deter a defendant from
    making verbal outbursts that may be detrimental to the
    defendant’s own case.” (Id. at p. 1223, fn. 6.)
    It is true, of course, that our cases have said that a
    determination of manifest need for restraints can be based on a
    showing of “ ‘violence, a threat of violence, or other
    nonconforming conduct.’ ” (People v. Covarrubias, supra, 1
    Cal.5th at p. 871, italics added.) The majority opinion places
    considerable emphasis on that final phrase in upholding the
    trial court’s order based on the defendants’ verbal misbehavior.
    But the reference to “nonconforming conduct” in our cases is not
    a catchall that sweeps in every instance of vocalized disrespect.
    Rather, as our precedent makes clear, the type of nonconforming
    conduct sufficient to justify restraint must be the sort of conduct
    indicative of a current risk of escape or physical danger or
    behavior that “ ‘would disrupt the judicial process if
    unrestrained.’ ” (People v. Cox (1991) 
    53 Cal.3d 618
    , 651.)
    To appreciate the difference between the “nonconforming
    conduct” in this record and the type of showing our precedent
    requires, consider prior cases. We have upheld trial courts’
    restraint orders where there is “evidence that the defendant has
    threatened jail deputies, possessed weapons in custody,
    6
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Kruger, J., concurring
    threatened or assaulted other inmates, and/or engaged in
    violent outbursts in court.” (People v. Lewis and Oliver (2006)
    
    39 Cal.4th 970
    , 1031; see also People v. Williams (2015) 
    61 Cal.4th 1244
    , 1259 [same]; People v. Young (2019) 
    7 Cal.5th 905
    ,
    934 [same].) We have also pointed to cases involving escape
    efforts and violent threats. (People v. Mar, supra, 28 Cal.4th at
    pp. 1216–1217.) By contrast, we have found manifest need for
    restraints lacking when circumstances involved a significant
    “undercurrent of tension and charged emotion on all sides,” but
    not “a single substantiation of violence or the threat of violence
    on the part of the accused.” (People v. Cox, 
    supra,
     53 Cal.3d at
    p. 652.) In Mar, we similarly determined that the trial court’s
    concern that defendant’s “ ‘strong emotions’ ” might cause him
    to get “ ‘crossways with somebody in the security detail,’ ”
    without more, was insufficient to establish manifest need for a
    stun belt. (Mar, at pp. 1211, 1222.)
    Again, though here the defendants’ individual remarks
    were vulgar and inappropriate, the record does not establish
    that these isolated acts either “posed the type of serious security
    threat at trial that would justify the imposition of restraints” or
    that “the trial court actually determined” they did. (People v.
    Mar, supra, 28 Cal.4th at p. 1220; see People v. Soukomlane
    (2008) 
    162 Cal.App.4th 214
    , 232.) To the extent the trial court
    revealed its reasons on the record, its concern seemed to be
    primarily with the impropriety of the defendants’ various
    inappropriate remarks, rather than with any security risks they
    posed. In the end, nothing in the court’s comments “indicates it
    was aware that the procedural and substantive requirements
    established in Duran governed its consideration and
    determination” to use stun belts. (Mar, at p. 1222.)
    7
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Kruger, J., concurring
    Ultimately the trial court’s imposition of the stun belt on
    defendant McClain may have been justified for a reason the
    majority notes but does not rely on: The court found that before
    the guilt phase, McClain had attempted to attack an inmate
    with a shank. (Maj. opn., ante, at p. 111.) Apparently, the trial
    court did not think the incident established a need to restrain
    McClain at the guilt phase trial, but it may well be that this
    violent episode played a role in the court’s decision to restrain
    McClain at the penalty phase. The matter is unclear on this
    record. And the record contains no similar evidence of violence
    or threats of violence by Newborn or Holmes.
    The majority opinion suggests the trial court was entitled
    to consider the defendants’ verbal outbursts in view of the
    “collective risk” posed by “volatile defendants” associated with a
    violent gang and convicted of violent crimes. (Maj. opn., ante, at
    p. 114.)      The majority concludes that “[u]nder these
    circumstances there may be well-founded concern that
    disruptive conduct by one will spur an outburst and escalation
    by the others.” (Ibid.) Perhaps. But if, after defendants
    appeared unrestrained at the guilt phase, the trial court
    developed new concerns about their “volatility” or other
    courtroom dynamics at the penalty phase, the court should have
    made those concerns known on the record. The trial judge did
    comment on the defendants’ attitudes and what he referred to
    as their “loudmouth” remarks. The trial court clearly regarded
    the defendants as posing a threat to the dignity of the
    courtroom. But it did not make a record, specific to each
    defendant, regarding any threat they posed to its security. (See
    Duran, supra, 16 Cal.3d at pp. 291, 293; People v. Mar, supra,
    28 Cal.4th at p. 1220.) On the record we have, I would not
    uphold the trial court’s stun belt order.
    8
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Kruger, J., concurring
    II.
    Whether the trial court adequately justified its use of
    restraints is not the end of the analysis; reversal is required only
    if the defendants were prejudiced by the error. (People v.
    Jackson, 
    supra,
     58 Cal.4th at p. 744.) Our cases have held that
    the unjustified use of restraints is harmless when the jury is not
    aware of them and there is no indication the restraint hampered
    the defense in any other way. (Id. at p. 740.) Here, there is no
    claim that the stun belts were ever visible to the jury or that
    they hampered the defense. But though the jury could not see
    the stun belts, it was made aware of them.
    A bailiff testifying as a witness described a threat made by
    defendant McClain while the bailiff was placing the stun belts
    on the defendants. The witness began his testimony by
    explaining that “[e]very morning as we come in, we put an
    electronic device on each one of the defendants.” Counsel for
    Holmes interrupted, asking the court to admonish the jury that
    “they should not use the electronic device against any of the
    clients; it is just basically a procedure the sheriffs use in these
    types of cases.” In response, the trial court told the jury: “The
    court makes a decision, based on things the court knows,
    whether or not to wear this device. It is a security device to
    assure tranquility in the court, security for everyone. It does not
    mean that they are guilty or not guilty.” Resuming his
    questioning, the prosecutor said, “So you put the security device
    on the defendants, right? . . . Ones who have been convicted of
    murder?” The bailiff then described putting the security devices
    on Holmes, Newborn, and McClain.
    The jury would later hear more from the trial court on the
    subject of stun belts during an exchange with defendant
    9
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Kruger, J., concurring
    McClain. During his closing argument, McClain stated that his
    argument would be more “boisterous” “if I didn’t have this belt
    on.” The court remarked that “you are wearing a belt because
    you have acted up in this courtroom. So don’t tell this jury
    without that belt what you might do.”
    It is true, as the majority says (maj. opn., ante, at p. 115)
    that the jury was not told, in so many words, that the defendants
    were wearing electronic stun belts. But the jurors certainly
    might have surmised something of the sort from the witness’s
    reference to “an electronic device” the bailiffs placed on the
    defendants each day. The trial court’s limiting instruction then
    had the perhaps unintentional effect of adding to the jury’s
    awareness of the device. The standard admonishment directs
    jurors “ ‘not speculate as to why restraints have been used’ ” and
    that restraints may not be considered “ ‘for any purpose.’ ”
    (People v. Lightsey (2012) 
    54 Cal.4th 668
    , 721, fn. 24 [describing
    CALJIC No. 1.04].) The instruction the trial court gave instead
    told the jurors that the devices defendants wore were for
    courtroom security and suggested the court knew of undisclosed
    reasons warranting their use, as opposed to expressly
    discouraging speculation about what those reasons were. 4 The
    4
    The majority faults defendants for failing to request a
    different instruction. (Maj. opn., ante, at p. 115.) But the
    defense did, in fact, request a different instruction from the one
    the trial court gave. Perhaps a further request might have
    prompted the trial court to clarify the instruction by noting that
    the devices were not to be used for any purpose, as opposed to
    for purposes of guilt — which was no longer an issue at the
    penalty phase. But it is not clear what additional comments
    could have dispelled the impression left by the trial court’s
    description of the devices or their purpose. Defendants were
    under no obligation to ask the trial court to put the cat back in
    the bag. (See People v. Perez (2020) 
    9 Cal.5th 1
    , 7–8 [parties are
    10
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Kruger, J., concurring
    trial court would later again allude to those reasons when it told
    McClain “you are wearing a belt because you acted up in this
    courtroom.”
    Ultimately, however, under our precedent, I do not think
    these references to the stun belts constitute a basis for reversing
    the judgment. (See People v. Jackson, 
    supra,
     58 Cal.4th at
    pp. 740–741; accord, People v. Bryant, Smith and Wheeler,
    supra, 60 Cal.4th at pp. 472–473 (conc. opn. of Liu, J.)
    [criticizing People v. Jackson, but recognizing it as binding
    precedent].) Even when a trial court fails to adequately justify
    the use of physical restraints, we have said that a juror’s brief
    viewing of restraints generally does not give rise to prejudicial
    error. (People v. Ervine (2009) 
    47 Cal.4th 745
    , 774 [unjustified
    shackling harmless even if a juror glimpsed the restraint during
    voir dire]; Duran, supra, 16 Cal.3d at p. 287, fn. 2 [seeing the
    defendant in shackles “for only a brief period either inside or
    outside the courtroom” generally does not constitute prejudicial
    error].) Although there are limits to what jury instructions can
    do in this context, we have also generally held that jury
    instructions can at least temper any prejudice that might
    otherwise result from awareness of a defendant’s physical
    restraints. (See People v. Pride (1992) 
    3 Cal.4th 195
    , 253–254
    [assuming the jury was able to follow a penalty phase
    instruction to disregard visible restraints]; but cf. People v.
    McDaniel (2008) 
    159 Cal.App.4th 736
    , 747 & fn. 9 [a blanket
    presumption that an admonition renders harmless the
    excused from raising issues that would have been futile]; People
    v. Seumanu (2015) 
    61 Cal.4th 1293
    , 1328 [failure to request
    admonition does not forfeit an issue when it would not have
    cured the harm caused].)
    11
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Kruger, J., concurring
    unjustified use of restraints would undermine the trial court’s
    obligation to find the restraints are necessary].)
    Again, there is no indication the jury in this case ever saw
    the restraints.   In visible shackling cases, we are often
    concerned with the “visual, psychological, and emotional
    response” a juror might have to seeing a defendant “restrained
    and differentiated from everyone else.” (People v. McDaniel,
    supra, 159 Cal.App.4th at p. 746; see Deck v. Missouri, 
    supra,
    544 U.S. at p. 630.) Here, that particular concern was not
    present; the stun belts had no visual impact on the jurors, even
    in passing. The jury instead heard about the stun belts in
    passing, during brief and nonspecific exchanges in a penalty
    retrial that spanned a month and involved testimony from
    nearly 70 witnesses. (Cf. Stephenson v. Neal (7th Cir. 2017) 
    865 F.3d 956
    , 959 [finding the unjustified use of a visible stun belt
    prejudicial when the brevity of the penalty phase may have
    increased the negative impact of the visible restraint].) Further,
    the trial court did give a limiting instruction to the jury, albeit
    a flawed one. (Cf. Duran, supra, 16 Cal.3d at p. 296 [finding the
    unjustified and unadmonished use of restraints prejudicial
    when considered cumulatively with other trial errors].)
    McClain argues that the trial court’s comment on his stun
    belt during his closing argument added to the prejudice he
    suffered. It is true the court’s remarks called additional
    attention to the restraint. But then again, so did McClain’s
    comments, to which the court was responding. The prosecutor
    made no mention of the restraint, and the issue arose only
    briefly. Under our cases, reversal is not warranted. 5
    5
    Pointing to his remark at trial that his closing argument
    would have been more “boisterous” without the stun belt,
    12
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Kruger, J., concurring
    III.
    I raise one final point about the trial court’s use of physical
    restraints: The court’s failure to consider manifest need did not
    appear to be an isolated event. McClain claims the trial judge
    erred when he required McClain’s witness, Clarence Jones, to
    appear in court wearing visible restraints. The Attorney
    General acknowledges that the “limitation on physical
    restraints applies to defense witnesses as well as defendants”
    (People v. Allen (1986) 
    42 Cal.3d 1222
    , 1264–1265), but asserts
    that McClain forfeited this argument because he did not object
    to Jones’s restraints at trial. The majority agrees. Respectfully,
    I do not.
    McClain presented testimony from Jones, a fellow inmate,
    to refute evidence about McClain’s attempt to attack an inmate
    in the jail. During cross-examination, the prosecutor drew
    attention to the fact that Jones had been shackled in a previous
    criminal trial because of his outbursts towards the court and
    deputies. Immediately after the prosecutor’s questioning,
    McClain stated on redirect: “I mean it’s obvious the way they
    bring you in here with all those chains, they are trying to paint
    McClain also suggests it is reasonable to assume the stun belt
    impaired his ability to think clearly and maintain a positive
    demeanor before the jury. Rather than assume impairment,
    however, our cases have required some affirmative indication in
    the record that a stun belt had an adverse impact on the defense.
    (People v. Jackson, 
    supra,
     58 Cal.4th at p. 740; accord, People v.
    Mar, supra, 28 Cal.4th at p. 1225.) Aside from McClain’s
    remark about being more “boisterous,” the record in this case
    contains no indication that the stun belt had any impact on
    McClain’s ability to effectively question witnesses, make
    objections, or present his closing argument to the jury.
    13
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Kruger, J., concurring
    a picture you are some dangerous dude?” Jones answered:
    “Exactly. That is what I said downstairs when I come through
    here. From my understanding, as far as this black thing around
    here, this is a zapper, and this is not supposed to be exposed to
    the jury.” McClain observed that the restraints on Jones were
    meant to reflect badly on McClain. The trial court later
    admonished the jury that the fact that Jones was shackled and
    brought in by deputies “has no reflection on Mr. McClain. You
    called him as your witness. You take your witnesses as they are,
    not what they are, not how they are dressed.”
    The majority finds McClain forfeited his claim of error
    because he did not object to Jones’s restraints at trial. But there
    is no indication in the record that McClain ever had an
    opportunity to do so. It is unclear whether McClain was told
    Jones would be required to wear restraints before Jones
    appeared in the courtroom. And once Jones was on the stand,
    McClain did object in a manner, remarking that the restraints
    reflected poorly on him.
    As for the merits, the trial judge was obligated to make a
    finding of manifest need for Jones’s restraints. (Duran, supra,
    16 Cal.3d at p. 291; People v. Allen, supra, 42 Cal.3d at
    pp. 1264–1265 [recognizing that the rules established by Duran
    apply to defense witnesses].) Much as in the case of defendants
    themselves, there is nothing in the record to indicate that the
    trial court made the necessary finding.
    The majority concludes the record lacks evidence that
    Jones’s restraints were visible, and suggests it was McClain who
    brought the restraints to the jury’s attention, making revelation
    of the restraints invited error. I read the record differently:
    Although there was a “ ‘pause’ ” in the proceedings before Jones
    14
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Kruger, J., concurring
    entered the courtroom (maj. opn., ante, at p. 139), the bailiffs
    had stated there was no need to take a break before bringing
    Jones in to testify and the jury was not dismissed before Jones
    was escorted into the courtroom in shackles and a stun belt.
    McClain’s comment that Jones was brought to the courtroom “in
    all those chains,” and Jones’s comment that he thought the jury
    was not supposed to see the stun belt, suggest that the jury did
    indeed see the restraints.
    The trial court’s errors with respect to Jones were of a
    piece with its errors respecting the restraints on defendants
    Holmes, McClain, and Newborn. In each case, the law required
    a finding of manifest need for restraints based on record
    evidence, and in each case the trial court ordered the restraints
    without either making explicit findings or making implicit
    findings that are discernable on this record. While the errors
    may not have been prejudicial under our precedent, I would
    forthrightly acknowledge that the trial court did not make an
    adequate record to justify the use of restraints at the penalty
    phase of this trial. Thus, while I join the majority opinion in
    other respects, on the issue of restraints I concur in the
    judgment only.
    KRUGER, J.
    15
    PEOPLE v. HOLMES, MCCLAIN AND NEWBORN
    S058734
    Dissenting Opinion by Justice Liu
    The court today affirms a judgment of death for three
    Black men that followed a trial in which the prosecutor used half
    of his peremptory strikes to remove Black women from the jury
    box. At the time of the defense’s motion objecting to the
    prosecutor’s strikes, the prosecutor had used six of twelve
    peremptory challenges to dismiss two-thirds of the Black women
    called into the box, eliminating them at a rate nearly twice their
    representation among jurors who had been questioned. These
    figures “are important and reflect an obvious disparity.” (Maj.
    opn., ante, at p. 45.) Yet today’s opinion holds that defendants
    failed to establish a prima facie case of discrimination in light of
    the fact that the seated jury included four Black women.
    We have said that “ ‘acceptance of one or more black jurors
    by the prosecution’ ” may “ ‘help lessen the strength of any
    inference of discrimination that the pattern of the prosecutor’s
    strikes might otherwise imply.’ ” (People v. Johnson (2019) 
    8 Cal.5th 475
    , 508.) But the “ ‘low threshold’ showing required for
    Batson’s first step . . . is satisfied simply by evidence sufficient
    to permit us to draw an inference that discrimination may have
    occurred.” (People v. Battle (2021) 
    11 Cal.5th 749
    , 773 (Battle).)
    Here, the jury’s final composition reflected the
    prosecutor’s pattern of strikes and was reached only after the
    trial court warned counsel about the appearance of impropriety
    in their strikes. Considered in context, the final composition
    1
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    does little to lessen the inference that the prosecution sought to
    limit the number of Black women — a group well known to be a
    frequent target of prosecutors’ peremptory strikes in capital jury
    selection. Defendants have met the low bar for establishing a
    prima facie case under Batson v. Kentucky (1986) 
    476 U.S. 79
    (Batson). In reaching a contrary judgment, today’s opinion
    weakens the role of appellate review in rooting out improper
    discrimination in jury selection.
    Today’s opinion also holds that the trial court did not err
    in ordering each defendant to wear a stun belt — “a device that
    . . . delivers an eight-second-long, 50,000-volt, debilitating
    electric shock when activated by a transmitter controlled by a
    court security officer.” (People v. Mar (2002) 
    28 Cal.4th 1201
    ,
    1204 (Mar).) I agree with Justice Kruger that no “ ‘manifest
    need’ ” (id. at p. 1217, italics omitted) appears in this record for
    ordering a shock device whose activation “ ‘causes temporary
    debilitating pain’ ” and “ ‘may also cause immediate and
    uncontrolled defecation and urination,’ ” “ ‘may leave welts on
    the wearer’s skin requiring as long as six months to heal,’ ” and
    “ ‘may cause some wearers to suffer heartbeat irregularities or
    seizures’ ” (id. at p. 1215). I do not agree, however, that this
    unlawful use of the stun belts was harmless beyond a reasonable
    doubt at the penalty retrial.
    I respectfully dissent.
    I.
    During jury selection in 1995, the prosecutor exercised its
    first twelve peremptory challenges to dismiss six Black women,
    three White women, one Filipino man, one Hispanic man, and
    one Hawaiian woman. Defense counsel raised an objection
    under Batson and People v. Wheeler (1978) 
    22 Cal.3d 258
    , noting
    2
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    that the prosecution had struck six Black women. The trial
    court asked the prosecutor if he wanted to respond. The
    prosecutor asked whether the trial court would find a prima
    facie case. When the court said it would not, the prosecutor
    declined to state his reasons for the strikes.
    After the court’s ruling, the prosecutor used four more
    peremptory challenges, striking one Hispanic man, one
    Hispanic woman, and two more Black women. The trial judge
    then suggested he would excuse another prospective juror for
    cause based on her views about the death penalty and called
    counsel into chambers. He explained why he would prefer that
    defense counsel not proceed with additional questions of the
    prospective juror:      “I think the court has asked enough
    questions. [Defense counsel] wants to ask questions. I don’t
    think it is appropriate. I have been through this so many times
    and you have, too. . . . You can ask questions, but I can feel her
    heart and I don’t think she wants to [impose the death penalty].
    It doesn’t mean she couldn’t or wouldn’t, but she is saying in
    effect that she really couldn’t do that.” Defense counsel agreed
    to submit on the issue.
    The judge continued: “On that same note, the defense has
    accepted several, three times. There is seven Black people left
    on the jury. We have three defendants, Black, on trial for their
    life. The defendants have taken off some White people. I watch
    the people’s reaction in the audience. You do not see this. In
    my court I want the appearance of fairness. I want to put you
    on notice: Be very careful, both of you. Be very careful. I had
    the opportunity one time sitting here and there were three
    Justices that came down to visit me and they came in chambers
    and commented on that. This is not apparent, but you have to
    be very careful. The appearance of justice is as important as
    3
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    justice. I think your peremptories were proper, but you are
    giving the appearance. You are down to the short straws here.
    I think most of those people had some problems, people in jail
    and things. But for justice for everyone I want you to think
    about what we are doing here. I am not admonishing you; I am
    just saying I am very sensitive about that on both sides.”
    Once back in session, the court excused the prospective
    juror for cause. Defense counsel struck an additional juror, and
    then all counsel accepted the jury comprised of two White men,
    three White women, one Hispanic man, one Hispanic woman,
    one Black man, and four Black women.
    II.
    To establish a prima facie case of a Batson violation, the
    moving party must point to sufficient facts and circumstances to
    “raise an inference” that the prosecutor exercised peremptory
    challenges to exclude venirepersons on an impermissible basis.
    (Batson, 
    supra,
     476 U.S. at p. 96.) This is a “low threshold.”
    (People v. Scott (2015) 
    61 Cal.4th 363
    , 384.) An inference is
    simply “a logical conclusion based on a set of facts.” (People v.
    Lancaster (2007) 
    41 Cal.4th 50
    , 74.) We review the record
    independently “where, as here, the trial predated Johnson [v.
    California (2005) 
    545 U.S. 162
    ] and it is not clear from the
    record whether the trial court analyzed the Batson/Wheeler
    motion with this low threshold in mind.” (Scott, at p. 384.)
    “[A] ‘pattern’ of strikes” against a group may “give rise to
    an inference of discrimination.” (Batson, 
    supra,
     476 U.S. at
    p. 97.) The moving party “may show that his opponent has
    struck most or all of the members of the identified group from
    the venire, or has used a disproportionate number of his
    peremptories against the group.” (People v. Bell (2007) 40
    4
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    Cal.4th 582, 597 (Bell), disapproved on another ground in People
    v. Sánchez (2016) 
    63 Cal.4th 665
    , 686, fn. 13.) At the time of the
    defense’s motion, the prosecutor had eliminated two-thirds of
    the Black women — six out of nine — seated in the box and had
    used half of his peremptories — six out of twelve — to strike
    Black women.
    An elimination rate of two-thirds “is often sufficient on its
    own to make a prima facie case at Step One.” (Shirley v. Yates
    (9th Cir. 2015) 
    807 F.3d 1090
    , 1101 [defendant raised an
    inference of discrimination “more than sufficient to meet his
    ‘minimal’ burden” where two-thirds of the Black venirepersons
    not removed for cause were struck by the prosecutor].) And it is
    higher than rates that courts have found sufficient to support
    an inference of discrimination. (See, e.g., Fernandez v. Roe (9th
    Cir. 2002) 
    286 F.3d 1073
    , 1078 (Fernandez) [57 percent, noting
    that “[i]n a number of other cases, with less striking disparities,
    we have assumed the existence of a prima facie case”]; Turner v.
    Marshall (9th Cir. 1995) 
    63 F.3d 807
    , 812 (Turner) [56 percent],
    overruled on other grounds in Tolbert v. Page (9th Cir. 1999) 
    182 F.3d 677
    , 685 (en banc).)
    The prosecutor’s use of 50 percent of his strikes against
    Black women is likewise in the range that supports a prima facie
    case. (See, e.g., Price v. Cain (5th Cir. 2009) 
    560 F.3d 284
    , 287
    [defendant carried his “light burden” where prosecutor used six
    of twelve peremptory challenges to strike Black prospective
    jurors, defendant was Black, and the resulting jury was all
    White]; Fernandez, 
    supra,
     286 F.3d at p. 1078 [29 percent strike
    rate with 57 percent elimination rate was “enough,” “standing
    alone, . . . to raise an inference of racial discrimination”].) And
    it is significantly higher than rates we have found insufficient
    to raise an inference of discrimination in similar cases. (See,
    5
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    e.g., Battle, supra, 11 Cal.5th at p. 775 [18 percent]; People v.
    Clark (2011) 
    52 Cal.4th 856
    , 904–905 [20 percent]; People v.
    Welch (1999) 
    20 Cal.4th 701
    , 745 [27 percent].) It is true that
    this court in People v. Rhoades (2019) 
    8 Cal.5th 393
     (Rhoades)
    found no prima facie case where the prosecutor used four out of
    eight strikes against Black women. But the defendant in
    Rhoades was White, and the court said the record disclosed
    “readily apparent, race-neutral grounds” for the prosecutor’s
    challenges. (Id. at p. 430.) Here, all three defendants are Black,
    and the record does not disclose readily apparent, race-neutral
    reasons to excuse the prospective jurors at issue.
    Moreover, the statistical disparity remains stark when we
    “compare[] the proportion of a party’s peremptory challenges
    used against a group to the group’s proportion in the pool of
    jurors subject to peremptory challenge.” (Bell, supra, 40 Cal.4th
    at p. 598, fn. 4.) At the time of the motion, Black women were
    26 percent of the jurors (nine out of 34) subject to peremptory
    challenges, yet the prosecutor had used half of his challenges to
    strike them. “[A] challenge rate nearly twice the [representation
    in] the venire strongly supports a prima facie case under
    Batson.” (U. S. v. Alvarado (2d Cir. 1991) 
    923 F.2d 253
    , 256.)
    In sum, at the time of the Batson motion, the prosecutor’s
    strikes of six Black women eliminated two-thirds of the Black
    women seated in the box, and they comprised half of the
    prosecutor’s total strikes, a rate nearly twice the proportion of
    Black women among jurors subject to challenge. These facts,
    “standing alone, are enough to raise an inference of racial
    discrimination.” (Fernandez, supra, 286 F.3d at p. 1078; see
    ibid. [finding prima facie case where prosecutor used four of
    seven strikes to eliminate four of fourteen Hispanic jurors,
    where Hispanic jurors comprised 12 percent of the jurors subject
    6
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    to strike]; see People v. Sánchez (2016) 
    63 Cal.4th 411
    , 439
    [“[c]onsidered alone,” prosecutor’s use of four of ten challenges
    to strike four of six Hispanic jurors, where Hispanic jurors
    comprised 19 percent of the jurors subject to strike, may
    “suggest a discriminatory purpose”].)
    On appellate review, “[p]ostruling developments can
    provide a basis for denying a Batson claim . . . if the totality of
    the record, including such developments, permits no reasonable
    inference that the prosecutor acted with discriminatory intent.”
    (People v. Reed (2018) 
    4 Cal.5th 989
    , 1022 (Reed) (dis. opn. of Liu,
    J.).) None of the surrounding circumstances here refute the
    inference arising from these figures. After the trial court found
    no prima facie case, the prosecutor used two of his next four
    peremptory challenges to remove Black women from the jury.
    Thus, the rate at which the prosecutor used strikes against
    Black women did not change after the Batson/Wheeler motion.
    The prosecutor’s pattern of strikes also continued during the
    selection of alternate jurors, where he used three of seven
    peremptories to remove three of four Black women subject to
    challenge.
    Over the entire jury selection process, the prosecutor
    struck 11 of the 16 Black women he could have struck, nearly 70
    percent. This rate of strikes against Black women was nearly
    three times the proportion of Black women among jurors subject
    to challenge (16 out of 64 total jurors, or 25 percent). This is far
    more pronounced than what we have found acceptable in the
    past. (See Reed, supra, 4 Cal.5th at p. 1000 [finding no prima facie
    case where prosecutor struck Black jurors at a rate of 44 percent,
    “barely” more than their 34 percent representation in the venire];
    People v. Thomas (2012) 
    53 Cal.4th 771
    , 796 (Thomas)
    [prosecutor’s use of 37 percent of challenges against African-
    7
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    Americans who comprised 26 percent of jurors called into the box
    was “not significant enough, in itself, to suggest discrimination”].)
    We have recognized several other factors as “ ‘especially
    relevant’ ” to determining “whether the record supports an
    inference the prosecution excused one or more of the African-
    American prospective jurors because of their race.” (Rhoades,
    supra, 8 Cal.5th at p. 429.) Among these is “ ‘whether the
    defendant is a member of [the identified] group.’ ” (Ibid.) The
    court says this “ ‘especially relevant’ ” factor is not implicated in
    this case because all three defendants are Black men and the
    defense’s Batson challenge concerned the prosecutor’s strikes of
    Black women. (Maj. opn., ante, at p. 43, fn. 18.) But it blinks
    reality to ignore the “ ‘ “concurrence of racial and sexual
    identity” ’ ” (People v. Motton (1985) 
    39 Cal.3d 596
    , 606 (Motton))
    and the improper stereotypes that might cause a prosecutor to
    remove Black female jurors in a case involving Black male
    defendants. (See, e.g., People v. Triplett (2020) 
    48 Cal.App.5th 655
    , 683 (dis. stmt. of Liu, J.) [prosecutor struck a Black woman
    who, when asked if she knew anyone who had been treated
    badly by the police, said, “ ‘A Black woman in L.A. with young
    Black brothers, I have been harassed many times’ ” by police,
    but then “repeatedly and unequivocally” indicated that “she
    could be a fair juror and impartially consider police testimony”].)
    Indeed, “[r]acial identity between the defendant and the
    excused person might in some cases be the explanation for the
    prosecution’s adoption of [a] forbidden stereotype.” (Powers v.
    Ohio (1991) 
    499 U.S. 400
    , 416 (Powers).) Because “race
    prejudice stems from various causes and may manifest itself in
    different forms” (ibid.), the race of a defendant does not become
    irrelevant because an excused juror of the same race belongs to
    a different gender. As relevant here, “[t]he most commonly held
    8
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    stereotype about African-American women in the context of jury
    selection is that they will not convict a Black male defendant
    because they will emotionally respond to him as a son or
    husband. . . . [¶] In the context of capital trials, this stereotype
    translates into the assumption that African-American women
    will not impose the death penalty against an African-American
    male defendant.” (Brief of Amici Curiae National Congress of
    Black Women and Black Women Lawyers Association of Los
    Angeles, Inc., Williams v. California, No. 13-494, pp. 10–11; see
    Babcock, A Place in the Palladium: Women’s Rights and Jury
    Service (1992) 61 U.Cin. L.Rev. 1139, 1147.)
    Empirical studies demonstrate that Black women are the
    frequent target of prosecutors’ peremptory challenges in capital
    cases and are struck disproportionately compared to other
    groups. (See, e.g., Baldus et al., The Use of Peremptory
    Challenges in Capital Murder Trials: A Legal and Empirical
    Analysis (2001) 3 U.Pa. J. Const. L. 3, 123 [young Black women
    experienced the highest strike rate by the prosecution followed
    by young Black men and Black middle-aged women]; Wright et
    al., The Jury Sunshine Project: Jury Selection Data as a Political
    Issue (2018) 4 U.Ill. L.Rev. 1407, 1427 [prosecutors removed
    Black women at about double the rate they removed White
    prospective jurors]; Eisenberg et al., If It Walks Like Systematic
    Exclusion and Quacks Like Systematic Exclusion: Follow-Up on
    Removal of Women and African-Americans in Jury Selection in
    South Carolina Capital Cases, 1997–2014 (2017) 68 S.C. L.Rev.
    373, 389 [same]; see also People v. Harris (2013) 
    57 Cal.4th 804
    ,
    887–889 (conc. opn. of Liu, J.) [discussing additional studies and
    experimental research on the disparate strikes of Black jurors].)
    These findings are consistent with how often this court
    and other courts have confronted objections to the strikes of
    9
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    Black women. In some cases, the record reflects “precisely the
    sort of reliance on racial and gender stereotypes that Batson is
    intended to eliminate.” (People v. Williams (2013) 
    56 Cal.4th 630
    , 717 (dis. opn. of Liu, J.); see 
    id.
     at pp. 651–652 (maj. opn.)
    [prosecutor struck five Black women; trial judge said “ ‘Black
    women are very reluctant to impose the death penalty’ ”]; see,
    e.g., Battle, supra, 11 Cal.5th at pp. 770, 774 [prosecutor struck
    two Black women in case involving Black male defendant];
    People v. Johnson, supra, 8 Cal.5th at pp. 529, 531 (dis. opn. of
    Liu, J.) [prosecutor struck three Black women with “diverse
    backgrounds, occupations, and family circumstances” in case
    involving Black male defendant]; Rhoades, 8 Cal.5th at p. 424
    [prosecutor excused all four Black women to reach the box];
    People v. Cunningham (2015) 
    61 Cal.4th 609
    , 665 [prosecutor
    used three of eight challenges to strike Black women]; People v.
    Chism (2014) 
    58 Cal.4th 1266
    , 1338, 1344 (dis. opn. of Liu, J.)
    [prosecutor struck Black woman where first penalty phase jury
    of Black male defendant’s trial hung because two Black female
    jurors refused to vote for death]; People v. Elliott (2012) 
    53 Cal.4th 535
    , 560–563 [prosecutor struck Black woman because
    she was “ ‘weak on death’ ” but did not engage her in same voir
    dire as non-Black prospective jurors raising similar concerns in
    their questionnaires]; People v. Manibusan (2013) 
    58 Cal.4th 40
    ,
    81 [prosecutor used three of eight peremptories to remove Black
    women]; People v. Mai (2013) 
    57 Cal.4th 986
    , 1050–1053
    [prosecutor struck three Black women relying in part on
    questionable characterizations of their death penalty views];
    Thomas, supra, 53 Cal.4th at pp. 794–796 [prosecutor struck six
    Black women in case with Black defendant where there was “no
    obvious reason” to strike all of the challenged Black women];
    People v. Taylor (2010) 
    48 Cal.4th 574
    , 612, 616 [prosecutor
    10
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    excused Black woman for, among other things, being
    “undecided” about the death penalty where seated juror
    indicated likewise]; People v. Mills (2010) 
    48 Cal.4th 158
    , 177–
    185 [prosecutor struck at least five Black women who entered
    the box]; People v. Stanley (2006) 
    39 Cal.4th 913
    , 937–943
    [prosecutor struck five Black women based on their “ ‘sympathy
    for the defendant’ ”; trial judge said “[m]ost of these women that
    you excused by their answers and by the way they talked, it’s
    arguable that they were sympathetic to the defendant, the
    defendant being black”]; Bell, supra, 40 Cal.4th at p. 595
    [prosecutor struck two of three Black women in case with Black
    male defendant]; People v. Young (2005) 
    34 Cal.4th 1149
    , 1171
    [prosecutor struck all three Black women from the panel];
    People v. Cleveland (2004) 
    32 Cal.4th 704
    , 733–734 [prosecutor
    struck four Black women in case with Black male codefendants];
    People v. Boyette (2002) 
    29 Cal.4th 381
    , 420–423 [prosecutor
    struck four Black women over concerns about their willingness
    to impose the death penalty where three indicated their
    willingness to do so]; Wilson v. Beard (3d Cir. 2005) 
    426 F.3d 653
    , 657, 669 [prosecutor struck at least six Black women and
    urged in jury selection training tape that young Black women
    “ ‘are very bad’ ” and to avoid older Black women “ ‘when you
    have [] a black defendant who’s a young boy and they can
    identify as his . . . motherly type thing’ ”]; see also J.E.B. v.
    Alabama ex rel. T.B. (1994) 
    511 U.S. 127
    , 145, fn. 18 (J.E.B.)
    [“the majority of the lower court decisions extending Batson to
    gender involve the use of peremptory challenges to remove
    minority women”].)
    To overlook the racial identity of the challenged jurors and
    defendants in these circumstances would be to ignore persistent
    stereotypes and their impermissible effects on jury selection. In
    11
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    this case, as in others, the disproportionate challenge of Black
    women plausibly raises a concern that these jurors were
    removed based on “assumptions . . . which arise solely from
    the[ir] race,” gender, or intersection of these identities. (Batson,
    
    supra,
     476 U.S. at p. 98; see J.E.B., supra, 511 U.S. at pp. 141–
    142; Motton, supra, 39 Cal.3d at p. 606.) The shared “[r]acial
    identity between the defendant[s] and the excused person[s] . . .
    may provide one of the easier cases to establish both a prima
    facie case and a conclusive showing that wrongful
    discrimination has occurred.” (Powers, 
    supra,
     499 U.S. at
    p. 416.)
    In reaching a contrary conclusion, today’s opinion relies on
    the final composition of the jury, which included four Black
    women, and the fact that the prosecutor had sufficient
    peremptory challenges remaining to strike them at the time he
    accepted the jury. But these circumstances cannot bear the
    weight the court places on them.
    Crucially, the prosecutor accepted the jury’s composition
    only after the trial court had admonished counsel to be attentive
    to “the appearance of fairness” and “[t]he appearance of justice”
    in the exercise of their peremptory strikes. Up to that point, the
    prosecutor had continued to use half of his peremptory
    strikes — six out of twelve at the time of the Batson motion, then
    two out of four until the jury was accepted — to dismiss Black
    women. Indeed, it was only after the prosecutor struck six Black
    women, after the defense made a Batson/Wheeler motion, after
    the prosecutor declined to state his reasons for his strikes, after
    the prosecutor struck two additional Black women, after the
    defense accepted the jury three times, and after the court
    admonished counsel about the appearance of justice that the
    prosecutor accepted the jury as seated. In these circumstances,
    12
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    the fact that the prosecutor could have removed even more Black
    women from the jury, in the face of the trial court’s pointed
    admonition, does little to lessen the inference of discrimination
    arising from the pattern of strikes.
    Today’s    opinion    also    notes        that   the   prosecution
    “repeatedly excused jurors who were not members of the
    identified group rather than excusing a number of African-
    American women then in the box.” (Maj. opn., ante, at p. 48.)
    But it is only in the most egregious, indiscreet, or oddly drawn
    cases that a prosecutor would use peremptory challenges to
    exclude only members of an identified group. Courts routinely
    find a prima facie case where the prosecutor had sufficient
    challenges remaining to strike seated jurors of the same group
    or struck members of other groups in addition to the challenged
    group. (See, e.g., Turner, 
    supra,
     63 F.3d at pp. 812–813
    [collecting cases where the court found an inference of
    discrimination where “the prosecution struck some, but not all,
    of the minority venirepersons”].)
    Finally, we have said “an appellate court may take into
    account ‘nondiscriminatory reasons for a peremptory challenge
    that are apparent from and “clearly established” in the record
    [citations] and that necessarily dispel any inference of bias.’ ”
    (Rhoades, supra, 8 Cal.5th at p. 431; see ibid. [“when the record
    of a prospective juror’s voir dire or questionnaire on its face
    reveals a race-neutral characteristic that any reasonable
    prosecutor trying the case would logically avoid in a juror, the
    inference that the prosecutor was motivated by racial
    discrimination loses force”].) Today’s opinion identifies no such
    reasons, and I see none.
    13
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    In concluding that defendants have made a prima facie
    case of discrimination, I express no view on whether they would
    have ultimately shown by a preponderance of the evidence that
    the prosecutor improperly dismissed one or more Black female
    jurors. The prosecutor may well have had race-neutral reasons
    for each strike, but we will never know. Instead, we are left with
    “uncertainty” where “a direct answer [could have been] obtained
    by asking a simple question.” (Johnson v. California, supra, 545
    U.S. at p. 172.) In this posture, the only inquiry before us is
    whether “an inference of discrimination” arises from the totality
    of circumstances in this case. (Batson, 
    supra,
     476 U.S. at p. 97.)
    This “ ‘low threshold’ ” is easily met here; the evidence is more
    than “sufficient to permit us to draw an inference that
    discrimination may have occurred.” (Battle, supra, 11 Cal.5th
    at p. 773.)
    “[I]t has been more than 30 years since this court has
    found any type of Batson error involving the removal of a Black
    juror. (See People v. Snow (1987) 
    44 Cal.3d 216
    .) This is despite
    the fact that ‘[t]he high court’s opinion [in Batson] responded
    specifically to the pernicious history of African Americans being
    excluded from jury service, calling such exclusion “a primary
    example of the evil the Fourteenth Amendment was designed to
    cure.” ’ ” (People v. Johnson, supra, 8 Cal.5th at p. 534 (dis. opn.
    of Liu, J.).) Today’s decision extends this improbable streak and
    regrettably may feed the perception — held by two of the Black
    women jurors whom the prosecutor struck and by no fewer than
    six seated jurors in this case — that the death penalty is
    imposed randomly or disproportionately upon persons with
    lesser means.          The incongruity between our Batson
    jurisprudence and what is widely known about racial inequality
    in our justice system has spurred legislative reform. (Assem.
    14
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    Bill No. 3070 (2019–2020 Reg. Sess.); see Code Civ. Proc.,
    § 231.7.) But “[t]he duty to confront racial animus in the justice
    system is not the legislature’s alone.” (Peña-Rodriguez v.
    Colorado (2017) 580 U.S. __, __ [
    137 S.Ct. 855
    , 867].) “It is [past]
    time that we, too, bring a greater sense of urgency to ferreting
    out racial discrimination in the criminal justice system.” (People
    v. Johnson, at p. 536 (dis. opn. of Liu, J.).)
    Because the passage of time makes remand to explore the
    prosecutor’s actual reasons for the contested strikes impractical
    (see Battle, supra, 11 Cal.5th at p. 811 (dis. opn. of Liu, J.)), I
    would reverse the judgment.
    III.
    Today’s opinion also concludes that the trial court did not
    abuse its discretion by requiring defendants to wear stun belts
    based on a few instances of cursing and profane gestures. I join
    Justice Kruger in disagreeing with this conclusion. (Conc. opn.
    of Kruger, J., ante, at pp. 1–8, 13–15.) The record must
    demonstrate the “type of serious security threat at trial that
    would justify the imposition of restraints under the ‘manifest
    need’ standard.” (Mar, supra, 28 Cal.4th at p. 1220.) We have
    said that “verbal outbursts” — the conduct the court ultimately
    relies on today — do not justify the use of a stun belt. (Id. at
    p. 1223, fn. 6 [“a stun belt may not properly be used, over a
    defendant’s objection, to deter a defendant from making verbal
    outbursts that may be detrimental to the defendant’s own
    case”].)
    I would further hold that this error by the trial court was
    not harmless beyond a reasonable doubt.             In Mar, we
    determined that “the relative closeness of the evidence, the
    crucial nature of defendant’s demeanor while testifying, and the
    15
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    likelihood that the stun belt had at least some effect on
    defendant’s demeanor” meant that “there [wa]s a reasonable
    probability that the error affected the outcome of defendant’s
    trial.” (Mar, supra, 28 Cal.4th at p. 1225.) Here, the court
    imposed the stun belts during the penalty phase retrial after the
    first penalty jury hung, and the second penalty jury deliberated
    for nine days before reaching death verdicts. The jury’s
    perception of the defendants, one of whom was representing
    himself, would have been critical in weighing aggravating and
    mitigating circumstances. (See People v. Jackson (2014) 
    58 Cal.4th 724
    , 777 (Jackson) (conc. opn. of Liu, J.) [“Wearing a
    stun belt carries a substantial risk of altering a defendant’s
    demeanor, and a defendant’s demeanor is often one of the most
    important considerations for the jury in deciding whether a
    capital defendant deserves to live or die. (See Riggins v. Nevada
    (1992) 
    504 U.S. 127
    , 143–144 (conc. opn. of Kennedy, J.) . . . .”].)
    A stun belt is “a device that . . . delivers an eight-second-
    long, 50,000-volt, debilitating electric shock when activated by a
    transmitter controlled by a court security officer.” (Mar, supra,
    28 Cal.4th at p. 1204.) “ ‘The shock contains enough amperage
    to immobilize a person temporarily and cause muscular
    weakness for approximately 30 to 45 minutes. The wearer is
    generally knocked to the ground by the shock and shakes
    uncontrollably. Activation may also cause immediate and
    uncontrolled defecation and urination, and the belt’s metal
    prongs may leave welts on the wearer’s skin requiring as long
    as six months to heal. An electrical jolt of this magnitude causes
    temporary debilitating pain and may cause some wearers to
    suffer heartbeat irregularities or seizures.’ ” (Id. at p. 1215.)
    The trial court read to defendants a form that explained
    the device’s capability — that “when activated [it] is capable of
    16
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    delivering an impulse of 50,000 volts, the result of which may be
    instant and complete immobilization of [the] body” — and
    informed defendants that it “could be remotely activated [if the
    wearer] make[s] sudden or hostile movements, [] tamper[s] with
    the belt, fail[s] to comply with verbal commands, [or makes] any
    overt acts of aggression or communication with persons in or
    around [his] immediate vicinity.”
    Awareness of this threat inflicts a type of “mental anguish
    that results from simply wearing the stun belt.” (Wrinkles v.
    State (Ind. 2001) 
    749 N.E.2d 1179
    , 1195 [banning the use of stun
    belts in Indiana courtrooms altogether].) “Even when the jury
    is not aware that the defendant has been compelled to wear a
    stun belt, the presence of the stun belt may preoccupy the
    defendant’s thoughts, make it more difficult for the defendant to
    focus his or her entire attention on the substance of the court
    proceedings, and affect his or her demeanor before the jury.”
    (Mar, supra, 28 Cal.4th at p. 1219.) Thus, even in cases where
    the jury was not informed that the defendant was wearing a
    stun belt, courts, including ours, have found their improper use
    prejudicial. (See id. at p. 1223; U. S. v. Durham (11th Cir. 2002)
    
    287 F.3d 1297
    , 1309 (Durham).)
    This psychological effect is particularly concerning with
    respect to McClain, who was representing himself. (See Mar,
    supra, 28 Cal.4th at p. 1225, fn. 7 [“the greatest danger of
    prejudice arises from the potential adverse psychological effect
    of the device upon the defendant rather than from the visibility
    of the device to the jury”]; Durham, 
    supra,
     287 F.3d at p. 1306,
    fn. 7 [“fear of discharge may eviscerate the defendant’s ability to
    take an active role in his own defense”].) “Wearing a stun belt
    is a considerable impediment to a defendant’s ability to follow
    the proceedings and take an active interest in the presentation
    17
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    of his case. It is reasonable to assume that much of a defendant’s
    focus and attention when wearing one of these devices is
    occupied by anxiety over the possible triggering of the belt. A
    defendant is likely to concentrate on doing everything he can to
    prevent the belt from being activated, and is thus less likely to
    participate fully in his defense at trial.” (Durham, at p. 1306;
    id. at p. 1309 [vacating conviction where stun belt impaired
    defendant’s ability to “participate meaningfully” in his trial].)
    Just as “restraints can impair a defendant’s ability to testify
    effectively” (Jackson, 
    supra,
     58 Cal.4th at p. 741), a defendant
    representing himself would experience the same “ ‘likelihood
    that the stun belt had at least some [prejudicial] effect on [his]
    demeanor’ ” (id. at p. 740). Here, we need not speculate as to
    whether the belt adversely affected McClain’s demeanor or his
    ability to participate in his own case. McClain said during
    closing argument that if he “didn’t have this belt on,” he “would
    be able to express [himself] a lot more boisterous[ly].” (Cf.
    People v. Bryant, Smith and Wheeler (2014) 
    60 Cal.4th 335
    , 472
    (conc. opn. of Liu, J.).)
    Moreover, the likelihood of prejudice arises not only from
    the “psychological effect of the device” (Mar, supra, 28 Cal.4th
    at p. 1225, fn. 7), but also from the “ ‘inherent[] prejudic[e]’ ”
    associated with the jury’s discovery in this case that defendants
    were under the imposition of restraints (Deck v. Missouri (2005)
    
    544 U.S. 622
    , 635). “[E]ven where the State does not specifically
    argue the point,” the use of restraints “almost inevitably implies
    to a jury, as a matter of common sense, that court authorities
    consider the offender a danger to the community — . . . nearly
    always a relevant factor in jury decisionmaking.” (Id. at p. 633.)
    Here, the trial court disclosed the use of the belts to the
    jury and, even worse, said the devices were placed on defendants
    18
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    as “a security device to assure tranquility in the court, security
    for everyone,” “based on things the court knows.” (Accord, conc.
    opn. of Kruger, J., ante, at p. 10 [instead of giving the jury the
    standard admonition not to speculate on the reason for
    restraints, the trial court “told the jurors that the devices
    defendants wore were for courtroom security and suggested the
    court knew of undisclosed reasons warranting their use”].)
    Although “there is no indication the jury in this case ever saw
    the restraints” (id. at p. 12), I do not see why that matters where
    the jury was explicitly made aware of the restraints by the trial
    court in a prejudicial manner.
    The trial court’s statements occurred in a proceeding
    where the prosecution repeatedly argued defendants’
    dangerousness as a reason they should receive death instead of
    life imprisonment without parole. Among other statements, the
    prosecutor argued that “life without parole [would] give
    [Newborn] a chance to do something like this again, to somebody
    who is in custody, whether it be a guard, a nurse, a therapist or
    just a weaker fellow inmate. He is a very violent man, . . . a very
    uncontrollable man, . . . and a very dangerous man.” The
    prosecutor also said, “McClain is a really dangerous man. He is
    a danger in here; he is a danger in the street, and he will be a
    danger in state prison. And that is why life without parole is
    not fair.” The prosecutor asked “who else will die at their hands”
    and whether “based upon their past conduct, based upon the
    evidence that you’ve heard,” if anyone could “guarantee that
    they won’t harm again.” In this context, the trial court’s
    disclosure of the stun belts and accompanying explanation that
    the belts were “security device[s] to assure tranquility in the
    court, security for everyone,” “based on things the court knows,”
    are plainly prejudicial.
    19
    PEOPLE v. HOLMES, McCLAIN and NEWBORN
    Liu, J., dissenting
    On this record, I cannot conclude that the use of the stun
    belts was harmless beyond a reasonable doubt at the penalty
    retrial. (See Mar, supra, 28 Cal.4th at p. 1225; Stephenson v.
    Neal (7th Cir. 2017) 
    865 F.3d 956
    , 959 [reversing and remanding
    to vacate defendant’s sentence based on the “possibility that the
    defendant’s having to wear the stun belt . . . contaminated the
    penalty phase of the trial”].)
    I respectfully dissent.
    LIU, J.
    20
    See next page for addresses and telephone numbers for counsel who
    argued in Supreme Court.
    Name of Opinion People v. Holmes, McClain and Newborn
    __________________________________________________________
    Procedural Posture (see XX below)
    Original Appeal XX
    Original Proceeding
    Review Granted (published)
    Review Granted (unpublished)
    Rehearing Granted
    __________________________________________________________
    Opinion No. S058734
    Date Filed: January 31, 2022
    __________________________________________________________
    Court: Superior
    County: Los Angeles
    Judge: J. D. Smith
    __________________________________________________________
    Counsel:
    Eric S. Multhaup, under appointment by the Supreme Court, for
    Defendant and Appellant Lorenzo Newborn.
    Debra S. Sabah Press and Charles J. Press, under appointments by the
    Supreme Court, for Defendant and Appellant Herbert McClain.
    Karen Kelly, under appointment by the Supreme Court, for Defendant
    and Appellant Karl Holmes.
    Edmund G. Brown, Jr., and Rob Bonta, Attorneys General, Dane R.
    Gillette and Lance E. Winters, Chief Assistant Attorneys General,
    Pamela C. Hamanaka and James William Bilderback II, Assistant
    Attorneys General, Sharlene A. Honnaka, Dana M. Ali, Jaime L.
    Fuster and Seth P. McCutcheon, Deputy Attorneys General, for
    Plaintiff and Respondent.
    Counsel who argued in Supreme Court (not intended for
    publication with opinion):
    Eric S. Multhaup
    35 Miller Avenue, #229
    Mill Valley, CA 94941
    (415) 381-9311
    Karen Kelly
    Attorney at Law
    P.O. Box 6308
    Modesto, CA 95357
    (209) 571-1085
    Debra S. Sabah Press
    Attorney at Law
    3571 Far West Boulevard, PMB 140
    Austin, TX 78731
    (510) 847-5933
    Seth P. McCutcheon
    Deputy Attorney General
    300 South Spring Street, Suite 1702
    Los Angeles, CA 90013
    (213) 269-6133